Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000808
First-tier Tribunal No: PA/55461/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

15th October 2026

Before

UPPER TRIBUNAL JUDGE O’BRIEN

Between

YR
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr H Shamsuzzoha, Legal Representative
For the Respondent: Mrs K Khan, Senior Home Office Presenting Officer

Heard at Field House on 7 August 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. The appellant appeals against the decision of the First-tier Tribunal (FtT) dated 20 October 2025 dismissing his appeal against the respondent’s refusal of his protection and human rights claim.
2. The appellant is a national of Nepal. His claim in short was a fear of persecution because of his involvement with the Rastriya Prajatantra Party (RPP) and similar opposition parties. The respondent did not accept that the appellant was a member of the claimed parties or that he was of adverse attention to the authorities. The FtT accepted that the appellant was a member of the RPP who had undertaken limited activities but rejected his claim to be of adverse attention, and so rejected his claim to have a subjective fear of persecution. It also rejected his claim to be at risk of Article 3 mistreatment and, consequently, to be entitled to humanitarian protection.

3. Permission to appeal was granted on all grounds by Upper Tribunal Judge Hirst in a decision dated 2 June 2026. Those grounds were as follows. The FtT failed to undertake a forward-looking risk assessment having accepted that the appellant was an ordinary member of the RPP who had undertaken limited political activity; the FtT conflated adverse credibility findings concerning past events with the separate issue of future risk; the FtT failed to apply s32 of the Nationality and Borders Act 2022 (NABA) and relevant authorities; and, the FtT failed to give adequate reasons for concluding that no further risk assessment was necessary.

4. In her rule 24 response, the respondent argued that her position before the FtT had been that it was necessary for the appellant to establish that he had been of previous interest to the state in order to succeed in his appeal. Moreover, the appellant had not argued that, if his account of adverse interest was rejected, he would be at risk in any event. Therefore, in dismissing the appeal on the basis that the appellant was a mere member without existing adverse interest, the FtT made no error.

The Hearing

5. The representatives supplemented their respective written submissions orally. Whilst I refer below to only such matters as are necessary to understand my decision, I took those submissions into account in their entirety.

6. Mr Shamsuzzoha’s case in essence was that the FtT had only partially rejected the appellant's factual case and so had partially accepted his claimed subjective fear. The FtT was therefore obliged to consider the risk to him on return. Alternatively, the FtT was obliged per JCK (s.32 NABA 2022) (Botswana) [2024] UKUT 00100 (IAC) and s32 NABA to conduct a forward-looking risk assessment in any event. There was material before the FtT from which it could have accepted that ordinary members of the RPP were at real risk of persecution in Nepal.

7. Ms Khan submitted that s32 (as explained in JCK) only required future risk to be consider if subjective risk had been proved. The FtT had (permissibly) rejected the appellant’s claimed risk. The FtT was not obliged to consider a basis of fear not advanced by the appellant (per Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC)). It had not been obliged to undertake a forward-looking risk assessment. The evidence established in any event that ordinary members of the RPP were not at risk.

Law

Section 32 NABA

8. Section 32 NABA provides:

32 Article 1(A)(2): well-founded fear

(1) In deciding for the purposes of Article 1(A)(2) of the Refugee Convention whether an asylum seeker’s fear of persecution is well-founded, the following approach is to be taken.

(2) The decision-maker must first determine, on the balance of probabilities—

(a) whether the asylum seeker has a characteristic which could cause them to fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion (or has such a characteristic attributed to them by an actor of persecution), and
(b) whether the asylum seeker does in fact fear such persecution in their country of nationality (or in a case where they do not have a nationality, the country of their former habitual residence) as a result of that characteristic.
(See also section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (asylum claims etc: behaviour damaging to claimant’s credibility).)

(3) Subsection (4) applies if the decision-maker finds that—

(a) the asylum seeker has a characteristic mentioned in subsection (2)(a) (or has such a characteristic attributed to them), and
(b) the asylum seeker fears persecution as mentioned in subsection (2)(b).

(4) The decision-maker must determine whether there is a reasonable likelihood that, if the asylum seeker were returned to their country of nationality (or in a case where they do not have a nationality, the country of their former habitual residence)—

(a) they would be persecuted as a result of the characteristic mentioned in subsection (2)(a), and
(b) they would not be protected as mentioned in section 34.

(5) The determination under subsection (4) must also include a consideration of the matter mentioned in section 35 (internal relocation).

9. Having quoted s32 NABA as above, the Upper Tribunal in JCK continued (my emphasis):

‘8. The Explanatory Notes to NABA 2022 assert [at page 348] that this “provision establishes a clear two-limb test for assessing whether an asylum seeker has a well-founded fear of persecution and will raise the standard of proof which an asylum seeker must satisfy for certain elements of the test”. The two limbs are of course delineated by the two standards of proof that must be applied at different stages in the process.

9. The exercise begins at section 32(2) which mandates the decision maker to determine, on the balance of probabilities, whether the asylum seeker “has a characteristic which could cause them to fear persecution” for one of the five reasons set out in Article 1(A)(2) of the Refugee Convention. Next, applying the same standard, consideration must be given to whether the claimant “does in fact fear” such persecution. On a plain reading of the text, the decision maker is therefore to apply the civil standard of proof to whether there is a ‘Convention ground’, and to whether the claimant has a genuinely held subjective fear.

10. Moving on to the second limb, sub-sections (3) and (4) together provide that where those questions are answered in the affirmative, the decision maker must then go on to conduct the future-focused risk assessment by applying the familiar ‘refugee standard’ of reasonable likelihood, looking first at persecution and then at the availability of protection. Finally, consideration must be given to internal relocation.’

10. It is clear, both from the plain meaning of s32, and the Upper Tribunal’s analysis above of its application, that the ‘future-focussed risk assessment’ need only be undertaken if the appellant establishes a Refugee Convention characteristic and a subjective fear of persecution by reason of that characteristic.

11. I shall deal nevertheless with the Upper Tribunal’s observations at [26]:

‘A separate question arises in respect of whether, if any condition of the first limb is not made out, decision makers should proceed to address the second limb at all. Sub-sections (3) and (4) of section 32 provide that where Convention ground and subjective fear are established, the decision maker must proceed to considering those matters arising under the second limb. As we shall see, in this case both Respondent and First-tier Tribunal proceeded to address risk albeit that they were not satisfied that both conditions in s32(2) were made out. That is, in my view, a sensible ‘belt and braces’ approach in circumstances where there are onward appeal rights.’

12. Having posed the question whether decision-makers should undertake a ‘future-focussed risk assessment’ even if not satisfied of both elements of the first limb, the Upper Tribunal did not answer it. Instead, it is made clear that consideration of the second limb is only mandatory where a Convention ground and a subjective fear are established. The final sentence of [26] is no more than an entirely sensible observation; where there are onward appeal rights, consideration of both limbs makes it easier for the appellate court to discern when an arguable error is material.

13. The answer to the question in my judgment is this. There is utility in the FtT considering the second limb, even when finding the first limb not to be satisfied. However, it is not mandatory, and a failure to do so is not an error of law.

The Issues-based Approach

14. The modern issues-based approach to be taken by the FtT is set out in the headnote to Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC). It need not be rehearsed here. It is a distillation of several key paragraphs in the body of the judgment, those of particular relevance to the way this appeal has been argued being the following:

‘27. A judge sitting in the FtT can properly expect clarity as to the remaining issues between the parties by the date of the substantive hearing of the appeal. The parties are obliged by rule 2(4) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 to help the Tribunal to further the overriding objective, and to cooperate with the Tribunal generally. The parties are under a duty to provide the FtT with relevant information as to the circumstances of the case, and this necessitates constructive engagement with the FtT to permit it to lawfully and properly exercise its role. The parties are therefore required to engage in the process of defining and narrowing the issues in dispute, being mindful of their obligations to the FtT.

28. It follows that unless a point was one which was Robinson obvious, a judge’s decision cannot be alleged to contain an error of law on the basis that a judge failed to take account of a point that was never raised for their consideration as an issue in an appeal. Such an approach would undermine the principles clearly laid out in the Procedure Rules.

…

33. It is important to appreciate that the parties can properly identify their case on appeal to their opponent and to the FtT at various procedural stages, including the filing of the ASA, the undertaking of a meaningful review, at a case management review hearing, at the commencement of a hearing when a judge requests clarification as to outstanding issues and during closing submissions. If by the conclusion of a hearing, a party has not asserted reliance on an issue, a judge can properly proceed on the basis that it is not a matter upon which they are required to reach a decision, though a judge will be aware of the likely lack of procedural and legal knowledge when an appellant represents themselves and of the incumbent requirement to apply anxious scrutiny in a protection appeal. The latter establishes a need for decisions to show by their reasoning that every factor which might tell in favour of an appellant has been properly considered. The application of anxious scrutiny is not an excuse for the failure of a party to identify through the available procedural requirements those issues which are the principal controversial issues in the case. Indeed, to the contrary, the procedural requirements should drive the parties to identify the principal controversial issues which in turn they consider that it is in the interests of their client for the FtT to apply anxious scrutiny in the determination of the case. At the stage of an appeal from the FtT to UTIAC, it should be rare indeed for there to be a point requiring anxious scrutiny (which is not Robinson obvious in the case of an appellant) to have illuded the reformed FtT appeal procedures. The procedures are specifically designed to ensure that the parties identify the issues and they are comprehensively addressed before the FtT, not that proceedings before the IAC are some form of rolling reconsideration by either party of its position.

34. We consider that there exists a duty upon the parties to identify relevant issues of their own motion. There is no place for hiding a jewel of a submission in the hope that it will purchase favour on appeal. A party that fails to identify an issue before the FtT that it subsequently asserts to have been essential for a judge to consider is unlikely to have a good ground of appeal before UTIAC. None of this is to say that a FtT judge is to entirely lack curiosity in relation to an aspect of a case that the judge requires further assistance with or which the judge considers should be examined as part of the evaluation of the case. Where, as here, a point has not been identified by the parties, and nor is it one which has independently drawn the attention of the judge, it is not an issue which can be appropriately raised for the first time in the context of an appeal to UTIAC.’

Consideration

Error of Law

15. The FtT set out the appellant’s case at [4]. It is not suggested that the FtT’s summary is inaccurate. On the contrary, it accurately reflects the appellant's evidence in his witness statement (see in particular paragraphs 6 to 13) and his case as summarised at paragraph 23 of his ASA. In short, he claimed to fear persecution because his political activities had attracted adverse attention from the authorities. He did not in terms claim that he feared persecution merely from membership of the RPP, nor could such a claim reasonably be understood from his witness statement and ASA. Mr Shamsuzzoha submitted that the appellant had so claimed in para 13 of his witness statement. I disagree; he was merely alleging that his sur place activities had exacerbated the risk claimed in the preceding paragraphs (that resulting from the adverse attention of the authorities). In accordance with Lata, the FtT was entitled to decide the appeal on the basis of the case advanced and was not obliged to cast around for other bases upon which the appellant might succeed.

16. The FtT’s consideration of the case advanced can be found at [20]-[36]. Contrary to Mr Shamsuzzoha’s submissions, the FtT rejected the entirety of the appellant’s claimed fear. It is not in issue that the FtT consequently declined to assess future risk. However, as I conclude above, s32 NABA requires consideration of future risk (and subsequently sufficiency of protection and internal relocation) only if both a Convention reason and subjective fear of persecution for that reason are made out.

17. In circumstances where the FtT had rejected the appellant’s claimed basis for being at risk, and the appellant had argued no alternative basis for being at risk, the FtT did not err in declining to undertake a forward-looking risk assessment. Moreover, the FtT was no obligation to give any further reasons for so declining, having directed itself expressly at [16]-[17] to the provisions of s32 as explained in JCK. It follows that none of the grounds disclose an error of law.

Materiality

18. In any event, Mr Shamsuzzoha was unable to point me to any evidence before the FtT from which it could have concluded that an ordinary member of the RPP was at real risk of persecution. The only material to which he directed me was a letter from Shreemani Neupane, Secretary of the Dang branch of the RPP which materially says:

‘I am pleased to conﬁrm that I have known [the appellant] for the last 12 years and can accurately convey his circumstances. While he was in Nepal, he was involved in Nepalese politics with the RPP, where he worked with local politicians. I can further conﬁrm that he is actively helping us even from the UK.

[The appellant’s] safety in Nepal is at risk due to his outspoken stand against the corrupt ruling party. Furthermore, his unwavering support for our party and his crusade against the current government's corruption and misrule would surely endanger his safety. We do not advise him to return to Nepal while the current regime is in power.’

19. Mr Shamsuzzoha submitted that this letter established a risk to ordinary members and that the judge was not entitled to reject this documentary evidence without evidence to contradict it. I disagree on both counts. First, this was effectively a statement from a witness not in attendance for cross-examination on matters not accepted by the respondent. The judge was entitled to give it little (if any) weight. Second, and in any event, the letter does not accept that the appellant is an ordinary member having undertaken limited activities (as found by the judge) but rather suggests to the contrary and does not expressly state that the appellant would on that basis be at risk.

20. As it was, there was evidence before the FtT (the Australian Department of Foreign Affairs and Trade Country Information Report Nepal – published in March 2024) suggesting that Nepalis were generally at low risk of violence, harassment, or discrimination on the basis of political opinion, regardless of profile (see paragraph 3.50).

21. In short, I am satisfied that the FtT would, if it had been obliged to undertake a forward-looking risk assessment on the basis of the appellant being an ordinary member of the RPP with only limited activity, have found that he was at no real risk of persecution or serious harm.

Grounds Not Pleaded

22. It is notable that the appellant does not in his grounds of appeal challenge the FtT’s approach to his appeal on humanitarian protection grounds or Article 3 grounds. Section 32 NABA and JCK do not apply to those grounds of his appeal before the FtT. Neither is a finding of subjective fear necessary for a grant of humanitarian protection, merely a real risk of serious harm on return. Such a finding is similarly unnecessary to establish a breach of Article 3 ECHR.

23. However, any such error would have been immaterial for the same reasons given above.

Notice of Decision

1. The decision of the First-tier Tribunal did not involve the making of an error on a matter of law and so stands undisturbed.

Sean O’Brien

Judge of the Upper Tribunal
Immigration and Asylum Chamber

13 October 2026