Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-004093
First-tier Tribunal No: PA/59034/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

21st October 2026

Before

UPPER TRIBUNAL JUDGE HOFFMAN

Between

MA
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr N Nadeem, legal representative, instructed by Allison Wells Solicitors
For the Respondent: Ms S Keerthy, Senior Home Office Presenting Officer

Heard at Field House on 19 October 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. The appellant appeals, with permission, against the decision of First-tier Tribunal Judge K Byrne (“the judge”), promulgated on 12 June 2026, dismissing his asylum and protection appeal.

Anonymity

2. The First-tier Tribunal made an anonymity order in respect of the appellant. There has been no application to set aside that order. While I recognise the strong factors in favour of open justice, in the present case I am satisfied that it is appropriate to continue the anonymity order given that the appellant seeks international protection.

Background

3. The appellant is a Bidoon from Kuwait. However, he contends that he is stateless. Whether or not that is correct is central to his asylum appeal.

4. He arrived in the United Kingdom on 5 March 2023 and claimed asylum the same day on the basis that he feared persecution in Kuwait as an undocumented Bidoon. His claim was refused by the respondent on 21 March 2024. The appellant appealed that decision to the First-tier Tribunal.

The appeal to the First-tier Tribunal

5. The appellant’s appeal was heard on 13 May 2026. In the determination dated 12 June 2026 dismissing the appeal, the judge found that the appellant had given an inconsistent account of his alleged arrest and detention by the Kuwaiti authorities and that he had given an incoherent account of how he came to be released. The judge also found that the appellant’s account of how he came to leave Kuwait if he was of interest to the authorities undermined his credibility. Having considered the evidence, the judge was also not satisfied by the appellant’s claim to be undocumented.

The appeal to the Upper Tribunal

6. On 27 July 2026, First-tier Tribunal Judge Bagral granted the appellant permission to appeal on seven grounds:

(1) The judge made a material mistake of fact in rejecting the DNA evidence.

(2) The judge failed to determine the central legal issue: whether the appellant had obtained Kuwaiti nationality by descent from his father.

(3) The judge took an erroneous approach to the evidence when finding that the appellant had not proven that he is undocumented.

(4) The judge gave inadequate reasons for rejecting the expert report.

(5) The judge made a material misdirection of law in respect of the standard of proof.

(6) The judge carried out an unlawful credibility assessment.

(7) The judge failed to properly consider that the appellant’s appeal was advanced on the basis that he engaged the Refugee Convention on account of his imputed, rather than actual, political opinion.

7. At the hearing before me, Mr Nadeem explained that he would be focussing on Grounds 1 to 4 and 6(a), although he still relied upon the other grounds.

The hearing

8. The error of law hearing proceeded in a hybrid fashion, with Ms Keerthy being present at the hearing centre and Mr Nadeem joining by CVP. There were no issues arising from this.

9. The parties’ submissions are recorded in the record of proceedings and are not rehearsed here, except where necessary to do so.

10. At the end of the hearing I reserved my decision.

Discussion

11. As emphasised in Volpi v Volpi [2022] 4 WLR 48 at [2] to [3], findings of fact made by a judge are entitled to respect and should only be disturbed where they are vitiated by legal error, such as a failure to apply the correct test, a misdirection or inadequate reasoning which prevents the losing party from understanding why they lost. It is against that standard that I have assessed the merits of the appellant’s appeal.

Ground 1: The DNA evidence

12. The appellant contends that the judge erred at [34] by attaching little weight to the DNA report relied upon to establish his claimed relationship with FA, whom he says is his brother. FA has been granted asylum in the United Kingdom. The report concluded that the probability of the appellant and FA being brothers was greater than 99.9%. The judge attached little weight to the report because “this DNA report originates from a source in the United States and there is no accompanying evidence…as to the provenance, methodology, or reliability of that document”.

13. Before me, Mr Nadeem submitted that the judge was wrong to reach that conclusion. He argued that the provenance, methodology and reliability of the report were apparent from its contents.

14. I have considered the report for myself. It is dated 22 May 2023 and was issued by DDC DNA Diagnostic Center in Ohio, USA. It records that samples were collected from the appellant and FA on 11 May 2023. It sets out a comparison of their allele sizes and concludes, as noted above, that the probability of the two men being brothers is greater than 99.9%. The report is signed by Allen Elswick and Michael L. Baird, the laboratory director.

15. The difficulty with the report, however, is that it consists of only a single page. It does not explain how the laboratory obtained the samples from the appellant and FA, given that it is based in Ohio. Nor does it explain how those responsible for collecting and analysing the samples satisfied themselves that they had been obtained from the correct individuals.

16. It is well established that the weight to be attached to evidence is a matter for the judge. For the reasons set out above, I am satisfied that the judge was entitled, applying the principles in Tanveer Ahmed, to conclude that the report was not accompanied by sufficient information as to its authenticity and reliability and to attach little weight to it.

17. For completeness, I note that during the hearing Mr Nadeem also argued that it was procedurally unfair for the judge to reach that conclusion because the issue had not been raised in the respondent’s Review. However, that argument did not form part of the grounds upon which permission to appeal was granted.

18. This ground is therefore not made out.

Ground 2: Nationality by paternal descent

19. The appellant argues that the evidence before the Tribunal was that Kuwaiti nationality passes through the paternal line and that, because FA had been found to be an undocumented Bidoon, it necessarily followed that the appellant was also undocumented.

20. I have already explained why the judge did not err in attaching little weight to the DNA report. At [35]-[37], the judge considered FA’s evidence. Although she did not make a clear finding as to whether FA was in fact the appellant’s brother, she noted that, whilst FA claimed to have been granted refugee status as an undocumented Bidoon, there was no evidence before her as to the basis upon which that protection had been granted. She further found that, even if she were to accept that FA had been recognised as an undocumented Bidoon, she was nevertheless required to determine the appellant’s appeal on its own facts.

21. Having considered the matter carefully, I am satisfied that the judge was entitled to reach those findings. She was not required to address the issue of Kuwaiti nationality passing through the paternal line unless she first accepted, on the evidence before her, both that (a) the appellant and FA were brothers, as claimed, and (b) that FA had in fact been recognised as an undocumented Bidoon. She gave adequate reasons for concluding that neither proposition had been established.

22. This ground is likewise not made out.

Ground 3: Whether the appellant is undocumented

23. This ground comprises three sub-grounds, (a) to (c).

24. Ground 3(a) asserts that the judge placed undue weight on the fact that the appellant’s family were registered in the 1965 Kuwaiti census as evidence that they were documented. Relying on NM (documented/undocumented Bidoon: risk) Kuwait CG [2013] UKUT 00356 and paragraph 3.1.3 of the CPIN Kuwait: Bidoons (Version 4.0, August 2024), the appellant submits that the crucial document for these purposes is the security card (also referred to as a review card), and that his evidence was that he did not possess such a card.

25. The judge’s findings on this issue are set out at [29]. There, she addressed the appellant’s apparently inconsistent evidence regarding whether his family had been registered in the 1965 census. She then considered his explanation, namely that his family may have registered in the census but were nevertheless refused nationality. The judge went on to state:

“Whilst I accept the concepts of census registration and nationality are not identical, the country material indicates that registration in the 1965 census is a key and significant indicator of documented status.”

26. However, the judge did not identify the country material on which she relied for that proposition. Whether that omission amounts to a material error of law depends on whether Grounds 3(b) and 3(c) are made out.

27. In Ground 3(b), the appellant argues that the judge erred in finding that his ability to access education, employment, healthcare and an Article 17 travel document was “fundamentally inconsistent” with his claim to be undocumented. He submits that the judge failed to engage with country evidence indicating that undocumented Bidoons with sufficient means or connections may access services through private, paid or informal routes. He further relies upon his own evidence that he paid for private education and healthcare: see section 12.3 and paragraph 12.4.1 of the CPIN.

28. Ground 3(c) similarly argues that the judge erred in treating the appellant’s possession of an Article 17 travel document as undermining his claim to be undocumented. The appellant points out that the CPIN indicates that such documents may be issued on humanitarian grounds and do not confer nationality: see section 11.4.

29. At [30]-[31], the judge referred to sections 11.1 and 12.1 of the CPIN in support of her finding that access to employment, education, healthcare and official documentation was closely linked to possession of a review card and recognised status. She found that the appellant’s level of access to education, medical treatment, particularly cancer treatment for his son, and employment, including work in IT and HR, was inconsistent with his claim to be undocumented. I do not read those paragraphs as suggesting that access to such services necessarily meant that the appellant was documented. Rather, the judge considered the extent of that access to be inconsistent with his claim. However, I accept that the judge did not engage with the appellant’s explanation that he had obtained access to those services through private payment or consider this against what is said in the CPIN.

30. At [32], the judge considered the Article 17 travel document issued to the appellant. She accepted that humanitarian circumstances may be relevant to the grant of such a document but, relying on section 11.4 of the CPIN, concluded that its issuance nevertheless required “a degree of official verification”. That observation adds little to the analysis, since the issue of an official document will necessarily involve some form of official verification. More importantly, the judge found that the appellant had failed to provide “a sufficiently detailed or coherent account of how he was able to obtain such documentation if he was wholly undocumented”. However, she did not identify any aspect of the appellant’s evidence which was lacking in detail or coherence on this point. Given that this was of central importance to his claim, she ought to have done so.

31. Considering these matters cumulatively, I am satisfied that the judge materially erred in her application of the country evidence to the facts of the case. Her failure to engage with significant aspects of the appellant’s explanation for his ability to obtain employment and access services, and his possession of an Article 17 travel document, undermines the sustainability of her overall assessment of whether he was undocumented.

Ground 4: The expert report

32. Mr Nadeem submitted that the judge was wrong to find that the expert report prepared by Mohamed Albadry Alenezi, described as the director and founder of the Kuwaiti Bidoon movement, relied heavily on the appellant’s own account. He directed me in particular to section 5 of the report, which addresses the general position of Bidoons in Kuwait.

33. The judge dealt with the report briefly at [40]:

“I have considered the expert report, dated 5 December 2024, relied upon by the appellant. However, I find that it relies heavily on the appellant’s own account and does not adequately address the significant inconsistencies identified, particularly in relation to his access to documentation and services. I attach limited weight to it.”

34. The judge’s observation that the report relied “heavily” on the appellant’s account did not, of course, amount to a finding that it was wholly dependent upon that account. However, section 4 of the report was expressly directed to the question of whether the appellant’s account of life in Kuwait was consistent with the experiences of an undocumented Bidoon. At paragraph 4.5, Mr Alenezi concluded that the appellant was “accurately able to describe the day-to-day persecution faced by him and the Bidoon community” and had explained a number of difficulties that he had experienced personally. Mr Alenezi then analysed the examples given by the appellant by reference to his own knowledge and expertise concerning the situation of undocumented Bidoons in Kuwait. It may have been open to the judge to conclude that a documented Bidoon could also possess knowledge of the difficulties faced by undocumented Bidoons and that, for that reason, the report carried limited weight. However, that is not the reasoning she gave. Instead, she attached limited weight to the report because it relied heavily on the appellant’s account, when the very purpose of section 4 was to assess that account and evaluate its consistency with the expert’s understanding of the circumstances of undocumented Bidoons. In those circumstances, I am satisfied that the judge erred in her assessment of the report.

35. As for section 5, it largely summarises the country conditions facing Bidoons in Kuwait. Given that it was not in dispute that undocumented Bidoons generally face a real risk of persecution in Kuwait (see NM), that part of the report added little of material significance to the issues the judge was required to determine.

36. Nevertheless, for the reasons set out above, I am satisfied that this ground is also made out.

Ground 5: Standard of proof

37. This ground is misconceived. The appellant’s asylum claim was made on 5 March 2023 and therefore fell to be determined in accordance with the relevant provisions of the Nationality and Borders Act 2022 (“NABA”). The judge was consequently required to assess whether the appellant’s claimed subjective fear of persecution was established on the balance of probabilities. That is precisely the approach she adopted: see [14]-[15] and [42].

38. Furthermore, claims for humanitarian protection fall outside the scope of NABA and therefore continue to be assessed by reference to the lower standard of proof. Again, that is the approach the judge took: see [16] and [43].

39. Accordingly, this ground is not made out.

Ground 6: The credibility assessment

40. This ground comprises three sub-grounds, (a) to (c). At the hearing, Mr Nadeem focused his submissions on sub-ground (a).

41. Sub-ground (a) contends that the judge erred in finding, at [27], that it was inherently inconsistent that the appellant would have been released from detention by the Kuwaiti authorities despite refusing to provide the names of those who had assisted him in contacting the media and human rights organisations in relation to his son’s case. However, I am satisfied that it was reasonably open to the judge to approach the circumstances of the appellant’s claimed release with scepticism. According to the appellant’s account, he refused to disclose those names whilst in detention, yet the authorities nevertheless agreed to release him on the understanding that he would act as an informant and provide the information at a later stage. The judge was entitled to take into account that if the appellant refused to divulge those names whilst in detention, it was unlikely the authorities believed he would disclose them on release.

42. Sub-ground (b) argues that the judge erred in attaching weight to the appellant’s failure to mention during his asylum screening interview that he had been detained for five days in Kuwait. However, the appellant’s alleged detention lay at the heart of his claim to have been persecuted by the state. In those circumstances, I am satisfied that the judge was plainly entitled, at [25]-[26], to regard his failure to mention that matter until a later stage of the asylum process as damaging to his credibility.

43. Finally, sub-ground (c) asserts that the judge erred at [28] in finding it “inherently implausible” that the appellant would have been able to leave Kuwait if he were subject to a security block. This challenge amounts to little more than a disagreement with the judge’s findings. The judge considered the appellant’s explanation of how he had been able to leave the country and found it to be vague and lacking in detail. I am satisfied that that conclusion was reasonably open to her on the evidence.

44. Accordingly, this ground is not made out.

Ground 7: Convention reason

45. At [39], the judge considered whether the appellant had a political profile in Kuwait. She recorded that he accepted that he was not politically active, although he had attended some protests. The judge therefore did not accept that he was of adverse interest to the Kuwaiti authorities on account of his political activities.

46. The appellant contends that the judge failed to take into account that his claim was not advanced on the basis of his own political activities. Rather, he claimed to have come to the attention of the authorities because of: (a) the publicity campaign concerning his son’s medical treatment; and (b) his association with FA, whose activism had been accepted by the respondent. I accept that the judge did not expressly address either matter. Viewed in isolation, that omission might not have amounted to a material error of law. However, when considered alongside the errors identified in relation to Grounds 3 and 4, I am satisfied that this ground is also made out.

Conclusion

47. For the reasons set out above, I am satisfied that Grounds 3, 4 and 7 are made out, whereas the remaining grounds are not. Given that I have upheld the judge’s findings in respect of the appellant’s claimed mistreatment by the Kuwaiti authorities, I have considered whether the errors relating to the assessment of whether he is nevertheless an undocumented Bidoon are material to the outcome. However, the guidance in NM is that undocumented Bidoons in general face a real risk of persecution or a breach of their protected rights (see headnote (3)). I am therefore satisfied that the errors of law are material to the outcome of the appeal.

Disposal

48. There is a presumption that, where an error of law is found, an appeal should be retained in the Upper Tribunal unless the proceedings before the First-tier Tribunal were affected by procedural unfairness, or the nature or extent of the fact-finding required in order to remake the decision is such that remittal is appropriate.

49. At the hearing, both parties agreed that, if an error of law were found, the appeal should be remitted to the First-tier Tribunal because of the extent of the fact-finding required. Although the appellant has succeeded on only part of his grounds of appeal, I am satisfied that to the extent that the various issues are interlinked, including the relationship to FA, it would be neither practical nor helpful to preserve some findings of fact whilst setting aside others. The more appropriate course is to set aside all findings.

50. Accordingly, having regard to paragraph 7.2 of the Practice Statements for the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal, I conclude that the appropriate course is to remit the appeal to the First-tier Tribunal to be heard afresh.

Notice of Decision

The decision of the First-tier Tribunal involved the making of a material error of law and is set aside. No findings of fact are preserved.

The appeal is remitted to the First-tier Tribunal in Birmingham for a fresh hearing before any judge other than Judge K Byrne.

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

21st October 2026