Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002828
First-tier Tribunal No: PA/60102/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 3 September 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE RAE-REEVES

Between

EM
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No representation
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer

Heard at Field House on 25 August 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant (and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) 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 (and/or other person). Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The appellant appeals, with permission, against the decision of First-tier Tribunal Judge Sharma, (‘the Judge’) promulgated on 22 March 2026, dismissing his appeal on humanitarian protection and human rights grounds. The appellant is a citizen of Egypt.
2. Permission to appeal was granted by First-tier Tribunal Judge Saffer on 2 June 2026. The grant considered it arguable that the guidance concerning vulnerable witnesses had not been applied. Permission was not limited.
3. At the commencement of the hearing, the appellant did not attend. I ascertained from the Tribunal staff that a hard-copy notice of hearing had been sent by post to his last known address, which was a hotel in London. The Tribunal clerk also used the most recent email address uploaded to the Tribunal’s system to contact the appellant and ask him to confirm whether he was aware of the hearing and whether he intended to attend. That email was sent at 10.39 am. I proceeded with the remainder of the list and put the appellant’s case back until 11.50 am. By that time, the appellant had still not attended and had not responded to the email. Having satisfied myself that adequate notice of the hearing had been given, I decided that it was in the interests of justice to proceed in his absence.
4. The following day, after I had completed this decision but before promulgation, I was informed by the Tribunal clerk that the appellant had responded to the email late on the evening of 25 August 2026. He stated that he had not known about the hearing because his lawyer had not informed him of it. I had checked the Tribunal’s system on the morning of the hearing and had been informed that no legal representative was recorded as acting for the appellant. I have taken the appellant’s response into account. It does not alter my conclusion that adequate notice of the hearing had been given in accordance with the information held by the Tribunal. In those circumstances, and having regard to the outcome of the appeal, I remained satisfied that it was in the interests of justice to proceed with promulgation of this decision.
BACKGROUND
5. The appellant’s account, in summary, was that members of a criminal gang asked him to assist in transporting drugs and weapons. He said that he refused, reported the matter to the police, and was later kidnapped, detained, tortured and raped. He maintained that he was then implicated in the gang’s activities, sought by the Egyptian authorities, and convicted in absentia.
6. The respondent did not pursue sufficiency of protection or internal relocation before the First-tier Tribunal. The Judge recorded that, if the appellant’s material account were accepted, the respondent accepted that he would be at serious risk of harm. Credibility was therefore central to the appeal.
7. Shortly before the First-tier Tribunal hearing, the appellant said that his parents and young daughter had been shot and killed in Egypt following a threat against his family. He relied upon police, forensic and civil-status documents. He also relied upon extensive GP records documenting mixed anxiety and depressive disorder, treatment with Sertraline, referrals for psychological support, episodes of self-harm and suicidal ideation, and an overdose. He required an Arabic interpreter.
THE DECISION OF THE FIRST-TIER TRIBUNAL
8. The Judge rejected the appellant’s credibility. The reasons included omissions from his first witness statement, later or fuller disclosure of torture and rape, differing accounts of the duration of his hospital stay, answers at the screening interview, concerns about documentary evidence, the timing of the deaths of his family members, and his failure to claim asylum in Italy or France.
9. The decision did not identify the appellant as a vulnerable witness. It did not refer to the Joint Presidential Guidance Note No 2 of 2010, Child, Vulnerable Adult and Sensitive Appellant Guidance, or to AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123. Nor did it explain whether, and if so how, the appellant’s mental health and recent bereavement were taken into account when assessing his evidence.
GROUNDS OF APPEAL
10. The principal ground is that the failure to identify and treat the appellant as a vulnerable witness resulted in procedural unfairness and materially infected the credibility assessment. The remaining grounds allege a failure to apply anxious scrutiny, mistakes of fact, and a failure adequately to consider material evidence.
11. The court record reflects that the appellant's solicitors have come off the record but he nevertheless relies on written grounds prepared by counsel which are detailed and helpful. In the absence of any specific challenge to counsel’s account of what occurred, I accept it as a representation of what took place at the hearing and assess it together with the decision and the documentary record. I note that Ms Isherwood accepts that the Guidance was raised.
DISCUSSION
12. In AM (Afghanistan), the Court of Appeal emphasised the importance of identifying vulnerability and applying the relevant guidance. Medical evidence is not an add-on to a credibility assessment already reached. It must form part of the assessment in the round. Vulnerability may bear upon a person’s ability to recall, sequence and consistently recount traumatic events, and upon the timing and manner of disclosure. At [30], the Court observed that a failure to follow the guidance “will most likely be a material error of law”.
13. On behalf of the respondent, Ms Isherwood relied upon Khan v Secretary of State for the Home Department [2026] EWCA Civ 148 and SB (vulnerable adult: credibility) Ghana [2019] UKUT 398 (IAC). I accept that both authorities apply. They establish that the Guidance Note does not impose freestanding legal obligations, breach of which necessarily establishes an error of law. The ultimate question is whether the proceedings were fair and just, including whether the person concerned had a proper opportunity to give evidence and whether that evidence was properly and fairly assessed. The mere failure expressly to refer to the Guidance Note, or to record that a witness was vulnerable, is not sufficient without more.
14. SB also establishes that treating a witness as vulnerable does not render every adverse credibility finding inherently problematic. It remains for the fact-finder to determine the extent of the vulnerability, its relationship to the evidence, and the weight to be placed upon it. In SB, however, the First-tier Tribunal expressly identified the appellant as vulnerable, stated that it had applied the Guidance Note, and directed itself to accord him a liberal application of the benefit of the doubt. The Upper Tribunal was satisfied that the identified depression could not rationally explain the particular contradictions. Those features materially distinguish SB.
15. Khan is distinguishable for similar reasons. There, the First-tier Tribunal expressly accepted that the appellant suffered from anxiety and depression, analysed the medical and expert evidence, and incorporated his mental health into its assessment of whether there were very significant obstacles to integration. Credibility was not central to that human rights appeal, no adjustment had been requested or shown to be necessary, and no critical evidence was identified as having been misunderstood or impaired by depression. The Court of Appeal therefore found no procedural unfairness.
16. The circumstances here are materially different. This was a protection appeal in which risk was accepted if the material account were established. Credibility was dispositive. Vulnerability was expressly raised and supported by substantial medical evidence and evidence of acute recent trauma. Nevertheless, the decision neither identified the appellant as vulnerable nor showed that the possible effect of his mental health and trauma had been considered when relying upon omissions, delayed or fuller disclosure of torture and rape, imperfect recollection, and screening interview answers. Unlike SB, there is no express self-direction from which application of the Guidance Note may be inferred. Unlike Khan, vulnerability was directly relevant to the decisive adverse credibility findings.
17. I do not regard Khan or SB as detracting from the application of AM (Afghanistan) to the facts of this appeal. Khan confirms that AM concerned a case in which vulnerability had not been adequately addressed and adverse credibility findings were made by reference to inconsistency and deficient recall without proper consideration of its possible effect: Khan at [45]. Khan explains that the question is whether the failure to follow the Guidance Note resulted in procedural unfairness which materially affected the decision. That is my conclusion here. I apply AM consistently with Khan. I do not treat the failure to follow the Guidance Note as automatically material. Rather, the factual correspondence with AM assists in determining whether the omission in this case resulted in the appellant’s evidence not being properly and fairly assessed.
18. The failure was not merely an omission to cite the Guidance Note. Vulnerability was relied upon in the addendum skeleton argument and, on counsel’s account, raised at the outset without objection. Ms Isherwood accepted, having checked the Home Office Presenting Officer’s note of the First-tier Tribunal hearing, that the Guidance Note had been raised. The appellant’s vulnerability was supported by primary medical evidence documenting sustained treatment for anxiety and depression, disturbed sleep and nightmares, self-harm and suicidal ideation, an overdose, and referrals to mental health services. Only weeks before the hearing, the appellant had also received news that his parents and daughter had been killed.
19. In the circumstances of this appeal, the Judge was required to consider the appellant’s identified vulnerability and its possible effect upon both his participation in the hearing and the assessment of his evidence. Although the absence of an express finding that he was vulnerable would not, by itself, establish an error of law, the decision must demonstrate that the substance of the Guidance Note was applied. It does not do so. There is no finding about vulnerability, no reference to the guidance, no identification of any adjustment, and no indication that mental health or recent trauma was considered when evaluating omissions, later disclosure, memory or consistency. I do not accept Ms Isherwood’s submission that the Guidance Note was nevertheless applied in substance. Although the Judge was aware of the medical records, the decision does not demonstrate that the appellant’s vulnerability, or its possible effect upon the quality of his evidence, was incorporated into the credibility assessment.
20. That omission was material. The Judge treated the absence from the first witness statement of details concerning torture and rape, and their inclusion in the supplementary statement, as an internal inconsistency. Those matters concerned particularly traumatic experiences and had, on the appellant’s case, been disclosed previously in the substantive asylum interview. The Judge also relied upon differences in his recollection of the duration of the hospital stay and upon omissions or answers at screening. These were precisely the kinds of matters requiring assessment through the lens of the established vulnerability. It was not necessary for the appellant to establish that his vulnerability in fact caused each omission or discrepancy. The material question was whether it was capable of affecting the quality or presentation of his evidence and therefore required consideration before those matters were treated as adverse to his credibility.
21. I do not conclude that vulnerability provides an automatic answer to every inconsistency, omission or documentary concern. Nor do I find that the appellant’s account had to be accepted. The error is that the credibility assessment was undertaken without demonstrating that a material feature of the evidence, and the applicable guidance, had been brought into the evaluative process.
22. Credibility was dispositive. The adverse findings were cumulative and interdependent. It is not possible to isolate findings which can safely be preserved from those affected by the failure to recognise and apply the appellant’s vulnerability. The error therefore infects the credibility findings as a whole.
23. The decision involved the making of a material error of law and must be set aside.
OTHER GROUNDS
24. It is not strictly necessary to determine the remaining grounds. I make brief observations because they reinforce the need for a fresh assessment rather than the preservation of any findings.
25. The Judge stated that there was no reference to Mr Karim in either witness statement and treated that omission as undermining the declaration and provenance of documents. Paragraph 10 of the supplementary statement said that the appellant’s lawyer friend contacted another lawyer to obtain the imprisonment notice. Although Mr Karim was not named, the substance of the explanation appears to have been given. The finding may rest upon an incomplete reading of the evidence.
26. The Judge relied upon medical records describing mixed anxiety and depressive disorder as active from 2020, while observing that it had not been disclosed at screening in February 2022. The records appear to show the appellant first reporting mental health difficulties to UK clinicians in February 2023. There is a potential failure to distinguish onset of symptoms, the date of traumatic events, and the date the condition was clinically recorded. If the point was not raised at the hearing, there is also a potential fairness issue.
27. The Judge considered it implausible that the appellant’s parents and daughter were killed shortly before the hearing and, because of the timing, questioned the genuineness of the death certificates. The occurrence of the deaths, reliability of the documents, identity of the perpetrators, and causal connection with the alleged gang were distinct issues. Timing alone was not an adequate reason to conflate them. The absence of the alleged threatening text might bear upon attribution, but did not without more answer the police, forensic and civil-status evidence.
28. There is also force in the complaint that the decision did not clearly engage with the range of Egyptian documents, including the police report, arrest and production requests, criminal judgment, conviction in absentia and travel restrictions, or with country material concerning the continuing reach of the gang. A judge need not refer to every item, but the reasons must explain why evidence bearing directly upon the core account was rejected or given little weight.
29. I make no final findings on those matters. They are for the Tribunal rehearing the appeal, considering all evidence in the round and applying appropriate vulnerable witness safeguards.
DISPOSAL
30. The extent of fact-finding required, together with the need for a complete reassessment of credibility under the vulnerable witness guidance, makes remittal appropriate. This was accepted by Ms Isherwood. The appeal is remitted to the First-tier Tribunal for a hearing de novo before a judge other than First-tier Tribunal Judge Sharma. No findings are preserved.
Notice of Decision
The decision of the First-tier Tribunal involved the making of a material error of law.
The decision is set aside in its entirety. No findings of fact are preserved.
The appeal is remitted to the First-tier Tribunal for a hearing de novo before a judge other than First-tier Tribunal Judge Sharma.

VS Rae-Reeves

Deputy Upper Tribunal Judge Rae-Reeves
Immigration and Asylum Chamber

26/08/2026