Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000322
First-tier Tribunal No: PA/58493/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 8 October 2026

Before

UPPER TRIBUNAL JUDGE RASTOGI

Between

SKD
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms S. Lacointe, Senior Home Office Presenting Officer
For the Respondent: Mr J. Cubbon, Counsel instructed by Solomon Solicitors

Heard at Field House on 23 September 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. The appellant appeals, with permission, the decision of the First-tier Tribunal (“FtT”) of 23 October 2025 in which FtT Judge (“the judge”) dismissed his appeal against the respondent’s refusal of his protection and human rights claim. The respondent opposes the appeal. I can only set aside the decision if I find it to contain a material error of law. As will be seen, I do find the decision to contain such an error, so it will need to be remade.

2. The primary reason the judge dismissed the appeal was because he did not find the appellant to be a credible witness, even to the lower standard of proof, so did not find him to be a risk of persecution in Ethiopia as a result of his political opinion or, in the alternative, solely on the basis of his Tigrayan ethnicity. It followed that neither did the judge find the appellant to be at risk of suffering serious harm on return to Ethiopia or of any treatment capable of breaching Articles 2 or 3 of the European Convention on Human Rights.

3. The four grounds of challenge can be summarised as follows:

Ground 1: failure to apply anxious scrutiny and give proper weight to the expert evidence.
Ground 2: inconsistent and speculative findings.
Ground 3: failure to consider risk arising from Tigrayan ethnicity.
Ground 4: misapplication of the law on sur place activities.

4. On 2 April 2026 Deputy Upper Tribunal Judge Woodcraft found all grounds arguable and granted permission to appeal.

5. I had the benefit of a 623-page consolidated hearing bundle (“HB”) and submissions made on behalf of both parties. At the end of the hearing, I reserved my decision which I now give with my reasons. I refer to the submissions as necessary to explain my decision to the parties.

The Legal Framework

6. There is considerable authority on the need for judicial restraint in the appellate jurisdiction. For example, the Court of Appeal said the following at paragraph [26] of Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201:

“Sections 11 and 12 TCEA 20071 Act restricts the UT's jurisdiction to errors of law. It is settled that:

(i) the FTT is a specialist fact-finding tribunal. The UT should not rush to find an error of law simply because it 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] 1 AC 678 at paragraph [30];
(ii) where a relevant point was not expressly mentioned by the FTT, the UT should be slow to infer that it had not been taken into account: e.g. MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 at paragraph [45];
(iii) when it comes to the reasons given by the FTT, the UT should exercise judicial restraint and not assume that the FTT misdirected itself just because not every step in its reasoning was fully set out: see R (Jones) v First Tier Tribunal and Criminal Injuries Compensation Authority [2013] UKSC 19 at paragraph [25];
(iv) the issues for decision and the basis upon which the FTT reaches its decision on those issues may be set out directly or by inference: see UT (Sri Lanka) v The Secretary of State for the Home Department [2019] EWCA Civ 1095 at paragraph [27];
(v) judges sitting in the FTT are to be taken to be aware of the relevant authorities and to be seeking to apply them. There is no need for them to be referred to specifically, unless it was clear from their language that they had failed to do so: see AA (Nigeria) v Secretary of State for the Home Department [2020] EWCA Civ 1296 at paragraph [34];
(vi) it is of the nature of assessment that different tribunals, without illegality or irrationality, may reach different conclusions on the same case. The mere fact that one tribunal has reached what might appear to be an unusually generous view of the facts does not mean that it has made an error of law: see MM (Lebanon) Secretary of State for the Home Department [2017] UKSC 10 at paragraph [107].”

7. Of particular relevance to the respondent’s submissions in the instant case, I also remind myself of what was said in Volpi & Anor v Volpi [2022] EWCA Civ 464 at [2(iii)-(vi)]:

“iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.”

Discussion and Conclusions

8. Grounds 1 and 2 are made out in the following material ways.

9. Firstly, the appellant relied on two expert reports. One of those was a scarring report prepared by Dr. K. Balasubramaniam dated 5 August 2024 in which Dr Balasubramaniam considered the appellant’s scarring which he assessed as being highly consistent with the appellant’s account of being tortured in Ethiopia whilst in detention having been arrested on political grounds. The judge did not mention the report at all. Whilst I accept a judge does not have to refer to every piece of evidence, the decision does not disclose even in summary form the evidence which the judge considered. For example, there is no reference to a bundle of evidence, or reference to the material available on the FtT’s case management system. I note that some of the documentary evidence was referred to specifically, for example, the documents which the respondent considered and which the judge then summarised at [26]-[32]. He made brief mention again of some of the documents including the country expert report at [40] and [55]. When the judge summarised the appellant’s claim and made reference to the scars at [12], [40] and [63], he does not refer to the report. The critical paragraph in which the judge referred to the appellant’s scars in the context of his claim is [63] in which the judge said:

“In relation to the appellant's scars and medical condition, I have taken those into account. Given my serious adverse credibility findings, they do not add sufficient weight for me to alter my position.”

10. It is notable here that the judge does not say that he attaches little weight to the scarring report, he says he attaches little weight to the scars.

11. At para. 11 of the Rule 24 notice the respondent says the following:

“although brief, the point the FTTJ was making was that Dr Balasubramanian’s analysed the scars as overall 'highly consistent' with his count under the Istanbul Protocol (meaning that there were possible other reasons why those scars could have occurred). Dr Balasubramanian wrote his findings highlighting other possible causation of A's scarring in line with KV (Sri Lanka) v Secretary of State for the Home Department [2019] UKSC 10 (6 March 2019) [25]. It should be noted that the FTTJ did not reject Dr Balasubramanian’s report, rather attached limited weight to it due to there being other possible explanations for his scarring as well as his unreliable evidence.”

12. Self-evidently, that is not an accurate representation of what the judge said. The respondent is putting a gloss on what the judge said, reflecting perhaps what the judge might have said if he had turned his mind to the report. But it is not what he said. Accordingly, the reader is left in the dark as to what the judge made of the scarring report which is not mentioned at all. There is nothing express or implied in the decision which demonstrates the judge has considered the scarring report.

13. In fact, on its face, the report corroborates what the appellant says about how the scars were caused. In my judgment, it was incumbent on the judge to explain what he made of the report and, in the event he did not find sufficient weight attached to it to support the appellant’s account, he needed to provide adequate reasons for that. He did not do so and I cannot infer from the face of the decision that the judge considered it at all. For that reason, I find Ground 1 made out and the judge erred in failing to apply anxious scrutiny to material evidence.

14. The above error is material to Ground 2. That is a challenge to the judge’s treatment of the appellant’s credibility. Given the centrality of the alleged torture to the appellant’s protection claim, if the judge decided that any weight attached to the expert report and it was capable of amounting to corroboration of the appellant’s account of having been tortured, that was material to the overall assessment of the appellant’s credibility. Instead, as revealed by what the judge said at [63], the judge had already made adverse credibility findings before even considering the appellant’s scars, let alone the expert evidence about the potential causation of the scars.

15. Returning to Ground 1, the other expert report before the judge, and to which he did make reference and arrive at findings, was the country expert report of Dr S. Bekalo. In summary, Dr Bekalo’s expertise was not in dispute. The judge did not make an express finding about the weight to be attached to the report but he did not appear to identify a basis to reduce the weight to attach to the report (see for example [58] where the judge said “I do not by any means doubt the sincerity of his opinion” and [55] where he accepts the expert is entitled to his opinion that the documents the appellant relies on are “in keeping with the documents from the institutions concerned”). The documents in question were letters from the National Intelligence Security Services (“NISS”) and the Federal Police Commission Office.

16. Of relevance to Ground 1 (and also to Ground 2 – see further below) is what the judge said about these documents. At [55] the judge gave reasons why he did not accept the documents as reliable as follows:

“55. I note that the appellant's expert in both his reports comments that the appearance of this document and the other two documents to which I shall refer later, are in keeping
with documents from the institutions concerned. That of course is an opinion to which the expert is entitled. However, simply because a particular document has all the appearance of a document issued by institutions from where they purport to emanate, does not make it a reliable one. There are two aspects of this document that cause me to doubt its reliability. The first is the detailed narrative that is there. There is absolutely no reason why an official letter had to be so detailed and cover almost every single point that the appellant wished to make. It has the appearance of a letter written to fit the appellant's narrative. Secondly, contrary to the appellant's statement, there is no reference in this letter to the appellant undergoing any rehabilitation.”

17. I accept the respondent’s submission that it was open to the judge to accept the expert’s opinion that the documents appeared to be authentic but also find they may not necessarily be reliable. That is consistent with what was said by the Presidential Panel in QC (verification of documents; Mibanga duty) China [2021] UKUT 33 (IAC) and at [4] of Volpi.

18. However, the appellant’s challenge to the judge’s finding here is twofold. As relevant to Ground 1, the challenge is that contrary to paragraph 4(a) of the Rule 24 Notice, Dr. Bekalo went further than simply saying the format of the documents appeared authentic, Mr Cubbon submitted that Dr Bekalo found them genuine, or at least he did not “fall short” of making that finding.

19. I accept this submission in part. In relation to the NISS letter dated 21 March 2021, the expert did not just consider the formatting of the documents, at [2.3] of his report of 17 June 2024, he also considered whether the content of the document was consistent with what he would expect from a genuine document issued by that organisation and concluded that it was. That is relevant because one of the judge’s criticisms of the letter was that its content was not what the judge would expect to see in such a letter. However, I do not accept that the submission that the expert said in terms that the document is ‘genuine’. He said it was “a typical one” and that it “seems to be typical and authentic”.

20. The above submission overlaps with the appellant’s other challenge to the judge’s conclusion on the documents and the treatment of the expert evidence, which features within Ground 2. The appellant’s submission is that the judge’s reasons for rejecting the reliability of these documents and from departing from the expert opinion about the authenticity of the documents relied on speculation and unevidenced assumptions about how the authorities in Ethiopia would act. To support this submission Mr Cubbon referred me to HK v Secretary of State for the Home Department [2006] EWCA Civ 1037 which was referenced at paragraph 6 of the Rule 24 Notice, and in particular to [28]-[30] of HK which say:

“ 28. Further, in many asylum cases, some, even most, of the appellant's story may seem inherently unlikely but that does not mean that it is untrue. The ingredients of the story, and the story as a whole, have to be considered against the available country evidence and reliable expert evidence, and other familiar factors, such as consistency with what the appellant has said before, and with other factual evidence (where there is any).

29. Inherent probability, which may be helpful in many domestic cases, can be a dangerous, even a wholly inappropriate, factor to rely on in some asylum cases. Much of the evidence will be referable to societies with customs and circumstances which are very different from those of which the members of the fact-finding tribunal have any (even second-hand) experience. Indeed, it is likely that the country which an asylum-seeker has left will be suffering from the sort of problems and dislocations with which the overwhelming majority of residents of this country will be wholly unfamiliar. The point is well made in Hathaway on Law of Refugee Status (1991) at page 81:

"In assessing the general human rights information, decision-makers must constantly be on guard to avoid implicitly recharacterizing the nature of the risk based on their own perceptions of reasonability."

30. Inherent improbability in the context of asylum cases was discussed at some length by Lord Brodie in Awala –v- Secretary of State [2005] CSOH 73. At paragraph 22, he pointed out that it was "not proper to reject an applicant's account merely on the basis that it is not credible or not plausible. To say that an applicant's account is not credible is to state a conclusion" (emphasis added). At paragraph 24, he said that rejection of a story on grounds of implausibility must be done "on reasonably drawn inferences and not simply on conjecture or speculation". He went on to emphasise, as did Pill LJ in Ghaisari, the entitlement of the fact-finder to rely "on his common sense and his ability, as a practical and informed person, to identify what is or is not plausible". However, he accepted that "there will be cases where actions which may appear implausible if judged by…Scottish standards, might be plausible when considered within the context of the applicant's social and cultural background".

21. Mr Cubbon submitted the judge did precisely what HK warned against. I accept this submission. The judge rejected the NISS letter because of its content, in the face of expert evidence that its content was typical. The judge did not point to any other evidence which undermined what the expert said.

22. This approach is perhaps more starkly observed in the judge’s treatment of the letter from the Federal Police Commissioner dated 13 October 2021 which he noted at [56] contains a level of detail the judge found “very unusual”. At [57] the judge said:

“57 In most repressive societies, it is very difficult to get any official to produce anything in writing, which is all the more surprising where in this particular case not only is there a written interest, but that it contains a full and detailed narrative. At this juncture it is worth remembering that the appellant was released on 26 September 2021. The appellant's evidence is that some six days thereafter, he fled the country. Yet, on 25 October 2021, the Federal Police Commission write to the appellant's wife to remind her that her husband was summonsed to attend the police station on 15 October 2021 for questioning but he did not show up. Firstly, I find it surprising that if the organisation which the appellant is said to be associated with is now declared to be a terrorist organisation, the authorities would take the softly, softly approach of writing to the appellant's wife, asking her to produce her husband. In my judgement, if the appellant had indeed failed to report as was required, the proper action expected of any authority would have been to attend in person to try and apprehend the appellant. Secondly, the letter suggests that the appellant's wife was a guarantor in obtaining his release on bail on 26 September 2021. I note that in the appellant's written statement, he makes no mention of that.”

23. The judge has not identified any evidence or background material to support his conclusions that the Ethiopian authorities do not act in the way claimed. There was no evidence to which the judge referred or to which I have been directed which justifies or explains the judge’s conclusions about what would be contained within such letters and why this particular procedure would have been chosen. Again, when Dr Bekalo examined the letter in his 2023 report, he specifically considered the content (not just the format) and at [2.3.5] concluded that the content and tone were “typical”. In the face of this expert evidence and absent any material contradicting or undermining this evidence and without acknowledging the expert evidence on the issue, I am satisfied the judge arrived at conclusions about the reliability of the police letter which were not properly open to him.

24. Similarly to the position in relation to the scarring report (see [14] above), the error in the judge’s treatment of the country expert report and the reliability of the documents from the NISS and the police, infects the rest of the credibility assessment.

25. I am satisfied that the errors identified in Grounds 1 and 2 are sufficiently material that they render the decision as it relates to the core of the appellant’s claim about being at risk of persecution for his political activities in Ethiopia, unsafe.

26. I can deal with Ground 3 relatively briefly. This is the alternative/additional claim that the appellant would face a real risk of persecution on the basis of his Tigrayan ethnicity. It is said that, at the judge’s request, Counsel who represented the appellant at the FtT hearing submitted a schedule of the objective evidence dealing with risk on this basis. That is the document which appears at [HB36]. According to the FtT’s case management system, that document was uploaded on 12 September 2025, two days after the hearing with the comment “at the judge’s request”. The judge’s decision was not promulgated until 23 October 2025, so the evidence was clearly available before then. The judge made no reference to this evidence in the decision. Furthermore, the appellant submits the judge also overlooked country expert evidence on the issue of risk as a result solely of Tigrayan ethnicity.

27. The judge dealt with this part of the appellant’s claim at [62] as follows:

“The fact that the appellant is an ethnic Tigray does not unfortunately change his fortune
for the better. This is because, there is no evidence before me that simply because he is
of the Tigray ethnic origin, is a sufficient basis on which to find that there is a real risk of
him being persecuted on return.”

28. The schedule of objective evidence sets out passages from the respondent’s CPINs about the treatment of Tigrayans in Ethiopia. I was also directed to [HB121] where Dr Bekalo said at [4.8]-[4.9]:

“4.8 … Those alleged to be a member and supporter of TPLF were imprisoned and persecuted in mass not only in Tigray, but also across Ethiopia. As such and like many other Tigrayans, the client would be perceived as a supporter of TPLF, being from Tigray ethnic group. This is irrespective of he is a high or low-profile figure. If one wishes to take the matter further, I say that far higher number of low-profile opposition political groups members and supporters are being imprisoned and severely mistreated, since they do not get higher media and human rights organisations attention like the high profile figures. This also needs to be into consideration when considering the client's case.

4.9 In the light of all of the above, I report once again that it is more likely that the client would face mistreatments and persecution due to his aforementioned profile, if he were to return to the present-day Ethiopia."

29. Whilst here there is a degree of conflation of Tigrayans with a political profile and Tigrayans in general, the expert is clear that Tigrayans would be perceived to have such a profile, so risk exists on that basis. Accordingly, and in light of the apparently overlooked schedule of objective material, I am satisfied the judge was wrong to say there was “no evidence” of risk arising solely from Tigrayan ethnicity. The judge was obliged to evaluate the evidence which was before him to decide the weight to attach and the impact of that evidence on the overall decision about whether the appellant is at risk on return as a result of his Tigrayan ethnicity (which the judge accepted [61]). Self-evidently, such an error is material. Ground 3 is made out.

30. I deal very briefly with Ground 4. The appellant’s profile is relevant to why he protested and the assessment of whether or not he is reasonably likely to come to the attention of the Ethiopian authorities as a result of his sur place activities. Accordingly, the errors identified in Grounds 1-3 infect the judge’s decision in relation to sur place activities, rendering that part of the decision unsafe.

31. For all these reasons the decision is to be set aside. Given that the errors in the decision render the credibility assessment unsafe, there can be no preserved findings of fact and the appeal is to be heard de novo. Accordingly, the appropriate disposal is for the appeal to be remitted to the First-tier Tribunal.

Notice of Decision

The decision of the First-tier Tribunal contains material errors of law and is set aside.

The appeal is remitted to the First-tier Tribunal to be heard de novo before a different judge.

SJ Rastogi
Judge of the Upper Tribunal
Immigration and Asylum Chamber

5 October 2026