Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002815
First-tier Tribunal No: PA/72926/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 30th of September 2026

Before

UPPER TRIBUNAL JUDGE LOUGHRAN

Between

MK
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Gondal of Berkshire Law Chamber
For the Respondent: Ms S Khan, Senior Home Office Presenting Officer

Heard at Field House on 4 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 with permission of the Upper Tribunal against the decision of the First-tier Tribunal (‘the Judge’) dated 28 December 2025.
Background
2. The appellant is a national of Afghanistan, born on 3 August 2005. He arrived in the UK on 24 August 2023 and claimed asylum on 25 August 2023.
3. The basis of the appellant’s asylum claim is that he has three brothers, one who worked with the police and as a security guard, another who was a soldier with the Afghan army and another who was a commando. The appellant claims that when the Taliban came to power one of his brothers was taken by the Taliban. His brother was subsequently released through the intervention of community elders but told that the Taliban would return and re-arrest him. As a result, the appellant and his brothers fled Afghanistan. The appellant’s brothers were stopped at the Turkish border and have remained in Iran, but the appellant travelled on to the United Kingdom.
4. The appellant’s protection and human rights claim was refused in a decision dated 1 October 2024. The respondent accepted that the appellant was from Afghanistan but rejected his account to be of adverse interest to the Taliban.
The Appeal to the First-tier Tribunal
5. The appellant appealed against the refusal of his protection and human rights claim and the appeal came before the Judge on 12 December 2025. The appellant gave evidence using a Pashto interpreter and was represented.
6. In a decision dated 28 December 2025, the Judge dismissed the appellant’s appeal having rejected his account.
The Appeal to the Upper Tribunal
7. The appellant applied for permission to appeal to the Upper Tribunal.
8. In a decision dated 7 April 2026, the First-tier Tribunal refused the appellant’s application for permission. In a decision dated 12 June 2026, the Upper Tribunal refused the appellant permission on ground one but granted permission on the remaining grounds, two to five.
9. The parties therefore agree that the appellant has permission to pursue the following grounds:
Ground 2: The Judge failed to consider the appellant’s young age, illiteracy, lack of education, trauma and passage of time in assessing his evidence.
Ground 3: The Judge entered into speculation in finding that the Taliban would not have released the appellant’s brother and subsequently re-target him.
Ground 4: The Judge erred in their approach to section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (‘the 2004 Act’) by failing to consider the appellant’s explanation that he was under the control of an agent.
Ground 5: The Judge failed to address humanitarian protection.
10. The respondent provided a response under Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 opposing the appellant’s appeal.
11. I heard submissions from Mr Gondal for the appellant and Ms Khan for the respondent, which I have fully considered alongside all the papers. I reserved my decision, which I now give.
Discussion
12. As highlighted above, the appellant’s date of birth is 3 August 2005. He claims to have left Afghanistan shortly after the Taliban took control, which was in August 2021. Accordingly, the appellant was 15 to 16 years old when he left Afghanistan and had just turned 18 when he arrived in the UK.
Ground 2
13. At [1], the Judge records the appellant’s date of birth and his claim that he had no formal education and at [4], the Judge records the appellant’s claim that he cannot read or write.
14. I am satisfied that, having recorded those factors, the Judge failed to consider whether they impacted on their assessment of the appellant’s credibility.
15. At [24], the Judge found the appellant’s evidence in relation to his brothers and the details of their former employment was vague and lacking in detail. The Jude noted that they would have expected the appellant to be able to explain why the Taliban was so keen to arrest his brother. (It was the appellant’s case that the Taliban took his brother either on the day of the takeover or a few days thereafter.) There is no consideration of whether the lack of detail/inability to explain the Taliban’s motivations could have been caused by the appellant’s young age.
16. The Judge then records that “even taking into account his lack of education and literacy”, they would have expected the appellant to provide a consistent account and that the appellant’s inability to do so casts doubt on the credibility of his evidence. The Judge does not refer to the appellant’s young age or that he was a child at the time that these events happened. In addition, the Judge has not identified what inconsistencies there are in the appellant’s account and/or whether they could be explained by his young age,
17. I am satisfied that the Judge materially erred in law by failing to consider the appellant as a child when the events in Afghanistan took place and whether his young age, his lack of education and illiteracy, impacted on the assessment of his credibility.
Ground 3
18. At [26], the Judge records that they agreed with the respondent, “that it was inconsistent that the Taliban would release the appellant’s brother only to return to re-arrest him the following day”. Neither the respondent nor the Judge identified any country background evidence to indicate that it is implausible that the Taliban would behave in that way.
19. I am satisfied that the Judge relied on speculation as to how the Taliban would behave and this was a significant factor as to why they rejected the appellant’s account. A Judge is entitled to make findings on the appellant’s account, but it must be grounded in the evidence before them.
Ground 4
20. The Judge was entitled to consider the appellant’s failure to claim asylum in the safe countries he travelled to on his journey to the UK.
21. At [31], the Judge records the appellant’s account that he was under the control of an agent but concludes that, “he would have had reasonable opportunity to make a claim and that his failure to do so damaged his credibility. ”
22. The Judge does not explain why they consider that, notwithstanding the fact the appellant was under the control of the agent, he would have had a reasonable opportunity to make a claim.
23. The Judge does not consider that throughout his journey to the UK, the appellant was a child and whether that would impact on his ability to make a claim, or whether it would reduce the weight to be attached to his failure to claim asylum in a safe country in line with the case of KA (Afghanistan) v Secretary of State for the Home Department [2019] EWCA Civ 914.
24. I am therefore satisfied that the Judge materially erred in law in their approach to section 8 of the 2004 Act.
Ground 5
25. The parties were required to identify the “principal controversial issues” (see Lata (FtT: principal controversial issues)[2023] UKUT 163). Humanitarian Protection is not identified as one of the issues in the appeal in the appellant’s skeleton argument. Accordingly, I am not persuaded that the Judge erred by failing to consider humanitarian protection.
Conclusion
26. For the reasons given above, I am satisfied that the First-tier Tribunal Judge materially erred in law, that those errors of law infect the entire decision and that it should be set aside in its entirety.
27. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) I have considered whether to retain the matter for re-making in the Upper Tribunal in line with the general principles set out in Statement 7 of the Senior President’s Practice Statement. I am satisfied that it should be remitted to the First-tier Tribunal because credibility is in issue and significant findings of fact will be re-made.
Notice of Decision
28. The decision of the First tier Tribunal contains material errors of law. Accordingly it is set aside in its entirety with no findings of fact preserved.
29. The appeal is remitted to the First-tier Tribunal for a fresh hearing to be heard by a different Judge.

G. Loughran

Judge of the Upper Tribunal
Immigration and Asylum Chamber

25 September 2026