Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003100

First-tier Tribunal No: PA/00273/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

6th August 2025

Before

UPPER TRIBUNAL JUDGE KAMARA
UPPER TRIBUNAL JUDGE LOUGHRAN

Between

HM
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms V Laughton, instructed by Duncan Lewis Solicitors
For the Respondent: Ms L Clewley, Senior Home Office Presenting Officer

Heard at Field House on 3 June 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 the Appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. This is the remaking of the Appellant’s appeal against the respondent’s decision of 14 January 2021 refusing the Appellant’s protection and human rights claim.
2. In a decision dated 21 March 2025, the Upper Tribunal set aside the decision of the First-tier Tribunal dismissing the Appellant’s appeal. A copy of that error of law decision is annexed below and does not require detailed repetition here.
3. We maintain the anonymity order that was granted by the First-tier Tribunal. No party requested that the order be set aside. We consider that on the specific facts of this appeal, the maintenance of the integrity of the United Kingdom’s immigration system and the Appellant, having raised a protection claim are such that an anonymity order is a justified derogation from the principle of open justice.
Relevant Background
4. The Appellant is a national of Nigeria. He claims that whilst at school in Nigeria, he had a relationship with a male friend from school (‘DO’) which lasted several years, that they kept secret. They stayed in contact, but DO died in May 2005.
5. The Appellant came to the UK on 15 December 1983, with leave to remain until 31 December 1984. He left the UK on 3 July 1992.
6. The Appellant re-entered the UK in March 1996 and claimed asylum on 27 March 1996 on the basis of his political opinion. His asylum claim was refused on 22 April 1996 and his appeal against that refusal was dismissed on 19 December 1996.
7. In 2000, the Appellant applied for leave to remain on the basis of his marriage to a Portuguese woman (‘PL’) which was refused by the Respondent on 19 July 2001 and they subsequently divorced.
8. The Appellant started a relationship with a woman (‘JS’), he claims whilst in denial about his sexual orientation. They had a son who was born on 18 June 2001. On 20 November 2001, the Appellant made an application to remain in the UK on the basis of his Article 8 ECHR right to a family and private life, which was refused. The Appellant’s appeal against that refusal was dismissed on 2 September 2002. The Appellant made an application for leave to remain on 19 February 2003 on the basis of his relationship with his son, which was refused on 29 May 2004. The Appellant claims that his relationship with JS was volatile. In hindsight the Appellant states that he believes that this was because he was not happy in the relationship on account of his attraction to men. The Appellant and JS split up in or around 2009-2010.
9. On 15 August 2003, the Appellant was convicted of violent disorder and sentenced to 4 years imprisonment. On 11 April 2006, a notice of a decision to deport was issued and deportation order was signed in respect of him on 2 May 2006. On 21 June 2010 an application to revoke the deportation order was made. This was refused on 13 January 2011 and an appeal was dismissed on 11 March 2013.
10. From 2010-2013, the Appellant claims he was in a relationship with a man (‘RC’). They met through mutual friends in 2007 and were originally just friends, but became a couple in 2010, after his relationship with JS broke down.
11. In or around 2013, the Appellant claims he received a letter from his family in Nigeria informing him that they were aware that he was gay, that he should desist from such behaviour, he was bringing the family name into ridicule and shame and that they would not hesitate to inform the security services of such practice. The Appellant’s step-mother informed his half-brother (DM) and half-sister (CT), both of whom lived in the UK.
12. When the Appellant and RC broke up in 2013, the Appellant told his brother-in-law (‘KT’) (who he was living with at the time) about his relationship with RC after KT asked him why he was upset.
13. On 22 September 2015, the Appellant lodged further submissions asking that they be treated as a fresh protection/human rights claim. The Appellant stated that he would be at risk in Nigeria as a gay man. On 13 January 2017, the Respondent refused the Appellant’s protection and human rights claim, but accepted that it amounted to a fresh claim, which afforded the Appellant a right of appeal.
First-tier Tribunal Judge O’Malley’s Decision
14. The Appellant appealed against that decision and his appeal came before First tier Tribunal Judge O’Malley (‘FtTJ O’Malley’) on 12 and 13 November 2018. In addition to the Appellant following witnesses gave oral evidence:
a. CT (the Appellant’s half-sister)
b. DM (the Appellant’s half-brother)
c. KT (the Appellant’s brother in law)
d. OS (a friend of the Appellant)
e. AOM (a distant relative of the Appellant’s brother in law KT)
15. FtTJ O’Malley did not find the Appellant to be a credible witness and rejected much of the evidence from his witnesses. Her findings included:
a. no weight should be given to the letters sent by the Appellant’s family in Nigeria and evidence from a practising barrister who had investigated the threats [126-127];
b. the evidence of OS was inconsistent and he had embellished his evidence to support the Appellant [131-132];
c. AOM’s evidence that he witnessed the Appellant in public displays of affection with RC was evasive and unclear and he had embellished his evidence to support the Appellant [133];
d. she accepted CT and DM’s evidence that the Appellant “has given them information about his sexuality, which they accept, but they have no direct knowledge of his relationships.” [134];
e. KT had embellished his evidence to support the Appellant. FtTJ O’Malley rejected his evidence that he suspected the Appellant was gay before the Appellant told him because of the amount of time he spent in the bathroom and because he had found gay pornographic material in the Appellant’s bedroom. FtTJ O’Malley considered that KT would have approached the Appellant about this in the circumstances where his children lived there and his wife was uncomfortable with the Appellant’s sexual orientation [136];
f. the Appellant’s evidence was inconsistent, there was no evidence before her to adequately explain the Appellant’s delay in claiming asylum on the basis of his sexual orientation [137], the Appellant’s and his witnesses evidence about his relationship with RC was inconsistent and no weight could be placed on RC’s evidence as he did not attend the hearing [141] and the Appellant’s evidence about his relationships was vague [154];
g. the Appellant’s involvement with LGBTI supporting organisations post-dated his claim for asylum and was opportunistic [145];
h. the Appellant has had made a number of past claims to remain in the UK and had previously lied to the Tribunal [147]
16. FtTJ O’Malley concluded that the Appellant lacks credibility, the chronology did not bear close scrutiny, the documents were not credible and the evidence of those who attended the hearing was internally inconsistent. Accordingly, she was not satisfied to the lower standard that the Appellant was gay.
Further Submissions and onward appeal
17. It is the Appellant’s case that in March 2019 he began a relationship with a man (‘KE’) which continued until June 2019. After losing contact for a few months, they resumed their relationship in October 2019 and were in a relationship at various points during the COVID-19 pandemic.
18. On 22 January 2020, the Appellant made further submissions to the Respondent based on his relationship with KE. On 14 January 2021, the Respondent refused the further submissions with a right of appeal. The Appellant lodged an appeal against that decision.
19. In or around the end of March 2022, KE returned to Ghana. The Appellant lost contact with KE, and the relationship ended in April 2022.
20. As outlined in the Upper Tribunal decision dated 21 March 2025, the Appellant’s appeal came before the First tier Tribunal on two occasions. Both decisions were subsequently set aside by the Upper Tribunal. On the most recent occasion the appeal was retained in the Upper Tribunal for remaking with the following findings preserved:
• The Appellant is not a danger to the community.
• AO (an ex-flatmate of KE) is a credible witness.
The Hearing
21. We heard oral evidence from the Appellant and KT. Ms Laughton confirmed that AO was not being called to give evidence because the finding that he was a credible witness had been preserved. We heard detailed submissions from Ms Laughton and Ms L Clewley. We reserved our decision, which we now give.
Discussion
22. In HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31, at [82] Lord Rodger set out the step-by-step approach to take when considering asylum claims based on someone’s sexual orientation. The parties agree that we are only required to determine the first question outlined by Lord Rodger i.e. whether the Appellant is gay. That is the only issue before us. The Respondent accepts that if the Appellant is gay he would be exposed to a real risk of persecution in Nigeria. Accordingly, if we are satisfied that the Appellant is gay, the parties agree that his appeal falls to be allowed.
23. The Appellant bears the burden of substantiating his claim to be gay. The standard is a reasonable degree of likelihood (sometimes referred to as a realistic possibility).
24. The decision of FtTJ O’Malley is our starting point in accordance with the guidelines in Devaseelan (Second Appeals – ECHR – Extra-Territorial Effect) Sri Lanka [2002] UKIAT 702, and we have set out her findings in detail above.
25. We note that the only finding FtTJ O’Malley made that supports the Appellant’s claim to be gay is her finding that the Appellant gave his half-brother and sister, DM and CT, information about his sexual orientation. We note that their evidence was that they had both been told that the Appellant was gay in 2013. FtTJ O’Malley didn’t make an explicit finding that she accepted this was when they were told. However, it was their evidence that they were told in 2013 and we are satisfied that FtTJ O’Malley accepted that aspect of their evidence.
26. The Appellant relies on the following fresh evidence that was not before FtTJ O’Malley:
(a) the Appellant’s witness statement dated 5 June 2022 before us setting out his relationship with KE;
(b) KE’s witness statement dated 16 January 2020 setting out his relationship with the Appellant;
(c) AO’s witness evidence (an ex-flatmate of KE) that he believed that the Appellant and KE were in a relationship and were “boyfriends” and before KE left the flat in March 2022, he often saw the Appellant come to the flat to spend the night with KE;
(d) a video recording of the Appellant and KE being interviewed by the Appellant’s representatives;
(e) KT’s witness statement dated 10 December 2019, in which he addresses FtTJ O’Malley’s reasons for rejecting his evidence. KT reiterates that he found gay pornographic material in Appellant’s room in 2012 and explains that he did not confront the Appellant because it is against their tradition to confront someone older, particularly about such a delicate topic of being gay, and that he felt very embarrassed. He explained that the topic of the Appellant’s sexual orientation remains delicate and sensitive and not to be discussed openly. He explained that he did not consider that there to be any risk of his children finding the pornographic material because it was well hidden and he confirmed that he did not consider the Appellant to be a risk to his children.
The Appellant’s evidence
27. We note the Appellant’s submission that the Appellant’s evidence regarding his relationship with KE is evidence of facts that have happened since the appeal before FtTJ O’Malley and therefore can always be taken into account. However, we take FtTJ O’Malley’s finding that the Appellant is not a credible witness as our starting point when assessing his evidence.
28. We also consider that we should approach the Appellant’s claimed relationship with KE with a degree of caution on account of his immigration history. The Appellant has made numerous unsuccessful attempts to regularise his stay in the UK. He has a clear motivation for maintaining his claim to be gay and to fabricate having had a further relationship with a man. However, we consider that the Appellant’s account should not be rejected solely because of his immigration history or because he did not rely on his sexual orientation to remain in the UK prior to 2015.
29. Whilst we treat FtTJ O’Malley’s finding that the Appellant was not credible as a starting point we found the Appellant’s evidence in his witness statement and before us to be plausible and internally consistent. We note the Appellant's evidence that he has found it difficult to accept his sexual orientation and to express himself and be open about it. We consider that the Appellant’s narrative appears to be genuinely expressed and accords with the context of having grown up in a society where being gay was considered taboo and knowing that his family would disapprove.
30. We note that the Appellant gave evidence before FtTJ O’Malley in 2018. We consider a person coming to terms with their sexual orientation in the manner in which the Appellant describes would be better able to express themselves the more comfortable they become. We consider that the development of the Appellant’s sexual identity constitutes a very good reason why the Appellant is able to adduce better witness evidence before us than he was before FtTJ O’Malley in 2018.
Corroborative evidence
31. As outlined above, there was no challenge to the finding that AO is a credible witness and that finding is preserved. It is AO’s (an ex-flatmate of KE) evidence that that he believed that the Appellant and KE were in a relationship and were “boyfriends” and before KE left the flat in March 2022, he often saw the Appellant come to the flat to spend the night with KE.
32. We have considered whether AO could have been mistaken or duped into thinking that the Appellant and KE were “boyfriends”. We consider that the most likely explanation for the Appellant regularly staying at KE’s flat is because he was in a genuine relationship with KE. If the Appellant was manufacturing a relationship with KE to further his claim to remain in the UK we consider that he would have been more demonstrably affectionate with KE in front of AO. Instead, we are satisfied that the contents and the tone of AO’s evidence indicates that what he witnessed was the Appellant and KE in a genuine relationship as “boyfriends”.
33. We place limited weight on KE’s witness statement. We note that this is evidence of facts happening since FtTJ O’Malley’s decision. However, the Respondent has not been given the opportunity to test that evidence.
34. We have both viewed the video evidence. We note that this is not the usual form of evidence that is produced before the tribunal. However, we consider that there is no reason to exclude it from our consideration. We note that Ms L Clewley did not seek to persuade us to do so. Instead she focussed her submissions on why it was of limited assistance to us. We note that it shows the Appellant and KE being affectionate with each other. However, we consider Ms L Clewley’s submission that it is important to consider the context of the video i.e. they were being interviewed by the Appellant’s legal representatives to obtain evidence has significant force. Having viewed the evidence we do not consider that it adds very much to the Appellant’s case. We consider it in the same way as we do the photographs of the Appellant and KE. They corroborate the Appellant’s account to be in a relationship with KE, but note that they could be easily manufactured.
35. We note that FtTJ O’Malley rejected KT’s evidence that he suspected the Appellant was gay before the Appellant told him. FtTJ O’Malley considered that KT would have approached the Appellant if he had found gay pornographic material because there were two children in the house and because his wife was uncomfortable with same sex relationships. We note the evidence of Kate Newman, a solicitor at Duncan Lewis and who represented the Appellant at the hearing before FtTJ O’Malley. It is Ms Newman’s evidence that KT was not asked why he did not approach the Appellant about what he had found. In his evidence before us KT explained that he kept it to himself because he thought the Appellant would talk about it when he was ready and didn’t want to upset his wife with his suspicions, that it was not their tradition to confront someone older about such a sensitive subject and that he would have felt too embarrassed. KT explains that he did not consider that the pornographic material caused him to have any concerns in respect of his children because he had only found it when he was decorating the house and there was “no way” his children would have seen it. We do not necessarily consider that someone in KT’s position would automatically speak to the Appellant. However, FtTJ O’Malley’s finding is our starting point. We are satisfied that KT has provided a plausible explanation of why he did not speak to the Appellant and that there is a very good reason why that explanation was not before FtTJ O’Malley i.e. because KT was not asked.
36. Taking FtTJ O’Malley’s decision as our starting point and considering all the evidence holistically, particularly the evidence that CT and DM were told that the Appellant was gay in 2013, KT’s evidence that he suspected that the Appellant was gay as long ago as 2012 and the Appellant told him he was gay in 2013, OA’s evidence that he witnessed the Appellant regularly visiting and staying overnight with KE and he considered them to be “boyfriends” we are satisfied to the lower standard that the Appellant is gay.
37. As outlined above, the Respondent accepts that if the Appellant is gay he would be exposed to a real risk of persecution. Accordingly the Appellant has a well-founded fear of persecution and he therefore qualifies for protection under the Refugee Convention. We are also satisfied that the Appellant’s removal would breach his rights under Articles 3 and 8 of the ECHR.
Notice of Decision
The appeal is allowed on Refugee Convention, humanitarian protection and human rights grounds (Articles 3 & 8).

G. Loughran

Judge of the Upper Tribunal
Immigration and Asylum Chamber

22 July 2025

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003100

On appeal from PA/00273/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE LOUGHRAN
DEPUTY UPPER TRIBUNAL JUDGE KIRK

Between

HM
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Dunlop KC, instructed by Duncan Lewis Solicitors
For the Respondent: Mr E Tufan, a Senior Home Office Presenting Officer

Heard at Field House on 6 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 the Appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. The Appellant, who is 60 years old, is a citizen of Nigeria.
2. In a decision which was promulgated on 22 May 2024, following a hearing in the First-tier Tribunal on 9 April 2024, First tier Tribunal Judge Gibbs dismissed the Appellant’s appeal against the decision of the Respondent to refuse his protection and human rights claim.
3. On 26 November 2024, the Upper Tribunal granted the Appellant permission to appeal to the Upper Tribunal.
Anonymity
4. We consider that it is appropriate to maintain the anonymity order made by the First tier Tribunal in light of the circumstances of the Appellant’s protection claim. No party asked for it to be set aside.
Background
5. The Appellant has a long and complex immigration history. However, it is not necessary to rehearse the background in detail given the issues before us in this appeal. A relevant summary is outlined below.
6. On 22 September 2015, the Appellant lodged further submissions raising for the first time that he would be at risk in Nigeria on the basis of his sexuality as a gay man. In a decision dated 22 December 2016, the Respondent refused the Appellant’s further submissions with a right of appeal, which he duly exercised. The Appellant’s appeal came before First-tier Tribunal Judge O’Malley on 12-13 November 2018. In a decision dated 13 December 2018, First-tier Tribunal Judge O’Malley dismissed the Appellant’s appeal. First-tier Tribunal Judge O’Malley found that the Appellant had rebutted the presumption that he was a danger to the community. However, First-tier Tribunal Judge O’Malley was not satisfied to the lower standard that the Appellant was gay.
7. It is the Appellant’s case that in March 2019 he began a relationship with a man we will refer to as KE which continued until June 2019. After losing contact for a few months, they resumed their relationship in October 2019 and were in a relationship at various points during the COVID-19 pandemic.
8. On 22 January 2020, the Appellant made further submissions to the Respondent based on his relationship with KE. On 14 January 2021, the Respondent refused the further submissions with a right of appeal. The Appellant lodged an appeal against that decision.
9. In or around the end of March 2022, KE returned to Ghana. The Appellant lost contact with KE, and the relationship ended in April 2022.
10. The appeal came before First tier Tribunal Judge Gibbs for a case management review hearing on 17 June 2022 (‘the 2022 CMR’). First tier Tribunal Judge Gibbs permitted the Appellant to adduce video evidence of himself, accompanied by KE, being questioned about his claim by a caseworker at Duncan Lewis, the Appellant’s solicitors (‘the video evidence’). First tier Tribunal Judge Gibbs stated, “in my view it would not be appropriate for a judge to draw any inference from body language or interaction, but that would of course be a matter for the judge who heard the substantive hearing.”
11. On 7 July 2022, the appeal came before First-tier Tribunal Judge Lewis who allowed the Appellant’s appeal. In respect of the video evidence, First-tier Tribunal Judge Lewis found that “it seems to me that the value of the video lies not so much in what is actually said, or in the individual mannerisms of either the Appellant or Kelvin, but in their interaction. In particular, there is occasional contact of heads in a seemingly natural, intimate, and sensitive manner – one head inclined to the other in a near ‘nestling’. This is more than a gesture of friendship; it appears to be a gesture of very great intimacy such as would be shared by lovers rather than two male friends.”
12. In a decision promulgated on 25 April 2023, the Upper Tribunal allowed the Respondent’s appeal against Judge Lewis’s determination on the grounds that Judge Lewis had failed properly to apply the principles outlined in Devaseelan [2002] UKIAT 000702 and had not given sufficient reasons for allowing the appeal. The Upper Tribunal noted that there was “no ground suggesting that the Judge was wrong to admit or give any weight to the video evidence.” As a result, the Upper Tribunal was “not in a position substantively to decide whether a video of this sort is one that can properly be accorded any weight or should in principle be admitted.” The appeal was remitted to the First-tier Tribunal with no findings preserved.
13. On 19 June 2023, First-tier Tribunal Judge Easterman directed the Respondent to indicate whether she accepted that the Appellant cannot be returned to Nigeria if he is found to be gay. On 19 July 2023, the Respondent made a supplementary decision accepting that if the Appellant is gay, he cannot be returned to Nigeria.
14. On 29 August 2023, the Appellant made an application to appeal the Upper Tribunal decision to the Court of Appeal. First-tier Tribunal Judge Easterman adjourned the appeal until this appeal application had been determined. On 4 December 2023, the Court of Appeal dismissed the application for permission to appeal.
First-tier Tribunal hearing and decision
15. On 9 April 2024, the appeal came before First tier Tribunal Judge Gibbs (‘the Judge’). As recorded in the determination at [7] the parties agreed that the issues to be determined were:
• Does the appellant present a danger to the community (s.72 of the Nationality Immigration and Asylum Act 2002);
• Is he a gay man;
• If he is accepted to be a gay man whether he would be at risk on return to Nigeria
16. The Judge also recorded at [11] that it was not in dispute that First tier Tribunal Judge O’Malley’s decision was her starting point. She noted that First-tier Tribunal Judge O’Malley had “resoundingly rejected the credibility of the evidence before them in 2018” at [13] and she reminded herself of the guidance in Devaseelan at [14].
17. At the hearing, a man we will refer to as AO gave evidence. He had also given evidence in front of First tier Tribunal Judge Lewis. The Judge records at [16] that he is KE’s former flatmate and his evidence is that in 2021 he witnessed the Appellant arriving late at night and leaving early in the morning on a regular basis and that his oral evidence at the hearing was that he believed that the Appellant and KE were more than just friends but was not in a position to judge.
18. In a determination promulgated on 22 May 2024, the Judge dismissed the Appellant’s appeal. After citing the findings in First tier Tribunal Judge O’Malley’s decision she went onto consider the new evidence before her.
19. The Judge found that Mr AO was a credible witness and that he genuinely believed the Appellant and KE were ‘boyfriends’. However, she did not consider Mr AO’s evidence alone sufficient to establish the Appellant’s claim to the lower standard of proof, given the previous adverse credibility findings.
20. In relation to the video evidence, the Judge stated at [20]-[22]:
“At [the 2022 CMR] I indicated to Mr. Ball that “in my view it would not be appropriate for a judge to draw any inference from body language or interaction, but that would of course be a matter for the judge who heard the substantive hearing.”

As it happens I am that judge and once again I reiterate that I am not persuaded that it would be appropriate for me to make any findings, either positive or negative, on the basis of my observations. I find that I must focus on the tangible evidence before me and that therefore the video recording carries no weight in my assessment of the credibility of the appellant’s claimed sexuality.

I would also note that much of the conversation is progressed by way of leading questions from the caseworker (no criticism is implied because she was not in any formal setting) and I accept that as part of her role she was naturally supportive and uncritical of the evidence given. These factors are further reasons I am not persuaded that I can place any weight on this evidence.”
21. The Judge found at [23] “that in the absence of tangible reasons to depart” from the previous determination, the negative credibility findings stood. She recorded that she was not persuaded even to the lower standard that the Appellant was a gay man and he would therefore not be at risk on return to Nigeria at [24] and she dismissed the appeal.
Permission to appeal to the Upper Tribunal
22. The Appellant applied to the First-tier Tribunal for permission to appeal on the following grounds:
(1) The Judge erred by directing herself that it would not be appropriate for her to make findings or draw inferences based on the body language and interaction of the Appellant and KE in the video evidence

(2) The Judge failed to give adequate reasons as to why it would not be appropriate for her to make findings or draw inferences based on the body language and interaction of the Appellant and KE in the video evidence.
23. In a decision dated 20 June 2024, the First-tier Tribunal refused permission to appeal, finding that the Judge had “correctly applied Devaseelan principles and thereafter considered new evidence in the round” and “was entitled to place no weight on the video evidence for the reasons set out from paragraphs 19-22 of the judgment”.
24. On 2 December 2024, the Upper Tribunal granted permission to appeal on two grounds:
“It is arguable that the judge erred by directing herself that it was not appropriate to make findings or draw inferences from a video of the appellant and his then claimed partner giving instructions to the appellant’s solicitor. It is further arguable that inadequate reasons were given by the judge for reaching the aforementioned conclusions.”
Rule 24 response
25. On 9 December 2024, the Respondent filed a response under Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008. The Respondent contended that the Judge directed herself appropriately, and her decision that it would not be appropriate for her to make any findings was based on her observations where she clearly considered the factual matrix and litigation history of the Appellant’s case. The Judge stated that she must focus on tangible evidence before her (at [21]), which is a valid reason, and her decision was one which was rationally open to her to make.
Upper Tribunal hearing and submissions
26. The oral and written submissions at the hearing are a matter of record and need not be set out in full here. We had access to all the documents before the First-tier Tribunal and the composite bundle filed by the Appellant.
27. We heard submissions from Mr Dunlop KC for the Appellant and Mr Tufan for the Respondent, which we have fully taken into account.
Discussion
28. We note at this juncture that we have not viewed the video evidence. We therefore do not purport to comment on the relevance of that evidence nor the weight that should be afforded to it.
29. We are satisfied that that the Judge materially erred in her approach to the video evidence. As outlined above, the Judge gave no weight to that evidence. First, because she was not persuaded it would be appropriate to make findings on the basis of her observations. Second, because the conversation in the video evidence was progressed by way of leading questions.
30. The Judge did not cite any authority as to why she considered it would not be appropriate to make findings on the basis of her observations, nor give any reasons as to why she considered it was inappropriate.
31. We note that the Judge acknowledged at the 2022 CMR that it would be a matter for the judge hearing the substantive hearing to determine whether it would be appropriate to draw any inference from body language or interaction. This indicates to us that the Judge didn’t consider that there was a general principle that it would be inappropriate for a judge to make findings based on their observations. In those circumstances, we are satisfied that the Judge was required to explain why she considered it was inappropriate and that she failed to do so.
32. We note that the Judge records that she must instead focus on ‘tangible’ evidence. However, is not clear to us what she meant by ‘tangible’ evidence and what types of evidence would be included or excluded.
33. We are satisfied that the Appellant cannot know why the Judge gave no weight to the video evidence.
34. For those reasons we find the Judge materially erred in law and we set the decision aside.
35. There has been no challenge to the Judge’s finding that the Appellant has rebutted the presumption he is not a danger to the community or her finding that Mr AO is a credible witness. We therefore preserve those findings.
Disposal
36. We are mindful of the Court of Appeal case of AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (Remaking or remittal) [2023] UKUT 00046 (IAC). We consider that the error did not result in such unfairness it requires the appeal to be remitted. We note that two different First tier Tribunal Judges came to opposing views in respect of the video evidence. In those circumstances we consider that it is appropriate to keep this case in the Upper Tribunal.
Notice of Decision
1. The First-tier Tribunal decision involved the making of an error of law. Accordingly, the decision of the First-tier Tribunal dated 22 May 2024 is set aside.
2. The decision will be remade in the Upper Tribunal. The time estimate is 3 hours.
3. No interpreter is required.
4. The following findings are preserved:
• The Appellant is not a danger to the community.
• Mr AO is a credible witness.
5. The Upper Tribunal will make fresh findings as to whether the Appellant is a gay man and if it is found that he is a gay man whether he would be at risk in Nigeria. The Upper Tribunal will treat the decision of First tier Tribunal Judge O’Malley as its starting point in accordance with the Devaseelan guidelines.
6. Any party wishing to rely on additional evidence must serve it on the Upper Tribunal and on the other party at least 14 days before the next hearing, accompanied by a statement pursuant to rule 15 (2A) explaining why it should be admitted.

G. Loughran
Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 14 March 2025