Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001095
First-tier Tribunal No: HU/62207/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

29th May 2026

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

AM
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr E Fripp, of Counsel, instructed by Rashid & Rashid Law Firm Ltd
For the Respondent: Mr E Terrell, Senior Home Office Presenting Officer

Heard at Field House on 5 May 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

Introduction

1. The appellant is a citizen of Albania born in 1995. He came to the UK illegally in 2014 and made an asylum claim which was refused and his appeal dismissed at a hearing he did not attend. In May 2017 he was convicted of possessing class A drugs with intent to supply and possession of a bladed instrument and given a prison sentence of 33 months. A deportation order was made against him and he was deported to Albania in December 2017. The appellant then re-entered the UK in breach of the deportation order in either late 2018 or early 2019. On 31st July 2021 he married in the UK. He was then convicted of further offences including possessing class A drugs and driving whilst disqualified and without insurance in November 2022. In 2022 he got divorced but formed a relationship with a Polish citizen with whom he has a child born in the UK on 9th July 2025. In February 2023 the appellant made further asylum and human rights representations. In the decision under challenge the respondent found that the appellant had not rebutted the presumption in s.72(2) of the 2002 Act that he posed a danger to the community and that he failed to meet any of the Article 8 ECHR exceptions to deportation or to show that there are very compelling circumstances which outweigh the public interest in his deportation, and refused his protection claim. The appellant’s appeal against this decision was dismissed by a First-tier Tribunal Judge after a hearing on the 24th November 2025.
2. Permission to appeal was granted by a Judge of the First-tier Tribunal on 9th March 2026 on the basis that it was arguable that the First-tier judge had erred in law by finding that Devaseelan v SSHD [2002] UKIAT 72 created a burden on the appellant to show that there is a good reason to depart from the earlier findings of the Tribunal. In addition it is found to be arguable that the arguably wrong direction on Devaseelan led to a material error in the Article 3 ECHR assessment; that comparing the 2016 account with the current account was not a proper assessment of credibility; that there was insufficient engagement with the country of origin documentary evidence when assessing sufficiency of protection; and that if the Article 3 assessment was flawed so arguably was the Article 8 ECHR
3. The matter now comes before me to determine whether the First-tier Tribunal had erred in law, and if so whether any such error was material and whether the decision of the First-tier Tribunal should be set aside.
Submissions – Error of Law
4. In the grounds of appeal and in oral submissions from Mr Fripp it is argued, in short summary, that the First-tier Tribunal erred in law as follows.
5. Firstly, it is argued, that the First-tier Tribunal erred by instead of simply treating the first decision of the First-tier Tribunal as a “starting-point” (which it is correctly said to be at some points in the decision) there is instead a direction at paragraph 49, and impliedly at paragraph 51, of the decision, that the appellant bears the burden of demonstrating good reasons to depart from the findings of the previous Tribunal. As commented by the Court of Appeal in Djebbar v SSHD [2004] the guidance on second appeals means that there is a fundamental obligation on each judge to independently decide each appeal on its own merits not withstanding a previous appeal had taken place. It is argued that as a result the First-tier Tribunal failed to note that there were different issues before it than were before the original Tribunal. In particular it was necessary to consider whether the appellant’s claim that he owed a debt to a criminal gang was supported by his illegal entry and drugs convictions and by the evidence he had gone to hospital as a result of injuries caused by a knife. It is argued that it should have been considered whether, despite the appellant putting forward before the original First-tier Tribunal a false claim based on a blood feud, potentially the current claim that he was at risk from a criminal gang was true. It is argued that the First-tier Tribunal failed to consider the plausibility of this current claim, based on the above known facts, even if the appellant started from a finding that he was not a credible witness as found by the previous First-tier Tribunal. It is argued that the First-tier Tribunal fails to recognise it had an entirely different, and plausible, claim before it to determine.
6. It is argued that the First-tier Tribunal further erred in the consideration of the evidence relating to sufficiency of protection and internal relocation by providing an oversimplified view at paragraph 64 of the decision, when the evidence in the CPIN Albania Actors of Protection, February 2023, is that whether sufficiency of protection exists depends on individual circumstances. It is also argued that there was also a failure to consider that the appellant had only returned to Albania for a very short time in 2017/2018. The First-tier Tribunal also fails to look at the s.8 Asylum and Immigration (Treatment of Claimants etc.) Act 2008 issue of delay in the round when assessing credibility. As a result it is argued that the Article 3 ECHR determination is unsafe.
7. Secondly, it is argued, that there is an error of law in the Article 8 ECHR decision as that depends on the findings in the Article 3 ECHR analysis being correct.
8. In a Rule 24 notice and in submissions from Mr Terrell it is argued for the respondent, in short summary, as follows.
9. With respect to the first ground it is argued that the First-tier Tribunal did not misdirect itself with respect to Devaseelan as it is clear the original First-tier Tribunal decision was viewed as the starting point, and whilst there is no formal burden on the appellant to demonstrate good reasons to depart from the previous judge’s findings that there are findings made by the First-tier Tribunal which show why the decision of the original First-tier Tribunal is not departed from, and it is clear that the evidence relating to matters which have happened after that decision was considered. It was open to the First-tier Tribunal Judge to find that the change of the basis of the claim, inconsistencies and discrepancies weighed against the appellant and that he had not shown that a debt to a criminal gang existed. It is argued that any misstatement of the Devaseelan test ultimately had no impact on the decision as the current claim was found not to be credible. It is also argued that there is adequate consideration of the country-of-origin materials including the CPIN. As it is argued there is no error in the Article 3 ECHR determination there is also no error in the Article 8 ECHR decision.
Conclusions – Error of Law
10. I find that the statement of law with respect to Devaseelan at paragraph 49 of the decision is not entirely correct. It was correct for the First-tier Tribunal Judge to have directed that “The previous Tribunal’s findings are the starting point in assessing the appellant’s present claim” but not that the appellant “bears the burden of demonstrating good reason to depart from them.” The second part of the direction ought instead to have been that a more neutral one that the new evidence and case before the First-tier Tribunal should be examined and it considered whether the appellant was entitled to succeed or not from the starting point of the findings of the first First-tier Tribunal. As Mr Fripp, has set out in his grounds Devaseelan does not create a presumption or impose a formal legal burden on the appellant.
11. However I find that in fact the First-tier Tribunal did consider the fresh claim made by the appellant, and did explicitly acknowledge at the beginning of the findings on Article 3 ECHR at paragraphs 44, 45 and again at 50 of the decision that the claim before the Tribunal was a completely different one: it being accepted by the appellant that his blood feud claim had been, as found by the first First-tier Tribunal, entirely fabricated and that he now relied upon a claim that he was at real risk of serious harm due to a criminal gang. The key matter therefore that formed a starting point with this appeal from the previous findings was that appellant was not a credible witness, and clearly at paragraph 45 of the decision this First-tier Tribunal Judge makes it plain that it would be possible for the appellant to be found a witness of truth depending on consideration of the evidence relating to this new claim.
12. This First-tier Tribunal then proceeds from paragraph 50 onwards to consider the evidence in relation to the new claim, and I find there is no erroneous implementation of an additional burden of proof on the appellant in the way this is approached. It was unarguably open to the First-tier Tribunal to find that the change in history, and the reason why the debt to a criminal gang had not been advanced originally did not add to the appellant’s credibility as there was no cogent explanation given as to why this claim was not advanced originally given the debt was said to be owing at that point. Further the history of a debt was found not to be consistent with the original history of his journey being paid for by an uncle, as set out at paragraph 52 of the decision. At paragraph 53 it is found that the amount of the debt was given as £8000 in 2023 in the asylum interview but £15,000 in the 2024 witness statement, and the attempted explanation for this change added a further inconsistency as the oral evidence was that the debt had been increased over time but in the witness statement it stated that the demand was £15,000 on arrival in the UK. The First-tier Tribunal then looks at evidence of the appellant’s claimed stabbing in Coventry in 2016 at paragraphs 56 and 57, but it is noted that although there is medical evidence of a wound there is no police report despite the appellant saying he had reported the matter to the police, and that the hospital recorded the wound was caused by thieves. The explanation of the inconsistency about the cause of the wound given by the appellant in oral evidence was that it was easier to tell the hospital that it was caused by thieves than give a true explanation, and this was entirely rationally found to further undermine the appellant’s credibility. At paragraphs 59-63 of the decision the First-tier Tribunal finds further inconsistencies with respect to the chronology of the attack by the gang said to have taken place in Albania and the medical evidence in support of this, and notes the lack of police reports which were claimed to have been made. I find that this assessment is unarguable properly reasoned and lawful, and note that this is primarily done without consideration of the delay in claiming asylum, which is found simply to further damage the credibility of the claim considering the risks which existing on the appellant’s return to the UK in 2018, for the reasons set out at paragraphs 66 to 67 of the decision.
13. I do not find that given the weight of inconsistencies and discrepancies with the evidence in support of the claim advanced by the appellant that it was an error of the First-tier Tribunal not to consider that the fact that the appellant had entered the UK illegally, had suffered a wounding from thieves and committed drugs crime might give some sort of general plausibility to his claim to be in debt to a criminal gang. It is clear from paragraph 68 of the decision, as explicitly stated on consideration of the evidence in the round, that the First-tier Tribunal does not accept the account of a real risk of serious harm, with previous attacks in Albania and the UK, from a criminal gang as a result of a debt, and I find that this decision was rationally made and more than adequately reasoned applying the lower civil standard of proof, which is explicitly referenced at paragraph 69 of the decision.
14. As I find that the conclusion of the First-tier Tribunal, that there was no Article 3 ECHR risk of serious harm established to the lower civil standard, is entirely without legal fault I find that the incorrect direction at paragraph 49 of the decision was without any material impact on the consideration of the appeal. As such there is no material error in the decision that the appellant would not be at real risk of serious harm on return to Albania, and thus the parts of the decision on sufficiency of protection and internal relocation can have no material impact on the dismissal of the appeal. As the Article 3 ECHR determination contains no material errors the Article 8 ECHR decision likewise is not contaminated by any error.

Decision:
1. The making of the decision of the First-tier Tribunal did not involve the making of a material error on a point of law.
2. The decision of the First-tier Tribunal dismissing the appeal on human rights grounds is upheld.

Fiona Lindsley

Judge of the Upper Tribunal
Immigration and Asylum Chamber

11th May 2026