Tribunal decisions

The decision

Upper Tribunal Appeal Number: UI-2025-005715
(Immigration and Asylum Chamber) First Tier Number: PA/66200/2023
LP/01820/2025

THE IMMIGRATION ACTS

Decision & Reason Issued:
On 24 February 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE GREER

Between

PKG
(anonymity direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms C. Bayati, Counsel
For the Respondent: Ms McKenzie, a Senior Presenting Officer

Heard at Field House on 13 February 2026

DECISION AND REASONS
1. The Appellant is a Sri Lankan national, born 23 February 1975, of Sinhalese ethnicity and Christian faith. She appeals, with permission, against the decision of Judge of the First Tier Tribunal V. Fox (‘the Judge’) dismissing her protection and human rights appeals, promulgated on 23 October 2025 following a hearing at Hatton Cross on 7 October 2025.
2. It is the Appellant’s case that she was of adverse interest to the Sri Lankan authorities by reason of her estranged husband’s suspected association with the LTTE. She claims that in 2019 she and her husband were arrested; that she was detained, interrogated about his activities, accused of LTTE involvement and subjected to serious mistreatment; and that her release was secured by bribery, after which her mother was visited by the authorities. On return she fears serious harm, including detention and ill‑treatment as a perceived associate of the LTTE, and separately contends that removal would breach Article 3 ECHR on medical grounds given diagnoses of PTSD and severe depressive episode, and a significant suicide risk in the context of removal.
3. The Respondent accepted the Appellant’s nationality and identity but rejected the core account, did not accept that she was of interest to the authorities, and maintained that she would have sufficiency of protection and access to healthcare on return. The First‑tier Tribunal attached little weight to Dr Dhumad’s psychiatric report, drew adverse credibility conclusions, and dismissed the appeal on asylum, humanitarian protection and Human Rights grounds.
4. The Appellant sought permission to appeal. On 16 December 2025, Judge Mulready granted permission on all grounds, noting that the grounds “identify arguable errors which cumulatively are material to the outcome of the appeal,” including errors in the Judge’s consideration of the psychiatric report and the consequent safety of the credibility assessment and Article 3 analysis.
5. On 7 January 2026, the Respondent filed a Rule 24 reply opposing the appeal, submitting that the First‑tier Tribunal directed itself appropriately, that weight was a matter for the Judge, and that in the Appellant’s absence her statement fell to be assessed in the round with the other evidence. The Respondent requested an oral hearing.
Grounds of Appeal: Discussion and Findings
6. At the hearing before me, Ms Bayati focused on the second limb of Ground 1, namely, that the Judge failed to determine, as a preliminary issue, whether the Appellant is entitled to be treated as a vulnerable adult for the purposes of the presidential guidance. As a consequence, she argued, the informed reader could not understand whether the Appellant was treated as a Vulnerable adult and could have no confidence that the guidance was applied in substance. As this complaint concerned the fairness of the hearing, she argued that this is a knockout ground and, if made out, affects the entirety of the decision.
7. For the Respondent, Ms McKenzie relied upon the Respondent’s review before the First Tier Tribunal and the Rule 24 Reply. She realistically acknowledged that the Judge did not make an explicit finding as to whether the Appellant is, as she claims, a Vulnerable Adult. However, she submitted that the Judge clearly had the guidance in mind, owing to the fact that the Judge referred to that guidance, albeit not by name. Read as a whole, she said, it is clear to the Appellant how that guidance has been applied in substance. As for the issue of the Appellant’s compellability as a witness, she reminded me that both parties before the First Tier Tribunal have a duty to assist the Tribunal in furthering the Overriding Objective and, in the absence of a specific application for the Appellant to be excused from the hearing, the Tribunal was entitled to deal with the issue in the manner that it did.
8. For the reasons that follow, I am satisfied that Ground 1 is made out.
9. In the Appellant’s Skeleton Argument before the First Tier Tribunal, the Appellant framed the primary issue to be resolved in the Appeal in the following terms:
The appellant’s status as a vulnerable adult and her fitness to give evidence;
10. The substantive submission on this point, at Paragraph 21 of the Skeleton Argument said this:
In view of the findings of the psychiatric expert, the Tribunal is respectfully invited not to draw an adverse inference from any decision not to call the appellant to give oral evidence in support of her claim. The Tribunal is respectfully requested to take the First Tier and Upper Tribunal Practice Direction on ‘CHILD, VULNERABLE ADULT AND SENSITIVE WITNESSES’ into account, which states that “a child, vulnerable adult or sensitive witness will only be required to attend as a witness and give evidence at a hearing where the Tribunal determines that the evidence is necessary to enable the fair hearing of the case and their welfare would not be prejudiced by doing so” (paragraphs 2-3).
11. The Practice Direction (the ‘PD’) on ‘CHILD, VULNERABLE ADULT AND SENSITIVE WITNESSES’ referred to in that submission; is at Annex B to Joint Presidential Guidance Note No 2 of 2010: Child, vulnerable adult and sensitive appellant guidance (the ‘Presidential Guidance’). It says at Paragraphs 2 – 3:
2. A child, vulnerable adult or sensitive witness will only be required to attend as a witness and give evidence at a hearing where the Tribunal determines that the evidence is necessary to enable the fair hearing of the case and their welfare would not be prejudiced by doing so.
3. In determining whether it is necessary for a child, vulnerable adult or sensitive witness to give evidence to enable the fair hearing of a case the Tribunal should have regard to all the available evidence and any representations made by the parties.
12. The more recent Senior President of Tribunals Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal, 1 November 2024 says the following of the Presidential Guidance’s ongoing relevance:
13.1. The Tribunal must have regard to the latest version of the Equal Treatment Bench Book and the Joint Presidential Guidance Note No 2 of 2010: Child, Vulnerable Adult and Sensitive Appellant Guidance in considering how to facilitate the giving of evidence by a child, vulnerable adult or sensitive witness.
13. In AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123, the Court of Appeal made clear, at [30], that the Presidential Guidance note is mandatory in its application, and that a failure to follow it is most likely to be an error of law. At [31], the court’s judgment distils the following 5 principles from the PD and Presidential Guidance note:
31. The PD and the Guidance Note [Guidance] provide detailed guidance on the approach to be adopted by the tribunal to an incapacitated or vulnerable person. I agree with the Lord Chancellor's submission that there are five key features:
a. the early identification of issues of vulnerability is encouraged, if at all possible, before any substantive hearing through the use of a CMRH or pre-hearing review (Guidance [4] and [5]);
b. a person who is incapacitated or vulnerable will only need to attend as a witness to give oral evidence where the tribunal determines that "the evidence is necessary to enable the fair hearing of the case and their welfare would not be prejudiced by doing so" (PD [2] and Guidance [8] and [9]);
c. where an incapacitated or vulnerable person does give oral evidence, detailed provision is to be made to ensure their welfare is protected before and during the hearing (PD [6] and [7] and Guidance [10]);
d. it is necessary to give special consideration to all of the personal circumstances of an incapacitated or vulnerable person in assessing their evidence (Guidance [10.2] to [15]); and
e. relevant additional sources of guidance are identified in the Guidance including from international bodies (Guidance Annex A [22] to [27]).
14. I agree with Ms McKenzie that the Judge was plainly aware of the existence of guidance on this topic. This much is clear from the reference to “Presidential Guidance for vulnerable witnesses” (sic). However, it is equally clear, in my judgment, that the Judge has not applied the applicable guidance in substance. This is for the following reasons.
15. Firstly, the Judge does not identify, at any stage, whether he considers the Appellant to be a vulnerable adult for the purposes of the PD and Presidential Guidance. At various passages of the determination, the Judge comments upon the medical evidence before the First-tier Tribunal, but at no point does the First tier Tribunal resolve the contested issue of whether the Appellant suffers from PTSD and depression and whether she is a vulnerable adult. Neither party before me was able to identify any passage of the decision in which the First tier Tribunal either sets out a list of contested issues or records a finding on the Appellant’s vulnerability.
16. Secondly, the Judge does not ask or answer the question of whether the Appellant’s oral evidence is necessary to enable the fair hearing of the case and whether her welfare would be prejudiced by her giving such evidence at a hearing. Rather, at [38], the Judge determines, by reference to the medical evidence before the Tribunal, that, “The appellant was not entitled to rely upon this evidence to formally excuse herself from the hearing”. By treating the Appellant as needing to justify her non-attendance, the Judge in effect reversed the structure and purpose of the Presidential Guidance. The Presidential Guidance imposes a duty upon the Tribunal to determine, of its own motion, whether it is necessary and appropriate for a vulnerable adult to give evidence; it does not cast upon the Appellant an evidential burden to excuse herself. The First tier Tribunal’s approach is therefore not merely inconsistent with the mandatory nature of the Presidential Guidance but directly contrary to it, and this adds materially to the unfairness identified above.
17. Thirdly, the approach taken to the assessment of the Appellant’s credibility as a witness is irreconcilable with a conscientious application of the Presidential Guidance. At [72], the Judge concludes: “For the reasons stated herein I do not accept that the appellant is a credible witness or that the report adequately addresses her inconsistencies.” This implies an approach under which the Tribunal has first identified the defects in the account and then attempted to decide whether they can be excused. That does not reflect the real nature of the exercise. As made clear in MN v Secretary of State for the Home Department (Rev 3) [2020] EWCA Civ 1746 at [126], what is required is a single evaluative exercise in which factors calling credibility into question are assessed alongside those capable of explaining the same features.
18. Ms McKenzie submitted that, because the Appellant did not make a formal application to be excused from the hearing, the approach taken by the Tribunal was a lawful one. Because the Appellant was not to be called to give evidence in any event, the formal application of the Presidential Guidance would, it was said, have served no meaningful purpose. The difficulties with that submission are twofold.
19. Firstly, the Presidential Guidance recognises, at 5.1, that although the primary responsibility for recognising vulnerability lies with the party calling the witness, the ultimate responsibility rests with the Tribunal. Whilst it would have been advisable for the Appellant’s advisers to apply for a Case Management Review Hearing to be held to determine the issue of vulnerability in line with the Guidance, their failure to do so did not discharge the Tribunal of its duty. The Presidential Guidance makes clear, at paragraph 5, that when the issue of Vulnerability has not been resolved prior to the hearing, it should be considered at the commencement of the final hearing. In any event, the Appellant’s advisers identified the Appellant’s vulnerability as the primary issue to be determined. As Ms Bayati neatly put it before me, they could not have made it any clearer.
20. Secondly, as this Tribunal observed in SB (vulnerable adult: credibility) Ghana [2019] UKUT 398 (IAC), the Presidential Guidance serves two aims: ensuring the best practicable conditions for the person concerned to give their evidence, and ensuring that their vulnerability is taken into account when assessing the credibility of their evidence. Thus, the questions of whether a vulnerable adult is required to give evidence and how their participation is to be facilitated are only part of the equation. Because the Guidance is relevant to the assessment of credibility, in the broader sense, it applies whether or not the Appellant is called to give evidence.
21. In those circumstances, I am satisfied that the First-tier Tribunal materially erred in law. The question whether the Appellant was a Vulnerable Adult was squarely raised as a primary issue. It was not resolved. The Presidential Guidance is mandatory in its application and required the Tribunal to determine that issue expressly and to demonstrate, in substance, how it informed both the conduct of the hearing and the assessment of credibility. Given that credibility lay at the heart of the determination, I cannot be satisfied that the error was immaterial. The decision is therefore unsafe and must be set aside in its entirety.
Disposal
22. I have considered the appropriate disposal having regard to paragraph 7.2 of the Senior President’s Practice Statements and the guidance in AEB v SSHD [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC). The error identified goes to the procedural fairness of the hearing and infected the entirety of the credibility assessment. The Appellant was deprived of a fair determination of her appeal. In those circumstances, none of the findings of fact can safely be preserved. Extensive fact finding will be required. Having regard to the overriding objective, I am satisfied that the appropriate course is to remit the appeal to the First tier Tribunal for a de novo hearing before a judge other than Judge V. Fox.
Notice of Decision
1. The decision of the First-tier Tribunal involved the making of a material error on a point of law. The decision of the First-tier Tribunal is set aside.
2. The matter is to be remitted to the First-tier Tribunal to be determined de novo by a judge other than Judge of the First Tier Tribunal V. Fox.

Signed:

J. GREER

Deputy Upper Tribunal Judge Greer

Dated 14th February 2026