Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002282
First-tier Tribunal No: PA/00504/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

22nd September 2026

Before

UPPER TRIBUNAL JUDGE IQBAL

Between

DS
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Duffy, Solicitor, instructed by Farani Taylor Solicitors
For the Respondent: Mr Tufan, Senior Home Office Presenting Officer

Heard at Field House on 21 July 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, [the appellant] (and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) 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 (and/or other person). Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The appellant is a citizen of Nepal who appeals, with permission, against the decision of the First-tier Tribunal Judge ("the Judge") dismissing his appeal against the respondent's refusal of his protection and human rights claims. The Judge's decision was promulgated on 24 February 2026. The appellant's protection claim was based on his asserted fear that, if returned to Nepal, he would be arrested and prosecuted for an offence which he maintains he did not commit. The respondent refused the protection and human rights claims in a decision dated 10 April 2024.
The Judge’s Decision
2. In a relatively brief decision, the Judge summarised the background to the appeal, including the respondent's acceptance that the appellant's claim engaged a Convention reason, namely political opinion. However, the respondent did not accept that the appellant had come to the adverse attention of the Nepalese authorities as a result of speaking out against members of the Congress Party. At [7], the Judge identified the principal issues as credibility, sufficiency of protection, internal relocation and Article 8.
3. In setting out the legal framework from [9] - [11], the judge noted the guidance in JCK. At [9](a), the Judge highlighted the appellant’s claim at its highest raised a Convention reason, that is a political opinion. However, at (b), in relation to whether the appellant’s fear of persecution was for a Convention reason, stated “No”. At [10], he went on to set out that he had to determine whether it was reasonably likely that the appellant would be persecuted for a Convention reason, whether there would be sufficiency of protection and whether they could internally relocate.
4. The Judge's adverse credibility findings were set out principally at [13]-[22]. At [13], the Judge considered there to be an inconsistency between the appellant's answers at questions 75 and 81 of the asylum interview record and relied upon that as undermining the appellant's account. At [14], the Judge noted that the appellant had referred in cross-examination to DR in considerable detail despite not having mentioned him previously and regarded this as problematic. At [15], the Judge found it significant that, although the appellant claimed not to have known that Facebook material should be produced for the hearing, he had indicated during his asylum interview that he intended to provide Facebook posts but had not done so. At [16], the Judge attached very limited weight to a number of documents produced in English where the original Nepali versions had not been provided and where the translations were said to have been prepared by unknown translators whose qualifications and credentials had not been established. At [17], the Judge considered it implausible that documents said to have been obtained through the appellant's brother would have been signed by members of the village committee when, according to the appellant's own case, that committee had banned him. At [18], the Judge similarly attached limited weight to an online newspaper article dated 19 September 2017 because, although said to have been translated, there was no evidence as to who had undertaken the translation or how it had been carried out.
5. At [19], the Judge concluded that the appellant's account was not true and had been invented to avoid removal from the United Kingdom. At [20]-[21], the Judge found that section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 was engaged because the appellant had not claimed asylum until December 2022 despite arriving in August 2022 and had failed to provide a reasonable explanation for that delay, which damaged his credibility, albeit not determinatively. The Judge therefore concluded at [22] that the appellant was not a credible or truthful witness and that the asylum claim had been advanced to avoid removal.
The Grounds of Appeal and Grant of Permission
6. The grounds of appeal can be summarised as follows. First, that the judge misdirected himself in his application of section 32 of the Nationality and Borders Act 2022 and the guidance in JCK (s.32 NABA 2022) (Botswana) [2024] UKUT 00100 (IAC), in that he failed to adopt the staged approach required when assessing the claim. Second, that the judge gave irrational or inadequate reasons in treating the answers given to questions 75 and 81 as inconsistent. Third, that the judge had failed to adequately engage with the chronology and evidence in light of the appellant’s explanation relevant to section 8. Fourth, that the judge arguably relied on speculation in rejecting the documentary evidence.
7. Permission to appeal was granted, in particular in relation to the first ground. In granting permission, the Judge observed:
Having considered the decision and the application of section 32 of the 2022 Act by the Judge, it is not clear that the staged approach has been applied and it is also not clear what burden of proof the Judge was assessing against. Therefore there is an arguable error of law.
8. Permission was not, however, limited to that ground, and all grounds remained arguable before the Upper Tribunal
The Hearing
9. There was no composite bundle before the Tribunal at the hearing. I note that the appellant was unrepresented before the First-tier Tribunal but is now represented by Farani Taylor Solicitors. At the outset of the hearing, Mr Duffy on behalf of the appellant, applied for an adjournment on the basis of their non-compliance in providing a composite bundle. I considered that application and invited Mr Tufan's observations. Mr Tufan adopted a neutral position.
10. Having considered the matter in the round and noting that I had before me the material necessary to determine the appeal, I refused the application. The absence of a composite bundle did not prevent the fair and effective determination of the appeal. No cogent reason was advanced as to how an adjournment would materially assist the appellant or what further relevant evidence would be forthcoming. In the circumstances, I was satisfied that the interests of justice were best served by proceeding with the hearing rather than granting an adjournment.
11. Both representatives made relatively brief submissions. Mr Duffy confirmed that he relied upon and adopted the grounds of appeal.
12. Mr Tufan highlighted that the test under JCK, in particular question 2, is whether “the appellant does in fact fear persecution” and the judge’s findings from paragraph [12] onwards considered this test appropriately. Therefore, there was no mistake as to findings that followed and in any case, from [10] it was evident that the judge considered the lower standard when citing “reasonably likely” in relation to other findings. The judge was clear about why he rejected the appellants claim and the credibility findings that followed.
13. Mr Duffy, in response, highlighted again that there were difficulties with the judge’s findings and therefore the matter ought to be remitted to the First-tier Tribunal if an error of law was found. At the end of the hearing I reserved my decision. I now give that with full reasons.
Findings
14. In considering Ground 1, I find that the Judge at [9] correctly directed himself to the legal framework by reference to JCK (s.32 NABA 2022) (Botswana) [2024] UKUT 00100. However, when the decision is read as a whole, it is unclear how the statutory questions under section 32 were in fact addressed.
15. Having answered at [9](a) that, taking the appellant's claim at its highest, it disclosed a Convention reason, at [9](b) the Judge answered "No" to the question of whether the appellant did in fact fear persecution for that Convention reason. Both questions required assessment on the balance of probabilities.
16. However, at [12]-[19], the Judge made a series of adverse credibility findings relating to the appellant's account, but it is unclear on a reading of the decision as a whole whether those findings were being made for the purpose of answering the second question in JCK and what standard of proof the Judge was applying when assessing those matters.
17. I find the difficulty is that the decision does not clearly identify the purpose for which those findings were made. It is unclear whether the Judge was directed to the question of whether the appellant did in fact fear persecution or to an assessment of future risk on return. The reasoning does not adequately demonstrate how the Judge moved from his answer to question two to the ultimate dismissal of the protection claim.
18. Even reading the decision holistically, I am not satisfied that it is possible to discern with sufficient clarity the route by which the Judge reached his conclusions under section 32. The decision lacks a clear analysis of the statutory framework and fails to identify how the evidence and credibility findings informed the separate questions required by the legislation. The result is that the reasoning does not enable the parties to understand precisely how the protection claim was determined.
19. I have also considered Ground 2. I note at [13], the judge relied upon the refusal letter, which recorded an inconsistency between the appellant's answers to questions 75 and 81 of the asylum interview record. Having considered both answers, I am unable to discern from the decision why they were regarded as inconsistent. The judge in considering the refusal letter and making a finding of an inconsistency did not explain the contradiction said to arise nor why the answers could not stand together.
20. I raised with Mr Tufan, having considered the refusal letter, what inconsistency was said to arise. I noted that, at question 75, the appellant stated that the political party and the authorities continued to pursue him because, on his account, his actions had created pressure during the election campaign and he had been blamed for the party’s defeat. At question 81, the appellant stated that, if a different political party were to come to power in the future, he hoped this might assist him in clearing his name and enable his return to political activity. It was submitted on behalf of the appellant that the former answer concerned the continuing attitude of those whom he claimed remained interested in him, whereas the latter was a forward-looking and conditional statement concerning what might occur in the event of a future change in political control. I did not consider those answers to be contradictory.
21. Whilst Mr Tufan did not seek to rely on any particular inconsistency arising from those answers, he maintained that the judge's overall findings were sustainable, even applying the lower standard of proof.
22. However, I am satisfied that the two answers address different matters and are not, on their face, inconsistent. Accordingly, it was not open to the Judge to treat this matter as undermining the appellant's credibility without providing further reasoning. The error is material given the significance attached to credibility in the assessment of the appellant's protection claim.
23. Whilst the Judge made a number of additional findings adverse to credibility at [14]-[18], those findings do not cure the deficiencies identified above. Further in any case , it is unclear whether these relate solely to question 2 under JCK or feed into the findings of question 3 in JCK.
24. For these reasons, I am satisfied that the lack of clarity in the application of section 32, coupled with the inadequately reasoned finding of inconsistency at [13], infects the credibility assessment and the determination as a whole. I am therefore satisfied that the decision contains material errors of law and must be set aside in its entirety. I need not go on to consider the remaining grounds in light of my conclusions highlighted above.
Disposal
25. In relation to disposal of the appeal, I am satisfied that no findings of fact can properly be preserved in this case. Having regard to the general principle set out in paragraph 7 of the Senior President’s Practice Statements and the guidance in AEB v SSHD [2022] EWCA Civ 1512 (see also Majera v SSHD [2025] EWCA Civ 159) and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC)). In all the circumstances, given the nature and extent of the errors identified, the fact-finding required, I am satisfied that the appropriate course is to remit the appeal to the First-tier Tribunal for a complete rehearing.
Notice of Decision
26. The decision of the First-tier Tribunal dated 24 February 2026 involved the making of an error on a point of law and the decision of the First-tier Tribunal is set aside.
27. The appeal will be reheard by the First-tier Tribunal at Taylor House before a different judge.

S Iqbal

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

21 September 2026