Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No.: UI-2026-001966

First-tier Tribunal No: PA/60181/2024
LP/09238/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 4 August 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

AR (PAKISTAN)
(ANONYMITY direction MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Alam, Counsel instructed by Moorhouse Solicitors
For the Respondent: Ms A Ahmed, Senior Home Office Presenting Officer

Heard at Field House on 29 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
1. The appellant appeals against the decision of First-tier Tribunal Judge Rothwell promulgated on 5 September 2025 (“the Decision”). By the Decision, Judge Rothwell dismissed the appellant’s protection and human rights claims in which he maintained that he had a well-founded fear of persecution and serious harm on return to Pakistan as he had come out as gay to his family since coming to the UK as a student.
Relevant Background
2. The appellant is a national of Pakistan, whose date of birth is 22 September 1996. On 22 August 2022 the appellant applied for a student visa. The application was successful, and the appellant was issued with a student visa on 1 September 2022 that was valid from 3 September 2022 until 20 January 2024. The appellant arrived in the UK on 24 September 2022, and he is recorded as claiming asylum on 2 March 2023.
3. His claim was that he was a gay man who had concealed his sexuality in Pakistan because he was scared of living in an Islamic country where the punishment for being gay was death. After receiving telephone calls in early January 2023 from his family telling him to return to Pakistan to marry his cousin, he told his younger brother that he was gay. His brother put the phone down, and told his father who immediately called him back on 17 January 2023 and threatened to kill him if he returned to Pakistan.
4. Alternatively, the trigger for his disclosure of his sexuality was that the girl that his family were forcing him to marry had just finished her education, and his family suggested an online Nikah with a view to her joining him in the UK (AIR 26).
5. Since arriving in the UK, he had had one relationship, which was with his current partner TA, whom he met at university in November 2022 and then later at the Disco Rani Club, and with whom he began a relationship at the beginning of 2023. He had proposed to him on his birthday on 10 June 2023.
6. In the reasons for refusal letter (RFRL) dated 3 April 2024, the respondent assessed the appellant’s claim by reference to the Nationality and Borders Act 2022 (NABA).
7. Firstly, the respondent accepted that the appellant was claiming asylum as a member of a particular social group (PSG) and that his claim met both the conditions contained in section 33.
8. Secondly, having regard to the definition of persecution in section 31, the respondent was satisfied that the treatment which the appellant feared would reach the threshold of persecution because he claimed that he would be killed by his family, the police and the whole of society if returned to Pakistan because he was a gay man.
9. Thirdly, the respondent addressed the issue of the appellant’s credibility. The respondent did not accept any of the material facts relied upon by the appellant. The respondent did not accept that the appellant was a gay man, or that his life had been threatened by his family, the police or the whole of society. This was because he had provided inconsistent evidence without reasonable explanation, as well as a lack of detail. There were also some elements of his account which were inconsistent.
10. It was considered likely that he and TA were already acquainted with each other in Pakistan before jointly deciding to come to the UK and claim asylum. This was based upon the similarities in his and his partner’s asylum claims, in which they both lived in the same area of Samundri in Pakistan; they both applied at the same visa application centre; they both made visa applications in August 2022 to attend the same university; they both enrolled on the same course; and they travelled to the UK on the same day.
11. Furthermore, details of events provided in their respective asylum interviews were very similar with regard to the answers given i.e. similar realisations of their sexual orientation at the same age; similar physical attractions; and similar scenarios: buying gifts for school/college male friends; families forcing arranged marriages within days of each other; potential wives, both of whom had just completed degrees; removing SIMs out of mobile phones; and two boys getting stoned to death after being caught together. These similarities undermined his credibility and increased the likelihood that he already knew TA whilst living in Pakistan.
12. After carefully considering all the evidence in the round, it was considered that he had not provided a credible account of his sexuality, and therefore the material facts of his claim were rejected.
13. Fourthly, the respondent addressed the question of whether the appellant had a well-founded fear of persecution by reference to section 32. The respondent did not accept that the appellant was at real risk of persecution upon return, because the material facts of his claim which would have created a real risk of persecution were not accepted.
14. Fifthly, the respondent addressed sections 34 and 35. The respondent accepted that there would not be sufficient protection from persecution in Pakistan (section 34), and that he could not relocate within his home country (section 35) if the key material facts of his claim were accepted. However, as the respondent rejected the key material facts of his claim, it was considered that he was not at risk on return and he did not need to seek protection or to relocate internally.
15. On the issue of humanitarian protection, the respondent said that based upon the information provided and the credibility factors mentioned above, the appellant did not qualify for humanitarian protection, because there was not a real risk that he would face the death penalty or execution; unlawful killing; or torture or inhuman or degrading treatment or punishment in the country of origin.
The Decision of the First-tier Tribunal
16. The appellant’s appeal came before Judge Rothwell sitting at Hatton Cross on 20 August 2025. Both parties were legally represented. The Judge received oral evidence from the appellant, and from two supporting witnesses, MH and WA.
17. In the Decision at para [19] the Judge directed herself that she must apply a two-stage test. As per the guidance from JCK (s32 NABA 2022) (Botswana) [2024] UKUT 100, she must first determine the following matters on the balance of probabilities: (a) taking the appellant’s claim at its highest, is there a Convention reason? And (b) does the appellant fear persecution for that Convention reason?
18. The Judge’s findings on the protection claim began at para [22]. She said that she had applied the standard of probabilities, and on balance she did not accept that the appellant was a truthful witness on the core part of his claim. If the standard of proof had been lower, she might not have come to the same conclusion on credibility.
19. At para [23] the Judge found that it was more likely than not that the appellant and TA had concocted remarkably similar asylum applications, because the similarities between the two accounts could not be ignored. She rejected the appellant’s evidence that it was just a coincidence.
20. At paras [24] to [32] the Judge gave detailed reasons for the conclusion she had stated at para [23].
21. At para [33] the Judge acknowledged that the corroborative evidence of MH and WA needed to be addressed. The Judge accepted that the appellant and MH were friends, and she could understand why he would wish to help his friend. But she did not find that she could rely upon MH’s evidence that they were in a gay relationship.
22. At para [34] the Judge turned to address the oral evidence from WA. He said that the appellant and TA had not been living together, but the appellant said that they had lived together. The Judge placed little weight upon WA’s evidence, as he did not know the appellant well.
23. At para [35] the Judge accepted that the appellant had attended events at Disco Rani and other events for gay Asian people, as well as Pride. She also accepted that the appellant had had photographs of him taken with others and also with MH with their top halves uncovered. But she placed little weight upon this evidence. On balance, she found that the appellant’s attendance at Disco Rani etc and the photographs were part of the appellant’s plan to make an application for asylum on grounds of sexuality.
24. The Judge turned to consider section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004, and she found that section 8 applied. She found that the appellant came to the UK to make an asylum claim, and that he did not intend to return. The Judge held that the appellant’s overall credibility was damaged by section 8.
25. At para [38] the Judge said that on balance, when she assessed all the evidence on a cumulative basis and in the round, she did not accept that the appellant was gay.
26. At para [41], the Judge found that the appellant was not a person in need of humanitarian protection, as she had not accepted that he was credible.
27. At para [42], the Judge did not accept that the UK would be in breach of its obligations under Article 3 ECHR if the appellant were to be returned to Pakistan.

The Application for Permission to Appeal to the Upper Tribunal
28. The appellant applied for permission to appeal to the Upper Tribunal on five grounds. Ground 1 was that the Judge had misapplied the standard of proof. Ground 2 was that the Judge had failed to consider and give adequate weight to the corroborative evidence. Ground 3 was that the Judge had made irrational and perverse findings on the photographic and event evidence. Ground 4 was that the Judge had failed to consider the evidence in the round. Ground 5 was that the Judge had failed to apply HJ (Iran) principles.
29. As to Ground 1, it was submitted that what the Judge had said at [22] of the Decision demonstrated a fundamental misapplication of the correct legal test. While section 32 of NABA introduced a two-stage approach, the second stage required the Tribunal to assess whether there was a reasonable degree of likelihood of persecution. The Judge had failed to apply this lower standard at the second stage. This error went to the heart of the Decision, as the Judge expressly recognised that the application of the correct standard might have led to a different outcome.
The Reasons for the Grant of Permission to Appeal
30. On 16 April 2026 First-tier Tribunal Judge Williams granted permission to appeal on all grounds raised. It was arguable that, when considering what was said at para [16] of JCK, the Judge applied the incorrect standard of proof to the question of credibility. The other grounds pleaded were not particularly forceful. However, given that they all centred on the Judge’s credibility assessment, the scope of the grant of permission was not restricted.
The Rule 24 Response
31. In a Rule 24 response dated 30 April 2026, a member of the Specialist Appeals Team gave the respondent’s reasons for opposing the appeal.
32. The Judge had applied for correct standard of proof, in line with JCK. The Headnote for JCK stated that Question 2 - as required by section 32(2)(b) - was the “subjective fear test”. The question of whether a person does in fact fear such persecution is to be determined on the balance of probabilities. When the assessment moves to Questions 3-5 (the assessment of risk of harm, state protection and any reasonable internal flight alternative) the determination must be made on the lower standard of proof. The Judge had made a correct self-direction as to the standard of proof and JCK at [19] and [20]. The Judge went on correctly to apply the civil standard when considering the subjective fear of the appellant.
The Error of Law Hearing in the Upper Tribunal
33. At the hearing before me to determine whether an error of law was made out, Mr Alam developed the grounds of appeal with reference to the guidance given in JCK, including what is said at paras [15] and [19].
34. On behalf of the respondent, Ms Ahmed submitted that it was immaterial that the Judge had not given a clear answer to Question 1, as the answer to Question 1 was not in dispute between the parties.
35. As to Question 2, the past persecution scenario envisaged in para [17] of JCK did not apply in the instant case, as the appellant did not claim to have suffered past persecution in Pakistan on account of being gay. The only issue in the appeal was whether the appellant was credible in his claimed characteristic of being a member of a PSG comprising gay men, and the Judge rightly disposed of that issue by assessing the appellant’s credibility on the balance of probabilities.
36. In reply, Mr Alam submitted that there must be a difference in treatment under NABA between claims involving alleged past persecution and claims which do not. Question 2 should be approached on the same basis as Question 1. The correct approach to Question 2 was whether, taking his claim at its highest, the claimant is likely to fear persecution?
Discussion and Conclusions
37. Before turning to my analysis of this case, I remind myself of the need to show appropriate restraint before interfering with a decision of the First-tier Tribunal, having regard to numerous exhortations to this effect emanating from the Court of Appeal in recent years, including in Volpi & another v Volpi [2022] EWCA Civ 464 at [2].
38. Ground 1 is the crucial ground of appeal, because if the Judge failed to apply the correct standard of proof to the resolution of the issue of the credibility of the core claim, it must follow that the Decision as a whole is unsafe and must be set aside.
39. In resolving the dispute raised by Ground 1, I have particular regard to para [16] of JCK where UTJ Bruce observes that, during its passage through Parliament, s32(2)(b) – the subjective fear test - was widely trailed as applying the civil standard of proof to claims of past persecution, and that the respondent’s published guidance instructs caseworkers that the exercise to be performed under s32(2)(b) is an assessment of the material facts which the claimant is presenting. However, UTJ Bruce goes on to disagree with both propositions, on the ground that neither of them actually reflects the wording of s32(2)(b).
40. UTJ Bruce goes on to state as follows in para [17]:
“The provision simply requires the decision maker to consider whether the asylum seeker “does in fact” fear. It is otherwise referred 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 his persecutors have now fallen from power: he could prove, on the 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 always however 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.”
41. I consider that Judge Rothwell correctly directed herself as to the scope of Question 2. Unlike for Question 1, the decision maker is not required to take the claim at its highest. The decision maker is not required to assume under Question 2 that the claimant has the characteristic he claims to have. On the contrary, the question of fact that has to be resolved is whether the claimant is in fact afraid because of the characteristic. So, if he does not in fact have the characteristic, ipso facto he is not in fact afraid.
42. However, while the Judge purported to follow the guidance given in JCK, she did not direct herself that, when considering Question 2, credibility can be relevant but will not on its own be determinative.
43. As to whether the Judge thereby erred in law in her approach, I consider that there is considerable room for debate. The difficulty is that JCK was not an appeal where the claimed characteristic was disputed. Although the intent in JCK is to give general guidance, there is a clear tension in my judgment between JCK holding that credibility will not on its own be determinative of the answer to Question 2, but at the same time holding that there will be cases where the acceptance or rejection of historical facts presented by a claimant will inform the decision on whether or not he is in fact afraid. In order to arrive at a finding that a claimant has invented or exaggerated past events, there must be an assessment of the claimant’s credibility, and prima facie that credibility assessment must be conducted on the balance of probabilities under Question 2.
44. I consider that UTJ Bruce probably had in mind a scenario where the claimant is unable to prove on the balance of probabilities that he was subjected to past persecution on account of his asserted characteristic, but that this is not determinative of the question whether the claimant does in fact nonetheless have that characteristic, and hence whether the claimant is in fact afraid in consequence of the characteristic. An example of this is where the claimant claims to have suffered persecution in the country of origin on account of being a Christian convert. The Tribunal might find that the claimant has not discharged the burden of proving on the balance of probabilities that such past persecution occurred, but the Tribunal might nonetheless be persuaded that the claimant is a genuine Christian convert due to his conduct and behaviour in the UK.
45. The crucial dichotomy is between an asserted past event flowing from the asserted characteristic, and the present manifestation of the asserted characteristic which can be said to be stretch into the future.
46. The implication of UTJ Bruce’s observations in para [17] is that a credibility assessment in respect of a disputed characteristic should not be at the forefront in the resolution of Question 2, and therefore logically it must be deferred to Question 3, where it must be assessed on the lower standard of proof. Support for this construction is to be found in her holding at para [19] that under Question 3 the decision maker must apply the refugee standard of proof “in a rounded, holistic assessment of all the evidence” and her later observation at para [25] that the decision maker is likely to have to go over at least some of the same ground in answering Question 3 as was covered in answering Question 2, but this time applying the lower standard of proof.
47. An additional pragmatic reason for addressing credibility at the Question 3 stage, or for re-addressing the issue of credibility applying the lower standard of proof, is that NABA does not apply to a human rights claim under Article 3 ECHR. In the assessment of a parallel claim under Article 3 ECHR the decision maker must assess all the evidence relied upon on the lower standard of proof. So, if this exercise is not performed in answer to Question 3, because the claimant has already been found not credible under Question 2, the decision maker will still have to perform the exercise in addressing the parallel claim under Article 3 ECHR, which may lead to an egregious and highly undesirable inconsistency between their conclusion on real risk of persecution under the asylum claim and their conclusion on real risk of serious harm contrary to Article 3 ECHR.
48. While the Judge was clearly satisfied on the balance of probabilities that the appellant had conspired with TA to game the system through a concocted account of having only met each other by chance in the UK, and of becoming romantically attached as a gay couple, the Judge was clearly troubled by the other evidence that the appellant brought forward to show that he was genuinely gay. Had the Judge not been so troubled, she would not have observed that, if the lower standard of proof applied, she might have reached a different conclusion on the core question of whether the appellant was genuinely gay.
49. Absent further clarification from the Upper Tribunal or the Court of Appeal as to how to perform a credibility assessment under NABA in a case such as this where the characteristic itself is the core issue in dispute, I am agnostic as to whether the Judge needed to address her positive credibility concerns under Question 3, applying the lower standard of proof to all the evidence relied upon by the appellant holistically, or whether she could have lawfully addressed all the credibility issues relating to the disputed characteristic under the umbrella of Question 2 by following the respondent’s published guidance which appears to be designed to bridge the gap between the civil standard of proof and the lower standard of proof, so as to avoid the decision-maker having to go over the same ground twice, and thereby potentially reaching a conclusion under Question 3 which is inconsistent with their answer to Question 2.
50. Assessing credibility and refugee status in asylum claims lodged on or after 28 June 2022, Version 13.0, published to Home Office staff on 28 September 2023, states at page 25/68 as follows:
“…when making findings about the material elements of the claim, decision-makers must only accept those elements that meet the standard of the balance of probabilities, after the benefit of the doubt is applied (my emphasis).”
51. The Judge did not follow the guidance in JCK to the letter and nor did she follow the respondent’s guidance. The Judge did not give the appellant the benefit of the doubt in respect of the countervailing evidence of his conduct and behaviour in the UK, and the Judge did not ask herself at Question 3 whether - notwithstanding her entirely sustainable finding that the appellant and TA had conspired to concoct almost identical asylum claims - there were nonetheless substantial grounds for believing that the appellant was in fact gay, and that he would thereby be at risk of persecution upon return to Pakistan on HJ (Iran) grounds.
52. As a result of failing to think through the consequences of her highlighting to the parties that she might have reached a different conclusion on credibility if the lower standard of proof applied, the Judge’s engagement with the parallel claim under Article 3 ECHR was manifestly flawed as she wrongly treated it as being disposed of by her application of the civil standard of proof to the issue of the appellant’s credibility, whereas, on any view, she needed to apply the lower standard of proof to all the evidence relied on in support of the appellant’s parallel human rights claim.
53. For the above reasons, I am satisfied that a material error of law is made out, and that the Decision is thereby unsafe and must be set aside.
54. I have carefully considered the venue of any rehearing, taking into account the submissions of the representatives. 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 remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statement.
55. I consider that it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process and I therefore remit the appeal to the First-tier Tribunal.
Notice of Decision
The decision of the First-tier Tribunal contains an error of law, and accordingly the decision is set aside in its entirety, with none of the findings of fact being preserved.
This appeal is remitted to the First-tier Tribunal at Hatton Cross for a fresh hearing before any Judge apart from Judge Rothwell.
Anonymity
The First-tier Tribunal made an anonymity order in favour of the appellant, and I consider that it is appropriate that the appellant continues to be protected by anonymity for the purposes of these proceedings in the Upper Tribunal.

Andrew Monson
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
24 July 2026