Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000847
First-tier Tribunal No: PA/55716/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 6th of May 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE HARIA

Between

ZN
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Not represented
For the Respondent: Mr Nappey Senior Home Office Presenting Officer

Heard at Field House on 28 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

Anonymity
1. The First-tier Tribunal Judge (the Judge) granted an anonymity order in this appeal and no party before me requested that it be set aside. In the circumstances, I have taken into account the starting point for consideration of anonymity orders is the principle of open justice and find that in this case because the appellant claims a risk of persecution on return to Burundi, the obligations of the United Kingdom (UK) under the Refugee Convention outweighs the principle of open justice and an anonymity order is appropriate.

Introduction
2. The Appellant, a national of Burundi, appeals with permission against the decision of the Judge dismissing his protection appeal following a hearing on 1 October 2025 conducted via the Cloud Video Platform.

3. Permission to appeal was granted by a First-tier Tribunal Judge on 16 February 2026.

4. The parties are aware of the details of the Appellant’s protection claim and I therefore do not set it out in detail. In summary, the Appellant claims he would be at risk on return to Burundi due to his political affiliation. He asserts that in 2011, whilst resident in Burundi he joined the Movement for Solidarity and Democracy Party (MSD); that he was detained and persecuted by the Burundian authorities, and that he remained at risk when he later travelled to Rwanda.

5. The Respondent accepted:
a. the Appellant’s nationality and identity;
b. that if accepted, the Appellant’s political beliefs would engage the Refugee Convention;
c. that if the core aspects of the Appellant’s claim were accepted the Appellant would not have sufficient state protection from the Burundian authorities; and
d. that if the core aspects of the Appellant’s claim were accepted, he could not internally relocate to avoid the risk of persecution.

6. The Respondent disputed the following:
a. that the Appellant has a well-founded fear of persecution; and
b. that the Appellant would be persecuted for a Convention reason.

7. The Judge found the Appellant’s claim lacked credibility and dismissed the appeal.

Permission to appeal
8. Permission to appeal was sought on three grounds contending in summary the Judge erred as follows:
a. Ground 1: by giving undue weight to discrepancies and omissions in the screening interview;
b. Ground 2: by failing to consider background evidence regarding the situation of Burundians in Rwanda; and
c. Ground 3: by failing to consider background evidence when assessing the Appellant’s ability to reintegrate.

9. Permission was granted on all grounds. In granting permission, the First-tier Tribunal Judge observed that the Judge stated that it was not necessary to consider country evidence because the Appellant did not fear persecution in Burundi. However, it was arguable that this was an error of law, as background material is relevant when assessing whether an appellant genuinely fears persecution.

Rule 24 response
10. In the Rule 24 response, the Respondent opposed the appeal on Ground 1, but conceded the Judge erred as asserted in Grounds 2 and 3.

11. In relation to Ground 1, the Respondent submitted that the Judge at [15] lawfully considered the screening interview in accordance with YL (Rely on SEF) China [2004] UKIAT 00145 and was entitled to make adverse credibility findings. The Respondent further submitted that, any error would not be material due to other unchallenged credibility findings.

The Hearing
12. A face-to-face hearing took place at Field House. There was no appearance by or on behalf of the Appellant. The appeal was called on at 10:53 after being put back in the list. No application for an adjournment had been made. I was satisfied from the Tribunal file that the Appellant had been notified of the hearing by Notice sent by email and post on 17 March 2026.

13. Mr Nappey appeared on behalf of the Respondent and was ready to proceed.

14. In the circumstances, having regard to the Overriding Objective, I was satisfied it was in the interests of justice to proceed in the Appellant’s absence.

15. I heard oral submissions from Mr Nappey who confirmed that the Respondent relied on the Rule 24 response subject to the concession made at the hearing.

16. Mr Nappey confirmed that the Respondent maintained the concession on Grounds 2 and 3. He explained the concessions were made in the light of the guidance in JCK (s.32 NABA 2022) (Botswana) [2024] UKUT 00100 (IAC) concerning the proper approach in determining an appeal to which s.32 of Nationality and Borders Act 2022 (NABA) applies. Mr Nappey confirmed the Respondent’s position in relation to Ground 3 is that it is parasitic on Ground 2 on the basis that failure to have regard to the country background evidence also infected the Article 8 findings on the Appellant’s ability to reintegrate.

17. I referred Mr Nappey to paragraph 25 of JCK where Upper Tribunal Judge Bruce sets out the conclusions on the proper approach to appeals to which s.32 NABA applies and states as follows:

“The proper approach to s32 is then to address each question expressly and sequentially. If a matter is agreed, that simply needs to be recorded by a single sentence. Addressing each question under a separate heading will aid decision-makers in identifying matters in issue between the parties, and setting out competing arguments and conclusions. Moving between the varying standards is an intellectual exercise which will require discipline, but it does not, cannot, change what decision-makers have always done in taking an ultimate, holistic view of the evidence. It is not possible to evaluate subjective fear – and in many cases Convention ground - without having some regard to the context in which that fear is said to arise. Decision makers will therefore need to consider the country background material twice over. In evaluating the matters raised in s32(2) that material will provide vital context to deciding whether, on a balance of probabilities, the tests are met. The decision-maker must then revisit that material afresh when considering s32(4), and apply the lower refugee standard of proof to the question of risk. This may prove laborious, but it is necessary in order to avoid conflating the matters of subjective fear and actual risk, or conversely, to avoid overlooking important context.”

18. The Upper Tribunal in JCK emphasised that country background material is relevant both to the assessment of subjective fear on the balance of probabilities and to the lower standard applicable to risk on return. That guidance makes clear that a failure to engage with such material constitutes an error of law.

19. Having considered paragraph 25 of JCK, Mr Nappey further confirmed that, contrary to the position taken in the Rule 24 response, the Respondent also conceded Ground 1 at the hearing. Mr Nappey accepted that the Judge erred in failing to consider the background evidence when assessing the Appellant’s subjective fear, as explained in JCK, and that this undermined the approach to credibility, including matters arising from the screening interview.

20. While there is no Country and Policy Information Note on Burundi, the Appellant relied on evidence from Human Rights Watch, the United Nations and the Immigration and Refugee Board of Canada, Amnesty International and various news reports. The Judge did not engage with that material when assessing the genuineness of the Appellant’s claimed fear or the plausibility of his account, nor when considering risk. Considering JCK, that was an error of law. The Respondent’s concessions properly reflect that the failure to consider the background evidence infected the credibility assessment, including the weight placed on matters arising from the screening interview.

21. At the end of the hearing, I gave my decision. I accept the failure to have regard to the country information and assess evidence considering what that says, is a material error of law. The Respondent concedes that, which means that the decision must be set aside.

Conclusion
22. For the reasons set out above, the decision contains an error of law. I therefore set that aside in its entirety and remit the appeal to the First-tier Tribunal for a full de novo hearing.

Notice of Decision

23. The decision promulgated on 22 October 2025 involves the making of an error of law. I set aside the decision in its entirety.

24. I remit the appeal to the First-tier Tribunal for a full rehearing before a different judge.

N Haria

Deputy Upper Tribunal Judge Haria
Immigration and Asylum Chamber

29 April 2026