Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002345
First-tier Tribunal No: PA/59686/2024
LP/07702/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
31st July 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE SINGER

Between

MHK (BANGLADESH)
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Reza, instructed by JKR Solicitors
For the Respondent: Mr K Ojo, Senior Home Office Presenting Officer

Heard at Field House on 20 July 2026

DECISION AND REASONS
1. MHK appeals, with permission granted by the First-tier Tribunal, against the decision of the First‑tier Tribunal Judge (“the Judge”) promulgated on 18 January 2026, dismissing his appeal against the Respondent’s decision of 27 March 2024 refusing his protection and human rights claims.
The Appellant’s case before the First-tier Tribunal
2. The Appellant’s case, as advanced to the Respondent and then to the First-tier Tribunal, was that he is a national of Bangladesh who claimed international protection in the United Kingdom. His claim had originally included a political element connected with the BNP. By the time of the hearing before the First-tier Tribunal, his case had changed in focus. He no longer pursued the political aspect of the claim. He relied instead on his sexuality and his claimed risk as a gay man in Bangladesh.
3. The Appellant’s case was that, while his protection claim was pending, there had been a material change in his personal circumstances. He said that he had become open as a gay man in the United Kingdom. He relied on his involvement in casual sexual relationships, his attendance at LGBT community events or groups, and his relationship with another man. He also relied on evidence from witnesses who spoke to their knowledge of his sexuality, his relationship, and his participation in the LGBT community. The Appellant’s case was that, if returned to Bangladesh, he would be at real risk of persecution or serious harm because of his sexuality. He relied on country evidence concerning the legal, social and cultural position of LGBT persons in Bangladesh, including stigma, discrimination, hostility from family and society, and the limited protection available from the authorities. He contended that he could not reasonably be expected to conceal his sexuality in order to avoid such risk.
The refusal letter and the Respondent’s position before the First-tier Tribunal
4. The Respondent’s position in the refusal letter and review was that the Appellant had not established a need for international protection or leave on human rights grounds. In relation to the earlier political claim connected with the BNP, the Respondent did not accept that the Appellant had shown that he was at real risk on return to Bangladesh. The Respondent maintained concerns about the reliability of that aspect of the claim, including the documents and allegations relating to arrest warrants or criminal charges. In relation to the later claim based on sexuality, raised as a new matter, the Respondent did not accept that the Appellant had shown, to the lower standard, that he was a gay man who would be at real risk on return to Bangladesh. The Respondent relied on matters said to undermine the credibility of that claim, including the timing and development of the claim, the nature of the supporting evidence, and the absence of evidence which it was said could reasonably have been provided.
5. Before the First-tier Tribunal, the Respondent’s position remained that the appeal should be dismissed. The Respondent in the review maintained serious credibility concerns about the political claim, and also asserted that the Appellant had not provided reliable evidence sufficient to establish his claimed sexuality, including his claimed relationship, his participation in LGBT community activity, or the significance of the photographs and witness evidence relied upon. The Respondent also maintained that, on the evidence as a whole, the Appellant had not shown that he would face a real risk of persecution, serious harm, or treatment contrary to Article 3 on return to Bangladesh.
The FTJ’s decision
6. The Judge recorded that the Appellant’s claim had originally included an asserted risk arising from political activity connected with the BNP, but that the position before the First-tier Tribunal was unclear until the hearing. The Judge noted that the Appellant was no longer pursuing that aspect of the claim and that the focus of the appeal had become his claim to be at risk as a gay man in Bangladesh. The Judge nevertheless considered the earlier political material, including the evidence said to relate to arrest warrants and charges, when assessing the Appellant’s overall credibility. The Judge considered the Appellant’s evidence about his sexuality, his claimed openness in the United Kingdom, his claimed relationship with Mr Hossain, and his participation in LGBT community activity. The Judge identified matters which he regarded as discrepancies or weaknesses in that evidence. These included the evidence about when the Appellant told his family about his sexuality, the evidence about the length and circumstances of his relationship with Mr Hossain, and the extent to which the supporting evidence demonstrated attendance at, or commitment to, LGBT community activity. The Judge also considered the supporting material relied upon by the Appellant, including photographs and witness evidence. He found that the photographs did not assist the Appellant in the way contended for, and described them as staged. He also considered the evidence of Mr Hossain and Ms Kausar, including evidence said to relate to the Appellant’s relationship, his attendance at Apanjon, and observations of his behaviour. The Judge did not accept that the supporting evidence, viewed with the rest of the evidence, established the Appellant’s claimed sexuality to the required standard. He also found that the previous political claim for asylum was fraudulent.
7. Having considered the evidence as a whole, the Judge concluded that the Appellant had not established that he was a gay man or that he would be at real risk on return to Bangladesh. He dismissed the appeal on protection grounds and did not find that removal would breach the Appellant’s human rights.
The grounds of appeal and submissions before me
8. The Appellant’s first pleaded ground was that the Judge erred in his treatment of the earlier political aspect of the claim. The grounds asserted that the Appellant had abandoned that part of his protection claim before the First-tier Tribunal, following the change of government in Bangladesh and because the focus of his case had shifted to his sexuality. It was argued that, notwithstanding that abandonment, the Judge treated the previous BNP-based claim as fraudulent and relied on it as damaging to the Appellant’s overall credibility. The Appellant contended that this was unfair, because the political claim was not being pursued, had not been tested at the hearing, and the Appellant had not been given the opportunity to address the Judge’s proposed adverse finding on that issue. It was submitted that the abandoned political claim should have been treated as neutral, rather than as a basis for an adverse credibility finding.
9. The further pleaded grounds challenged the Judge’s treatment of the evidence relied upon in support of the Appellant’s claim to be gay. The Appellant argued that the Judge erred by criticising him for not producing further documentary evidence, records, or photographs of his attendance at LGBT meetings or activities, while also finding that the photographs he had produced were staged. It was said that the Judge reached that adverse conclusion without asking the Appellant about the circumstances in which the photographs were taken. The grounds also challenged the Judge’s reliance on a discrepancy between the Appellant’s evidence and Mr Hossain’s evidence about the length of their claimed relationship, on the basis that this discrepancy had not been put in cross-examination. The Appellant further argued that the Judge failed to engage adequately with the supporting evidence of Ms Kausar, including her evidence about the Appellant’s attendance at Apanjon, her observations of him over a period of months, and her evidence concerning his relationship with Mr Hossain. The Appellant’s case was that these matters, separately and cumulatively, rendered the adverse credibility assessment unsafe.
10. Permission was granted on all grounds.
11. At the error of law hearing, Mr Reza developed the grounds. He submitted that the political claim had not been adjudicated upon and that the First-tier Tribunal had no proper basis for describing it as fraudulent. He submitted that, if the Judge was going to rely on the earlier political material adversely, the Appellant should have had an opportunity to address it, and could have sought further evidence if it remained a live issue. He also submitted that the Appellant had given a plausible explanation for no longer pursuing the political claim, namely the change of government in Bangladesh and his changed personal circumstances as a person now openly relying on his sexuality.
12. Mr Reza further submitted that the Judge’s findings about the photographs, Mr Hossain’s evidence and Ms Kausar’s evidence were legally flawed. He argued that there was no evidential basis for finding that the photographs were staged without asking the Appellant about them. He submitted that the relationship with Mr Hossain was corroborated by other evidence, including Ms Kausar’s evidence, and that the Judge had failed to give adequate reasons for rejecting or attaching no weight to that evidence. He relied in particular on Ms Kausar’s evidence that she had observed the Appellant over a period of months, had seen him getting intimate, and had information about his relationship from Mr Hossain. The Appellant’s position was that these matters, taken cumulatively, meant that the adverse credibility findings could not safely stand and that the appeal should be remitted for a fresh hearing.
13. The Respondent’s Rule 24 response opposed the appeal and maintained that the decision of the Judge disclosed no material error of law. The Respondent’s position was that the Judge was entitled to find that the Appellant’s lack of knowledge about matters which he had previously relied upon, including arrest warrants said to remain live, was inconsistent with his later position that he no longer feared persecution on political grounds. The Respondent also asserted that: the Judge was entitled to make the findings he did that the previous claim based on political opinion was fraudulent; and those on the photographs and on a wider lack of corroboration; it was unclear whether the claimed inconsistency regarding the Appellant’s and Mr Hossain’s evidence was put or not, but in any event it was not material; and cogent reasons were given why the Appellant and Ms Kausar gave evidence that was not credible, but in any event it was not material to the outcome.
14. At the error of law hearing, Mr Ojo submitted that the Appellant’s first ground amounted to a challenge based on adequacy of reasons, failure to take account of evidence, and procedural unfairness. He submitted that the First-tier Tribunal decision showed that the Judge was aware of the Appellant’s position on the political claim, including at paragraphs 9, 14, 15 and 27. He argued that the fact that the Appellant no longer wished to rely on that claim did not mean that the Respondent, or the Tribunal, was required to disregard it entirely. He also submitted that the Appellant had not clearly stated that any charges or arrest warrants in Bangladesh had been dropped or were no longer outstanding. In relation to the photographic evidence, the Respondent submitted that the Judge was entitled to apply common sense when assessing credibility and plausibility. Mr Ojo referred to the supplementary bundle and accepted that some photographs could appear explicit, but submitted that the Judge was entitled to make findings about them in the context of the evidence as a whole. He also submitted that not every credibility point had to be put separately in cross-examination, particularly where credibility was already in issue and where the Appellant was on notice from the refusal decision and review that his account was challenged. As to the evidence of Mr Hossain and Ms Kausar, the Respondent submitted that the Judge was entitled to reject or attach limited weight to that evidence. Mr Ojo argued that the grounds focused on the Judge’s treatment of the length of the claimed relationship, but did not address another reason given by the Judge concerning the evidence about when the Appellant told his family about his sexuality and the evidence relating to his father’s heart attack. He also submitted that the Judge’s reasoning concerning the absence of documentary evidence from Apanjon was relevant not only to the Appellant’s evidence, but also to Ms Kausar’s evidence, given her asserted position and her evidence about the Appellant’s attendance and commitment. The Respondent’s position was that the decision, read as a whole, gave sufficient reasons for dismissing the appeal and that the grounds amounted to disagreement with findings open to the Judge.
15. I reserved my decision on error of law.
Legal principles
16. I remind myself of what was said by Lady Hale at paragraph 30 of SSHD v AH (Sudan) [2007] UKHL 49. What was said there about the restraint which must be exercised on appeal has been repeated in other cases, including HA(Iraq) and others v SSHD [2022] UKSC 22 at [72]. The approach I adopt to the First-tier Tribunal’s findings reflects that and what was said by Lewison LJ at [2] of Volpi v Volpi [2022] EWCA Civ 464:
i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
v) An appeal court can therefore set aside a judgment on the basis that the FTJ failed to give the evidence a balanced consideration only if the FTJ's conclusion was rationally insupportable.
vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.
Analysis
17. I have considered the grounds of appeal, the grant of permission, the oral submissions made by Mr Reza and Mr Ojo, and the decision of the Judge as a whole. I remind myself that this is not a rehearing of the appeal. The question for me is not whether I would have reached the same factual findings. It is whether the making of the decision involved the making of an error on a point of law, and if so, whether that error was material.
18. The Judge gave a number of reasons for finding that the Appellant had not established that he was gay, and in my judgment those reasons were not confined to one point. They included inconsistencies in the evidence about the Appellant’s claimed relationship with Mr Hossain, the evidence about the Appellant’s disclosure of his sexuality to his family, the absence of social media evidence, the absence of evidence relating to Grindr, the absence of records or photographs from Apanjon meetings, the absence of other comparatively easily obtainable corroborative evidence, the Judge’s assessment of the photographs which had been produced, and the Judge’s assessment of the previous political protection claim. The question is whether those findings, individually or cumulatively, disclose a material error of law.
19. At paragraph 19 of his decision, the Judge made clear that he was considering the evidence in the round. He expressly referred not only to matters which damaged the Appellant’s credibility, but also to such evidence as was consistent with the Appellant’s claim. In my judgment that is significant, because this was not a decision in which the Judge approached the case by identifying only adverse matters and ignoring evidence relied upon by the Appellant. Read fairly and as a whole, the decision shows that the Judge was engaged in the global assessment of credibility required in an international protection appeal.
Ground 1: the previous political protection claim
20. The first ground concerns the Judge’s treatment of the Appellant’s previous claim based on political grounds. The Appellant’s argument is that the political claim had been withdrawn or abandoned before the First-tier Tribunal, and that it should therefore have been treated as neutral. Mr Reza submitted that, because that aspect of the claim was no longer being pursued, the Judge had no proper basis for treating it as fraudulent or for drawing any adverse credibility inference from it.
21. I do not accept that submission. The abandonment of the political ground did not mean that the evidence previously submitted in support of it, or the answers previously given about it, ceased to exist. Nor did it mean that the Judge was required to treat that material as being irrelevant to the Appellant’s overall credibility, or as conferring a shield of immunity. The Appellant had previously advanced a protection claim based on political opinion, including assertions concerning arrest warrants or politically motivated charges in Bangladesh. Those were matters said to go directly to risk on return. The Respondent had raised serious credibility concerns about that political claim, including the Appellant’s limited or muddled knowledge of matters central to the claimed political risk, a lack of detail about his political involvement and activities, inconsistencies about why he was targeted, a lack of detail about protests, concerns about how he had remained safe despite claimed threats, inconsistency and lack of detail about his ability to leave Bangladesh by air in 2021, the failure to mention in interview a hospitalising assault in February 2021, and the limited evidence about the provenance of the warrants and court documents.
22. In those circumstances, the Judge was entitled to consider whether the earlier presentation of the political claim bore upon the Appellant’s overall reliability. That was not the same as deciding the abandoned political ground as a live basis of appeal. The Appellant was no longer asking the First-tier Tribunal to allow the appeal on political grounds, but that did not require the Judge to disregard the history of that claim or the evidential difficulties identified in relation to it. Those matters remained part of the material before the Tribunal. They had been addressed in the refusal decision and review, and they had not been conceded by the Respondent.
23. The Judge was also entitled to consider the Appellant’s explanation for no longer pursuing the political claim. There is no reason to think that he failed to do so. It remained open to the Judge to note that, if the Appellant had previously maintained that warrants or charges existed against him, he had not provided evidence that they had been withdrawn. Nor had he provided detail from a lawyer in Bangladesh confirming the position. The Judge was also entitled to consider the country material, which did not establish a total amnesty for all former political activists or the automatic withdrawal of all politically motivated charges.
24. I accept that describing the earlier political claim as fraudulent was a serious finding. However, the seriousness of a finding does not make it legally impermissible if it was adequately reasoned and open to the Judge on the evidence. The Judge’s reasoning was linked to the Appellant’s earlier evidence, the Respondent’s credibility concerns, the way in which the political claim was later abandoned, and the wider assessment of credibility. I am not satisfied that this ground identifies a material error of law.
Ground 2: the photographs
25. The Appellant also challenges the Judge’s treatment of the photographs. At paragraph 26, the Judge found that the photographs which had been provided were staged to present the Appellant as gay, rather than reflecting the true nature of his sexuality. Mr Reza submitted that this finding was speculative, and that the Appellant had not been asked about the circumstances in which the photographs were taken.
26. The Judge was entitled to assess the photographs as part of the evidence before him. A judge is not required to accept photographic evidence at face value. A judge may apply ordinary judicial evaluation and common sense to the evidence, provided the assessment is reasoned and is not based on impermissible speculation. The Judge’s conclusion about the photographs formed part of his overall assessment of credibility. It was not the sole basis for dismissing the appeal. I accept that, in some circumstances, fairness may require a particular concern about photographs to be put to an Appellant; however whether it does so is fact-sensitive. Here, the Appellant knew that his claimed sexuality was squarely in issue, and he knew that the Respondent did not accept that he had established that claim. The photographs were produced as part of the Appellant’s own evidence in support of a disputed issue. The Respondent’s case was not that the Appellant had to answer an entirely new allegation which arose for the first time in the Judge’s decision. The Judge was evaluating the probative value of evidence submitted by the Appellant.
27. Even if it would have been preferable for questions to have been asked about the circumstances in which the photographs were taken, I am not satisfied that the absence of such questions gave rise to procedural unfairness. The Judge’s finding about the photographs was one part of a wider pattern of reasoning, and the appeal did not turn on that point alone. The Appellant had fair notice that the reliability and sufficiency of his evidence about his sexuality were disputed.
Ground 3: the claimed relationship with Mr Hossain
28. The third area of challenge concerns the Judge’s treatment of the evidence about the Appellant’s claimed relationship with Mr Hossain. At paragraph 20, the Judge identified an inconsistency between the Appellant’s account and Mr Hossain’s evidence. The Appellant said that he had been in a casual relationship with Mr Hossain between December 2023 and June or July 2024, and that this was his first proper relationship in the United Kingdom. Mr Hossain’s evidence was that he had been in a casual relationship with the Appellant for the whole of 2024. In my judgment the Judge was entitled to regard that discrepancy as relevant. The claimed relationship was a material part of the Appellant’s case, and was not peripheral. The Appellant relied on that relationship as part of the evidence that he was gay and had lived openly as a gay man in the United Kingdom. A discrepancy about the duration of the relationship was therefore rationally capable of bearing on the assessment of credibility.
29. Mr Reza submitted that this discrepancy had not been put to the Appellant in cross-examination. I consider that submission under the heading of procedural fairness below. For present purposes, I am satisfied that the Judge’s reasoning at paragraph 20 was rationally open to him. The inconsistency was apparent on the face of the evidence. The Judge was entitled to identify it and to attach weight to it.
30. At paragraph 21, the Judge considered a further matter. The Appellant had said that, after he told his family about his sexuality, his father had a heart attack and his mother told him not to speak to the family again until he had “changed”. The Judge noted that Mr Hossain did not mention this event, despite being in a relationship with the Appellant at the relevant time. That was again a matter which the Judge was rationally entitled to take into account. It concerned an important event in the Appellant’s account of the consequences of telling his family about his sexuality. The Judge was entitled to consider whether it was surprising that Mr Hossain had not referred to it. Mr Reza submitted that the fact that Mr Hossain was a friend or partner did not mean that he would necessarily know everything about the Appellant’s family circumstances. That submission was properly made. However, it does not establish an error of law. It was a matter for the Judge to decide what weight, if any, to attach to the omission. The Judge did not treat this point in isolation; rather he considered it as one of several matters which bore on the overall assessment.
Ground 4: Ms Kausar’s evidence and the Apanjon evidence
31. Mr Reza submitted that the Judge failed to give adequate reasons for rejecting, or attaching limited weight to, the evidence of Ms Kausar. He relied in particular on her evidence about the Appellant’s attendance at Apanjon, her observations of him over a period of months, and what she said about having seen him getting intimate and having heard about his relationship. I accept that the Judge did not set out a separate, lengthy analysis of Ms Kausar’s evidence. However, a decision is not to be read as though it were a pleading or statute. The Judge was not required to refer to every piece of evidence, or to summarise each witness statement line by line. The question is whether, read as a whole, the parties can understand why the appeal was dismissed and whether the Judge failed to consider a material matter.
32. The Judge’s reasoning at paragraphs 24 and 25 is relevant to Ms Kausar’s evidence. The Appellant relied on attendance and engagement with Apanjon. Ms Kausar’s evidence was directed to that issue. The Judge considered the absence of records and photographs of Apanjon attendance and the absence of comparatively obtainable evidence. Given Ms Kausar’s asserted role and her evidence about the Appellant’s involvement, the Judge’s reasoning was not confined only to the Appellant’s own evidence. It also bore on the weight to be attached to the evidence said to support that involvement.
33. The Judge also considered the claimed relationship with Mr Hossain and the discrepancies or omissions in the evidence concerning that relationship. To the extent that Ms Kausar’s evidence was relied upon as supporting the existence of that relationship or the Appellant’s sexuality more generally, the Judge was entitled to assess it in the light of the evidence as a whole. The fact that the Judge did not expressly deal with every sentence of her evidence does not establish that he ignored it. I am not satisfied that there was a failure to give legally adequate reasons.
34. At paragraph 22, the Judge observed that the Appellant had said he had lived in the United Kingdom as an openly gay man and had an Instagram account, but had not produced social media evidence to support that claim. At paragraph 23, the Judge noted that the Appellant said he had used Grindr but had deleted his account, and that no effort had been made to provide evidence that he had previously used that platform.
35. Those findings did not amount to the imposition of a legal requirement to produce corroboration. The Judge was entitled to consider whether evidence which appeared to be comparatively easily obtainable had been provided: (see, for example, MAH (Egypt) v SSHD [2023] EWCA Civ 216 at paragraph 86). In an asylum appeal, corroboration is not a legal requirement, but the absence of evidence which could reasonably have been expected may be relevant, provided the Judge does not treat the absence of corroboration as determinative. Here, I find, the Judge did not treat the issue of corroboration in a legally impermissible manner; rather he treated the absence of such evidence as part of the wider evidential picture.
36. At paragraph 24, the Judge considered the absence of records and photographs relating to the Appellant’s claimed attendance at Apanjon meetings. The Appellant had relied on his involvement with Apanjon as part of his claim to be living openly as a gay man. The Judge was rationally entitled to consider whether there was documentary support for that asserted involvement. Again, this was not a requirement that the Appellant had to corroborate his claim; rather it was an assessment of the evidence which had and had not been produced. At paragraph 25, the Judge referred to there being no requirement to provide “cooperation”. I take that to be a typographical error for “corroboration”. No party suggested otherwise before me. Read fairly, the Judge correctly directed himself that corroboration was not required. He then considered the absence of comparatively easily obtainable evidence from Canada and the United Kingdom.
Procedural fairness and matters not put in cross-examination
37. A recurring theme in the grounds and in Mr Reza’s submissions is that particular matters were not put to the Appellant or to witnesses in cross-examination. These include the Judge’s concerns about the photographs, the discrepancy about the length of the claimed relationship with Mr Hossain, and aspects of the evidence concerning the previous political claim.
38. I remind myself that the rule associated with Browne v Dunn (1893) 6 R 67 is a rule of fairness. It is not a rigid formula. The authorities make clear that a party who wishes to invite a tribunal to reject important evidence will often be required to put the substance of the challenge to the witness. The purpose is to avoid unfairness and to give the witness a fair opportunity to respond. However, the authorities also make clear that the rule is flexible. The question is whether the proceedings, viewed overall, were fair. In MR (Pakistan) v SSHD [2026] EWCA Civ 473, the Court of Appeal considered the operation of the principle in the immigration context. The Court emphasised that a failure to put a matter in cross-examination does not necessarily amount to a concession, and that a tribunal must still assess the evidence in the round unless a matter has been expressly conceded. That is consistent with the Supreme Court’s approach in TUI UK Ltd v Griffiths [2023] UKSC 48, where the rule was described as flexible and directed to overall fairness, and where it was stated at paragraph 69:
“69. Because the rule is a flexible one, there will also be circumstances where in the course of a cross-examination counsel omits to put a relevant matter to a witness and that does not prevent him or her from leading evidence on that matter from a witness thereafter. In some cases, the only fair response by the court faced with such a circumstance would be to allow the recall of the witness to address the matter. In other cases, it may be sufficient for the judge when considering what weight to attach to the evidence of the latter witness to bear in mind that the former witness had not been given the opportunity to comment on that evidence. The failure to cross-examine on a matter in such circumstances does not put the trial judge "into a straitjacket, dictating what evidence must be accepted and what must be rejected": MBR Acres Ltd v McGivern [2022] EWHC 2072 (QB), para 90 per Nicklin J. This is not because the rule does not apply to a trial judge when making findings of fact, but because, as a rule of fairness, it is not an inflexible one and a more nuanced judgment is called for. In any event, those circumstances, involving the substantive cross-examination of the witness, are far removed from the circumstances of a case such as this in which the opposing party did not require the witness to attend for cross-examination.”
39. This case is not one in which the Appellant was unaware that credibility was in issue. The Respondent’s refusal decision and review made clear that the Respondent did not accept the Appellant’s protection claim. The Appellant was on notice that his claimed sexuality was disputed. He was also on notice that the Respondent maintained substantial concerns about his credibility, including in relation to the previous political claim. The Respondent had never given a concession that the Appellant’s evidence about there being live warrants out for his arrest was accepted. The Appellant had the opportunity to provide evidence and to address those matters. Nor is this a case in which the Judge decided the appeal on a wholly new point which had not formed part of the issues between the parties. The Judge assessed the reliability and sufficiency of the evidence adduced in support of the claim; and the points relied upon by the Judge arose from the Appellant’s own evidence, the supporting witness evidence, the documentary evidence, and the absence of evidence which the Judge considered it reasonable to expect. I accept that, as a matter of best practice, some of the points later relied upon by the Judge could have been explored more directly in oral evidence. However, error of law is not established merely because more questions could have been asked. The question is whether the Appellant was deprived of a fair opportunity to meet the substance of the case against him. I am not satisfied that he was. The substance of the Respondent’s challenge was clear, in my judgment, and the Appellant knew that his sexuality, his claimed openness, his claimed relationship, his supporting photographs, and his previous credibility were in issue. In those circumstances, I do not accept that the Judge was precluded from making findings on the evidence before him. Nor do I accept that the Judge was required to treat the absence of cross-examination on each individual point as requiring him to accept the Appellant’s evidence. Such an approach would be inconsistent with the duty of the Tribunal to assess the evidence as a whole.
Adequacy of reasons and rationality
40. The Judge’s reasons were sufficient, in my judgment. The Appellant can understand why the Judge rejected his claim. The Judge identified the principal evidential matters which led him to find that the Appellant had not established that he was gay. He also explained why the previous political claim had an adverse bearing on credibility. Even if the reasoning could be said to be not as full as it could have been in every respect, reasons need not be perfect; they must be legally adequate: (see for example MK (duty to give reasons) Pakistan [2013] UKUT 00641 (IAC) and Budhathoki (reasons for decisions) [2014] UKUT 00341 (IAC)). I do not accept that the Judge ignored material evidence. The Judge referred to evidence which was capable of being consistent with the Appellant’s case. He considered the witness evidence, the photographs, the evidence concerning Apanjon, and the evidence concerning the previous political claim. The fact that the Judge did not recite every part of the evidence does not mean that it was overlooked. Nor do I accept that the Judge’s findings were irrational. The findings at paragraphs 20 to 26 were open to him on the evidence. The Judge rationally identified discrepancies, omissions and evidential gaps which were capable of bearing on credibility. He was entitled to attach weight to those matters. Looking at everything in the round, in my judgment, those findings provided a rational basis for the conclusion that the Appellant had not established his claimed sexuality to the lower standard.
Materiality
41. Even if one or more of the Appellant’s criticisms had some force, I would not be satisfied that any error was material. The Judge’s adverse credibility assessment did not depend on a single finding, but on a series of matters considered cumulatively. These included the evidence about the claimed relationship with Mr Hossain, the omission concerning the father’s heart attack, the absence of social media and Grindr evidence, the evidence concerning Apanjon, the photographs, and the previous political claim. Those were matters which the Judge was entitled to consider. Read as a whole, the decision discloses a lawful assessment of the evidence and a conclusion reasonably open to the Judge. The grounds amount, in substance, to disagreement with the weight given to the evidence and the factual conclusions reached.
Conclusion on error of law
42. For those reasons, I am not satisfied that the making of the decision of the First-tier Tribunal involved the making of a material error on a point of law, and the appeal to the Upper Tribunal is therefore dismissed.

Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of a material error on a point of law.
The decision of the First-tier Tribunal, dismissing the appeal, is to stand.
Because this appeal concerns an international protection claim, and publication of the Appellant’s identity could undermine the effective discharge by the United Kingdom of its obligations under the Refugee Convention, I am satisfied that the normative principle of open justice is outweighed in this case and that the anonymity order made by the First-tier Tribunal should therefore be maintained.

R Singer

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
21.7.26