Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001094
First-tier Tribunal No: PA /53439/2023
LP/03114/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

28th July 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE BURNETT

Between

A.H.
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: The appellant did not attend and was not represented.
For the Respondent: Ms Ahmed, Senior Presenting Officer

Heard at Field House on 3 July 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. He has made a protection claim.

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 28 July 2025, who dismissed the appellant’s appeal from a decision of the respondent to a refuse a protection claim. The decision of the respondent is dated 8 March 2023.
2. Permission to appeal was granted by an Upper Tribunal Judge. The grant of permission was not limited in scope.
Background
3. The appellant is a national from Myanmar. The respondent considered removal to Bangladesh or Myanmar. He claimed protection on the basis that he was a Rohingya Muslim. The respondent accepted that if it was established that the appellant is a Rohingya Muslim he could not return to either country.
4. The appellant and two witnesses gave evidence before the FtT.
The decision of the FtT
5. The FtT dismissed the appellant’s appeal. The judge set out why he found the appellant’s claim to be a Rohingya Muslim not credible between [28] and [47]. Between [31] and [41] the judge considered the oral evidence of the witnesses and statements given in support of the appellant. The judge considered the background country material [42] to [43].
Grounds of appeal.
6. There are four grounds of appeal but there is considerable overlap between the grounds. There are in essence two main challenges, the treatment of the witnesses’ evidence and the correct application of the standard of proof.
7. The first point can be further broken down. It is asserted that the judge erred and there was procedural unfairness because the judge found there had been a fraud perpetrated by the appellant upon the witnesses. There was procedural unfairness in taking this point into account against the appellant. The procedural fairness arose because the Home Office did not cross examine the witnesses, alleging that they had been duped by the appellant and no questions were put to the appellant or the witnesses. I should note that the grounds describe it as an allegation and finding that the appellant has committed a fraud upon the witnesses. It is asserted that this was not put to any witness including the appellant, thus there had been procedural unfairness to the appellant.
8. The focus is upon paragraph 41 which states:
“As I have found that there are credibility issues in his claim and looking at the evidence in the round it is clear that the Appellant knew that he did not have any other evidence to support his claim apart from his own words. Therefore, I find it reasonably likely that the Appellant could have told this information to the witnesses whom he had met when he was thinking about making a claim, in order to bolster his claim as supplementary evidence if and when needed.”
9. The second point is concerned with the judge’s finding at 41 which stated:
“…Therefore, I find it reasonably likely (my emphasis) that the Appellant could have told this information to the witnesses whom he had met when he was thinking about making a claim, in order to bolster his claim as supplementary evidence if and when needed”
10. The grounds assert that this has inverted the burden and standard of proof. A reasonable degree of likelihood is the test to establish a protection claim. The burden of which was upon the appellant. The judge stating that it is reasonably likely that the appellant could have told this information to the witnesses, left the possibility to the required standard in protection appeals, that he had not done so. The judge had thus inverted the burden and standard of proof.
The hearing and submissions
11. The appellant did not attend the hearing. His representatives notified the Tribunal on 23 June 2026 that they no longer acted for the appellant. The required representation form was completed and sent on 26 June notifying the Tribunal that the appellant was now not legally represented and invited correspondence to be sent to the appellant at his address. The address provided was the address to which the notice of hearing was sent.
12. I was satisfied that the appellant had been sent a copy of the notice of hearing through the post to his address as registered with the Tribunal. I am satisfied that the appellant is aware of the proceedings before the Upper Tribunal.
13. The case was considered at 2pm on 3 July 2026. At that stage there was no communication from the appellant as to his attendance or difficulties in attending the appeal hearing. There was no application for an adjournment. It is clear from the evidence before that FtT that the appellant has been supported by a number of individuals in the UK. There was no communications from anyone on the appellant’s behalf to enquire about the hearing.
14. I concluded that it would be just and fair to proceed with the hearing in accordance with the Upper Tribunal procedure rules, rule 38, and had regard to the overriding objectives in rule 2.
15. I should note that after starting upon the draft of the decision correspondence was received from the appellant on 5 July in the evening. This was forwarded to me on 8 July 2026. IN an email to the Tribunal the appellant stated the following:
16. I note that the appellant is still using his UK email address. There was no evidence that the appellant had in fact left the UK. The statement that he wished to withdraw the appeal appeared to unequivocal but does not state that the appellant understands the implications of his request. The subsequent information does not change my decision that it was clearly in the interests of justice to proceed with the appeal in 3 July 2026. I have further addressed the consequences of this request in the post script.
Submissions
17. Ms Ahmed made submissions addressing the grounds of appeal. I mean her no disrespect but do not set out those submissions in detail here. In essence she submitted that there was no procedural unfairness. The respondent had raised an issue in respect of the evidence of the witnesses and she referred to the review completed in the case. The judge had been entitled to make the findings and give little weight to the statements.
18. Ms Ahmed submitted that that there had been a mistake of expression in paragraph 41, and it was clear that the judge rejected the evidence of the witnesses as to whether the appellant was a Rohingya Muslim.
Analysis and conclusions.
19. Relatively recent authority (Ullah v SSHD [2024]EWCA Civ 201, Yalcin v SSHD [2024] EWCA Civ 74, and Chowdhury v SSHD [2025] EWCA Civ 36) has emphasised that the Upper Tribunal should not rush to find an error of law simply because they would have expressed themselves differently from the First-Tier Tribunal, that the Upper Tribunal should be slow to infer that a point had not been taken into account even if not expressly mentioned, and that judicial restraint should be exercised even though not every step in the reasoning was fully set out, as the issues might be set out by inference. I have borne those principles in mind.
20. I also had regard to the Court of Appeal’s dicta in Volpi v Volpi [2022] EWCA Civ 464 that it is not the role of an appellate court to come to its own conclusions on the evidence before the Judge. It is essential that there is appropriate judicial restraint before interfering with the decision of the expert first instance judge. In his general observations at para 2, Lewison LJ said that certain principles are well-settled. In particular, at sub-para (vi), Lewison LJ observed that the reasons for a judgment will always be capable having been better expressed. An appeal court should not subject a judgment to an overly textual analysis. Nor should it be picked over or construed as if it were a piece of legislation or a contract. Further, as he observed at sub-para (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 consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that it was overlooked.
21. I have considered carefully the decision of the FtT Judge. The appellant challenges the judge’s findings regarding the witnesses who gave oral evidence and the grounds assert that there was procedural unfairness.
22. Ms Ahmed referred to principles set out in Maheswaran ( SSHD v Balasingham Maheswaran [2002] EWCA Civ 173 ) as set out in the grounds of appeal. There have been a number of cases more recently, especially following Griffiths v Tui (UK) Limited [2025]UKSC 48 about procedural fairness in the context of a hearing if points or issues are not put to witnesses or experts. A very recent authority is MR (Pakistan) v SSHD EWCA Civ 473.
23. The principles set out that the judge's role is normally to decide the issues on the evidence put forward by the parties. The judge also has to ensure that the proceedings are fair. A witness who gives evidence is liable to be cross-examined. In general, a party must cross-examine a witness if he wishes to submit that that evidence should not be accepted, giving the witness an opportunity to explain any contradiction or alleged problem with their evidence. The rule has a long history. It was often referred to as the rule in Browne v Dunn (1893) 6 R 67 (per Lord Herschell, at 70-71). The purpose of the rule is not to benefit the witness, but to ensure the overall fairness of the proceedings for the parties. Maintaining fairness includes enabling a judge to make a proper assessment of all the evidence to achieve justice in the cause. The rule is directed to the integrity of the court process itself. There is no obligation to raise such a matter in cross examination if it is perfectly clear that the witness has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling.
24. The respondent’s review set out the following:
5. The witness statements: None of the witnesses have any direct experience of the A being a Rohingya Muslim. At most, they claim that they were told by the A about the A’s purported past encounters [AB, pg.131, para.8] [AB, pg.136. para.6] [AB, pg.145, para.13] [AB, pg.150, para.6]. Without direct experience of these events, the content of these assertions amounts to hearsay, upon which the Tribunal should place little weight.
6. Mr Rahman states that ‘I can tell by the way Abdul says certain words that he has a Rohingya/Chittagong accent’ [AB, pg.136, para.9]. No evidence has been provided to demonstrate that Mr Rahman is an expert in identifying individuals from Rohingya/Chittagong, so no weight should be given to this assertion.
7. The pictures: The pictures do not evidence, in any capacity, the A’s identity as a Rohingya Muslim.
8. The Tribunal directed the following: ‘specify which witnesses the respondent intends to cross examine and specify which witness evidence can be read’. The R intends to cross-examine all individuals who have provided a Witness Statement.
25. The respondent’s review clearly set out the challenge to the evidence of the witnesses. It is abundantly clear that the respondent put in issue the credibility of the appellant’s claims that he is a Rohingya Muslim. I conclude that there was no procedural unfairness to the appellant.
26. I am very conscious that an appeal to the UT from the FtT lies only on a point of law. I am also conscious that the FtT is a specialist tribunal in the field of immigration and asylum law, and on well-established authority, the Upper Tribunal should be slow to interfere with the judgments of that tribunal.
27. I conclude that many of the criticisms which have been made on behalf by the appellant of the judge’s reasoning in the present case do not, in my view, amount to errors of law.
28. The judge set out the appellant’s claims. The evidence provided to the judge was set out. The judge stated that he had regard to all the evidence in reaching the decision. Although there is, what I will refer to as a loose expression, recorded in the decision in [41], I am satisfied that the point being made was that the judge did not give weight to the witnesses’ evidence that the appellant was a Rohingya Muslim. The judge rejected the appellant’s evidence and concluded that the appellant had not established his claim.
29. The decision should not be picked over as if it were a statute and there should not be an overly textual analysis. The part in paragraph 41 which I have set out above could have been better expressed. The judge set out his reasons in the preceding paragraphs regarding the witness evidence. The point being made was that looking at the totally of the evidence, the timing of the claim, the contradictions, and the lack of any expertise to analyse the appellant’s language meant that little weight was given to the witnesses’ evidence that the appellant is a Rohingya. This was a finding open to the judge on the evidence presented.
30. I conclude that the judge provided adequate reasons for his findings rejecting the evidence of the witnesses that the appellant was a Rohingya Muslim.
31. I remind myself again of the principles. In particular, at sub-para (vi) of Volpi v Volpi (set out above), Lewison LJ observed that the reasons for a judgment will always be capable having been better expressed. An appeal court should not subject a judgment to an overly textual analysis. Nor should it be picked over or construed as if it were a piece of legislation or a contract. Further, as he observed at sub-para (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 consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that it was overlooked.
32. The judge directed himself appropriately to the burden and standard of proof. I am not satisfied that the judge erred in this regard.
33. I am not satisfied that the grounds of appeal set out any material errors of law.
34. I conclude that the grounds amount to no more than a disagreement with the findings made.
Postscript
35. The appellant stated in his email that he wished to withdraw his appeal. The reason he gave is that he has left the UK. There was no evidence provided that he has in fact left the UK. If he has that would lead to the abandonment of the appeal (see Rule 17A). An appellant is entitled to withdraw his appeal. The Upper Tribunal Procedure rules provide for the withdrawal of an appeal, rule 17. Other than stating he has left the UK the appellant has not set out why he wants to withdraw his appeal and that he understand the implications of such a withdrawal. Given the late nature of the withdrawal, and that the appellant could simply request for it to be re-instated under rule 17, claiming he misunderstood the implications of what he stated, or for other reasons and given the appeal hearing was complete, I consider it is in the interest of justice to decide whether there was an error of law. I have thus not accepted the withdrawal request in accordance with rule 17.

Notice of Decision
Appeal dismissed
The decision of the First-tier Tribunal shall stand.

Iain Burnett

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

9 July 2026.