MR (Pakistan) v Secretary of State for the Home Department

In an asylum appeal, failure to put a proposition expressly in cross-examination does not amount to a concession where the appellant already had clear notice that the respondent disputed it. The fairness rule governing challenges to evidence is flexible and directed to the proceedings as a whole. It does not require an advocate to allege that an appellant is lying where the respondent’s case is simply that new evidence is insufficient to displace an earlier judicial finding. Before limiting cross-examination, a tribunal must consider whether the affected party had clear notice of the case. It must also assess the evidence in the round. A supposed tacit acceptance cannot replace an express concession. In the new procedural regime, the First-tier Tribunal has no general inquisitorial function requiring it to cross-examine a witness for a party who chooses not to do so.

MR, a Pakistani citizen, entered the United Kingdom in 2006 and later claimed asylum based on a fear of persecution as a gay man. His first asylum appeal was dismissed by the First-tier Tribunal, and his appeal rights were exhausted in 2018.

Following further submissions, the Secretary of State accepted that MR had made a fresh claim. MR relied on his asserted relationship with AK. The First-tier Tribunal allowed the appeal after the Presenting Officer declined to put expressly to MR that he was not gay or not in a relationship with AK. It directed that MR’s proposed witnesses, including AK, need not be called, and treated their statements as evidence.

The Upper Tribunal allowed the Secretary of State’s appeal, holding that the First-tier Tribunal had acted unfairly and had failed to assess the evidence as a whole. The central issue before the Court of Appeal was whether that approach involved an error of law.

The appeal was dismissed. The Court of Appeal agreed unanimously that the First-tier Tribunal had erred in law.

1. Burden and starting point. MR had to establish the facts underlying his asylum claim, including his sexuality and relationship, on the balance of probabilities. The lower standard applied to the future risk on return. Under Devaseelan [2002] UKIAT 702, the earlier judicial finding that MR was not homosexual was the starting point. The issue was whether the later evidence displaced that finding.
2. Fairness and cross-examination. The rule in Browne v Dunn (1893) 6 R 67, as explained in Chen v Ng [2017] UKPC 27 and Griffiths v TUI (UK) Limited [2025] UKSC 48, is a flexible fairness principle. A party will generally need to challenge evidence in cross-examination before impugning it, but prior clear notice of the disputed issue may make further questioning unnecessary. The governing consideration is overall fairness and the avoidance of surprise.
3. Application to the direction. The Secretary of State had consistently relied on the earlier adverse determination and maintained that MR’s new evidence was insufficient to displace it. MR had notice of that case and addressed it in his witness statement. The Presenting Officer therefore did not have to put expressly that MR was not homosexual, was not in a relationship with AK, or was lying. Before making a direction under rule 14 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, the First-tier Tribunal had to consider whether MR had clear notice of the Secretary of State’s case. Its failure to consider that mandatory relevant factor made the exercise of its discretion unlawful and unfairly denied the Secretary of State the opportunity to cross-examine AK.
4. Tacit acceptance and the evidence as a whole. The Presenting Officer had made no express concession. The First-tier Tribunal’s description of the questioning as tacit acceptance could not relieve it of its duty to consider the Decision, the Respondent’s Review and all the evidence in the round. Its decision to treat its own concerns about delay, inconsistencies, the conviction and other weaknesses as moot was an independent error of law.
5. Further points. Ullah [2024] EWCA Civ 201 was distinguishable because the issue there was an unchallenged innocent explanation of alleged dishonesty. The Respondent’s Notice did not need to be decided. Nevertheless, the court observed that the First-tier Tribunal has no general inquisitorial function under the newer procedural regime associated with Lata [2023] UKUT (IAC) 00163. It must scrutinise both parties’ cases, clarify matters it does not understand, but should not cross-examine a witness for a party that deliberately declines to do so. The Robinson [1998] QB 929 doctrine did not provide a basis for the Secretary of State’s position.

The appeal concerned the procedural handling of MR’s fresh asylum claim and the exclusion of witness evidence.

1. Court of Appeal (Civil Division). The court dismissed MR’s appeal and upheld the Upper Tribunal’s conclusion that the First-tier Tribunal had erred in law: [2026] EWCA Civ 473.
2. Upper Tribunal (Immigration and Asylum Chamber). Upper Tribunal Judge O’Callaghan allowed the Secretary of State’s appeal in determination 3, set aside determination 2 and held that the First-tier Tribunal had acted procedurally unfairly by preventing further cross-examination and failing to consider the evidence as a whole.
3. First-tier Tribunal. In determination 2, the First-tier Tribunal allowed MR’s appeal. It treated the Presenting Officer’s failure to put expressly that MR was not gay or not in a relationship with AK as decisive, directed that proposed witnesses need not be called and took note of their statements.
4. Earlier proceedings. Determination 1 rejected MR’s original asylum claim and found that his claim to be homosexual was not established. His appeal rights were exhausted in June 2018. The Secretary of State later accepted that his further submissions amounted to a fresh claim.