Court of Appeal gives guidance on control of oral evidence in second appeal asylum claims

The Court of Appeal has handed down its judgment in MR (Pakistan) v Secretary of State for the Home Department [2026] EWCA Civ 473 determining that the First Tier Tribunal (FTT) made an error of law by determining a second asylum appeal without allowing the Home Office the opportunity to cross-examine the applicant’s claimed same-sex partner.

The appellant (MR) had made two asylum claims based on his fear of persecution in Pakistan as a gay man. The first was refused, with the FTT finding MR’s account of his sexuality not to be credible. The second claim relied in part on MR’s alleged new relationship with another man, AK, and was also refused by the Home Office because of lack of evidence supporting MR’s account.

At the FTT hearing of the second asylum appeal, the Home Office relied on the FTT’s previous decision that MR was not a credible witness, applying the principle from Devaseelan [2002] UKIAT 702, which treats prior factual findings by the FTT as the starting point in any subsequent appeal. During cross-examination, the Home Office did not put it to MR in terms that he was lying about his sexuality, including his relationship with AK. The FTT held that, in the absence of such cross-examination, it was not open to the Home Office to continue to contest the appeal. The FTT then directed, pursuant to its power under rule 14 of The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, that the other witnesses called in support of MR’s case (including AK, who had failed to provide a witness statement) need not be called. The FTT allowed MR’s appeal, while (at the same time) expressing its own doubts as to the credibility of MR’s claim.

The Home Office successfully appealed to the Upper Tribunal (UT). The UT held that the FTT’s exercise of its rule 14 power had been flawed because it had failed to consider whether allowing the appeal to continue, despite the FTT’s concerns about the Home Office’s cross-examination, would have been procedurally unfair to MR or not.

MR then appealed to the Court of Appeal on the single ground that the UT had reached an irrational conclusion because it failed to take into account the FTT’s assessment that, because of how it had conducted MR’s cross-examination, the Home Office had demonstrated ‘tacit acceptance’ of MR’s relationship and sexuality.

The Court of Appeal upheld the UT’s decision, finding that the FTT’s approach was wrong in law for two principal reasons:

• First, the FTT had failed to ask itself, before preventing the cross-examination of AK, the relevant question of whether it would have been procedurally unfair to allow the Home Office to continue to contest the appeal in light of the Home Office’s cross-examination of MR per Griffiths v TUI (UK) Limited [2025] UKSC 48. In MR’s case (unlike the expert witness whose evidence was famously impugned in TUI), he had been given clear notice of the Home Office’s position that his account was not credible in the Home Office’s refusal decision and subsequent case review. MR had also been given (and had taken) the opportunity to respond to the Home Office’s concerns in his own witness statement. In failing to consider this issue of fairness before exercising its power under rule 14, the FTT had acted irrationally.
• Second, the FTT had erred in law in holding that the Home Office had ‘tacitly accepted’ MR’s relationship with AK. Per Shyti v Secretary of State for the Home Department [2023] EWCA Civ 770, a clear and unequivocal concession by the Home Office would have been required before the FTT could dispense with all further evidence and consideration of the principal controversial issue of MR’s claimed sexuality. This had not occurred.

The asylum appeal has now been remitted back to the FTT for a fresh appeal hearing.

The judgment is significant for public law practitioners as it provides a close analysis from the Court of Appeal as to what the principle in TUI (itself an exploration of the well-established principle in Browne v Dunn (1893) 6 R 67) actually requires of advocates, courts and tribunals when considering cross-examination practice. It also sets out what factors will need to be assessed in deciding whether procedural fairness does or does not arise in the circumstances of a specific case. For immigration practitioners, it also provides helpful guidance on how to approach cross-examination in Devaseelan second asylum appeals.

Katharine Elliot acted as sole counsel for the successful Secretary of State.