Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000617
First-tier Tribunal No: PA/04512/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 5th of June 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE SINGER

Between

KO (SRI LANKA)
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S Jegarajah, instructed on a direct access basis
For the Respondent: Ms A Nolan, Senior Presenting Officer

Heard at Field House on 26 May 2026

DECISION AND REASONS
1. KO appeals, with permission granted by the Upper Tribunal, against the decision of the First‑tier Tribunal Judge (“the judge”) promulgated on 31 December 2025, dismissing his appeal against the Respondent’s decision of 12 November 2024 refusing his protection and human rights claims.
2. At the error of law hearing on 26 May 2026 at Field House, the Appellant was represented by Ms Jegarajah, and the Respondent by Ms Nolan. I had a composite electronic bundle of 269 pages (“CB”), and a skeleton argument by Ms Jegarajah dated 22 April 2026.
The Appellant’s case before the First-tier Tribunal
3. The Appellant’s case, as advanced to the Respondent and then to the First-tier Tribunal, was that he is a Sri Lankan national of Sinhalese ethnicity who had entered the United Kingdom as his wife’s dependant, returned to Sri Lanka on 1 June 2024 to visit his parents, and was detained on arrival at Colombo airport on 2 June 2024 after customs officers examined his mobile telephone and found WhatsApp images and videos relating to Tamil diaspora protests against the Sri Lankan government which had been shared by friends from the United Kingdom. He said that, as a result, he was accused of links to the LTTE diaspora, arrested by the CID, detained for seven days, interrogated and tortured, and then released on 9 June 2024 after a substantial bribe was paid through an agent, subject to a requirement to report monthly. He further claimed that he left Sri Lanka before the first reporting date, using his own passport with assistance from the same agent and an immigration officer, and that thereafter CID officers visited his family home, informed his parents that there was an arrest warrant for him, and remained interested in him. On that basis, he claimed to fear arrest, detention and persecution on return to Sri Lanka for reason of imputed political opinion.
4. Before the First-tier Tribunal, the Appellant maintained the same core account. The First-tier Tribunal recorded that his case was set out in his witness statements and skeleton argument, and that he relied on the contention that he would be at risk on return to Sri Lanka on account of imputed political opinion, with his humanitarian protection and Articles 2 and 3 claims standing or falling with the same factual matrix. At the hearing before the First-tier Tribunal, he adopted his witness statements and gave oral evidence in English. In support of his account, the Appellant relied in particular upon a medico-legal report from Dr Anupam Gupta dated 26 May 2025. Dr Gupta diagnosed Post-Traumatic Stress Disorder and a moderate to severe depressive episode, described the Appellant’s mental state examination, recorded a number of scars and injuries, and expressed the opinion that the overall pattern of scarring was highly consistent with the Appellant’s narrative of repeated physical and sexual torture while in detention. The Appellant also relied upon his own statements, the documentary records of his asylum claim, and country information evidence and authorities placed before the First-tier Tribunal, together with his skeleton argument.
The refusal letter and the Respondent’s position before the First-tier Tribunal
5. The Respondent’s position, as set out in the refusal letter and maintained before the First-tier Tribunal, was that the Appellant’s identity and nationality were accepted but that the core elements of his protection claim were not. In particular, the Respondent did not accept that the Appellant had been detained and tortured upon arrival in Sri Lanka in June 2024, that he had come to the adverse attention of the Sri Lankan authorities on account of imputed links to the LTTE diaspora, or that any arrest warrant had been issued for him. The refusal letter identified inconsistencies, a lack of detail, and an absence of adequate explanation for discrepancies in the Appellant’s account, and concluded that the material facts underlying the claim had not been established.
6. On that basis, the Respondent’s case was that the Appellant had not demonstrated a real risk of persecution or serious harm on return to Sri Lanka. It was further the Respondent’s position that, although the country situation was such that, if the Appellant’s account were accepted, there might be a lack of sufficiency of protection and no viable internal relocation, that issue did not arise because the account itself was not credible. The Respondent also rejected the Appellant’s claim under Article 8 of the European Convention on Human Rights and did not accept that any humanitarian protection claim was made out. Before the First-tier Tribunal, that position was maintained.
The FTJ’s decision
7. The First-tier Tribunal Judge noted that the appeal turned upon the credibility of the Appellant’s account and said he had undertaken what he described as a holistic assessment of all the evidence “in the round and without compartmentalisation”, applying the appropriate burdens and standards of proof. He said he had regard to the relevant authorities on credibility and to the Presidential Guidance concerning vulnerable witnesses. He accepted that the Appellant’s identity and nationality were not in dispute but identified that the central issue was whether the Appellant’s account of detention, torture and continuing adverse interest from the Sri Lankan authorities was credible.
8. The judge stated at paragraphs 24-26:
“24. I have carefully considered the expert report dated 26 May 2025 authored by Dr Gupta, Consultant Psychiatrist. The author’s expertise is not in dispute. Dr Gupta examined the appellant on 28 April 2025 and reviewed a range of documents listed in the report. He concluded that the appellant meets ICD‑10 criteria for Post‑Traumatic Stress Disorder (PTSD) and a moderate to severe depressive episode. Physical examination identified multiple scars said to be consistent with the alleged assaults, including burns, cigarette marks and injuries from blunt force. Dr Gupta considered the overall pattern of scarring highly consistent with repeated torture as described and opined that the appellant’s presentation was credible and congruent with his account of severe physical and sexual torture. He assessed the prognosis as poor without stability and trauma‑focused therapy.
25. I remind myself that the Tribunal is the ultimate fact‑finding body and expert evidence cannot supplant that function. While the report is detailed and prepared by an experienced clinician, there are limitations which affect the weight that can properly be attached to its conclusions. The assessment relies heavily on the appellant’s own account and does not meaningfully engage with disputed factual matters or inconsistencies elsewhere in the evidence. The scarring analysis, although stating consistency, acknowledges that ageing scars is uncertain and does not exclude alternative causes, including the possibility of self‑infliction. The psychiatric diagnosis is based on a single consultation and self‑reported symptoms, with limited reference to GP records. There is no differential diagnosis or consideration of other explanations for the presentation, including the potential impact of the asylum process and uncertainty about return in isolation. These factors do not negate the clinical observations but do reduce the probative value of the report when determining whether the appellant’s account is factually accurate.
26. Although the report notes that medical history was provided, reference to those records is minimal beyond noting treatment for mixed anxiety and depression, a recommendation for self‑referral to IAPT and a prescription for Mirtazapine. The medical records themselves have not been produced to the Tribunal. I also note that at his substantive interview in October 2024 the appellant stated that he did not suffer from any medical conditions, including mental health concerns (AIR2 and AIR3). I further note that no reference is made in the evidence to the appellant complying with the recommendations contained within the report. I afforded limited weight to this as it was not put to the appellant during the hearing.”
9. At paragraphs 27-36 the judge rejected the Appellant’s account as not credible. He identified a number of concerns, including a lack of detail, inconsistencies in the Appellant’s evidence, and the absence of supporting documentation such as the alleged WhatsApp material, evidence of an arrest warrant, or corroboration from family members. He found that the Appellant’s explanations did not adequately address these issues and concluded that the Appellant had fabricated his asylum claim. On that basis, he dismissed the appeal on asylum and humanitarian protection grounds, finding that the Appellant had not established a real risk of persecution or serious harm on return to Sri Lanka.
The grounds of appeal and submissions before me
10. The Appellant advanced five grounds of appeal, although Ground 5 was not pursued before the Upper Tribunal.
• Ground 1 asserted that the First-tier Tribunal Judge erred in his treatment of the medical evidence. It was argued that, at paragraph 25 of the decision, the judge wrongly reduced the weight of Dr Gupta’s report on the basis that it relied on self-reporting and failed to engage with disputed factual matters. The Appellant contended that this mischaracterised the nature of clinical assessment, in particular failing to recognise the significance of the mental state examination as an objective component of the expert’s opinion, and that the judge failed to identify what further matters the expert was required to address.
• Ground 2 contended that the judge failed to give adequate weight to the expert’s conclusions on scarring. Although the report recorded individual injuries as “consistent” with the Appellant’s account, the expert’s overall conclusion was that the pattern of scarring was “highly consistent” with torture. It was submitted that the judge did not properly engage with or relate that conclusion to his reasoning when assessing credibility.
• Ground 3 alleged that the judge took into account irrelevant considerations and made errors of fact in his assessment of the expert evidence. In particular, it was argued that the judge was wrong to criticise the absence of a differential diagnosis and to refer to the limited duration of the consultation, and that he failed to recognise that the report did address the effect of the asylum process as a stressor exacerbating the Appellant’s condition.
• Ground 4 asserted a misdirection in law, namely that the judge approached credibility in a manner contrary to the principle in Mibanga v SSHD [2005] EWCA Civ 367. It was submitted that the judge first reached adverse findings on the Appellant’s credibility and only thereafter considered whether the medical evidence displaced those findings, rather than assessing credibility holistically in light of all the evidence, including the expert report.
11. Permission to appeal was refused by the First-tier Tribunal, but was subsequently granted by the Upper Tribunal. Permission was granted on Grounds 1 to 4, all of which concern the First-tier Tribunal’s treatment of the medical evidence and its approach to credibility in that context. The UTJ who granted permission said that it was arguable that the First-tier Tribunal had erred in its assessment of the expert report, including that it was arguable that Dr Gupta had taken into account the impact of the asylum process on the Appellant. Permission was expressly refused in respect of Ground 5, the Upper Tribunal considering that the challenge based on the alleged application of an incorrect standard of proof did not disclose an arguable error of law.
Legal principles
12. I remind myself of what was said by Lady Hale at paragraph 30 of SSHD v AH (Sudan) [2007] UKHL 49. What was said there about the restraint which must be exercised on appeal has been repeated in other cases, including HA(Iraq) and others v SSHD [2022] UKSC 22 at [72]. The approach I adopt to the First-tier Tribunal’s findings reflects that and what was said by Lewison LJ at [2] of Volpi v Volpi [2022] EWCA Civ 464:
i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
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 FTJ failed to give the evidence a balanced consideration only if the FTJ'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.
13. I have had regard to the rules governing expert evidence laid down in the Ikarian Reefer (National Justice Compania Naviera S.A. v Prudential Assurance Co. Ltd) [1993] 2 Lloyds Rep 68; and the Tribunal’s expectations of experts and their duties set out in MOJ and Others (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC), at [23] – [27], MS (Trafficking – Tribunal's Powers – Art. 4 ECHR) Pakistan [2016] UKUT 00226 (IAC) and AAW (expert evidence – weight) Somalia [2015] UKUT 00673 (IAC) and of the duties in the Practice Direction. In AAW (expert evidence – weight) Somalia [2015] UKUT 00673 (IAC), the Upper Tribunal made clear that a failure to comply with the Practice Direction will affect the weight to be given to an expert's report (see also PP (female headed household; expert duties) Sri Lanka [2017] UKUT 00117 (IAC)).
14. I remind myself that in SSHD v NM and KY (Somalia) [2014] UKSC 30, Lord Carnwath noted that:
“34. ... The practice directions contain valuable guidance on the general principles applying to expert evidence. To a large extent they follow the principles applicable in civil courts, designed (inter alia) to ensure that the expert provides truly independent assistance to the tribunal, does not assume the role of advocate, and sets out the facts and other material on which an opinion is based. ...As Lord Eassie acknowledged, the practice directions did not have to be rigidly applied.
35. In the civil courts, flexibility on such matters is routinely accepted under modern practice. For example, in Rogers v Hoyle (Secretary of State for Transport and International Air Transport Association intervening) [2014] EWCA Civ 257, the Court of Appeal confirmed the admission of a report by a body known as the Air Accident Investigation Branch, one objection having been that it failed to comply with mandatory rules (CPR Pt 35) relating to expert evidence. In support of a flexible approach to the rules, Christopher Clarke LJ at para 44 cited (inter alia) Sunley Gowland v White (Surveyors and Estate Agents) Ltd [2004] PNLR 257, in which
"this court regarded as admissible a draft soil report issued by a B company although the report was unsigned, provisional and did not carry the name or qualifications of the author. These were matters which Clarke LJ, with whom Longmore LJ agreed, treated as 'essentially going to weight'."
36. Such considerations apply with equal or greater force before tribunals”.
15. In PP (female headed household; expert duties) Sri Lanka [2017] UKUT 00117 (IAC), while criticising the experts (and those instructing them) for failing to comply with the requirements for expert evidence in their written reports, the Tribunal nonetheless accepted that the witnesses were experts, admitted their evidence, and gave it weight.
The error of law hearing and the submissions made to me
16. At the outset of the hearing, I raised with the parties an issue regarding the contents of the composite bundle. It appeared that a Home Office review relating to a different asylum Appellant had been included within the bundle. I sought an explanation as to how that document had come to be served. Counsel for the Appellant indicated that the Appellant had acted as a litigant in person in compiling the bundle and had simply included material received from the Respondent, whilst the Presenting Officer did not have information immediately available but undertook to investigate. Both parties agreed that written explanations would be provided, and I directed that they do so within two weeks of receipt of the promulgated error of law decision. I further directed that the Appellant re‑file the consolidated bundle with the erroneous review removed. My detailed directions are annexed to this error of law decision and are contained in a separate “directions” document.
17. In submissions, Ms Jegarajah relied upon the Appellant’s skeleton argument and pursued Grounds 1 to 4 only. She submitted in essence that the First-tier Tribunal had fundamentally misunderstood and misapplied the medical evidence. In relation to Ground 1, she argued that the judge had been wrong to characterise the expert report as dependent on the Appellant’s narrative and to criticise it for failing to address disputed factual matters, which were not within the expert’s remit. She placed particular emphasis on the mental state examination as an objective clinical assessment which the judge had failed properly to engage with. In relation to Ground 2, she submitted that the judge had failed to relate the expert’s conclusion that the scarring was “highly consistent” with the Appellant’s account to the overall reasoning. As to Ground 3, she argued that the criticisms regarding the absence of a differential diagnosis and the duration of the consultation were misplaced and not matters properly diminishing the weight of the report. Finally, under Ground 4, she contended that the judge had fallen into a Mibanga-style error.
18. On behalf of the Respondent, Ms Nolan relied upon the Rule 24 response and submitted that the grounds amounted in substance to disagreement with the weight the First-tier Tribunal had attached to the evidence. She emphasised that the decision must be read holistically and that the judge had been entitled, as the fact‑finder, to attach limited weight to the expert report for the reasons given, including its reliance on self-reporting, the absence of a differential diagnosis, and the limited engagement with other potential explanations. She submitted that the judge had properly considered the report in the context of all of the evidence and that there had been no misdirection in law. In particular, she contended that there was no Mibanga error, as the judge had considered the medical evidence alongside the credibility issues rather than sequentially, and that the reasoning at paragraphs 24 to 25 was a lawful evaluation of the expert evidence. Both representatives agreed that, in the event that a material error of law were found, the appropriate course would be remittal to the First-tier Tribunal for a hearing de novo.
Analysis
19. The focus of the challenge was the First-tier Tribunal Judge’s treatment of Dr Gupta’s expert report, both in relation to psychiatric opinion and scarring evidence, and the way in which that evidence was brought to bear on the overall credibility assessment. The Respondent’s position, both in the Rule 24 response and in Ms Nolan’s oral submissions, was that the grounds amounted in substance to no more than disagreement with findings on weight, and that the decision, read fairly and as a whole, disclosed no material error of law. I accept that an appellate tribunal must read a First-tier Tribunal decision realistically and not hyper-critically, and that issues of weight are ordinarily for the trial judge. I also accept that the First-tier Tribunal was entitled to identify some shortcomings in the expert report. Nevertheless, for the reasons that follow, I am satisfied that Grounds 1 to 4, read together, disclose a material error of law in the way the judge approached and treated the expert evidence.
20. Ground 1 concerns the judge’s conclusion at paragraph 25 that the report relied heavily on the Appellant’s own account and did not meaningfully engage with disputed factual matters or inconsistencies elsewhere in the evidence. In my judgment, there is only partial force in the criticism advanced on behalf of the Appellant. The judge was entitled to observe that the report was based in significant part upon the history given by the Appellant. He was also entitled to note that the GP records themselves had not been produced to the Tribunal, notwithstanding the limited references to them in the report, and to treat that as a factor bearing on weight. Those were legitimate considerations. Indeed in MOJ and Others (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC), the Upper Tribunal summarised the duties of an expert in the following terms:
(i) to provide information and express opinions independently, uninfluenced by the litigation;
(ii) to consider all material facts, including those which might detract from the expert witness' opinion ;
(iii) to be objective and unbiased;
(iv) to avoid trespass into the prohibited territory of advocacy;
(v) to be fully informed;
(vi) to act within the confines of the witness's area of expertise; and
(vii) to modify, or abandon one's view, where appropriate.
21. Equally, in the light of HA (expert evidence; mental health) Sri Lanka [2022] UKUT 00111 (IAC), a judge is plainly entitled to scrutinise whether psychiatric expert evidence has a sufficiently clear evidential foundation and whether the expert has properly complied with the obligations of an expert witness.
22. However, in my judgment in KO’s case the judge went too far in what he expected from the expert. The judge had already recorded, at paragraph 24, that Dr Gupta’s expertise was not in dispute. The report did not consist merely of a repetition of the Appellant’s account. It contained a mental state examination and clinical observations made by the expert in the course of the assessment, together with an opinion as to diagnosis and clinical presentation. In that respect, Ms Jegarajah was correct to submit that the report had an objective clinical component which the judge did not adequately confront. Further, whilst a tribunal is entitled to consider whether an expert has engaged with matters material to the issues in dispute, there is a difference between that and requiring a clinician to resolve disputed non-medical factual matters or inconsistencies in the asylum narrative; because the latter is not ordinarily the expert’s function. As the Supreme Court put it in Kennedy v Cordia (Services) LLP [2016] UKSC 6:
“…while on occasion in order to avoid elusive language the skilled witness may have to express his or her views in a way that addresses the ultimate issue before the court, expert assistance does not extend to supplanting the court as the decision-maker. The fact-finding judge cannot delegate the decision-making role to the expert.”
In my judgment, the language used by the judge in KO’s appeal at paragraph 25 blurred that distinction and, in doing so, treated the report as defective because it did not undertake a task that was not really part of its proper remit. I am not satisfied that Respondent’s submission that this was no more than a permissible finding on weight adequately answers that point. The difficulty is not simply that little weight was attached to the report. It is that part of the reasoning for reducing its weight rested on an unduly exacting and legally flawed expectation of what the expert had to do.
23. In paragraph 25 the judge criticised Dr Gupta for not “meaningfully” engaging with disputed factual matters or inconsistencies elsewhere in the evidence, but this was to expect the expert to stray beyond the proper bounds of his medical expertise. Dr Gupta was instructed as a Consultant Psychiatrist who also gave an opinion on scarring, and the judge expressly recorded that his expertise was not in dispute. The Respondent’s credibility challenge, however, was not confined to matters of medical causation or psychiatric presentation. It included the rejection of the core account that the Appellant had been detained and tortured on arrival in Sri Lanka, the claim that he had come to the adverse attention of the authorities because WhatsApp images and videos relating to Tamil diaspora protests had been found on his telephone, the assertion that an arrest warrant had later been issued, and the claim of continuing adverse interest on the part of the Sri Lankan authorities. The refusal letter, inter alia, relied on inconsistencies, lack of sufficient detail, absence of reasonable explanations for discrepancies, lack of supporting evidence for the alleged WhatsApp material, the bribe and the arrest warrant, and the fact that the Appellant had been able to leave Sri Lanka on his own passport. The First-tier Tribunal’s own reasoning likewise turned upon matters such as why the authorities would search what was said to be a six-month-old telephone, why the Appellant would have retained material he claimed was dangerous, the absence of documentary proof of the alleged images and the arrest warrant, and the circumstances of his departure from Sri Lanka. Those were not merely medical questions. They were, at least in significant part, issues of plausibility and factual adjudication, some of them falling to be assessed against the country context of Sri Lanka, including the treatment of returnees’ perceived LTTE diaspora links, the likelihood of continuing state interest, and the plausibility and significance of departure on an individual’s own passport upon payment of a bribe. To that extent, they were matters for the judicial fact-finder, informed where appropriate by country evidence and country guidance, rather than matters which a UK-based psychiatrist could be expected to resolve.
24. That is not to say that the judge could not expect the expert to address matters within his own field which might bear upon credibility, such as diagnosis, symptom presentation, the possible effect of PTSD or depression on memory and recall, whether there were features suggestive of exaggeration, or whether there were clinically plausible alternative causes of the scarring or symptoms. But the criticism at paragraph 25 was framed in wider terms, and in my judgment it impermissibly elided questions lying within medical competence with broader plausibility issues rooted in the asylum narrative and the Sri Lankan country context, thereby demanding more of the expert than his proper role required. I accept that there is some force in the Respondent’s submission that the report does not expressly address the possibility of exaggeration or feigning, but that omission does not cure the wider error, which lies in the judge’s reliance on matters falling outside the expert’s proper remit and his failure properly to engage with the expert evidence within its field of expertise.
25. A further difficulty, linked to Ground 1, is that it is not clear from the decision whether the judge did or did not accept that the Appellant was in fact suffering from PTSD. That was an important issue for the judge to address. The Equal Treatment Bench Book makes clear that, in the case of a witness with mental disability, memory difficulties may affect the level of detail or precision without necessarily undermining reliability or credibility as a whole, and that depression may itself be associated with difficulty in remembering things. The ETBB also emphasises the need for judges to recognise disadvantage, to facilitate participation, and to avoid erroneous assumptions about credibility arising from disability or vulnerability. In circumstances where the expert evidence was relied upon, among other things, as potentially relevant to the way in which the Appellant gave his account, the absence of a clear finding on whether the judge accepted the PTSD diagnosis was a significant omission.
26. Ground 2 concerns the treatment of the scarring evidence. Here again, I accept that some aspects of the Respondent’s submissions have force. The judge was of course not bound to accept Dr Gupta’s conclusion just because it was expressed by an expert. The judge was entitled to note that the report did not set out, in any developed way, what other causes for the scarring might exist. The judge was also entitled to observe that aging scars is attended by uncertainty and that the report did not contain a fully articulated differential diagnosis. Those matters could properly bear upon weight. The Respondent was right to submit that the ultimate fact-finding function remained with the Tribunal. However, I find that the First-tier Tribunal’s treatment of the scarring evidence was, in important respects, flawed. First, although the judge accurately recorded at paragraph 24 that Dr Gupta’s overall opinion was that the pattern of scarring was “highly consistent” with the Appellant’s account, paragraph 25 reduced the discussion to a more general reference to “consistency” (the expert did identify each individual injury to be “consistent”) without engaging in any meaningful way with the significance of the expert’s actual overall conclusion, which reflected the expert’s holistic assessment of the pattern of scarring, considered alongside the Appellant’s history and psychological presentation. Secondly, insofar as the reasoning at paragraph 25 is to be understood as criticising the expert for failing to identify self-infliction by proxy (“SIBP”) as an alternative explanation, that criticism was not adequately reasoned. In KV (Sri Lanka) v SSHD [2019] UKSC 10 the Supreme Court at paragraphs 34-35 emphasised that SIBP injuries are likely to be “extremely rare” and that a decision-maker ought to give “very considerable weight” to that rarity when assessing the possibilities raised by scarring evidence. There is no indication that the First-tier Tribunal approached the matter in that way. Nor is there any clear basis in the refusal decision, or in any review properly relating to this case, showing that SIBP had been squarely raised as a live issue requiring express treatment by the expert. In those circumstances, insofar as the reasoning at paragraph 25 is to be understood as criticising the expert for not excluding self-infliction by proxy as an alternative explanation, that was not adequately explained.
27. I am also not able to accept the Respondent’s reliance, in the Rule 24 response, on the proposition that Dr Gupta was not a scarring expert and that no weight ought to have been given to the report for that reason. That was not the basis upon which the First-tier Tribunal dealt with the matter. On the contrary, the judge expressly recorded that the author’s expertise was not in dispute. At the error of law hearing, Ms Nolan quite properly accepted that she did not have a record showing whether such a point had been taken below. In my judgment, the Respondent cannot now rehabilitate the decision by reference to a criticism which the judge himself did not make and which appears not to have been clearly advanced in the First-tier Tribunal.
28. Ground 3 concerns the judge’s criticism that there was no differential diagnosis or consideration of other explanations for the presentation, including the potential impact of the asylum process and uncertainty about return in isolation, and the further observation that the diagnosis was based on a single consultation. In my judgment, this ground also has merit, although not every complaint made on behalf of the Appellant is made good. The judge was entitled to note that the report relied on one consultation and that the GP records themselves were not before the Tribunal. Those matters could properly be treated as relevant context. Equally, HA (expert evidence; mental health) Sri Lanka [2022] UKUT 00111 (IAC) demonstrates that a tribunal is entitled to look carefully at the quality and foundation of psychiatric evidence. The error is that the report did in fact address the asylum process and the possibility of removal as current stressors which exacerbated the Appellant’s mental state. The judge may have been entitled to say that the report did not carry out a fully developed differential analysis as between trauma-related disorder and other possible explanations for the symptoms. What he was not entitled to do, without fuller reasoning, was to criticise the report in terms suggesting that it had failed altogether to consider the role of the asylum process as an alternative explanation for the presentation. That was not a fair or accurate reflection of what the report said. Nor do I regard the bare fact of a single consultation, without more, as a reasoned basis for materially discounting the diagnosis. There is no rule of law, and no principle identified in HA (Sri Lanka), that a psychiatric opinion based on one properly conducted assessment is for that reason alone of little value. The criticism required more explanation than the decision provides. In my judgment, the Respondent’s submission that the judge was simply making a permissible evaluative judgment does not answer the central point, which is that part of the reasoning was either inaccurate or insufficiently explained.
29. Ground 4 alleges a “Mibanga” error. I accept, as Ms Nolan submitted, that the decision contains statements at paragraph 22 to the effect that the evidence was considered holistically and in the round, and that one must read the decision fairly and as a whole. I also accept that not every decision which first summarises credibility concerns and then refers to medical evidence will necessarily fall into the error identified in Mibanga. However, when this decision is read as a whole, I am satisfied that the medical evidence was in substance treated as something separate from, and subordinate to, the credibility assessment, rather than as an integral part of it.
30. I remind myself that in Mibanga the claim for asylum was based on the Appellant's account that he had been captured in the Democratic Republic of Congo by Rwandan-backed rebels, who had tortured him. The Appellant produced a medical report on his injuries, together with a report by a country expert. The Court of Appeal held that the adjudicator who dismissed the appeal had disregarded both expert reports in concluding that the Appellant's case lacked credibility. She had only turned to the reports after making the adverse credibility finding. Both reports were regarded by the Court of Appeal as detailed and impressive documents. In his judgment, Wilson J said:-
"23. In the light of my view as to the proper despatch of this appeal, it would be wise for me to keep my own views about the effect of the evidence to a minimum. The basis of the appeal is not that the weight of the appellant's evidence, coupled with that of the two experts, should have driven every reasonable fact-finding body to accept his account and to uphold his appeal but that he has been the victim of a flawed fact-finding exercise on the part of the adjudicator and that the tribunal fell into legal error in failing to recognise it and to remit the appeal for redetermination. In this regard Miss Braganza relies heavily upon the way in which the adjudicator folded the doctor's report into her enquiry only at a point after she had reached her conclusions and upon the way in which she jettisoned the focussed comments of the professor.
24. It seems to me to be axiomatic that a fact-finder must not reach his or her conclusion before surveying all the evidence relevant thereto. Just as, if I may take a banal if alliterative example, one cannot make a cake with only one ingredient, so also frequently one cannot make a case, in the sense of establishing its truth, otherwise than by combination of a number of pieces of evidence. Mr Tam, on behalf of the Secretary of State, argues that decisions as to the credibility of an account are to be taken by the judicial fact-finder and that, in their reports, experts, whether in relation to medical matters or in relation to in-country circumstances, cannot usurp the fact-finder's function in assessing credibility. I agree. What, however, they can offer, is a factual context in which it may be necessary for the fact-finder to survey the allegations placed before him; and such context may prove a crucial aid to the decision whether or not to accept the truth of them. What the fact-finder does at his peril is to reach a conclusion by reference only to the appellant's evidence and then, if it be negative, to ask whether the conclusion should be shifted by the expert evidence. Mr Tam has drawn the court's attention to a decision of the tribunal dated 5 November 2004, namely HE (DRC - Credibility and Psychiatric Reports) [2004] UKIAT 00321 in which, in paragraph 22, it said:
"Where the report is specifically relied on as a factor relevant to credibility, the Adjudicator should deal with it as an integral part of the findings on credibility rather than just as an add-on, which does not undermine the conclusions to which he would otherwise come.""
Buxton LJ agreed:-
"30. … The adjudicator's failing was that she artificially separated the medical evidence from the rest of the evidence and reached conclusions as to credibility without reference to that medical evidence; and then, no doubt inevitably on that premise, found that the medical evidence was of no assistance to her. That was a structural failing, not just an error of appreciation, and demonstrated that the adjudicator's method of approaching the evidence diverted from the procedure advised in paragraph 22 of HE, set out by my Lord.
31. Further, though perhaps less obviously, I agree that if an expert's view is to be rejected in the conclusive terms adopted by the adjudicator in this case, then proper procedure requires that at least some explanation is given of the terms and reasons for that rejection."
31. In KO’s case, I find that the structure of the reasoning discloses that the judge set out the expert evidence at paragraphs 24 to 26 but then turned at paragraph 27 to state inter alia that he did not find the Appellant to have been truthful about the core of his narrative, before going on to identify the matters said to undermine credibility. Paragraph 33 then states that the Appellant’s mental health condition was not a sufficient explanation for the inconsistencies, lack of detail or supporting evidence. That mode of analysis is problematic in this case because there is no clear finding as to whether the PTSD diagnosis was accepted, and because the report was not simply relevant to whether inconsistencies might be explained away. I do not accept Ms Nolan’s submission that no such finding was required. In the circumstances of this case, where the medical evidence was relied upon as relevant to credibility and vulnerability, it was necessary for the judge to make clear whether the diagnosis was accepted and, if so, what significance attached to it. It was part of the evidential matrix bearing on the assessment of the account in the first place, both by reason of the psychiatric opinion and by reason of the scarring evidence. In those circumstances, I am satisfied that the judge did artificially separate the medical evidence from the credibility assessment in a manner falling foul of the principle in Mibanga. The Respondent’s submission that paragraph 33 shows a holistic approach does not persuade me otherwise. It tends rather to confirm that the expert evidence was treated as something which had to “dislodge” conclusions already reached.
Materiality
32. I remind myself that, according to Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 at [15]:
“Insufficiency of reasons ordinarily leads to the case being remitted for a rehearing … Such a direction is not appropriate if there was no evidence on which a properly directed tribunal could have upheld the claimant’s application.”
[emphasis added]
33. These errors were plainly material. The medical evidence was central to KO’s case. The First-tier Tribunal itself recognised that Dr Gupta was an experienced clinician whose expertise was not in dispute, and the report was relied upon both in relation to psychiatric condition and in relation to scarring. In circumstances where the Respondent’s case was that the claim failed on credibility, the proper treatment of that evidence mattered directly to the outcome. I cannot conclude that, had the expert evidence been approached lawfully, the decision must inevitably have been the same. On the contrary, a properly directed tribunal could have reached a different conclusion on credibility and risk. It follows that the decision must be set aside.
Disposal
34. I canvassed disposal with the parties at the hearing. In my judgment, this is not a case where I can simply re-make the decision for myself, without hearing evidence, because there must be significant fact finding undertaken regarding the credibility of KO’s account in the proper context of the expert evidence as well as a careful evaluation of risk in accordance with the relevant country guidance authorities and country information evidence. Applying the principles in Shamoon (above), AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), I have carefully considered whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statements. I took into consideration the history of this case, the nature and extent of the findings to be made as well as the fact that the nature of the errors of law in this case meant that KO was deprived of fair consideration of this protection claim appeal. The parties agreed at the hearing that in this eventuality the matter must be remitted to the First-tier Tribunal because there remains significant fact finding which must be made. I further consider that it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process. Because of the nature of the errors of law set out above, and mindful of what was said by the then President, Lane J, in AB (preserved FtT findings; Wisniewski principles) Iraq [2020] UKUT 268 (IAC), I have concluded that none of the credibility findings can be safely and fairly preserved.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
The decision of the First-tier Tribunal is set aside.
The appeal is remitted, de novo, to the First-tier Tribunal to be reheard by a different First-tier Tribunal Judge.
Because this appeal concerns an international protection claim, and publication of the Appellant’s identity could undermine the effective discharge by the United Kingdom of its obligations under the Refugee Convention by exposing an asylum seeker to a risk of identification and possible harm, I am satisfied that the ordinary principle of open justice is outweighed in this case and that the anonymity order made by the First-tier Tribunal should therefore be maintained.

R Singer

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
27.5.26

Annex 1:

Directions in respect of apparent data protection breach

1. Within 14 days of the date on which this decision is sent to the parties, each party shall file and serve a written explanation, with any relevant supporting evidence, addressing how the Home Office review relating to appeal number PA/68465/2023 came to be included in the composite bundle in these proceedings. That explanation shall state, so far as the party is able to do so, whether that document was served as part of these proceedings in the First-tier Tribunal and/or the Upper Tribunal by the Respondent, the Appellant, counsel, solicitors, or any other person acting on behalf of a party.

2. Within the same period, each party shall file and serve a written statement setting out what steps, if any, that party has taken or intends to take in consequence of the apparent data breach, including in relation to:

a) any notification or report to the Information Commissioner’s Office
b) any notification to the individual who is the subject of the apparent breach
c) any notification to that party’s professional regulator or other relevant professional body
d) any other remedial or protective steps said to be appropriate.

3. Within the same period the Appellant must re-file and serve the consolidated bundle with the improperly served Home Office review removed.

4. The issue of the apparent data breach shall be listed on the papers before Upper Tribunal Judge Lindsley 28 days after the date on which this decision is sent to the parties.

R Singer

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
27.5.26