Tribunal decisions

The decision

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 28th of April 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE ANZANI

Between

AS
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms M. Peters, Counsel instructed by PSA McKenzie Solicitors
For the Respondent: Mr E. Tufan, Senior Home Office Presenting Officer

Heard at Field House on 14 April 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
Introduction
1. The Appellant appeals against the decision of First-tier Tribunal Judge Juss, promulgated on 29 December 2025, which dismissed his appeal against the Respondent’s decision of 9 August 2025 refusing his protection and human rights claim.
Background
2. The Appellant is a national of Afghanistan, born on 1 January 2000. He entered the United Kingdom on 4 November 2021 and claimed asylum on the same day. His asylum claim was treated as withdrawn on 10 May 2022 after he failed to attend a substantive interview, and he later made further submissions on 5 August 2023.
3. The Appellant’s claim was advanced on the basis that he would be at risk on return to Afghanistan from the Taliban. He claimed that his brother had served in the Afghan National Army and had been captured by the Taliban after being stopped at a checkpoint, before later escaping. The Appellant maintained that the Taliban subsequently came to the family home, accused his father of hiding the brother, and threatened to take the Appellant in his brother’s place unless the brother gave himself up.
4. The Appellant claimed that, following the Taliban’s threats, his father arranged for him to leave the family home and travel first to his aunt’s home before leaving Afghanistan with the assistance of an agent. He maintained that, if returned to Afghanistan, he would be identified and targeted by the Taliban because of his brother’s former military service and because he had fled after being threatened.
5. The Respondent refused the claim on 9 August 2025. The Respondent accepted the Appellant’s nationality and identity but rejected the core account as not credible.
Decision of the First-tier Tribunal
6. The appeal was heard before the First-tier Tribunal sitting in Birmingham on 23 December 2025.
7. The Appellant relied on documentary evidence said to show that his brother had served in the Afghan army. The Respondent argued that the documents showed the brother had been discharged in 2015, which undermined the Appellant’s claim that the brother had been stopped by the Taliban in 2020 while returning from leave. The Appellant’s position was that his brother had not in fact been discharged and that he had continued to serve.
8. The First-tier Tribunal accepted that there was a Convention reason in principle, namely imputed political opinion. However, the Judge found that the Appellant did not in fact fear persecution and further found, applying what was said to be the lower standard of proof, that there was no real risk of harm, no absence of state protection, and no lack of internal relocation.
9. The Judge dismissed the appeal principally because he found that the Appellant’s account “falls completely apart” in light of the evidence suggesting that the brother had been discharged in 2015, because he considered the Taliban’s alleged conduct implausible, and because there was no evidence that the Appellant’s father or younger brothers had been harmed in Afghanistan after the Appellant left.
Grounds of appeal
10. The Appellant sought permission to appeal to the Upper Tribunal on six grounds, which can be summarised as follows:
(i) The Judge misapplied section 32 of the Nationality and Borders Act 2022 (“NABA 2022”) and the guidance in JCK (s.32 NABA 2022) Botswana [2024] UKUT 100. Although the correct staged approach was set out, it was submitted that the Judge failed to apply it properly when assessing subjective fear, risk on return, sufficiency of protection and internal relocation.
(ii) The Judge failed to apply, or failed clearly to apply, the lower standard of proof to the assessment of risk on return. The grounds argued that the Judge treated credibility and risk as if they had to be established on the balance of probabilities, rather than asking whether there was a real risk or reasonable degree of likelihood of persecution or Article 3 ill-treatment.
(iii) The Judge made irrational or speculative credibility findings, including by treating the apparent 2015 discharge of the Appellant’s brother from the Afghan army as fatal to the claim, by assuming how the Taliban would have behaved, and by relying on the absence of evidence of harm to the Appellant’s remaining family members.
(iv) The Judge failed properly to engage with the objective country evidence, including evidence concerning Taliban reprisals against former Afghan National Army personnel and their family members, and the alleged lack of effectiveness of the Taliban amnesty.
(v) The Judge erred in his assessment of sufficiency of protection and internal relocation, in circumstances where the feared persecutor was the Taliban, which controls Afghanistan. It was argued that the Judge failed to identify any effective state protection or any safe and reasonable place of internal relocation.
(vi) The Judge erred in his assessment of Articles 2 and 3 ECHR by allowing adverse credibility findings to defeat the claim without separately considering whether the objective evidence established a real risk of serious harm on return.
11. Permission to appeal was granted by First-tier Tribunal Judge Thapar on 26 January 2026. The grant of permission was focused on the arguable lack of clarity as to the standard of proof applied to the findings at paragraphs 23 to 25 of the First-tier Tribunal’s decision, notwithstanding the Judge’s earlier self-direction at paragraphs 20 and 21. Permission was, however, granted on all grounds.
Decision and reasons
12. I have considered the First-tier Tribunal decision, the documentation that was before it, the grounds of appeal, and the submissions made at the hearing before reaching my decision.
13. The Supreme Court in HA (Iraq) v SSHD [2022] UKSC 22 reiterated that judicial caution and restraint is required when considering whether to set aside a decision of a specialist tribunal. In particular, judges of the specialist tribunal are best placed to make factual findings. 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 SSHD [2007] UKHL 49 and KM v SSHD [2021] EWCA Civ 693. 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 SSHD [2010] UKSC 49. 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 FTT (SEC) [2013] UKSC 19. I have kept these considerations in mind when coming to my decision.
14. The principal difficulty concerns the Judge’s treatment of the statutory framework under section 32 of NABA 2022 and the guidance in JCK. The Judge correctly identified at [20]–[21] that Questions 1 and 2 are to be determined on the balance of probabilities, namely whether there is a Convention reason and whether the Appellant does in fact fear persecution for that reason, whereas Questions 3–5 (risk on return, sufficiency of protection, and internal relocation) are to be determined on the lower standard of a reasonable degree of likelihood. That self-direction was accurate.
15. However, the Judge’s subsequent application of that framework is not sufficiently clear. At [22], the Judge accepted that there was a Convention reason, insofar as the Appellant claimed to be targeted because his brother had been in the Afghan army. The Judge then found that the Appellant did not in fact fear persecution. Thereafter, the Judge stated that, applying the lower standard, there was no reasonable likelihood of risk, no absence of protection, and no lack of internal relocation. The difficulty is that the reasoning which follows at [23]–[25] does not clearly separate those distinct statutory questions.
16. At [23], the Judge stated that there was “now evidence confirming that [the Appellant’s] brother was indeed in the Afghan army”, which the Judge accepted gave “prima facie credence” to the claim. The Judge nevertheless concluded that the claim “falls completely apart” because the brother had “long since been discharged from the Army in 2015”, whereas the Appellant’s case was that his brother had been stopped at a Taliban checkpoint in 2020 while returning from leave. The Judge described the claim as “unsustainable”.
17. In my judgment, that conclusion is inadequately reasoned. The Judge did not make a clear finding as to whether the documentary evidence relating to the brother’s military service was accepted, rejected or accepted only in part. Nor did the Judge explain whether the apparent 2015 discharge was treated as showing that the brother had never been in the army or that he had been in the army but was no longer serving in 2020. Those were materially different possibilities. The distinction mattered because, even if the brother had been discharged in 2015, the Appellant’s case still required an assessment of whether family members of former Afghan army personnel were at real risk from the Taliban.
18. The Judge was entitled to regard the apparent discrepancy between the claimed 2020 incident and the 2015 discharge document as a significant credibility concern. However, that did not, without more, justify treating the whole claim as having “completely” fallen apart. A finding that one aspect of an account is inconsistent does not relieve a judge of the obligation to consider the evidence in the round, including documentary evidence and objective country evidence. The Judge’s reasoning at [23] focuses on internal consistency, but does not adequately assess whether, even on the basis that the brother had formerly served and had been discharged in 2015, there remained a real risk to the Appellant as a family member of a former Afghan National Army soldier.
19. That error is linked to Ground 2 in terms of the assessment of future risk. The language used at [23]–[25] does not demonstrate that the lower standard was applied to the forward-looking assessment of risk. The reasoning moves directly from adverse credibility points to rejection of risk without a clearly identifiable application of the “reasonable degree of likelihood” test.
20. The Respondent submitted that the Judge had directed himself correctly and was entitled to reject the account. However, Mr Tufan accepted before me that there was a 2025 Country Policy and Information Note, Afghanistan: Fear of the Taliban (CPIN) before the Tribunal and that, if the Appellant’s account were true, he would be at risk.
21. The objective country evidence was therefore material. The 2025 CPIN identified former members of the Afghan National Defence and Armed Forces as among those likely to be at risk from the Taliban. It also recorded evidence that relatives of former security force personnel and government employees had been subjected to threats, intimidation, physical violence, interrogations, beatings, and even executions, and that threats to family members had been used as a means of putting pressure on those pursued by the Taliban. The Appellant’s case was expressly put on the basis of imputed political opinion arising from his brother’s service in the former Afghan National Army.
22. The First-tier Tribunal’s decision does not demonstrate adequate engagement with that material. The Judge referred at [7] to an extract from the November 2022 CPIN, but that appears in the context of summarising the Respondent’s refusal decision rather than as part of the Judge’s own assessment of the current objective evidence. The hearing took place in December 2025. The August 2025 CPIN was therefore the more recent country material. There is no clear analysis of that CPIN, and no adequate assessment of whether the Appellant might be at risk as the family member of a former Afghan army soldier, even if the brother’s service had ended in 2015.
23. That omission is material. The Judge’s reasoning appears to assume that the fact of discharge in 2015 was fatal to the protection claim. However, the risk category in the country material was not limited only to those still serving at the time of the Taliban takeover, nor was it limited only to family members of those recently serving. If the Judge considered that the passage of time or the 2015 discharge displaced any real risk, it was necessary to explain that conclusion by reference to the objective evidence. That was not done.
24. I also accept that parts of the credibility reasoning involved plausibility findings not sufficiently grounded in the evidence. At [24], the Judge reasoned that, if the Taliban had really intended to use the Appellant as leverage, they would have kept “an even more watchful eye” on him rather than allowing him the opportunity to escape. At [25], the Judge reasoned that the Appellant “cannot possibly” be at risk because his father and two younger brothers remained in Afghanistan and there was no evidence that they had been ill-treated.
25. A judge is entitled to test an account for plausibility. However, in a protection appeal involving the Taliban, plausibility findings of this kind require caution and must be grounded in the evidence. The Judge did not identify any evidential basis for assuming that the Taliban would necessarily have behaved in the manner considered more logical by the Tribunal. Nor did the Judge make a clear finding that the Appellant remained in reliable contact with his family, such that the absence of evidence of harm to them could safely be treated as evidence that they had not been harmed or threatened. Indeed, the decision records that there was dispute and uncertainty about the Appellant’s contact with his family and their whereabouts.
26. Finally, I accept that the errors also affect the alternative claims for humanitarian protection and under Articles 2 and 3 ECHR. At [11], the Judge recorded that the Appellant advanced a claim for humanitarian protection on the basis that, if returned, he would suffer unlawful killing, torture, or inhuman or degrading treatment. However, humanitarian protection was not then addressed as a distinct issue in the analysis. Nor was there a separate and clearly reasoned assessment of whether, applying the lower “real-risk” standard, removal would expose the Appellant to treatment contrary to Articles 2 or 3 ECHR.
27. The fact that Articles 2 and 3 were said to stand or fall with the asylum claim did not remove the need to apply the correct standard of proof to the assessment of risk. Where adverse credibility findings have been made within the section 32 framework, a judge must still ensure that any humanitarian protection or Article 3 assessment is conducted by reference to the lower “real risk” standard and in light of the objective evidence as a whole. It is not apparent that this was done. In the absence of an identifiable analysis applying the correct standard, I cannot safely conclude that the same outcome was inevitable. The error is therefore material.
28. Taken together, the errors identified above mean that the First-tier Tribunal’s assessment of the Appellant’s protection claim cannot safely stand. I therefore find that the decision of the First-tier Tribunal involved the making of a material error of law. The decision cannot stand and must be set aside.
Conclusion
29. I find that the decision of the First-tier Tribunal involved the making of material errors of law in respect of the Appellant’s protection claim. Given the nature and extent of the errors, the appeal requires a full rehearing with findings of fact made afresh. Having regard to paragraph 7.2 of the Senior President’s Practice Statements, I am satisfied that remittal to the First-tier Tribunal is appropriate. I therefore set aside the decision of the First-tier Tribunal in its entirety and remit the appeal to the First-tier Tribunal for a fresh hearing before a Judge other than Judge Juss. No findings are preserved.
Notice of Decision
The decision of the First-tier Tribunal involved the making of a material error of law.
The decision of the First-tier Tribunal is set aside in its entirety, with no findings preserved.
The appeal is remitted to the First-tier Tribunal to be heard de novo before a judge other than Judge Juss.

S. Anzani

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

24 April 2026