Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002987
First-tier Tribunal No: PA/53140/2023

THE IMMIGRATION ACTS

Decision and Reasons Issued:
On the 07 April 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE MALIK KC

Between

FH (somalia)
(ANONYMITY DIRECTION made)
Appellant
and

SECRETARY OF STATE
FOR THE HOME DEPARTMENT
Respondent

Representation

For the Appellant: Ms Judie Fingland, McGlashan Mackey Solicitors
For the Respondent: Dr Suzana Ibisi, Senior Presenting Officer

Heard at Field House on 25 February 2025

Order Regarding Anonymity

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant 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 them or any member of their family. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Rea, promulgated on 15 May 2024. By that decision, the Judge dismissed the Appellant’s appeal against the Secretary of State’s decision to refuse her protection and human rights claims.
Factual background
2. The Appellant is a citizen of Somalia, born on 5 December 2002.
3. The Appellant left Somalia on 12 February 2021 and travelled through Ethiopia, Turkey, Greece, Switzerland, and the Netherlands before arriving in the United Kingdom on 8 December 2021. She made a protection claim on arrival, stating that she was at risk from Al-Shabaab. She claimed to have refused a marriage proposal from one of its members and feared she would be killed if returned.
4. The Secretary of State refused her protection claim, along with the associated human rights claim, on 11 May 2023. It was concluded that her account was not credible and, in any event, that she could internally relocate within Somalia.
5. The Judge heard the Appellant’s appeal against the Secretary of State’s decision on 10 May 2024. The Judge found that the Appellant’s account was not credible and dismissed the appeal on that basis in a decision promulgated on 15 May 2024.
6. Permission to appeal from the Judge’s decision was granted on 15 August 2024.
Grounds of appeal
7. There are three grounds of appeal.
8. The first ground is that the Judge erred in seeking corroboration of the Appellant’s account.
9. The second ground is that the Judge failed to give proper weight to the expert evidence.
10. The third ground is that the Judge erred in the application of section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.
Submissions
11. I am grateful to Ms Jodie Fingland, who appeared for the Appellant, and Dr Suzana Ibisi, who appeared for the Secretary of State, for their assistance and clear submissions.
12. Ms Fingland made submissions in line with the pleaded grounds of appeal. She invited me to uphold those grounds and to set aside the Judge’s decision on the basis that it was wrong in law.
13. Dr Ibisi resisted the appeal and submitted that the Judge made no error of law in dismissing the Appellant’s appeal. She invited me to uphold the Judge’s decision and dismiss the appeal.
Discussion
Ground (1): Corroboration of the factual account
14. The Judge, at [13], stated:
“The factual basis for the Appellant’s claim is not supported by any credible independent evidence. While she relies upon the report of Ms O’Reilly, this is an expert report compiled on the basis of information supplied to Ms O’Reilly by the Appellant’s solicitors. Ms O’Reilly report is based solely on the information provided to her. Similarly, the medical report from Dr Kousar provides no support for what the Appellant claims occurred in Somalia. I have considered what evidence might have been available to the Appellant from an independent third party. The Appellant remains in contact with her family in Somalia. There is no reason why evidence could not have been obtained from her mother in the form of a statement. It is entirely conceivable that evidence could have been obtained regarding her father’s death in the form of a death certificate or reports in local media. The Appellant claims that when she was in Mogadishu she was stabbed in the leg from which she suffered scarring. There is no evidence that this scarring has been observed by a medical professional in the UK and no explanation for why this has not been provided. As it is, the appeal stands or falls on the evidence of the Appellant alone.
15. In my judgment, there is a failure in these reasons to recognise that there was no duty on the Appellant to provide corroborative evidence for her factual claim. As Singh LJ, with whom Warby LJ and King LJ agreed, noted in MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216, [2023] Imm AR 713, at [86]:
“… there is no requirement that the applicant must adduce corroborative evidence … On the other hand, the absence of corroborative evidence can, depending on the circumstances, be of some evidential value: if, for example, it could reasonably have been obtained and there is no good reason for not obtaining it, that may be a matter to which the tribunal can give appropriate weight …”
16. The Judge’s reasoning does not demonstrate that he applied this distinction in rejecting the Appellant’s factual account. The Judge did not indicate that he was treating the lack of corroboration as merely of evidential value. The reasoning shows that the Judge sought to impose a requirement for corroborative evidence.
17. Dr Ibisi referred me to TK (Burundi) v Secretary of State for the Home Department [2009] EWCA Civ 40, at [16], where Thomas LJ, with whom Waller LJ and Moore-Bick LJ agreed, observed:
“Where evidence to support an account given by a party is or should readily be available, a Judge is, in my view, plainly entitled to take into account the failure to provide that evidence and any explanations for that failure. This may be a factor of considerable weight in relation to credibility where there are doubts about the credibility of a party for other reasons. I accept, as did the Judge, that Miss Mutoni, his first partner, might well have been reluctant to help, but there was no evidence that any attempt had been made to seek her help in circumstances where her failure to help would result in serious financial disadvantage to the support to her child, and no evidence as to the payments alleged to have been made. Nor in my view can Immigration Judge Scobie in any way be criticised for his rejection of the appellant's account of why he had not sought evidence from his current partner, Miss Ndagire. In my view the approach of the Judge on the evidence before him was an approach he was entitled to take in assessing the appellant's credibility; there was no error of law. On that evidence, he was entitled to reach the view that the family life was not as strong as the appellant claimed or in other words not strong at all. He was therefore entitled to come to the conclusion he demonstrably arrived at with great care, that the balance under Article 8 came down in favour of the appellant being returned to Burundi. In my judgment, there was no error of law and this ground of appeal fails.”
18. At [20], Thomas LJ added:
“The circumstances of this case in my view demonstrate that independent supporting evidence which is available from persons subject to this jurisdiction be provided wherever possible and the need for an Immigration Judge to adopt a cautious approach to the evidence of an appellant where independent supporting evidence, as it was in this case, is readily available within this jurisdiction, but not provided. It follows that where a Judge in assessing credibility relies on the fact that there is no independent supporting evidence where there should be supporting evidence and there is no credible account for its absence commits no error of law when he relies on that fact for rejecting the account of an appellant.”
19. It is tolerably clear that the Court of Appeal was not seeking to place a duty on asylum applicants to corroborate their factual claims with independent evidence. It is perfectly legitimate for a judge to adopt a cautious approach to an appellant’s factual claim where independent supporting evidence is readily available but has not been provided. In such circumstances, the lack of corroborative evidence can be a factor to be taken into account when assessing the credibility of the factual account. The Judge’s reasoning in the present case does not show that he approached the lack of corroboration as merely a material factor. The Judge approached the issue of credibility on the premise that the Appellant was required to provide corroborative evidence. In doing so, the Judge erred in law.
Ground (2): Expert evidence
20. The evidence before the Judge included an expert report by Ms Karn O’Reilly, an expert on Somalia. As noted above, the Judge, at [13], stated:
“… While she relies upon the report of Ms O’Reilly, this is an expert report compiled on the basis of information supplied to Ms O’Reilly by the Appellant’s solicitors. Ms O’Reilly report is based solely on the information provided to her …”
21. It is, however, clear that Ms O’Reilly’s report was not based solely on the information provided to her by the Appellant’s solicitors. Ms O’Reilly considered the Appellant’s factual account and provided her opinion as to its plausibility in light of her expertise on Somalia. She then addressed the reasons given by the Secretary of State for rejecting the Appellant’s claim. Additionally, Ms O’Reilly provided her opinion, based on objective materials, as to the risk on return and the possibility of internal relocation.
22. The Judge was not bound to accept Ms O’Reilly’s evidence. However, in my judgment, the Judge erred in law by stating that Ms O’Reilly’s report was based solely on the information provided to her by the Appellant. There was no proper engagement by the Judge with the opinions expressed by Ms O’Reilly in her report.
Ground (3): Section 8 of the 2004 Act
23. The Judge, at [17], stated:
“The Appellant was granted asylum in Greece in October 2021 and travelled through Switzerland and the Netherlands before entering the UK. I find that section 8 is engaged and that the Appellant’s credibility is damaged by her failure to accept asylum in Greece and to claim asylum in the safe countries of Switzerland and the Netherlands. I find that the Appellant’s conduct is consistent with a personal choice to come to the UK rather than as a matter of necessity.”
24. It is questionable whether section 8 of the 2004 Act applies to the Appellant at all, given that she had applied for asylum in Greece, where it was granted. However, I do not need to decide that question, as the Judge’s reasoning reveals a separate error in the application of section 8 of the 2004 Act.
25. In JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878, [2009] 2 All ER 1213, at [20], Pill LJ, with whom Laws LJ and Carnwath LJ agreed, observed:
“… The section 8 factors shall be taken into account in assessing credibility, and are capable of damaging it, but the section does not dictate that relevant damage to credibility inevitably results. Telling lies does damage credibility and the wording was adopted, probably with that in mind, by way of explanation. However, it is the ‘behaviour’ of which ‘account’ shall be taken and, in context, the qualifying word ‘potentially’ can be read into an explanatory clause which reads: ‘as damaging the claimant's credibility’. Alternatively, the explanatory clause may be read as: ‘when assessing any damage to the claimant's credibility’. The form of the sub-section and Parliament's assumed regard for the principle of legality permit that construction.
26. At [24], Laws LJ added:
“For my part I would read the adverb ‘potentially’ into s.8(1), before the word ‘damaging’. If that is done, the section does not affect the power and duty of the judicial decision-maker in every instance to reach his own conclusion upon the credibility of the claimant. It therefore offers no offence to the integrity of judicial impartiality …”
27. The adverb “potentially” is missing from the Judge’s reasoning. The Judge proceeded on the basis that the application of section 8 of the 2004 Act meant that the Appellant’s “credibility is damaged”. There is no recognition that section 8 of the 2004 Act does not dictate that the damage to credibility is inevitable. In my judgment, this amounts to an error of law.
Conclusion
28. This appeal, given that it involves a protection claim, calls for anxious scrutiny. As explained in YH v Secretary of State for the Home Department [2010] EWCA Civ 116, [2010] 4 All ER 448, at [24], there is a need for decisions in this context to demonstrate, through their reasoning, that every factor which might favour an applicant has been properly taken into account. The Judge’s decision and reasons do not reflect the anxious scrutiny required for the claim. I entirely accept that I should not rush to find an error of law in the Judge’s decision merely because I might have reached a different conclusion on the facts or expressed it differently. Where a relevant point is not expressly mentioned, it does not necessarily mean that it has been disregarded altogether. It should not be assumed too readily that a judge has erred in law simply because not every step in the reasoning is fully set out. Experienced judges in this specialised field are to be presumed to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically. In this instance, for the reasons set out above, I am satisfied that the Judge erred on a point of law in dismissing the Appellant’s appeal, and that the error was material to the outcome.
29. Accordingly, I set aside the Judge’s decision and, applying the guidance in AB (preserved FtT findings; Wisniewski principles) Iraq [2020] UKUT 268 (IAC), preserve no findings of fact. Having regard to paragraph 7.2 of the Senior President’s Practice Statement for the Immigration and Asylum Chambers, and the extent of the fact-finding required, I remit the appeal to the First-tier Tribunal to be heard afresh by a judge other than First-tier Tribunal Judge Rea.
Notice of decision
30. The First-tier Tribunal’s decision is set aside, and the appeal is remitted to the First-tier Tribunal for a fresh hearing.
Anonymity
31. I consider that an anonymity order is justified in the circumstances of this case, having regard to the Presidential Guidance Note No 2 of 2022, Anonymity Orders and Hearing in Private, and the Overriding Objective. I make an order under Rule 14(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008. Accordingly, unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies to both parties. Failure to comply with this direction could lead to contempt of court proceedings.

Zane Malik KC
Deputy Judge of Upper Tribunal
Immigration and Asylum Chamber
Date: 4 April 2025