Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002266
First-tier Tribunal No: PA/64875/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 24th of September 2026

Before

UPPER TRIBUNAL JUDGE BULPITT

Between

AI
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Kerr, Counsel instructed by Wiseman Solicitors
For the Respondent: Ms A Sansom, Senior Home Office Presenting Officer

Heard at Field House on 17 September 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 29 year old Ethiopian national of Oromo ethnicity. He entered the United Kingdom on 29 September 2022 without permission and, having been encountered by immigration officers, he made a protection claim. He was interviewed in connection with that claim in December 2023, in March 2024 and in May 2024. On 8 May 2024 the respondent issued a decision refusing the appellant’s claim. The appellant appealed against that decision and his appeal was heard by First-tier Tribunal Judge Hawden-Beal (the Judge) on 3 June 2025. The Judge dismissed the appellant’s in a decision promulgated on 19 June 2025. The appellant now appeals, with permission granted by an Upper Tribunal Judge, against the Judge’s decision. Pursuant to section 12(1) of the Tribunals, Court and Enforcement Act 2007, the issue for me to resolve is whether the decision of the Judge involved an error of law.
The appellant’s claim and the respondent’s decision
2. The appellant claimed to fear persecution by the state authorities in Ethiopia for reason of his political opinion in favour of an independent Oromo state, his ethnicity, and his membership of a particular social group, as the victim of trafficking. The appellant claimed that his father had left home in Ethiopia and was involved in the Oromo Liberation Front (OLF) and the Oromo Liberation Army (OLA). As a consequence the appellant claimed that his family have been targeted by the state authorities in Ethiopia. The appellant claimed that he was also a supporter of the OLA and also Ethiopia’s National Youth Movement for Freedom and Democracy (Qeerroo) and that he had attended demonstrations against the Ethiopian government. The appellant claimed that he had been arrested four or five times as a result and that while in detention he was beaten and tortured. After the last occasion in February 2015, when he was held for seven days, beaten and forced to confess to hoisting an OLF flag at his school, the appellant decided he had to leave Ethiopia. He travelled through Sudan to Libya where he was exploited as a victim of trafficking. He then travelled to Italy and on to Germany where he claimed asylum. When that claim was refused seven years later, he left and travelled through Belgium and France and then onto the United Kingdom in a small boat, arriving on 29 September 2022.
3. The respondent accepted that the appellant is of Oromo ethnicity and that he had been the victim of modern slavery while in Libya. The respondent did not however accept that the appellant’s father had been involved with the OLF or the OLA, that the appellant had been involved with the OLF, OLA or Qeerroo, or that the appellant had a political opinion which could cause him to be persecuted. The respondent concluded that the appellant had not received any adverse attention from the Ethiopian authorities. The respondent said it reached that conclusion because the appellant’s account was inconsistent and lacked detail. The respondent said the appellant had failed to disclose relevant information at the earliest opportunity and had failed to claim asylum in safe countries. As such it was said his credibility was undermined. The respondent concluded that the appellant would not be at risk if he returned to Ethiopia. The respondent also considered the appellant’s right to respect for his private life but found that the appellant did not meet the requirements of the Immigration Rules for being granted leave to remain and that he would not face unduly harsh consequences if he returned to Ethiopia. Consequently the respondent refused the appellant’s protection and human rights claims.
The appeal to the First-tier Tribunal and the Judge’s decision
4. The appellant appealed against the respondent’s decision in May 2024. In anticipation of his appeal being heard, the appellant provided a witness statement in which he said that he had been “politically active” while in the United Kingdom. The respondent consented to the “new matter” of the appellant’s activities while in the United Kingdom being considered by the Tribunal.
5. The parties were represented at the hearing before the Judge. The appellant participated in the hearing with the assistance of an Oromo interpreter and gave oral evidence. During the appellant’s oral evidence his representative applied to introduce new evidence of the appellant’s activities while in the United Kingdom. The respondent’s representative opposed the admission of this evidence and the Judge refused to admit the evidence stating at [27] of her decision that: “I accepted that this was not the appellant’s fault, but I had to be fair to the respondent’s representative as well as the appellant and this late submission was unacceptable.” The Judge heard submissions from the parties’ representatives and reserved her decision.
6. The Judge promulgated her decision on 19 June 2025. In that decision she gave a detailed summary of the appellant’s evidence in chief, answers to cross examination and answers to questions from the Judge ([14] – [28]). Having then identified the legal framework to be applied, the Judge turned to her “findings”
7. At [36]-[38] the Judge stated that the respondent erred in her consideration of whether the appellant had a well-founded fear of persecution as a result of a characteristic recognised by the Refugee Convention. The Judge stated at [36] that the respondent conceded that the appellant’s claim engaged the Refugee Convention and says at [37] that the respondent incorrectly considered whether the appellant feared persecution for that reason, by reference to his credibility. This, the Judge said, was contrary to the approach identified in JCK (s32 NABA 2022) (Botswana) [2024] UKUT 00100 (IAC) (JCK).
8. At [39] the Judge stated that:
The respondent accepts that the fact that the appellant fears death as a result of his political opinion and ethnicity sufficient to engage the refugee convention, in which case, given that the respondent accept that he fears death, that surely must be sufficient to engage, on the balance of probabilities, the subjective fear test as set out in JCK which is only as assessment of whether someone is in fear not whether the events which are claimed to have happened have attracted persecution or they will do so in the future. I am satisfied that the appellant does have a subjective fear of arrest or death because of his political opinion..
9. The Judge stated at [40] that in concluding that the appellant does have a subjective fear of persecution she had not considered whether the appellant’s credibility was undermined by his failure to claim asylum in safe countries because “it is not relevant to the question of whether he has that subjective fear”. The Judge stated at [41] however, that having reached the conclusion the appellant does have a fear of persecution because of his political opinion, she did consider the appellant’s credibility to be undermined by his failure to claim asylum in Belgium or France “but I do not consider it to be damaged to the extent to which the respondent claims”.
10. The Judge then considered whether the appellant would be at risk of persecution in Ethiopia beginning at [42] of her decision, directing herself that this question must be answered applying the lower standard of proof. The Judge found at [43] that the appellant would not be at risk as a result of being trafficked in Libya, before turning to the question of whether the appellant would be at risk of persecution by state authorities in Ethiopia.
11. At [44] the Judge recounted the appellant’s evidence about his father’s involvement with the OLF / OLA before concluding at [45]:
I am not entirely sure that the Appellant understands the difference between the OLF and the OLA given his answer in the second interview at question 7 when he said that the OLF became OLA. The OLF is the political wing of the group and the OLA is the extremist armed wing, which has been designated as a terrorist group and which separated from the OLF in 2018 after the OLF signed a peace treaty with the Ethiopian government….
12. The Judge stated at [46] her assessment that the appellant’s claim involved the assertion that he was targeted by the Ethiopian government both as a result of his father’s activities and also because they considered him to be a supporter of the OLF. Having considered relevant country evidence and country guidance at [47] and [48], as well as the appellant’s accounts in his three asylum interviews and in a witness statement at [49] and [50], the Judge stated at the end of [50]:
“So on the face of it, the appellant’s arrests have not been specifically because of his support for or perceived supported for the OLF or because of his father’s activities for the OLF. He was arrested protesting against the death of the Oromo, because of his support for Qeerroo and because he was accused of hoisting an OLF flag.”
13. At [51] the Judge identified accounts the appellant gave in the three interviews about times he said he was arrested and detained, and why he left Ethiopia. At the beginning of [52] the Judge found these accounts to be inconsistent with each other and also with his witness statement. The Judge then recorded that:
Given these inconsistencies, I cannot be satisfied that the appellant was detained as often as he claimed and for the reasons he claimed. I am not sure that the appellant knows who it is he is said to be supporting or even why he is supporting them given the difference between the aims of the OLF and the OLA. I cannot be satisfied that the government have targeted his family because of his father’s activities because I do not know how it is that the government know of what party his father is said to be a member, given that the appellant himself is not sure. On the one hand it is the OLF and on the other it is the OLA.
14. The Judge then stated at [53] that the inconsistencies in the appellant’s account about what party his father was a member of, the number of protests the appellant had attended, the number of times he had been arrested and when he decided he had to flee the country meant that she: “cannot be satisfied that the appellant will be perceived to be a supporter of the OLF or has a significant history, known to the authorities, of OLF support such that he will be perceived to have an anti-government agenda.” At [54] the Judge added that given the length of time that had passed since the appellant left Ethiopia and the changes that had occurred in the country during that time: “I am not satisfied that the authorities will still be interested in him after all this time, even if they had been in the first place, which I do not accept to be the case, for the reasons given above.”
15. The Judge considered the appellant’s claim to have been “politically active” while in the United Kingdom at [55] –[57] and, noting her conclusion that the appellant was not of interest to the Ethiopian regime, the Judge found, in the absence of evidence that the Ethiopian authorities were aware of them, that the appellant would not be at risk because of his claimed activities in the United Kingdom.
16. The Judge then recorded at [58] her conclusion that although the appellant fears persecution because of his political opinion, the appellant would not be at risk of such persecution in Ethiopia as a result of his activities in Ethiopia or the United Kingdom because “I do not accept that the Ethiopian authorities will be aware of them or of him”. The Judge proceeded therefore to dismiss the appellant’s protection appeal. In the following paragraphs the Judge also dismissed the appellant’s human rights appeal, concluding that he would not face very significant obstacles to integration in Ethiopia where he was born, raised and educated and where his family continue to live.
The Appeal to this Tribunal
17. The appellant was granted permission appeal to this Tribunal by Upper Tribunal Judge Blum on three grounds. In ground one it is averred that the Judge erred because, having concluded that the appellant has a subjective fear of persecution in Ethiopia because of his political opinion, she then failed to consider whether that fear would prevent him from exercising his political opinion in Ethiopia applying the principles identified in HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31. In ground two it is averred that the Judge erred by dismissing the appeal primarily because she found that the appellant was confused about the difference between the OLF and OLA when the country information before the Judge suggested that the two terms are sometimes used interchangeably. In ground three it is averred that the Judge erred by making unclear findings about the appellant's activities in Ethiopia and in particular about whether and why he had been detained by the Ethiopian authorities whilst living there.
18. The respondent provided a written reply to the appellant’s grounds of appeal in accordance with rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 in which she opposed the appeal. The respondent argued that the Judge adequately considered the appellant’s political activities and concluded that he would not be at risk as a result of them. The respondent argued that the country information about the OLF and OLA being used interchangeably was not brought to the Judge’s attention and argued that the Judge correctly considered the case that was presented before her. The respondent acknowledged that the Judge’s findings could have been better expressed but argued that when read together they amounted to a finding that the appellant’s account was not deemed credible.
19. At the hearing before me Mr Kerr and Mr Sansom made helpful oral submissions consistent with the written arguments. I am grateful to both for their meaningful engagement with the issues raised in this appeal and I mean no disrespect by not setting the oral submission out in full but I will refer to those submissions as necessary in order to explain my conclusions.
Analysis
20. I have set out the Judge’s decision in some detail conscious of the judicial caution and restraint which must be exercised by an appeal court when considering whether to set aside a decision of a specialist fact finding tribunal (see HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22 at [72]). I recognise that written reasons can only ever be an imprecise statement of the impression made upon the Judge by the primary evidence and that there is no duty on the Judge to deal with every argument presented when providing her reasons (See Lowe v Secretary of State for the Home Department [2021] EWCA Civ 62 at [31]). The duty to give adequate reasons for a decision is a requirement for adequacy, nothing more or less, and it is not a counsel of perfection (see MD (Turkey v Secretary of State for the Home Department [2017] EWCA Civ 1958 at [26]). I have kept these principles at the forefront of my mind when analysing the Judge’s decision.
21. Nevertheless, I am satisfied that the Judge’s decision did involve errors of law as described in the appellants grounds of appeal. I am satisfied that these errors arose from the Judge’s fundamentally flawed approach to section 32 Nationality and Borders Act 2022 (the 2022 Act) and the task required by that section for determining the appellant’s appeal. I am satisfied that this misunderstanding led to a lack of clarity about what factual findings were made by the Judge (ground 3), a failure to consider the appellant’s case in accordance with the principles identified in HJ (Iran) (ground 1).
22. Section 32 of the 2022 Act provides as follows:
(1) In deciding for the purposes of Article 1(A)(2) of the Refugee Convention whether an asylum seeker’s fear of persecution is well-founded, the following approach is to be taken.
(2) The decision-maker must first determine, on the balance of probabilities—
(a) whether the asylum seeker has a characteristic which could cause them to fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion (or has such a characteristic attributed to them by an actor of persecution), and
(b) whether the asylum seeker does in fact fear such persecution in their country of nationality (or in a case where they do not have a nationality, the country of their former habitual residence) as a result of that characteristic.
(See also section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (asylum claims etc: behaviour damaging to claimant’s credibility).)
(3) Subsection (4) applies if the decision-maker finds that—
(a) the asylum seeker has a characteristic mentioned in subsection (2)(a) (or has such a characteristic attributed to them), and
(b) the asylum seeker fears persecution as mentioned in subsection (2)(b).
(4) The decision-maker must determine whether there is a reasonable likelihood that, if the asylum seeker were returned to their country of nationality (or in a case where they do not have a nationality, the country of their former habitual residence)—
(a) they would be persecuted as a result of the characteristic mentioned in subsection (2)(a), and
(b) they would not be protected as mentioned in section 34.
(5) The determination under subsection (4) must also include a consideration of the matter mentioned in section 35 (internal relocation).
23. At [30] – [32] of her decision the Judge recognised that she had to apply section 32 of the 2022 Act when considering the appellant's asylum claim and that doing so involved two stages. The first stage involves applying s32(2) and sequential consideration, on the balance of probabilities, of whether (a) the appellant has a characteristic which could cause him to fear persecution, and (b) whether the appellant does in fact fear persecution in Ethiopia as a result of that characteristic. The second stage only applies if the first stage is answered in the affirmative, and it involves applying s32(4) and the consideration of (a) whether there is a reasonable likelihood the appellant would be persecuted in the home country as a result of the characteristic, and (b) whether they would be protected from such persecution. That is not however the approach the Judge took.
24. The judge was not assisted by the parties approach to the appeal. Whilst it purports to do so, the respondent’s decision does not sequentially consider each part of the two stage process identified in s.32. Instead, the respondent identified in her decision that the appellant claimed to have three characteristics which caused him to fear persecution in Ethiopia: (1) his race (by virtue of his Ormo ethnicity), (2) his political opinion (as a supporter of the OLF/OLA/Qeerroo), and (3) his membership of a particular social group (as the victim of trafficking in Libya). The respondent’s decision accepted that the appellant had the first and third of those characteristics, but did not accept that the appellant had a political opinion which could cause him to fear persecution. The decision then considered “credibility” and identified reasons why the appellant’s account of events in Ethiopia were not believed, before going on to consider whether the appellant would be at real risk on return. The appellant’s Appeal Skeleton Argument (ASA) and the respondent’s reply (RR) to that ASA, both then followed that approach and identified the primary disputed issue as being “credibility”. This approach erroneously treated “credibility” as having some special technical meaning and treated “credibility” as having an isolated role in the decision making process. Had the respondent’s decision, the ASA and the RR followed the two stage process identified at s.32 of the 2022 Act the confusion which arose would have been avoided.
25. Applying s.32(2)(a) of the 2022 Act the Judge was first required to determine on the balance of probabilities whether the appellant had characteristics which could cause him to fear persecution. Whilst it was conceded that the did have such characteristics in the form of his Oromo ethnicity and his membership of a particular social group (victim of trafficking), it was expressly not accepted that he had the characteristic of a political opinion which could cause him to be persecuted. The Judge was wrong to suggest at [36] that the respondent accepted that the appellant has such a characteristic simply because the decision acknowledged that he had claimed to have the characteristic. The respondent was in fact clear in her decision that this characteristic was not accepted. Given this was an explicitly disputed issue, the Judge was required first to first determine it and to resolve, on the balance of probabilities, whether the appellant had the characteristic of a political opinion which could cause him to fear persecution in Ethiopia.
26. As [13] of the decision in JCK (which the Judge quoted at [37]) identifies, whether the appellant had the characteristic of a political opinion was something to “be evaluated on the evidence in the round.” The Judge erred by not undertaking such an evaluation of the evidence to answer the question but instead inferring a concession that was not in fact made. As a result the Judge made no clear finding on the evidence about whether the appellant had the characteristic that could cause him to fear persecution because of his political opinion.
27. The Judge’s error in failing to resolve this question was compounded when the Judge moved on to consider the second question posed in s.32(2)(b) of the 2022 Act namely whether the appellant in fact feared persecution because of his characteristics. The Judge suggested at [39] that the respondent’s acceptance that a fear of death as result of political opinion “engage[s] the refugee convention” meant that the “subjective fear test” was “engaged.” Consequently, the Judge found, without any assessment or analysis of the evidence, that the appellant has a subjective fear persecution in Ethiopia as a result of his characteristics. The question of whether the appellant does in fact fear such persecution as a result of the characteristic however can only be answered once it has been determined whether the person has the characteristic, and can only be answered following an evaluation of the evidence in the round. The Judge did neither of these things before concluding that the appellant has a subjective fear of persecution as a result of his political opinion.
28. The reality is that the “credibility” of the appellant’s account (i.e. whether the various aspects of his account are likely to be true) about his activities and detentions in Ethiopia, his father’s involvement with the OLA/OLF when in Ethiopia, as well as the “credibility” of his claimed “political activity” while in the United Kingdom, was fundamental to consideration of the two questions posed in s.32(2) of the 2022 Act and fell to be considered at this part of the decision making process. The Judge’s understanding that “credibility” was not relevant to these questions was erroneous and her statement at [40] of her decision that section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 was therefore not relevant to this part of the decision making process, directly contradicts s.32(2) of the 2022 Act. The Judge could not realistically reach a conclusion about whether the appellant had a political opinion which could cause him to fear persecution in Ethiopia, or whether he in fact feared persecution because of his political opinion or Ormo ethnicity, without first deciding whether his evidence about supporting the OLA/OLF/Qeerroo in the past and being politically active in the United Kingdom was likely to be true.
29. Contrary to the Judge’s understanding, assessing whether the appellant’s account of events in Ethiopia is likely to be true, at this stage of the decision making process is entirely consistent with the decision in JCK. At [17] of JCK the tribunal acknowledged that 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”. This is one such case (as indeed was JCK) .
30. Bringing this together, to apply s.32(2) of the 2022 Act, it was necessary for the Judge to assess the extent to which the appellant’s account of events in Ethiopia and the United Kingdom was likely to be true in order to (1) resolve the disputed issue of whether the appellant had the characteristic which could cause him to fear persecution because of his political opinion and (2) determine whether the appellant in fact fears persecution as a result of his characteristics (race, membership of a particular social group and, if found, political opinion). The Judge erred by failing to do this and instead making an isolated and unexplained finding that the appellant had a subjective fear of persecution, without resolving the dispute about the appellant’s political opinion and without any evaluation of the evidence.
31. This error meant that the Judge proceeded to consider the questions posed at s.32(4) of the 2022 Act and attempted to assess whether the appellant would be persecuted as a result of his characteristics without reaching any reasoned conclusion about whether he held those characteristics. This led to the confused and unclear findings identified in ground three.
32. At [52] the Judge stated that she “cannot be satisfied that the appellant was detained as often as he claimed and for the reasons he claimed”. Whilst it is apparent from this conclusion that the Judge did not believe the appellant’s whole account, the vague finding that the appellant was not detained “as often as he claimed” does suggest that the Judge was satisfied that the appellant was detained on at least some occasions. Which occasions these were however, or why he was detained on those occasions is not however identified. A finding that the appellant has been detained in the past would be consistent with the Judge’s stated finding that the appellant fears persecution in Ethiopia because of his political opinion. It would not however be consistent with the Judge’s later statement at [54] that “I am not satisfied that the authorities will still be interested in him after all this time, even if they had been in the first place, which I do not accept to be the case”.
33. As a result of the error of approach and consequent confusion and unclear findings, there is a fundamental contradiction in Judge’s decision which means it must be set aside. On the one hand the Judge found that the appellant fears persecution because of his political opinion and appears to find that his political opinion has led to him being detained on one or more occasion. On the other hand the Judge found that the Ethiopian authorities did not target the appellant or his family and have never been interested in the appellant.
34. The error in the Judge’s approach to the appellant’s case also led to the failure to applying the principles identified in HJ (Iran) as averred in the first ground of appeal. Those principles require a Judge who finds that a person has a characteristic that could cause them to be persecuted, to then consider whether living openly with that characteristic would mean they were liable to persecution, and if so to consider what the person would do on return to his home country. An appellant who would live openly and thereby be exposed to persecution, has a well-founded fear of persecution even if he could avoid the risk by living discreetly. If the person would however live discreetly the question of why they would do so must be answered. If the person would live discreetly simply because that is how they would wish to live, they do not have a well-founded fear of persecution. If the person would live discreetly for fear of persecution, then their application should be accepted (see the Judgment of Lord Roger at [82]).
35. In this case the respondent considered the HJ (Iran) principles in her decision letter but concluded that the appellant fell at the first hurdle because she did not accept that the appellant had the characteristic of a political opinion that could cause persecution. The respondent repeated that position when expressly addressing HR (Iran) in the RR. The Judge however did not address HJ (Iran) at all in her decision and, as previously discussed, did not make a reasoned evidence based finding about whether the appellant had the relevant characteristic. Consequently the Judge did not ask the remaining questions identified in HJ(Iran) about how the appellant would act in Ethiopia even though they were plainly raised as an issue in the appeal.
36. Given the errors in the decision that I have already identified, it is unnecessary to consider ground two in any detail. I do however agree with Mr Kerr’s submission that the appellant gave a far more nuanced answer to the question about the difference between the OLF and the OLA to the one suggested by the Judge at [45] of her decision (repeated at [11] above). I also agree with Mr Kerr that the Judge’s summary in the same paragraph of the two organisations being distinct following the OLA separating from the OLF in 2018, is somewhat simplistic in light of the evidence in the Country Policy Information Note.
37. For all these reasons, I have reached the conclusion that the Judge’s decision did involve an error of law such that it must be set aside. Both parties agreed that in such circumstances, the extensive fact finding that is required means that the appeal should be remitted to the First-tier Tribunal. I agree with that assessment. I do however consider that the Judge’s unchallenged finding that the appellant would not be at risk of persecution in Ethiopia for reason of his membership of a particular social group (victim of modern slavery) can be preserved. That finding at [43] has not been challenged and is discrete from the errors which I have found that the decision involved.

Notice of Decision
The decision of First-tier Tribunal Judge Hawden-Beal involved an error of law and is set aside.
The appeal is remitted to the First-tier Tribunal for a fresh hearing before a different Judge.

Luke Bulpitt

Judge of the Upper Tribunal
Immigration and Asylum Chamber

23 September 2026