Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001611
First-tier Tribunal No: PA/64706/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 2 August 2026

Before

UPPER TRIBUNAL JUDGE LODATO

Between

MA
(ANONYMITY ORDERED)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Malik, counsel
For the Respondent: Mr Tan, Senior Presenting Officer

Heard at the Manchester Civil Justice Centre 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
Introduction and Background
1. I have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal (‘the FtT’) because the underlying claim involves international protection issues in that the appellant claims to fear persecution or serious harm on return to Iran. In reaching this decision, I am mindful of the fundamental principle of open justice, but I am satisfied, taking the appellant’s case at its highest for these purposes, that the potential grave risks outweigh the rights of the public to know of his identity.
2. The appellant appeals with permission against the decision, dated 25 January 2025, of a judge of the FtT (‘the judge’) to dismiss the appeal on international protection and human rights grounds.
3. The appeal arose in the context of a claim for international protection in that the appellant claimed to have been discovered in an intimate relationship with the daughter of a powerful figure who then ‘framed’ him for being involved with a Kurdish political party and sought to expose his work as a kolbar. Since his arrival in the UK, the appellant has engaged in political activity against the Iranian regime which he claims puts him at further risk of persecution on return.
Appeal to the Upper Tribunal
4. The appellant applied for permission to appeal in reliance on the following grounds:
• Ground 1 – The judge wrongly relied upon an inconsistency drawn from a social worker’s report.
• Ground 2 - The judge wrongly relied on impressionistic speculation to reject aspects of the appellant’s account as lacking in plausibility and credibility.
• Grounds 3-5 – The judge misapplied country guidance and unlawfully assessed the appellant’s sur place activity in the UK.
• Ground 6 - The judge failed to conduct a cumulative risk assessment drawing on all relevant factors.
5. In a decision dated 25 March 2026, a judge of the FtT granted permission for all grounds to be argued. An additional ‘Robinson-obvious’ point was raised in the grant of permission in the following terms:
One of the points that the grounds make is that if the Tribunal had applied the correct legal framework the outcome might be different. There is an obvious error from the decision of the judge in that throughout the entire decision the judge refers to the standard of proof of a balance of probability. Whilst the case of JCK (s.32 NABA 2022) (Botswana) [2024] UKUT 00100 proposes a two-stage test there is no indication from the decision of the judge that the balance of probability test has been applied only to the first two questions posed in JCK (Botswana). Questions 3 to 5 posed in the decision of JCK are matters of objective evaluation and must each be determined on the lower standard of proof: a reasonable degree of likelihood. However, at the concluding paragraph at paragraph 26 the judge states as an example:
“I do not find the Appellant a reliable witness of past fact and do not consider, on the balance of probabilities, that he would be at risk on return to Iran as a perceived political dissident who worked as a kolbar and/or from B’s family as I do not accept he was in a relationship with B as claimed”.
I therefore find that there is an arguable error of law and the use of the balance of probabilities test throughout the length and breadth of the determination without making a distinction between the two stages to be applied means that the decision is unsafe.
6. At the error of law hearing, I heard oral submissions from both parties. Much of those submissions were directed to the suggested ‘Robinson-obvious’ misdirection of law raised by the FtT in granting permission. I address any submissions of significance in the discussion section below.
Discussion
7. In MN (Vietnam) v Secretary of State for the Home Department [2026] EWCA Civ 485, the Court of Appeal set out the principles which should guide the analysis of whether judicial reasons are lawfully adequate. Between [34] and [36], Dove LJ drew together the leading authorities:
[34] […] The question which then arises is by what standard those reasons are to be judged in order to determine whether or not they are legally adequate. Whilst given in a different public law context, the observations of Lord Brown of Eaton under Heywood in South Bucks County Council v Porter (No 2) [2004] UKHL 33; [2004] 1 WLR 1953 at paragraph 36 provide an important statement of principle applicable in the current context:
“36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in dispute, not to every material consideration…Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”
[35] Accompanying these principles, it is also necessary to observe that the decision, in this case the FtTIAC determination, must be read as a whole and in context. Part of that context is that examining the determination’s reasons should be approached and undertaken purposefully, with the object of obtaining an understanding of the decision and its basis. It should not be read or construed in a manner more appropriate to a contract or statute. It requires what Lord Bingham MR described as a “straightforward down to earth reading” of the determination which seeks to identify whether there is “room for genuine as opposed to forensic doubt” as to what has been decided and why (see Clarke Homes Limited v Secretary of State for the Environment and East Staffordshire District Council [1993] 66 P&CR 263).
[36] This approach to the standard of reasons required as a matter of law can be set in the general understanding of approaches to appeals in respect of tribunals within the Immigration and Asylum Chamber provided by Lord Hamblen at paragraph 72 of HA (Iraq) v SSHD [2022] 1 WLR 3784; [2022] UKSC 22:
“72. It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. In particular:
(i) They alone are the judges of the facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. It is probable that in understanding and applying the law in their specialised field the tribunal will have got it right. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v Secretary of State for the Home Department [2008] AC 678 per Baroness Hale of Richmond at para 30.
(ii) Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v Secretary of State for the Home Department [2011] 2 All ER 65, para 45 per Sir John Dyson JSC.
(iii) When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] 2 AC 48, para 25 per Lord Hope of Craighead DPSC.”
8. In addition to the above statements of principle, the Upper Tribunal’s jurisdiction to decide whether an FTT decision involved a material error of law was recently considered by the Court of Appeal in Ullah v SSHD [2024] EWCA Civ 201; [2024] 1 W.L.R. 4055. At [26], Green LJ summarised the applicable principles (I have not reproduced those principles which are reflected above in MN (Vietnam) to similar effect):  
[26] Sections 11 and 12 of the TCEA 2007 restrict the UT's jurisdiction to errors of law. It is settled that:  
[…]
(iv)  The issues for decision and the basis upon which the FTT reaches its decision on those issues may be set out directly or by inference: see UT (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1095 at [27];  
(v)  Judges sitting in the FTT are to be taken to be aware of the relevant authorities and to be seeking to apply them. There is no need for them to be referred to specifically, unless it was clear from their language that they had failed to do so: see AA (Nigeria) v Secretary of State for the Home Department [2020] 4 WLR 145 at para 34;  
(vi)  It is of the nature of assessment that different tribunals, without illegality or irrationality, may reach different conclusions on the same case. The mere fact that one tribunal has reached what might appear to be an unusually generous view of the facts does not mean that it has made an error of law: see R (MM (Lebanon)) v Secretary of State for the Home Department [2017] 1 WLR 771 at para 107.  
9. It was clear from the way in which the error of law hearing proceeded that the ‘Robinson-obvious’ point identified in the decision to grant permission to appeal was the parties’ primary focus. I address this point first.
10. It was forcefully argued on the appellant’s behalf that the judge misstated and misapplied the law when the first principal controversial issue (whether the appellant was a reliable witness of past fact) was decided, at paragraph [26]:
Drawing matters together, on the balance of probabilities, I do not accept the Appellant was in a relationship with B as claimed. It follows that B’s father did not plant KDPI leaflets at the Appellant’s home nor see the horses being prepared for a kolbar journey in the courtyard of the family home and so did not report the Appellant to the Iranian authorities as an act of vengeance. In those circumstances, the Appellant is of not of interest to the Iranian authorities. I reach these conclusions as I do not find the Appellant is a reliable witness of past fact even taking into account his age and status as an unaccompanied minor. I consider the Appellant’s credibility is damaged by the fact there is a contemporaneous record in the form of the social worker initial assessment dated 13 October 2022 noting, in some detail, that he had spoken with his mother soon after his arrival in the UK whereas he now maintains he has not contact with anyone since he left Iran. I also find there are inconsistencies in the Appellant’s account which further damage his credibility such as regarding when he says he found out about who B’s father was and when he was aware of his power and influence. At the hearing he said he wasn’t aware she came from a powerful family and didn’t know who her father was until a week before he left Iran and only learnt about his inconsistencies from overhearing conversations between village elders whereas in his witness statement he talks of B’s father being well known in the community and working as a spy and has indicated they needed to keep their relationship a secret on account of this. Similarly, I find the failure of the Appellant to provide detail regarding the precautions he says he took to meet B in public parks by hiding in the leaves and trees until giving evidence at his hearing is damaging to the overall credibility of his account. Notwithstanding the Appellant’s particular characteristics as noted by Mr Dingley and the fact he arrived in the UK as an unaccompanied minor, I do not find the Appellant a reliable witness of past fact and do not consider, on the balance of probabilities, that he would be at risk on return to Iran as a perceived political dissident who worked as a kolbar and/or from B’s family as I do not accept he was in a relationship with B as claimed.
[Underlining added]
11. It was argued that this was not an isolated error but echoed throughout the decision where misplaced references to the balance of probabilities were to be seen at [33]-[34], [38] and [41] in consideration of the sur place dimension of the claim.
12. On behalf of the respondent, Mr Tan pointed to other parts of the decision where the judge faithfully set out the two-stage legal test for the assessment of claims brought under the Refugee Convention. He also emphasised the uses of conventional language suggestive of the deployment of the reasonable degree of likelihood threshold for evaluating risk on return. The judge referred to the applicable legal scheme in the Nationality and Borders Act 2022 (‘NABA’) at [1] before expressly referring to the two-stage analysis, and specifically the matters to be assessed according to the differing standards at [14]-[16]. At [39], [44]-[45] and [48]-49], it was suggested that the judge had used language which resonated with a conventional application of the lower standard of proof when assessing whether a well-founded risk of persecution or serious harm existed.
13. JCK (s.32 NABA 2022) (Botswana) [2024] UKUT 00100 (IAC) provides guidance as to how NABA should be applied. Section 32 of the act sets out a staged approach in which judges must first assess, on the balance of probabilities, whether a convention reason exists and, importantly for present purposes, whether the asylum seeker does in fact fear persecution for that reason. Subsection 3 specifies that the judge should only move on to the next stage, the existence of a reasonable likelihood of persecution, if the first set of questions are resolved in the asylum seeker’s favour. The risk assessment on the lower standard is contingent on the initial resolution of the asylum seeker’s subjective fears to the civil standard. At [17] of JCK, the following observations were made about the assessment of subjective fear:
The provision simply requires the decision maker to consider whether the asylum seeker "does in fact fear": it is what is otherwise referred to as the 'subjective fear' test. Assessing that fear is a discrete exercise from assessing whether past events occurred. Consider a claimant who has been horribly persecuted in the past but whose persecutors have now fallen from power: he could prove, on balance, that the material facts he has presented are true, but he may no longer in fact be afraid. Conversely it is well understood in this jurisdiction that claimants who are "in fact afraid" may seek to exaggerate, or even falsify, past events in order to prove their case. There will be cases in which the acceptance or rejection of historical facts presented by a claimant will inform the decision on whether or not he is "in fact afraid". As it happens, this is one of them. That is not however always the case. Section s32(2)(b) asks decision-makers to consider a different question, and in doing so relegates the matter of 'credibility' to where it belongs in the refugee risk assessment: it can be relevant, but will not on its own be determinative.
14. The judge’s concluding remarks at [26] might, at face value, appear to import a higher standard of proof to the overall risk assessment than the reasonable likelihood provided at s.32(4) of NABA. However, when these observations are considered in their proper context, I discern no misdirection of law. I agree with Mr Tan that the judge, in setting out within the introductory sections of the decision the applicable two-stage assessment, and the differing standards of proof, was plainly aware of the nature of the legal task to be performed. The parties settled the principal controversial issues as, firstly, whether the appellant was a reliable witness of fact and, secondly, if not, whether the appeal could succeed on the strength of the sur place claim. At [20], the judge noted that the parties regarded the first issue as the “main issue”. This all broadly coheres with the sense that the judge’s primary task on the facts of this appeal was to assess whether the appellant had provided a truthful account of the events in Iran. The granular findings of fact between [20] and [25], which were summarised at [26], all referred to flaws in the appellant’s narrative account and whether he could be regarded as a witness of truth about these events. This decisively went to whether the appellant was genuinely and subjectively in fear of persecution on return because of what he claimed had happened to him before he left Iran. In accordance with the structure of the NABA legal scheme, once the judge resolved the subjective fear question against the appellant on the balance of probabilities, the precondition for moving on to the overall risk assessment was not satisfied.
15. The judge used confusing language as to the stage of the NABA analytical process which had been reached, but I must keep in mind the specialist nature of the tribunal and must not hastily and unjustifiably conclude that this specialist judge has applied the incorrect standard of proof. The looseness of language continued through the judge’s consideration of the second issue relating to the sur place element of the appeal. Mr Malik understandably directed my attention to [33]-[34], [38] and [41] where the balance of probabilities was used to gauge the significance of the appellant’s Facebook profile and the extent to which his real-world protest activities might have attracted the attention of the Iranian authorities. This is more difficult to reduce to matters of the existence of a convention reason or subjective fear such that this elevated standard was the appropriate benchmark. However, it appeared to me that when it came to asking the ultimate question about whether the appellant was at risk on return because of these activities, the judge plainly had in mind the lower standard. This is apparent from the opening line of [39]: “I must now consider whether, through his attendance at demonstrations and his Facebook activities, the Appellant is likely [as opposed to more likely than not] to be at risk upon return in Iran”. The use of the correct standard is also evident from [44] where the judge referred to a “real risk of serious harm or persecution”. The threads were drawn together at [45] where the following overall assessment of the claim is undertaken:
I remind myself of the guidance given in HB (Kurds) Iran CG [2018] UKUT 430 (IAC) that the Iranian authorities are suspicious of Kurdish political activity and that Kurds involved in even "low-level" political activity, if discovered, are at real risk of persecution or Article 3 ill-treatment. Those of Kurdish ethnicity, such as the Appellant, are regarded with greater suspicion by the Iranian authorities and are likely to be subjected to heightened scrutiny on return to Iran. It is accepted by the Respondent that the Appellant left Iran illegally. As such, the Appellant faces a risk of being detained on return to Iran for illegal exit of the country. However, given my finding that the Appellant was not in a relationship with B as claimed, that B’s father did not plant KDPI leaflets at the Appellant’s home nor see the horses being prepared for a kolbar journey in the courtyard of the family home it follows that the Appellant has never been reported to Iranian authorities as an act of vengeance by B’s father. Similarly, for the reasons set out above I find the Iranian authorities would not have identified the Appellant as a person to monitor in relation to any sur place activities. In those circumstances, I find the Appellant is of not of interest to the Iranian authorities and I find the Iranian authorities would have no particular interest in him as he returns to Iran notwithstanding his Kurdish ethnicity and his illegal exit. As such and, considering SSH and HR (illegal exit: failed asylum seeker) Iran (CG) [2016] UKUT 308 (IAC), I find he will not face a real risk of persecution on his return to Iran on account of him having left illegally and/or being a failed asylum seeker.
16. From the above overall assessment, it can be seen that the judge has drawn upon the findings reached at [26] about the absence of any genuine or subjective fear, findings which were properly reached by applying the balance of probabilities standard. These findings about the credibility of the events which were said to have occurred in Iran were woven together with the analysis going to the sur place dimension of the claim, the appellant’s Kurdish ethnicity and the manner of his departure from Iran. The judge then came to a holistic risk assessment by applying the lower standard of a reasonable likelihood. While it is fair to say that the judge could have exercised greater care in articulating the reasons for the decision, I am not satisfied that there was any misdirection of law when the challenged use of language is assessed in its proper context.
17. I can address the remaining grounds of appeal more briefly.
Grounds 1 & 2
18. Under this ground of challenge, it is asserted that the judge was wrong to rely on the report completed by a social worker which was starkly at odds with the appellant’s subsequent account about the contact he had with his family since he arrived in the UK. The points which have been levelled against this discrete finding of fact are submissions which might legitimately be made at first instance but fall a considerable distance short of revealing material errors of law. The judge carefully considered, at [21], the points made on the appellant’s behalf about this striking inconsistency and was entitled to conclude that the record of the inconsistent account was reliable and that the striking differences between the appellant’s accounts had not been satisfactorily explained. Those who represent the appellant may disagree with the weight attached to this aspect of the fact-finding analysis, but matters of weight are properly within the domain of the judge who had the benefit of hearing the appellant give his evidence about this particular point. The judge did not err in law in how this part of the fact-finding analysis was performed and the reasons for finding against the appellant were fully explained.
19. The second ground is a further challenge to the cogency and rationality of the judge’s overall assessment of the appellant’s primary factual claim about the events he claimed had preceded his departure from Iran. I reject the suggestion that the judge had indulged in speculation when noting plain and obvious tension in the appellant’s account about his level of knowledge about his partner’s father’s power and influence. The judge was more than entitled to highlight the obvious disconnect between his awareness of the family’s trappings of wealth and yet only to have learnt of the patriarch’s political power and influence by accident shortly before he left the country. This small community in which they all lived strained this account further. The judge also noted a discrepancy in the appellant’s various accounts about where he met his partner. This was an entirely conventional assessment of marked differences in the narrative evidence about matters of importance.
20. Both grounds 1 and 2 are nothing more than factual disagreements cloaked in the language of errors of law.
Grounds 3-6
21. I have grouped these grounds together because they involve a considerable degree of overlap in seeking to impugn the judge’s analysis of the appellant’s sur place claim. The judge meticulously analysed the nature and extent of the appellant’s activity on Facebook and in attending demonstrations in the UK. It was found, for lawful reasons, that the appellant was not motivated by genuine political opinions but was instead seeking to artificially create a platform for a successful protection claim. Against that evidence-based analysis, the judge faithfully applied XX (PJAK - sur place activities - Facebook) Iran CG [2022] UKUT 00023 (IAC) which itself rejected the notion that HJ (Iran) v SSHD [2011] AC 596 prohibited the deletion of a disingenuous Facebook profile. Beyond the bare and unsupported assertion that the judge wrongly compartmentalised the various factors going to risk, there is simply nothing to support this proposition. In the analysis above, I have included the holistic and broad assessment of the relevant factors. This followed a detailed and comprehensive evaluation of the appellant’s sur place activity in the UK. There is simply no substance to the suggestion that the judge lost sight of the overall risk landscape.
Conclusion
22. The judge’s decision did not involve errors of law.

Notice of Decision
The judge’s decision did not involve errors of law. I dismiss the appeal.

P Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

28 July 2026