Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001606
First-tier Tribunal No: PA/00766/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 20th of October 2026

Before

UPPER TRIBUNAL JUDGE NEVILLE

Between

AZ
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr E Fripp, counsel instructed by Southwark Law Centre
For the Respondent: Mr M Pugh, 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. 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 is a 48 year old national of Algeria. The respondent decided on 31 January 2024 to refuse his protection and human rights claims. Those claims had been made in response to a decision to deport him following a criminal conviction in March 2023. By a decision promulgated on 11 February 2026, the First-tier Tribunal
(“FtT”) dismissed his appeal. It rejected his claim to be gay and found that his removal would not breach Articles 3 or 8 ECHR.
2. The appellant’s claimed sexual orientation had been considered and rejected by a tribunal in 2007. That decision was the proper starting point according to the Devaseelan guidelines, which were summarised by Rose LJ in Secretary of State for the Home Department v BK (Afghanistan) [2019] EWCA Civ 1358 at [32] as follows:
(1) The first adjudicator's determination should always be the starting-point. It is the authoritative assessment of the appellant's status at the time it was made. In principle issues such as whether the appellant was properly represented, or whether he gave evidence, are irrelevant to this.
(2) Facts happening since the first adjudicator's determination can always be taken into account by the second adjudicator.
(3) Facts happening before the first adjudicator's determination but having no relevance to the issues before him can always be taken into account by the second adjudicator.
(4) Facts personal to the appellant that were not brought to the attention of the first adjudicator, although they were relevant to the issues before him, should be treated by the second adjudicator with the greatest circumspection.
(5) Evidence of other facts, for example country evidence, may not suffer from the same concerns as to credibility, but should be treated with caution.
(6) If before the second adjudicator the appellant relies on facts that are not materially different from those put to the first adjudicator, the second adjudicator should regard the issues as settled by the first adjudicator's determination and make his findings in line with that determination rather than allowing the matter to be re-litigated.
(7) The force of the reasoning underlying guidelines (4) and (6) is greatly reduced if there is some very good reason why the appellant's failure to adduce relevant evidence before the first adjudicator should not be, as it were, held against him. Such reasons will be rare.
(8) The foregoing does not cover every possibility. By covering the major categories into which second appeals fall, the guidance is intended to indicate the principles for dealing with such appeals. It will be for the second adjudicator to decide which of them is or are appropriate in any given case.
3. As observed by Rose LJ at [37], other cases have emphasised the importance of not allowing the guidance to place unacceptable restrictions on the second fact-finder’s ability to determine an appeal. These include Djebbar v Secretary of State for the Home Department [2004] EWCA Civ 804, in which the judgment of Judge LJ included:
30. Perhaps the most important feature of the guidance is that the fundamental obligation of every special adjudicator independently to decide each new application on its own individual merits was preserved.
and
40. … The great value of the guidance is that it invests the decision-making process in each individual fresh application with the necessary degree of sensible flexibility and desirable consistency of approach, without imposing any unacceptable restrictions on the second adjudicator's ability to make the findings which he conscientiously believes to be right. It therefore admirably fulfils its intended purpose.
4. The FtT was therefore required to assess the further evidence and decide whether it justified departure from the earlier finding. The further evidence included screenshots of communications through social media apps and what the FtT called “homosexual dating apps”. At [28], the FtT said:
“Few, if any, of the electronic evidence contains any dates and the photographs of the Appellant at a Pride event do not show the date they were taken.”
5. That was wrong. As set out in the grounds of appeal, the majority of the screenshotted messages did contain dates. The screenshots from Instagram do only contain a day and month, without a year, as that is how they are displayed in the app, but if the lack of a year on the printed screenshot was material to the FtT’s consideration then this was not canvassed with the parties to see whether the missing data could be supplied or what else the appellant had to say about it. All the Whatsapp messages contain the date, month and year save where they are a continuation of previous messages on the same day. The appellant had stated in his witness statement when the photograph at a Pride event had been taken. All this evidence was capable of bearing directly upon whether the earlier finding should remain determinative.
6. The FtT did not identify which items it regarded as undated or distinguish those items from the dated conversations. Nor did it consider what weight should be given to the duration and content of those conversations. Instead, it proceeded upon the materially mistaken premise that few, if any, of the electronic materials were dated. While mindful that the FtT was not obliged to rehearse the evidence in detail, and its reasons fall to be considered benevolently rather than hyper-critically, I am persuaded by Mr Fripp’s arguments that this characterisation of the evidence was not lawfully open to the FtT.
7. Mr Pugh submitted that this mistake was immaterial because the FtT gave other reasons for attaching limited weight to the material. It noted that its source had not been verified, that the other party to much of the correspondence had provided no evidence and that there was no evidence the appellant had acted upon the messages or met another man for romantic or sexual purposes. I reject that this renders the mistake found above immaterial. The messages were part of the appellant’s answer to the adverse finding made in 2007. Whether they were contemporary communications extending over a period, rather than undated material which might have been created at any time, was plainly relevant to their weight.
8. Anxious scrutiny was required. The appellant’s claim depended upon an assessment of evidence concerning a private and sensitive aspect of his identity. The later evidence had to be considered accurately before the FtT decided that the appellant had merely “resurrected” a fabricated claim to avoid deportation. Even in the context of an earlier rejection of credibility forming the starting point, I cannot be satisfied that the FtT would have reached the same conclusion had it appreciated that the communications were dated and extended over a period in 2025.
9. I also agree with Mr Fripp’s other submissions, concerning the FtT’s repeated reliance at [28] and [31] upon the absence of evidence that the appellant had acted upon the messages, engaged in same-sex relations or obtained evidence from a romantic or sexual partner. Sexual orientation is not established only through sexual activity or participation in a relationship. The appropriate weight to be attached to the absence of such evidence required consideration of the appellant’s circumstances, including his evidence about detention and his physical and mental health. I need not decide whether these arguments separately establish errors of law, but the shortcomings in the corresponding reasoning further supports my conclusion that the mistake about dates is material.
10. Having rejected the appellant’s claimed sexual orientation, the FtT did not decide the remaining questions of risk on return, sufficiency of protection or internal relocation. As the findings under Articles 3 and 8 depended on the overall findings of fact, they likewise cannot be safely preserved.
11. The decision is set aside. Given the extent of fact-finding now required, the appropriate disposal is for the appeal to be remitted to the FtT for rehearing.
12. The FtT’s conclusion that section 72 of the Nationality, Immigration and Asylum Act 2002 did not apply has not been challenged and that conclusion is preserved. No other findings are preserved.
13. The appeal concerns the appellant’s claimed sexual orientation and sensitive medical evidence. The risk to the appellant if he is identified and the integrity of the UK asylum decision-making process justify derogation from the principle of open justice, and I make the anonymity order appearing above.

Notice of Decision
(i) The decision of the First-tier Tribunal involved the making of an error of law and is set aside.
(ii) The case is remitted to a differently constituted First-tier Tribunal for re-hearing.
(iii) The finding at [19] that section 72 of the Nationality, Immigration and Asylum Act 2002 does not apply is preserved.
(iv) No other facts are preserved.

J Neville
Judge of the Upper Tribunal
Immigration and Asylum Chamber

19 October 2026