Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001504
First-tier Tribunal No: PA/01192/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

31st July 2026

Before

UPPER TRIBUNAL JUDGE REEDS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

AA
Respondent

Representation:
For the Appellant: Mr Wain, Senior Presenting Officer on behalf of the Secretary of State
For the Respondent: Ms Brakaj, Solicitor Advocate on behalf of AA

Heard on 8 July 2026

DECISION AND REASONS

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.

1. The Secretary of State appeals, with permission, against the determination of the First-tier Tribunal (Judge Ali) promulgated on 9 February 2026. By its decision, the Tribunal allowed the appeal against the Secretary of State’s decision dated 27 February 2025 to refuse his protection and human rights claim ( Article 3 of the ECHR).
2. The FtTJ did make an anonymity order, and no grounds were submitted during the hearing for such an order to be discharged. Anonymity is granted because the facts of the appeal involve a protection claim and that his rights protected under Article 8 outweigh the right of the public to know his identity as a party to these proceedings, the latter being protected by Article 10 of the ECHR. The anonymity order is detailed above.
3. Although the Appellant in these proceedings is the Secretary of State, for convenience I will refer to the Secretary of State for the Home Department as the respondent and to the appellant before the FtT as “the appellant,” thus reflecting their positions before the First-tier Tribunal.
4. The appellant is a national of Yemen. He entered the United Kingdom on 7 September 2024 and claimed asylum. The basis of that claim was that he was in fear of the Houthi’s and had feared recruitment by them in Yemen and in the context of the ongoing war in Yemen. He left Yemen legally by air on 7 March 2024 and travelled to Egypt where he obtained a visa for Turkey before travelling to Greece. He arrived in Greece in April or May 2024 and was granted asylum in June 2024 (p133CB). He left Greece because he stated that he was not given assistance by the Greek authorities for housing or support and as result of the poor, harsh and inhumane living conditions there and travelled to Germany in or about September 2024.
5. The respondent refused his claim in a decision taken on 27 February 2025. It was accepted that he was a national of Yemen and that there was an ongoing war there and that the appellant had received adverse attention from the Houthis ( see paragraphs 6-7 of the decision letter). His claim that he had been granted asylum in Greece was accepted however the respondent considered he would be able to return to Greece without risk because he held status in Greece and that there was no reason why he could not return and live there. The decision recorded that the appellant had not raised any fear of persecution in Greece (FR 8 9). c) and that he had provided no evidence to suggest he would be unable to report the loss of his documents to the police and contact Regional Asylum Offices to obtain replacement documentation which would allow him to re-enter Greece.
6. The appellant appealed that decision which led to the appeal before the FtTJ on 19 November 2025. At that hearing the respondent was not represented and the appeal was heard in their absence. In a decision promulgated on 9 February 2026, the FtTJ allowed the appeal on human rights grounds (Article 3 of the ECHR ) on the basis that returning the appellant to Greece where he had refugee status would result in him suffering conditions which would be so inhumane and degrading that this would result in a breach of Article 3 of the ECHR (see conclusion at paragraph 38).
7. The respondent sought permission to appeal that decision and on 24 March 2026, FtTJ Boyes granted permission. Following that grant of permission a Rule 24 responses filed on behalf of the appellant opposing the appeal.
8. The appeal came before the Upper Tribunal. The appellant was represented at this hearing by Ms Brakaj and Mr Wain, Senior Presenting Officer appeared on behalf of the respondent. I heard submissions from each of the parties and Ms Brakaj relied upon a Rule 24 response provide on behalf of the appellant. It is not necessary to set out those submissions as they are a matter of record and I intend to refer to them in my analysis of the issues raised in this appeal.
The decision on error of law:
9. I therefore turn to the issue of whether the decision of the FtTJ involved the making of an error on a point of law.
10. At the outset I remind myself of the need for appropriate judicial restraint in the Upper Tribunal before interfering with a decision of the First-tier Tribunal. The need for such restraint has been made clear on numerous occasions over recent years. On the facts of this appeal, the respondent did not appear before the FtT and the FtTJ heard evidence from the appellant. I take that into account when undertaking my assessment of the issues raised in this appeal. There is no requirement for reasons for reasons and I are not looking for a perfect, or even the best possible, decision. I am concerned with whether the respondent can identify errors of law which could have had a material effect on the outcome and have been properly raised in these proceedings. In Walter Lilly & Co Ltd v Clin [2021] EWCA Civ 136 at paragraph 85 Carr LJ (as she then was) summarised some of the circumstances in which appellate interference with findings of fact might still be justified. They include:
i) Where the trial Judge fundamentally misunderstood the issue or the evidence, plainly failed to take evidence in account, or arrived at a conclusion which the evidence could not on any view support;
[...]
iii) Where the finding lies outside the bounds within which reasonable disagreement is possible.
She continued:
86. An evaluation of the facts is often a matter of degree upon which different Judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and appellate courts should approach them in a similar way. The appeal court does not carry out a balancing task afresh but must ask whether the decision of the Judge was wrong by reason of some identifiable flaw in the trial Judge's treatment of the question to be decided, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion.
11. Where an appellate court is satisfied that there is a material error of law, the decision will be set aside. This includes in relation to a Judge's evaluation of the evidence: MAH (Egypt) v SSHD [2023] EWCA Civ 216 at [68]-[70] (Singh LJ). Further, if a point of evidence of significance has been ignored or misunderstood, that may be a failure to take into account a material consideration.
12. I express my thanks to both advocates for the helpful submissions each has provided during the course of the appeal before the Upper Tribunal.
13. The “principal controversial issue” identified in this appeal and as set out in the Respondent’s Reviews related to the appellant’s grant of valid refugee status in Greece. The appeal skeleton argument ( the “ASA”) raised no issue that the appellant would be at risk of persecution or serious harm on humanitarian protection grounds in Greece nor that he was at a real risk of refoulement to Yemen, his country of origin. The sole issue advance on part of the appellant was that there would be a breach of Article 3 of the ECHR on return to Greece on the basis that he would face inhuman or degrading treatment due to living in the socio-economic conditions in Greece which he had encountered when there ( see paragraph 7 of the FtTJ’s decision).
14. Whilst the rule 24 response refers to this as a “narrow issue”, it was an issue which required a careful assessment not only of the subjective evidence given by the appellant but also the objective country information relevant to Greece.
15. There are two grounds of challenge advanced on behalf of the respondent although it is fair to say that both grounds involve consideration of the material that was before the FtTJ and whether the FtTJ assessed the material before him including that which had been provided on behalf of the respondent.
16. The issue which arises from ground 1 is whether the FtTJ assessed whether there would be a real risk of the appellant being subject to Article 3 ( inhuman or degrading treatment) on return to Greece by having regard to all the evidence before the Tribunal including that relied upon by both parties when addressing both the subjective claim but made in the context of the country objective material available.
17. The rule 24 response relied upon by Ms. Brakaj (see paragraph 18 ( c)) and her oral submissions were that the FtTJ plainly had regard to the respondent’s reviews, and that the FtTJ’s reference to paragraph 23 to having considered “all the evidence” was sufficient to demonstrate that the FtTJ did take into account the respondent’s evidence. She submitted that as the FtTJ had referred to all the evidence he was not required to address each and every piece of that evidence.
18. Whilst that is in general terms is correct, it is dependent on the issues in play and the evidential circumstances which apply to the particular appeal under scrutiny. What is important is whether the FtTJ addressed and took into account the evidence that had been submitted by both parties in substance.
19. Ms. Brakaj submitted that the FtTJ was in a difficult situation as he did not have the advantage of a presenting officer at the hearing. I agree with that observation. It is unfortunate that the respondent did not provide a Presenting Officer at the hearing. However, in those circumstances the Surendran guidelines applied (see MNM (Surendran guidelines for adjudicators)* Kenya [2000] UKUT 0005. This is a starred decision of the Tribunal and therefore is of some importance.
20. Paragraph 1 of those guidelines refer to the circumstances where the Home Office is not represented before the Tribunal and request the court to deal with the appeal on the basis of the contents of the letter of refusal and any other written submissions Home Office make. I pause there. The decision letter did not deal with the appellant’s full claim that related to Greece as at the time of the decision letter not all the factual circumstances which were later relied upon were in fact articulated. It was not until after the grounds of appeal had been served that the emphasis of the appeal was firmly focused on Greece.
21. Whilst the Surendran guidelines are of some age, they continue to apply and where they referred to the respondent’s case it seems to me that that can be read as a reference to the documents now provided by the respondent in the form of a Respondent’s Review, which on the facts of this appeal were before the FtTJ. The Respondent’s Review contains the arguments, and the evidence the respondent sought to rely upon in line with paragraph 6 of the Surendran guidelines.
22. The first Respondent’s Review was completed in the absence of an ASA. Notwithstanding the absence of that document the respondent sought to distinguish the decision of M.S.S v Belgium and Greece [2011] ECHR 108 at paragraph 6 but also relied on country materials at paragraph 9, namely the AIDA GR report update, which was applied to the appellant’s factual circumstances (see paragraph 10 – 12 of the first review) and at paragraph 13 reliance was placed on a document of the proceedings before the Federal Administrative Court in Germany dated 16 April 2025 which also referred to conditions in Greece. Therefore, the Review set out objective sources of country materials relied upon by the respondent. It is also right to observe that the respondent had considered there had been a lack of objective material to support factual assertions made on behalf of the appellant.
23. Following this an ASA was filed and served and it led to a second set of directions made by FtTJ Fisher which in turn led to the second Respondent’s Review dated 14 October 2025. Again, the respondent set out the reference made to the AIDA GR report and that of the German court and also by reference to the provision for refugees rather than those who were seeking asylum.
24. Contrary to the Rule 24 response (see paragraph 23), I am satisfied that all of those documents relied upon by the respondent were before the FtTJ in the evidence as they were referenced in the Respondent’s Reviews as outlined above and were available by way of hyperlink to each document.
25. I am also satisfied that those documents relied were on by the respondent not only in respect of conditions in Greece but also by reference to the factual circumstances of those who were beneficiaries of refugee status which is what the appellant claimed to be rather than someone with the status of that of an asylum seeker.
26. I am further satisfied that the FtTJ did not take into account the evidence provided on behalf of the respondent as this is demonstrated by his reasoning set out in between paragraphs 31 – 38 of the decision where he reached his conclusions in the appeal.
27. The FtTJ referred to the objective reports of the appellant’s bundle ( see paragraph 32) as relevant supportive evidence of the appellant’s account. He set out the first item which was a news article from the Refugee Support Aegean dated 22 January 2024. It is entitled “recognised refugees in Greece left without even a minimal support after new interruption of HELIOS programme 22 January 2024.” HELIOS is the “Hellenistic Integration Support for the Beneficiaries of International Protection” programme financed by the Ministry of migrant and asylum and through successive funding extensions. It is implemented via the IOM and in cooperation with non-governmental organisations. It has operated since July 2019, and provide services for refugees for a period of 12 months from their recognition and includes support to recognised refugee housing by providing subsidies to those who have secured homes, Greek language and other integration courses as well as employment support and integration into the labour market. The FtTJ cited the article at paragraphs 33 and 34 and by reference to the programme being suspended as of 1 January 2024. At paragraph 35 the FtTJ referred to applying the findings of the Helios report to the facts and made a finding that “the report corroborates the experiences described by the appellant whilst in Greece”. He went on to state, despite being accepted as a refugee in Greece he would have no support access basic human services in reference to accommodation, food or integration services. The only organisation that provides support and assistance suspended its services in October 2023, November 2023 and in January 2024 was again suspended due to funding until further notice. He concluded “the report highlights that due to the interruption of services 4000 beneficiaries at risk of being left homeless. I therefore attach weight to the HELIOS report”.
28. Having read that material, this was not a report as such but was a news article. Furthermore, whilst the FtTJ referred to it as corroborative of the appellant’s experience, the period which the report described predated the appellant’s arrival in Greece. The appellant’s evidence on the written documentation as to date of arrival in Grece is not clear. In the screening interview he claims to have been in Turkey in April 2024 and then went to Greece in May 2024 and did not claim asylum in Greece until August 2024 ( see SI at paragraphs 3.3 and 3.4). In later evidence he stated that he arrived in Greece on 25 April 2024 was granted status in 3 June 2024 ( see page 134 CB and witness statement p34CB). On any account, the appellant was not residing in Greece at the time of the news article. Nonetheless the material related to circumstances which had occurred in Greece. The FtTJ also referred to further material at paragraph 36, which related to a UNHCR news article following the visit of Gillian Triggs, on 28 July 2023. She met with officials one month following the Pylos tragedy. Whilst the article is referenced at paragraph 36 the FtTJ cites the part of the article which relates to reception centres. What he omits in his assessment is the evidence made to other provisions and assistance available to those who have provided support. The article records that Gillian Triggs also heard from civil society organisations who describe the essential services they provided and explained the difficulties they experienced. She conveyed her praise for the dedication and hard work of the NGOs in Greece and the agency’s commitment to the support for civil society and its activities for the protection of refugees. Later reference is made to Greece hosting 68,000 refugees and she appreciated the efforts made towards enhancing their integration into the country in line with its national integration strategy and to the institutions which enable refugees to contribute to the communities hosting them including employment, addressing skill gaps, in ensuring the timely provision of documents and simplifying procedures and requirements.
29. Whilst the FtTJ referred to having considered the “totality of the evidence before me”, nowhere in his reasoning does he assess the objective material relied upon by the respondent.
30. The FtTJ’s reliance on the news article from the Refugee Support Aegean ( see paragraphs 33 –34 and assessment paragraph 35) failed to take into account the material in the respondent’s bundle including the material in the AIDA report but also in relation to the German Administrative Court dated April 16, 2025. The article identified the position of those who are in the same category as the appellant- single, employable, non-vulnerable and benefit from international protection – as not subjected to inhuman or degrading treatment in Greece. The document also referred to the program available in 2025 including the current bridging program, the HELIOS + international programme ( in place of the other HELIOS scheme ) and state basic support alongside non-governmental aid organisations. The type of support echoed that identified in the UNHCR article. Although the judge referred to some of that report, did not take account of the parts of the report which was consistent with the information in the German document.
31. Thus, there was evidence available and relied upon by the respondent which was relevant to the issues and required assessment before reaching a conclusion on the issues. The AIDA report also referred to the HELIOS report being operational as at June 2024 (p339) following suspension in January 2024 which was the period the FtTJ had relied upon.
32. Whilst Ms. Brakaj submits that the material relating to the German court was not binding on the FtTJ, in my view that does not negate the responsibility on the FtTJ to assess that evidence as relied upon by the respondent. If the FtTJ sought to distinguish that evidence he would be entitled to do so by providing his reasoning and not by omission.
33. The AIDA report also was not taken into account by the FtTJ. This is a comprehensive report and referred to in both reviews.
34. Ms. Brakaj submits that in any event, even if it could be said that the FtTJ did not refer to the AIDA report, the failure to do so was not material. She submits that the AIDA supports the FtTJ’s findings and thus it provides a picture of events in Greece as referred to at paragraph 34 of his decision.
35. Mr Wain , on behalf of the respondent submits that such an argument is not established and that the FtTJ’s failure to even refer to the contents of the reports demonstrates he gave no reasons for rejecting them and he erred by failing to assess the case by reference to relevant material provided on behalf of the respondent.
36. I have considered this issue with care and in the context of the submissions made by Ms. Brakaj and Mr Wain. I have reflected on the submissions made in the Rule 24 response and the oral submission of Ms. Brakaj as to whether the grounds are no more than a disagreement with the FtTJ’s decision and in essence are an impermissible attempt to re-argue the appeal. Having done so I reach the conclusion that the grounds do not amount to a disagreement as submitted but that they identify an error of law. I am satisfied that it was not only an error of law by failing to have regard to material evidence relied upon the respondent and which was clearly indicated as forming the respondent’s case on appeal, but also that the error was material.
37. There are a number of factual matters raised within the evidence relied upon by the respondent (both the AIDA report and the précis of the German court decision) which were relevant when assessing the appellant’s subjective claim. As Mr Wain pointed out, those who were granted beneficiaries status are entitled to the same access to services as those of Greek citizens. By way of example, as to the conditions in Greece, the report deals with access to the labour market and that it is necessary to take into account the prevailing economic circumstances those in Greece-high employment for Greek nationals. There is also reference to challenges faced by refugees in finding employment due to having lack of day care for children.
38. In the report reference is made to the process of how individuals are recognised as refugees and that they are given a three year residence permit (ADET) and there is a difference between the permit and an asylum seeking card. The FtTJ did not make any assessment of the appellant’s documents or circumstances by reference to those matters in the report including the eligibility for enrolment in HELIOS, and any involvement in the process .There was no reference to this in the context of the applicant’s claim.
39. Mr Wain relied upon matters identified in the Respondent’s Review which related to the content of the AIDA report. That was set out at paragraph 14 of the second Review and paragraph 10 of the first Review in the reference to the three year permit. Paragraph 11 of the first Review by reference to the use of the HELIOS + programme ( the appellant was not in Greece when HELIOS was in operation) and also paragraph 12 of the first Respondent’s Review.
40. I take into account that the AIDA report is not all positive in its contents but there was relevant factual information in the report and taken with other evidence relied upon by the respondent this required the FtTJ to critically assess this material and provide his reasoning upon it and in the context of the appellant’s evidence. It was incumbent on the FtTJ to assess all the evidence before reaching his findings of fact on the appellant’s subjective account and undertaking that assessment it required his reasoning upon the evidence that was relied upon by the respondent. It would have been open to the FtTJ to reject it but in doing so would have to give reasons for that decision. The position of the respondent is that she does not know why the FtTJ rejected the evidence relied upon by her.
41. I am also satisfied that this was a material error of law because that evidence provided a framework for assessing the appellant’s subjective account. This account could not be viewed in isolation from the country evidence relied upon by both parties and as such an assessment was required.
42. The grounds of paragraph 6 submit that the FtTJ erred in placing reliance on the decision of M.S.S v Belgium and Greece [2011] ECHR at paragraph 37 of his decision. However, this could only be considered as historic background given the age and date of that decision and that in general terms it related to the violation of Article 3 rights of asylum seekers been returned to Greece in light of their obligations under EU law concerning the reception of asylum seekers. Nonetheless there was more up-to-date evidence in the AIDA report referring to some European countries halting Dublin returns in 2022 although the evidence from Germany in 2025 did not reflect this (see page 342).
43. For those reasons I am satisfied that the decision involves the making of an error on a point of law and that the decision should be set aside.
44. I address an issue raised in the rule 24 response although not set out in the grounds which relates to the burden and standard of proof (see the rule 24 response at paragraphs 8 and paragraph 17). The FtTJ set his self -direction on that issue between paragraphs 20 – 23. Having read those self-directions, they do not encompass the matters raised in the rule 24 response. The starting point is that, because Greece is an EU Member State and a signatory to the ECHR, there is a significant, though rebuttable, evidential presumption that it will comply with its international obligations: see KRS v United Kingdom (App No 32733/08) (2009) 48 EHRR SE8; EM (Eritrea) at [40]; Elaythamby v Secretary of State for the Home Department [2011] EWCA 2182 (Admin) at [42(i)]. The FtTJ did not resolve the argument as to the correct threshold , whether it is that in Soering v United Kingdom (App No 14038/88) (1989) 11 EHRR 439: namely, whether substantial grounds have been shown for believing that the person concerned faces a real risk of inhuman or degrading treatment in the receiving state or whether this fell within the category of a material deprivation cases and thus Article 3 would be breached only where the returnee would face conditions resulting in intense suffering or a significant reduction in life expectancy ( see Ainte (material deprivation - Art 3 - AM (Zimbabwe)) [2021] UKUT 203 (IAC) and OA (Somalia) CG [2022] UKUT 33 (IAC) at [106(c)]. However, even where the Soering test applies, the threshold remains high. It is not clear from the decision that the FtTJ appreciated or applied the high threshold necessary for a breach of Article 3 when looking at the self-direction made. However, it is not necessary to resolve that issue for the purposes of this decision.
45. I canvassed with parties how the decision should be remade. Having considered those submissions I am satisfied that none of the findings of fact can be retained. This is because the findings on his subjective account were made in the absence of all the evidence and thus the FtTJ did not take into account all of the evidential background before reaching those findings of fact. Any Judge considering the appeal will be required to assess the appellant’s account in accordance with all the available material relied upon by the parties.
46. Having considered the practice statement recited and the decision of the Court of Appeal in AEB v SSHD[2022] EWCA Civ 1512 and that of the Upper Tribunal in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46, and in the light of the overriding objective I am satisfied that the appeal falls within paragraph 7.2 (b) as it will be necessary to undertake an assessment of all the factual evidence when reaching a decision and thus I am satisfied that the appeal should be remitted to the FtT for hearing.

Notice of Decision:
The decision of the FtTJ involved the making of an error of law and the decision of the FtTJ shall be set aside and remitted to the FtT with no findings of fact preserved.

22 July 2026
Upper Tribunal Judge Reeds

Upper Tribunal Judge Reeds