Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-003151
First-tier Tribunal No: PA/70187/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 25th of September 2026

Before

UPPER TRIBUNAL JUDGE BLUNDELL

Between

IL
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Hingora, instructed by AMH Solicitors
For the Respondent: Ms Ahmed, Senior Presenting Officer

Heard at Field House on 21 August 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
1. The First-tier Tribunal made an anonymity order in this case and I am satisfied that it should remain in place by reference to the appellant’s status as an asylum seeker.
2. The appellant appeals with the permission of the First-tier Tribunal against the decision of Judge Hawden-Beal (“the judge”), who dismissed his appeal against the respondent’s refusal of his claim for international protection.
3. The appellant is an Afghan national who was born in 2003. He entered the United Kingdom unlawfully in 2023 and claimed asylum on arrival. In the interviews which were undertaken to investigate that claim, the appellant stated that he was in fear of the Taliban because he had refused to join them. He had escaped when they had abducted him under the previous regime and he had resisted their advances when they returned to power. He had fled from Afghanistan to avoid the Taliban. They had subsequently issued a summons for him.
The Decision of the First-tier Tribunal
4. The judge found that the appellant’s credibility was damaged by his failure to claim asylum en route to the UK: [42]. The judge noted at [44] that the account given by the appellant at interview was “rather confused” but she rejected several of the respondent’s reasons for concluding that the applicant’s account was untrue at [44]-[48].
5. At [49], however, the judge accepted that the appellant had been inconsistent in his claim that the Taliban had visited the madrassa after they had come to power in 2021. At [50], the judge considered that it “makes no sense” for the appellant to have remained in Afghanistan in November 2022 if he was in fear of the Taliban from the point at which they resumed control of the country in 2021. The judge continued to note that the evidence regarding the visits from the Taliban was unsatisfactory in other respects: [51]-[52].
6. At [53], the judge summarised her findings. She accepted that the appellant may have been kidnapped by the Taliban in 2021 but she did not accept that he remained at risk from them. That was because they did not, on her findings, come looking for him after they returned to power. At [54], the judge attached no weight to the summons which was purportedly from the Taliban because it was undated, its provenance was unexplained and there had been no action taken in reliance upon it: [54]. The appeal was therefore dismissed on protection grounds. The remainder of the decision dealt with non-protection related claims which are irrelevant to this appeal.
The Appeal to the Upper Tribunal
7. The grounds of appeal were settled by Ms Bhachu of counsel, who had represented the appellant below. There were two grounds, both of which targeted the judge’s adverse findings in relation to the appellant’s credibility. It was said that the judge had failed to consider what the appellant had said about his failure to claim asylum en route to the UK; had failed to consider what the appellant said about not returning to the same madrassa after the Taliban came to look for him; and had failed to consider what the appellant said about difficulties with interpretation at interview.
8. Judge Burnett considered the grounds to be arguable and granted permission to appeal, noting that the difficulties with interpretation had been raised in the appellant’s witness statement and in the skeleton argument before the FtT but had not been resolved by the judge.
9. The respondent filed a response to the grounds under rule 24, submitting that the judge’s decision should be upheld.
10. Mr Hingora filed and served a helpful skeleton argument in development of the grounds of appeal. I heard oral submissions from him on the grounds as a whole.
11. At the conclusion of Mr Hingora’s submissions, I invited Ms Ahmed to address me on the judge’s failure to consider what was said by the appellant about problems with interpretation at interview. Ms Ahmed accepted that the judge had erred in law in failing to consider that issue but she submitted that any such error was immaterial to the outcome of the appeal. I indicated that I did not accept that submission and that I considered that the decision of the First-tier Tribunal was unsustainable for that reason alone. My reasons for reaching that conclusion were as follows.
Analysis
12. The judge was entirely correct, with respect, to note that there are parts of the interview record which are “rather confused”. The appellant sought to explain that at [10] of his statement before the FtT:
I understand that in the decision by the Home Office it has been suggested that some of the answers I provided were not consistent. I can confirm that there I had some difficulties communicating and understanding the interpreter throughout the interview as we were not from the same part of Afghanistan. I can confirm that I was very nervous during my asylum interview not only because I understood the importance of the interview but because I had received a letter about being removed to Rwanda. This led me to be extremely anxious and stopped me from raising the communication issues between myself and the interpreter as I feared that if the interview was stopped this could reflect bad on my claim and could result in my removal to Rwanda. I can state that having reviewed the interview transcript some of the answers are not accurate which I believe is due to the communication issues experienced. In addition to the above I wish to summarise my responses to some of points specifically raised by the Home Office in the refusal.
13. The statement then proceeded to set out three specific points of clarification about the answers which had been recorded at interview. The skeleton argument which Ms Bhachu settled for the hearing before the FtT developed these submissions at [9], in which she made reference to the decision of the Court of Appeal in JA (Afghanistan) v SSHD [2014] EWCA Civ 450; [2014] 1 WLR 4291. At [24]-[25] of his judgment in that case, Moore-Bick LJ (with whom Gloster and Vos LJJ agreed) said this:
[24] In the absence of a statutory provision of the kind to be found in section 78 of the Police and Criminal Evidence Act 1984, I do not think that in proceedings of this kind the tribunal has the power to exclude relevant evidence. It does, however, have an obligation to consider with care how much weight is to be attached to it, having regard to the circumstances in which it came into existence. That is particularly important when considering the significance to be attached to answers given in the course of an interview and recorded only by the person asking questions on behalf of the Secretary of State. Such evidence may be entirely reliable, but there is obviously room for mistakes and misunderstandings, even when the person being questioned speaks English fluently. The possibility of error becomes greater when the person being interviewed requires the services of an interpreter, particularly if the interpreter is not physically present. It becomes greater still if the person being interviewed is vulnerable by reason of age or infirmity. The written word acquires a degree of certainty which the spoken word may not command. The "anxious scrutiny" which all claimants for asylum are entitled to expect begins with a careful consideration of the weight that should properly be attached to answers given in their interviews. In the present case the decision-maker would need to bear in mind the age and background of the applicant, his limited command of English and the circumstances under which the initial interview and screening interview took place.
[25 In my view the common law principle of fairness which underpins the decision in Dirshe requires the tribunal to consider with care the extent to which reliance can properly be placed on answers given by the appellant in his initial and screening interviews and, as I have already indicated, I do not think that it is a foregone conclusion that the Upper Tribunal would decide that they could properly be given the degree of weight which the First-tier Tribunal gave them. In those circumstances the Upper Tribunal's failure to deal with this ground of appeal requires that the matter be remitted in order to enable it to do so.
14. It was necessarily incumbent upon the judge, as a result of the first sentence of [25] of JA (Afghanistan) v SSHD, to consider and resolve what was said by the appellant about the problems with the interview in this case. She noted that the interview was rather confused in places but she went on to attach weight to what was said in that interview without considering the submission made by Ms Bhachu.
15. The judge might have rejected the appellant’s suggestion that there were problems at interview, and proceeded to make the same findings. Or she might have accepted that there were problems with interpretation at the interview and declined to attach any weight to the interview records, or to the “confused” parts of it. It is certainly not inevitable that she would have come to the former conclusion, and I must therefore reject Ms Ahmed’s submission that any such error was immaterial to the outcome: ASO (Iraq) v SSHD [2023] EWCA Civ 1282 refers, at [43].
16. The judge’s adverse credibility findings cannot stand and the appeal must be reheard afresh. The representatives agreed in those circumstances that the proper course was for the appeal to be remitted to the FtT to be heard de novo by a judge other than Judge Hawden-Beal.

Notice of Decision
The decision of the First-tier Tribunal involved the making of an error on a point of law and that decision is set aside. The appeal is remitted to be considered afresh by a different judge of that tribunal.

Mark Blundell

Judge of the Upper Tribunal
Immigration and Asylum Chamber

24 September 2026