Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-003502

First-tier Tribunal No: PA/70754/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 30th September 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVIES

Between

SA
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Burrett, instructed by JD Spicer Zeb Solicitors
For the Respondent: Mr A Tan, Senior Home Office Presenting Officer

Heard at Field House on 18 September 2026

Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant, SA, is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the Appellant (SA), 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. The hearing was conducted by CVP pursuant to a notice of hearing dated 18 August 2026. There were technical issues with Mr Burrett’s connection which necessitated him leaving and re-joining the link, however, the hearing was able to proceed and both parties were able to make their submissions. The technical issues did not prevent full exploration of the issues.

2. The relevant documents were confirmed to be those contained in the composite bundle.

3. The Appellant was born in 1985 in Assab, Eritrea and is of Tigrinya ethnicity. He claimed asylum in the UK on 29 March 2024. His claim for asylum was refused by letter dated 4 September 2024. The respondent did not accept that the Appellant is Eritrean but accepted that if he was Eritrean, the Appellant would be at risk of persecution. The Respondent’s position as to the Appellant’s nationality as contained in that decision is that it is ‘unknown’.

4. An appeal came before First tier Tribunal Judge Wesley (“the Judge”) sitting at Nottingham on 19 March 2026.

5. The issues for determination on the appeal are set out at para.7 of the determination:

(a) Whether the Appellant is SM, and
(b) Whether the Appellant is an Eritrean national,
(c) In the alternative whether the Appellant is ‘stateless’.

6. Upon conclusion of the hearing, directions were given for written submissions from both parties:

as to why, the Appellant maintaining he had been born in Ethiopia prior to the establishment of Eritrea as an independent country, the Appellant was not, absent any other steps taken on his part to seek Eritrean Nationality, and Ethiopian national [8]

7. The directed submissions were duly provided by the parties. The Respondent’s position was not to make a positive assertion that the Appellant is of Ethiopian nationality. The Appellant asserted that, on a proper reading of the Eritrean nationality law, he would be conferred Eritrean nationality by descent. The Appellant’s alternative argument that if he was not Eritrean, he would be stateless.

8. The appeal was dismissed on asylum and humanitarian protection grounds by a decision dated 26 April 2026. The Judge made a finding at [23] that the Appellant is not Eritrean. It is concluded at [30] that he is not stateless. At [29] there is a finding in the following terms:

I have the Appellant’s own evidence to rely upon – he was born in Ethiopia prior to the establishment or Eritrea and is therefore, absent any positive steps on his behalf to secure alternative nationality, an Ethiopian national.

9. Permission to appeal was granted by First tier Tribunal Judge Seelhoff on 30 June 2026. This hearing is to determine whether there is a material error of law in the Judge’s decision.

The grounds of appeal

10. Ground 1 asserts that the Judge erred in finding that the Appellant was specifically Ethiopian when the Respondent did not adopt that position.

11. Ground 2 complaints of a failure to consider MA (Disputed Nationality) Ethiopia [2008] UKAIT 00032 on the basis that the case is not cited in the decision nor are its principles given obvious consideration.

12. Ground 3 complains of the standard of proof applied in determining whether the Appellant had established his nationality. It is further complained that Article 3 issues had not been considered with reference to the lower standard of proof.

13. Ground 4 asserts that it was an error not to consider whether the Appellant was stateless.

Analysis

14. In relation to Ground 1, I consider there to be an error of law. I am satisfied that:

(a) The Respondent did not, in the refusal letter, review, or post-hearing submissions, make a positive assertion that the Appellant is an Ethiopian national: had such an assertion been made, the burden would have fallen to the Respondent to prove the asserted nationality, to the balance of probabilities standard;
(b) The list of issues (set out above) did not include a requirement upon the Judge to reach a conclusion as to whether the Appellant is Ethiopian (consistently with this not having been asserted by the Respondent).
(c) Para. [29] of the determination contains a positive finding that the Appellant is of Ethiopian nationality;
(d) Para. [29] goes beyond the agreed list of issues.

15. The Appellant’s ground 1, as amplified in oral submissions, complains that the Judge “entered the fray in seeking to determine that the Appellant is Ethiopian, which did not form part of the case”.

16. The Respondent’s position on this ground is that, notwithstanding there being an agreed list of issues, there is scope for the issues to evolve, and the procedure by which the issues evolved was a fair one, i.e. the opportunity to provide written submissions.

17. I consider that the Appellant’s argument on this ground has merit. The Respondent stopped short of asserting that the Appellant is Ethiopian. The Judge was not required to determine whether the Appellant is Ethiopian, but was required to determine whether he is Eritrean and if not, whether he is stateless.

18. The finding at [29] goes beyond the scope of the appeal, those parameters having been set by the refusal letter, the review and the agreed list of issues.

19. I conclude that the Judge developed a “theory of the case” based upon a positive finding of Ethiopian nationality which went beyond the issues which had been placed in dispute and therefore, beyond the scope of the appeal for which the Appellant had prepared and adduced evidence. The purpose of identifying the issues in advance of a hearing is to ensure that all parties are aware of the matters in dispute and can direct evidence and submissions to those issues.

20. The Respondent’s submission is that there must be some flexibility, and that the direction for further submissions addressed the need for procedural fairness in relation to the evolving issues. However, this overlooks the fact that even at the stage of post-hearing submissions, the Respondent was not making the positive assertion of Ethiopian nationality and therefore did not place that in issue. The Judge went beyond the agreed issues, even allowing for the potential evolution of those issues by way of post-hearing submissions.

21. There is obvious procedural unfairness in this approach.

22. The determination does not indicate the standard of proof which has been applied in relation to the finding at [29]: this is the subject of Ground 3.

23. In terms of materiality of the error of law, I have considered whether the Judge’s decision can stand with the finding of Ethiopian nationality being “severed” from the findings that the Appellant is not Eritrean [23] and that he is not stateless [30]. This is the approach I am invited to take by the Respondent if an error of law is identified.

24. I accept the submission that the positive finding of Ethiopian nationality has “infected” the totality of the Judge’s findings. I note that the interweaving of the Judge’s findings on asylum and humanitarian protection is confirmed at [25].

25. It is not possible, in my view, to sever the finding that the Appellant is not Eritrean from the positive finding that he is Ethiopian.

26. As a material error of law exists in relation to Ground 1 and the related Ground 3, resulting in the disposal discussed below, it is not necessary to consider the remainder of the grounds of appeal.

Disposal

27. The parties agreed that in the event of a material error of law arising from procedural unfairness, it would be appropriate to remit the appeal to the First-tier for a fresh hearing. I consider that to be the appropriate disposal.

Notice of Decision

1. The decision of the First-tier Tribunal contains a material error of law.
2. The appeal shall be remitted to be heard by a Judge other than First-tier Tribunal Judge Wesley at the Nottingham hearing centre.
3. The order for anonymity shall remain in place.

Siân Davies

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

24 September 2026