Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002470

First-tier Tribunal No: PA/02140/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 12th of March 2025

Before

UPPER TRIBUNAL JUDGE KEBEDE
UPPER TRIBUNAL JUDGE PICKUP SITTING IN RETIREMENT

Between

CVK
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Litigant in Person
For the Respondent: Dr S Ibisi, Senior Home Office Presenting Officer

Heard at Manchester Civil Justice Centre on 3 March 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, [the appellant] (and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant (and/or other person). Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. This is a decision to which both judges have contributed.
2. Following the helpful submissions of both parties, which we have carefully considered and taken into account, we reserved the decision to be provided in writing, which we now do.
3. The appellant and her dependent child are citizens of Namibia. She entered the UK in June 2019 and claimed international protection based on sexual orientation as a bisexual woman at risk on return from her family members and from society in general. She also relied on health grounds, asserting that she will be ostracised and discriminated against in Namibia because she is HIV positive.
4. The appellant appeals to the Upper Tribunal against the decision of the First-tier Tribunal promulgated 5 April 2024, dismissing her appeal against the respondent’s decision of 27 November 2023 to refuse her claim for international protection.
5. Permission to appeal to the Upper Tribunal was granted on limited grounds by the First-tier Tribunal in the decision dated 13 May 2024. In summary, the judge considered it arguable that the First-tier Tribunal Judge had erred in law in “light of the approach adopted by the Judge at paragraph 16 and 17 in assessing the Appellant’s risk of persecution as a result of her bisexuality, and in turn, when assessing whether there are very significant obstacles to returning under Article 8 ECHR.” The First-tier Tribunal refused permission to appeal on article 3 ECHR grounds, finding the First-tier Tribunal “gave proper consideration to the Article 3 claim arising out of the Appellant’s HIV diagnosis.”
6. The appeal to the Upper Tribunal was first listed for hearing on 17 September 2024, as a remote hearing on the CVP video platform, when the appellant did not attend. In the directions he issued on 9 January 2025, the judge was not satisfied that the appellant had been given notice of the hearing and considered it in the interests of justice to adjourn the case to be relisted, directing it to be heard in Manchester as a face-to-face hearing.
7. On 11 February 2025, Notice of Hearing was issued to the parties for the error of law hearing to be heard at Manchester Civil Justice Centre on 3 March 2025. However, by telephone and email on 21 February 2025, the appellant asked for her appeal to be rescheduled because she was on a job placement in Reading, overseeing the wellbeing of an elderly lady and could not find replacement carer cover. She also claimed that she had joined the CVP link for the original error of law hearing in the Upper Tribunal on 17 September 2025 but that no one else attended.
8. By decision issued on 25 February 2025, the Upper Tribunal Lawyer refused the appellant’s adjournment application and refused to permit the hearing to be conducted remotely by video, on the basis that the appellant had been given ample notice of the hearing and time to obtain replacement cover, so that it was not in the interests of justice to delay the matter any further.
9. At the oral hearing before us, the appellant explained that she had joined the CVP video link on 17 September 2024 but no one else did. In confirmation, she relied on screenshots she had taken at the time, copies of which she has lodged with the Upper Tribunal. Although nothing in fact turns on the issue, the Tribunal panel accepted that the appellant was not at fault for the abandoned and adjourned hearing on 17 September 2024. No adverse finding or consequence follows from that aborted hearing.
10. Although the appellant was legally represented at the First-tier Tribunal appeal hearing (Saviours Solicitors), the case file reveals that her representatives withdrew from acting for the appellant on 4 September 2024. In the circumstances that the appellant is a Litigant in Person (LIP), the Tribunal panel took particular care to explain to her the procedure and to ensure that she was ready to proceed, offering the opportunity of a short adjournment to compose herself, noting that she was upset that she had inadvertently left her laptop computer on the train.
11. As was explained to the appellant at the outset of the hearing, the Upper Tribunal can only intervene in the decision of the First-tier Tribunal if an error of law is found in the making of that decision.
12. As explained above, permission was refused to proceed on article 3 ECHR health grounds. The only live issues before the Upper Tribunal relate to the risk on return on grounds of sexual orientation and article 8 ECHR right to respect for private and family life.
13. As drafted, the grounds assert that the First-tier Tribunal decision “flew in the face of the evidence.” Essentially, this is a disagreement with the findings and reasoning of the First-tier Tribunal and not a valid ground on which to challenge the decision. Nevertheless, we have carefully considered the judge’s treatment of the issue of risk to a bisexual woman returning to Namibia, as set out from [16] of the decision onwards.
14. It is important to note that there never was any issue as to the appellant’s credibility. As far as the risk on return is concerned, the appeal before the First-tier Tribunal essentially turned on country background evidence. We note that from the respondent’s refusal decision, the appellant’s sexual orientation as a bisexual woman was accepted. As can be seen from [15] of the impugned decision, the judge proceeded on the basis that this was not in issue.
15. We have considered the country background information available to the First-tier Tribunal, which we are satisfied was taken into account in the making of the decision. As Dr Ibisi submitted, the County Policy and Information Note (CPIN) ‘Namibia: Sexual orientation and gender identity and expression,’ Version 2.0 November 2021 makes clear that whilst there are some issues as to the protection available to LGBTI persons in Namibia, the objective evidence does not establish that in general an openly LGBTI person faces treatment sufficient to reach the threshold of persecution or serious harm from the state. At 2.4.1 it is noted that legislation in Namibia criminalised acts such as sodomy but not sexual orientation or same sex relationships. Further, Namibia is considered generally a tolerant society albeit many felt same sex relationships were taboo. LGBTI organisations exist in Namibia, though predominantly - which does not equate with exclusively - in Windhoek (see also CPIN 2.4.11 and 2.4.21). There was no evidence before the First-tier Tribunal to contradict or gainsay the CPIN.
16. In summary, we are satisfied that the judge properly applied the objective country background information to the facts of the case and reached a conclusion entirely open on the evidence. The summary of the background evidence at [16] of the decision is accurate and justifies the finding and reasoning set out at [17]. It follows that this ground cannot succeed.
17. Although permission was not granted to pursue the article 3 ECHR ground, we note that at [18], the judge acknowledged that the appellant would need to live in or near a major city where specialist health care is available. It is clear from the decision that the judge was also satisfied on the evidence that treatment would be available to the appellant in Windhoek. In the circumstances, the conclusion at [19] that there would not be problems in accessing treatment was one undoubtedly open to the judge on the evidence.
18. We have also considered the judge’s treatment of the related article 8 ECHR claim in relation to the appellant’s ability to access HIV treatment. However, we are satisfied that the findings and reasoning from [21] onwards were open to the judge on the evidence and adequately reasoned. The judge applied the correct burden and standard of proof and addressed in sufficient detail with reasons the issues of very significant obstacles to integration and whether there were unjustifiably harsh consequences if the appellant were to be removed to Namibia.
19. In summary, whilst the decision of the First-tier Tribunal is very short, we are satisfied that it cannot be said that the findings were not open to the judge, or ones which no reasonable judge could have reached. The reasoning is admittedly brief, but we find sufficient to justify the findings.
20. In passing, we also note that the grounds do not address the judge’s alternate finding that the appellant had failed to demonstrate that relocation to a different part of Namibia would be unreasonable. Even if the judge had erred in relation to the risk on return issue, the appeal would be bound to have failed on that ground alone.
21. In all the circumstances and for the reasons summarised above, we are satisfied that there is no material error in the making of the decision of the First-tier Tribunal. It follows that the appellant’s appeal must fail.

Notice of Decision
The appellant’s appeal to the Upper Tribunal is dismissed.
The decision of the First-tier Tribunal stands as made.
We make no order as to costs.

DMW Pickup

Judge of the Upper Tribunal Sitting in Retirement
Immigration and Asylum Chamber

3 March 2025