Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005600
First-tier Tribunal No: PA/58317/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 30th March 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

MA
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: absent
For the Respondent: Mr M Diwnycz, Senior Home Office Presenting Officer

Heard at Melville Street, Edinburgh, on 17 March 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.
No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. I make an anonymity direction because this appeal arises from the appellant’s protection claim.
2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Cowx, dated 17/10/2025, which dismissed the Appellant’s appeal on all grounds.
Background
3. The Appellant is a Kurdish citizen of Iran. He claimed asylum in the UK on 01/09/2022. The Respondent refused the Appellant’s application on 11/03/2024.
The Judge’s Decision
4. The Appellant appealed to the First-tier Tribunal. On 17/10/2025 First-tier Tribunal Judge Cowx (“the Judge”) dismissed the Appellant’s appeal.
5. The Appellant lodged grounds of appeal, and on 04/12/2025 First-tier Tribunal Judge Adio granted permission to appeal. He said
1. The Applicant seeks permission to appeal against the decision of the First-tier Tribunal (Judge C J Cowx) who in a decision promulgated on 17th October 2025 dismissed the Applicant’s appeal on asylum grounds. In the notice of decision the judge stated that the humanitarian protection and human rights grounds were not pleaded but if they were they would have been dismissed because they would have been founded on the same factual matrix as the claim for international protection.
2. I find that none of the conditions in Rules 31, 32 and 35 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 are applicable. I now proceed to consider the application.
3. The grounds in the application for permission to appeal argue that the judge based his credibility findings on peripheral or minor inconsistencies without considering the Applicant’s claim as a whole. It is also argued that the judge failed to properly treat the Applicant as a vulnerable witness when making adverse credibility findings against him. Ground 3 argues that the judge utilised adverse credibility findings in relation to the Applicant’s core claim to infer that his sur place political activity was therefore false.
4. Ground 4 argues that the judge failed to decide a key issue in the appeal, namely whether the Applicant would qualify for humanitarian protection even if he did not qualify for asylum.
5. At paragraph 2.4 of the decision dealing with hearing and issues in dispute the judge noted that the Applicant’s solicitor had asked the Tribunal to treat MA as a vulnerable witness. The judge agreed to this and asked about the adjustment that needed to be made in order to allow the Applicant to fully engage with his hearing. It is arguable that whilst the judge had agreed to the Applicant being a vulnerable witness, the matter does not end there and the judge was bound to take into account the Joint Presidential Guidance Note No 2 of 2010 (Child, vulnerable adult and sensitive appellant guidance) in making credibility findings. It is therefore arguable that the judge erred in making adverse credibility findings against the Applicant without considering that he was a vulnerable witness in the process of making those findings. The judge does not address or engage with this issue in making findings of fact. All the other grounds also give rise to an arguable error of law as the credibility findings are flawed in view of the failure of the judge to apply the Joint Presidential Guidance in assessing the Applicant’s credibility. Ground 4 is also arguable on the basis that the fact that an Applicant has not made out a refugee claim does not mean that his claim could not be considered on grounds of humanitarian protection if it is made out.
6. There is an arguable error of law based on the grounds filed in the application for permission to appeal.
The Hearing
6. The appellant did not appear and he was not represented. I can see that the appellant was given adequate notice of the time, date, and place, of the hearing. No explanation is given for the appellant's absence. No application is made for an adjournment. All of the documents in relation to this appeal are before me. I can justly determine this appeal in the appellant's absence.
7. I spoke to Mr Diwnycz about the grounds of appeal. Whilst maintaining the respondent’s position, Mr Diwnycz accepted that there are difficulties with the Judge’s decision.
8. Mr Diwnycz spoke with concern about the appellant’s vulnerability and said it is not clear how, or where, the Judge followed the Joint Presidential Guidance Note No 2 of 2010 (Child, vulnerable adult and sensitive appellant guidance). Mr Diwnycz told me that only a passing mention of that guidance is made in the Judge’s decision.
9. Mr Diwnycz expressed concern that the Judge decided not to make an anonymity order, noting that this is a protection claim for a vulnerable man with mental health issues.
10. A feature of the appellant’s claim is an ambush by the authorities on a column of smugglers, of which the appellant formed part. Mr Diwnycz agreed that the Judge’s interpretation of exactly where the appellant was when the ambush struck, and which part of the column was the front and which was the back, is pedantic and should not be determinative of the appellant’s credibility.
11. Turning to the sur place element of the appellant’s claim, Mr Diwnycz agreed that the Judge’s approach to the sur place claim was incorrect. He agreed that in the assessment of risk on return the Judge failed to take guidance from SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC) and HB (Kurds) v SSHD [2018] UKUT 430 (IAC).
12. Mr Diwnycz left the disposal of this appeal to my discretion.
Analysis
13. The Judge deals with the Joint Presidential Guidance Note No 2 of 2010 (Child, vulnerable adult and sensitive appellant guidance) in a cursory manner at [2.4] of the decision. Although the Judge mentions reasonable adjustments and the care required when questioning the appellant, the Judge does not refer to the Joint Presidential Guidance again in his decision. It is unclear whether the Judge took account of the appellant’s vulnerability when assessing credibility.
14. At Section 2 of his decision, the Judge analyses the evidence in detail. The appellant’s claim is that he was a Kurdish Iranian kolbar, and one morning his caravan of smugglers was ambushed by the authorities.
15. The Judge makes his findings of fact at section four of his decision. He starts [4.5] by saying
But what is fatal to MA’s claim is the fact he could not maintain the simplest of factual narratives
16. The Judge then becomes over analytical about the appellant’s account of the ambush by the authorities. The Judge says that the appellant cannot consistently say whether he was at the front or the back of the column of smugglers when it was attacked. For the respondent, Mr Diwnycz agreed that the Judge’s approach (to this part of the evidence) is pedantic. As Mr Diwnycz put it, an ambush is an ambush.
17. There are a number of errors in the Judge’s decision which cumulatively amount to a material error of law. The tipping point is at [4.8] where the Judge turns to the appellant’s sur place claim.
18. [4.9] of the decision takes no account of the guidance given in Danian v SSHD (2002) IMM AR 96.
19. In Danian v SSHD (2002) IMM AR 96 the Court of Appeal said that there is no express limitation in the Convention in relation to persons acting in bad faith, despite Counsel’s attempt in Danian to have one implied. In YB (Eritrea) v SSHD 2008 EWCA Civ 360 the Court of Appeal sounded a note of caution in relation to the argument that, if an appellant was found to have been opportunistic in his sur place activities, his credibility was in consequence low. If he had already been believed ex hypothesi about his sur place activity, his motives might be disbelieved, but the consequent risk on return from his activity sur place was essentially an objective question.
20. Even though it is an undisputed fact the appellant is an Iranian Kurd who worked as a Kolbar, the Judge does not take guidance from either from SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC) or from HB (Kurds) v SSHD [2018] UKUT 430 (IAC).
21. I am mindful of the guidance given in S v SSHD [2024] EWCA Civ 1482, but, after agonising over the true reason for the appellant’s sur place activity, the Judge finds at [4.13] that the appellant will face
Some form of questioning on his return.
22. Having found that the appellant will be questioned on return, the Judge fails to take guidance from SSH and from HB about the nature of the questioning and the likelihood of remand for a second round of questioning, which might raise the likelihood of ill-treatment to a sufficiently high level to trigger the UK’s obligations under both the Refugee Convention and the European Convention on Human Rights.
23. The incorrect approach to sur place activity, the failure to consider the guidance given in HB(Kurds) and SSH, and an incomplete assessment of risk on return are material errors of law.
24. The decision errs materially in law. I set it aside.
25. None of the Judge’s findings in fact can stand.
Remittal to First-Tier Tribunal
26. Under Part 3 paragraph 7.2(b) of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal of 11 June 2018 the case may be remitted to the First-tier Tribunal if the Upper Tribunal is satisfied that:
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party’s case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
27. This case is remitted because a new fact-finding exercise is required. None of the findings of fact are to stand and a complete re-hearing is necessary.
28. This case is remitted to the First-tier Tribunal sitting at Glasgow to be heard before any First-tier Judge other than Judge Cowx. A Kurdish Sorani interpreter will be required.

Decision
The decision of the First-tier Tribunal errs materially in law.
The Judge’s decision dated 17 October 2025 is set aside.
The appeal is remitted to the First-tier Tribunal to be determined of new.

Signed Paul Doyle Date 25 March 2026
Deputy Upper Tribunal Judge Doyle