Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002377
First-tier Tribunal No: PA/70645/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 16th of October 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE RAE-REEVES

Between

AA (AFGHANISTAN)
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Cleghorn, Counsel.
For the Respondent: Mr S Walker, Senior Presenting Officer

Heard at Field House on 15 October 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and his family 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 of his family. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

FACTUAL BACKGROUND
1. The appellant is a citizen of Afghanistan. His appeal against the respondent’s refusal of his protection claim was dismissed by First-tier Tribunal Judge Courtney following a hearing on 28 January 2026.
2. Permission to appeal was granted on one ground only: whether the judge erred in law by applying the balance of probabilities at [53] when assessing whether the appellant would be of adverse interest to the Taliban as the family member of a former police officer.
THE HEARING BEFORE THE UPPER TRIBUNAL
3. On behalf of the Respondent, Mr Walker conceded that the application of the balance of probabilities at [53] amounted to a material error of law. Ms Cleghorn relied upon that concession. Both representatives agreed that the First-tier Tribunal’s decision should be set aside and that the appeal should be remitted to the First-tier Tribunal for a de novo hearing.
DISCUSSION
4. A concession by a party does not relieve the Upper Tribunal of its obligation to decide whether the First-tier Tribunal made a material error of law. Having considered the decision, the grant of permission and the parties’ submissions, I am satisfied that the concession was properly made.
5. The question at [53] was whether, on return to Afghanistan, the appellant would be of adverse interest to the Taliban and face a risk of persecution because of his asserted relationship to a former police officer. That was an assessment of future risk. The applicable standard was whether there was a reasonable degree of likelihood, or a real risk, of the feared treatment. The balance of probabilities was not the correct test.
6. The error was material because [53] contained the judge’s ultimate conclusion on a discrete and central basis of the protection claim. Although the decision contained detailed credibility findings and an assessment of the country and expert evidence, the judge expressly applied the higher civil standard when drawing those matters together. I cannot be satisfied that the same conclusion would inevitably have been reached had the correct lower standard been applied.
7. In particular, at [49] to [52] the judge considered the appellant’s claimed relationship to a former police officer, the evidence concerning risk to relatives of former security personnel, and the expert’s opinion. The erroneous standard was then applied to that evaluative assessment at [53]. The error was therefore capable of making a difference to the outcome and cannot properly be treated as an immaterial slip.
8. I have considered the appropriate forum for remaking the decision. Both representatives submitted that the appeal should be remitted. I agree. The protection appeal requires a complete reassessment of the evidence under the correct standard, including oral evidence, credibility findings, expert and country material, and risk as at the date of the fresh hearing. The nature and extent of the fact-finding required make remittal appropriate under paragraph 7.2 of the Senior President’s Practice Statement concerning the disposal of appeals in the Upper Tribunal.
9. The First-tier Tribunal’s decision is set aside in its entirety. No findings of fact are preserved. The appeal is remitted to the First-tier Tribunal for a de novo hearing before a judge other than First-tier Tribunal Judge Courtney.
Notice of Decision
The decision of the First-tier Tribunal involved the making of a material error of law.
The appellant’s appeal to the Upper Tribunal is allowed.
The decision of the First-tier Tribunal is set aside in its entirety, with no findings preserved.
The appeal is remitted to the First-tier Tribunal for a de novo hearing before a judge other than First-tier Tribunal Judge Courtney.

V Rae-Reeves

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

15/10/2026