Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2026-001381
First-tier Tribunal No: PA/57239/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 16th of April 2026

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN

Between

EL (ALBANIA)
(Anonymity Order Made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Rule 34 Decision at Field House on 9 April 2026

DECISION AND REASONS
Introduction
1. This is an appeal by the appellant against the decision of the First-tier Tribunal sent to the parties on 2 October 2025 dismissing his international protection appeal.
2. Permission to appeal was granted by First-tier Tribunal Judge Mills by a decision dated 18 March 2026. Judge Mills reasoned, inter alia, that it was clearly arguable that the First-tier Tribunal Judge applied something akin to the civil standard of proof to the questions of state protection (paragraph 32) and internal relocation (paragraph 42), despite his accurate self-direction at paragraph 10 that it is the lower standard that applies to these issues in this appeal.
3. The respondent filed a Rule 24 response, dated 31 March 2026. She concedes the appeal in the Upper Tribunal and requests that this matter be remitted to the First-tier Tribunal for a hearing de novo.
4. By her response, the respondent observes, inter alia:
‘It is accepted that the FTTJ materially erred when he failed to consider the risk of re-trafficking on the appellant. The FTTJ’s failure to consider this has an impact on internal re-location being a viable option for the appellant.
The R also accepts that although the FTTJ states he is aware of the required standard of a post NABA case he appears to have applied the incorrect test at [32] when he states it is “more likely than not” when the test should be “reasonably likely”. Again at [42] the FTTJ states that it is “very likely indeed” the appellant would be offered a place to live in the shelters but the test once again that should have been applied is the “reasonable degree of likelihood” one. It is unclear whether the FTTJ applied the correct standard as it appears he applied a higher standard despite acknowledging what the standard required is.’
Rule 34 Decision
5. In considering whether to proceed under rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008 I am mindful as to the circumstances when an oral hearing is to be held in order to comply with the common law duty of fairness and as to when a decision may appropriately be made consequent to a paper consideration: Osborn v The Parole Board [2013] UKSC 61; [2014] AC 1115 and JCWI v President of the Upper Tribunal (Immigration and Asylum Chamber) [2020] EWHC 3103 (Admin), at [6.1 - 6.14].
6. In the circumstances and being mindful of the importance of these proceedings to the appellant, the identified position of the parties, the expense to the parties of attending an oral hearing and the overriding objective that the Upper Tribunal deal with cases fairly and justly, I am satisfied that it is just and appropriate to proceed under rule 34.
Discussion
7. Having carefully considered the papers in this matter, I agree with the respondent as to the First-tier Tribunal materially erring in law as to the application of the appropriate standard of proof and the attendant failure to consider the risk of re-trafficking.
Notice of Decision
8. The decision of the First-tier Tribunal sent to the parties on 2 October is set aside for material error of law, with no preserved findings of fact.
9. The appeal is remitted to the First-tier Tribunal sitting in Taylor House.

D O’Callaghan
Judge of the Upper Tribunal
Immigration and Asylum Chamber

9 April 2026