Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002386
First-tier Tribunal No: PA/04333/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 13th of October 2026

Before

UPPER TRIBUNAL JUDGE REEDS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MPK
(Anonymity direction continued)
Respondent

Representation:
For the Appellant: Mr Parvar, Senior Presenting Officer on behalf of the Secretary of State
For the Respondent: Mr Coburn, legal representative on behalf of MPK

Heard on 6 October 2026

DECISION AND REASONS

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.
1. The Secretary of State appeals, with permission, against the determination of the First-tier Tribunal promulgated on 17 March 2026. By its decision, the Tribunal allowed the appeal against the Secretary of State’s decision dated 22 October 2024 to refuse his protection and human rights claim in the context of his deportation from the UK and by reference to his criminal convictions.
2. The FtTJ did make an anonymity order, and no grounds were submitted during the hearing for such an order to be discharged. Anonymity is granted because the facts of the appeal involve a protection claim and that his rights protected under Article 8 outweigh the right of the public to know his identity as a party to these proceedings, the latter being protected by Article 10 of the ECHR. The anonymity order is detailed above.
3. Although the Appellant in these proceedings is the Secretary of State, for convenience I will refer to the Secretary of State for the Home Department as the respondent and to the appellant before the FtT as “the appellant,” thus reflecting their positions before the First-tier Tribunal.
The background:
4. The appellant is a national of Poland. He not known on what date he entered the United Kingdom but he claimed to have entered in 2008. Since his entry he has been convicted of criminal offences. The FtTJ summarised the relevant background as follows.
5. On 2nd August 2021, the appellant was convicted of a course of conduct amounting to harassment and made subject to a restraining order valid until 1st August 2024. He was not permitted to contact his ex-partner or daughter. On 4th August 2022, the respondent served the appellant with a warning letter. However, on 3rd August 2022 the appellant was convicted of three counts of harassment in breach of the restraining order and the commission of a further offence during a suspended sentence. He was sentenced to six months in prison and served with notices as an overstayer having made no application under the EUSS. On 9th February 2023, the appellant made an application under the EU Settlement Scheme which was rejected due to lack of identity document. On 29th June 2023 he was convicted of two further counts of harassment in breach of a restraining order for which he was sentenced to sixteen weeks’ imprisonment. The restraining order was varied to end on 2nd August 2026.
6. The appellant was issued with a notice of decision to deport (stage 1) which was served on 5th July 2023. He submitted a handwritten letter setting out a fear of return to Poland. A Rule 35 report was raised on 8th August 2023 with regard to past harm at the hands of the gang members. An asylum claim was entered on 14th November 2023 and the appellant was interviewed for screening purposes and, later, substantively on 5th December and 12th December 2023. The appellant received a positive reasonable grounds decision from the National Referral Mechanism on 8th January 2024 and a positive conclusive grounds decision on 12th February 2024. He was refused permission to stay on 25th March 2024. 9. The conclusive NRM decision accepts the appellant was subjected to forced criminality in delivering envelopes of money in Poland between 1992 to 1995 and in delivering drugs in Poland between 2001 and 2003 and forced criminality in guarding drugs in Italy between 2007 and 2008.
7. In brief summary, the appellant claims to have been involved in assisting an Intelligence Services Operative in Poland at the request of his father. He delivered envelopes which contained money as his father owed this man. The appellant ceased working for this individual in 1997 just before his father died of a heart attack. The appellant then claims to have met some men in a sports club called X who offered him work delivering packages at the weekend which he thought were vehicle spare parts. He later realised that the packages contained cigarettes and alcohol. He did this between 2001 and 2003 but then refused to work anymore and, as a result, these individuals attacked him, ripping his scalp and hitting him with a baseball bat. They demanded money from him. In the autumn of 2003, the appellant joined the army to get away from the problems with these people but on his return home in 2004 he was stabbed in the leg by them whilst out for a walk. He left Poland in 2004 due to these threats. The appellant went to Italy where he started work on a building site. He met two people there who advised him not to return to Poland and knew about his issues there. He was told to watch a delivery of building materials which, subsequently, he realised was cocaine and not plaster. He looked after this delivery for two months. He approached a police officer who advised him to leave since it was unsafe there and he came to the United Kingdom in August 2008. Since arriving in the UK, he had not heard from the men he feared. He made two returns to Poland in 2007 and 2014 but did not stay. He claims to fear these men on return to Poland. The respondent is unaware of the exact date of the appellant’s entry to the United Kingdom but acknowledges he would have had free movement as an EU national at that time. He claims to have entered in 2018.
8. The respondent refused his claim in a decision taken on 22 October 2024.
9. The appellant appealed that decision which led to the appeal before the FtTJ on 12 March 2026. In a decision promulgated on 17 March 2026, the FtTJ allowed the appeal on humanitarian protection grounds and on human rights grounds (Article 3 of the ECHR ) on the basis that if deported to Poland he would be at risk of serious harm from a criminal gang who had previously caused him harm between 2001-2003 on the basis of forced criminality and as result of threats made against him in 2004 and 2007 and that there were substantial grounds for believing he would be recognised on return now and further serious harm would follow and thus was entitled to a grant of humanitarian protection. On that assessment the FtTJ also found that his deportation would also result in a breach of Article 3 of the ECHR (see conclusions at paragraphs 50- 51). The FtTJ, having made that assessment did not consider or address the claim based on Article 8 and by reference to Section 117C public interest factors.
10. The respondent sought permission to appeal that decision. Initially the application was refused but on renewal permission was granted by UTJ Rimmington on 4 June 2026.
11. The appeal came before the Upper Tribunal. The appellant was represented at this hearing by Mr Coburn, legal representative and Mr Parvar, Senior Presenting Officer appeared on behalf of the respondent. I heard submissions from each of the parties.
12. It is not necessary to set out those submissions as they are a matter of record and I intend to refer to them in my analysis of the issues raised in this appeal.
The decision on error of law:
13. I therefore turn to the issue of whether the decision of the FtTJ involved the making of an error on a point of law.
14. At the outset I remind myself of the need for appropriate judicial restraint in the Upper Tribunal before interfering with a decision of the First-tier Tribunal. The need for such restraint has been made clear on numerous occasions over recent years. On the facts of this appeal, the respondent did not appear before the FtT and the FtTJ heard evidence from the appellant. I take that into account when undertaking my assessment of the issues raised in this appeal.
15. Part of the grounds of challenge refer to the inadequacy of the reasoning. In this respect I remind myself that there is no requirement for reasons for reasons and I am not looking for a perfect, or even the best possible, decision. I am concerned with whether the respondent can identify errors of law which could have had a material effect on the outcome and have been properly raised in these proceedings. In Walter Lilly & Co Ltd v Clin [2021] EWCA Civ 136 at paragraph 85 Carr LJ (as she then was) summarised some of the circumstances in which appellate interference with findings of fact might still be justified. They include:
i) Where the trial Judge fundamentally misunderstood the issue or the evidence, plainly failed to take evidence in account, or arrived at a conclusion which the evidence could not on any view support;
[...]
iii) Where the finding lies outside the bounds within which reasonable disagreement is possible.
She continued:
86. An evaluation of the facts is often a matter of degree upon which different Judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and appellate courts should approach them in a similar way. The appeal court does not carry out a balancing task afresh but must ask whether the decision of the Judge was wrong by reason of some identifiable flaw in the trial Judge's treatment of the question to be decided, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion.
16. Where an appellate court is satisfied that there is a material error of law, the decision will be set aside. This includes in relation to a Judge's evaluation of the evidence: MAH (Egypt) v SSHD [2023] EWCA Civ 216 at [68]-[70] (Singh LJ). Further, if a point of evidence of significance has been ignored or misunderstood, that may be a failure to take into account a material consideration.
17. I have had the benefit of hearing and considering the submissions advanced by each of the parties and have considered them in the context of the grounds advanced, the evidence before the Judge and the issues in play. I express my gratitude to the advocates for the assistance they have both given to the Tribunal.
18. The challenge that is brought by the respondent is to the FtTJ’s assessment of risk on return to Poland and the assessment made that there are substantial grounds for believing that the appellant would be at risk of serious harm on return to Poland in the context of this particular appellant’s factual circumstances. It is of note that all parties agreed that there was no Convention reason identified as confirmed by Mr Coburn (see paragraph 36) and also accepted by the FtTJ at paragraph 42 of the decision. Neither party seeks to challenge that decision.
19. There is one ground of challenge which is said to be making of a material misdirection of law on a material matter and the failure to give reasons or any adequate reasons for findings on material matters. In summary the grounds are twofold-firstly the reference to inadequacy of reasoning based on the identifiable gap in the FtTJ’s reasoning on the issue of risk return which constitutes an error of law. Second, the consideration of what was said to be a concession made by the respondent but which is said to have been narrowly construed which also led to lack of adequate findings necessary to undertake the assessment of risk.
20. At paragraph 41 the FtTJ set out finding made that “the appellant makes his case to be at risk of serious harm and return to Poland and between paragraphs 42 – 50 gave reasons for that finding and analysis. The reasons can be briefly summarised as follows. The FtTJ accepted the appellant's account that he had been subjected to forced criminality and exploitation in Poland and Italy. The Tribunal found the appellant's account to be credible when assessed in the round and applying the lower standard of proof applicable. The FtTJ accepted the appellant's evidence that he had not been informed of any specific sum which would secure his release from those exploiting him and that he did not believe payment would have enabled him to disengage from the criminal enterprise. The FtTJ also found that the appellant's account was consistent with the available background evidence concerning the WISLA criminal organisation. The FtTJ found that no adverse inference should be drawn from the appellant's failure to claim asylum whilst present in Italy or upon arrival in the United Kingdom. As to future risk, the FtTJ accepted the appellant's explanation for his two brief returns to Poland and found that those visits did not materially undermine his claim of continuing fear or risk.
21. As regards the intelligence officer, the FtTJ found that the appellant's inability to identify by name an individual connected with events from his childhood did not materially affect his credibility or the assessment of the central issues in the appeal. Returning to future risk of serious harm, the FtTJ accepted the appellant's evidence that he had previously been recognised by members of the criminal gang following his departure from Poland; that the criminal organisation remained in operation and that there were substantial grounds for believing that the appellant would face a real risk of being identified and subjected to further serious harm on return to Poland. The Tribunal proceeded on the basis, accepted by the respondent, that there would be neither a sufficiency of protection available from the Polish authorities nor a viable internal relocation alternative. The FtTJ therefore concluded that the appellant qualified for humanitarian protection and that his removal would give rise to a real risk of treatment contrary to Article 3 ECHR.
22. Mr Coburn on behalf of the appellant submitted that the FtTJ between paragraphs 42 – 50 gave adequate reasons for the decision reached and addressed the issue as to whether the appellant was a real risk of harm from the criminal network that had previously exploited him. At paragraph 48 the FtTJ acknowledged this.
23. He submitted that whilst the respondent had referred to the intelligence officer, the did not make findings in that regard. This was because the FtTJ had stated that the appellant did not claim to fear the immigration officer and this formed part of the historical narrative (see paragraph 48).
24. Mr Coburn submitted that in terms of risk and the assessment, the FtTJ referred to the NRM decision and acknowledged that the appellant’s account was consistent with that decision. The FtTJ also referred to the background evidence which related to X gang which was in the bundle therefore the FtTJ was entitled to reach the conclusion that the appellant would be at risk on return.
25. He further submitted that in terms of the Intelligence Officer the FtTJ was within their rights to assess risk related to the criminal gang and therefore did not make any findings in relation to the intelligence officer as the appellant was not in fear of him. In any event he submitted the reasoning between paragraphs 44 – 50 was independent of any assessment of the intelligence officer. The FtTJ was entitled to find that the appellant would be at risk on return because this is a gang who were active and he had previously been targeted and recognised and therefore would be at real risk on return. Those findings were sufficient on the evidence and it did not rely on any continuing activity of the intelligence officer.
26. Mr Coburn submitted that even if there was a deficiency in the reasoning that related to the intelligence officer, submitted the outcome would have been the same.
27. Mr Parvar in reply submitted that at paragraph 49 the FtTJ stated that he accepted that the appellant had been a victim of forced criminality at the hands of the intelligent officer. This supported the respondent’s argument that the intelligence officer was at the centre of the concession made in relation to sufficiency of protection and internal relocation. The factual account also tied the intelligence officers and/or the state to the criminal gang and how it operated. In the circumstances, the decision fell short of explaining why the appellant would be at risk by reference to how this gang operated in Poland. In other words, it did not follow that because the gang operated in Poland that it would create a current interest and risk. He reminded the tribunal that the Ft was required to assess the risk in 2026.
28. I am satisfied that the grounds of challenge raised by the Secretary of State are made out and there was an inadequacy of reasoning perhaps better described as a gap in that reasoning when assessing the risk on return to this appellant. I set out my reasons for reaching this conclusion below.
29. The issue related to whether those people in Poland as identified by the appellant had a current interest in the appellant and that is relevant to the assessment of risk of harm to the required standard if deported to Poland.
30. When assessing that issue the FtTJ took into account the material from the NRM. This had arisen from a referral made on 5 January 2024 which resulted in a Positive Reasonable grounds decision dated 8 January 2024. This was followed by a Positive Conclusive Grounds decision on 12 February 2024. However, it is recorded that the appellant was refused permission to stay on 25 March 2024. The FtTJ stated that the appellant’s past experiences in Poland and Italy were considered in detail in the Conclusive Grounds Decision, and on the balance of probabilities and on full consideration. The FtTJ however was correct in stating that the FtT was not bound by the decision of the NRM but the FtTJ considered that evidence to be “relevant and persuasive in establishing the facts of the appellant’s account”.
31. The FtTJ’s conclusion was that the NRM decisions related only to matters of trafficking and modern slavery but that the FtTJ considered they were “in short, experts in considering such claims”. I pause there to observe that whilst there was a Reasonable Grounds decision, there was no minute in the consolidated bundle setting out the reasoning of the Conclusive Grounds decision. Mr Coburn confirmed that that was the position ( see pages 57-58). Whilst the decision assessed the exploitation as (i)Forced Criminality - delivering envelopes of money, Poland, approx. 1992 – 1995 (ii) Forced Criminality - delivering drug packages, Krakow, Poland, approx. 2001 2003 (iii) Forced Criminality - guarding drug packages, Italy, approx. 2007-2008, there was no assessment or reference to risk of re-trafficking on return or risk of future harm. Nor did that evidence provides support for the appellant’s factual claim that the criminal gang that he feared operated throughout Poland to the extent that he would be recognised wherever he went in Poland or that they were in any way associated with the intelligence services or the State apparatus(I refer to the appellant’s evidence set out at paragraph 26).
32. Even taking into account the finding made that the appellant had been subject to forced criminality in Poland between 2001 – 2003 as set out in the NRM decision and also forced criminality in Italy ( see paragraphs (49), it did not obviate the need for the FtTJ to make findings of fact and give reasons as to why the appellant remained at a real risk of serious harm as at the date of the hearing in 2026. There were no findings of fact that the appellant would be at risk of trafficking or re-trafficking in Poland and the evidence before the tribunal was that the last time he returned was in 2014 where he was not subject to harm based on the short period he was there and the remoteness of it, that the last known issue was in 2007 when he claimed to have been threatened (see paragraph 47). Thus, there was a long period of time between the claimed incident in 2007 and assessing risk on return in 2026. It is common ground that there was no other incident following that described in 2007.
33. The appellant’s evidence as to future risk was recorded at paragraph 26 and on the basis that when he returned in 2014 this was for a short period and that he stayed on the Czech border and that “if he had tried to go into a city then he thought he would have been at risk he had lived in Gdansk, Kraków and Warsaw and everywhere he had been he had met people who were involved with these gangs and he had been recognised. He was too scared to go back there now as he felt someone would recognise him.” This formed the submission made behalf of the appellant as recorded at paragraph 37, and that if he returned to Poland, then it was reasonably likely to be only a matter of time before he encountered these gangs again who had shown an ongoing interest in him.”
34. The ASA filed on behalf of the appellant referred to the respondent having ignored police corruption and infiltration of organised criminals and as being consistent with the NRM trafficking finding which confirmed a lack of recourse to police authorities (p52).
35. It is also set out in the recitation of the evidence at paragraph 29 that the appellant claimed how the police behaved and how he thought they all knew each other (in the context of the gangs). He stated that it might have changed now but that’s how it was then. He had not been in Poland for years but he still thought he could be tracked down. It could be anywhere. Most of the criminals had businesses and links in the cities.” At paragraph 31 the FtTJ recorded his evidence where he said he thought the police still cooperated with criminal groups in Poland.
36. It is against that evidential background that the respondent submits that the FtTJ erred in law by the failure to give adequate reasons by reference to the significant period of time that the appellant had lived away from Poland. The claim that the appellant was recognised in 2007 as evidence to support the assessment that there would be a real risk on return now and he would be at risk of further serious harm by the gang was not adequately reasoned ( see finding made at paragraph 50). In other words, there was a gap in that reasoning, to reach that finding that based on his account of being recognised in 2007 that there was a reasonable likelihood or real risk that this would occur at the present time.
37. I am satisfied that there was an absence of reasoning in the assessment made when seen in the context of the factual claim made by the appellant. By way of example, he had claimed that the men were well connected (see p246), that the men in Italy were knowledgeable about this appellant’s issues in Poland signifying some transnational reach ( see paragraph 4 of decision ) and generally asserted that these were “powerful individuals”.
38. Whilst the FtTJ made a finding that the appellant’s account was supported by background evidence in relation to the operation of the X gang ( see paragraph 49) and that the gang continued to operate as supported by the background evidence, there was an absence of reasoning based on that available evidence to support risk on return from the gang now.
39. Whilst I would agree with Mr Coburn who submitted that the FtTJ was entitled to make a finding that there was such a criminal gang X which operated in Poland based on the material set out at paragraph 5 Section C (p60CB), that material was extremely limited in its contents. When considered in the reasoning of the FtTJ the material did not address or support the appellant’s claim that the gang were associated with the police, or that they acted with impunity as the appellant had claimed. In fact, the article itself demonstrated the opposite. This was an article written in August 2025 detailing how judgement had been passed in the case of a gang X and reported that convictions were reached against 28 members who are associated with pseudo-fans in the X sports club. Reference is made to the officers conducting the case alongside the Department of Organised Crime and the National Prosecution Office and Central Bureau of Investigations and that the indictment served in 2021 lead to the gang being subject to sentences of imprisonment from eight months to 8 years. Further proceedings were still pending. It noted that they were found guilty of 139 crimes including smuggling, trafficking of drugs, robbery, extortion and kidnapping and the use of a machete.
40. Mr Coburn directed the Tribunal’s attention to paragraph 50 and that the FtTJ had considered the issue of risk at the present time based on the timelapse. However, when reading paragraph 50, the first reason for concluding that there was a real risk that he would be recognised on return and further serious harm would follow, appears to have been based on the appellant’s evidence that he was recognised in three cities. That was wholly unreasoned by reference to the evidence and the relevant circumstances . In any event the second reason given was that he would be recognised because X gang continued to operate as supported by the background evidence.
41. As set out above, the judge was entitled to find that the gang as named as X operated by reference to the limited information in that article dated August 2025, but what was missing was the reasoning to support the claim that after all these years X gang would have retained an interest in him and would recognise him. The evidence did not support the claim made that the gang operated throughout Poland or that the same gang as claimed by the appellant contained the same members who had seen him previously and thus were able to recognise him wherever he lived in Poland. There is a complete absence of reasoning in that risk assessment set out at paragraph 50 and which is not addressed by the material as relied upon by the FtTJ. There was no evidence that the gang comprised of the same members as they did in 2004 or even 2007. There was no evidence of previous members or current members operating throughout Poland and I am satisfied that the assessment of risk lacked adequate reasoning both at paragraph 44 and paragraph 50. In my view the reasoning fell short of adequacy and that there was a gap in the logic from the finding made that the appellant had previously suffered serious harm at their hands in 2004, had been recognised in 2007 and that this would lead to a real risk on return in 2026. The appellant was no longer a child or young person but was an adult and it does not logically follow that even if the gang was in existence currently that they would have maintained an interest in him following such an extensive period of time.
42. I am therefore satisfied that the grounds are made out and that the FtTJ failed to give adequate reasons on the key material facts for reaching the overall conclusion that the appellant would face a real risk of serious harm on return to Poland.
43. Turning to the second part of the grounds, they relate to the point raised concerning the concession. Neither party sought to provide any transcript of the hearing or provide any contemporaneous note.
44. The grounds advanced on behalf of the respondent refer to what was termed the concession by the FtTJ in the decision. This begins at paragraph 17 under the heading “issues” . The FtTJ recorded the following:
“Mr White confirmed that I was being asked to go behind the findings of the NRM in respect of the appellant’s force criminality. It was not accepted that the appellant was at any risk in Poland or that he had been forced to do illegal things. Then FtTJ then records “however the respondent accepted that if the facts of the appellant’s case was established then there was no internal relocation or sufficiency of protection open to him.”
45. I pause there. The reference made in that paragraph is to the respondent and not expressly Mr X the presenting officer. Furthermore, the terminology used lacks clarity as demonstrated by the sentence “if the facts of the appellant’s case was established” . It does not set out what facts in particular were required to be established before accepting that there was no sufficiency of protection or internal relocation open to him. I note that the ASA filed after the Respondent’s review addressed both of those issues.
46. Mr Coburn referred to paragraph 51 as providing further clarification. At that paragraph the FtTJ stated, “ The respondent accepts that if this appellant makes his case, then there would be no sufficiency of protection available from the authorities and, also, no internal relocation alternative available to him. I do not go behind those concessions found in both the refusal letter and confirmed by Mr. White in the course of his submissions. Following Lata, I take an issues-based approach and these are matters which are not in issue. It follows from the foregoing, that this appellant therefore makes his case to humanitarian protection”.
47. When permission to appeal was refused it was stated that the concession was clarified at the outset of the hearing and that a “ strict reading “ of the refusal letter was clarified in the concession made at the hearing. It was stated that the concession procedure was not raised.
48. Neither party has sought to provide any transcript or provided any notes from that hearing or any further elucidation to what was stated at the hearing. I therefore proceed on the basis of what was set out on the decision and by reference to what was set out at paragraphs 17 and 51. It is clear that at the outset there was some discussion as to the issues as recorded above. At paragraph 51 the FtTJ returned to what was said to be the concession based on, first, the contents of the decision letter and second, the confirmation given by the presenting officer in his submissions.
49. Turning to the basis of the concession relied upon, the following was said to be the operative part of the decision letter set out between paragraphs 14-15.
50. It states as follows:
“Well-founded fear of persecution – Section 32 of the Nationality and Borders Act 2022 14.
I do not accept you are at real risk on return because:
• The material facts of your claim which would have created a real risk of persecution are not accepted.
• There is no real risk of harm because you left your home country in 2004 fearing persecution from the 4 people who had attacked you and the intelligence officer. However, since your arrival in the UK, you have returned to Poland in 2007/2014 (AIR1 28, 29). You have not heard from the people you fear since May 2003 (AIR1 47). You have not demonstrated how you are at risk since leaving your country and therefore, it is accepted that there is no real risk of harm upon returning to Poland.
Protection from persecution and internal relocation – Section 34-35 of the Nationality and Borders Act 2022
15. “There would not be sufficient protection from persecution in Poland (Section 34 NABA) and you could not relocate within your home country (Section 35 NABA) if the key material facts of your claim were accepted because you fear the 4 men who attacked you and the intelligence officer whose power and influence is noted, meaning that neither option would be available to you. However, as I have rejected the key material facts of your claim, it is considered you are not at risk on return and do not need to seek protection or internally relocate”.
51. It is submitted on behalf of the respondent that when reading paragraphs 14 and 15 set out above it clarifies there is a reference to the alleged criminal gangs and the stated intelligence officer. It is therefore submitted that the decision maker was accepting risk would be made out only if there was a continued threat from any criminal gang alongside ongoing threat from the intelligent officer are considered as still present.
52. Mr Parvar submitted that the FtTJ failed to identify or provide any reasons as to whether any ongoing risk from the intelligence officer prevailed. He refers to paragraph 49 and the acceptance of the appellant’s account to have been a victim of forced criminality and this involved an the intelligence officer, but that fell far short of the finding that there was any ongoing risk from a rogue state agent in the intelligence service or that the gang he feared had any connection to the authorities or to the intelligence services.
53. Mr Coburn in his submissions accepted that paragraph 15 in the decision letter was not clear but relied upon paragraph 48 where the FtTJ referred to the intelligence officer and that was not the basis of the claim fear of return. He argued that the Secretary of State was simply seeking to recast the concession and that this did not demonstrate any error of law in the decision.
54. In summary the respondent submits that the FtTJ narrowly construed what was described as the concession of paragraph 15 of the decision letter and that it was so narrowly framed that it was misunderstood.
55. Dealing with the issue of concessions generally, the new reformed procedure makes it clear that there has been a procedural sea change in relation to issue based reasoning. Tribunal Judges depend on and can legitimately expect the parties to have a firm understanding of their respective factual and legal cases. That expectation hardens when a concession is made by one party. It is presumed that where such a concession is made it is on the basis that a professional advocate has considered the evidence and the relevant legal principles in law.
56. As set out in the preceding paragraphs the FtTJ proceeded on the basis that there had been a concession made in the decision letter. When permission was refused it was stated that there procedure for withdrawing a concession had not been raised. Neither advocate sought to argue that at the hearing any such procedure had been raised. If it had been raised the FtTJ would have dealt with that in the decision. What is unexplained is that in the Review undertaken by the respondent, it was stated at paragraph 6, “ Respondent removes the concession in the RFRL that sufficiency of protection and internal relocation would not be available were the key material facts of the Appellant’s claim accepted (RB, pg 99, para 15). The Appellant fears non state actors, or a rogue state actor at the highest”. This was later addressed in the ASA which was served and filed after the Respondent’s review on 11 March 2026 which referred to issues of sufficiency of protection ( see page 61 “Supports the Appellant’s argument that, even as a recognised trafficking survivor (Positive Conclusive Grounds Decision), he faces ongoing risk and insufficient protection, particularly from organised criminal actors capable of reprisals”).
57. It is therefore clear that an issue had been raised as to the withdrawal of the concession. Whilst the FtTJ referred to the respondent’s review and this document formed part of the relevant material, no reference was made to this or the ASA which had made submission to the contrary.
58. This leads me to the second source of the concession which refers to what was said by the Presenting Officer which appeared to continue to rely on what was said in the decision letter at paragraphs 14-15. Thus, the issue for this Tribunal is not whether the respondent is now seeking to resile from the concession but whether that concession was properly understood or applied in context. In this regard, I take into account the submissions made by Mr Coburn who submits that in reality the submissions made on behalf of the respondent are no re than an attempt to recast the concession.
59. Having considered the concession in the decision letter and as stated before the FtT I am satisfied that whilst the FtTJ was entitled to rely upon the decision letter there remained a lack of clarity as to the basis of that acceptance “ if this appellant makes his case” and what was meant by that.
60. The answer to this may lie in the nature of the claim and the evidence that was put before the respondent and upon which the decision was made on 22 October 2024 (page 362 CB). In the screening interview the appellant set out his basis of claim 4.1 (p246) that he was afraid of the gang in his country, they are well connected and they forced him to do criminal matters. He stated that “The intelligence service is connected”. He was interviewed about his claim and the respondent summarised this in the decision letter at paragraph 5 and recorded later in that paragraph “If returned to Poland, you fear you will be killed by the men from the sports club because you refused to work for them. You also fear the people your father worked with in 1992 because you believe they are still involved in illegal work and want to kill you (AIR2, 4)”. The respondent considered that the appellant who claimed to be in fear from two different persecutors-the intelligence service or those associated with them and also the gang members. That seems to be also the reason why at paragraph 6 of the decision letter the respondent considered the claim was based on a fear of non-state actors and rogue state actors. The duality of risk was reflected in paragraph 14 . It is therefore possible to conclude that any concession that was made was on that basis and that that “key material facts” included assessment of future risk in both contexts.
61. Following the decision letter the appellant provided a written statement “discussion of the reasons contained in the decision letter” dated November 2021 (page 106) where reference was made to the behaviour of the security services, and at paragraph 25 stated “A high-ranking Secret Service officer cannot be a non-state actor or rogue state actor”. Reference was made in a statement (p114) “..even in the current situation I do not disregard the former, now non-existent security services, because their role in gaining contacts was based on supposed friendship and then dependence (on that person), xii. despite the time that has passed since the events, I still do not know all the connections of these people and their contacts, nor do I know the ways in which they exchanged information, what is the main threat to me when I do not know and cannot precisely locate the direction of the threat in which I may be located,..”
62. At p214, the appellant had stated that “as a young man I was involved in illegal operations in the intelligence service that were later banned. However, people remain the same. With the same connections and acquaintances”.
63. Having that looked at the evidence which reflected the appellant’s account at the time of the decision letter, the respondent was referring to risk of harm not only in the context of the gang and that this was reflected at paragraph 15 of the decision letter.
64. I note that at paragraph 51 the FtTJ also referred to the concession that was found in the refusal letter and “confirmed by Mr White in his submissions.” However, this has to be viewed in light of the matters that the decision letter did address and what was set out at paragraph 17. It seems to me that there was at the very least a lack of clarity as to what facts of the case were required to be established so that no internal relocation or sufficiency of protection did not have to be argued.
65. This is further supported by the respondent’s review place on 30 June 2025 (p382) and the ASA which responded to this.
66. I take into account that the FtTJ stated that they proceeded on the basis that whilst the appellant did not name the individual for whom his father worked for in a statement at interview, this is not the basis of the claim fear on return (see paragraph 48). In essence the judge found that the appellant did not claim to fear from this man and that the record of the events were to give context for his later life. It is unclear on what basis that finding was reached in light of what had been set out above and that there was reference to the gang he claimed to fear had connections to the authorities and/or the intelligence services.
67. The FtTJ was not assisted by the parties identifying the key factual issues that were to be decided. In any event, I conclude that there was at the very least a lack of clarity as to what facts of the case were required to be established so that it was unnecessary for internal relocation or sufficiency of protection to be addressed even on the basis that the appellant’s fear related to the risk from the gang who were on any assessment non- state actors. Thus, there was no finding on this as part of the “ key material facts” and even if the FtTJ was entitled to find that the gang still existed based on the material, the missing key fact which required to be established was whether they had any such links to the State as relevant to the objective assessment of risk on return.
68. Returning to the grounds of challenge, even if the grounds relevant to the concession argument are not established, I am satisfied for the reasons that are set out above that there was inadequacy of reasoning which went to the heart of the issue of risk on return to Poland as assessed at the date of the hearing.
69. For those reasons I am satisfied that the decision involves the making of an error on a point of law that is material and that the decision should be set aside.
70. As to how the decision should be remade I have considered the practice statement and the decision of the Court of Appeal in AEB v SSHD[2022] EWCA Civ 1512 and that of the Upper Tribunal in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46, and in the light of the overriding objective. I am satisfied that the appeal falls within paragraph 7.2 (b) as it will be necessary to undertake an assessment of all the factual evidence when reaching a decision and thus I am satisfied that the appeal should be remitted to the FtT for hearing.
71. I am satisfied that none of the findings of fact can be retained as they are interlinked with the issue of risk and as the decision sets out inadequate reasons were given on the relevant issues. This is consistent with AB(preserved FtT findings; Wisniewski principles) Iraq [2020) UKUT 0268(IAC) which emphasises the difficulty of drawing the bright line around what a finding of fact is and in the context of preserving findings where it is asserted that the findings have not been infected by any errors of law. There is no hard edged answer to what that means in practice in any particular case. In essence each case is fact sensitive, and I reach the conclusion that none of the findings of fact can be retained as they are interlinked with the issue of risk and in the context of inadequacy of reasoning.
72. Further, this was a deportation appeal and no assessment was made on the other part of his claim based on Article 8 and that will need to be addressed and findings made. Any Judge considering the appeal will be required to assess the appellant’s account in accordance with all the available material relied upon by the parties. The “principal controversial issues “should be clearly set out in written documents so that there is no lack of clarity as to what any FtTJ should addressing in the appeal.
Notice of Decision:
The decision of the FtTJ involved the making of an error of law and the decision of the FtTJ shall be set aside and remitted to the FtT with no findings of fact preserved. The parties agree that there is no Convention issue and that should be preserved.

12 October 2026
Upper Tribunal Judge Reeds
Upper Tribunal Judge Reeds