Court of Appeal (Civil Division) — Anonymised Summary

Factual and Procedural Background

The Appellant, a national of Syria ("Appellant"), arrived in the UK in February 2014, claimed asylum and was granted refugee status in May 2014. In September 2017 the Appellant pleaded guilty at Crown Court to two offences related to dissemination and encouragement of terrorism via social media and received concurrent custodial sentences of two years. In October 2021 the Respondent issued a notification of intention to revoke refugee status; on 8 December 2022 the Respondent revoked the Appellant's refugee status under section 72 of the Nationality, Immigration and Asylum Act 2002 (NIAA 2002) on the basis that the Appellant had been convicted of a "particularly serious crime" and was "a danger to the community of the UK".

The Appellant appealed to the First-tier Tribunal ("FTT"), which allowed the appeal on 9 July 2024, finding the Appellant had rebutted the presumption that he constituted a danger to the community (the second s72 presumption) but had not rebutted the presumption that he had committed a particularly serious crime (the first s72 presumption). The Respondent appealed to the Upper Tribunal ("UT"), which dismissed the appeal on 17 March 2025. Permission to appeal to the Court of Appeal was granted on 15 December 2025. The Court of Appeal (three-judge panel) heard the matter and delivered a judgment allowing the Respondent's appeal and remitting the case to the FTT for redetermination.

Legal Issues Presented

1. Whether the FTT erred in law in its application of section 72(2) and (6) NIAA 2002, in particular by treating mitigating factors as principally relevant only to the second presumption and by failing to give proper effect to findings made when considering the first presumption.
2. Whether the FTT failed to take into account or resolve material considerations relevant to whether the Appellant "constitutes a danger to the community of the United Kingdom" under Article 33(2) of the Refugee Convention and section 72, such that its decision on the second presumption was legally flawed.

Arguments of the Parties

Respondent's Arguments (as advanced by Attorney Tabori)

• The UT failed to recognise errors of law by the FTT in applying s72(2) and (6) NIAA 2002 and in disregarding relevant considerations.
• The FTT treated mitigating features as principally relevant only at the second-presumption stage contrary to EN (Serbia) v SSHD, and thereby misapplied the statutory framework.
• The FTT failed to explain why findings in the Judgment's Sentencing Remarks (JSR) — including intentionality and a mindset supportive of Islamic State — did not persist or remain relevant when assessing current dangerousness.
• The FTT gave undue weight to selected evidence (e.g. a policing contact response and expert reports) while failing to address objective bases and limitations of those materials.
• Legal submission: in assessing "danger to the community" the court must be attentive to the real risk threshold (Brown v Government of Rwanda) and, in terrorism cases, even a relatively low likelihood of further serious offending may be sufficient given potential harm (KD).

Appellant's Arguments (as advanced by Attorney Bandegani)

• Mitigating factors may be relevant to both whether the crime was particularly serious and whether the person currently poses a danger; the FTT was entitled to distinguish factors relevant to the first presumption from those relevant to the second.
• The FTT properly assessed evidence in the round and was not required to refer to every item of evidence; any omission to mention a particular matter does not show it was overlooked.
• The Secretary of State's criticisms effectively invite the appellate court to re-evaluate factual findings and to "island-hop" through the evidence, which is impermissible absent perversity or an identifiable legal error.
• There was no legal requirement to conclude that a person convicted of a particularly serious crime must necessarily still be dangerous; lapse of time and subsequent conduct may be relevant to rebut the second presumption.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
EN (Serbia) v SSHD [2009] EWCA Civ 630	Guidance on matters to be considered regarding whether an appellant has committed a particularly serious crime and approach to mitigating factors and danger to the community.	The FTT referred to EN (Serbia) when addressing the first presumption; the Court of Appeal considered EN (Serbia) central to the Secretary of State's submission that mitigating factors could not be treated only at the second-presumption stage.
Brown v Government of Rwanda [2009] EWHC 770 (Admin)	Definition of "real risk" as substantial and not merely fanciful; may be established by less than proof on the balance of probabilities.	The court relied on Brown for the correct threshold when assessing whether a danger to the community exists (i.e. the "real risk" standard).
KD v Secretary of State for the Home Department [2026] EWCA Civ 349	Assessment of danger involves nature of the crime, likelihood of further serious offending, and level of harm; low probability may still be real in context of serious harm.	The court treated KD as relevant but of limited assistance on the facts; accepted the general proposition that in terrorism cases even a low risk of serious harm can be decisive.
Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201	Limits on the UT's jurisdiction (errors of law only) and principles advising restraint when reviewing FTT factual findings and reasons.	Cited to underline the need for appellate restraint and that UT/appeal courts should not readily infer legal error from absence of express mention of every piece of evidence.
Volpi v Volpi [2022] EWCA Civ 464	Appellate courts should not subject judgments to overly textual analysis; presume the fact-finder took the whole of the evidence into account unless compelling reason otherwise.	Cited to support the principle that omission to cite particular evidence does not necessarily mean it was overlooked.
AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49	Principle that appellate tribunal should not find error of law simply because it might have reached a different factual conclusion.	Referred to via Ullah as authority supporting judicial restraint in appellate review of FTT findings.
MA (Pakistan) (permission decision)	Illustrated correct approach to risk assessment as referenced in KD.	Referential use in discussion of KD; no independent application beyond that context in this judgment.
EM (Serbia)	This citation appears in the judgment in the context of authorities referred to in KD.	Used referentially; the Court did not base a fresh principle on EM (Serbia) beyond its mention in the authorities considered.

Court's Reasoning and Analysis

The Court began by emphasising the limited scope of appellate review and the specialist fact-finding role of the FTT, citing authorities urging restraint. Many of the Respondent's criticisms were characterised as disagreements with factual evaluation rather than legal errors. However, the Court identified a material legal error: a logical inconsistency between the FTT's findings on the two statutory presumptions under s72.

Specifically, the FTT had found (and that finding was not appealed) that the Appellant had not rebutted the presumption that he had committed a particularly serious crime, noting intentionality and a mindset supportive of Islamic State in the JSR and related materials. The FTT then concluded that the Appellant had rebutted the presumption that he constituted a danger to the community without expressly addressing whether those earlier findings (notably continuing support for Islamic State or its ideology) persisted at the date of the hearing or explaining why they did not bear on present dangerousness.

The Court held that the FTT therefore failed to address a central question of fact that it was incumbent upon the Appellant to prove (the burden being on him to rebut the second presumption). The failure was not merely an omission in reasons but amounted to an error of law because the tribunal did not determine key factual issues necessary to reach a lawful decision on whether the statutory presumption of dangerousness had been displaced.

The Court considered the available evidence highlighted by the parties (including the sentencing remarks, the extremism risk report, a policing contact response and psychological reports) and concluded that, because crucial factual matters remained unresolved by the FTT (notably whether the Appellant still supported or sympathised with Islamist extremism and, if not, the evidential basis for that conclusion), the appropriate remedy was remittal rather than substitution.

Holding and Implications

APPEAL ALLOWED; REMITTED TO THE FIRST-TIER TRIBUNAL FOR REDETERMINATION

Consequences: The Court allowed the Respondent's appeal on the ground of legal error in the FTT's decision and remitted the matter to the FTT to determine the unresolved factual issues (in particular whether the Appellant continues to support or pose a danger related to extremist ideology) in accordance with the guidance in the cited authorities. The direct effect is that the FTT's allowance of the Appellant's appeal is set aside for redetermination; no wider novel precedent was established beyond application of existing authorities and principles governing s72 presumptions, appellate restraint and the standard for "real risk".

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Anonymisation note: All personal names and identifying particulars in this summary have been replaced with generic role-based identifiers in accordance with the instructions provided.