Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002697
First-tier Tribunal No:
[PA/59446/2024
LP/05978/2024]

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 15 October 2026

Before

UPPER TRIBUNAL JUDGE RUDDICK

Between

RK
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S. Akinbolu, instructed by Malik and Malik Solicitors
For the Respondent: Ms A. Ahmed, Senior Home Office Presenting Officer

Heard at Field House on 5 October 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 him. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. The First-tier Tribunal (“FTT”) did not make an anonymity direction in this appeal, but an anonymity order was made by the Upper Tribunal on 23 June 2026 and I have not been asked to set that order aside.
2. The appellant is a citizen of Albania. He arrived in the UK on 20 January 2013 and made a claim for international protection on 25 November 2022. He says that if he were to return to Albania, he would be forced into debt bondage or unlawfully killed by a criminal named Pali, who was rumoured to be a drug dealer and was on friendly terms with the police. He says that he incurred an initial debt of 35 million lek in 2010 in order to pay for medical treatment for the younger of his two sons, who was three years old at the time. The child had been severely burned when he fell into hot water by accident. He agreed that he would repay Pali 45 million lek (over £400,000 at current exchange rates) within two years.
3. The appellant says that at the of the two-year loan period, the appellant was unable to pay back the debt. Pali then made numerous phone calls, threatening to force the appellant to work for him or to kill him. The appellant tried to report the threats to the police, but the police told him that they could not interfere between him and Pali. In December 2012, the appellant was attacked in the street by unknown men when he was on his way home from work. The men said that they had been sent by Pali. They beat the appellant severely and told him that they would kill him if he did not pay Pali back within three days. The appellant sent his wife and children to live with her family, in a village that was a three hours’ drive away from their home in Tirana. He then fled the country. His children have told him that neighbours had told them that Pali was still looking for him.
4. The respondent refused the appellant’s protection claim in a decision dated 21 March 2024. The decision-maker accepted that the appellant had borrowed money from friends and from Pali to pay for his son’s medical treatment. They found that the fear that the appellant expressed was not for a Refugee Convention reason and that the appellant had failed to provide evidence of Pali’s connections to the police. The appellant’s account of the police refusing to intervene between him and Pali was neither expressly accepted nor rejected, but the decision-maker found that the appellant could have approached a different police station or the higher authorities. The decision-maker then found that sufficient protection against non-state actors is generally available in Albania, based on the evidence in the relevant Country Policy and Information Note (CPIN). It was not accepted that Pali had influence over the police, and therefore state protection would be available to the appellant. In the alternative, the appellant could safely relocate. The only evidence that Pali was still looking for him was hearsay. Nor was there any evidence that Pali would be able to locate him anywhere in the country.
5. The appellant appealed to the FTT. In a decision dated 13 March 2026, the FTT dismissed the appeal. At [18], the FTT directed itself that “The burden of proof is on the appellant and the civil standard of the balance of probabilities applies under s.32 of the Nationality and Borders Act 2022” (“NABA”). It then set out its conclusion that the appellant’s account was not credible.
6. The FTT’s reasons for finding the account not credible begin in [18]. The FTT accepted that the appellant’s son had suffered the accident that the appellant described and that he required and continues to require medical treatment as a result. It then set out a summary of the appellant’s account of his debt to Pali and the attack on him in December 2012. It noted that the appellant had not provided any “hospital evidence” of his injuries and that he had said for the first time in his oral evidence that he had not only been punched but also attacked with a knife.
7. At [19], the FTT found that the claim regarding the threat from Pali was “a total fabrication” because his family had not been threatened in the 13 years since the appellant had left Albanian and they were only living three hours away by public transport from their former home. At [20], the FtT further found that the appellant’s account of seeing Pali talking to police officers in various places “lacks credibility”, although it did not say why.
8. The FTT turned to the issue of state protection at [21]. It referred to and accepted the assessment in the respondent’s CPIN that “there is objective evidence that he could seek the protection of the authorities”. It further found that there was “no reason” the appellant could not relocate to his in-laws’ home, where his family had lived for the past 13 years.
9. I set out in full the final two paragraphs of the FTT’s reasoning on the appellant’s protection claim:
“22. The appellant confirmed that he has had no threats from Pali in the 13 years since he has been in the UK, nor have his family. He has remained in contact with his family. I consider the claim of fear on return is remote and, more likely, non-existent.
23. The appellant can seek the protection of the authorities and he can relocate to his in-laws. His late claim for asylum and his failure to claim asylum in other safe countries (Belgium and France) also goes to his cr4edibility [sic] under s.8 of the 2004 Act. He gave different lengths of his stay in France – 1 month or 2 nights (SCR.3.4; AIR 20-24).”
The grounds of appeal
10. The appellant applied for permission to appeal on four grounds, but he was granted permission to appeal only on one of them. This is that the FTT erred when it directed itself at [18] that the standard of proof was the balance of probabilities. The appellant submitted that this was a “post-NABA case” (i.e. a protection claim raised on or after 28 June 2022), and that therefore:
“12. Whilst the appellant bears the initial evidential burden of establishing the core elements of the protection claim, the applicable standard of proof in asylum and humanitarian protection appeals is not the ordinary civil standard of the balance of probabilities.
13. Rather, the correct standard is whether there is a reasonable degree of likelihood (sometimes described as a real risk) that the appellant would face persecution or serious harm on return.”
11. There was no Rule 24 response.
The hearing
12. At the hearing before me, I had a composite bundle of 220 pages. Ms Ahmed confirmed that the respondent opposed the appeal. I asked the representatives whether the FTT had erred by applying NABA at all, given that the respondent had found that the appellant’s claim did not raise a Refugee Convention reason, and the FTT could be understood as having agreed with that finding because it repeated it at [6] and made no subsequent finding that there was a Convention reason. Ms Akinbolu did not agree that it was an error for the FTT to have applied NABA, because, she submitted, it had been the appellant’s position below that there was a Convention reason. I do not consider that this addresses my concern, because if this issue was in dispute, the FTT was required to make a finding on it. It did not do so, which clearly suggests that the FTT accepted the respondent’s position. Having accepted that position, the FTT is likely to have erred in directing itself to section 32, because it expressly applies only to the determination of whether someone is a refugee as defined in the Refugee Convention. Nothing in NABA governs the determination of claims based on article 2 and 3 of the European Convention on Human Rights (“ECHR”). However, as the appellant did not raise this as a ground of appeal and Ms Akinbolu expressly declined to pursue it before me, I say no more about it.
13. I then heard succinct and helpful submissions from both parties, which I have taken into account in making my decision.
Legal Framework
14. The appellant made a claim for international protection on 25 November 2022. His refugee claim is thus governed by NABA. Section 32 provides that:
“(1) In deciding for the purposes of Article 1(A)(2) of the Refugee Convention whether an asylum seeker’s fear of persecution is well-founded, the following approach is to be taken.
(2) The decision-maker must first determine, on the balance of probabilities—
(a) whether the asylum seeker has a characteristic which could cause them to fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion (or has such a characteristic attributed to them by an actor of persecution), and
(b) whether the asylum seeker does in fact fear such persecution in their country of nationality (or in a case where they do not have a nationality, the country of their former habitual residence) as a result of that characteristic.
(See also section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (asylum claims etc: behaviour damaging to claimant’s credibility).)
(3) Subsection (4) applies if the decision-maker finds that—
(a) the asylum seeker has a characteristic mentioned in subsection (2)(a) (or has such a characteristic attributed to them), and
(b) the asylum seeker fears persecution as mentioned in subsection (2)(b).
(4) The decision-maker must determine whether there is a reasonable likelihood that, if the asylum seeker were returned to their country of nationality (or in a case where they do not have a nationality, the country of their former habitual residence)—
(a) they would be persecuted as a result of the characteristic mentioned in subsection (2)(a), and
(b) they would not be protected as mentioned in section 34.
(5) The determination under subsection (4) must also include a consideration of the matter mentioned in section 35 (internal relocation).”
15. Section 32 thus requires the decision-maker to answer five separate questions:
(i) Does the appellant have a characteristic that could cause them to fear persecution for a Convention reason?
(ii) Does the appellant fear persecution for that reason?
(iii) If so, would they be persecuted for that reason if they returned to their country of nationality?
(iv) Would sufficient state protection (as defined at NABA section 34) not be available?
(v) Would the appellant be unable to relocate internally (as defined at NABA section 35)?
16. Questions 1 and 2 fall to be determined to the standard of the balance of the probabilities. According to section 32(3), it is only if the answer to both questions is ‘yes’ that the decision-maker must go on to answer Questions 3, 4 and 5. Those questions are then answered to the standard of proof of a reasonable likelihood.
17. These questions must be answered sequentially. See: JCK (s.32 NABA 2022) (Botswana) [2024] UKUT 00100 (IAC)
18. NABA section 32(1) states unequivocally that it governs the determination of whether a person is a refugee as defined at Article 1A(2) of the Refugee Convention. It does not apply to the determination of whether a person would be at real risk of violations of articles 2 or 3 ECHR. Those claims must therefore continue to be determined according to the one-stage process and to the standard of a reasonable degree of likelihood, in accordance with the established caselaw: MA (Somalia) v SSHD [2010] UKSC 49 at [12]-[13], citing Vilvarajah & Ors v United Kingdom 13163/87; 13164/87; 13165/87; [1991] ECHR 47 at [103] and Saadi v Italy 37201/06 [2008] ECHR 179 at [132]. See also SC (Jamaica) v SSHD [2022] [2022] UKSC 15 at [27].
19. I must assume that the FTT, as a specialist tribunal, knew and sought to apply these principles, unless it is clear that it did not. I must also take into account the well-established principles of appellate restraint, most of which were recently reaffirmed in ECO v BB & Ors [2026] EWCA Civ 97 at [56]:
(i) The FTT is a specialist fact-finding tribunal. The UT should not rush to find an error of law simply because it might have reached a different conclusion on the facts or expressed themselves differently;
(ii) Where a relevant point was not expressly mentioned by the FTT, the UT should be slow to infer that it had not been taken into account;
(iii) When it comes to the reasons given by the FTT, the UT should exercise judicial restraint and not assume that the FTT misdirected itself just because not every step in its reasoning was fully set out;
(iv) The issues for decision and the basis upon which the FTT reaches its decision on those issues may be set out directly or by inference;
(v) Judges sitting in the FTT are to be taken to be aware of the relevant authorities and to be seeking to apply them. There is no need for them to be referred to specifically, unless it was clear from their language that they had failed to do so;
(vi) Reasons 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.: Volpi & Anor v Volpi [2022] EWCA Civ 464 at [2](6); and
(vii) An appellate court should avoid “island-hopping”: Fage v Chobani [2014] EWCA Civ 5.
Discussion
20. The FTT clearly misdirected itself when it stated that “the civil standard of the balance of probabilities applies under s.32”. The standard of the balance of probabilities applies only under section 32(2), but not under sections 32(4) and (5). Nor did the FTT expressly identify the five separate questions it was required to answer or what the standard of proof was for each of those questions.
21. I have considered whether the FTT nonetheless applied the correct legal framework, such that the first sentence of [18] was more of an incomplete self-direction, rather than a misdirection. Having considered the language and structure of the decision as a whole, I conclude that it did not. In the first place, the fact that the FTT did not identify the question posed by section 32(2) is reflected in the fact that it did not make any finding about whether the appellant had a characteristic that could cause him to fear persecution for a Convention reason. According to Ms Akinbolu, this issue was in dispute between the parties. It is true that at the end of [22], the FTT makes a specific finding about whether the appellant has a “fear on return”. This cannot be taken as an answer to NABA question 2, however, because it comes directly after [21], in which the FTT considered the questions of state protection and internal relocation, which are questions 4 and 5. Finally, even after deciding that the appellant’s account was not credible and that state protection and internal relocation would be available, the FTT returned at [23] to the consideration of the appellant’s credibility, with reference to section 8. It was not clear which of the five NABA questions this was considered relevant to, as four of them had already been answered. This general finding about credibility appears to have been applied to all of them equally, without regard for any varying standard of proof.
22. I therefore conclude that the FTT did not determine the appellant’s refugee claim by answering the five NABA questions sequentially. At [22], after having considered the appellant’s credibility and the issues of state protection and internal relocation, it made a single finding that the appellant did not have a well-founded fear of persecution.
23. Under the pre-NABA framework, decision-makers were required to answer only one question, which was whether an asylum-seeker had a well-founded fear of persecution, and to answer it in a single-stage process. The standard of a reasonable degree of likelihood was applied when answering that question. See: Karanakaran v SSHD [2000] EWCA Civ 11 and SR (Iran) v SSHD [2007] EWCA Civ 460 at [8]-[10]. Even bearing in mind the principles listed above at [19], I must conclude that the FTT took a similar one-stage approach here, except that it directed itself that the standard of proof was the balance of probabilities. It erred in law in doing so, as such an approach is inconsistent with what NABA requires.
24. I have carefully considered whether the error was material. The FTT was entitled to apply the standard of the balance of probabilities to the question of whether the appellant feared persecution on return, and in so doing, to consider whether there had been any further threat from Pali in the thirteen years since the appellant had left for the UK. The FTT was also entitled to take into account the appellant’s almost ten-year delay in claiming asylum; in fact, it was required to do so by section 32(2)(b). Moreover, it did not dismiss the appellant’s appeal because it found that it was not more likely than not that the appellant’s account was true or that he would be at risk of persecution on return. It found that the appellant’s fear of persecution was a “total fabrication” and that the risk on return was “remote and, more likely, non-existent”. These are findings that clearly indicate that the claim would have been rejected to any standard.
25. Ms Akinbolu submitted that a risk can be “remote” but still “real”, and therefore the FTT should be understood to have applied too high a standard of proof at [22], after considering the questions of state protection and internal relocation. I disagree. Although none of these terms are capable of precise quantification, I consider that the ordinary meaning of “real risk”, “reasonable likelihood” and “real chance” all suggest something more than “remote”. Nor do I consider that a 10% chance (the hypothetical mathematical figure used by the US Supreme Court in INS v. Cardoza-Fonseca, 480 US 421 (1987) and often repeated) would normally be described as “remote”.
26. For these reasons, I conclude that the FTT effectively rejected both the appellant’s account and the risk on return to the lower standard of proof. Its failure to apply the structured approach and the varying standard of proof required by NABA was not material. Nor was any error in applying NABA to the claim in the absence of a Convention reason.
Notice of Decision
The decision of the First-tier Tribunal dated 13 March 2026 is upheld. The appellant’s appeal is dismissed.

E. Ruddick

Judge of the Upper Tribunal
Immigration and Asylum Chamber

15 October 2026