Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001123
First-tier Tribunal No: PA/64487/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

2nd June 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE SMEATON

Between

ME
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr K Pullinger, counsel instructed by Good Advice UK Limited
For the Respondent: Mr M Pugh, senior presenting officer

Heard at Field House on 7 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 him. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. The Appellant is a national of Egypt.
2. He appeals, with the permission of the First-tier Tribunal (‘FTT’) (Judge Roots) against the decision of the FTT (Judge Rakhim) dated 16 November 2025. The FTTJ dismissed the Appellant’s appeal against the Respondent’s refusal dated 29 April 2024 of his protection and associated human rights claim made on 31 July 2022.
Background
3. The Appellant claims to be at risk on return because of his perceived political opinion. He claims to be at risk from both the state, as a perceived member of the Muslim Brotherhood, and non-state actors, namely the Muslim Brotherhood.
4. The claim was refused on 29 January 2024. The Respondent does not accept that the Appellant’s account is credible.
The appeal to the FTT
5. The Appellant appealed to the FTT. He attended the appeal hearing represented by counsel, instructed on a direct access basis. The appeal was dismissed, predominantly on credibility grounds. The FTTJ did not accept that the Appellant had given a credible account of events in Egypt and did not feel able to place weight on the documents he had provided as evidence that he had been convicted of a crime in his absence.
The appeal to UT
6. The Appellant sought permission to appeal to the UT, out of time, on three grounds of appeal as follows:
(1) The FTTJ misdirected himself on the proper approach to the two-stage test under s.32 of the Nationality and Borders Act 2022 (‘the 2022 Act’), failing to take the Appellant’s case at its highest when assessing whether there is a Convention reason and whether the Appellant fears persecution for that reason. That error was said to be material on the basis that it vitiates the entire structure of the assessment.
(2) The FTTJ adopted an unlawful approach to the documentary evidence, applying too high a standard to the authenticity of those documents, failing to address them holistically, rejecting them solely due to doubts about provenance, and falling properly to take into account their content and gravity.
(3) The FTTJ failed to apply anxious scrutiny to the Appellant’s vulnerability and memory issues and erred by treating the absence of a formal vulnerability designation as determinative, failing to apply anxious scrutiny to the impact of psychological difficulties on memory, consistency and recall, and failing to consider that trauma and fear may lead to inconsistencies even in the absence of a formal diagnosis.
7. Permission was granted on all three grounds by FTTJ Roots, although he expressed uncertainty about grounds two and three.
The error of law hearing
8. I was provided with a composite bundle of 198 pages. There was no rule 24 response from the Respondent.

Ground 1
9. Mr Pullinger took me to s.32 of the 2022 Act and the relevant parts of JCK (s.32 NABA 2022) Botswana [2024] UKUT 00100. He maintained that the structure to be followed at s.32 NABA 2022 was mandatory, not best practice, and that the FTTJ had failed to follow that structure. He had not taken the Appellant’s case ‘at its highest’ when considering whether there was a Convention reason and had instead embarked on a detailed credibility exercise; something he said the UT in JCK expressly warned against. He noted that the Respondent had accepted in the Refusal Decision that there was a Convention reason and that the issue was not identified as a matter in dispute at paragraph 11 of the determination. The error was material, Mr Pullinger submitted, because it resulted in a muddled decision which did not follow the structure demanded by the legislation.
10. Mr Pullinger acknowledged, in response to a question from me, that the ground of appeal as drafted was wrong, in that the FTTJ was not required to take the Appellant’s case at its highest when considering whether the Appellant fears persecution for a Convention reason established (s.32(2)(b) 2022 Act).
11. Mr Pugh did not accept that the FTTJ had fallen foul of the approach in JCK. He submitted that s.32(2)(a) requires a determination to be made on the balance of probabilities. ‘Taking the case at its highest’ does not mean that the FTTJ must proceed on the assumption that the Appellant’s account (in respect of whether there is a Convention reasons) is true. He submitted that the FTTJ was, therefore, entitled to take into account obvious credibility concerns at that first stage.
12. He submitted that, in any event, the error was not material. The FTTJ had gone on to consider the Appellant’s case in the alternative and gave clear reasons for rejecting it on credibility grounds. That reasoning was not infected by any error at the first stage.
13. I agree with Mr Pugh that section 32(2)(a) of the 2022 Act, as interpreted in JCK, does not require the decision-maker to assume whether, if the Appellant’s case were true, it would engage the Convention. If that were the case, there would be no need for the decision-maker to determine anything on the balance of probabilities. Paragraph 13 of JCK, properly interpreted, makes clear that in situations where the protected characteristic is not clear, the matter will need to be evaluated on the available evidence in the round. The FTTJ has done just that.
14. Even if I am wrong, and the FTTJ’s evaluation relied too heavily on adverse credibility findings at the first stage, I do not accept that any such error was material. Mr Pullinger could not identify any specific impact on the findings on risk caused by the alleged failure to follow the structure in the legislation and JCK. The FTTJ, having found that there was no Convention reason, nevertheless went on to consider s.32(2)(b) and s.34 2022 Act in the alternative. He set out his reasons why he was not satisfied, on the balance of probabilities, that the Appellant feared persecution as a result of any protected characteristic and why he was not satisfied, on the lower standard proof, that the Appellant would be persecuted on return and unable to seek protection.
15. I acknowledge that there was a potential procedural unfairness in the FTTJ proceeding as he did, given that the question of whether there was a Convention reasons was not identified by the Respondent in the Refusal Decision (or by either party at the hearing) as being a matter in dispute. However, for the same reasons as above, I do not accept that any such error was material. The appeal was not dismissed on the basis that there was no Convention reason. It was dismissed on credibility grounds and any error committed by the FTTJ in addressing, or the manner in which he addressed, s.32(2)(a) 2022 Act did not affect those findings.
16. Accordingly, I do not accept that there was any material error of law in respect of ground 1.
Ground 2
17. Mr Pullinger submitted that the FTTJ imposed too high a standard of proof on the Appellant when considering the reliability of the documentary evidence. He maintained that the FTTJ had failed properly to engage with the content of the documents, had unfairly concluded that it was implausible that the Appellant would only seek documentary evidence after the claim was refused by the Respondent, had gone too far when suggesting that the Appellant’s friend (referred to as ASAA) could have provided a statement in support of the claim before the two fell out, and failed to consider all possible explanations for why the prosecution document contained a different account to that given by the Appellant.
18. Mr Pugh maintained that the FTTJ considered the documentary evidence appropriately, in line with the guidance given in Tanveer Ahmed v SSHD [2002] Imm AR 318.
19. I agree with Mr Pugh. The FTTJ did not reject the documents on one sole ground but instead considered the documents holistically, taking into account his concerns about their provenance, the inconsistencies in the Appellant’s evidence, and the timing of their production. That reflects a proper application of the guidance in Tanveer Ahmed, as endorsed by Ouseley J in CJ (on the application of R) v Cardiff County Council [2011] EWHC 23. Documentary evidence does not carry with it a presumption of authenticity, which specific evidence must disprove, failing which its content must be accepted. Nor does oral evidence. What is required is an appraisal by the Tribunal of the weight that can be given to a particular element of the evidence taking into account its nature, provenance, timing, and background evidence, in the light of all the other available evidence in the case, especially that given by the Appellant.
20. Accordingly, I do not accept that there was any material error of law in respect of ground 2.
Ground 3
21. Mr Pullinger submitted that the FTTJ failed to consider the Appellant’s vulnerability when assessing credibility. He said that the only place in which the Appellant’s memory issues were considered as a potential explanation for inconsistencies in his evidence, was when the FTTJ addressed the discrepancy in the Appellant’s evidence as to the date he left Egypt. The Appellant, however, said that this was a translation issue, not a memory issue.
22. Mr Pugh noted that the FTTJ had expressly indicated that he would take the Appellant’s claimed memory difficulties into account but that there was no evidence that the Appellant had relied on alleged memory issues to explain any specific inconsistences.
23. I do not accept that the FTTJ erred as alleged. The FTTJ considered any potential vulnerability as part of his assessment on whether to treat the Appellant as a vulnerable witness. In so doing, he noted that the Appellant had been able to engage with the proceedings and to understand questions and give evidence, that there was a lack of medical evidence suggesting that the Appellant suffers from depression, anxiety, nightmares or difficulty in recalling dates, and that the Appellant did not raise any concerns in his screening interview about mental health conditions. It was on the basis of that holistic assessment, and in the absence of a formal application from his representative, that the FTTJ declined to treat the Appellant as a vulnerable witness. In light of those conclusions, it was not necessary for the FTJ to consider the possibility of memory problems when addressing every potential credibility point taken against the Respondent.
24. Accordingly, I do not accept that there was any material error of law in respect of ground 3.
Notice of Decision
25. The decision of the FTT (Judge Rakhim) dated 16 November 2025 did not contain a material error of law.
26. The appeal is dismissed.

J. Smeaton

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

15 May 2026