Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-003422 and
UI-2026-003428

First-tier Tribunal No: PA/01847/2024 and PA/01841/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

7th September 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE ANTHONY

Between

(1) SG
(2) KG
(ANONYMITY ORDER MADE)
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Turner, Counsel
For the Respondent: Mr D Simpson, Senior Home Office Presenting Officer

Heard at Field House on 1 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
1. This is an appeal by the appellants against the decision of First-tier Tribunal Judge Dowling (“the Judge”) who dismissed the appellants’ appeal on protection and human rights grounds (“the decision”).
Background
2. The appellants are nationals of Nepal. The appellants applied for protection on the basis of asylum or humanitarian protection on 5 November 2022. The Secretary of State (“the respondent”) refused the protection claim on 22 March 2024. The appellants appealed to the First-tier Tribunal (“FtT”). The Judge dismissed the appeal in a decision promulgated on 25 March 2026.
Appeal to the Upper Tribunal
3. The appellants applied for permission to appeal to the Upper Tribunal (“UT”) on 2 April 2026. Permission to appeal to the UT was granted on 19 June 2026 by First-tier Tribunal Judge Parkes.
Upper Tribunal Hearing
4. On 20 July 2026, the respondent in the Rule 24 response wrote to the UT conceding there was an error of law. However, the respondent took the view that the error of law was not material as the hearing was not procedurally unfair.
5. At the outset of the hearing, Mr Simpson informed me that he could no longer maintain the position taken in the Rule 24 response. He conceded that the respondent now takes the view that the error of law identified in the Rule 24 response was indeed a material error of law. When pressed, Mr Simpson elaborated on those points. The expert medical report submitted to the FtT confirmed the appellant suffered from PTSD and memory problems. Given the Judge did not refer to the expert report in the context of assessing the appellant’s evidence, it was difficult to say how the Judge would have viewed the evidence had the Judge considered the expert medical report. Mr Simpson submitted that the entire decision was potentially undermined. It is on this basis that the respondent now states that the error of law was material and the decision would need to be remade in the FtT.
6. Mr Turner concurred with the submissions of Mr Simpson and addressed me further regarding the materiality of the error of law. It was argued on behalf of the appellants that the Judge needed to assess credibility through the prism of the expert medical report. The credibility assessment was not properly explained by reference to the medical evidence. Had the Judge done so, it is unclear whether the same assessment of credibility would have been reached.
7. At the conclusion of oral submissions, I gave brief reasons for why I considered First-tier Tribunal’s decision did involve the making of a material error on a point of law. My analysis of the material error is dealt with below.
Analysis and Conclusions
8. The grounds argue that the Judge erred in not addressing the appellants’ vulnerability which had been raised in the skeleton argument. I accept and find the skeleton argument does state that the appellants should be treated as vulnerable witnesses during the course of these proceedings and reliance was placed on the Joint Presidential Guidance Note No. 2 of 2010: Child, Vulnerable Adult and Sensitive Appellant which include factors that must be taken into account when assessing an individual as vulnerable, one of which are mental health problems.
9. In this case, I find there is an expert medical report from Mr Michael Gerard Smyth a Consultant Psychologist dated 18 July 2025. Mr Smith diagnosed the first appellant as suffering from an extreme recurrent depressive disorder with psychotic features, post-traumatic stress disorder and impaired episodic memory. Mr Smith diagnosed the second appellant as suffering from a severe major depressive disorder and generalised anxiety disorder.
10. At paragraph 42 of the decision, the Judge found there were discrepancies in the first appellant’s evidence. The first appellant’s explanation is that the discrepancy may be due to the translator’s mistake or her mistake but she did not know. At paragraph 43 of the decision, the Judge did not accept the first appellant’s explanation that it may be the translator’s mistake. At paragraph 44, the Judge found there were discrepancies between the first and second appellant’s evidence. The Judge found that these discrepancies casts doubt on the first appellant’s credibility.
11. I find that at no point in the decision does the Judge consider the extent to which vulnerability was an element of that discrepancy or lack of clarity. I find in light of the expert medical report before the Judge, it was incumbent upon the Judge to determine the relationship between vulnerability and evidence adduced. Given the evidence before the Judge included that the first appellant suffered from impaired episodic memory, it is plausible that this was an element of the discrepancy or lack of clarity in recalling evidence. If the Judge found vulnerability did not play a part in the discrepancy or lack of clarity, the Judge needed to explain why. I find the appellants are entitled to know the reasons why.
12. Given the decision does not mention the expert medical report in the context of the Judge making adverse findings of fact, I am persuaded by the submissions of both Mr Simpson and Mr Turner that one simply will not know in what way the lack of reference to the expert medical report impacted on the Judge’s assessment of the first appellant’s credibility. It is entirely possible that, had the Judge taken into account the expert medical evidence, different findings of fact may have been reached. Even if the same findings of fact were reached, and the Judge found vulnerability did not play a part in the discrepancy or lack of clarity, the appellants are entitled to know how the Judge reached that conclusion. I am persuaded that the findings of fact reached by the Judge was materially impacted by the Judge’s failure to take into account the expert medical evidence.
13. The lack of reference of the expert medical evidence is in my view an error of law. Given the errors identified go to the heart of the Judge’s credibility assessment, I consider this to be a material error of law.
Remaking
14. The effect of paragraph 7 of the ‘Practice Statement Immigration and Asylum Chambers of the First Tier Tribunal and the Upper Tribunal’ regarding disposal of appeals in the UT is that where, following the grant of permission to appeal, the UT concludes that there has been an error of law, then the general principle is that the case will be retained within the UT for the remaking of the decision. The exceptions to this general principle is set out in paragraph 7.(2)(a) and (b) Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal which I have considered carefully alongside the guidance set out in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) and AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512.
15. Both Mr Simpson and Mr Turner submitted that if I were satisfied that there is a material error of law, it would be entirely appropriate to remit the appeal to the First-tier Tribunal because of the factual findings required.
16. I am persuaded that the nature and extent of the judicial fact finding which is necessary in order for the decision to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal. I conclude that this case should not follow the general procedure and should be treated as an exception under paragraph 7.2(b).
Notice of Decision
The making of the First-tier Tribunal’s decision did involve the making of a material error on a point of law.
The decision is set aside in its entirety with no findings preserved.
The matter is remitted to the First-tier Tribunal for a hearing de novo by any Judge other than First-tier Tribunal Judge Dowling.

Farin Anthony

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

2 September 2026