Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002391
First-tier Tribunal No: PA/74532/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 28 August 2026

Before

UPPER TRIBUNAL JUDGE BULPITT

Between

NQ
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms P Glass, Counsel instructed by Longfellow Solicitors
For the Respondent: Mr M Pugh, Senior Home Office Presenting Officer

Heard at Field House on 31 July 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
(1) Introduction
1. The appellant is a 31 year old Afghan national. He arrived in the United Kingdom in a small boat and without permission on 11 September 2023. Having arrived he claimed asylum saying that he feared persecution by the Taliban because of his previous employment as the driver and security guard for the first woman to be appointed as a District Police Chief in Afghanistan. He was interviewed about that claim on 21 August and 17 October 2024. On 24 October 2024 the respondent issued a decision refusing his protection and human rights claims to remain in the United Kingdom. The appellant appealed against that decision to the First-tier Tribunal. His appeal was heard by First-tier Tribunal Judge Cohen (the Judge) on 5 March 2026 and on 8 March 2026 the Judge issued a decision dismissing the appellant’s protection and human rights appeals.
2. The appellant now appeals against the Judge’s decision with the permission of another First-tier Tribunal Judge (the permission Judge) to this Tribunal. Pursuant to section 12(1) of the Tribunals, Courts and Enforcement Act 2007, the issue for me is whether the Judge’s decision involved the making of an error on a point of law.
3. I maintain the anonymity order that was made by the Judge because the appellant has made a protection claim and an order is necessary lest anything said or done in these proceedings gives rise a risk to the appellant in his home country.
(2) The Judge’s Decision
4. In paragraphs [1] – [18] of his decision the Judge sets out the appellant's protection claim and the respondent’s reasons for refusing the claim. At [19] – [21] the Judge records the evidence that was adduced by the appellant for the appeal hearing including a witness statement from the appellant, documentary evidence and “objective evidence.” At [22] the Judge records that the appellant did not pursue arguments that his removal would be incompatible with his rights under Article 3 or Article 8 of the European Convention on Human Rights.
5. At [23] the Judge records his decision to exclude evidence that the appellant served the day before the hearing. Because this decision is the subject of a challenge in the appeal to this Tribunal it is helpful to set out this paragraph of the Judge’s decision in full:
The appellant’s representatives uploaded a 2nd addendum bundle with 2 witness statements on 4 March 2026, the day before the appeal. Mr Rahman had no instructions as to why the witness statements were submitted so late and in contravention to the Procedure Rules the witnesses did not attend court.. The witness statements despite being for 2 completely different individuals were in virtue identical form. Mr Woon opposed admission of these documents into evidence and due to the issues with the documentation I have identified above which could not be addressed because the witnesses would not accord and total failure of any explanation as to why the documents were submitted so late and in contravention of the Procedure Rules, I refused to admit the same into evidence. (sic)
6. At [24] – [31] the Judge records the evidence that the appellant gave during the hearing. The Judge then notes at [32] that he heard submissions from the parties and at [33] that at the end of the hearing he reserved his decision. The Judge then set out the legal framework to his decision at [34] – [36] before turning to make his “Findings.”
7. The Judge considered the appellant’s claim to have been the driver and security guard for a female District Police Chief in Afghanistan. He noted at [39] that while the appellant’s evidence was that the first female District Police Chief in Afghanistan was Colonel Jamila Barakzai and that Colonel Barakzai had two children, the respondent had referred to news reports which said that the first female District Police Chief in Afghanistan was Colonel Jamila Bayaz who has five children. The Judge found that Colonel Jamila Barakzai did not hold “the claimed role” and that the appellant had given discrepant evidence about who was the first female police chief in Afghanistan. The Judge found that this damaged the appellant’s credibility.
8. At [40] the Judge records that the appellant has variously described the person he worked for as Colonel Jamila Barakzai and as General Jamila. The Judge records that the appellant’s explanation for that discrepancy was that elderly people can be referred to as General. The Judge found that explanation “totally lacked credibility” and that the discrepant evidence about the rank held by “Jamila” further undermined the appellant’s credibility.
9. At [41] – [43] the Judge analysed documentary evidence the appellant had adduced concerning “Colonel Jamila”. The Judge records at [41] that three certificates adduced each had a different spelling of Colonel Jamila’s name and considered that these discrepancies meant little weight could be given to the certificates. At [42] the Judge states that the age for Colonel Jamila shown in the identity card that had been adduced differed from the age the appellant had given for Colonel Jamila and found that this discrepancy further damaged the appellant’s credibility. At [43] the Judge considered photographs which purported to show Colonel Jamila Barakzai and an email which purported to have been sent by Colonel Jamila Barakzai. The Judge found that he could attach little weight to those documents as there was no verification of their source and the appellant had no idea who took the photo.
10. Paragraph [44] of the Judge’s decision is the reason the permission Judge granted the appellant permission to appeal to this Tribunal. It is helpful therefore to set out that paragraph in full:
The appellant claimed to be a driver and security guard for Colonel Jamilla. Before me, he indicated that he had received arms training on a Kalashnikov. In response to my questions concerning the calibre of bullets fired by a Kalashnikov, the appellant indicated that they were approximately 2.5 cm. I have personal knowledge of an AK-47 (Kalashnikov) having fired the same at a shooting range in Las Vegas. It takes 7.62×39mm bullets. The appellant’s estimate concerning the length of the bullet was wrong by a factor of 3. I find the fact that the appellant lacked this basic knowledge concerning the weapon he claimed to have been trained on to be extremely damaging to his credibility and indicative of the fact that the appellant has no arms training and did not fill the role that he claimed in Afghanistan.
11. At [45] – [47] the Judge considered inconsistencies in the accounts the appellant had given about his treatment by the Taliban in Afghanistan. At [45] the Judge records discrepancies between the appellant’s interview account that he had not faced problems before the Taliban took control of Afghanistan and his later evidence that he had received regular threats from the Taliban plus inconsistencies in the appellant’s account about how many times the Taliban had raided his house, before finding that these discrepancies were damaging to the appellant’s credibility. At [46] the Judge records that although the appellant said in his oral evidence that his house had been raided four months earlier he had not mentioned that raid in his witness statement, finding this discrepancy to be indicative of fabrication. At [47] the Judge identified a discrepancy between the appellant's claim in his screening interview that he had been taken to prison by the Taliban and escaped from prison and his later evidence that he had escaped from a truck when on his way to prison. The Judge found this to be a major discrepancy which caused further damage to the appellant’s credibility.
12. The Judge found at [48] that the hesitant way the appellant gave his evidence was damaging to his credibility and at [49] found that the discrepancies in the appellant’s evidence could not be explained by his claim to suffer memory problems. At [50] the Judge summarised that, noting his adverse credibility findings, he had given little weight to the documentary evidence adduced by the appellant.
13. At [51] the Judge added that there “are further discrepancies permeating the appellant’s claim and evidence which I find to be implausible but which I will not set out in further detail herein”. The Judge then set out his conclusion about the credibility of the appellant’s claim at [52]:
In the light of significant discrepancies throughout the appellant’s claim, which go to the very heart of the same, I find the appellant to be totally lacking in credibility and find that he has fabricated his asylum claim in its entirety. I reject the appellant’s claim to have worked for: Jamila in Afghanistan as claimed. I find that he was of no interest to the Taliban at the time that he left the country and would equally be of no interest upon return now.
14. Having identified at [53] that the appellant’s failure to claim asylum in the safe countries of Greece and France further undermined his credibility, the Judge continued at [54]:
I find that the appellant is not at risk upon return to Afghanistan at the hands of the Taliban or any individual or other group and therefore have no need to consider sufficiency of protection or internal relocation. I find that he has fabricated his asylum claim in its entirety. I find that the appellant's family remain safely in Afghanistan and that the appellant may reunite with his family members in Afghanistan.
15. Having made these findings of fact the Judge stated at [55] that the appellant would be in the same position as millions of the populace in Afghanistan and that the country situation in that country was not sufficient to enable the appeal to be allowed on humanitarian protection or human rights grounds. At [56] the Judge concluded that applying the lower standard of proof, removal of the appellant would not breach the United Kingdom’s obligations and he therefore dismissed the appeal on refugee grounds. At [57] he further dismissed the appeal on humanitarian grounds and at [58] – [59] the Judge concluded that the appellant’s removal to Afghanistan would not be incompatible with his rights under Article 3 or 8 of the European Convention on Human Rights. The Judge therefore also dismissed the appeal on human rights grounds.
(3) The appeal to this Tribunal
16. The appellant sought permission to appeal against the Judge’s decision on the following five grounds:
i. A failure to apply the correct standard of proof
ii. Irrational credibility findings
iii. Failure to properly assess documentary evidence
iv. Failure to properly assess country evidence
v. Procedural unfairness arising from the decision not to admit the two late witness statements
17. When granting permission to appeal, the permission Judge noted these five grounds of appeal but identified a different arguable error of law in the Judge’s decision stating:
Permission to appeal is granted because it is arguable that the Judge erred at paragraph 44 by relying on his own personal knowledge of an AK-47 and its ammunition when making a significant adverse credibility finding. Although the decision records that the appellant was asked about Kalashnikov ammunition and that submissions followed, it is not apparent that the Judge’s personal knowledge, or the proposed adverse inference drawn from it, was put to the parties for comment.
18. The permission Judge did not limit the grounds of appeal that could be argued before this tribunal.
19. In anticipation of this hearing the respondent served a response in accordance with rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (the Procedure Rules) resisting the appeal. The applicant made an application in accordance with rule 15(2A) of the Procedure Rules for permission to admit further evidence that was not before the Judge.
20. At the hearing I heard submissions from Ms Glass and Mr Pugh before reserving my decision. I intend no disrespect by not setting out all those submissions here, but I will refer to them where necessary to explain my decision.
(4) Analysis
(4.1) – the ground of appeal identified by the permission Judge
21. At [39] of R v Secretary of State for the Home Department ex parte Robinson [1998] QB 929 it was held that
if when the Tribunal reads the Special Adjudicator’s decision there is an obvious point of Convention law favourable to the asylum-seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so, there will be a danger that this country will be in breach of its obligations under the Convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do.
22. Applying this principle, a Presidential panel of this Tribunal gave the following guidance in of AZ (error of law; jurisdiction; PTA practice) Iran [2018] UKUT 00245 (IAC):
69. In conclusion, we consider that any judge who is considering whether to grant permission to appeal to the Upper Tribunal must not grant permission on a ground which does not feature in the grounds accompanying the application, unless the judge is satisfied that the ground he or she has identified is one which has a strong prospect of success for the original appellant;…
70. The basic point to be borne in mind is that there must be an extremely sound reason for, in effect, compelling the parties to an appeal to engage with a matter that neither of them has identified.
23. The respondent argues in her rule 24 response and through Mr Pugh’s helpful oral submissions, that the permission Judge failed to apply this guidance when granting permission as set out at [17] above. The respondent submits that the potential error of law identified by the permission judge, which was not defined but amounts to an argument that a procedural unfairness arose from the Judge’s consideration of an issue that was in his personal knowledge and not the evidence, was not an obvious error in the way described in Robinson and that it does not have a strong prospect of success. In these circumstances the respondent argues that this ground of appeal should not be considered at all.
24. The appellant did not provide a reply to the respondent’s rule 24 response to the permission Judge’s grant of permission and has provided no written argument concerning the permission Judge’s grant of permission. In her oral submissions Ms Glass argued that the arguable procedural unfairness identified by the permission judge was in fact covered by the ground (ii) the assertion that the Judge made irrational credibility findings, and ground (v) the assertion that there was a procedural unfairness. Ms Glass submitted therefore that the permission Judge had not identified a new ground of appeal but had given further context to the grounds that had been pleaded.
25. I cannot accept Ms Glass’s submission that the grounds of appeal pleaded included a complaint about [44] of the Judge’s decision and the Judge’s finding that the appellant’s evidence about the size of bullets used in an AK-47 Kalashnikov weapon was extremely damaging to his credibility. Neither ground (ii) nor ground (v) makes any reference to [44] of the Judge’s decision and the grounds of appeal which extend to more than 28 paragraphs make no mention whatsoever of the Judge’s analysis of the appellant’s evidence about AK-47 Kalashnikov weapon and its bullets. In my judgment it is clear that the permission judge granted permission on a ground which did not feature in the grounds of appeal. As per Robinson and AZ (error of law; jurisdiction; PTA) Iran the permission judge should only have done so if the ground was obvious i.e. it had a strong prospect of success. Instead permission appears to have been granted on the basis that the ground was arguable.
26. Having heard the submissions of the parties on the ground identified by the permission Judge, it is in my judgment clear that had the permission judge asked himself the correct question he would not have found the ground to be strongly arguable and that the ground identified by the permission Judge does not establish that there was an error of law in the Judge’s decision. Instead the grant of permission on this ground on the basis that it is arguable but without apparent consideration of whether it has strong prospect of success, thereby requiring the parties to engage with a matter that neither of them had identified, serves as a further example of why Judges should be slow to grant permission on grounds which have not been advanced by the appealing party.
27. Perhaps unsurprisingly since neither party had identified this as an issue, there is a paucity of evidence about how the evidence about the appellant’s knowledge of a Kalashnikov weapon was adduced or how the issue was considered at the hearing. As the permission Judge observed however, it is apparent from the Judge’s decision at [31] that the Judge asked the appellant about his knowledge of a Kalashnikov and its bullets. Neither party has provided a transcript or record of those questions. Based on the brief note made by the Presenting Officer at the First-tier hearing, Mr Pugh submitted that the Judge had declared when asking those questions that he had a personal knowledge about the issue. Ms Glass (who did not represent the appellant in the First-tier Tribunal) did not dispute that record or that submission. Likewise, both Mr Pugh’s note and the permission Judge’s grant of permission identify that the parties made submissions about the answers the appellant gave on this issue prior to the Judge’s assessment of the evidence. Again, no doubt because it was not a point taken by them, neither party has adduced any evidence of what those submissions were or what interaction there was with the Judge about his declared personal knowledge.
28. Whilst the permission Judge says that it is not apparent that the Judge’s personal knowledge, or the proposed adverse inference drawn from it, was put to the parties for comment, the appellant’s representatives who were present at the hearing have not complained about the procedure followed by the Judge either in the original grounds of appeal or subsequent to the grant of permission. On the material before me therefore it is impossible to conclude that the appellant and his representatives were deprived of the opportunity to engage with the Judge’s concerns about this evidence.
29. I have set out in full at [10] above the Judge’s consideration of the appellant’s evidence about Kalashnikov weapons and their bullets which comes at [44] of his decision. Whilst the Judge’s reliance in that paragraph on knowledge about bullets gleaned from a visit to a shooting range in Las Vegas was unconventional, without any further evidence or complaint it does not follow that it was unfair for the Judge to have regard to that personal knowledge when considering the credibility of the appellant’s evidence. On the contrary the material before me indicates that the Judge informed the parties of his personal knowledge on the subject and that the parties had the opportunity to make submissions addressing the issue before the Judge reached his conclusion.
30. Overall therefore, in the absence of any complaint from the appellant or his legal representatives about the procedure followed by the Judge, I am not persuaded that the appellant was deprived of a fair hearing. Neither do I find, that it was unfair for the Judge to have regard to facts in his own personal knowledge when assessing the credibility of the appellant’s evidence in circumstances where there has been no complaint from the appellant’s legal representatives, and where the Judge’s knowledge appears to have been disclosed to the parties during the hearing and the parties were able to make submissions on the issue during the hearing. Accordingly I dismiss the ground of appeal identified by the permission Judge.
(4.2) The application to adduce further evidence
31. In his application made in accordance with rule 15(2A) of the Procedure Rules, the appellant seeks permission to rely on two screenshots of website pages which he argues provide evidence that Colonel Jamila Barakzai was a senior police officer in Afghanistan. Rule 15(2A)(ii) requires an applicant seeking to rely on evidence that was not before the First-tier Tribunal to explain why the evidence was not submitted to the First-tier Tribunal. The appellant’s application does not provide any such explanation. Instead it says that “the proposed evidence directly addresses one of the principle findings made by the First-tier Tribunal” and should therefore be admitted.
32. The application to adduce further evidence does not therefore comply with the Tribunal’s Procedure Rules. Instead the application treats the hearing before the First-tier Tribunal as a “dress rehearsal” and seeks to respond to the findings made at the conclusion of that hearing. The hearing at the First-tier Tribunal was however not a dress rehearsal which provides an opportunity for the appellant to gather further evidence to address the findings that were made. The hearing at the First-tier Tribunal was “the first and last night of the show” (see [29] of the judgment of McCombe LJ in Lowe v Secretary of State for the Home Department [2021] EWCA Civ 62). The time for adducing this evidence was in the lengthy period of case building and case management between the appellant lodging his appeal in October 2024 and the hearing in March 2026. In all these circumstances I decline to admit this additional evidence that was not before the First-tier Tribunal.
(4.3) The five grounds of appeal advanced by the appellant
Ground (i)
33. In ground (i) the appellant asserts that the lower standard of proof applies in asylum claims and that the Judge’s reasoning “demonstrates that the Tribunal required the Appellant to provide a level of certainty inconsistent with the lower standard.” As the respondent pointed out in her rule 24 response, this misstates the legal position. The appellant’s protection claim was made after the coming into force of section 32 Nationality and Borders Act 2022 and in accordance with that section the Judge was required to apply the balance of probabilities when considering whether the appellant fears persecution in Afghanistan for a Convention reason. It was only if the Judge found that on balance the appellant did fear persecution in Afghanistan for a Convention reason that he should apply the lower standard of proof when consider whether the appellant would be persecuted. The Judge recognised the different standards of proof that applied at [34] of his decision.
34. Having identified the correct standard of proof that applied to the different stages of his decision making, contrary to the assertion made in the grounds of appeal, there is nothing about the Judge’s decision which demonstrates or even suggests that he then failed to apply those standards and instead required a level of certainty from the appellant. Ms Glass did not address this complaint in any detail in her oral submissions and there appears to be no basis for the complaint, other than the fact the Judge categorically disbelieved the appellant. The fact that the Judge reached such a firm conclusion that the appellant’s account was not true does not however in or of itself indicate that the Judge was requiring certainty.
35. I conclude therefore that ground (i) is without any merit and dismiss this ground of appeal.
Ground (ii)
36. Ground (ii) was where Ms Glass focused her submissions. She argued that there had clearly been confusion about two different people and that while the appellant had been the driver and security guard for Colonel Jamila Barakzai, the Judge was considering evidence about a different person, Colonel Jamila Bayaz. Ms Glass submitted that this confusion led to the Judge unfairly making adverse credibility findings at [39] and [40] of his decision. These submissions however did not reflect the way ground two is argued in the grounds of appeal and they did not reflect the way the case was advanced before the Judge.
37. The respondent first referred to Colonel Jamila Bayaz at [8(b)] and [8(c)]of her decision letter, identifying external information that said Colonel Bayaz was the first female police chief and that she has five children and on the basis of this information finding the appellant’s account not to be reliable. The appellant addressed those paragraphs of the decision letter in his witness statement but without saying the respondent had confused two different people. instead he said only that he worked for Colonel Jamila Barakzi and that she has two children. Similarly in cross examination when the information about Colonel Bayaz being the first female police chief was put to the appellant, he said only that he was not lying, that he worked for Colonel Barakzai and that Colonel Barakzai has two children. No submissions were made on behalf of the appellant along the lines of those made by Ms Glass before me that there were two female Chiefs of Police and there had been confusion about which one the appellant was describing.
38. In this context, there was nothing irrational or unfair about the Judge’s assessment that the appellant’s evidence was inconsistent with the external information referenced by the respondent. The Judge was entitled to consider that information and to conclude that it undermined the credibility of the appellant’s account.
39. Ground (ii) as pleaded in the written grounds of appeal avers that the Judge failed to assess discrepancies in the appellant’s evidence in the context of the evidence as a whole and suggests that the discrepancies in the appellant’s evidence were peripheral and therefore that the conclusion the appellant had fabricated his account was irrational. The Judge however identified a number of inconsistencies and weaknesses in the appellants account which cumulatively led him to the conclusion the account had been fabricated. Those inconsistencies included not only the external information about Colonel Bayaz, but also inconsistent evidence from the appellant about escaping from the Taliban, inconsistent evidence about the extent of the opposition he faced from the Taliban while in Afghanistan, inconsistencies about the rank Ms Barakzai held and her age. These were all features of the evidence that the Judge was unquestionably entitled to have regard to, when assessing the truth of the appellant’s claim. In the light of those inconsistencies the conclusion reached by the Judge that this was a fabricated claim was one which a reasonable Judge could reach. The Judge’s conclusion about the credibility of the appellant’s account was therefore rational and I dismiss the appeal on ground (ii).
Ground (iii)
40. In ground (iii) it is argued that the Judge’s consideration of the documentary evidence adduced by the appellant was not consistent with the guidance provided in Tanveer Ahmed [2002] UKIAT 000439 and that instead of considering the documents in the context of the evidence as a whole, the Judge gave them little weight largely because their authenticity could not be independently verified. This ground has no merit.
41. At [41] of his decision the Judge identified that each of the three certificates purporting to relate to Colonel Jamila had a different spelling for her name. At [42] of his decision the Judge identified that the content of the identity card for Colonel Jamila that was submitted by the appellant, was inconsistent with his oral evidence. These passages demonstrate that the Judge was considering the documentary evidence in the context of the evidence as a whole and in particular in the light of the appellant’s evidence. It was at [43] that the Judge mentioned the absence of verification of the authenticity of the photographs and email that was adduced. This was unquestionably a matter the Judge was entitled to take into account when assessing the reliability of the evidence. It was not however, as his earlier assessment of the evidence demonstrates, the only matter to which he had regard.
42. Overall therefore, it is apparent that contrary to the grounds of appeal the Judge did assess the documentary evidence as part of a holistic assessment of the evidence adduced. The reality however was that the documents were internally inconsistent, were inconsistent with the appellant’s account and their provenance was unexplained. In those circumstances the Judge was entitled to conclude that he could not attach much weight to the documentary evidence.
Ground (iv)
43. The fourth ground of appeal is misconceived. It argues that the Judge failed to take account of “objective country evidence” that drivers, guards and other support staff of former government officials are at risk in Afghanistan from the Taliban. The ground does not however acknowledge the Judge’s factual finding that the appellant was not a guard, driver or support staff for a former government official, that he had fabricated his claim and that he would not be at any greater risk in Afghanistan than any other member of the public. That finding was dispositive of the appellant’s asylum claim.
Ground (v)
44. As I have already identified, the complaint of procedural unfairness in ground (v) is not about the Judge’s questions to the appellant about the Kalashnikov weapon. Instead it is argued in this ground that it was unfair for the Judge to exclude two witness statements that were served the day before the hearing. The argument advanced in the grounds, repeated by Ms Glass in her submissions, is that because the two witness statements were capable of corroborating the appellant’s claim, it was unfair for the Judge to exclude them.
45. In his submissions Mr Pugh helpfully directed me to the recent guidance provided by a Presidential panel of this Tribunal in Dawrani (Judicial discretion – late evidence – sanction) [2026] UKUT 00151 (IAC). I agree with Mr Pugh submission that the guidance provided contradicts the argument advanced by the appellant. In Dawrani (Judicial discretion – late evidence – sanction) the panel made clear at [35] that:
It must not be thought that the mere presence of available and relevant evidence will invariably result in its admission irrespective of whether it has been provided in compliance with case management directions….The expectation of procedural indulgence when a judge is presented with relevant evidence, no matter how late, is inimical to the interests of justice and its effective administration
46. The Judge explains his decision refusing to admit the two witness statements at [23] of his decision which I have set out at [5] above. It is apparent that the paragraph would have benefitted from proof reading and corrections to its grammar. It may also have been helpful for the Judge to have identified the three stage process that applies when considering an application to admit evidence that has been served contrary to case management directions. That process is identified at [22] of Dawrani (Judicial discretion – late evidence – sanction) quoting from an earlier decision of this Tribunal in Maleci (Non-admission of late evidence) [2024] UKUT 00028 (IAC). It involves: (1) identifying the seriousness and significance of the failure to comply with the rules, (2) consideration of why the failure occurred and (3) evaluation of all the circumstances of the case to fairly determine whether to admit the evidence.
47. Although the Judge did not refer to the decisions in Maleci or Dawrani it is clear that he applied the principles set out in those cases and the three stage process for considering whether to admit the late witness statements. The Judge recognised that the evidence had not been served in accordance with case management directions and instead had been served the day before the hearing. On any view this was a serious and significant failure to comply with the rules. The Judge identified that no explanation whatsoever had been provided for the late submission of the evidence. The Judge then considered all the circumstances of the case including the quality of the evidence, noting that despite the fact they were the statements of two different people they were virtually identical, and the fact the witnesses who made the statements had not attended and so their evidence could not be tested by cross examination. In these circumstances the exercise of discretion undertaken by the Judge and the decision not to admit the evidence served contrary to directions was clearly rational, reasonable and adequately explained. Accordingly the complaint made in ground (v) is dismissed.
(5) Conclusion
48. For all the reasons identified above, none of the five grounds of appeal advanced by the appellant identify an error of law in the decision of the Judge. Further, for the reasons identified above, the additional ground of appeal identified by the permission Judge does not identify an error of law in the Judge’s decision.
Notice of Decision
The decision of First-tier Tribunal Judge Cohen does not involve an error of law and shall stand
The appeal to the Upper Tribunal is DISMISSED.

Luke Bulpitt

Judge of the Upper Tribunal
Immigration and Asylum Chamber

19 August 2026