Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000583
First-tier Tribunal No: PA/68573/2023
LP/01420/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 22nd April 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE HILLS

Between

IT
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Tahir, instructed by Times PBS
For the Respondent: Mr Terrell, Senior Home Office Presenting Officer

Heard at Field House on 13 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

1. The appellant is a citizen of Afghanistan, who appealed against a decision of the respondent to refuse his protection claim. In a decision dated 29 May 2025 the First-tier Tribunal Judge (FtTJ) dismissed the appeal. The appellant now appeals to the Upper Tribunal.

2. The appellant came to the UK on a student visa and subsequently sought asylum, on the basis that he fears harm from the Taliban given his father’s previous employment in which he engaged with the government.

3. In dismissing the appeal, at [32] the FtTJ found that the appellant was not a witness of truth and that he had fabricated an asylum claim to remain in the United Kingdom.

Grounds of Appeal

4. The appellant advances seven grounds of appeal. It is worth repeating the observation of the Judge who granted permission to appeal, that the grounds are unnecessarily lengthy, repetitive and lack precision. The grounds argue that the FtTJ erred in the following ways:

i. In proceeding to determine the appeal in circumstances where it was apparent that the appellant’s case had not been adequately advanced by his representatives.
ii. In failing to consider Article 3.
iii. In relying on Counsel’s assertion that a claim on Article 3 medical grounds was not pursued.
iv. In failing to consider the practical reality of enforcement of the appellant’s removal in considering Article 8.
v. In conflating the appellant’s possession of an Afghan Citizen Card with a right of permanent residence in Pakistan (contrary to UNHCR evidence).
vi. In making a sweeping and speculative credibility finding that the appellant’s medical diagnoses had been obtained dishonestly, thereby importing suspicion into objective evidence and undermining the fairness of the credibility assessment.
vii. In using personal plausibility reasoning in place of objective background evidence.

5. In granting permission to appeal, the Judge found that the sixth and seventh grounds gave rise to arguable errors of law. He was not persuaded that all grounds had merit, however did not wish to constrain the Upper Tribunal from holistically considering the issues. He noted there is an overarching theme of poor legal representation from the previous solicitors which pervaded many of the grounds and in circumstances where Mansur (immigration adviser’s failings: Article 8) (Bangladesh) [2018] UKUT 274 (IAC) type issues are raised, it was appropriate to grant permission on all grounds.

Discussion and Findings

6. At the heart of this appeal is the appellant’s argument that his previous representatives did not adequately advance his case. He cites Mansur as authority for the proposition that while poor representation does not, of itself, create stronger rights under Article 8, there are rare cases where fairness requires the Tribunal to recognise the effect of such failings. He argues this is such a case.

7. In relation to the first ground, Mr Tahir submitted that the FtTJ materially erred by proceeding to determine the appeal in circumstances where it was apparent the appellant’s case had not been adequately advanced by his representatives. He noted the adverse findings about the appellant’s evidence, for example at [14], [16] and [19-24]. Mr Tahir submitted that given how significant these evidential issues were to the FtTJ’s assessment of the appellant’s credibility, it was unfair for the hearing to proceed. He argues that, instead, the appropriate course would have been to adjourn to allow the deficiencies to be remedied.

8. Mr Terrell said that the question was whether the FtTJ could proceed with the hearing in circumstances where there were evidential gaps and where no party had asked for an adjournment. He noted that the burden of proof is on the appellant and submitted that it is open to a Judge to draw inferences from the absence of evidence in adversarial proceedings. He said that the appellant’s grounds appear to proceed on the basis that all of the evidence which the FtTJ noted was missing was in fact available, but the solicitors decided not to put it in evidence. He said there is no proof of that.

9. It is, of course, appropriate for a Judge to draw adverse inferences based on an absence of evidence. I note the observation in the grant of permission that an Applicant’s Skeleton Argument, Appellant Bundle and Supplemental Bundle had all been provided. Mr Tahir confirmed that during the FtT proceedings the appellant was represented by both a firm of solicitors and independent counsel. Neither representative appears to have raised any concerns about the absence of evidence at the hearing and I do not agree it was for the FtTJ to do that. I asked Mr Tahir if the missing evidence does exist and he was unsure. I note that the appellant has not sought to introduce additional evidence or to argue, for example, that the FtTJ’s decision proceeded on the basis of a mistake of fact.

10. In light of the above, I do not agree with the appellant that the FtTJ erred in proceeding with the trial or to conclude that the appellant was not a witness of truth because of an absence of evidence.

11. During the FtT proceedings counsel for the appellant agreed that Article 3 medical grounds were not in issue. That is reflected at [6]. Mr Tahir submitted in relation to the second ground that the FtTJ erred in not undertaking a freestanding assessment of the appellant’s Article 3 claim arising from his fear of persecution and serious harm on return to Afghanistan. He argued that is material because if the FtTJ had done so, the appeal may have been allowed on human rights grounds notwithstanding the dismissal of the asylum and humanitarian protection limbs.

12. Mr Terrell took me to the recent decision of AL v Secretary of State for the Home Department [2026] EWCA Civ 370, where the Court of Appeal approved the approach in Lata (FtT: Principal Controversial Issues), Re [2023] UKUT 163 (IAC) that it was the appellant’s responsibility to put all of their arguments before the FtT and to identify the controversial issues. The FtT could only decide issues which had been expressly identified by the parties, save for where the FtT was in doubt about whether an issue was before it, or where there was a Robinson obvious point.

13. Article 3 was not argued before the FtTJ and he was not required to proactively address it. In any event, I do not agree that it would have made a difference to the outcome if he had done so. At [35] and [36] the FtTJ found the appellant would not fall within a risk category and would not be of any interest to the Taliban. I have not disturbed those findings. It follows that Article 3 grounds would not have been made out.

14. In relation to the third ground, Mr Tahir submitted that the FtTJ erred by failing to undertake a structured Article 3 assessment of the appellant’s medical condition by treating counsel’s concession as determinative of that issue. He argued that it was not open to the FtTJ to dispose of the medical issue in that way without assessing the impact on the appellant’s medical condition of removal.

15. Mr Terrell said that the appellant did not pursue an Article 3 medical grounds argument and submitted that in line with AL and Lata the approach of the FtTJ was correct.

16. I agree with Mr Terrell. The FtTJ was satisfied that the Article 3 medical grounds point was not in issue, with which the representatives agreed, and set that out in his decision at [6]. He was not required to then treat that point as though it was in issue and I do not see any error in his approach.

17. Mr Tahir acknowledged that the fourth ground was not his strongest. However he maintained that the FtTJ was required to assess the practical reality of the appellant’s removal to Afghanistan and the impact on him of remaining in prolonged limbo in the United Kingdom and whether that altered the Article 3 and Article 8 analysis. I do not see any merit in this ground. This point had not been put forward before the FtTJ and, in any event, the FtTJ appropriately considered risk of removal at [33] to [36].

18. In relation to the fifth ground, Mr Tahir argued that the FtTJ erred in finding that the appellant had ongoing family support in Pakistan and conflating the possession of an Afghan Citizen Card with secure residence rights in Pakistan. As a result, he said that it was not open to the FtTJ to find that Pakistan constituted a safe alternative destination for the appellant.

19. Mr Terrell noted that at [35] the FtTJ set out a number of evidential bases for concluding that the appellant is in contact with his family in Pakistan and that he could live there. He took me to page 517 of the bundle, to the appellant’s statement in his visa application form in response to the question about what permission he had to be in Pakistan where he said “I am a permanent resident”; page 49 and 50, where the skeleton argument appears to acknowledge a PoR card confers some status; and page 272 where the appellant states that his father held a family passport which enabled the appellant to go with him to Pakistan. Based on the evidence, it was open to the FtTJ to make the finding that the appellant could live with his family in Pakistan.

20. In relation to the sixth ground, Mr Tahir argued that the FtTJ erred by making speculative and unsupported findings about the appellant’s medical evidence, which he said tainted the assessment of the evidence and credibility. He pointed to [13] which reads:

I find the Appellant is not a witness of truth and has created a fabricated asylum claim to remain in the UK and obtained medical diagnosis and care…

21. Mr Tahir submitted that the FtTJ’s finding goes beyond a rejection of the appellant’s credibility and improperly suggests that the medical diagnosis itself was dishonestly obtained. He took me to parts of the medical evidence in the bundle and argued that it was objective and independent.

22. Mr Terrell submitted this ground was premised on a mis-reading of the FtTJ’s decision. He said the FtTJ did not say the medical evidence or the appellant’s conditions were fabricated, rather that the asylum claim was, and that it may have been fabricated so that the appellant could remain in the United Kingdom to obtain medical treatment. Mr Terrell pointed to the FtTJ’s assessment of the appellant’s medical conditions from [39] onwards, which he said is not consistent with a reading that the FtTJ rejected the medical evidence.

23. I agree with Mr Terrell. Although there appears to be a typographical error in [13], the FtTJ clearly took the appellant’s medical evidence into account. He considered the medical reports and medication for the appellant. At [41] and [42] the FtTJ made findings about the medical care the appellant could obtain in Afghanistan or Pakistan. That approach is inconsistent with a conclusion that the medical evidence had been fabricated.

24. In relation to the seventh ground, Mr Tahir argued that in rejecting the appellant’s account of travelling to Kabul to obtain a passport at [27] the FtTJ erred by using personal plausibility reasoning rather than making an evidence based assessment.

25. Mr Terrell submitted that the point the FtTJ was seeking to make here is that if the appellant had a genuinely held fear of harm in Afghanistan then he wouldn’t have gone there to renew his passport when he could do so in Pakistan. He noted that the bundle evidenced at page 494 that there is an embassy in Islamabad that can issue passports and the footnote cites the authority for that. He said the FtTJ hasn’t speculated, there is a clear evidential basis for the finding.

26. The FtTJ notes at [27] that the actions of the appellant and his father run contrary to the claim that the Taliban was aware of the work of his father. He noted the passport shows the appellant returned to Afghanistan to get a new passport issued and stayed there for ten days. The FtTJ found that the appellant and his father would not have travelled to Afghanistan when the evidence showed that the passport could have been obtained in Pakistan. The FtTJ made findings that were open to him to make on the basis of the evidence.

27. In light of the above, I find that the grounds of appeal fail to show that the FtTJ erred in law for the reasons argued by the appellant. The appeal is dismissed.

Notice of Decision

The appeal is dismissed.

N Hills

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 20 April 2026