Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001845
First-tier Tribunal No: PA/73860/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

15th July 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVIES

Between

WA
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr N Sadeghi, instructed by Barnes Harrild and Dyer Solicitors
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

Heard at Field House on 26 June 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
Procedural matters
1. On 24 June 2026, Mr Walker was granted permission to attend the hearing remotely, and therefore attended by CVP. There were no issues in relation to connectivity.
Background
2. The Appellant is a citizen of Iran, born in 2001. He is of Kurdish ethnicity. He arrived in the UK on 6 September 2023 and claimed asylum on the same date. His claim for asylum was refused by the Respondent on 15 October 2024.
3. The basis of the Appellant’s claims to asylum and humanitarian protection are his Kurdish ethnicity, his claimed political activity on behalf of the KDPI, having left Iran illegally, and sur place activity in the UK (attending demonstrations and posting on social media).
4. An appeal against that refusal was heard by First-tier Tribunal Judge Robinson (“the Judge”) on 27 January 2026,
5. The appeal was dismissed by a determination dated 11 February 2026.
6. Permission to appeal was given by First-tier Tribunal Judge Jepson on 14 April 2026.
7. The appeal comes before me to determine whether there is a material error of law. I am grateful to Mr Sadeghi and Mr Walker for their submissions.
The hearing before the Judge
8. The hearing was a hybrid hearing at which the Judge and presenting officer were present at Hatton Cross hearing centre, and the Appellant and his counsel (Ms Fegan) attended remotely by video platform. It is recorded at [4] that there were some connection issues during the hearing but that this did not affect the quality of the evidence or communication.
9. The appeal was a “float” case which started at 2pm. It is apparent that the Appellant was extensively cross-examined, for about two hours. I have the benefit of a witness statement from Ms Fegan of counsel, who represented the Appellant on 27 January 2026 and who attended at Hatton Cross to listen to the audio recording of the hearing. I also have an attendance note completed by the Presenting Officer, Mr Morris. The latter is not a verbatim note of the hearing.
10. The Judge was understandably concerned to ensure efficient use of court time, and upon conclusion of the evidence, proposed to the parties that each should have the opportunity to make oral submissions for up to 15 minutes. Ms Fegan’s statement records that she asked for 30 minutes to make submissions. She states that there was a drop in her connection, such that she did not hear the Judge’s next comment, and sought clarification as to her options regarding making submissions. Ms Fegan’s statement records that the options put to her were that she could make oral submissions for 15 minutes or file her submissions in writing. She did not, according to the statement, consider either option to be ideal, but considered written submissions to be the better of the two alternatives.
The grounds of appeal
11. Ground 1 argues that the Judge erred in her approach to the analysis of risk factors required by HJ (Iran) v. Secretary of State for the Home Department [2010] UKSC 31. The basis for this ground is that the Judge accepted the Appellant’s Kurdish ethnicity, his low-level activity for the KDPI in Iran, his illegal exit from Iran [16] and, at [26], that he would not lie about his political beliefs, however, in assessing risk at [22], these matters were not assessed on the cumulative basis required.
12. Ground 2 asserts that there was procedural unfairness on account of the Judge’s decision to direct that the Appellant’s submissions be made in writing.
Discussion
13. As announced in the hearing, there is found to be a material error of law in relation to Ground 2. Mr Walker conceded that to be the case during argument. In light of that, this decision will not dwell on Ground 1.
14. It may, however, be helpful to record that there appears to be merit in the argument that the assessment of risk on return by the Judge did not take into account, by way of a composite assessment, all of the relevant risk factors upon which findings were made in the Appellant’s favour in the course of the hearing, i.e. his Kurdish ethnicity, his low-level KDPI activity (about which, according to the decision, he would not lie) and his illegal exit from Iran. HJ (Iran) [2010] UKSC 31 and Secretary of State for the Home Department v MSM (Somalia) and UNHCR (Intervener) [2016] EWCA Civ 715 are both relevant authorities on the issue of assessment of risk on return and the relevance of conduct of the applicant.
15. Mr Walker conceded that there was a material error of law in that there was procedural unfairness in the manner in which submissions were directed from the parties. I consider that to be a properly made concession, for the following reasons.
16. Ms Fegan’s evidence is that she wanted to make oral submissions, and considered that she would require 30 minutes in which to do so. The options, as she saw them, were to limit her oral submissions to 15 minutes, or to make her submissions in writing.
17. Ms Fegan was at something of a disadvantage as she was not physically present at Hatton Cross hearing centre, whereas the Presenting Officer and Judge were. Her witness statement explains that there was a brief loss of connection while the discussion was taking place about procedure for submissions, such that she thought her options were limited as set out above. She sought clarification, and the response from the Judge did not elicit any other possibility, so she selected the option she considered to be the best of, as she saw it, two bad options for the Appellant.
18. The power of oral advocacy, and in particular its ability to change the mind of the Judge, is analysed by Laws LJ in Sengupta v Holmes [2002] EWCA Civ 1104:
… the central place accorded to oral argument in our common law adversarial system. This I think is important, because oral argument is perhaps the most powerful force there is, in our legal process, to promote a change of mind by a judge. That judges in fact change their minds under the influence of oral argument is not an arcane feature of the system; it is at the centre of it [38].
19. In R(Smith) v The Parole Board [2005] UKHL 1, reference is made at [31] to authority in other jurisdictions to the effect that written submissions:
…do not afford the flexibility of oral presentations; they do not permit the recipient to mold his argument to the issues the decisionmaker appears to regard as important. Particularly where credibility and veracity are at issue… [31]
20. Of course, a hearing can be fair even if it is less than ideal. A judge dealing with a busy list must balance the interests of justice in one case with the interests of justice in the others, including the need, where possible, to avoid delay.
21. In this case, however, I consider that a combination of factors rendered the procedure unfair. The relevant factors were:
(a) The hybrid nature of the hearing;
(b) The differential approach to the manner in which submissions were to be given by Appellant and Respondent, with the Respondent having the potential advantage both of being in the room with the Judge, and oral advocacy;
(c) In terms of proportionality, it is recorded that the Appellant had been cross-examined for two hours, indicating potentially significant credibility issues requiring to be addressed in submissions, which would support the view that an option of oral submissions limited to fifteen minutes was not proportionate.
22. The disadvantage to the Appellant on account of these factors, and in particular the direction that his submissions be made in writing while the Respondent was able to make oral submissions, amounted to procedural unfairness, which is an error of law. It is material because a fair procedure could have resulted in a different outcome in terms of findings of fact and analysis thereof. Materiality is established by reference to the centrality of credibility to the appeal, and the requirement for the Judge to evaluate a number of characteristics relevant to risk on return.
23. There was considerable discussion regarding disposal of the appeal in the event that a material error of law was identified in relation to the grounds. Ultimately, however, the parties were able to agree that, in the event of a finding of material error of law, the appeal should be remitted to the First-tier Tribunal for a de novo hearing.
24. I consider that approach to be correct. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), I have considered whether to retain the matter for re-making in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statement.
25. I have taken into consideration the history of the case, the nature and extent of the findings to be made, as well as the fact that the nature of the error of law in this case meant that the Appellant was deprived of a fair hearing.
26. I consider that it would be unfair for either party to be unable to avail itself of the two-tier decision-making process and I therefore remit the appeal to the First-tier Tribunal.

Notice of Decision
(1) The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
(2) The decision of the First-tier Tribunal is set aside.
(3) The appeal is remitted, de novo, to the First-tier Tribunal to be reheard by any judge except First-tier Tribunal Judge Robinson.

Siân Davies

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

26 June 2026