Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001906
(PA/72032/2024)

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 2 August 2026

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

SD
(anonymity order made)
Respondent

Anonymity

Unless and until a tribunal or court directs otherwise, the Respondent is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

DECISION AND REASONS
1. On 5 January 2026 the First-tier Tribunal allowed the Respondent’s appeal on protection and human rights grounds. The Secretary of State now has permission to appeal against that decision.
2. For the reasons set out below, I dismiss the Secretary of State’s appeal, and uphold the decision of the First-tier Tribunal.
Case History and Matters in Issue
3. The Respondent SD claimed asylum on 10 October 2023. The basis of his claim was that he was a political opponent of the current government in Algeria. He had, with associates, been openly critical of the President and had as a result faced persecution. SD averred that he had faced arrest, threats, ill-treatment and imprisonment. The allegations pursued by the authorities were framed as security related offences, and he faced charges of “promoting prohibited activity”. He was forced to confess under duress and was sent to prison. SD supported his claim with various documents which he asserted to be genuine documents generated by the legal system in Algeria and relating to the cases against him.
4. The Secretary of State refused the claim and SD duly exercised his right of appeal. The matters in issue before the First-tier Tribunal were summarised in its decision as follows:
“8. The respondent accepted the appellant’s identity and nationality.

9. The respondent’s refusal letter accepted that, if the key aspects of the appellant's account were found to be credible, he would not be able to obtain sufficient protection upon return, nor would internal relocation be a viable option.

10. The advocates confirmed that there were no stand-alone Article 8 claim and this stands and falls with the asylum claim.

11. The advocates agreed that the single issue in dispute was credibility. That does mean that if this issue is resolved in the appellant's favour then his protection claims succeeds”.
5. The First-tier Tribunal heard oral evidence from SD, and had regard to the documentary evidence he supplied. Although it made detailed findings, the Tribunal’s central conclusions are summarised at its paragraph 23:
“I found the appellant to be a credible witness. In reaching this conclusion, I have had regard to his interviews, witness statements as well as his oral evidence. On the key material issues, I considered his account to be consistent and reliable. He gave his evidence in a straightforward manner and answered the questions put to him. I found his oral evidence to be clear, detailed and internally consistent. His consistency on the central aspects of his claim was notable, and I attached significant weight to his evidence. Any matters that were initially unclear or incomplete were then subsequently clarified through documentary and oral evidence.”
6. Credibility being the only matter in issue, the Tribunal accordingly allowed the appeal on protection grounds.
7. The Secretary of State’s grounds of appeal are dated 20 February 2026. There are two grounds.
8. The first is that the First-tier Tribunal’s credibility assessment is flawed for a failure to make findings on a matter disclosed on the face of one of the documents supplied by SD. An Algerian court document dated 2 November 2025 records that he previously served a five year prison term for “terrorism related offences”. The Secretary of State submits that SD failed to mention this matter when interviewed. She submits that “ the evidence clearly demonstrates that the appellant has been involved in terrorism-related offences, and there is no independent evidence to support his assertion that he has been ‘set up’ or ‘framed’. This undermines the core of his claim and his alleged fear of return”.
9. The second ground is also related to the evidence that SD served a five year prison sentence in Algeria. The Secretary of State contends, in light of that evidence, that the First-tier Tribunal materially erred in failing to apply s72 Nationality Immigration and Asylum Act 2002.
Ground 1: Credibility
10. Before the First-tier Tribunal the Secretary of State had relied on what she submitted to be certain anomalies in SD’s evidence, in particular his denial that he had ever been involved with, or convicted of, terrorism, which was to be contrasted with the information contained in the documents he produced in support of his claim. The First-tier Tribunal’s treatment of those submissions appears at paragraphs 27-28 of its decision:
“27. The respondent relies on alleged inconsistencies in the appellant's screening interview concerning terrorism-related fences, namely the negative responses when the appellant was asked whether he had been involved in or suspected of terrorism. I accept the appellant's explanation that he understood those questions to be asking whether he supported or engaged in terrorism, which he has consistently and emphatically denied. This explanation is credible, particularly given the nature of the screening interviews, the appellants limited understanding of the legal framing of the questions, and his clear moral opposition to terrorism expressed throughout his evidence.

28. With the benefit of providing more detailed evidence and context, the appellant did not seek to conceal his previous imprisonment. He addressed it openly in his witness statement, oral evidence, and documentary evidence, consistently maintaining that the charges were fabricated and politically motivated. I do not find that the screening interview responses amount to deliberate deception or evasion. Rather they reflect misunderstanding at an early stage which does not undermine the core of the protection claim”.
11. These comments are to be read in the context of the Tribunal’s findings overall, which accepted as wholly credible the Appellant’s claim that he had faced unjustified and malicious prosecution in Algeria, and served time in prison, for reasons of his political opposition to the Algerian state.
12. The Secretary of State now seeks to persuade me that those clear findings notwithstanding, the First-tier Tribunal’s entire credibility assessment is vitiated for its “failure” to make a finding on whether or not the Appellant was in fact sent to prison for terrorism.
13. I have no hesitation in rejecting that submission. The First-tier Tribunal decision is detailed, but it is trite that it does not have to refer to each and every item of the evidence. The fact that it did not expressly refer to the court document in its paragraph 28 is not in my view material. It is clear from the passages I cite, and indeed the decision overall, that it accepted the Appellant’s evidence that he was falsely accused and prosecuted, and that is why he was sent to jail. That was the very reason it allowed the appeal. I do not accept the assertion in the grounds that “the evidence clearly demonstrates that the appellant has been involved in terrorism-related offences”. On the contrary, the First-tier Tribunal found that the evidence very clearly demonstrated the opposite, in the context of the Secretary of State’s agreement that the Algerian authorities do use malicious prosecutions as a tool of repression against political opponents. I note in this regard that the Secretary of State has not sought to invoke the exclusion clause of the Convention.
Ground 2: s72
14. As my summary above foreshadows, it has never been part of the Secretary of State’s case that SD was a criminal. This is an entirely new point, based on the First-tier Tribunal’s finding that the court documents relied upon by SD were genuine. Given that one of these documents reveals that SD was sent to prison in Algeria for 5 years, the Secretary of State reasons, the Tribunal should of its own motion have given consideration to s72 Nationality Immigration and Asylum Act 2002: TB (Jamaica) [2008] EWCA Civ 977 [at 29] applied.
15. The grounds of appeal read:
“7. Section 72(3) of the 2002 Act provides that, for the purposes of Article 33(2) of the Refugee Convention, a person shall be presumed to have been convicted by final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if:

a. he is convicted outside the United Kingdom of an offence; and
b. he is sentenced to a period of imprisonment of at least 12 months

It is submitted that the FtT made a material error of law by failing to consider section (3), a mandatory statutory requirement and that the decision should therefore be set aside.”
16. As Ms Everett acknowledges, that extract from the Act unhelpfully omits a third key component of the statutory provision. The relevant parts of section 72 Nationality Immigration and Asylum Act 2002 in fact read:
72 Serious criminal

(1) This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from prohibition of expulsion or return).

(2) …

(3) A person is convicted by a final judgment of a particularly serious crime if—

(a) he is convicted outside the United Kingdom of an offence,
(b) he is sentenced to a period of imprisonment of at least 12 months, and
(c) he could have been sentenced to a period of imprisonment of at least 12 months had his conviction been a conviction in the United Kingdom of a similar offence.

(4)…

(5) A person convicted by a final judgment of a particularly serious crime (whether within or outside the United Kingdom) is to be presumed to constitute a danger to the community of the United Kingdom.

(6) A presumption… that a person has been convicted by a final judgment of a particularly serious crime or that a person constitutes a danger to the community is rebuttable by that person.
17. The circumstances of the SD’s conviction are set out in his witness statement 16 April 2025. He explains that he was convicted in 2007 following a false accusation being levelled against him:
“I was picked up by the undercover police because of my association with someone called [X]. I was informed that he was involved in extreme ideologies, which I was completely unaware of. Notwithstanding my innocence I was sentenced to a term of 10 years imprisonment. Firm in my belief that I had been wrongfully convicted I submitted an appeal against the decision. Unfortunately the appeal was not heard until five years later during which time I remained incarcerated on what I maintained were unfounded charges. Upon hearing the appeal the court subsequently reduced my sentence to four years. The Court of Appeal knew fully well that there was no evidence against me but did not want to accept that I had been wrongly convicted and therefore reduced the sentence then released me”.
18. As I say under the heading of ground 1, it is clear that the First-tier Tribunal accepted SD’s evidence about his interactions with the Algerian criminal justice system as credible.
19. I accept that the First-tier Tribunal did not address s72 in its decision. Given that no mention was made of it at the hearing before it, that is perhaps unsurprising. Nevertheless it is a statutory provision and its omission was therefore an error.
20. It is not however an error such that the decision should be set aside. That is because the omission is entirely immaterial to the ultimate decision reached by the Tribunal. I say that for two reasons. First, because the Secretary of State has produced no evidence at all to make out the test left out of the grounds: “he could have been sentenced to a period of imprisonment of at least 12 months had his conviction been a conviction in the United Kingdom of a similar offence”. There was no evidence before me that an “association” with an individual could, without more, have resulted in SD going to prison for a year in the UK. Second, because it is quite clear from the First-tier Tribunal’s reasoning that it would have found the presumption in s72 to have been rebutted. The Tribunal accepts that SD has a “clear moral opposition to terrorism” [§27], and that his case was an example of the lack of judicial independence in political cases [§36]. It was on that basis that it accepted that the charges against him were wholly politically motivated. On those findings the Appellant has rebutted the presumption that he is a danger to the community.

Decisions and Directions
21. The Secretary of State’s appeal is dismissed and the decision of the First-tier Tribunal upheld.
22. Although there is always a presumption in favour of open justice I have made an order for anonymity because SD is a refugee whose family remain in Algeria.

Upper Tribunal Judge Bruce
Immigration and Asylum Chamber
27 July 2026