Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002551
First-tier Tribunal No: PA/68232/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

2nd September 2026

Before

UPPER TRIBUNAL JUDGE FRANCES

Between

H K
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Murphy, instructed by Stonebridge Legal Solutions Limited
For the Respondent: Ms Lecointe, Senior Home Office Presenting Officer

Heard at Field House on 11 August 2026

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. The appellant is a citizen of Bangladesh born in 2003. He appeals against the decision of First-tier Tribunal Judge Stedman (the judge) dated 28 February 2026 dismissing his appeal against the refusal of his protection claim on asylum, humanitarian protection and human rights grounds.
2. The appellant entered the UK as a student on 6 October 2022. He claimed asylum on 16 May 2023 and his application was refused on 4 July 2024. The respondent did not accept that the appellant is a gay man.
3. At the hearing before the First-tier Tribunal, the judge did not accept the core of the appellant’s claim and he did not find the appellant to be a credible witness. The appellant had failed to show that he was a gay man who would be at risk on return to Bangladesh.
Grounds
4. The grounds are poorly drafted and difficult to follow. In summary they submit that the judge:
(1) Wrongly required corroboration contrary to MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216.
(2) Failed to take into account the appellant’s answers in his interview;
(3) Wrongly concluded that the appellant and his partner (EK) gave inconsistent evidence about their first meeting;
(4) Failed to take into account the evidence from the appellant and EK which was consistent;
(5) Failed to properly consider the photographic evidence;
(6) Wrongly required the relationship to be corroborated on social media;
(7) Failed to accept the evidence of EK who was not challenged as to the veracity of his evidence. The appellant relied on Griffiths v TUI UK Ltd [2023] UKSC 48 at [70] and MS (Sri Lanka) v Secretary of State for the Home Department [2012] EWCA Civ 1548.
5. Permission was granted by Upper Tribunal Judge Perkins on 9 June 2026 for the following reasons:
I am very concerned by Ground 7 which avers that it was not put to the appellant’s alleged present partner that he was untruthful about his relationship with the appellant but the Judge found that he was untruthful.
IF that is right it is certainly arguable that the adverse credibility findings were unlawful.
Other criticisms might be found to be disagreements rather than arguable errors of law but I give
permission on all grounds.
It is for the appellant to prove his case and unless the respondent agrees that the witness was
not cross-examined on the basis that he was untruthful the appellant will probably need a
transcript of part of the evidence. The Upper Tribunal may well decline to give further time if
this is not addressed in good time for the hearing of the appeal in the Upper Tribunal.
Refusal of an adjournment
6. On 6 August 2026, the appellant applied for an adjournment of the error of law hearing listed on 11 August 2026 on the grounds that his solicitors had been unable to comply with directions because the respondent failed to file a rule 24 response regarding their position on ground 7. The appellant also wished to obtain a transcript of the hearing before the First-tier Tribunal.
7. I refused the application on 10 August 2026 because it was not in the interests of justice to adjourn the hearing for the following reasons. A rule 24 response was filed on 25 June 2026 in accordance with directions. In any event, any failure to file a rule 24 response did not affect the appellant’s ability to comply with directions and serve a composite bundle. The rule 24 response addressed ground 7. The appellant was notified in the grant of permission of the need to obtain a transcript. He had ample opportunity to do so.
Rule 24 response
8. The respondent opposed the appeal in her rule 24 response which states:
“3. The grant of permission focuses on Ground 7 where it is alleged that the evidence of the partner should be accepted as it was not challenged. Reliance is placed on MS (Sri Lanka) v Secretary of State for the Home Department [2012] EWCA Civ 1548 (28 November 2012). The circumstances in MS are wholly different to this appeal - in MS the appellant was not cross examined at all in either proceedings before the FTT or UT.
4. In the instant case there was cross examination of both the A and witness. As detailed in the FTT decision the SSHD has at all times rejected the claimed sexuality of the A and his relationship with the witness. The A could not arguably state that there was an element of his evidence that was outwardly accepted in relation to his sexuality. The fact that he or the witness may not have been asked a direct question that ‘he was lying’ does not equate to a material error of law; the 2 most likely scenarios would be denial, or an unlikely acceptance of telling untruths. In both instances the result would have been the same. It is unclear what purpose this would have served.
5. As noted in [18-19] the witnesses gave discrepant accounts of their relationship. Reliance is placed on MR (Pakistan) v Secretary of State for the Home Department [2026] EWCA Civ 473 (16 April 2026) at para 51 onwards, that comments on the application of the ‘rule’ in Griffiths v TUI under the ambit of fairness - that there is no obligation to raise an issue in cross examination if it clear to the witness beforehand that credibility is challenged - as it was in this case. In MR, the issue of claimed sexuality was in dispute from the start like this matter.
6. The rest of the grounds amount to disagreement rather than identifying a material error of law. They run overlapping themes of the FTTJ requiring corroboration and failing to take into account areas of consistency. The R relies on Volpi & Anor v Volpi [2022] EWCA Civ 464 (05 April 2022) in which it establishes that the findings of a Judge are not aptly tested by considering whether the judgement presents a balanced account of the evidence. There is no need for the Judge to refer to each item of evidence, just the evidence that supports the findings made with reasons. Whilst corroboration is not strictly required, it is relevant if it could have been obtained without risk and was available - TK Burundi applied. Nothing in MAH detracts from this understanding. In this instance, the A claimed to have been a relationship whilst in the UK [15-16]- the FTTJ was entitled to note the lack of evidence of this and the vague account given alongside. The remainder of the grounds amount to ‘island hopping’ through the evidence – referred to in para 65 of Volpi. There is no material error of law.”
Submissions
9. Mr Murphy submitted that EK was asked seven questions and it was not put to him that he was lying. There was no need for a transcript of the hearing because the respondent accepted this position in the rule 24 response. EK is a gay man with refugee status and his evidence should have been given weight. Following TUI at [42], it is important to give the witness an opportunity to address the allegation that he is not truthful. The respondent should have put to EK that he is not in a genuine relationship with the appellant. In the interests of fairness, EK should be given the opportunity to respond to the allegation that he is lying. It was incumbent on the respondent to put the allegation to EK because it was not addressed in the refusal letter or the respondent’s review. EK was unknown to the respondent until he gave evidence at the appeal hearing.
10. Mr Murphy submitted that ground 3 was linked to ground 7 and EK was not asked in oral evidence about his first meeting with the appellant. There was no discrepancy. The judge wrongly placed great weight on this inconsistency in the appellant’s account. The assessment of credibility was fundamentally flawed.
11. In respect of the remaining grounds, Mr Murphy submitted the judge failed to take into account the consistent evidence of the appellant and EK and the only inconsistency in their evidence was in respect of their first date. The appellant did produce photographs and there was no need for corroboration. There was evidence in the appellant’s interview which the judge failed to take into account.
12. Ms Lecointe relied on the rule 24 response and addressed ground 7. She submitted the appellant was on notice of the rejection of his sexuality and credibility in the refusal letter. The respondent was not notified of the appellant’s claimed relationship with EK prior to the appeal hearing. TUI does not assist the appellant because the judge did not attach weight to the evidence of EK, given the lack of supporting evidence. The judge found the evidence of the relationship was insufficient.
13. Ms Lecointe submitted that TUI did not establish an inflexible principle that unchallenged evidence should be accepted. It depended on the overall fairness and circumstances of the case. MS could be distinguished. In the present case, the appellant and EK gave evidence and both were cross-examined. The judge took into account the status and sexuality of EK and his finding that the appellant had not established he was in a genuine relationship with EK was open to the judge on the evidence before him.
14. In respect of the remaining grounds, Ms Lecointe submitted the judge was entitled to take into account the lack of evidence of the appellant’s relationship in Bangladesh and MAH did not prevent the judge from relying on evidential gaps. The judge did not require corroboration. The reliance on isolated answers given in interview did not equate to detailed evidence or an explanation for the gaps in the evidence. The judge gave adequate reasons for the weight he attached to the social media evidence. The photographs did not show that the appellant was in an intimate relationship with EK. The judge considered all the evidence and his finding that the appellant and EK were friends was open to him on the evidence before him. The judge was not obliged to accept the evidence in the witness statements just because some of it was consistent. The judge was entitled to draw his own conclusions from the photographs and social media evidence in the context of the evidence as a whole.
15. In response, Mr Murphy submitted the judge attached weight to inconsistencies which were not established on the evidence and he failed to consider consistent evidence. Rejection of the evidence of EK amounted to an allegation that EK was lying and fairness demanded EK be given an opportunity to explain. The respondent did not put this allegation to EK. The judge’s decision was irrational and the hearing was unfair.
Relevant caselaw
16. In TUI at [70] the Supreme Court held:
“In conclusion, the status and application of the rule in Browne v Dunn and the other cases which I have discussed can be summarised in the following propositions:
(i) The general rule in civil cases, as stated in Phipson, 20th ed, para 12-12, is 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. That rule extends to both witnesses as to fact and expert witnesses.
(ii) In an adversarial system of justice, the purpose of the rule is to make sure that the trial is fair.
(iii) The rationale of the rule, ie preserving the fairness of the trial, includes fairness to the party who has adduced the evidence of the impugned witness.
(iv) Maintaining the fairness of the trial includes fairness to the witness whose evidence is being impugned, whether on the basis of dishonesty, inaccuracy or other inadequacy. An expert witness, in particular, may have a strong professional interest in maintaining his or her reputation from a challenge of inaccuracy or inadequacy as well as from a challenge to the expert’s honesty.
17. In MR, the Court of Appeal held:
“78. It is necessary to identify, first, the nature of the ‘rule’ which was at issue in TUI. The rule is not a rule that (subject to exceptions) a party to litigation may not make submissions impugning the credibility or reliability of the evidence of a witness unless the witness has been cross-examined about those points. The rule as explained in the cases summarised by Lord Hodge is narrower than that. It is based on fairness, and on the principle, referred to by Bean LJ in his dissent, that litigation should not be conducted by ambush. The rule does not apply if the witness already knows, because the questions have been articulated earlier in the litigation, that his evidence is disputed, and, he is not, therefore, taken by surprise. The rule, rather, is that if he does not know in advance about the disputed matters, and has not been cross-examined about them, submissions cannot be made impugning his credibility (unless an exception to the rule applies). This case is quite different from TUI. MR has known since the date of the Decision that the Secretary of State’s position, which was maintained in the RR, was that the Secretary of State relied on determination 1; and that the Secretary of State’s case was that MR’s new evidence did not displace findings in determination 1. MR had the opportunity to deal, and did deal, with that position in his witness statement. I therefore consider that Ms Elliot’s refusal to accede to the invitation to rely on one of the express exceptions to the ‘rule’ was not only principled, but correct.

79. The Secretary of State was not required to, and did not, put her case any higher than that the new evidence adduced by MR was not sufficient to displace the relevant findings in determination 1. Her case did not require her to cast doubt on the accuracy or veracity of MR’s new evidence. It did not therefore require the HOPO to put to MR that he was not homosexual or that he was not in a durable relationship with AK, still less that he was lying. The HOPO did not need to go that far. The submissions recorded at paragraph 13 of determination 1 are an orthodox application of Devaseelan. They were not an invitation to Judge 2 to decide the case in a way which was unfair. They did not impugn MR’s honesty, still less can they have been a ‘surprise’ (sic) him. The submissions were simply that the new evidence, which in short, was little more than assertions backed with no detail or supporting documents, was not enough to displace determination 1.”
18. In Volpi at [2], the Court of Appeal held:
“The appeal is therefore an appeal on a pure question of fact. The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled:
(i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
(ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
(iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
(iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
(v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
(vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.
Conclusions and reasons
19. In this case, the appellant had prior notice that his account was not credible and it was not accepted that he is a gay man. His sexuality was clearly disputed and remained so at the date of hearing. Counsel acting for the appellant was aware that credibility was in issue and that further evidence or an explanation was required to establish the appellant’s sexuality. The burden was on the appellant to establish he is in a genuine relationship with EK.
20. TUI does not assist the appellant. At the date of the appellant’s asylum application, he was not in a relationship with EK. The respondent was not aware of the relationship until the hearing of the appeal. It was not the case that the respondent had the opportunity to challenge the evidence and failed to do so. The respondent did cross-examine the appellant and EK. MS can be distinguished on its facts. In any event, any failure to put to EK that he was lying was not material because his acceptance or denial of that question did not undermine the judge’s findings and was not relevant to the judge’s reasons for dismissing the appeal.
21. The evidence before the judge was insufficient to show that the appellant was in an intimate relationship with EK. The judge found that the appellant and EK were friends and they shared accommodation. The credibility of EK was not impugned in this case. There was no procedural unfairness arising from the respondent’s failure to put to EK that he was lying about the nature of his relationship with the appellant.
22. I am persuaded by the respondent’s submissions that the remaining grounds amount to disagreements. The judge’s findings were open to him on the evidence before him and he gave adequate reasons for his conclusions. He did not require corroboration and was entitled to rely on a lack of evidence which the appellant ought to have been able to produce if his account was true. The appellant’s answer in interview did not explain the gaps in the evidence . It is apparent on a fair reading of the decision that the judge took into account all relevant matters and considered the evidence in the round. Applying Volpi, there was no error of law as alleged in the grounds.
23. The judge’s decision was not irrational or procedurally unfair. I conclude that there is no material error of law in the judge’s decision dated 28 February 2026 and I dismiss the appellant’s appeal.

Notice of Decision
Appeal dismissed

J Frances

Judge of the Upper Tribunal
Immigration and Asylum Chamber
21 August 2026