Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002407
First-tier Tribunal No: PA/62588/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 17th of September 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE LAWRENCE

Between

AA (KUWAIT)
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: C Appiah, Barrister
For the Respondent: N Wain, Senior Home Office Presenting Officer

Heard at Field House on 14 September 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

Introduction

1. The Appellant appeals against a decision by Judge Dyer of the First-tier Tribunal (“the FtT Judge”), dated 16 January 2026, to dismiss an appeal against a decision by the Secretary of State for the Home Department (“SSHD”), dated 22 April 2024, to refuse a protection and human rights claim made in an application for leave to remain in the United Kingdom (“UK”).

Anonymity

2. I maintain or make an order for anonymity because the Appellant continues to rely upon international protection grounds. The importance of facilitating the discharge of the obligations of the United Kingdom (“UK”) under the Refugee Convention and European Convention on Human Rights (“ECHR”) outweighs the principle of open justice in this case.

Background

3. In the 22 April 2024 decision, the Respondent described the Appellant as having claimed to be an undocumented Bidoon from Kuwait and to fear persecution in that country by reason of membership of a particular social group with those characteristics. Also, that he claimed to have arrived in the UK on 27 December 2018, that he claimed asylum on the same day, that he withdrew that claim on 15 March 2019, and that he made further submissions on 17 February 2024 which were accepted as the protection and human rights claim that was refused in the 22 April 2024 decision.

4. In the 22 April 2024 decision, the Respondent accepted that undocumented Bidoons existed as a particular social group in Kuwait and therefore a genuine fear of persecution for that reason would engage the Refugee Convention, and that undocumented Bidoons are likely to face persecution in Kuwait and that if it was accepted that the Appellant was an undocumented Kuwaiti Bidoon he would be considered to be at risk of persecution and state protection and internal relocation would not be available to him. However, the Respondent did not accept that the Appellant was an undocumented Kuwaiti Bidoon.

5. The Appellant appealed against the 22 April 2024 decision and the appeal was heard by the FtT Judge on 14 October 2025. The FtT Judge promulgated their decision on 16 January 2025, dismissing the appeal having found the Appellant had not proved, even to the lower standard, that he was an undocumented Bidoon.

The appeal to the Upper Tribunal

6. Permission to appeal to the Upper Tribunal (“UT”) was granted by Judge Turner of the First-tier Tribunal in a decision dated 30 April 2026, for the following reasons:

“2. The grounds assert that the Judge erred in considering matters which were arguably peripheral to the core claim to make adverse credibility findings, particularly the evidence relating to the date of the Appellant’s father’s death. The IJ did not engage with the accepted facts in the case, namely that the Appellant’s brothers (accepted by DNA evidence) had been granted asylum as undocumented Bidoons. In the brief findings and conclusions at paragraph 32, the IJ states only that different family members may have different status in Kuwait without supporting this with any evidence. The IJ failed to consider the objective evidence which related to how status was conferred via parentage. This is an arguable adverse finding.

3. The Appellant also argues that weight was attached to the fact that the Appellant did not move to Iraq which was not a point relevant nor live in this appeal. It is not for the Appellant to demonstrate why he did not relocate to another country in which he has no evidenced status. This is a further arguable error.

4. The Appellant has identified arguable errors of law and permission to appeal is
granted.”

7. There has been no reply by the Respondent under Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

The hearing

8. Mr Wain confirmed that the Respondent opposed the Appellant’s appeal on all grounds.

9. I heard oral submissions by both representatives which I refer to in the sections below insofar as is necessary to explain my decision.

10. I reserved my decision to follow in writing.

Reasons

11. Mr Appiah adopted the Appellant’s grounds, which assert that the FtT Judge erred by considering factors that do not go to the core of the claim or had already been accepted by the Respondent.

12. The grounds assert that at paragraph 16 the FtT Judge “raises doubts” about the Appellant’s failure to refer to their claimed brother, whom I shall refer to as “A”, in the Appellant’s substantive asylum interviews or to include another claimed brother, whom I shall refer to as “H”, in the DNA analysis report provided in support of the claimed sibling relationship with A. Also, that a statement by the FtT Judge that there was limited evidence presented by A and H as to the basis upon which they claimed or were granted asylum was contrary to the facts accepted by the Respondent, including that A is the Appellant’s brother, as confirmed by the DNA report, and that A and H had been granted asylum by the Respondent on the basis of their claim to be undocumented Bidoons from Kuwait.

13. I am not persuaded that the FtT Judge erred in the manner so described. As is recognised in the grounds, the FtT Judge noted the relevant concessions by the Respondent, and there is nothing contrary to those concessions nor any inaccuracy or irrationality in the FtT Judge’s consideration that the evidence as to the basis on which A and H claimed or were granted asylum was of a limited nature. Such limitation was an obvious feature of the Appellant’s evidence to which the FtT Judge was at least entitled, and arguably bound, to have regard.

14. The grounds next assert that at paragraph 16 and 17, the FtT Judge “placed an over emphasis” on a discrepancy in the Appellant’s account of the date of death of his father, which the grounds describe as “a peripheral matter, insignificant, given too much weight and did not go to the core of the claim”.

15. I am not persuaded by that assertion either. Indeed, as the FtT Judge considered and for the reasons stated by them at paragraph 17 of the decision, the discrepancy was plainly significant because the Appellant’s claim was substantially based on an account of H being arrested when visiting his and the Appellant’s father in hospital at a time after demonstrations against the Kuwaiti government that occurred in 2014, and that it was that arrest that gave rise to the adverse interest in the Appellant by agents of the government and caused him to flee from Kuwait. That account was plainly and significantly inconsistent with the Appellant’s statements in one of the two substantive asylum interviews and in a written statement that his father had died or was buried in 2012.

16. The grounds also assert that the issue of the discrepancy as to the date of the Appellant’s father’s death had not been raised by the Respondent nor put to the Appellant to offer an explanation and therefore it was not open to the FtT Judge to reach adverse findings on the point. Mr Wain submitted that the inconsistency in the Appellant’s evidence was so obvious that it should foreseeably have been addressed by him without the tribunal specifically raising it and therefore there was no unfairness nor injustice in the fact, accepted by Mr Wain, that the point had not been put to the Appellant.

17. Mr Wain relied in that submission on paragraph 30 of the speech by Lord Justice Popplewell, with whom Lord Justice Arnold and Lady Justice King agreed, in the judgment of the Court of Appeal in Abdi & Ors v Entry Clearance Officer [2023] EWCA Civ 1455, which is as follows:

“30. In The Secretary of State for the Home Department v Maheshwaran [2002] EWCA Civ 173 [2004] 176 Imm AR, Schiemann LJ delivered the judgment of this court. He drew attention to the difficulties often faced by those sitting at first instance in immigration cases. Of relevance to the present appeal are the following observations. There are innumerable decisions which have stressed that the requirements of fairness are very much conditioned by the facts of each case (at [6]). A failure to put to a party a point which is decided against him can be grossly unfair and lead to injustice because he must have a proper opportunity to deal with the point (at [4]). Where much depends on the credibility of a party which has made several inconsistent statements, that party has a forensic problem as to whether to confront them or focus attention elsewhere. Fairness may in some such circumstances require the inconsistencies to be put to the witness but that will not usually be the case. Usually the tribunal can remain silent, especially if the party is represented, and see how the case unfolds (at [5]).”

18. Lord Justice Popplewell’s further explanation at paragraphs 31 to 33 of the same speech as to the applicable principles deriving from the authorities, is as follows:

“31. Problems often arise as to how the tribunal can avoid giving an appearance of bias where, as has increasingly happened, the respondent is not represented at the hearing and so the usual adversarial testing of the applicant's evidence by cross-examination does not take place. In June 1999, the Immigration Appeal Tribunal gave guidance in what have come to be known as the Surendran Guidelines, given emphasis by the Immigration Appeal Tribunal in MNM v Secretary of State for the Home Department [2000] UKIAT 00005. Paragraph 5 of the Surendran Guidelines is of direct application in this case. It provides:

"5. Where no matters of credibility are raised in the letter of refusal but, from a reading of the papers the special adjudicator himself considers that there are matters of credibility arising therefrom, he should similarly point these out to the representative and ask that they be dealt with, either in examination of the appellant or in submissions."

32. In WN v Secretary of State for the Home Department [2004] UKIAT 00213, Ouseley J (President) emphasised that a failure to follow the Surendran Guidelines was not itself conclusive of procedural unfairness. At [34] he said that paragraph 5 needs also to cover the position where no issue of credibility has been raised in the Refusal Letter and yet it may be obvious that further material provided to the adjudicator raises issues of credibility. They should be raised or put to the appellant so that he may answer them, but it does not mean that the hearing is unfair where that does not take place, at least where the appellant is represented. That depends on whether the points are obvious ones going to the appellant's credibility which he could be expected to realise needed addressing in any event, such as inconsistencies with previous statements or a failure to raise a particular matter earlier.

33. The recent decision of the Supreme Court in TUI UK Ltd v Griffiths [2023] UKSC 48 re-emphasises the principle that fairness generally requires that if the evidence of a witness is to be rejected, it should be challenged at the hearing so as to give them an opportunity to address the challenge; and that that is a matter of fairness to the witness as well as fairness to the parties, and necessary for the integrity of the court process in enabling the tribunal to reach a sound conclusion: see especially at [42]-[43], [55], and [70]. The rule is subject to certain exceptions and is to be applied flexibly in the circumstances of any individual case in application of the criterion of the overall fairness of the trial ([61]-[69] and [70(vii) and (viii)].”

19. I note in passing that the Surendran guidelines are not directly applicable to the Appellant’s case, because the Respondent was represented at the hearing before the FtT Judge.

20. Mr Appiah did not respond to Mr Wain’s submission that the Respondent’s opposition to this aspect of the grounds was to be derived from Abdi and the authorities referred to by Lord Justice Popplewell and there is no suggestion that the Appellant has any answer to the inconsistency.

21. The judgment of the Supreme Court in Tui was concerned with the general rule in civil cases that a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted. In the Appellant’s case, it was the FtT Judge rather than the Respondent who relied on the point in question but, as the Supreme Court explained, there are circumstances in which the rule they described may not apply, and the other authorities referred to by Lord Justice Popplewell have direct application to this jurisdiction and circumstances where the judge (or, formerly, adjudicator) relies on a point that has not been relied on by the Respondent nor raised with the Appellant by the judge.

22. The inconsistency as to the date of the Appellant’s father’s death was, in my consideration, an obvious point going to the Appellant’s credibility such as those described by Ouseley J in WN as not needing to be raised at a hearing as a matter of fairness in order that the point may be relied on by an adjudicator in the making of a decision in an appeal.

23. I find therefore that the FtT Judge did not materially err in law in the manner asserted in the grounds in relation to their reliance on the inconsistency relating to the date of the death of the Appellant’s father.

24. The second assertion made in the grounds is that the FtT Judge was not entitled to consider the potential rights or otherwise of the Appellant to live in Iraq, as an alternative to seeking protection in the UK and that the approach of the FtT Judge by making credibility findings based on the Appellant’s failure to move in Iraq is irrelevant and does not go to the core of the claim. Also, that the FtT Judge was not entitled to reach the conclusions at paragraph 31 without evidence that the Appellant would qualify for residence in Iraq based on his marriage and there is no requirement for the Appellant to demonstrate or provide reasons for not moving to Iraq rather than seeking protection in the UK. It is asserted that those findings are perverse. However, those assertions mischaracterise the FtT Judge’s reasoning. In paragraph 31 of the decision, the FtT Judge found it significant that by the Appellant’s own account, he and his wife and children did not seek to move to Iraq because they were settled in Kuwait without any problems, which the FtT Judge considered inconsistent with his claim to be an undocumented Bidoon in the light of the country evidence showing the problems undocumented Bidoons face in Kuwait, such as being denied the right to education, health, identity, employment etc. There is no irrationality, unreasonableness, nor inadequacy of reasoning in those considerations. Therefore, I am not persuaded that the FtT Judge erred in the manner asserted.

25. The third assertion made in the grounds is that the FtT Judge materially erred by failing to consider or place due weight on the evidence within the Home Office ‘Country Policy and Information Note Kuwait: Bidoons Version 4.0’ of August 2024 (“the 2024 CPIN”), in particular paragraph 3.1.7 where it is stated that under Kuwait’s 1959 Nationality Law a child has the nationality of its father only. It is asserted that that alleged failure is significant because the Respondent accepted that A was an undocumented Bidoon from Kuwait and a sibling of the Appellant and it is asserted that it followed from that concession, without requiring more, that the Appellant was “all the more likely to share the same characteristic (race and nationality)” as their sibling and that the evidential burden was therefore satisfied.

26. The contextual background that is relevant to those assertions is that it was the Respondent’s position in the appeal before the FtT Judge that the status of other family members was not determinative of an individual’s own status as a Kuwaiti Bidoon and that that position was supported by the ‘Home Office Country Policy and Information Note: Kuwait – Bidoons’ of April 2021 (“the 2021 CPIN”), an extract of which was included in the 22 April 2024 decision letter. Mr Wain acknowledged that the 2021 CPIN did not appear to have been before the FtT Judge in evidence and, as the FtT Judge noted as paragraph 7 of their decision, had been superseded by the 2024 CPIN, which was before the FtT Judge and, as the FtT Judge also noted in the same paragraph, the 2024 CPIN did not contain the same wording. The FtT Judge states in the same paragraph that the 2024 CPIN referred to “a similar issue” at paragraph 10.1.1, by which the FtT Judge appears to be comparing that paragraph of the 2024 CPIN with the paragraphs 2.4.1 to 2.4.10 of the 2021 CPIN that comprised the extract of the 2021 CPIN that is reproduced in the 22 April 2024 decision, but the FtT Judge did not expand on what such similarity was and none is obvious. The FtT Judge does say at paragraph 32 that it is clear that it is possible for different family members to have different statuses as citizens in Kuwait and that the Appellant’s brothers did not provide support to the Appellant’s case by the fact of their being granted asylum “per se”, but it is not clear on what basis the FtT Judge considers that to be the case.

27. It is a common feature of the two CPINs that under Kuwaiti law a child has the nationality of its father only: see paragraph 2.4.5 of the 2021 CPIN (as reproduced in the extract from that CPIN in the 22 April 2024 letter) and paragraph 3.1.7 the 2024 CPIN. It was the Appellant’s case in the appeal before the FtT Judge that the likelihood of the Appellant being an undocumented Bidoon from Kuwait was increased by the facts that the A and H were the Appellant’s brothers, whom the Respondent accepted were undocumented Bidoons from Kuwait, and that Kuwaiti law provided that a child has the nationality of its father only: see Appellant’s skeleton argument dated 31 January 2025. I consider that that could only rationally be considered to be correct and, given the Respondent’s concession as to the sibling relationship between the Appellant and A, and that A was an undocumented Kuwaiti Bidoon, the FtT Judge, that the FtT Judge erred in law by failing to address that submission and failing thereby to have regard to a relevant factor.

28. The FtT Judge’s reasons for finding that the Appellant had not proved, even to the lower standard, that he was an undocumented Bidoon are several, including but not limited to the reasons that were wrongly criticised in the grounds of appeal I have rejected above. However, I do not consider that the adverse finding was the only rational outcome absent the error I have identified, and therefore I find that that error was material.

29. The Appellant’s fourth assertion is that the FtT Judge did not properly engage or consider the subjective and objective evidence by applying too high a standard of proof, but the assertion is only particularised to the extent of referring to paragraph 30 of the FtT Judge’s decision in which the FtT Judge simply states the finding that the Appellant has not proved, even to the lower standard, that he is an undocumented Bidoon, which is not a higher standard of proof than ought to have been applied.

30. I have however found that the FtT Judge’s decision involved the making of a material error of law, and therefore the decision must be set aside.

Disposal

31. The error of law in the FtT’s decision is such that none of the findings made by the FtT can be preserved, and therefore I consider it is appropriate that the appeal to the FtT be remitted to the FtT for hearing afresh I am satisfied that the nature and extent of judicial fact finding that is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective, it is appropriate to remit the case to the FtT.

Notice of Decision

The decision of the FtT involved the making of a material error on a point of law.

The decision of the FtT is set aside with no findings preserved.

The remaking of the decision in the appeal is remitted to the FtT, to be remade afresh by any judge other than Judge Dyer.

T Lawrence
Judge Lawrence
Deputy Upper Tribunal Judge
Immigration and Asylum Chamber
DATED: 15 September 2026