Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002498
First-tier Tribunal No: PA/64277/2023
LP/07370/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

5th August 2026

Before

UPPER TRIBUNAL JUDGE KHAN

Between

H. H.
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Abby Buttle, instructed by Shawstone Associates
For the Respondent: Mr Mahdi Parvar, Senior Home Office Presenting Officer

Heard at Field House on 21 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
Introduction
1. This is a decision of the Upper Tribunal (Immigration and Asylum Chamber) (‘the Upper Tribunal’). The Upper Tribunal is an independent decision-making body with powers given to it by an Act of Parliament. This decision is made in the context of the Upper Tribunal’s role in considering statutory appeals from decisions made by the First-tier Tribunal (Immigration and Asylum Chamber) (‘the First-tier Tribunal’).
2. The losing party in an appeal before the First-tier Tribunal can apply for permission to appeal to the Upper Tribunal. If permission is granted, the Upper Tribunal will consider the legal arguments put forward by both sides in the appeal. The Upper Tribunal only has power to set aside a decision of the First-tier Tribunal if it concludes that the arguments put forward by the party that applied to appeal show that the decision involved the making of an error of law: see section 12 of the Tribunals, Courts and Enforcement Act 2007 (‘TCEA 2007’).
3. If the Upper Tribunal finds that a decision of the First-tier Tribunal did not involve the making of an error of law, the First-tier Tribunal decision will stand. If a decision of the First-tier Tribunal is found to involve the making of an error of law the Upper Tribunal has power to set aside the decision. The Upper Tribunal will then decide whether it will remake the decision or whether the appeal might need to be reheard in the First-tier Tribunal.
4. The appellant (HH) is a national of Libya. He asserts that he would be at risk on return because of his religious views, as he is now an atheist and because of his sexuality and imputed political opinion. By these proceedings he appeals with permission against the decision of First-tier Tribunal Judge E. R. Bennett promulgated on 24 March 2026, dismissing his appeal against a decision of the respondent (‘SSHD’) to refuse his protection and human rights claims. The respondent did however grant the appellant humanitarian protection for reasons unconnected with those raised in his asylum claim.
5. Permission to appeal was granted by First-tier Tribunal Judge Dainty on 18 May 2026.
6. The matter now comes before me to determine whether First-tier Tribunal Judge Bennett (‘the FTTJ’) erred in law, and, if so, whether any such error was material and whether the decision of the First-tier Tribunal should be set aside.
7. The appellant and respondent were ably represented by Ms Buttle and Mr Parvar, respectively. I am grateful to them for their very helpful submissions.
8. The First-tier Tribunal made an anonymity direction and that direction is maintained.
Grounds
9. Permission was granted on both grounds of appeal (1 & 2).
10. Ground 1 submits that the FTTJ failed to decide or give reasons on the claim to be part of a Particular Social Group (PSG) by reason of the appellant’s mental health.
11. Ground 2 submits that the FTTJ failed to apply the lower standard of proof in relation to the appellant’s claim to be a gay man.
Rule 24
12. On 5 June 2026, the respondent filed her Rule 24 response in which she accepted that the appellant’s mental health was not viewed from the lens of any convention reason in the determination and this was a material error of law. However, in respect of ground 2, the respondent opposed the appeal on the basis that the ground amounted to no more than a disagreement with the findings and weight attached to the evidence which was a matter for the FTTJ.
13. As a result of the Rule 24 response, the only ground remaining for my determination is ground 2.
Findings and reasons
14. I have considered the First-tier Tribunal decision, the documentation that was before it, the grounds of appeal, and the submissions made at this hearing, before coming to a decision in this appeal. It is not necessary to summarise the oral submissions because they are a matter of record, but I will refer to any relevant arguments in the decision.
15. I bear in mind that judicial caution and restraint is required when considering whether to set aside a decision of a specialist tribunal. In particular, judges of a specialist tribunal are best placed to make factual findings: see HA (Iraq) v SSHD [2022] UKSC 22. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v SSHD [2007] UKHL 49 and KM v SSHD [2021] EWCA Civ 693. Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v SSHD [2020] UKSC 49. When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v FTT (SEC) [2013] UKSC 19.
Ground 2 – Failure to apply the lower standard of proof in relation to the appellant’s claim to be a gay man.
16. Turning to ground 2, the appellant submits that the FTTJ erred by applying the lower standard of proof in relation to the appellant’s claim to be a gay man.
17. The First-tier Tribunal decision records at [44] that the FTTJ correctly directed herself to the lower standard of proof to establish whether the appellant was a gay man. The FTTJ again correctly repeats the lower standard of proof in respect of persecution on grounds of political opinion.
18. Ms Buttle submits that notwithstanding the references to the correct lower standard of proof, the FTTJ actually applied a higher or elevated standard of proof. In this regard, she points to paragraph [46(a)] of the decision where the FTTJ states that the appellant’s explanation for the contradiction between what he told the doctor (Dr Salman Gauher in the medical records dated 30 May 2022 states that the appellant said: ‘Not sexually active‘ and ‘Never been sexually active’) and other evidence to the Tribunal was ‘stark’ and that his explanation ‘was not convincing’ being either that he wasn’t going to tell the doctor as he seemed like a practising Muslim, or that he was never asked whether he had been sexually active at all.
19. On the same theme of an elevated standard of proof, the appellant further relies on paragraph [46(d)] of the decision where the FTTJ stated ‘The appellant’s general narrative also appeared unconvincing. It was unclear why he asserted he was beaten for his alleged being ‘different’ on the one hand, yet he asserted he was very discreet when he realised he was gay and that his family didn’t know until his former partner in Germany made various social media posts’.
20. In relation to [46(a)] the appellant argues that what the doctor asked was whether he had been sexually active recently. He denies stating he had ‘never been sexually active’ as no question was asked for him to respond in this manner. Ms Buttle states that the FTTJ did not take into account the fact that the conversation between the appellant and the GP was being informally translated by the appellant’s friend and that it would have been easy for an inadvertent error to have been made.
21. I have carefully considered the appellant’s submissions. I note from the decision at paragraph [27(m)] that the FTTJ records that in respect of the medical records stating that he had never been sexually active, the appellant stated in oral evidence ‘This doctor is a very strict doctor and he has this very strong opinion about his sexual orientation’. The FTTJ further states that the appellant went on to deny that any doctor had asked him about whether or not he had been sexually active, as part of enquiries as to his clinical medical health. I should pause here to note that the appellant’s evidence as recorded by the FTTJ is inconsistent with Ms Buttle’s submission that the appellant did in fact answer a question about his recent sexual activity as opposed to not being questioned at all by any doctor about his sexual activity.
22. I have reviewed the medical records and note that the consultation on 30 May 2022 was a face-to-face consultation with Dr Gauher. This appointment was arranged on 25 May 2022 through Dr Charlotte Cleasby because the appellant had first complained to her of having pain in the right testicle for one month. During the appointment with Dr Cleasby, the appellant also complained about acid reflux. It is recorded in the medical notes that the appellant was advised to make another appointment because he said he had a lot of problems to talk about.
23. Specifically, in relation to the right testicular pain, it was recorded in the appellant’s medical notes for him to undertake a face-to-face appointment. The appellant was not asked by Dr Cleasby about his sexual health/history when she saw him. It was only at the subsequent in person appointment held on 30 May 2022 with Dr Gauher that anything is recorded about the appellant’s sexual activity. In this regard, the FTTJ records that the appellant disputed that he was asked anything about whether he was sexually active or not as part of any clinical enquiries [27(m)].
24. At the hearing, Mr Parvar submitted that given the nature of the medical consultation on 30 May 2022, it was entirely consistent for the appellant to have been asked about his sexual activity as reflected in the medical records. Although, I have not seen a transcript of the First-tier hearing, I agree with Mr Parvar that asking questions of the appellant about his sexual activity would have been entirely consistent with the nature of his medical complaint. The resulting finding at [46(a)] was therefore open to the FTTJ based on the evidence. In respect of whether the FTTJ applied an elevated standard of proof, it is clear from the decision that the FTTJ directed herself to the correct lower standard of proof and the fact that she used the word ‘convincing’ does not suggest that she departed from the correctly stated lower standard of proof in the assessment of the evidence.
25. Turning to paragraph [46(d)] there appears to be nothing in the asylum interview, the appellant’s witness statements or in the oral evidence given at the hearing about the appellant being beaten. However, Ms Buttle who appeared before the First-tier Tribunal stated that in response to a question about when the appellant first realised his sexual orientation, he said he was beaten as a child. This is the only evidence it would appear on this point.
26. Mr Parvar did not dispute Ms Buttle’s recollection of the appellant’s oral evidence but submitted that there was a clear tension reflected in the finding about the appellant being beaten on the one hand while maintaining discreet behaviour on the other which the FTTJ was entitled to find on the evidence. I agree that the FTTJ was entitled to reflect the tension in the evidence in the decision.
27. In respect of whether the FTTJ applied an elevated standard of proof, it is clear from the decision that the FTTJ directed herself to the correct lower standard of proof and the fact that she used the word ‘unconvincing’ does not to my mind suggest that she departed from the correctly stated lower standard of proof in the assessment of the evidence.
28. Turning to the appellant’s other arguments in support of this ground, it is submitted that the FTTJ placed undue weight on the lack of corroborative evidence, despite there being no requirement for such evidence: MAH (Egypt) v SSHD [2023] EWCA Civ 2016. Ms Buttle argued that in claims involving a person’s sexuality, the focus should be on the narrative and not an enquiry into a person’s sexual practices. In this instance, she submitted that the appellant provided a detailed narrative and it was unreasonable to expect given his mental health issues for him to provide third party evidence.
29. Mr Parvar accepted that there was no requirement for an appellant to adduce corroborative evidence. However, he argued that MAH at [86] also established that the absence of corroborative evidence can, depending on the circumstances, be of some evidential value where it could reasonably have been obtained and there is no good reason for not obtaining it, that may be a matter to which the Tribunal can give appropriate weight.
30. In this case the FTTJ stated at [46(b)] ‘There was no third party evidence that the appellant was gay, such as from those whom he asserted he had been in a relationship in Germany, and Gareth, the man who he had been in a relationship with in England ’.
31. The appellant’s oral evidence at [19(d)] was that he had lost contact with his previous German partner. In respect of ‘Gareth’ with whom he had a relationship in the UK, he stated at [21(e)] ‘it’s like a superficial relationship, it’s not serious’ and ‘there’s not much contact currently really because of my current situation’.
32. It is very clear from the decision at [46(d)] and [48] that the FTTJ did explicitly engage with the appellant’s narrative. That said, I agree with Mr Parvar’s reliance on MAH that third party evidence from ‘Gareth’ confirming the appellant’s sexual orientation should have been explored given that the appellant still has ‘Gareth’s contact details. In the absence of a good reason for not doing so, this was an evidential matter on which the FTTJ was entitled to place weight and to make the finding she did regarding the lack of corroboration.
33. Finally, the appellant submits that the FTTJ erred in placing any weight on the refusal of the appellant’s asylum claim in Germany given that the decision was not before the Tribunal and the appellant was not legally represented in Germany with the ability to place supporting evidence before the German authorities as he has done in the UK.
34. At [46(c)] the FTTJ stated ‘The appellant accepted that his asylum claim in Germany, partially based on his alleged sexuality, was rejected, although I ascribe this factor only minimal weight given, I do not [sic] have been provided with the decision’.
35. I have considered the appellant’s submission and find there is no merit in it. The FTTJ ascribed minimal weight to the refusal decision on the basis that she did not have the German asylum decisions but accepted the appellant’s evidence on the matter. The weight to be accorded to evidence is the quintessential matter for the Tribunal. There is in my view no error in the FTTJ’s treatment of that evidence, which is not to say that another Judge might not have treated it differently.
36. Overall, for the foregoing reasons, the appellant has not made out any strand of ground 2 as a material error of law.

Disposal
37. I canvassed the parties in respect of disposal in view of the agreed error of law in ground 1. The parties were unable to agree. Mr Parvar submitted that the mental health findings made in respect of the Article 3 ECHR claim should be preserved and the case retained in the Upper Tribunal for remaking.
38. Ms Buttle, in contrast, submitted that fresh findings on the appellant’s mental health were required in respect of ground 1, and to preserve the appellant’s two-tier appeal rights, the case should be remitted to the First-tier Tribunal to be reheard by another judge.
39. I agree with Ms Buttle. There is no good reason why the mental health findings under the Article 3 ECHR claim should be preserved and applied to ground 1 given that it relates to whether the appellant belongs to a PSG on the basis of his mental health.
40. Having considered the decision of Begum [2023] UKUT 46 IAC, I consider that it is appropriate for the decision of the First-tier Tribunal to be set aside and the case to be remitted to the First-tier Tribunal for a hearing before a judge other than Judge E.R. Bennett with preserved findings of fact at paragraphs [35]-[52] of the decision.
Notice of Decision
1. The appeal is allowed as the making of the decision of the First-tier Tribunal involved a material error of law which is conceded by the respondent.
2. The decision of the First-tier Tribunal is set aside.
3. This matter will be remitted to the First-tier Tribunal for a fresh hearing with preserved findings of fact at paragraphs [35]-[52] of the decision.

K.A. Khan

Judge of the Upper Tribunal
Immigration and Asylum Chamber

27 July 2026