Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2026-003718
First-tier Tribunal Number: PA/71737/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued

On 19th of October 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE WOODCRAFT

Between

MD
(Anonymity order made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms F Shaw, counsel
For the Respondent: Mr E Terrell, Home Office Presenting Officer

DECISION AND REASONS

Heard at Field House on 1 October 2026

Order Regarding Anonymity.

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity, and is to be referred to in these proceedings by the initials MD. 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.
The Appellant
1. The appellant is a citizen of Turkey born on 31 May 2007. He appeals against the decision of the First-tier Tribunal dated 11 May 2026 to dismiss his appeal against the decision of the respondent dated 23 September 2024. That decision had refused the appellant’s application for international protection. The appellant arrived in the United Kingdom on 14 June 2023 and claimed asylum two days later on 16 June 2023.
The Appellant’s Case
2. The Appellant's case was summarised by the judge at [3] and [4] of her determination as follows:
“The Appellant (A) is a Turkish national of Kurdish ethnicity. He lived with his parents in Gazantep, in Southeastern Turkey. His parents did not teach him Kurdish, only Turkish, to protect him from discrimination. His claim is based on events arising from his claimed support for the Peoples’ Democratic Party (HDP), and his Kurdish ethnicity. He states that he became involved with HDP activities in Gaziantep in 2022, including assisting at Newroz celebrations and distributing party leaflets. As a result of these activities he was arrested twice by police: on 21 March 2023 during Newroz celebrations, and on 10 April 2023 while distributing HDP leaflets. On both occasions he was detained by anti-terror police, accused of supporting the PKK, and subjected to physical ill-treatment.
“Following his second arrest he was forced to sign a document requiring him to report regularly and provide names of HDP supporters, which he was unwilling or unable to do, leading him to flee Turkey shortly afterwards. He was a minor at the time of the events, and has been affected psychologically by his detention and alleged ill-treatment, and the traumatic nature of his journey here. He was bullied and discriminated against in school. An earthquake in February 2023 adversely affected his family. “
The Decision at First Instance
3. At [17] the judge directed herself on the approach to the appeal required by statute stating:
“This is an appeal to which the Nationality and Borders Act 2022 applies. This alters the standard of proof in asylum claims as follows. An Appellant must firstly show, on a balance of probabilities that they have a characteristic protected by the Refugee Convention that could cause them to fear persecution (the Convention Reason stage) and that s/he does in fact fear such persecution. Thereafter, the second stage of the Tribunal’s consideration is whether s/he can show there is a reasonable degree of likelihood, or real risk, of persecution for such a reason: see the approach set out in JCK (s.32 NABA 2022) (Botswana) [2024] UKUT 00100 (IAC), applied. The approach to the second stage assessment of risk in an asylum appeal remains unchanged … A[n] asylum claim should be afforded “anxious scrutiny “.
4. At [21], citing the CPIN, the judge indicated the risk to supporters of pro Kurdish organisations by referring to “the targeting of even low-level political activity such as leafleting or attending rallies and the risk of torture or serious ill-treatment in detention for those accused of HDP or PKK links”
5. At [24] to [31] the judge analysed the evidence and at [33] to [35] indicated why she did not accept the credibility of the appellant’s claim, concluding at [36] “As a failed asylum seeker without any political profile, I do not find there is a real risk he would encounter problems on return”. She said she was distinguishing IK (Returnees - Records - IFA Turkey) CG 2004 UKAIT 312 and dismissed the appeal.
The Onward Appeal
6. The appellant appealed on five grounds initially (although ground 2 was not given permission to appeal). Ground 1 took issue with the judge’s treatment of section 32 of the Nationality and Borders Act 2022 (NABA) stating: “At [32], having acknowledged that the Refugee Convention is engaged, the Judge moved to the risk-on-return assessment. However, the determination collapses the two stages, treating adverse credibility ﬁndings as if they preclude any ﬁnding of real risk” Having found that a Convention reason was engaged the grounds argued that the judge ought to have directed a careful, structured second-stage analysis applying the lower 'real risk' standard”.
7. Ground 3: argued that there had been a failure to address the risk on return as a failed asylum seeker, citing JCK. Ground 4 argued that the judge did not separately address Article 3 of the ECHR. Ground 5 argued that the Judge made a series of adverse credibility ﬁndings on inconsistencies in the appellant’s evidence without adequately discounting for the Appellant's youth. The judge had inadequately applied the Joint Presidential Guidance Note No 2 of 2010 and the guidance in AM (Afghanistan) v SSHD [2017] EWCA Civ 1123.
8. Permission to appeal was granted by an FTT judge who wrote:
“It is arguable that there has been a confused JCK analysis here – the convention reason is not a fact-finding stage as much an evaluative stage accepting the case at its highest. Only then does one turn to consider the facts of the account to the balance. There appears to be a leap from Convention reason to objective risk which casts some doubt over the standard of proof which has been applied to each stage (see 32 – 33). It is also arguable that the approach to JCK is either not adequately reasoned or wrong in law because there is no consideration of the effect of the pinch point on return for a Kurd with an ETD (even if the primary case had been rejected).”
9. The respondent replied on 28 July 2026 to the grant of permission disagreeing with the grounds of onward appeal and pointing to instances in the determination where the judge had directed herself to the lower standard of proof. The response stated: “The findings when read holistically, demonstrate that the [FTT judge] addressed the central issues identified in JCK and a failure to set out all factors in the return process would not constitute a material error in law.”
The Hearing Before Me
10. In consequence of the grant of permission the matter came before me to determine in the first place whether there was a material error of law in the decision of the First-tier Tribunal such that it fell to be set aside. If there was then I would make directions on the rehearing of the appeal. If there was not the decision at first instance would stand.
11. At the outset of the hearing, I discussed with the parties the impact if any on the case of a recent presidential panel in the case of DS which at present is known by its case number UI – 2025 – 004745 This gave guidance to tribunal judges how they should apply section 32 of the Nationality and Borders Act 2022 (NABA) in the light of the authority of JCK. JCK indicated that the section had established a new paradigm which was different from the one that had governed refugee decision-making for several decades. DS was relevant because one of the challenges to the determination in this case was that the judge had not correctly followed the approach in JCK when considering section 32 of NABA. The section notes five questions which are to be answered sequentially.
12. For the appellant counsel argued that the questions had not been considered separately in the determination under appeal. Permission to appeal had been granted in respect of grounds 1 and 3, 4 and 5. No permission had been granted in respect of ground 2. Following JCK the proper approach was to address each question sequentially. Instead in this case the judge had moved to stage 2 without addressing the question at section 32(b) whether the appellant did in fact fear persecution. At [33] of the determination the judge dealt with risk on return which was a second stage question.
13. The judge had been referred to three relevant CPINS (i) the circumstances of the Kurds, (ii) the HDP party and (iii) the PKK. There was an overlap between the three CPINS which had been cited in the appellant's skeleton argument. All Kurds were deemed by the Turkish authorities to have links with the HDP and/or the PKK a terrorist group. Kurds were tortured in detention. The judge had found the appellant was consistent about his involvement with the two groups. It was important to bear in mind that the appellant was 15 when he entered the United Kingdom and was then interviewed by the respondent. The judge had referred to the presidential guidance on vulnerable witnesses but had not placed weight on that guidance.
14. The three CPINs alone showed that a Kurdish man would be perceived to have links with the HDP or the PKK. The judge should have considered the test at section 32 (2) of NABA.
15. As to ground 3, the judge had erred in her approach to IK. She had not considered the pinch point of a Kurd arriving in Turkey on limited documentation as a failed asylum seeker. The appellant would be questioned on entry as he was from Gaziantep, a Kurdish area. Because of his name and appearance people would know he was Kurdish and he would be questioned accordingly. Since arriving in the United Kingdom, the appellant has undertaken sur place events for which there was evidence. Even if on return he told the authorities he had made up his asylum claim he could not be expected to lie about the fact that he had undertaken sur place activities. The Turkish authorities were suspicious of anyone who spoke against President Erdogan.
16. According to the CPIN at 12.4.1 even low level HDP support poses a risk. Anyone who criticises the President will face the risk of torture. This appellant was a person at risk on return. The CPINs were internally contradictory; the respondent relied on 3.1.1 of the CPIN that low level HDP supporters were not at risk but 12.4.1 of the CPIN undermined that statement. The judge should have considered that Kurds were tortured in detention, but she did not. There was no analysis of the appellant’s claim under article 3.
17. In reply for the respondent reliance was placed on the rule 24 response. The Presenting Officer noted that Ground 4 (failure to address article 3) had not been pursued with much vigour. What the judge said about section 32 at [17] and [18] of the determination was that she had directed herself in line with the case of JCK. Section 32 (2) consisted of two questions which required a yes or no answer the second of which was did the appellant in fact fear persecution? Section 32 (3) assume yes to both questions in 32(2) before one moves on to section 32 (4) the question of risk on return. What the judge said about JCK is accurate. Where the First-tier had stated the law it had faithfully followed the tribunal decision of MA Somalia and had not found the appellant to lack credibility only because he may have told an untruth at an earlier stage.
18. The appellant had made two claims, one that he was an HDP supporter and the other that he was of interest to the Turkish authorities. What the judge said at [34] was key. The judge had found certain things which undermined the appellant's claim such that even if he was a supporter he was not of interest on return. The judge did not believe the appellant on a number of credibility issues. There was then a backup on an “even if” basis which was the answer to the appellant’s point about article 3 not being considered. There was nothing in the determination which was inconsistent with JCK.
19. On ground 5, the treatment of a vulnerable witness, the respondent referred to [9] and [10] of the determination. The credibility assessment was factually sensitive and one where the judge paid more than lip service to the question of vulnerability, see [33] in particular where the judge reminded herself of the appellant's age. She specifically noted that pauses during the substantive asylum interview were not to be held against the appellant. Recent case law makes clear that the question of a vulnerable witness was not something which created a burden on the tribunal. The question was did the witness have a fair hearing?
20. No evidence of mental health problems were put to the judge, see [10] of the determination. The centrepiece of the appellant's claim thus fell away. The judge looked at the matter and decided the appellant was not at risk just because he was a Kurd and discrimination he had/might suffer was not persecution. Not every single Kurd was a member of the PKK nor would they all be assaulted by authorities. When in Turkey the appellant was not perceived to be either HDP or PKK. All that was left was that the appellant had carried out some small sur place activities. The appellant would not be lying if he said no to the question whether he had been arrested in Turkey. The appellant could answer that he was pretending to be an HDP supporter in the United Kingdom and would be telling the truth. Otherwise, there would be an incentive for every Kurd to put in a bogus claim.
21. The appellant was seeking to reargue the case. The passage in the CPIN cited above at paragraph 16 represented someone's opinion but it should not be held up as the truth of the matter. When preparing a CPIN the respondent looked at different sources of information and came to an opinion but there was no contradiction as such. There was a correct self-direction by the judge, does the appellant actually fear persecution? There was no error. There was not much of a challenge to the underlining findings of fact so even if there was a legal misapplication, findings could be preserved.
22. In reply for the appellant counsel commented on the claimed contradiction between the CPINs. The person making the comment at 12.4.1 which the respondent wished to distance herself from was the chair of the Truth centre and the remarks had been included in all the issues of the CPIN until July 2025. Therefore, the respondent deemed it still to be a valid quote even if it was from a single person. The conflicting paragraph 3.1.1 did not alter anything, so more reliance should be placed on 12.4.1. The judge must have assumed yes to the 32 (2) (a) and (b) questions before proceeding to 32(4). JCK paragraph 25 says each question must be answered separately. Even if the judge found the appellant was not actively involved as a supporter of HDP, even at a low level of support the appellant would still be at risk.
23. On the question of whether discrimination against Kurds amounted to persecution, the appellant would return as a failed asylum seeker. He would be automatically questioned as such and that would show he had spoken out against the authorities. There were additional risk factors such as not having a passport which would put him at risk. If the appellant was asked whether he supported HDP it would be a lie if he said no. This general perception was that all Kurds were linked to the HDP.
Discussion and Findings
24. Although the determination in this case made a number of adverse credibility findings against the appellant ground 1 of the challenge to the determination made by the appellant was that the judge had not adopted the correct approach required by section 32 of NABA. As was explained in the Upper Tribunal authority of JCK, NABA introduced a new paradigm governing refugee decision-making. NABA applied in this case because the application for asylum had been made after 28 June 2022. The judge had to answer five questions in section 32. The first two questions effectively became the first stage of the judge's decision in [17] and the remaining three became the second stage. A different standard of proof applied to questions one and two as opposed to questions 3, 4 and 5. In DS the presidential panel gave further guidance on how tribunal judges should approach the framework set out in NABA. At the time of writing the decision of the presidential panel has not been formally adopted by the reporting committee, but regardless it is clearly of great significance and much respect should be shown it.
25. The question asked at section 32 of NABA is whether on the balance of probabilities the claimant has a characteristic which could cause them to fear persecution for one of the five characteristics set out in the refugee Convention. This calls for a specific finding of fact and where JCK is different it is not to be followed. Question two of the first stage is whether the asylum seeker does in fact fear the persecution as a result of the characteristic which could cause them to fear persecution. The task therefore of the decision-maker is to ask two separate questions at stage 1. On the balance of probabilities does the asylum seeker have a relevant characteristic and if so do they in fact fear persecution as a result of that characteristic. Each question must be answered separately even if there is a considerable overlap between the two. Having answered those questions in the affirmative the decision-maker moves on to determine on the lower standard whether there is a reasonable likelihood that if the asylum seeker were returned they would be persecuted as a result of the characteristic.
26. This takes into account the situation where an appellant's account of past events is accepted but where there has been a significant change in circumstances (a change of government for example) that makes a genuine present fear less likely. Decision-makers are now not required to decide whether a person would be at real risk of persecution unless it has been decided that the appellant has a characteristic that could cause them to fear persecution for a Convention reason and they do in fact fear persecution.
27. Question three of NABA is whether there is a reasonable likelihood that if the asylum seeker were returned they would be persecuted as a result of their relevant characteristic. What the judge at first instance said at [17] of her determination was:
“An Appellant must firstly show, on a balance of probabilities that they have a characteristic protected by the Refugee Convention that could cause them to fear persecution (the Convention Reason stage) … and that s/he does in fact fear such persecution.”
28. The judge’s task was to answer two separate questions at stage 1 on the balance of probabilities. The judge had not had the benefit of seeing the presidential panel decision in DS, but was evidently familiar with the Upper Tribunal authority of JCK. The excerpt I have cited (in the previous paragraph) from the determination demonstrates that the judge asked two separate questions at stage 1 as she was obliged to do. “… and that [he] does in fact fear such persecution” is the second question within stage 1. The two questions being whether the appellant had a characteristic and whether he did in fact fear persecution as a result of that characteristic. The judge has set out the two questions.
29. The judge at [28] stated:
“The appellant’s evidence in cross-examination that he ceased to support the HDP once he came here because he was afraid is materially at odds with all the evidence he has put forward previously in his witness statements.”
The judge at this point appears to be answering the second question in the negative, the appellant did not in fact fear persecution due to a relevant characteristic. What she then did was to embark on a detailed analysis of the appellant’s evidence applying the lower standard. At [32] she stated: “His claim is thus plausible in principle. I find that, on balance, his case at its highest engages the Refugee Convention.” That however is not the test. It appears in JCK but has been expressly disapproved in DS see paragraph 45 of the latter. It is understandable that the judge phrased matters the way she did given that the guidance in DS was not to hand. The error is not material however, despite the apparent contradiction since it favours the appellant.
30. The judge moved on to determine on the lower standard whether there was a reasonable likelihood that if the appellant were returned he would be persecuted as a result of the characteristic of claimed HDP support. The judge was not required to decide this unless it had been decided that the appellant had a characteristic that could cause them to fear persecution for a Convention reason and they actually did fear persecution. By taking the appellant’s case at its highest the judge was in effect accepting that the appellant could answer yes to both the questions in section 32 (2) (a) and (b). The judge has then considered the appellant’s case to the lower standard as the statute requires.
31. The grounds of onward appeal argue that the judge collapses the two stages, treating adverse credibility ﬁndings as if they preclude any ﬁnding of real risk. A belt and braces approach would be that it acts as a back stop in the event that one part of a submission fails. If the judge’s answer to question 2 was said to be that the appellant does not fear persecution but is held to be insufficiently reasoned the judge has nevertheless gone on to examine the appellant’s case in some detail at stage 2. For the reasons I give below I find that the judge has adequately demonstrated at stage 2 why she did not accept the credibility of the appellant’s case to the lower standard.
32. I pause to note here that the decision granting permission to the appellant to appeal the decision of the First-tier is arguably wrong in law when it says that the first stage is an evaluative one taking the appellant's case at its highest. DS deals specifically with this point at paragraph 45. The idea that one takes the claim at its highest has no basis in and indeed is inconsistent with section 32. To take a claim at its highest means to accept that it is true rather than to make a determination on the balance of probabilities that it is true. In fact the judge did take the appellant’s case at its highest as I explain above.
33. The appellant complains that the judge has not assessed correctly the risk to him on return as he would be perceived to be a supporter of either or both of the HDP and the PKK. The submission appears to be that simply being a Kurd means that the appellant would arouse the suspicion of the authorities in Turkey including consideration being given to how the appellant was being returned from the United Kingdom. IK the authority relied upon by the appellant was said to show that low-level supporters of either the HDP or the PKK are at risk of ill treatment on return, the judge took the view at [36] that she could distinguish IK because the appellant's situation was different. Disbelieving his claim for the reasons she gave the judge found that the appellant was not a low-level supporter of either organisation he was not a supporter at all. The judge relied upon the CPINs which were more up to date than IK which is now 22 years old.
34. There were problems with the credibility of the appellant's evidence outlined by the judge. At [33] of the determination the judge made allowances for the appellant's age but the appellant's case was so full of contradictions that the judge found she could place no weight on it. It was open to the judge to distinguish the appellant's situation from that of the appellant in IK because the appellant in the instant case had in effect fabricated an account of what he said had happened. He had not been arrested and he had not been ill treated by the authorities in Turkey and nothing would happen to him upon return.
35. The other complaint made about the determination is that the judge did not specifically refer to article 3. She referred to article 8 but only in the context of the fact that little evidence had been provided to show the appellant had developed a private life in this country. The important point about article 3 is that like the second stage of an asylum application it would have to be considered to the lower standard. The judge had done that in her detailed consideration of the asylum claim. In those circumstances whilst it was an error not to specifically refer to article 3 as it had been mentioned by the appellant, it was not a material error because there was no different analysis under article 3, differing from the analysis required by the second stage of NABA. Section 32 of NABA does not conflict with article 3. The absence of a reference to article 3 made no material difference to the overall decision.
36. Overall I find that the judge analysed the legal structure which she was required to follow correctly. The grant of permission to appeal was arguably wrong in law insofar as it related to the legal test at stage 1 and in any event criticised the judge for not doing something (taking rhe case at its highest) which she had in fact done. There was no material error of law in this determination and the grounds of onward appeal are no more than a disagreement with the result. I therefore dismiss the onward appeal.
Notice of Decision
The decision of the First-tier Tribunal did not involve the making of an error of law and I uphold the decision to dismiss the Appellant’s appeal
Appellant’s appeal dismissed

Signed this 12th day of October 2026

……………………………………………….
Judge Woodcraft
Deputy Upper Tribunal Judge