Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000947
First-tier Tribunal No: PA/01523/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

28th July 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE BUTLER

Between

SS
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Afzal, solicitor, instructed by Aziz Sinclair Solicitors
For the Respondent: Ms Lecointe, Senior Home Office Presenting Officer

Heard at Field House on 2 July 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
Determination below and grounds of appeal
1. The Appellant is a citizen of India who appeals a decision dated 13 March 2024 refusing his asylum, humanitarian protection, and human rights claims. His claim is based on his membership of Shiromani Akali Dal (Amritsar) (“SAD(A)”) and support of the Khalistan movement. His account is that he was involved in political activism and in 2018/19 this brought him to the attention of the authorities. The Respondent’s refusal did not accept his claim as true.
2. In a determination dated 14 November 2025 FTTJ Cockburn (‘the Judge’) accepted that the Appellant was a member or supporter of SAD(A) and ideologically aligned with the beliefs of the Khalistan movement. However, the Judge did not accept that the faced adverse attention from the authorities.
3. The Appellant appeals with permission on four grounds, namely:
a. The Judge did not apply the correct standard of proof when rejecting the Appellant’s Convention claim on credibility grounds, having applied the balance of probabilities.
b. The Judge erred in the assessment of credibility and failed to assess credibility in the round, including by treating the Appellant’s denial of detention in his screening interview as a significant adverse factor.
c. The Judge failed to consider the documentary evidence holistically or give adequate reasons for rejecting them.
d. The Judge gave inadequate reasons or failed to holistically assess the evidence of DS.
4. For the reasons given below, I accept that the Judge made material errors of law in the assessment of the Appellant’s credibility, as advanced by the Appellant under his Ground 3.
Analysis
5. Ground 1. It was not disputed by either party that the Judge applied the balance of probabilities when assessing the Appellant’s asylum claim. This is clear from the Judge’s reasoning. It is also not in dispute that the Judge considered the Appellant’s humanitarian protection and Article 3 claims by reference to the lower standard of proof (as it clear from §§26-27 of the determination).
6. The Judge applied s. 32 of the Nationality and Borders Act 2022 when applying the balance of probabilities standard. S. 32.2(b) of that Act reads as follows: “The decision-maker must first determine, on the balance of probabilities, […] 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”.1 This is a mandatory direction to decision-makers to apply the balance of probabilities to the question of whether a person “does in fact fear” the claimed persecution.
7. In JCK (s. 32 NABA 2022) (Botswana) [2024] UKUT 00100 (IAC) UTJ Bruce provides helpful and nuanced guidance on this provision. Key conclusions in JCK are:
“… decision makers could be forgiven for thinking that this question is all about the credibility of the claim.” (§16);
“The provision simply requires the decision maker to consider whether the asylum seeker “does in fact fear”: it is what is otherwise referred to as the ‘subjective fear’ test. Assessing that fear is a discrete exercise from assessing whether past events occurred. […] case. There will be cases in which the acceptance or rejection of historical facts presented by a claimant will inform the decision on whether or not he is “in fact afraid”. As it happens, this is one of them. That is not however always the case. Section s32(2)(b) asks decisionmakers to consider a different question, and in doing so relegates the matter of ‘credibility’ to where it belongs in the refugee risk assessment: it can be relevant, but will not on its own be determinative” (§17)
8. The Appellant’s argument, as set out in the grounds of appeal, is that the Judge erred in applying the balance of probabilities standard to his asylum claim. In oral submissions, Mr Afzal also criticised the Judge for failing to apply the structured approach to s. 32 set out in by UTJ Bruce in JCK and stated that the lower standard was not applied to future risk.
9. I do not consider that the Judge erred in considering the credibility of the Claimant’s account on the balance of probabilities. The Judge clearly and expressly set out the correct approach, including the structured approach, at §§8-9 of the determination.
10. I do not consider that the Judge can be criticised for rejecting the Appellant’s protection claim, having disbelieved his account applying the balance of probabilities. The sole issue for the Judge was whether the Appellant was at risk because of his political activities in India, which the Appellant claimed had led to adverse attention from the authorities. Having found that he had not come to adverse attention, it followed that his claim should be dismissed. I do not consider that the Judge failed to apply the lower standard when finding there to be no real risk.
11. In any event, I do not consider that any error would be material. The Judge reached the same conclusion on credibility under humanitarian protection and Article 3 ECHR, so it is clear that any error in the application of the standard of proof did not affect the outcome.
12. Ground 2. The Appellant contends that the Judge’s approach to credibility was unlawful as the Appellant’s failure to mention his detention at screening interview was treated as “determinative”. I accept Mr Afzal’s submission that screening interviews are not designed to take a full account of someone’s asylum claim and I accept (as explained by the Court of Appeal in JA (Afghanistan) v SSHD [2014] 1 WLR 4291, §24 that there are good contextual reasons why an account may be confused or incomplete when given at screening interviews.
13. At §16 the Judge concludes that this was a “significant discrepancy”. However, at §17 the Judge explains that “I have taken into account that it is realistic asylum applicants may not disclose every aspect of their case at the screening interview stage and may experience degrees of stress and anxiety within what is likely to be an unfamiliar process. However, in the appellant’s case I find that inadequate explanation was provided when considered alongside further discrepancies and issues in his evidence.” Therefore, the Judge’s position was that this was not determinative, but was rather a significant factor which, when taken in the round with further discrepancies and issues in his evidence, lead to a negative conclusion on credibility. I am unable to accept the submission that the Judge failed to weigh the screening interview in the round; this is explicitly what the judgment states was done and I see nothing in the judgment to suggest it was not.
14. Ground 3. The Appellant submitted that the Tribunal failed to assess the documentary evidence holistically or give intelligible reasons. He makes three specific critiques, which I will deal with in turn.
15. First, the Appellant submits that the Judge placed no weight (§19) upon multiple affidavits from the Appellant’s father, a journalist and other local associates in India, which refer to the Appellant leaving India due to two violent attacks by members of the Congress Party. The Judge places no weight upon them because “it is not the appellant’s clear evidence that he suffered two violent attacks – if he had, it would be reasonable to expect him to cite this at the asylum interview rather than say he was able to walk away or at the very least address the point in his appeal statement(s)”.
16. I accept that this was an error. The Judge was required to take into account every factor that tells in favour of the appellant as a matter of anxious scrutiny. In the Appellant’s asylum interview he expressly stated: “I have received threats to be killed and also I have had a couple of attacks earlier”. The reference to being able to ‘walk away’ came in the Appellant’s response to a question about a single incident. At question 74 he was asked: “when you said you would not join the party or sell drugs or alcohol, what happened next?”, to which the Appellant answered: “nothing happened I just walked away”. In a follow-up question about whether there was any violence on that occasion he said “nothing happened like that at that time” (which I take to imply there was violence on at least one other occasion). When asked if he had been involved in any other incidents involving the Congress Party or BJP the response is recorded as “Yes – to be continued”. It is not entirely clear to me what ‘to be continued’ is referring to and whether there was a suggestion that this point would be picked up again, either in that interview or post-interview submissions (in the event, I understand that this did not happen). However, I do not consider that the Judge could, consistent with anxious scrutiny, conclude that he had failed to refer to two violent attacks at his asylum interview. While the Appellant’s witness statement is in places unclear and appears to be unfinished as in places it contains incomplete references, such as “Dr [Expert name]”, I note that he refers to being struck ‘a couple of times’ during his detention in August 2019. I note that it does not refer to him being attacked in 2018, which the supporting witnesses refer to.
17. In the circumstances, while I have sympathy for the Judge confronted with evidence which was confused and in places inconsistent, I cannot conclude that the Judge applied anxious scrutiny when holding against the Appellant that he failed to raise this in his asylum interview. This is a significant error because the Judge relied upon this reasoning to reject multiple letters which purport to corroborate the Appellant’s account. It was a significant step to conclude that these letters were, essentially, fraudulent (or, putting it at its lowest, deserving of no weight) in circumstances where the supposedly conflicting evidence was not duly considered and the reasons given reflect an incorrect understanding of the asylum interview.
18. Second, the Appellant criticises the Judge for rejecting the letters adduced regarding the Appellant’s hospitalisation on the basis that these incidents were not expressly mentioned in his interview or statement. Again, I have sympathy for the Judge that the explanations given by the Appellant at interview and in his witness statement were not clear. However, this evidence was at a minimum consistent with the affidavits before the Judge and should have been weighed in the balance alongside them (I have already found that the Judge was wrong to exclude the affidavits in their entirety). I again accept that this shows a failure to apply anxious scrutiny to material which, at least prima facie, supports the Appellant’s case.
19. Third, the Appellant complains that the 104-page President’s letter was given little weight because it was “long and unfocused” and did not mention detention. It is not clear to me what the precise error of law being alleged is. In any event, I cannot identify any error in the Judge’s reasoning. The letter is extremely long and is unfocused. There is very little in the letter about the Appellant’s activities and, insofar as it was capable of supporting his factual case, it essentially goes no further than confirming his political affiliation, which the Judge accepted.
20. I therefore find errors of law, namely process unreasonableness, in the Judge’s failure to apply anxious scrutiny to the affidavit and medical evidence. In reaching this conclusion, I am mindful of the repeated guidance of the Court of Appeal about the hesitancy with which an appellant court should approach overturning a first-instance judge’s decision, especially in circumstances where they have had the benefit of hearing oral evidence. I bear in mind that Volpi v Volpi [2022] EWCA Civ 464 confirms at 2(i) that ‘An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong’ as well as that Court’s guidance in Lowe v SSHD [2021] EWCA Civ 62 relying on Fage UK Ltd. v Chobani UK Ltd [2014] EWCA Civ 5 at §114. However, for the reasons given above, I am persuaded that, notwithstanding the issues in the Appellant’s evidence to which the Judge points, the Judge did err in rejecting the corroborative evidence for the reasons given.
21. Given my findings above, I do not need to continue to consider the complaints raised by the Appellant under Ground 4. In any event, I consider that they amount to not more than disagreement with the Judge’s analysis and do not demonstrate any error of law.
Remittal or rehearing
22. Both the Appellant and Respondent invited me to remit this matter to the First-tier Tribunal in the event I found errors in the Judge’s reasoning on credibility. I have done so and I agree that it is appropriate for this matter to be remitted to the First-tier Tribunal for a full rehearing. In light of the errors in the Judge’s credibility analysis, I do not preserve any factual findings.
Notice of Decision
23. The appeal is allowed.
24. The appeal will be remitted to the First-tier Tribunal for a full de novo hearing with no factual findings preserved.

Miranda Butler

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 July 2026