Asylum Credibility and Political Risk: Material Clarificatory Evidence Must Be Addressed

1. Introduction

This judgment establishes an important application of the duty to consider material evidence in asylum appeals: where credibility depends substantially on whether an applicant’s accounts have remained consistent, the tribunal must engage with an earlier clarification that materially supports that consistency. Referring to another passage in the same document does not necessarily demonstrate that the relevant evidence was considered.

The appellant, RM, challenged the refusal of his protection claims. His account combined a fear of honour-based violence arising from a relationship with G and a fear connected with political opposition to the authorities in the Kurdistan Region of Iraq. The First-tier Tribunal (“FTT”) rejected his credibility, and the Upper Tribunal (“UT”) upheld that decision.

The Court of Appeal allowed the two grounds pursued before it. The central error was the FTT’s failure to address significant passages in a letter clarifying RM’s screening interview. That error also undermined its assessment of his political activities and the potential consequences of return. The judgment additionally explains that fairness when departing from a concession depends on the concession’s nature and importance; it does not impose an inflexible notice requirement in every case.

2. Background and Procedural History

The protection claims and supporting evidence

RM applied for asylum in February 2021. At his screening interview, he referred to a family feud and fear for his life. Significant parts of the screening record were blank, including the section asking briefly for all reasons why he could not return.

In May 2021, his solicitors sent a clarificatory letter following an interpreter-assisted review of the screening record. The letter identified two connected reasons for leaving Iraq:

• participation in demonstrations against the Kurdish authorities, allegedly resulting in adverse official attention and loss of employment; and
• a threatened honour-based punishment after G stayed with him without her family’s permission.

The letter explained that problems with employment had prevented marriage and that his political history also prevented him from seeking protection from the authorities. Its importance lay in documenting these connected elements relatively early in the asylum process.

At his substantive asylum interview in July 2023, RM again described political demonstrations and dismissal from employment. When questioned about the breakdown of his relationship, however, he emphasised financial difficulties and differences in social standing. His January 2024 witness statement placed greater emphasis on G’s father’s opposition to his political activities as a reason for withdrawing approval of the relationship.

RM also alleged arrest and overnight detention following a demonstration in November 2018. That account conflicted with his screening answer that he had not been detained. Importantly, the May 2021 letter did not address that particular discrepancy. The Court of Appeal therefore did not treat the letter as resolving every difficulty in his evidence.

The tribunal decisions

The Secretary of State refused the protection claims in September 2023. The FTT dismissed RM’s appeal in June 2024, finding his account inconsistent and implausible. It also concluded that:

• his claimed political activities in Iraq were not credible;
• although he had attended demonstrations in the United Kingdom, he was no more than a face in a large crowd;
• his United Kingdom activities were unlikely to have come to the attention of the Kurdish authorities; and
• he could obtain the documentation required to live in Iraq.

On appeal to the UT, the Secretary of State’s Rule 24 response accepted that the FTT “appears to have overlooked” paragraph 6 of the clarificatory letter, while expressly disputing that the omission was material. The UT rejected that qualified concession and dismissed the appeal.

Although permission to appeal to the Court of Appeal covered five grounds, RM pursued only Ground Three, concerning the clarification and concession, and Ground Five, concerning political beliefs and activities.

3. Summary of the Judgment

1. Ground Three succeeded because material evidence had not been properly considered. The FTT failed to engage with passages explaining the connection between political activity, employment difficulties and the relationship. Those passages were substantially consistent with RM’s later witness statement.
2. The omission was material. Although other adverse findings remained, the Court could not conclude that every rational tribunal would necessarily have reached the same result after properly considering the letter.
3. The concession issue was not the decisive basis for allowing the appeal. The UT was entitled in principle to reject the concession. Whether advance notice was required depended on its qualified character and its significance to the issues.
4. Ground Five also succeeded. The findings about political activity rested on the unsafe credibility assessment, and the FTT had made no express findings about RM’s political motivation in the United Kingdom or likely conduct on return.
5. Reconsideration, not recognition as a refugee, was the consequence. The Court directed reconsideration by the FTT and invited written submissions on the terms of remittal.

4. Legal Reasoning

A. Reading the challenged findings in context

The Court first resolved an important disagreement about paragraph 10 of the FTT’s decision. RM argued that the paragraph referred to his screening interview. The Court held that it referred instead to the later substantive asylum interview: paragraph 9 used the abbreviation “AIR”, whereas the FTT used “SI” when discussing the screening interview elsewhere.

The Court also read paragraph 10 as addressing the reasons why G’s family opposed marriage, rather than identifying two separate inconsistencies about political involvement and dismissal from employment. These conclusions rejected important aspects of RM’s interpretation of the FTT’s reasoning. Nevertheless, the appeal succeeded because the underlying assessment still failed to address material evidence.

B. Consistency must be assessed across the relevant evidential history

The Court’s central reasoning appears at paragraphs 48–55. Credibility was fundamental to the FTT’s decision, and consistency between successive accounts was a major component of its assessment. A lawful assessment therefore required proper consideration of each material stage in RM’s account.

The clarificatory letter was significant because it already linked political activity, loss of employment and the inability to marry G. The later witness statement gave political opposition a more prominent role in G’s father’s rejection of the relationship, and some inconsistency remained. Nevertheless, the broad account had substantial continuity.

The Court did not decide that RM was truthful. Its conclusion was that a tribunal could not fairly assess the development of his account while omitting an early document that materially qualified the suggested inconsistency.

C. Reading a document is not necessarily considering its decisive contents

The Secretary of State argued that the FTT must have considered the letter because it cited another passage concerning RM’s family’s approval of punishment. The Court rejected that reasoning. The passage cited concerned a different issue and did not demonstrate engagement with the passages relevant to political activity and the relationship.

This distinction is central to the judgment. It does not require tribunals to mention every document or every page of a lengthy bundle. Rather, where a particular passage bears directly on a decisive adverse finding, the reasons must show that it has been taken into account. The size of the 1,062-page bundle did not excuse omission of a key part of the account.

D. A qualified concession does not determine the appeal

The concession accepted only that the FTT appeared to have overlooked one paragraph. It did not concede a material error of law or accept that the appeal should succeed. Both parties accepted that the UT was not bound by it.

The Court explained that the need to notify parties before departing from a concession depends on its nature and centrality. Here, the concession was narrow and expressly left materiality disputed. The decisive issue was therefore the FTT’s underlying evidential error, rather than a separate finding that the UT’s handling of the concession was procedurally unfair.

The Court also questioned the practical force of arguing that the letter had been fully discussed before the UT. Discussion on appeal did not itself cure an error in the FTT’s assessment. Conversely, if the FTT had committed no relevant error, rejection of the concession would be unlikely to establish an error of law by itself.

E. Other adverse findings did not make the error immaterial

The Court acknowledged that several credibility concerns remained unchallenged. These included aspects of the family’s conduct, the account of G remaining alive and the detention discrepancy. The FTT had also considered section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 in relation to RM’s failure to claim asylum in Belgium or France.

However, the question was not whether those matters could still justify rejecting the claim. It was whether the same result was inevitable despite the identified error. Given the importance of the alleged inconsistencies to the FTT’s overall rejection of credibility, that demanding test was not satisfied.

F. Political risk required a sound factual foundation

The political-activity ground involved two distinct questions:

• whether past activities, including demonstrations and Facebook posts in the United Kingdom, had created an existing risk of adverse attention; and
• whether RM held political beliefs that would affect his future conduct in Iraq and expose him to persecution.

The FTT had addressed the visibility of his United Kingdom activities. It had not expressly determined his current political motivation or likely future behaviour. The UT treated its rejection of his claimed Iraqi activities as sufficient to dispose of those matters.

The Court of Appeal held that the rejection of his political history was itself affected by the defective credibility assessment. Proper consideration of the early letter might have produced a different view of his activities, the genuineness of his beliefs and the risk arising from their future expression. Ground Five therefore succeeded through its connection with Ground Three.

The judgment does not establish that every unsuccessful account of past activism requires an extensive separate inquiry regardless of the findings made. Nor does it decide that genuinely held beliefs are necessary for every political-persecution claim. Its conclusion is narrower: the findings relied upon to dispose of future political risk were unsafe in this case.

5. Precedents Cited and Their Significance

A. Concessions and procedural fairness

HA v SSHD (No2) [2010] CSIH 28; 2010 SC 457

This authority supplied both sides of the fairness analysis. A tribunal is not obliged to accept a concession, but ordinarily should not decide against the party benefiting from it without indicating that it may reject it. Equally, a tribunal need not notify parties of every matter that may feature in its reasoning.

The judgment quoted Secretary of State For the Home Department v Maheshwaran through this authority for the proposition that rejecting a concession without warning will usually be unfair. The Court nevertheless treated fairness as contextual rather than automatic.

IM (Pakistan) v SSHD [2018] EWCA Civ 626

In this case, the Secretary of State had accepted an engagement agreement, but the tribunal found only preliminary marriage negotiations without warning the appellant that it might reject the concession. The resulting problem was the lost opportunity to address the issue, not an absolute prohibition on departing from concessions.

RM relied on this decision, but the present concession was narrower: it concerned an apparent evidential omission and expressly disputed materiality.

Kalidas (agreed facts - best practice) [2012] UKUT 00327 (IAC)

Quoted in IM (Pakistan) v SSHD, this decision states that judges ordinarily should not look behind factual concessions except in exceptional circumstances. If the extent or correctness of a concession needs reconsideration, representatives should have an opportunity to ask questions, produce evidence and make submissions; an adjournment may be necessary.

It explains the particular procedural protection associated with agreed facts. The Court did not apply it as a rigid rule governing every qualified concession about an alleged legal error.

MH (Appendix EU; withdrawal of concession)Albania [2025] UKUT 351 (IAC)

The Secretary of State relied on this authority’s distinction between factual concessions and concessions that would produce an error of law. The latter may admit wider scope for withdrawal.

Bahamas International Trust Co Ltd v Threadgold [1974] 1 WLR 1514 and Rauf v SSHD [2019] EWCA Civ 1276 appeared within that discussion. In particular, Rauf v SSHD distinguished an erroneous interpretation of the Immigration Rules from a factual concession. These authorities informed the submissions but did not supply the decisive ground of the Court’s decision.

Abdi v Entry Clearance Officer [2023] EWCA Civ 1455; [2024] Imm AR 2

This decision emphasises that fairness requires an overall, fact-sensitive assessment. A tribunal may identify issues or reject evidence independently, but fairness may require an opportunity to respond. There is no universal duty to preview every credibility concern, especially an obvious inconsistency that a represented applicant could reasonably anticipate.

The quoted discussion included WN v Secretary of State for the Home Department [2004] UKIAT 00213, which explains that departure from the Surendran Guidelines does not itself establish unfairness. These authorities supported the Court’s contextual approach to the qualified concession.

B. Materiality of errors of law

Osei-Bonsu v SSHD [2026] EWCA Civ 1304

This was the principal authority on materiality. Under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007, identifying an error of law does not automatically require setting aside the FTT’s decision. An immaterial error does not justify that remedy.

The relevant question is whether the result would necessarily or inevitably have been the same without the error. In Osei-Bonsu v SSHD, the tribunal had independently addressed the decisive statutory issue notwithstanding its mishandling of a concession. Here, by contrast, the omitted evidence affected the credibility assessment underlying the result.

Authorities explaining the inevitability test

The passage from Osei-Bonsu v SSHD reproduced in the judgment drew on the following authorities:

• Simplex GE (Holdings) v Secretary of State for the Environment (1988) 57 P & CR 306;
• R (Smith) v North East Derbyshire Primary Care Trust [2006] 1 WLR 3315; and
• Secretary of State for Communities and Local Government v South Gloucestershire Council [2016] EWCA Civ 74.

These supplied the common-law judicial-review analogy permitting refusal of relief where a lawful decision would inevitably have produced the same outcome. That analogy concerned the position before section 31(2A) of the Senior Courts Act 1981; the Court was not applying that provision’s judicial-review test to the tribunal appeal.

Secretary of State for the Home Department v AJ (Angola) [2014] EWCA Civ 1636 formulated the question as whether any rational tribunal must have reached the same conclusion. ASO (Iraq) v Secretary of State for the Home Department [2023] EWCA Civ 1282; [2024] Imm AR 145 applied that approach in an asylum appeal.

Jafri v Lincoln College [2014] EWCA Civ 449; [2015] QB 781 provided an employment-law parallel: where an appellate tribunal detects legal error, remittal is required unless, relevantly, the error cannot have affected the result. Together, these authorities prevent an appellate tribunal from preserving a decision merely because it considers the same outcome probable.

C. Political expression, concealment and overseas activities

HJ (Iran) v SSHD [2010] UKSC 31; [2011] 1 AC 596

This decision rejects requiring a person to conceal sexual orientation to avoid persecution and requires an individual, forward-looking assessment of conduct on return. RM relied on its emphasis on what an applicant would actually do and how others would respond, rather than considering past events alone.

RT (Zimbabwe) v SSHD [2012] UKSC 38; [2013] 1 AC 152

This authority extended the relevant principle to political beliefs: a person cannot be required to conceal them to avoid persecution. It supported the need to assess the consequences of future political expression.

The parties also disputed its implications where beliefs are not genuinely held and where a state demands affirmative loyalty. The Court did not resolve that wider dispute; it allowed the ground because the credibility findings underlying the assessment were unsafe.

XX (PJAK - sur place activities Facebook) v SSHD [2022] UKUT 23 (IAC)

This decision permits a fact-sensitive inquiry into what a returnee would do with a contrived Facebook account or fabricated protection claim. Relevant matters may include past destruction of material, dealings with officials, predictable questioning and the likelihood of discovery before deletion.

It illustrated the need to examine likely future conduct rather than make assumptions about an online account. RM’s stated refusal to delete his account was relevant to that inquiry, although its evidential weight remained for lawful determination.

BA (Demonstrators in Britain - risk on return) Iran CG [2011] UKUT 36 (IAC)

The FTT used this authority’s factors concerning an individual’s role in demonstrations to assess the visibility of RM’s United Kingdom activities. It considered his lack of an organising role and the absence of evidence of media publicity.

Those factors addressed exposure through past demonstrations, not the distinct question of future expression in Iraq. The judgment did not treat country guidance concerning Iran as establishing the factual position in Iraqi Kurdistan.

Danian [1999] EWCA Civ 3000

The UT cited this authority when endorsing the proposition that motivation does not determine whether overseas political activities create an actual risk of persecution. Activities undertaken to strengthen an asylum claim may still generate danger through the authorities’ perception of them.

The necessary distinction is that motivation may nevertheless matter when predicting future conduct. Whether an applicant is genuinely committed can affect what they are likely to say or do after return, even though sincerity is not a prerequisite to every risk arising from attributed political opposition.

6. Impact and Practical Significance

For credibility assessments

The judgment cautions against comparing isolated answers without reconstructing the relevant sequence of accounts. Early corrections or clarifications may materially change whether later evidence represents a new allegation, an elaboration or a genuine contradiction.

Its reach remains limited to material evidence. It creates neither a presumption that a clarification is true nor a requirement to catalogue an entire bundle. The essential requirement is demonstrable engagement with evidence that bears directly on a decisive finding.

For appellate review

Remaining adverse findings do not automatically neutralise a credibility error. Where the flawed finding contributes substantially to an overall assessment, the appellate body must apply the inevitability test rather than speculate that the claim would probably fail anyway.

For concessions

Parties and tribunals should identify exactly what has been conceded: a fact, an apparent omission, a legal error, materiality or the outcome. A concession on one does not necessarily concede the others. The procedural protections required before departure depend on that distinction and the concession’s importance.

For political-risk claims

The judgment distinguishes visibility from conviction and future conduct. An applicant may have had a limited public profile abroad yet hold beliefs relevant to behaviour after return. Conversely, a lack of sincere motivation does not eliminate a risk created by the authorities’ perception of previous activities.

The Court made no final finding that RM held genuine political beliefs, that his activities were known to the authorities or that he faced persecution. Those matters required reconsideration. The precise treatment of existing findings remained subject to the terms of remittal.

7. Complex Concepts Simplified

Credibility

Whether an account should be believed. It requires assessment of the evidence as a whole; an inconsistency must be understood in its proper context.

Material consideration

Evidence or an issue important enough to bear on the decision. Here, the early letter directly affected whether later accounts were inconsistent.

Concession

A point accepted by a party. Accepting an apparent omission does not necessarily accept that it changed the result.

Material error of law

A legal mistake capable of affecting the outcome. The existence of other reasons supporting the decision does not necessarily make the mistake harmless.

Sur place activity

Activity undertaken outside the country of origin that may create or increase a protection risk, such as demonstrations or political social-media posts.

Imputed political opinion

A political view attributed to someone by potential persecutors, whether or not that person actually holds it.

Forward-looking assessment

An assessment of what is likely to happen after return, including the applicant’s conduct and others’ reactions.

Remittal

Returning the case to a lower tribunal for reconsideration. It does not itself mean that the protection claim succeeds.

8. Conclusion

The central lesson of RM v Secretary of State for the Home Department is that a credibility assessment cannot safely rest on alleged inconsistency without addressing material clarification already present in the evidential record. Where that assessment also underpins findings about political beliefs and future behaviour, the error may affect the entire political-risk analysis.

The appeal succeeded on both grounds pursued, but the Court did not determine the protection claim. Its significance lies in requiring reasoned engagement with decisive evidence, contextual treatment of concessions and disciplined application of the demanding test for treating an error as immaterial.