Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005708
First-tier Tribunal No: PA/63383/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 5 May 2026

Before

UPPER TRIBUNAL JUDGE MAHMOOD

Between

MR
(ANONYMITY ORDER CONTINUED)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr S Karim of Counsel instructed by IBW Solicitors
For the Respondent: Ms Blackburn, a Senior Home Office Presenting Officer

Heard at Phoenix House (Bradford) on 27 February 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. The parties may apply on notice to vary this order.

DECISION AND REASONS
Introduction
1. The Appellant, a national of Bangladesh, appeals against the decision of First-tier Tribunal Judge Mytton (“the Judge”) dated 20 October 2025 refusing his protection and human rights claim.
2. My task is to consider whether or not there is a material error of law in the Judge’s decision. If there is no material error of law then the Judge’s decision which had dismissed the Appellant’s appeal will stand. If I find that there is a material error of law in the Judge’s decision then I shall either remake the decision or I shall remit the matter for rehearing to the First-tier Tribunal.
The Grant of Permission to Appeal
3. Permission to appeal was granted by First-tier Tribunal Judge Singer. The learned Judge noted the numerous grounds and stated in his decision dated 15 December 2025 that,
“The Tribunal did not expressly direct itself as to the Joint Presidential Guidance Note, No 2 of 2010, or the principles therein: see for example SB (vulnerable adult: credibility) Ghana [2019] UKUT 00398 (IAC). It is arguable that adverse credibility findings were made without reference to the psychiatric and medical evidence. The other grounds looked at individually are less meritorious, but they are arguably impacted by Ground (v), to the extent that it is fair to grant permission on all grounds.”
The Hearing Before Me
4. At the hearing before me, Mr Karim made clear that he was not seeking to rely on his instructing solicitor’s Rule 15(2A) application dated 17 February 2026 for the purposes of my consideration of whether or not there is a material error of law in the Judge’s decision.
5. A skeleton argument had been provided by Mr Karim’s instructing solicitors and Mr Karim took me through each of the grounds of challenge.
6. Ground 5 of the Appellant’s grounds of challenge states:
“GROUND 5 – Procedural Unfairness and Vulnerability 15. The Appellant was accepted to be a “seriously ill person” but the Judge failed to apply the Joint Presidential Guidance Note No.2 of 2010. 16. The Judge drew adverse credibility findings from untested points (such as how documents were sourced or translated) without confirming that they had been properly put to the Appellant for comment. This deprived him of a fair opportunity to respond, contrary to Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC). 17. The FTT also failed to adjust its approach to a mentally vulnerable witness, contrary to AA (Afghanistan) [2007] EWCA Civ 12.”
7. In her submissions, Ms Blackburn took me to each of the grounds and said that the Appellant’s Ground 5 was the strongest. I therefore set out her submissions in respect of that ground in particular because if that ground is made out then it will mean that the whole of the Judge’s decision is be infected by error.
8. Ms Blackburn submitted that it was not clear what difference the offer of breaks could have made to the Judge’s decision. She said it was not clear if the Judge had been asked to deal with the Appellant being vulnerable. She said that at paragraph 21 the Judge’s decision showed he had an awareness of the effect on evidence. She said that the Judge had an awareness when evaluating the evidence and its circumstances when the Appellant was giving evidence.
9. Ms Blackburn said that it was for the Appellant to raise vulnerability before the Judge and it was for the Appellant’s solicitors to do so because the Appellant was represented at the hearing. She said it was unhelpful not to make a request in terms of vulnerability, but then to later to claim no adjustments were made during the hearing. Ms Blackburn said that there was no evidence that an issue had been raised about the style of questioning. Ms Blackburn said it could be useful for judges to raise vulnerability as an issue for consideration, but “in essence, it was unhelpful to raise something that was not raised by the Appellant during the hearing”.
10. Ms Blackburn said that in respect of the Appellant’s memory and the impact on the assessment of the evidence, there had been no particular diagnosis of memory issues and page 175 of the bundle only showed the cumulative effect of the stress and the situation.
The Judge’s decision
11. At paragraph 7 the Judge noted that the Appellant claimed to suffer from anxiety, depression, poor memory, forgetfulness, fatigue, poor energy and concentration. The Judge noted that the Appellant had referred to suicidal thoughts. The Judge also noted at paragraph 17 the concession made by the Respondent at that hearing that the Appellant was ‘a seriously ill person’ in respect of Article 3 ECHR matters.
12. The Judge referred at paragraph 12 to the “inevitable stress of appearing at a Tribunal hearing”.
13. At paragraphs 24 to 26 the Judge made adverse findings against the Appellant based on the Appellant’s evidence, including that evidence being inconsistent and confusing.
The Correct Approach to Appeals from the First-tier Tribunal
14. I remind myself that the expertise of the First-tier Tribunal has been impressed upon the Upper Tribunal for very many years, including more recently in the decision of the Court of Appeal in MH (Bangladesh) v Secretary of State for the Home Department [2025] EWCA Civ 688 9 June 2025. In particular the judgment of Arnold LJ, with whom Singh and King LJJ agreed. Paragraph 29 makes clear:
“There have been many recent authorities in both the Supreme Court and this Court on the need for appellate courts and tribunals to be cautious before interfering with findings of fact and evaluative assessments by lower courts and tribunals, and in particular specialist tribunals such as the FTT. For present purposes it is sufficient to cite Lord Hamblen’s summary in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, [2022] 1 WLR 3784 at [72]:
‘It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. In particular:
(i) They alone are the judges of the facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. It is probable that in understanding and applying the law in their specialised field the tribunal will have got it right. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 678 per Baroness Hale of Richmond at para 30.
(ii) Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49; [2011] 2 All ER 65 at para 45 per Sir John Dyson.
(iii) When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19; [2013] 2 AC 48 at para 25 per Lord Hope of Craighead.”
15. The legal test to be met by the Appellant to show a material error of law is to be found in the Court of Appeal’s decision in R(Iran) and others v Secretary of State for the Home Department [2005] EWCA Civ 982; [2005] Imm. A.R. 535.
Analysis and Consideration
16. I had invited the parties to make submissions to me in respect of the recent decision of the Court of Appeal in Khan v Secretary of State for the Home Department [2026] EWCA Civ148. In that recent case, Lewis LJ who provided the only reasoned judgment and with whom Yip and May LJJ agreed said:
“37. I am satisfied that the Guidance Note is intended to provide guidance to ensure that parties are able effectively to participate in proceedings and to ensure that their evidence is properly and fairly considered. It is intended to assist the tribunal to deal with a case fairly and justly. The Guidance Note does not impose a set of free-standing legal obligations on a tribunal. The fact that a tribunal has not taken the steps set out in the Guidance Note does not necessarily mean that the tribunal has erred in law, still less that its decision on an appeal is legally flawed. The issue will ultimately be whether the proceedings were procedurally fair so that there was a proper opportunity to give evidence and have that evidence properly and fairly assessed. I reach that conclusion for the following reasons.
…
48. For those reasons, I reject the appellant's submissions that the Guidance Note imposes free-standing legal obligations. A failure to take one of the steps set out in the Guidance Note does not necessarily mean that the First-tier Tribunal has erred in law and does not, of itself, mean that the decision is legally flawed. Rather, the question will be whether the First-tier Tribunal has acted in a way which means that the appeal has not been fairly and justly dealt with or, to put it more simply, whether there has been procedural unfairness which materially affects the decision.
49. There is nothing to suggest on the evidence that there was any procedural unfairness, or any failure to assess the evidence properly. The appellant was represented by leading counsel. He and his wife gave written and oral evidence and he adduced experts' reports. Mr Malik does not suggest that there was any need to make adjustments to the proceedings during the hearing to enable the appellant to participate effectively.”
17. As I indicated during the hearing, the law understood previously was that in many cases where the IAC judge had not specifically considered vulnerability, it would more often than not, lead to a conclusion that the decision showed a material error of law. Lewis LJ’s judgment in Khan makes it clear that it is necessary to look to the actual circumstances of the hearing to assess whether a fair hearing took place and a fair decision reached, even where vulnerability has not been specifically considered by the fact finding judge.
18. In this case, as I have highlighted above, vulnerable aspects about the Appellant were specifically referred to by the Appellant as part of his case. The Appellant also had a specific expert report dealing with this mental health/related issues. The vulnerability issues in this case are more serious than those in Khan. In Khan at paragraph 27, the FTT Judge’s finding were:
“… I cannot conclude that the evidence reliably supports any clear diagnosis of severe depression. The consensus and it is what the appellant refers to in his own written statement is that his mental health circumstances relate to grief further to the bereavement of his mother in 2018."
19. In this matter before me however, the Judge had before him the expert evidence which he stated had said, amongst other things:
“In relation to risk and prognosis, the expert states that the Appellant’s condition requires further medical investigations, treatment and ongoing psychological input in order to prevent the risk of further deterioration of his physical and mental state. The present risk assessment places him at low moderate risk of self-harm and low-moderate risk of suicide. Further stress, worry and uncertainty should be avoided to prevent his symptoms worsening.”
20. In my judgment despite the failure by the Appellant’s solicitors to specifically remind the Judge about the Presidential Guidance, the combined effect of the following matters show that there is a material error of law in the Judge’s decision. Those matters are:
(i) the Appellant’s basis of case was that he has memory loss, depression, suicidal thoughts and the like;
(ii) the expert report highlighted the matters further; and
(iii) it was therefore necessary in this particular case to set out how those vulnerable aspects affected the Judge’s decision in respect of his fact finding.
21. For example, when the Judge referred to the Appellant’s evidence being “inconsistent and confusing” might that have been because of the Appellant’s (apparently accepted) vulnerability arising out of memory loss and the like? It is not possible to decipher if the Judge had factored those matters into his fact finding.
22. Whilst I note what Ms Blackburn says about making appropriate adjustments/special measures during the hearing for a vulnerable witness, the real issue in this case is whether the Judge sufficiently or at all took into account the Appellant’s apparently accepted vulnerabilities when assessing his evidence.
23. I remind myself that this case involves a protection claim, albeit I am well aware that issues in respect of the Bangladesh National Party are now different compared with prior to the recent elections in Bangladesh. My focus though has to be on the fairness of the proceedings and whether the Judge’s decision shows a material error of law.
24. In my judgment, in this particular case, and every case will be different, the totality of the relatively extensive evidence relating to the Appellant’s vulnerability and memory loss was such that fairness dictated that the Judge should have said how those factors affected his findings of fact. In my judgment, it is likely that the Judge might have made different findings had he considered the vulnerability and memory issues.
25. I therefore conclude that the Judge’s decision shows a material error of law. The Judge’s findings permeate throughout the decision and they thereby infect the whole of the decision. I therefore conclude that it is not necessary to consider the other grounds of appeal. I set aside the Judge’s decision. None of the Judge’s decision shall stand.
26. I have considered whether or not this is a matter which ought to remain for further consideration here at the Upper Tribunal or whether it should be remitted to the First-tier Tribunal. I apply AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC). I consider whether to retain the matter for remaking here at the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statement. I take into account the history of this case, the nature and extent of findings to be made as well as the nature of the errors in this case. I further consider it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process. I conclude that the appropriate decision in this case is that I remit the matter to the First-tier Tribunal with no retained findings.
27. It will be for the Respondent to decide at the next hearing what concessions, if any made at the hearing previously will continue to remain.
28. I conclude that the Judge’s decision in its entirety is set aside and that there are no retained findings. There shall be a complete rehearing at the First-tier Tribunal.

Notice of Decision
The decision of the First-tier Tribunal contains a material error of law and is set aside with no retained findings.
The matter will be reheard at the First-tier Tribunal on all issues.

Abid Mahmood
Judge of the Upper Tribunal
Immigration and Asylum Chamber

31 March 2026