Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000592
First-tier Tribunal No: PA/66006/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 26th of May 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE Ó CEALLAIGH KC

Between

JQ
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Abedian, counsel instructed by Howe & Co.
For the Respondent: Ms Isherwood, Senior Home Office Presenting Officer

Heard at Field House on 16 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 is a national of Colombia who seeks protection in the United Kingdom. On 16 May 2024 the appellant’s application was refused by the respondent. While the respondent accepted the material facts of his case, she considered that he could safely internally relocate within Colombia and would have access to a sufficiency of protection. At his appeal hearing the respondent further accepted that a sufficiency of protection would not be available such that the only issue was internal relocation. The appellant’s appeal was dismissed by First-tier Tribunal Judge Mill in a determination promulgated on 5 September 2025.

2. Permission to appeal was granted by First-tier Tribunal Judge Bowen on 9 February 2026. The FTTJ considered that Ground 2 was the most convincing, but did not limit the grant of permission.

3. The respondent has produced a Rule 24 response opposing the appeal. The appellant’s counsel also produced a skeleton argument for his hearing. I am grateful to both.

Grounds of appeal

4. The grounds of appeal are as follows:

a. Ground 1: The Judge failed to have regard to paragraph 339K of the Immigration Rules;

b. Ground 2: The Judge engaged in speculative reasoning, which was unsupported by the evidence before him;

c. Ground 3: The Judge failed to take into account material considerations in relation to his assessment on internal relocation;

d. Ground 4: Failure to apply anxious scrutiny;

e. Ground 5: The Judge failed to follow principles in EMAP (Gang violence, Convention Reason) [2022] UKUT 335 (IAC) in relation to political opinion.

5. Granting permission First-tier Tribunal Judge Bowen held:

“An error of law arises if a Tribunal applies an inappropriate standard when assessing plausibility, particularly where cultural or societal factors are relevant. HK v SSHD [2006] EWCA Civ 1037, cautions against relying too heavily on inherent probability in asylum cases. It could be argued the Judge’s conclusion as to the plausibility of ongoing adverse interest in the Appellant appears to have been based largely on their own perception of what would be realistic rather than an analysis grounded in background country evidence.”

The hearing

6. Mr Abedian relied on the grounds of appeal and skeleton argument. He noted that credibility had not been in issue.

7. In respect of Ground 1 Mr Abedian argued that the failure to consider paragraph 339K of the Immigration Rules HC 395 vitiated the decision. The acceptance that the appellant had been shot although recorded [21] was not in reality considered. It was moreover simply not consistent with the conclusions at [24] that the risk of future harm was “negligible”. Paragraph 339K was a potentially important factor, of considerable weight, and it had not been applied.

8. In respect of Ground 2 he submitted that the FTTJ’s reasoning had been speculative. Checkpoints are a feature of rural areas and not cities in Colombia. The appellant lived in Medellin. He took me through the references to checkpoints in the CPIN, all of which are in rural areas and none of which were in Medellin. He submitted that if the FTTJ wished to rely on the absence of checkpoints preventing the appellant from departing Colombia as relevant to risk he was required to have an evidential basis for doing so and there was none.

9. Further, the FTTJ was not entitled to treat it as a certainty that if the AGC retained an interest in the appellant they would necessarily have harmed his family. The objective evidence did not support such a conclusion. Moreover, the acceptance that his mother had been contacted and that a friend had been threatened and pressured was not consistent with that finding. The FTTJ’s conclusion that the appellant would inevitably know if the AGC had tried to locate him was pure speculation. How would he know?

10. The FTTJ had also been wrong to speculate that the passage of time would make the appellant safer. Had the appellant known that the question of risk was in issue he would have adduced evidence going to it, but did not because the sole issues were internal relocation and sufficiency of protection. The FTTJ’s conclusion, which was in substance that the appellant was not of continuing interest to the AGC, was simply not consistent with the proposition that risk on return was accepted.

11. On Ground 3 Mr Abedian submitted that the 2021 map relied on by the Judge was out of date. There was a 2025 map which was more up to date. Mr Abedian accepted however that even on the newer map two of the areas that the FTTJ said he could safely internally relocate to [32] had limited AGC presence. In his skeleton argument the appellant argued that the FTTJ had conflated the question of whether the Appellant would have a well-founded fear of persecution in the proposed areas of relocation, and whether it would be reasonable or unduly harsh for him to relocate there. It was also argued that the FTTJ had failed to address or consider evidence and submissions on the AGC’s broad reach even into those areas that were not under their control. These arguments were not orally pursued.

12. Mr Abedian accepted that his Ground 4 was largely contingent on the success of the other grounds.

13. On Ground 5 Mr Abedian accepted that the appellant did not come to the attention of the AGC because of any particular political beliefs. However he fell entirely within what is described at [121-122] of EMAP (Gang violence, Convention Reason) [2022] UKUT 335 (IAC). He had refused to pay when targeted. He had gone to the police. Applying EMAP, an effective cause of his persecution would be the political belief he held about the gang.

14. Ms Isherwood maintained as detailed in the Rule 24 response that there was no error of law. She argued that the appellant’s complaints were simply disagreements on the evidence. It was clear from the determination [9] that the FTTJ had considered all of the evidence and the skeleton argument before him.

15. On Ground 1 she accepted that the FTTJ had not expressly referred to paragraph 339K of the Immigration Rules HC 395. The FTTJ did not have to refer to that provision in terms however, but simply to apply it: the FTTJ had in reality accepted the position of the Respondent as put by the Presenting Officer as to what would actually happen if the appellant were returned. The FTTJ was entitled to do so, and did have in mind what had been accepted.

16. On Ground 2, Ms Isherwood noted that we were not being told what oral evidence was given as regards the FTTJ’s conclusion that had the appellant been at risk his family would have been harmed. Ms Isherwood submitted that the appellant’s evidence regarding his family was vague. He had contact with his mother and she had not been harmed. Nor had other members of his family.

17. It was not disputed that checkpoints had been discussed at [70-76] of the asylum interview. Ms Isherwood accepted however when I put it to her that the appellant had said in terms in the interview that there were in fact no checkpoints.

18. I indicated to Ms Isherwood that I did not need to hear from her on Ground 3, and that Ground 4 stood or fell with Grounds 1, 2 and 5.

19. In respect of Ground 5, Ms Isherwood maintained that the appellant’s position fell within EMAP at [121]. This was borne out by the FTTJ’s conclusions at [24]. The FTTJ applied the decision in EMAP to the facts and was entitled to reach the conclusions he did. The suggestion that the FTTJ could not decide that the family would inevitably be targeted was simply an attempt to reargue evidence seeking different findings. Moreover, the FTTJ had been entitled to rely on the passage of time as reducing risk: it had been almost three years.

20. In response Mr Abedian said that he did not accept that paragraph 339K had properly been treated as a starting point. It was simply not evident from the decision that the FTTJ had treated the appellant’s past ill-treatment as indicative of likely future ill-treatment.

21. In respect of the weight placed on the appellant’s ability to get through checkpoints the respondent’s submissions did not meet the point. The FTTJ should not have placed weight on his apparent ability to get through checkpoints unhindered. There were no checkpoints. It was simply not relevant to the question that the judge was trying to answer. Mr Abedian maintained moreover that the FTTJ’s analysis at [16] of the appellant’s motivations was inadequate: he was required to go a step further and ask what would happen on return and why.

22. The parties agreed that if there was an error of law the matter should be remitted to the First-tier Tribunal.

Decision and reasons

23. There is considerable overlap and interrelationship between several of the grounds of challenge. They arise in my view from what appears to have been confusion and inconsistency as to the scope of the appeal.

24. The core facts of the appellant’s case were accepted. The respondent’s refusal was on two bases: (i) that there was a sufficiency of protection available to the appellant; and (ii) that he could internally relocate. The parties agreed in the appeal skeleton argument and respondent’s review that these were the two issues. The appellant presumably prepared for the hearing and directed his evidence accordingly. The respondent’s position on sufficiency of protection was then resiled from at the hearing, leaving in substance a single issue: whether the appellant could internally relocate.

25. However, at the hearing the FTTJ began his consideration of internal relocation by addressing whether the appellant would be at risk from the AGC at all, a matter that had not been challenged in the decision letter (if not expressly accepted). The question of whether the appellant actually needed to internally relocate in the first place was not, in principle, in dispute. It was certainly not identified as an issue by the parties. However the FTTJ nevertheless decided that issue, and decided it against the appellant.

26. In The Secretary of State for the Home Department v TC [2023] UKUT 164 (IAC) then-President Dove J gave the following guidance:

“FTT decisions should begin by setting out the issues in dispute. This is clearly the proper approach to appeals under the online reform procedure where at each major stage there is a requirement to condense the parties’ positions in a clear, coherent and concise ‘issues-based’ manner.”

27. Following that approach might have been of assistance in this particular case where the parties appear to have proceeded on the basis that risk on return was not in issue but the FTTJ, whether deliberately or inadvertently in the course of considering internal relocation, treated it as still in issue. If the FTTJ considered that whether the appellant was at risk from the AGC notwithstanding the acceptance that he had been extorted, shot at, and had to go into hiding, the parties should have been alerted to that as a further issue and given the opportunity to call evidence relevant to it. That was an error of approach that in my view undermines every part of the determination.

28. I accept that Ground 1 is made out. I have considerable sympathy for Ms Isherwood’s submission that the FTTJ did not need to specifically refer to paragraph 339K but he was nevertheless required to apply it. There is no acknowledgment in the determination even implicitly of the fact that where the appellant has been the victim of serious ill-treatment in the past this indicates a likelihood of such ill-treatment in the future. The importance of the failure to weigh this factor at [24] is reinforced by Ground 2.

29. I accept that Ground 2 is also made out. In particular, the FTTJ was not entitled to rely on the fact that the appellant was able to pass checkpoints unhindered as a basis for concluding that he was not at risk when: (i) there is no evidence that there were such checkpoints in Medellin; and (ii) his account in the asylum interview, which was apparently accepted, was that there were none. Again I note that the FTTJ appears to be considering here whether the appellant was at risk at all, rather than whether he could internally relocate. Although not specifically relied upon by the appellant, the fact that he was able to leave the country unhindered is also of dubious relevance, as he was not suggesting a risk from the Colombian state.

30. I also agree with FTTJ Bowen granting permission that the tribunal appears to have engaged in impermissible speculation (as warned against in e.g. HK v Secretary of State for the Home Department [2006] EWCA Civ 1037 at [72]). In a passage from an article quoted by the IAT in Kasolo v SSHD 13190, and again approvingly by Keene LJ in Y v Secretary of State for the Home Department [2006] EWCA Civ 1223, Sir Thomas Bingham said this:

”An English judge may have, or think that he has, a shrewd idea of how a Lloyds Broker or a Bristol wholesaler, or a Norfolk farmer, might react in some situation which is canvassed in the course of a case but he may, and I think should, feel very much more uncertain about the reactions of a Nigerian merchant, or an Indian ships' engineer, or a Yugoslav banker. Or even, to take a more homely example, a Sikh shopkeeper trading in Bradford. No judge worth his salt could possibl[y] assume that men of different nationalities, educations, trades, experience, creeds and temperaments would act as he might think he would have done or even - which may be quite different - in accordance with his concept of what a reasonable man would have done.”

31. In my view the FTTJ fell into error in speculating that if the AGC retained an interest in the appellant they would certainly have harmed his family. While there was some objective evidence to suggest that families might be harmed or threatened in certain circumstances, there was no evidence to support such a blanket finding. Nor was there evidence to support the assumption that had the AGC been enquiring as to his whereabouts he would certainly be aware of that fact.

32. I do not however accept that the FTTJ was not entitled to consider whether the passage of time affected risk on return. Subject to the question of whether risk on return to Medellin was or should have been in issue at all, that was a plainly relevant factor.

33. As indicated at the hearing, in view of Mr Abedian’s acceptance that on the correct InSight map before the FTTJ there were areas where the AGC had limited presence, I do not accept that Ground 3 is made out. The other aspects of Ground 3 were not pursued orally. It is difficult in any event to see the relevance of the alleged failure to consider the reach of the AGC in view of the FTTJ’s conclusion that the appellant was not in fact of ongoing interest to them at all.

34. I do not consider that Ground 4 adds significantly, as it was parasitic on the other grounds.

35. Ground 5 raises more complex issues. Both parties relied on different passages of EMAP (Gang violence, Convention Reason) [2022] UKUT 335 (IAC). The relevant passages bear setting out in full:

“120. There will be cases at one end of the spectrum where the motive for persecution is purely political. Professor McNamara gives the example of an individual involved in anti-gang youth programmes. Another example would be the targeting of an individual who speaks out against a gang-selected candidate, or a local politician who refuses to advance the policies they urge upon him.

121. There will be cases at the other end of the spectrum where the motive for persecution is purely criminal. The most obvious example of that would be the shopkeeper subject to extortion by his local clica. The act of extortion itself may be crippling for the shopkeeper, and he may be living in terror of what might happen should he refuse to pay, but absent other features the motive is wholly financial, and criminal in nature. We doubt the gang has given any thought at all to what the shopkeeper thinks about their policies or methods.

122. In between those two poles is the area of overlap where the criminal and the political motivations of the gangs are harder to separate. It is true that punishment for resistance will often be inflicted in pursuit of criminal, economic objectives, but in the context of El Salvador that is not all it is. The subject of extortion who takes a stand and refuses to pay, the victim of violence who turns to the state for assistance, the youth who resists the pressure to join a gang are all in our view likely to be able to establish that an effective cause of the persecution they fear is the opinion or belief that they hold about the gang. The less immediately financial in nature the point of the adverse attention, the more likely it is going to fall towards the political end of the spectrum.”

36. There is considerable force in the point made by Mr Abedian that the reasons given by the FTTJ for concluding [16] that the appellant cannot fall under the Refugee Convention were primarily related to the circumstances of his original targeting, and not what would happen if he were returned: he was chosen randomly; he had no particular political profile; his targeting was for purely financial reasons. This, as considered in EMAP at [121], is “purely criminal” activity outside the Convention but that is not the end of the story: it is also the appellant’s case that he contacted the police and that he refused to pay.

37. The question for the FTTJ was whether that placed him sufficiently close to the political end of the spectrum considered in EMAP at [122] to fall under the Convention. The FTTJ considered that it would not. It is clear that the FTTJ in so concluding expressly took into account that the appellant refused to pay. It is far less clear that he took into account that the appellant had also contacted the police. However, given that the FTTJ clearly directed himself in accordance with EMAP it would be wrong to treat him as not having had this in mind, and his decision on this issue was not in my view Wednesbury unreasonable. I therefore do not accept that Ground 5 is made out, though that may be academic given my conclusions on Grounds 1 and 2.

38. I note that the parties agreed that if the appeal succeeded on Grounds 1 or 2 it should be remitted to the First-tier Tribunal for a rehearing. I agree. In view of the nature of the errors I consider moreover that no findings should be preserved.

39. It will be important in the remitted hearing for the parties to have an agreed position as to whether the appellant is currently at risk in his home area, in view of the accepted facts of his case. If so the only issue for consideration will be whether the appellant can safely internally relocate. If not, the question of whether the appellant in fact is at risk of serious harm and/or persecution on return to Medellin will need to be considered as a prior question, as otherwise internal relocation does not arise.

Notice of Decision

The determination of First-tier Tribunal Judge Mill of 5 September 2025 did involve the making of an error of law. It is set aside. The matter is remitted to the First-tier Tribunal for a full rehearing with no findings preserved.

Greg Ó Ceallaigh KC

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

15 May 2026