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United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments


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URL: http://www.bailii.org/uk/cases/UKAITUR/2025/UI2025000345.html
Cite as: [2025] UKAITUR UI2025000345

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IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2025-000345

First-tier Tribunal No: PA/62278/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 22 nd of May 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE Ó CEALLAIGH KC

 

Between

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

AO

(ANONYMITY ORDER MADE)

Respondent

Representation :

For the Appellant: Nicholas Wain, Senior Presenting Officer

For the Respondent: Danny Bazini, counsel instructed by Elias Yaman & Co. Law Limited

 

Heard at Field House on 25 April 2025

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity because he is an asylum seeker.

 

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

 

Introduction

 

1.              The Secretary of State appeals with permission against the decision of First-tier Tribunal Judge Scott Baker, who allowed the appellant's appeal against her decision to refuse his protection claim. In order to avoid confusion, I will refer to the parties as they appeared below. Accordingly, while the Secretary of State is formally the appellant in this appeal, I shall refer to her as "the respondent" and to Mr AO as "the appellant".

 

2.              The appellant is a citizen of Turkey born on 9 November 2000. He is an Alevi Kurd.

 

3.              On 10 November 2023 the respondent made a decision to refuse the appellant international protection. He appealed.

 

4.              On 18 November 2024 the appellant's appeal was allowed by First-tier Tribunal Judge Scott Baker. The appellant was treated as a vulnerable witness [18]. Both the appellant and his uncle gave oral evidence, which is significant for reasons set out further below.

 

5.              On 21 November 2024 the respondent applied to the First-tier Tribunal for permission to appeal.

 

6.              On 16 January 2025 permission to appeal was refused by First-tier Tribunal Judge Clarke.

 

7.              The respondent renewed the application to the Upper Tribunal.

 

8.              On 20 February 2025 Upper Tribunal Judge Rastogi granted permission to appeal.

 

Grounds of appeal

 

9.              The respondent's grounds of appeal to the Upper Tribunal somewhat unhelpfully cross-refer to submissions made in the First-tier Tribunal grounds. Grounds of appeal to this tribunal should be in the form of a single document. The grounds may nevertheless be summarised, taken from both documents, as follows:

 

    1. Ground 1: The FTTJ erred in reaching conclusions on the appellant's mental health that were not open to her as there was " no disclosure within the records nor opinion offered by the GP that would support the FTTJ's conclusion". Moreover, while the FTTJ had acknowledged the many discrepancies in the appellant's evidence, there was no evidence that she had taken these into account in the round when assessing credibility. The FTTJ " appears to simply attribute them to the [appellant's] memory problems" which is impermissible due to the lack of medical evidence.

 

    1. Ground 2: The FTTJ erred in reaching conclusions based on " presumption and supposition". In particular the respondent relies on the findings at [55(a)] that the appellant may be a member of the HDP; the finding at [55(c)] that the appellant would be viewed by the Turkish authorities as an activist despite himself claiming not to be; the finding at [55(d)] that the appellant was likely detained at Newroz 2021 despite inconsistencies relied on by the respondent; the finding at [55(f)] that the appellant's family could have been involved with the HDP or PKK " despite there being no disclosure by the appellant in this regard"; the finding at [55(g)] that the appellant remained in hiding for weeks or months following the second incident and did not return home before leaving Turkey " despite the appellant's evidence being that he was last arrested in 2020 and would therefore have stayed in Turkey for two years following this event". The respondent asserts that there was " no evidential basis" for these findings.

 

    1. Ground 3: The FTTJ erred in failing to assess the appellant's credibility in light of the whole of the evidence before her. The respondent submits that the appellant's lack of involvement in activism in the United Kingdom " must be indicative" that his activism in Turkey is " potentially manufactured".

 

    1. Ground 4: The FTTJ erred in failing to consider that the appellant may have been simply seeking to avoid legitimate prosecution rather than persecution on political grounds given his disclosure that he was arrested having been involved in activities where the Turkish authorities had a legitimate right to detain him and investigate those events.

 

10.          While it is clear that the primary basis on which permission was granted was Ground 1, the UTJ did not limit the grant of permission and accordingly I consider all four grounds. Granting permission she said this:

 

"The judge's decision is detailed and thorough. Credibility assessments are generally best carried out by the judge hearing the evidence. However, it is arguable that in assessing the acknowledged inconsistencies in the appellant's evidence, the judge fell into error by attributing those inconsistencies, in part at least, to the appellant's mental health and impact upon him of past trauma without an evidential foundation to do so."

 

11.          The UTJ also noted:

 

"The respondent is reminded that materiality would still need to be addressed given some of the unchallenged evidence (for example of his uncle)."

 

The hearing

 

12.          The appellant and the respondent were ably represented by Mr Bazini and Mr Wain respectively.

 

13.          In submissions Mr Wain focussed to a significant degree on Ground 1 which he submitted fed into the remainder of the grounds. He noted that although the FTTJ had the GP records before her [18], and although it was accepted that the appellant could be treated as a vulnerable witness, there was no evidence of a psychiatric evaluation by an expert. He accepted that the FTTJ was entitled to reach her own conclusion on the appellant's credibility. Nevertheless, he submitted that the FTTJ was not entitled to dismiss the discrepancies in the appellant's account, relied on by the respondent, on the basis of her own view of his vulnerability. His submission was that the FTTJ could only have found that those discrepancies could be explained by the appellant's vulnerability with expert psychiatric evidence to support that position.

 

14.          I asked Mr Wain whether there was any authority in support of the proposition that a First-tier Tribunal Judge could not conclude that discrepancies in a factual account might be the result of traumatic experiences without expert medical evidence. He relied on JL (medical reports-credibility) China [2013] UKUT 145 (IAC) though he accepted it was not directly on point. Mr Wain also relied on Joint Presidential Guidance Note No 2 of 2010: Child, vulnerable adult and sensitive appellant guidance, and in particular [15], and suggested that the FTT had erred in not following that guidance. In his submission, the FTTJ's conclusion at [40] that "the appellant is still suffering some trauma from his experience in Turkey" was inadequate for the purposes of the 2010 Guidance.

 

15.          In respect of Ground 2, Mr Wain relies on the fact that in respect of the finding at [55(a)] (that the appellant "is a supporter of HDP who has been protesting on the streets and involved in demonstrations" and "may be a member" of that organisation) the FTTJ makes no specific reference to the discrepancies in his account relied upon by the respondent. He made the same submission in respect of the findings at [55(d)] (that the appellant's father paid a bribe to secure his release on two occasions) and [55(f)] (that although there was no disclosure that his family had been involved in the PKK or HDP this could not be discounted).

 

16.          On Ground 3, Mr Wain submitted that the First-tier Tribunal Judge should have held against the appellant when assessing the credibility of his account of political involvement in Turkey the fact that he had not been involved in such activity in the United Kingdom. I put to him that I had been somewhat surprised by this Ground given the photographs of the appellant apparently engaged in political activity in the United Kingdom in the bundle, and he accepted that this evidence had been before the FTT. He maintained however that it was the respondent's case that the appellant had not been involved in such activity, and that this should have been held against him when considering both the credibility of his activity in Turkey and the likelihood of his engaging in such activity if removed. He accepted that this did not appear to have been a point taken against the appellant in the First-tier Tribunal.

 

17.          In respect of Ground 4 Mr Wain again sensibly accepted that the arguments made therein were not made to the First-tier Tribunal. Nevertheless, in reliance on SA v Secretary of State for the Home Department [2025] EWCA Civ 357 at [45], he submitted that these were " Robinson obvious" points that should have been taken by the FTT itself.

 

18.          I asked Mr Wain for his position on the evidence of the appellant's uncle. As noted by the UTJ granting permission, that evidence was unchallenged at the hearing (and unchallenged in the respondent's review prior to the hearing [30]) and was accepted by the FTTJ [55(a)]. Leaving aside the appellant's credibility entirely, the appellant's uncle gives evidence of having been present at a raid of the appellant's house by the police searching for the appellant (and having witnessed their assault on the appellant's father). There has been no challenge to that evidence before me. Mr Wain submitted however that this was "limited information" that was unrelated to the events described by the appellant, and was not significant information which might undermine the respondent's case that the appellant was not at risk.

 

19.          Mr Bazini for the appellant noted that even the UTJ granting the renewed application for permission to appeal had referred to the fact that the determination was thorough, detailed and considered. He maintained that it contained no error of law.

 

20.          In respect of Ground 1, he submitted that what the FTTJ had done was what was required by Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449: she had considered all of the evidence in the round. What the respondent was undertaking was in effect a reasons challenge.

 

21.          Mr Bazini noted that there was no authority that supported the proposition that a First-tier Tribunal Judge could not reach conclusions on whether discrepancies in a factual account might be the result of traumatic experiences absent expert medical evidence. He submitted that an FTTJ who sees a person give evidence, in particular a person who is visibly distressed when giving an account of torture, is entitled to accept that factual account if they believe it. It must follow that a Judge is entitled, having accepted such an account, to decide that a person's traumatic history goes towards explaining inconsistencies in their factual account.

 

22.          Mr Bazini stated that there was no submission by the Presenting Officer at the hearing that the appellant's account should be disbelieved. I put to him that this is not apparent on the face of the determination, and in the absence of evidence being provided on the point is not a matter that I can take into consideration (though I note that it is at least consistent with the FTTJ's recording at [26] that "no strong reliance was placed on [the] inconsistencies" in closing submissions).

 

23.          In respect of Ground 2, Mr Bazini pointed out that the discrepancy in respect of dates relied on as vitiating the findings at [55(g)], although a point not relied on at the hearing by Mr Wain, was inconsistent with the finding at [42] that the appellant had in fact been detained and tortured in November 2021.

 

24.          On Ground 3 Mr Bazini submitted that even taking the case that the appellant was not still involved in politics at its highest that was of no assistance to the respondent's case. He was not involved in the same way. However: (i) the FTTJ had expressly taken this into account at [55(m)] when applying the guidance in IA (Risk- Guidelines Separatist) Turkey CG [2003] UKIAT 00034; and in any event (ii) this was not a point that the respondent had actually taken at the FTT. Even if the FTTJ had not referred to this particular submission, which in any event she had in terms, a determination need not deal with every point.

 

25.          On Ground 4 Mr Bazini submitted that whether the appellant's experiences had followed criminal activity missed the point - it was clearly racially motivated ill-treatment. Moreover, some of the ill-treatment accepted by the FTTJ had not followed any kind of criminal activity (such as following the student protests - [42]). He disputed that this argument could in any event be described as a " Robinson obvious" error. He relied on AZ (error of law: jurisdiction; PTA practice) [2018] UKUT 245 (IAC) where it was noted that a " Robinson obvious" point had to have strong prospects of success.

 

26.          In respect of materiality, Mr Bazini relied on the FTTJ's acceptance of the appellant's uncle's evidence. He had produced a statement and given oral evidence [16]. He had been challenged on neither and both had been accepted by the FTT. The finding that there is ongoing interest from the Turkish authorities in the appellant is based squarely on the appellant's uncle's unchallenged evidence [52-53]. The conclusion that the appellant is "known to the authorities as a HDP activist" is likewise based squarely on the unchallenged evidence of the appellant's uncle [55(a)]. In the circumstances, even if any of Grounds 1-4 were made out, on the evidence of the appellant's uncle any error was immaterial.

 

27.          In reply Mr Wain pointed out that even if it were correct that the inconsistencies in the appellant's account had not been pressed in submissions, there had been no formal concession. The discrepancies were in the refusal letter which had expressly been relied on. He accepted that the FTTJ had referred to the discrepancies in terms, but said that they had not been "assessed". He submitted that the evidence of sur place activity was limited, and maintained that the FTTJ should have found that the lack of such activity counted against his claim. He accepted that Ground 4 could only succeed if the point was a strong one, but maintained that it was. I asked him if it was his position that the " Robinson" doctrine extended to the respondent raising a point that had not been made either in the refusal letter or in the review decision or in the First-tier for the first time at the level of the Upper Tribunal. He said that it did.

 

Decision and reasons

 

28.          Notwithstanding the forceful and nuanced submissions of Mr Wain, in my view it is clear that the determination of the First-tier Tribunal Judge does not contain an error of law, and in any event that given the unchallenged evidence of the appellant's uncle any such error would not have been material.

 

29.          I deal firstly with Ground 1. The picture that emerges from the determination is of considerably more evidence having been given at the hearing than was available on the papers in advance.

 

30.          The FTTJ notes [18] that one of the reasons the appellant was treated as a vulnerable witness was that "there was evidence which he had not disclosed before and he became distressed talking about it". The FTTJ gave more detail at [24] where she referred to the appellant's evidence that "there were things which had happened to him and which he had not disclosed to anyone". She recorded that "the appellant ha[d] not successfully set out all evidence upon which he wishes to rely prior to [the FTT] hearing", but upon questioning at the hearing "added to his evidence with further detail" [23].

 

31.          She notes that this new evidence "was considered carefully at the hearing and [the Presenting Officer] was given time to cross examine" on it [18]. There was no objection from either party to this course of action [26]. In her view, having heard from him at length (and I understand from Mr Bazini having cleared the court to do so, though this is not recorded), it was "evident that the appellant was in need of some counselling or psychological help" [26]. She noted that he was "clearly reluctant to talk about his past" and indeed she was ultimately not satisfied, despite the additional questioning at the hearing, that she had been told the full extent of the abuse that he had suffered [36]. Clearly, having heard the appellant give evidence at length, she believed him.

32.           In HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22 Lord Hamblen held at [72]:

 

"It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. In particular:

 

(i)             They alone are the judges of the facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. It is probable that in understanding and applying the law in their specialised field the tribunal will have got it right. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently - see AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 678 per Baroness Hale of Richmond at para 30.

 

(ii)           Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account - see MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49; [2011] 2 All ER 65 at para 45 per Sir John Dyson.

 

(iii)        When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out - see R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19; [2013] 2 AC 48 at para 25 per Lord Hope."

 

33.          The First-tier Tribunal Judge quite clearly recorded all of the concerns about the appellant's credibility arising from his discrepant account between [2] and [12]. There can be no suggestion that she left those issues out of account; indeed there is none. Having heard him give evidence the conclusion of the Judge was nevertheless that "little is to be gained from a detailed analysis of the evidence and inconsistencies" [26]. She noted in terms that "the appellant is confused and he has been inconsistent on dates" but held not only that she accepted his account but that he was still suffering from trauma as a result of his experiences [40].

34.          Ultimately, it is this latter finding that the respondent challenges. The respondent says that the FTTJ was not entitled to dismiss the discrepancies relied on in the refusal letter (if not apparently pursued with vigour by the Presenting Officer who heard the appellant give evidence) on the basis of her own assessment that he was still suffering from trauma, absent psychiatric evidence supporting that conclusion.

 

35.          Credibility is quintessentially a matter for the fact-finding Tribunal. In my view the FTTJ was entitled to decide that the appellant was credible in respect of his core account, and entitled to find that a reason for the discrepancies in his account was the trauma those experiences had caused him. I fully accept that had the FTTJ purported to make a diagnosis that would have been outside of her expertise. However that is not what she did. She heard the appellant give evidence in respect of very traumatic events, and having witnessed his evidence and the manner in which he gave it concluded that he was still suffering as a result them. It is not and cannot be outside the expertise of a Judge who hears a person recount their experience of horrific events to conclude that those events are still affecting them. The fact that there was no psychiatric evidence before the FTT makes no difference.

 

36.          It was the FTTJ's view that the appellant was in need of some kind of psychological support or help on the basis of his evidence before her. She did not purport to diagnose him: she only reached the conclusion that some kind of diagnosis might be required based on what she heard. It does not require a doctor to say that a person appears to be in need of medical attention. In any event, the fact that she considered such support was required having heard him is quite separate from her conclusion that his vulnerability is an explanation for the inconsistencies in his evidence.

 

37.          Mr Wain relied on the Presidential Guidance in respect of vulnerable witnesses. He relied in particular on the following sections:

 

"14. Consider the evidence, allowing for possible different degrees of understanding by witnesses and appellant compared to those are not vulnerable, in the context of evidence from others associated with the appellant and the background evidence before you. Where there were clear discrepancies in the oral evidence, consider the extent to which the age, vulnerability or sensitivity of the witness was an element of that discrepancy or lack of clarity.

 

15. The decision should record whether the Tribunal has concluded the appellant (or a witness) is a child, vulnerable or sensitive, the effect the Tribunal considered the identified vulnerability had in assessing the evidence before it and thus whether the Tribunal was satisfied whether the appellant had established his or her case to the relevant standard of proof. In asylum appeals, weight should be given to objective indications of risk rather than necessarily to a state of mind."

 

38.          The guidance also provides however at [3]:

 

"It is a matter for you to determine the extent of an identified vulnerability, the effect on the quality of the evidence and the weight to be placed on such vulnerability in assessing the evidence before you, taking into account the evidence as a whole."

 

39.          In my view the FTTJ followed this guidance to the letter. There was no dispute that the appellant was a vulnerable witness. Having heard his evidence, she considered the extent to which his vulnerability could account for the discrepancies in his case. It is unarguably clear that she set out the effect that his vulnerability had on her assessment of the evidence before her. Moreover, she clearly gave weight to the evidence of his uncle which was unaffected by those inconsistencies and provided corroboration.

 

40.          The FTTJ considered all of the evidence in the round, including the discrepancies relied on by the respondent, and accepted that the appellant's account was credible. She was entitled to do so.

 

41.          Ground 2 asserts that the FTT's findings are based on "presumption and supposition". I do not agree. This ground is in substance a disagreement with numerous individual aspects of the FTTJ's findings at [55]. They are parasitic on Ground 1 to the extent that each complaint (only three of the five were actually pursued before me, though I will address them all) refers to a conclusion of the FTT that the author of the grounds does not agree with, generally on the basis of a point taken in the refusal letter. It cannot be alleged that these matters were not taken into account by the FTTJ, and indeed it is not so alleged. Each discrepancy was referred to by the FTTJ at least once (and most of them twice). She clearly had them in mind. The complaint in reality on each of these points is that the FTT did not find in the respondent's favour on them. That is not an error of law.

 

42.          In respect of the complaint about [55(a)] (that the appellant may be involved in the HDP when he said in his screening interview he was not politically active) the respondent fails to engage with the fact that this finding is based at least partly on the evidence of the appellant's uncle which was unchallenged. Moreover, as explained above, the FTTJ heard considerable evidence at the hearing on this point and accepted it, despite the screening interview, as she was entitled to. The issue taken in respect of [55(c)] (whether the Turkish authorities would consider the appellant an activist when he had previously said he was not) fails to take into account that the appellant does in fact claim to be an activist, and indeed has now been found to be one. The complaint in respect of [55(d)] is with respect difficult to follow, but appears to be that the FTTJ should not have found that the appellant was detained at Newroz 2021 because he was previously inconsistent on the point: that is entirely parasitic on Ground 1 and so fails. Insofar as it is said in respect of [55(f)] that the FTTJ could not properly have found that the appellant's family "may" have been involved with the PKK or the HDP, that is a matter which the FTTJ was required to consider applying the IA (Risk- Guidelines Separatist) Turkey CG [2003] UKIAT 00034 guidelines and she goes no further than finding that in the absence of any evidence either way this cannot be discounted. Plainly, that is a conclusion that was open to her (indeed it is hard to see how any other decision could have been reached). As Mr Bazini points out, the complaint that the FTT should have considered that the appellant was able to remain in hiding from the middle of 2020 [55(g)] disregards the FTT's findings at [42] that the latest incident was in fact in November 2021.

 

43.          The author of the grounds considers that there was "no evidential basis" for the FTTJ finding as she did on these issues. In my view the reality is that this was a cautious and detailed determination in which every finding was made on the basis of evidence before the Tribunal.

 

44.          I do not accept that Ground 3 is made out. First, as Mr Wain fairly accepted, there was at least some evidence that the appellant had been involved in some political activity in the United Kingdom, albeit not sufficient for the FTTJ to find that he could be described as currently politically active. Second, it is quite clear that the FTTJ specifically took account of his current level of political involvement when applying the test in IA (Risk-Guidelines Separatist) Turkey CG [2003] UKIAT 00034 at [55(n)]. Plainly, this was an issue of which she was aware and which she considered. Even if she had not expressly said so, that would not necessarily indicate an error: it is trite that a Judge need not refer to every point made in a case (see e.g. MA(Somalia)). Third, it is not necessarily the case that a lack of political involvement in the United Kingdom does undermine a case to have been politically active overseas: that will depend on the facts and cannot simply be assumed. Fourth, and critically, this is not so much a ground of appeal as a new argument was not raised either at the hearing or in the refusal letter or in the respondent's review. I do not consider that it can properly be raised at this stage. Certainly, the failure to address an unmade submission cannot be an error of law. The respondent does not suggest that the point was Robinson obvious.

 

45.          The respondent accepts that Ground 4 too relates to a matter not raised in the refusal letter, the respondent's review or indeed at the hearing. The respondent does assert however that it is " Robinson obvious". While it is right as Mr Wain submits that the Robinson doctrine extends to errors made to the disbenefit of the Secretary of State where the result would be that the United Kingdom would otherwise be placed in breach of its international obligations, there are two important points to make. First, that does not amount to carte blanche for either party to invent new arguments at the level of the Upper Tribunal after a decision has been made, appealed, reviewed and decided upon by the First-tier Tribunal. Second, the threshold for finding that a point is Robinson obvious is a high one.

 

46.          In R v Secretary of State for the Home Department ex parte Robinson [1998] QB 929, the Court of Appeal held as follows:

 

"39. Because the rules place an onus on the asylum-seeker to state his grounds of appeal, we consider that it would be wrong to say that merely arguability should be the criterion to be applied for the grant of leave in such circumstances. A higher hurdle is required. The appellate authorities should of course focus primarily on the arguments adduced before them, whether these are to be found in the oral argument before the special adjudicator or, so far as the Tribunal is concerned, in the written grounds of appeal on which leave to appeal is sought. They are not required to engage in a search for new points. If there is readily discernible an obvious point of Convention law which favours the applicant although he has not taken it, then the special adjudicator should apply it in his favour, but he should feel under no obligation to prolong the hearing by asking the parties for submissions on points which they have not taken but which could be properly categorised as merely "arguable" as opposed to "obvious". Similarly, if when the Tribunal reads the Special Adjudicator's decision there is an obvious point of Convention law favourable to the asylum-seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so, there will be a danger that this country will be in breach of its obligations under the Convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do. It follows that leave to apply for judicial review of a refusal by the Tribunal to grant leave to appeal should be granted if the judge is of the opinion that it is properly arguable that a point not raised in the Grounds of Appeal to the Tribunal had a strong prospect of success if leave to appeal were to be granted."

 

47.          In AZ (error of law: jurisdiction; PTA practice) [2018] UKUT 245 (IAC) the Upper Tribunal held as follows (headnote):

 

"(3) Permission to appeal to the Upper Tribunal should be granted on a ground that was not advanced by an applicant for permission, only if:

 

(a) the judge is satisfied that the ground he or she has identified is one which has a strong prospect of success:

 

(i) for the original appellant; or

 

(ii) for the Secretary of State, where the ground relates to a decision which, if undisturbed, would breach the United Kingdom's international Treaty obligations; or

 

(b) (possibly) the ground relates to an issue of general importance, which the Upper Tribunal needs to address."

 

48.          In Bulale v Secretary of State for the Home Department [2008] EWCA Civ 806 the Court of Appeal was prepared to consider an argument that was made for the first time in that venue, despite its never having been raised before the Asylum and Immigration Tribunal (as it was then). This was because the point was apparent to the Court on the papers and also one of "general importance" [24]. Buxton LJ emphasised that "that gives no general licence to the parties to reformulate their case once it arrives in this court".

 

49.          I do not consider that either the threshold in Robinson or the threshold in Bulale, which appears more apposite, is met here.

 

50.          First, again this is not truly a ground of appeal at all but a different way in which the Secretary of State could have previously put her case but did not. It was never suggested before these grounds of appeal were drafted that the response of the police to the appellant's actions could properly be characterised as "prosecution" rather than "persecution". It is not clear to me that the Robinson doctrine extends to the reformulation of a factual case after it has failed. There is no obvious point of Convention law here. Second, and in any event, I do not consider that this ground or argument has merit. It is quite clear on the appellant's case that his treatment was motivated by racism. There are clear findings of fact that he was subjected to inhuman and degrading treatment by police officers for reasons of race (at e.g. [55(b)]). Even if that were in the context of a lawful prosecution it would still amount to persecution. Third, while the respondent refers to police interest arising in the appellant following two incidents that might properly be described as having a criminal element, there are several incidents where the appellant described serious ill-treatment, accepted by the FTT, which did not have such an element [42]. Fourth, one of the two incidents relied on to make this new submission was one in which the appellant was pushed through a window causing serious injury [27], before being abused by his headteacher and then stripped naked and photographed by the police [30] before being released. It is hard to see how this could properly be characterised as "prosecution" rather than "persecution". It is not suggested that any charges, or indeed that any prosecution, legitimate or otherwise, was ever contemplated.

 

51.          It follows that notwithstanding the compelling submissions of Mr Wain none of the grounds are made out.

 

52.          In any event, as noted by the UTJ granting permission (see [11] above), it was very much for the respondent to establish at the hearing that any of the grounds, had they been made out, would have disclosed a material error. The appellant's uncle gave evidence [16] that was not challenged by the respondent [35] and was then accepted by the FTTJ [52]. Neither that evidence nor the findings that resulted from it were the subject of challenge before me. On the basis of those findings, the appellant is known to the authorities as a HDP activist [55(a)], and he continues to be of interest to them. I do not accept the submission that the impact of this evidence can be described as "limited" or as not going to the core of the case. Those findings were sufficient to give rise, with the FTT's other unchallenged findings, to a risk of persecution. It follows that had any of the grounds been made out, there would not in any event have been a material error.

 

53.          In the circumstances, the Secretary of State's appeal must be dismissed.

Notice of Decision

 

The decision of First-tier Tribunal Judge Scott Baker of 18 November 2024 did not involve the making of a material error of law. I therefore uphold that decision. The Secretary of State's appeal is dismissed with the consequence that the decision of Judge Scott Baker allowing the appellant's appeal against the Secretary of State's decision to refuse his protection and human rights claim stands.

 

 

Greg Ó Ceallaigh KC

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

16 May 2025

 

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