Tribunal decisions

The decision

Case No: JR-2025-LON-000508
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

Before:

UPPER TRIBUNAL JUDGE MAHMOOD

Between:

THE KING
on the application of
AM
(Anonymity Order Made)
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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Mr Philip Nathan of Counsel
(instructed by Oaks Solicitors), for the Applicant

Mr Matthew Howarth of Counsel
(instructed by the Government Legal Department) for the Respondent

Hearing date: 16 October 2025

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J U D G M E N T

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Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Applicant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the Applicant, likely to lead members of the public to identify the Applicant without his express consent. Failure to comply with this order could amount to a contempt of court. The parties may apply on notice to vary this direction.

Judge Mahmood:

1. In this matter I deal with the Applicant’s application for Judicial Review against the Respondent’s decision dated 24 January 2025 rejecting the Applicant’s further submissions dated 4 July 2024 as amounting to a fresh protection and human rights claim pursuant to paragraph 353 of the Immigration Rules (“paragraph 353”).

2. Although no application was made at the time these proceedings were issued by the Applicant’s solicitors, it is appropriate that I make an anonymity order because the Applicant’s claim relates to international protection matters.

The Background:

3. The Applicant is a national of Albania. He was born on 29 September 2002.

4. In summary his claim is that he had aspirations of becoming a footballer. People who brought him to the United Kingdom said that he owed them £25,000.00. That amount then doubled to £50,000.00. The Applicant states that he had been forced to work in a cannabis factory in the UK and was a victim of Modern Slavery. The Applicant states he had managed to escape from his traffickers but in 2023 they found him and he was forced to deliver drugs. The Applicant fears that the gang targeting him have the ability to also target him in Albania and that they have contacts within the Albanian police service. The gang also said they know the Applicant’s family and will target them too.

5. Much of the background facts and procedural history is agreed and I can take it from the Respondent’s documentation. The Applicant had arrived in the United Kingdom on an unknown date but had been issued with illegal entry paperwork by the Respondent on 2 December 2022. The Applicant’s solicitors state that the Applicant arrived in the UK in October or November 2021.

6. On 7 December 2022 a referral was made on behalf of the Applicant to the National Referral Mechanism in order for the Single Competent Authority to make a decision as to whether the Applicant was a victim of modern slavery. On 12 December 2022 the Applicant was provided with a Positive Reasonable Grounds Decision in respect of the National Referral Mechanism referral. On 28 February 2024 the Applicant was provided with a Negative Conclusive Grounds decision in respect of the National Referral Mechanism.

7. On 20 May 2024 the Applicant was convicted of possession of Class A controlled drugs with intent to supply. He was sentenced to a period of imprisonment of 25 months.

8. On 6 June 2024 the Respondent served a Stage 1 deportation decision letter on the Applicant.

9. On 4 July 2024 the Applicant, via his solicitors, filed further submissions with the Respondent in respect of his asylum claim. The Respondent made a decision in respect of those further submissions on 24 January 2025. It is that decision which is the subject of these proceedings before me.

10. The parties had entered into Pre Action Protocol communication. That did not resolve matters. These proceedings were issued thereafter.

Decision Under Challenge and Procedural History thereafter

11. The Respondent’s decision is dated 24 January 2025. It states that it took into account the Applicant’s further submissions dated 4 July 2024 and also the subsequent correspondence from the Applicant dated 11 September 2024 and 27 November 2024

The Applicant’s Grounds

12. The Applicant’s grounds seeking permission to apply for Judicial Review have been drafted by Mr Nathan and are dated 19 February 2025. They appear in the trial bundle at page 37 to 43. The grounds are not enumerated separately.

13. Paragraph 9 of the grounds contends that the Respondent’s decision rejected the Applicant’s account for having been trafficked but provided no reasons for this save for placing reliance on the Negative Conclusive Grounds decision. It is said that no reasoning was provided by the Respondent and that, “Moreover it is clear that a negative conclusive grounds decision cannot be relied on to presume the rejection of a trafficking claim with an asylum claim…”.

14. Paragraph 10 states (my underlining and highlighting in bold), “The rest of the decision effectively relied on an assessment founded on the Respondent’s CPIN on Albania and the US State Department report on their being a sufficiency o[sic] protection in Albania and also a viable internal relocation alternative. Rather than reference conflicting evidence with that cited in the decision letter in both of those reports and also the well regarded Asylos report on Trafficking in Albania from April 2024, the error in the Respondent’s approach is neatly addressed by the fact that this Tribunal has seen sufficient concern about ma[l]e trafficking victims from Albania to list a Country Guidance case addressing these issues…The very fact that this case has been listed (given the need for a realistic prospect of success) it is submitted belies the suggestion that any appeal would be bound to fail before an Immigration Judge. As such it is submitted that it is at least arguable that the decision is flawed and that permission ought to be granted. It is unfortunate that the decision maker neglected to notify the pending case in their decision letter”.

15. As I have said, the grounds are not drafted in the correct format. They are in narrative form, rather than correctly pleaded itemised grounds.

16. Permission to apply for Judicial Review was refused by Upper Tribunal Judge Lotado by way of a decision sealed on 8 April 2025.

17. The Applicant applied for reconsideration. At an oral hearing before Upper Tribunal Judge Smith on 21 May 2025 the Applicant was granted permission to apply for Judicial Review. The learned judge observed when granting permission that, (1) “I grant permission principally on the first ground” (rejection based on the Negative Conclusive Grounds Decision). (2) “I would not have granted permission on the second ground taken alone particularly since the issues in the pending country guidance case were not formulated at the time of the submissions or the Decision and this was not referred to at all in the submissions made which were considered by the Decision.”

18. Various directions were made upon the grant of permission. Mr Nathan provided a further written note the day before this hearing and apologised for the lateness of the authorities bundle.

19. I was also provided with a skeleton argument from Mr Howarth dated 9 October 2025. There was a trial bundle comprising 546 pages and a separate authorities bundle. Additionally, I was provided with a note after the hearing from Mr Howarth, copying in Mr Nathan and to which I shall return.

The Submissions Before Me

20. In his oral submissions, Mr Nathan referred to his skeleton argument dated 29 September 2025. At paragraph 1 Mr Nathan apologised for the late service of his skeleton argument.

21. In summary the Applicant’s skeleton argument had said that the Respondent’s Detailed Grounds of Defence had been cast differently to the Summary Grounds of Defence because the Respondent “…apparently considered the Applicant’s objective claim at its highest”. The Applicant’s skeleton argument states at paragraph 5 that,

“5. Given the Respondent’s clarification of her decision in her detailed grounds of defence, it appears that the Respondent’s decision was in fact founded on ‘objective country information and legal analysis.’ Through this clarification it appears that Ground 1 is academic, and that the key concern in this case arises from the Respondent’s assertion at paragraph 52 of the detailed grounds that: ‘This analysis drew upon current, authoritative country information including the Albania: Human Trafficking CPIN (July 2024), which represents the most up-to-date and reliable source of country information available to decision-makers.’ In substance therefore the only remaining issue is the second ground on which permission was granted. In this respect the Respondent does not appear to have appreciated the significance of this Tribunal’s listing of LR (Albania) for Country Guidance”.

22. The Applicant’s skeleton argument states at paragraph 16,

“16. Now that the Respondent has clarified that she considered the Applicant’s claim ‘at its highest’, as detailed above the sole remaining issue concerns the Respondent’s objective assessment of risk and in particular the consequences of the grant of permission to appeal in LR (Albania).”

23. This appears to be a clear concession in the Appellant’s skeleton argument but it was apparently not now being accepted by Mr Nathan at the hearing before me that it was a concession.

24. The Applicant’s skeleton argument, provided in response to the Respondent’s Detailed Grounds of Defence, states that the Respondent was wrong to say that consideration of pending Country Guidance cases would create an impossible precedent whereby all decisions involving potential Country Guidance issues would need to be suspended pending speculative future development. The Appellant’s skeleton argument referred to the Respondent having stated that by December 2024 the issues for the pending Country Guidance case had been formulated. It was submitted in the Appellant’s skeleton argument that in any event the whole process of determining fresh claims was dependent on the critical speculation as to whether the First-tier Tribunal Judge would be bound to reject an appeal. The Appellant submitted that the Respondent knew about the pending Country Guidance case and that there was nothing suggested by the Respondent to state that the issues in the present case could be distinguished from that Country Guidance case.

25. In his note dated 15 October 2025 provided the day before the hearing, Mr Nathan made further submissions and said the Applicant maintained that the potential Country Guidance case prior to the date of decision was a factor that ought to have been considered by the Respondent prior to making her decision on this Applicant’s case. It was submitted that it was wrong to say that the development only arose after the date of the decision because there was a notice of pending Country Guidance cases by the Upper Tribunal on its website on 17 December 2024. Mr Nathan also submitted that, “The Respondent was plainly aware, prior to the date of decision, that this Tribunal had identified issues in the country evidence, whereby the risk to the trafficked men in Albania needed to be considered through a Country Guidance determination in LR (Albania).

26. I summarise the parties’ submissions below.

27. In his oral submissions Mr Nathan submitted that despite what was said in his skeleton argument, the Applicant had not conceded Ground 1.

28. Mr Nathan also submitted in summary that although Mr Howarth’s skeleton argument had been well drafted, the case was about whether or not the Respondent had properly exercised anxious scrutiny. Mr Nathan said it was necessary to look at matters as at the date of decision in this case. He also submitted that in a statutory appeal, for a case to reach the Upper Tribunal it must be raising some point of principle and must have a prospect of success. Mr Nathan submitted that was broadly the same test as paragraph 353 of the Immigration Rules. He submitted that as of 24 January 2025 the Respondent had considered the Applicant’s case at its highest by reference to the CPIN of 2024 and the US State Department report and that it was bound to fail. The problem, said Mr Nathan, was that the Upper Tribunal had already identified a realistic prospect of success for trafficked men in LR Albania. The Secretary of State was party to the information which had given rise to the Upper Tribunal finding a realistic prospect of success. It was open to the Respondent to say why this case could be distinguished from LR (Albania) but the Respondent had not engaged with that.

29. Mr Nathan submitted that it was clear that at the date of decision LR Albania had a realistic prospect of success and therefore so too did this Applicant’s case. The Respondent had failed to consider material information as at the date of decision and thereby there was a lack of anxious scrutiny.

30. In his oral submissions, Mr Howarth said that to accept the Applicant’s submission would fly in the face of principles of law. That was because the LR (Albania) case has not been decided. All that was known was that it had been listed to be heard in March 2026 as a Country Guidance case. There was nothing to grapple with for the decision in January 2025. Even if the case had been pending at that time, section 31(2A) of the Senior Courts Act 1981 would apply.

31. Mr Howarth said that the Applicant was relying on a precedent of foresight which was a novelty in the law. He submitted that it would place “a blocker in the system” and it was not entirely relevant to the decision itself.

32. Mr Howarth said that in respect of disclosure matters, when a decision of the Upper Tribunal is pending, then disclosure is within the powers of the Upper Tribunal. He said that whilst the Applicant had submitted that the LR (Albania) case should have been considered within this Applicant’s decision, when does Secretary of State stop considering cases of relevance, if relevant at all. The simple suggestion was to look at what the evidence was before the Respondent at the time. Mr Howarth submitted that therefore Ground 1 had fallen away whether that was because it was academic or if it had been conceded.

33. Mr Howarth said that Mr Nathan’s submissions were wrong on 2 points.

34. First because LR (Albania) was not a decision, it was a case pending consideration. If that was required in every case, then it would require engaging with a factual situation of anxious scrutiny in relation to men but knowing nothing more. The theme of the pending case was trafficked men and reliance on UN evidence. Mr Howarth said that one did not know the particulars of the case. He said it was a dangerous approach to follow the Applicant’s submissions and because “we do not know where the case will go and what directly it challenges”.

35. Mr Nathan in reply referred to paragraph 32 of the Respondent’s skeleton argument and said that decisions taken under paragraph 353 of the Immigration Rules were all about future hypotheticals and what a judge looking at the appeal might determine. The issue here said Mr Nathan was that in December 2024 there was a listing on the Upper Tribunal’s website for a Country Guidance case. There should have been an update on the Respondent’s system when looking at country information on Albania and there should be a flag there because of a pending Country Guidance case. Mr Nathan said that it was open to the Secretary of State to say that the Country Guidance was not relevant and therefore immaterial. Mr Nathan also said that Rule 14 of the Tribunal (Upper Tribunal) Procedure Rules was not relevant because that referred to the Upper Tribunal prohibiting disclosure, but there was no such disclosure here.

36. Mr Nathan said that as was apparent from the Upper Tribunal website, the issue was whether there was a risk on return for trafficked men and this Applicant was a trafficked man and it was necessary to engage with sufficiency of protection and internal relocation issues. Mr Nathan submitted that throughout the case, it was open to the Respondent to state that the issues in LR (Albania) were not relevant but the Respondent had not done that. Mr Nathan said that the Respondent’s decision letter was flawed and it had failed to take into account by way of anxious scrutiny critical information that was plainly known to the Respondent and so the Respondent’s decision ought to be quashed.

The Legal Framework

37. The law in respect of fresh claims was not in dispute before me. I shall adopt what has been set out by Mr Nathan in his skeleton argument. That states:

“13. With respect to fresh applications on asylum or human rights grounds the Immigration Rules state:

‘353. When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.
This paragraph does not apply to claims made overseas.’

14. In WM (DRC) v The Secretary of State for the Home Department [2006] EWCA Civ 1495, Buxton LJ provided detailed guidance on this test:

“The task of the Secretary of State There was broad agreement as to the Secretary of State's task under rule 353. He has to consider the new material together with the old and make two judgements. First, whether the new material is significantly different from that already submitted, on the basis of which the asylum claim has failed, that to be judged under rule 353(i) according to whether the content of the material has already been considered [sic]. If the material is not "significantly different" the Secretary of State has to go no further. Second, if the material is significantly different, the Secretary of State has to consider whether it, taken together with the material previously considered, creates a realistic prospect of success in a further asylum claim. That second judgement will involve not only judging the reliability of the new material but also judging the outcome of tribunal proceedings based on that material. To set aside one point that was said to be a matter of some concern, the Secretary of State, in assessing the reliability of new material, can of course have in mind both how the material relates to other material already found by an adjudicator to be reliable, and also have in mind, where that is relevantly probative, any finding as to the honesty or reliability of the applicant that was made by the previous adjudicator. However, he must also bear in mind that the latter may be of little relevance when, as is alleged in both of the particular cases before us, the new material does not emanate from the applicant himself and thus cannot be said to be automatically suspect because it comes from a tainted source.

The rule only imposes a somewhat modest test that the application has to meet before it becomes a fresh claim. First, the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that. Second, as Mr Nicol QC pertinently pointed out, the adjudicator himself does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return. Third, and importantly, since asylum is in issue the consideration of all the decision-makers, the Secretary of State, the adjudicator and the court, must be informed by the anxious scrutiny of the material that is axiomatic in decisions that if made incorrectly may lead to the applicant's exposure to persecution. If authority is needed for that proposition, see per Lord Bridge of Harwich in Bugdaycay v SSHD [1987] AC 514 at p 531F.”

Buxton LJ then proceeded to give guidance as to the Court’s approach in reviewing a decision by the Secretary of State to refuse a fresh claim:

‘Whilst, therefore, the decision remains that of the Secretary of State, and the test is one of irrationality, a decision will be irrational if it is not taken on the basis of anxious scrutiny. Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters.
First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return: see §7 above. The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind.
Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State’s decision.’

15. In the reported decision of Anoliefo (permission to appeal) [2013] UKUT 00345, the then Blake P, gave the following guidance with respect to Permission to Appeal to the Upper Tribunal in a statutory appeal: “Where there is no reasonable prospect that any error of law alleged in the grounds of appeal could have made a difference to the outcome, permission to appeal should not normally be granted in the absence of some point of public importance that it is otherwise in the public interest to determine.”

38. After the hearing, Mr Howarth provided me with a note with the e-mail that he had been referring to during his submissions and which Mr Nathan was also sent. The note states:
“Thank you for your email below. I have taken instructions and the position appears to be: For the avoidance of doubt, the Secretary of State has complied with the duty of candour. That duty requires disclosure of material necessary for the fair and just determination of this claim (R (Citizens UK) v SSHD [2018] EWCA Civ 1812). It does not require disclosure of material that is not lawfully within the Secretary of State’s control or that is subject to the procedural control and confidentiality of separate, ongoing Upper Tribunal proceedings.
Materials generated for the pending CG case LR (Albania) (UI-2024-002111) are under the Tribunal’s control. MST (Eritrea) [2016] UKUT 337 (IAC) confirms that the Tribunal, not the parties, dictates provision and exchange of evidence. Disclosure outside that process would be a collateral use contrary to Harman v SSHD [1983] 1 AC 280, Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, and section 25 of the Tribunals, Courts and Enforcement Act 2007. Absent a specific UT direction, disclosure would therefore be improper.
The SSHD have provided all available and lawfully disclosable procedural information about LR (Albania), namely:
• that it is a pending CG case;
• that it concerns trafficked men; and
• that the substantive hearing is listed for March 2026.
The SSHD have not disclosed contents of the case file (e.g. list of issues, expert evidence, submissions) because those materials are either not yet finalised or exchanged and therefore remain privileged, or, once filed/sealed, are subject to the Tribunal’s control and the implied undertaking (Harman; MST). As matters stand, expert evidence is being collated and has not been exchanged; formal submissions have not been served.”

39. The Upper Tribunal’s website for the relevant time has been referred to extensively by Mr Nathan and so I refer to what it states in full:

“This document gives details of all pending country guidance cases before the Upper Tribunal, Immigration and Asylum Chamber (UT IAC). It is designed to provide relevant details of intended country guidance cases coming up in the Upper Tribunal, identifying the countries concerned, the relevant country guidance issues (in summary) and what stage the case has reached (e.g. whether it has had a Case Management Review hearing or whether it has been fully heard and the decision reserved). Once a country guidance case has been decided and reported it will be available in the ordinary way on the UT IAC case law database (https://tribunalsdecisions.service.gov.uk/utiac) and will no longer appear in this document. Previously this resource has been for circulation within the judiciary only. It is now considered that relevant information should be made more widely available. It is intended that this document is updated regularly on instructions from Upper Tribunal judiciary. However, because cases do not always proceed for various reasons and because there can be short delays in updating, its contents are NOT to be taken as a definitive statement about such matters. If you are aware of an issue where new or revised country guidance may be required (particularly if your appeal is already before the Upper Tribunal) please email countryguidance@justice.gov.uk and your request will be given to the relevant Upper Tribunal judge for consideration.

PENDING COUNTRY GUIDANCE CASES and ISSUES
As of 23 July 2025 Click to Access Pending Cases PENDING CG CASES

Below is a list of the current pending CG cases before the UKUT IAC.
Please click on an entry to view further information about the case.
If the appeal is no longer listed here it will be available on the UKUT case law database. Appeal Number Appellant Country Issues / Keywords UI-2024-001603 MA Afghanistan Westernisation UI-2024-002111
LR Albania Trafficked men UI-2024-005988
AZ Bangladesh Extant arrest warrant UI-2021-001982, UI-2021-001948 & UI-2024-004075
AH, AK & AKJ Iraq CSID or INID cards UI-2023-000983
EP Jamaica PSG – gangs – protection – internal relocation”

Consideration and Analysis

40. In view of the submissions made, it is necessary to carefully consider the Respondent’s decision of 24 January 2025.

41. At paragraphs 25 to 28 the Respondent considered trafficking matters including with reference to the Country Policy and Information Notes (CPIN). Paragraphs 29 to 33 considered the Applicant’s Nationality and more in respect of how he said he had escaped from his traffickers. Paragraphs 34 to 45 considered more of the CPIN. It was concluded that the Applicant had not demonstrated he would be returned to an area of Albania in which he would be at risk of retrafficking. Overall, it was said that the Applicant’s further submissions had no realistic prospect of success. Paragraph 30 specifically referred to and then applied the correct test in respect of matters that had not been previously considered.

42. The Respondent’s decision at paragraphs 46 to 61 specifically considered sufficiency of protection in accordance with the well established correct House of Lords decision in Horvath and with reference to the CPIN and background material.

43. At paragraphs 62 to 78 the Respondent considered internal relocation including with reference to the CPIN, case law and other background material, such as that from the United States of America.

44. Paragraphs 79 to 88 considered humanitarian protection in some detail. Article 8 of the European Convention on Human Rights was considered at length from paragraph 89 to 119.

45. This was a deportation case and the Respondent referred to the Applicant’s criminality in the decision and then the law in respect of deportation at paragraphs 120 to 125.

46. Paragraphs 125 to 130 summarised the decision at some length with a subheading from paragraph 130 to 138 the Respondent explained why the fresh claim test in Paragraph 353 of the Immigration Rules was not met by the Applicant.

47. Further matters were set out thereafter in the Respondent’s decision, including that the Applicant may be eligible for assistance from the Home Office under the Facilitated Return Scheme to return to Albania.

48. I return to Buxton LJ’s judgment in WM (DRC). I consider whether the Secretary of State asked herself whether there was a realistic prospect of a First-tier Tribunal Judge, applying the rule of anxious scrutiny, thinking that the Applicant will be exposed to a real risk of persecution on return. As the Respondent’s decision shows and which I have highlighted with reference to the decision above, she clearly did.

49. Secondly, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, I consider whether the Secretary of State satisfied the requirements of anxious scrutiny. I must apply a ’somewhat modest test’. Put another way, the bar that the Applicant is required to meet is a very low one. In my judgment, despite that modest test, it is clear that the Respondent plainly did consider the matter with anxious scrutiny. The Respondent lawfully considered whether the notional First-tier Tribunal Judge could possibly allow the appeal. The Applicant has failed to show irrationality, or that the Respondent’s decision considered immaterial matters or applied the wrong test. The correct law was referred to in the Respondent’s decision to the facts of the Applicant’s case. Nothing has been highlighted to me to suggest that the Respondent had not done so.

50. The Respondent’s decision expressly asked the correct question: whether, taken with prior material, there was a realistic prospect of success before a judge and the analysis proceeded to assess risk, protection, and relocation, reflecting anxious scrutiny and the proper standard. Mr Howarth is plainly correct that the Respondent’s decision did not hinge on a National Referral Mechanism conclusive grounds outcome; it pivoted “nevertheless” to a separate merits analysis of risk, sufficiency of protection, and internal relocation applying WM (DRC).

51. Therefore, even if Mr Nathan’s skeleton argument really did not concede it, in my judgment Ground 1 has no merit in any event and I dismiss it.

52. Ground 2, states that the pending hearing of the appeal of LR (Albania) in March 2026 ought to have been considered by the Respondent in her decision, because the:

“…Tribunal has seen sufficient concern about ma[l]e trafficking victims from Albania to list a Country Guidance case addressing these issues…The very fact that this case has been listed (given the need for a realistic prospect of success) it is submitted belies the suggestion that any appeal would be bound to fail before an Immigration Judge. As such it is submitted that it is at least arguable that the decision is flawed and that permission ought to be granted. It is unfortunate that the decision maker neglected to notify the pending case in their decision letter.”

53. In my judgment, the Applicant’s submissions are wholly misconceived. The future listing of a case as a Country Guidance here cannot be a reason for the Respondent to conclude that the notional First-tier Tribunal judge might allow the appeal. This is because, firstly, the listing of a future case for hearing, even if it is to become a Country Guidance case, does not somehow show that the Applicant’s case has sufficient merit to proceed as a fresh claim for the purposes of paragraph 353 of the Immigration Rules.

54. In any event, the Respondent was required to follow and the notional First-tier Tribunal was required to follow the current Country Guidance. The Respondent did follow the current Country Guidance in her decision.

55. The parties referred to and are aware of Part 12 of the Practice Directions of the Upper Tribunal (Immigration and Asylum Chamber) (amended by Sir Jeremy Sullivan, Senior President of Tribunals on 13 November 2014). That provides that existing Country Guidance determinations are authoritative and binding until expressly superseded, replaced, or shown to be inconsistent with higher authority.

56. Secondly, it was for the Applicant to show that the current Country Guidance did not apply in his case. That is always an option available to the Applicant. Whether because of changing conditions in the Applicant’s country of nationality or for other reasons. As is clear from the Respondent’s decision in respect of Ground 1 and as his ‘concession’ shows there is nothing of substance to indicate that there was anything near sufficient to displace the need for the Respondent to apply the current valid Country Guidance, but to apply the future case.

57. Therefore, in my judgment, Mr Howarth is entirely correct that the mere listing of LR (Albania) carried no legal consequence at the date of decision; the Respondent was entitled and indeed required to make a decision in respect of the Applicant’s application consistently with the extant Country Guidance.

58. In my judgment, that really is the end of the Applicant’s Ground 2 and his reliance on the argument that the future listing of a Country Guidance case somehow meant that the anxious scrutiny requirements in paragraph 353 were met. The Respondent made no public law error in her approach.

59. Alternatively, standing back and considering Mr Nathan’s submissions more widely, the effect of his submissions would be that all Albanian cases relying on trafficking of males, at both the Upper Tribunal and First-tier Tribunal cases, would then have to be stayed pending the future Country Guidance case. In my judgment, such an approach would be wrong and would not further the overriding objective to deal with cases justly. The Secretary of State was plainly entitled to act in the light of circumstances known to her without being caught out by later circumstances.

60. In view of the detailed submissions though, I consider the Applicant’s Ground 2 in further detail, noting the narrative way it has been drafted. In my judgment, Mr Howarth is entirely correct that no ‘triable issue’ arose from the future listing of LR (Albania). That future listing conveys no binding status and cannot retroactively render unlawful reliance by the Respondent on the July 2024 Albania Human Trafficking CPIN and extant country materials. Those materials remained the proper reference point until they are superseded. If the Applicant disagreed with those materials, then it was always open to him to show why such materials and such case law ought not to apply in his particular case. It was clearly lawful and rational for the Respondent to rely on the case law and the materials, including the CPIN which were for her decision making.

61. The July 2024 CPIN states that in general adult men are not at a real risk of re‑trafficking on return and that state protection and Non Governmental Organisation support are both generally sufficient, with internal relocation.

62. None of the Applicant’s reliance on the pending Country Guidance case somehow altered the evidential landscape at the time of decision, nor did any such references demonstrate that the Respondent failed to consider a relevant matter or that she took into account an irrelevant matter. The Respondent’s decision reflects a lawful assessment of risk factors, protection, and relocation anchored to objective sources and the Applicant’s account.

63. In NA (Libya) v Secretary of State for the Home Department [2017] EWCA Civ 143; [2017] Imm. A.R. 1200 Flaux LJ, with whom McFarlane and McCombe JJ agreed made clear,
“It is quite clear that Country Guidance cases, whilst they do not amount to binding precedent, are authoritative in any subsequent appeal so far as that appeal relates to the Country Guidance issue in question and depends upon the same or similar evidence: see paragraph 12.2 of the Practice Directions. Paragraph 12.4 of the Practice Directions states:
“Because of the principle that like cases should be treated in like manner, any failure to follow a clear, apparently applicable country guidance case or to show why it does not apply to the case in question is likely to be regarded as grounds for appeal on a point of law.”
25. That paragraph reflects clear statements of the Upper Tribunal and the Court of Appeal to that effect. Thus, in the Country Guidance case of NM and others, Ouseley J explained the status of Country Guidance cases in these terms:
“139 [Country Guidance decisions] were to be applied by the Tribunal itself and by Adjudicators unless there was good reason, explicitly stated, for not doing so. Failure to adopt that approach was an error of law in that a material consideration had been ignored or legally inadequate reasons for the decision had been given. The inconsistency itself with authoritative cases would be regarded by higher authority than the Tribunal as an error of law.
140 These decisions are now denoted as 'CG'. They are not starred decisions. Those latter are decisions which are binding on points of law. The requirement to apply CG cases is rather different: they should be applied except where they do not apply to the particular facts which an Adjudicator or the Tribunal faces and can properly be held inapplicable for legally adequate reasons; there may be evidence that circumstances have changed in a material way which requires a different decision, again on the basis that proper reasons for that view are given; there may be significant new evidence which shows that the views originally expressed require consideration for revision or refinement, even without any material change in circumstances. It may be that the passage of time itself or substantial new evidence itself warrants a re-examination of the position, even though the outcome may be unchanged.”
26. That analysis was approved by Brooke LJ, giving the judgment of the Court of Appeal in R (Iran) v SSHD [2005] EWCA Civ 982; [2005] INLR 633 at [27] referring to the predecessor of the present Practice Directions:
“It will have been noticed that Ouseley J said that any failure to apply a CG decision unless there was good reason, explicitly stated, for not doing so would constitute an error of law in that a material consideration had been ignored or legally inadequate reasons for the decision had been given. This suggestion has now been repeated and adopted in para 18.4 of the AIT Practice Direction. We have no hesitation in endorsing that approach. It would represent a failure to take a material matter into account, which is the third of the generic errors of law we have identified in para 9 above.”
27. It is no doubt because Country Guidance cases do not have the effect of establishing any principle of law, combined with the fact that a Tribunal cannot be criticised for failing to take into account material which has come into existence after the promulgation of its determination, that as a general rule the fact that a determination of the First Tier Tribunal is inconsistent with a Country Guidance case issued after the determination was promulgated, will not amount to an error of law: see, most recently, SA (Sri Lanka) v SSHD [2014] EWCA Civ 683 per Patten LJ at [12]-[13]:
“Country guidance decisions, whilst determining the rights of the parties to the actual decision, are no more than a compilation and statement of evidence relevant to the position of asylum seekers from the country in question. They therefore provide a convenient guide to the likely treatment of asylum seekers in that jurisdiction but they are no more than a judicial assessment of the probative value of the evidence on which they are based and are not intended to exclude other relevant evidence which the parties in particular cases are able to adduce. For present purposes, it is important to emphasise that they are no more than factual summaries updated from time-to-time to record material changes in the position on the ground. A change in country guidance is in no sense a change in the law: see NM and others (lone women – Ashraf) Somalia CG [2005] UKIAT 00076 at [140].
It is therefore difficult to see how the decision of the Upper Tribunal in this case which was based on a consideration of the then most recent country guidance contained in TK, coupled with the case-specific evidence produced by SA himself, can be said to contain an error of law by reason of it not having considered the then unpublished material now set out in the decision of GJ. A fact-finding tribunal may, of course, commit an error of law if it bases a particular finding on no evidence or makes an assessment of the issue it has to decide which is contrary to the only possible conclusion which could reasonably be reached on the admissible evidence: see Edwards v Bairstow [1955] 3 All ER 48. But the decision of the Upper Tribunal in this case was clearly open to it on the factual material that it had to consider and it is difficult to see how the Upper Tribunal can be said to have fallen into error by failing to consider material that was not before it and which may in part relate to a state of affairs that post-dates its decision. This is not a case where there has been a material but subsequent change in the law with the result that the decision of the lower tribunal can now be seen to have proceeded on the basis of a misdirection. I would therefore dismiss the appeal on the basis that there has been no error of law.”
64. In my judgment, NA (Libya) plainly shows that Mr Nathan’s submissions were bold but were misconceived. The Respondent and thereby the notional First-tier Tribunal Judge had to follow the extant Country Guidance, subject to any specific submissions in which the Applicant contended that the Country Guidance did not apply in his case.

65. Mr Nathan’s reliance on Anoliefo (permission to appeal) [2013] UKUT 00345 is misconceived. In my judgment speculation as to why permission was granted in LR (Albania) does not elevate the Applicant’s grounds to the status that Mr Nathan contends for. Nor is it known when the case will be finalised and when the decision will be available. As often happens with Country Guidance cases, they take time to be handed down after the hearing in view of the extensive materials and there are sometimes appeals to the Court of Appeal. It does not further the overriding objective to await the outcome, for either side to this case before me.

66. Whilst it is known that the issues to consider will include trafficking of males in Albania, that is a neutral consideration of one of the issues which arises regularly at the Upper Tribunal and First-tier Tribunal. The listing of the appeal as a Country Guidance does not mean that the issue itself is one which has merit for claimants. As Country Guidance cases frequently decide, certain claimants cases are said not to have merit. I do not accept Mr Nathan’s submissions that the forthcoming consideration of the issues of male victims of trafficking in the pending Country Guidance case thereby shows that there is an ‘arguable’ case, whether in the statutory appeal terms or in public law terms for this Applicant.

67. Mr Nathan’s submissions were also that the Respondent was aware of the pending Country Guidance hearing listed in March 2026 at the time of her decision on 24 January 2025. Mr Nathan submits that ought to have led to disclosure duties. I therefore deal with the Applicant’s submissions in respect of the Respondent’s duty of candour. In my judgment, the Applicant’s submissions are misconceived. I referred above at paragraph 38 to Mr Howath’s note and of which the Applicant was well aware before this hearing. The documents in other cases are in the control of the Upper Tribunal and not the Respondent.

68. This can be seen in the decision in MST and others (Disclosure - restrictions - implied undertaking) Eritrea [2016] UKUT 00337 (IAC) where the Presidential Tribunal considered the disclosure of documents provided to the Upper Tribunal. It was held:

“20. The close association with judicial review proceedings, where the duty of candour is deeply rooted, is unmistakable: see, most recently, R (on the application of Mohamed Shahzad Khan) v Secretary of State for the Home Department [2016] EWCA Civ 416. The final element in this analysis concerns the relationship between the parties to this appeal and the Tribunal. Given the nature of appeal proceedings, it is the Tribunal, and not the parties, which dictates the provision and exchange of evidence. None of the parties is acting out of whim or desire. Rather, all are subordinated to the authority of the Tribunal and are complying with what is required of them by the Tribunal, which is the ultimate arbiter and adjudicator of all procedural and substantive issues.

21. It follows from the above analysis that the Appellants are not at liberty to disclose the UK FFM report to any person or agency, other than their clients and expert witness, in the absence of an order of the Tribunal permitting them to do so. We detect nothing in the arguments of counsel to suggest that the test to be applied differs in substance from that governing the second limb of these applications, formulated above. The ambition which the Appellants' representatives seek to fulfil is to disclose the report to certain NGOs. It is a feature of the Appellants' application that they do not know where this might lead. Unavoidably, in our estimation, they have adduced no evidence to suggest otherwise. The reason for this is the quintessentially simple one that no one can lay claim to possession of a crystal ball.

22. We consider that, in common with the second of the Appellants' applications, this discrete application is infused with a mixture of speculative wish and hope. The speculative wish is that one or more of the NGOs will criticise the Secretary of State's report. The hope is that this criticism can be laid in proper evidential form before the Tribunal. The further hope is that the Tribunal will find this to be of some probative value. As this brief analysis makes clear, the application to the Tribunal is steeped in speculation. This being so, the governing test is manifestly not satisfied and this application must be refused for essentially the same reasons for which we have refused the second application.

23. Our second reason for refusing this application mirrors our second reason for refusing the second application. We repeat [10] above mutatis mutandis. Both the second and the third applications seek a form of relief which would be inimical to the overriding objective. Furthermore, we repeat that it will be open to the Tribunal to evaluate any unexpected developments as the evidence unfolds at the hearing and to give consideration to case management measures which will ensure fairness to all parties and promote the interests of justice.”.

69. In reality the Applicant’s disclosure submissions amount to a ‘fishing expedition’. In my judgment it was plainly for the Applicant to refer to background evidence or other evidence to show why the Applicant’s case ought to succeed. It was not for the Respondent to try to find such evidence for the Applicant from other cases which might be pending for hearing in the Courts or Tribunals. In my judgment, to expect the Respondent to have to undertake such a search for evidence would be catastrophic for the proper progress of cases in this jurisdiction, even when the most anxious scrutiny has to be applied and even when considering matters as serious as international protection with duty of candour duties.

Conclusion

70. In any event, I consider section 31(2A) of the Senior Courts Act 1981 (which by virtue of section 15(5A) of the Tribunals, Courts and Enforcement Act 2007 applies to the Upper Tribunal states:

“The High Court:

(a) must refuse to grant relief on an application for judicial review, and

(b) if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.”

71. I am satisfied that in any event it appears to me highly likely that the outcome for this Applicant would not have been substantially different even if the Respondent had said in her 24 January 2025 decision that there was a pending Country Guidance case which was due to be heard in March 2026. That is because in any event, the Respondent would still have likely concluded that ‘just’ because there was a pending hearing did not mean that the current background material and Country Guidance need not be followed. I would have refused discretionary relief, even if a defect had been identified in the Respondent’s decision.

72. I take account of Mr Nathan’s note of 15 October 2025 which states that the consequence of me not accepting his submissions will mean that the Applicant is thereby at risk of enforced removal. Whilst I note the serious consequences of my decision, I am not permitted to look further than even the modest test which has to be applied. To do so would merely invite error.

73. Accordingly, I refuse the relief sought by the Applicant and I dismiss his claim for Judicial Review.

74. I invite the parties to agree a form of order and consequential matters, including costs and to send it to me for my approval.

23 December 2025

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Postscript

Following the judgment having been provided to the parties in draft, I considered the parties further written submissions to me thereafter and I make the following orders.

Costs

The Applicant shall pay the Respondent’s costs of the proceedings on the standard basis, to be the subject of detailed assessment if not agreed.

If the parties wish to seek a summary assessment of costs, they shall file and serve the relevant costs schedules within 14 days of the date this order is sent.

Permission to Appeal

Owing to personal difficulties communicated by counsel for the Applicant upon receipt of the draft Judgment, time is extended to 4pm on Tuesday 20 January 2026 for the Applicant to file and serve submissions seeking permission to appeal, if so advised.