Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004466
UI-2024-004468

First-tier Tribunal No: PA/58694/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

27th June 2025

Before

UPPER TRIBUNAL JUDGE MAHMOOD
UPPER TRIBUNAL JUDGE LODATO

Between

AK
(ANONYMITY ORDERED)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Dunne, Immigration Advice Service
For the Respondent: Dr Ibisi, Senior Home Office Presenting Officer

Heard at Manchester Civil Justice Centre 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. The parties may apply on notice to vary this order.

DECISION AND REASONS
Introduction
1. We have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal because the underlying claim involves international protection issues in that the appellant claims to fear persecution or serious harm on return to Namibia. In reaching this decision, we are mindful of the fundamental principle of open justice, but we are satisfied, taking the appellant’s case at its highest for these purposes, that the potential grave risks outweigh the rights of the public to know of her identity.
2. In this matter, the appellant, a Namibian national, appeals against a decision of First-tier Tribunal Judge McCall (“the judge”) who dismissed her appeal on protection and human rights grounds.
3. We are considering whether there is an error of law in the decision of the judge. If we conclude that there is no error of law in the judge’s decision, then the decision will stand. If we conclude that the judge’s decision falls to be set aside because it involves a material error of law, we will then decide whether to remake the decision or remit the matter to the First-tier Tribunal to consider the matter further.
Appeal to the First-tier Tribunal
4. The appellant appealed against the refusal of her protection and human rights claim. In the refusal decision, of 9 October 2023, the respondent accepted much of the appellant’s underlying narrative about the events she claimed had preceded her departure from Namibia. The substance of the decision began by accepting the following factual matters:
• You were forcefully entered into a marriage contract with your uncle. (PIQ 3b, AIR 43)
• You were subject to FGM by your grandmother and 3 other women from your community (AIR 43, 45)
• You were raped by your uncle after refusing to marry him (AIR 53) Your former partner beat [sic] upon learning of your marriage contract with your uncle which resulted in miscarriage (AIR 57-58)
• You reported your issues to local police who refused to intervene (AIR 53, PIQ 3b, Police Report, Ovaherero Traditional Authority Letter)
5. The refusal decision continued by taking an adverse credibility point on the strength of s.8 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 because of the delay in the appellant making a protection claim upon arrival in the UK. However, curiously, it was stated that this aspect of her post-arrival conduct damaged her “credibility when considering the material facts outlined above”; material facts which had already been accepted. In the context of assessing well-founded risk on return, it was decided that those she feared did not hold significant power or influence. Despite accepting the bedrock of the factual narrative, the protection claim was refused because the conclusion was reached that the appellant could turn to the Namibian authorities for sufficient protection and could reasonably internally relocate to obviate any risk she might face.
6. The respondent’s position crystallised in the context of an exceptionally detailed 41-paragraph review, dated 25 April 2024, where even the sole credibility point (under s.8 of the 2004 Act) taken against the appellant in the refusal decision was not expanded upon. Neither credibility in general, nor the claim to have been victim of Female Genital Mutilation (‘FGM’), were identified as issues to be decided in the proceedings.
7. This was therefore the backdrop against which the judge heard the appeal on 24 July 2024.
8. At [5] of his decision, the judge acceded to an application to treat the appellant as a vulnerable witness and later, at [17], self-directed that this factor was to be considered in the assessment of credibility. For present purposes, it is important to set out in full the judge’s summary of preliminary discussions he held with the parties, at [8]-[9]:
[8] The next issue related to the ASA in which the Appellant argues at paragraph 3 [page 30] that the Respondent has “accepted the Appellant’s account in full”. The Respondent does not appear to have dealt with that issue in the written review and I asked if it was correct that the account had been accepted in full as I understood from the RfRl that the Respondent had no [sic] accepted that members of the Appellant’s family, in particular her father, her son, her younger sister and her cousin had not been targeted, harassed and threatened by her maternal grandmother or maternal uncle after the Appellant had fled Namibia. Miss Tunstall confirmed that was correct and the issue of sufficiency of protection and internal relocation remained live issues for the purpose of the appeal.
[9] I then drew Miss Ballard’s attention to page 391 of the bundle and the Appellant’s medical notes which she had submitted in her appeal bundle. I pointed out that whilst the Respondent had accepted the Appellant’s claim that she had been subjected to forced Female Genital Mutilation (FGM) in the RfRl and the Review, the doctor’s medical note states that on the 21st April 2020 under the heading “procedure”, “no family history of female genital mutilation. Discussion about female genital mutilation aware of what this is – not practised in community”. Miss Tunstall added at this point that she had also noted that discrepancy and intended to ask the Appellant some questions on that issue. I explained that in my opinion as the Appellant was relying on the medical records she should have dealt with the inconsistency between the records and her claim in her appeal statement. Following further discussions with the representatives and bearing in mind the Appellant is a vulnerable person I directed the representatives to deal with the issue, if possible, by way of pre hearing questions from the Respondent with written responses from the Appellant to avoid her having to potentially recall a traumatic event. The parties helpfully engaged in that approach and a set of questions and responses was served on the tribunal prior to the hearing commencing. The parties were directed to upload that document to the digital platform.
9. The judge noted, at [10], that the appellant “was tearful at times throughout the hearing” but that she “engaged fully with the process”. In summarising the agreed and disputed issues, at [12], the judge recorded the factual matters accepted in the refusal decision. However, the credibility of the FGM claim was omitted from this list and added to the list of matters to be determined.
10. The judge embarked on a broad and sweeping credibility assessment, at [18] - [25], where he rejected the appellant’s claim that JK was a powerful military figure and her explanation for the delay in claiming asylum in the UK.
11. Next, the judge turned, at [26], to the FGM credibility issue by summarising the medical record he had alluded to earlier and the written questions and answers which amounted to the appellant’s evidence at the hearing. Adverse findings of fact were reached, at [27]-[28], before the judge considered, at [29], supporting documentary evidence which was relied upon to show, in part, a previous consistent statement to the authorities in 2017 about being victim to FGM:
[27] I have carefully considered the Appellant’s response to question a) and do not find it credible that she would not have informed the doctor that she had been subjected to forced FGM once the topic was raised. I do not accept the Appellant may have been confused by the terminology between FGM and cutting. The responses to question b) and c) that the Appellant informed the doctor of what had happened to her is not supported by the medical notes or letters from various appointments and examination reports and the Appellant has not directed me to any evidence that supports that claim. I accept that in regard to question d) the Appellant would have no control over what is mentioned in the examination report. I do however find weight in the Respondent’s argument that if forced FGM had been undertaken on the Appellant, that given the number of medical examinations she has undertaken for various complaints over a prolonged period of time it is incredible that there is no reference to it.
[28] The Appellant has accepted in the consultation with her doctor on 21st April 2020 that FGM is not a practice normally conducted in her community. Taking all of the evidence in the round I do not find the Appellant’s claim to have been subjected to forced FGM to be credible.
[29] The Appellant has been subjected to serious physical domestic violence from her ex-partner JK and she has also been raped by her uncle H on a number of occasions. The Appellant has reported the forced marriage contract to the police which is supported by a police report. The Respondent has taken no issue with that report. The report [page564] is the sworn statement of the Appellant relating to an incident on 23rd March 2017 where she was taken by force by relatives and subjected to FGM and also forced into a marriage contract. I have found the Appellant’s account of FGM is not credible and that must therefore undermine her account of events that she gave to the police. The report is dated 24th March 2017 at 08 hours, so the morning following the FGM. In the Appellant’s PIQ [page 573] she states that “several days after the ritual my grandmother took me to the tribal elders to arrange the marriage”. She goes on to explain she then managed to escape at that time from the village with the assistance of others. The Respondent has not taken issue with the date of the report to the police and the date the Appellant claims the event, and then her escape is said to have happened. I find there is an inconsistency in the evidence.
12. The judge found in the appellant’s favour that she had suffered serious sexual and physical violence during an incident in 2017 and was not assisted by the police, who were equally unhelpful when she reported a marriage contract ([30]). The appellant was found to have indulged in speculation about the events that had befallen her family since her departure ([33]-[35]). It was not accepted that the appellant had lost contact with her family, as claimed ([36]). At [37], it was decided that the appellant could turn to the authorities for sufficient protection and, at [38] and [44]-[45], internal relocation was found to be a reasonable proposition, relying in part on the previous finding that she had not been victim to FGM.
13. Applying these findings to the protection and human rights grounds of appeal, the judge concluded that none were made out and dismissed the appeal.

Appeal to the Upper Tribunal
14. The appellant applied for permission to appeal in reliance on the following grounds:
i. There was procedural unfairness because the judge had permitted the withdrawal of a concession, made by the respondent in her refusal letter, in which it was accepted that the appellant had been the victim of forced FGM in Namibia;
ii. The judge’s findings in respect of sufficiency of protection and internal relocation were irrational because paragraph 339K of the Immigration Rules required the judge to have regard to the past rape by her uncle and others as a serious indication of the Appellant’s well-founded fear of persecution; and
iii. The judge failed to consider the appellant’s vulnerability when making his findings.
15. First-tier Tribunal Judge Seelhoff granted permission on the first ground of appeal. The appellant renewed her application to the Upper Tribunal in respect of the grounds upon which permission to appeal had been refused.
16. Upper Tribunal Judge Loughran granted permission to appeal on the remaining two grounds.
17. At the error of law hearing, we heard oral submissions from both parties. Ms Ballard, who appeared on behalf of the appellant in the First-tier Tribunal, provided a witness statement about the events which unfolded at the hearing. She said this:
As part of the preliminary discussion, Judge McAll said that the medical records contradicted the Appellant’s account that she had been a victim of FGM. I stated the Respondent had already conceded that the Appellant had been a victim of FGM, and this issue was not addressed in the Respondent’s review. Judge McAll stated that he could not accept the Respondent’s position that the Appellant had been a victim of FGM because this was not confirmed in the medical records, and that this issue was now in dispute, notwithstanding the concession made in the initial refusal letter. The Respondent confirmed they intended to ask questions on this topic.
As we had not been on notice that the Appellant’s experience of FGM was in dispute, I took instructions from the Appellant. The Appellant indicated she was not comfortable discussing her personal medical history and her FGM experience in front of a male Judge.
I requested an adjournment, and for the hearing to be heard by a female Judge.
Judge McAll called for a break in the proceedings to find out if a female Judge would be available to hear the case that day. When he returned from the break, he indicated no female Judge would be available, but as an alternative, the Appellant could answer the Respondent’s questions regarding FGM only in a written format. He stated he would not ask any additional questions to the Appellant on this issue.
The hearing then proceeded with the above arrangement taking place.
18. For the respondent’s part, the Home Office Presenting Officer’s note of the hearing was provided which recorded:
Judge raise inconsistency with FGM in medical record – allowed R to ask questions regarding as in unclear.
Beginning of the hearing the appellant does not want to be asked questioned regarding FGM in front of male due- PO agreed to having them written form – these was sent by email to me and put on the ROP.
19. Ms Ballard was present at the hearing and available to be questioned. Dr Ibisi was asked whether she would be seeking to challenge Ms Ballard’s narrative of the events she described at the hearing. Dr Ibisi confirmed that she did not challenge the accuracy of Ms Ballard’s account.
20. During her submissions, and in discussion, Dr Ibisi accepted that the approach adopted by the judge during to the hearing rendered the proceedings materially unfair. It was therefore accepted that the appeal should be allowed on the strength of ground one.
Analysis and Consideration
21. The law in respect of errors of law is well settled and we need not repeat it at any length. The Court of Appeal’s judgment in R (Iran) and others v Secretary of State for the Home Department [2005] EWCA Civ 982; [2005] Imm A.R. 535 sets out the framework. We must also ensure that we have regard to, and respect, the expertise of the First-tier Tribunal, especially since it had the benefit of seeing and hearing from the appellant and her legal advisers.
22. As this appeal involves the respondent’s departure from a settled concession that credibility was not meaningfully in issue and that there was no dispute that the appellant had suffered FGM, it is necessary to set out in some detail, the legal principles which fall to be applied where it is sought to withdraw a concession.
Withdrawal of a concession
The issues-based approach and overlap with withdrawal of a refusal decision
23. Before turning to the authorities which touch upon the principles to be applied when a judge is considering whether to permit a concession to be withdrawn, it is important to consider the procedural sea change which has recently unfolded in this jurisdiction.
24. In Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC), a Presidential panel emphasised the fundamental importance of the parties’ engagement in a process to define and narrow the issues in dispute. The substantive hearing was treated as an important juncture by which time the parties should have a clear understanding of their respective cases and the principal controversial issues to be resolved by the tribunal. It was made clear that judges are not expected to trawl through the papers to interrogate the positions adopted by the parties, the implication being that the parties in this specialist jurisdiction are to be trusted to know what their cases are and to be aware of the relevant legal principles. An exception to this general approach would be where a judge has overlooked a Robinson-obvious point of law.
25. In a further Presidential panel, observations to much the same effect were made in TC (PS compliance - "issues-based" reasoning) Zimbabwe [2023]UKUT 00164 (IAC) where it was emphasised that the procedural machinery of Practice Statement No 1 of 2022 was designed to promote focussed attention on the genuinely disputed issues so as to produce proportionately efficient proceedings.
The caselaw on concessions
26. Senior tribunals and courts have, on a number of occasions, considered the principles which fall to be applied when a party seeks to withdraw a concession which had been previously made in the proceedings. Below, we seek to draw out the key substantive and procedural themes which have emerged from those decisions.
27. In Carcabuk & Bla v SSHD 00/TH/01426, the Immigration Appeal Tribunal (Collins J and Judge Ockleton) heard two appeals together with a view to providing authoritative guidance (see [2]) as to the approach which should be adopted when the respondent to an appeal has tacitly or expressly conceded that an appellant was credible about important factual matters. The implications for procedural fairness were stark where an appellant chose not to give oral evidence in reliance on such a concession. For present purposes, important observations were made about the principles at stake, at [11] and [12(4) & (6)] (other observations were made in relation to the procedure to be adopted in such a situation which we address below):
[11] It is in our judgment important to identify the precise nature of any so-called concession. If it is of fact (for example that a particular document is genuine or that an event described by the appellant or a witness did occur), the adjudicator should not go behind it. Accordingly, if facts are agreed, the adjudicator should accept whatever is agreed. Equally, if a concession is clearly made by a HOPO that an appellant is telling the truth either generally or on specific matters, the adjudicator may raise with the HOPO his doubts whether the concession is appropriate but, if it is maintained, he should accept it. But there is all the difference in the world between a concession and a failure to challenge. The former will bind the adjudicator, the latter will not. Furthermore, any concession can be withdrawn so that, for example, the case before the Tribunal can be presented in a different way to that before the adjudicator. It is open to a HOPO to withdraw a concession made before an adjudicator before the hearing is concluded, but the appellant must be given a proper opportunity to deal with the new case against him and unless there is good reason for the withdrawal such as the discovery of fresh material we doubt that the adjudicator should permit any adjournment which such withdrawal would be likely to necessitate. […]
[…]
[12(4)] A HOPO may make any concession before an adjudicator. If he does, the adjudicator may ask him to reconsider it if he believes it may be wrong to make it. But the adjudicator must always bear in mind that the appellant may have prepared his case on the basis of the concession and so must ensure, if he persuades the HOPO that he should not make it, that the appellant is not prejudiced. In reality, HOPOs should not make concessions unless sure that they should be making them.
[…]
[12(6)] A concession can be withdrawn but, if a HOPO seeks to do this, the adjudicator must be satisfied that the appellant will not be prejudiced if the hearing continues and should only allow an adjournment if persuaded that there was good reason to have made and to withdraw the concession.
28. The Court of Appeal considered the relevant principles in SSHD v Davoodipanah [2004] EWCA Civ 106. In these proceedings, the respondent conceded at first instance that the international protection appeal ought to succeed if the appellant were found to be credible about the key parts of her narrative. Drawing on Carcabuk, Kennedy LJ said this, at [22]:
[22] It is clear from the authorities that where a concession has been made before an adjudicator by either party the Immigration Appeal Tribunal can allow the concession to be withdrawn if it considers that there is good reason in all the circumstances to take that course. […] Obviously if there will be prejudice to one of the parties if the withdrawal is allowed that will be relevant and matters such as the nature of the concession and the timing may also be relevant, but it is not essential to demonstrate prejudice before an application to withdraw a concession can be refused. What the tribunal must do is to try to obtain a fair and just result. In the absence of prejudice, if a Presenting Officer has made a concession which appears in retrospect to be a concession which he or she should not have made, then probably justice will require that the Secretary of State be allowed to withdraw that concession before the Immigration Appeal Tribunal. But, as I have said, everything depends on the circumstances, and each case must be considered on its own merits.
29. The analysis of Kennedy LJ in Davoodipanah was the platform used by Goldring LJ to expand upon the principles to be considered in NR (Jamaica) v SSHD [2009] EWCA Civ 856, a case in which there had been a series of shifting and contingent concessions made about discrete issues in a protection appeal. At [12] of his judgment, the following matters were held to be of importance in the assessment of whether a concession should be allowed to be withdrawn:
[12] As Kennedy LJ makes clear, the Tribunal may in its discretion permit a concession to be withdrawn if in its view there is good reason in all the circumstances for that course to be taken. Its discretion is wide. Its exercise will depend on the particular circumstances of the case before it. Prejudice to the applicant is a significant feature. So is its absence. Its absence does not however mean that an application to withdraw a concession will invariably be granted. Bad faith will almost certainly be fatal to an application to withdraw a concession. In the final analysis, what is important is that as a result of the exercise of its discretion the Tribunal is enabled to decide the real areas of dispute on their merits so as to reach a result which is just both to the appellant and the Secretary of State.
30. Much like NR (Jamaica), in CD (Jamaica) v SSHD [2010] EWCA Civ 768, the Court of Appeal considered whether the respondent should have been permitted to withdraw concessions, against the backdrop of several shifts of position, made in the context of a protection appeal brought by a foreign criminal convicted of attempted murder. While the respondent was criticised for its conduct of the proceedings, it was found that an application to withdraw a concession should have succeeded on the facts. Moses LJ referred, at [27]-[28], to the restraint which must be exercised before a decision is taken to reverse a decision of a specialist tribunal not to permit a concession to be withdrawn, even if the senior court might have reached a different view on the application. A decision to refuse to allow a concession to be withdrawn could only succeed if found to be irrational in a public law sense. We note that the same principles must apply where, as here, the challenge relates to a decision to permit a concession to be withdrawn. Moses LJ, at [13] of his judgment, noted the importance of giving good notice of an application to withdraw a concession to afford a workable opportunity to the other side to prepare for the reframed case they would accordingly have to meet.
31. A number of the authorities discussed above, and others, were summarised by Jackson LJ in AK (Sierra Leone) v SSHD [2016] EWCA Civ 999.
32. In AM (Iran) v SSHD, Simon LJ found, at [57(5)], that a First-tier Tribunal Judge ought to have inquired as to the foundation for a concession going to the objective risk of persecution on return to Iran which appeared to be out of step with binding country guidance.
33. The authorities indicate that there is likely to be wider scope to permit a concession to be withdrawn if the concession was productive of an error of law. In a different legal context, the House of Lords in Bahamas International v Threadgold 1 W.L.R. 1514 held as much (at 1525G). The Supreme Court applied this principle in a contracts appeal: Armstead v Royal & Sun Alliance Insurance Co Ltd [2025] AC 406. At [46] of their judgment, Lord Leggatt and Lord Burrows JJSC held: “[i]t would be inappropriate to decide this appeal in reliance on a concession that we did not think was legally correct”.
34. A party seeking to withdraw a concession bears the burden of establishing that there is a good reason to allow them to do so and the applying party is expected to act in a procedurally fair way. At [44] of the judgment in AM (Iran), Simon LJ made these observations about the importance of a fair process:
[44] In my view the Secretary of State’s application to withdraw the concession made before the UT cannot easily rely on principles of justice and fairness, particularly when it is sought to do so in a belated and informal way. One would expect those who seek to withdraw a concession to explain both promptly and frankly why the concession was made, why it was mistaken and why it is now just and fair that they be allowed to withdraw it. […]
35. Similar points were made as long ago as the decision in Carcabuk where the tribunal stressed the importance of any concessions being expressed in the clearest of terms ([12(1)]) and the need for any application to withdraw a concession to be made in good time to allow for any consequential steps to be taken ([12(3) & (7)]):
[12(3)] If the HOPO wishes to withdraw any concession made: in a refusal letter or explanatory statement, he must inform the appellant or his advisory as soon as possible and it will be for the adjudicator to decide if an application for an adjournment to enable the new case to be met is made, whether to grant it. If he does not, the concession will stand.
[12(7)] If a concession made before an adjudicator is to be withdrawn before the Tribunal, the Home Office must notify the appellant in good time. Adjournments will not be granted to allow for such withdrawals without good reason.
Application of the law to the facts
36. We are satisfied that the decision of the judge to dismiss this appeal involved material errors of law on several fronts.
37. Firstly, the authorities could not be clearer that permitting a party to resile from a concession is not a decision which falls to be taken casually. The respondent is under a procedural duty to establish that there is a good reason to shift the basis on which the opposing party has prepared for a substantive hearing. In first raising, and then permitting the respondent to introduce, a specific and important issue of credibility, the judge has not asked himself the fundamental question of whether there was a good reason for this significant change of position to be adopted. Where the respondent has not challenged, from the outset of the refusal decision, that an appellant had suffered FGM, we would expect searching judicial scrutiny of any suggestion that this issue should re-enter the frame, especially when it arises for consideration on the day of the substantive hearing. The concession which was made in the refusal decision, and maintained in the review, involved an evaluative factual assessment. The authorities are clear that such concessions are of a type which are not readily displaced.
38. The prejudice to the appellant was palpable. She could have had no forewarning before the hearing that she would be required to give evidence before a male judge about the most sensitive, traumatic and personal of matters. An appellant, much less a vulnerable appellant like AK, should not be taken by surprise in this way and such a process hardly lends itself to such a witness giving their best evidence. The approach taken by the judge is exceptionally difficult to reconcile with the principles articulated in Lata and TC. These authorities signalled a shift in the general procedural approach for all those involved in such litigation to work towards a narrowing of issues, not the kind of last-minute widening of issues which can be seen here. These authorities expressly caution against judges being required to trawl through the papers in a search for points which might be argued. Were it otherwise, it would run the appreciable risk that the parties could seldom predict with any confidence what issues were to be at stake at a final hearing. The danger would be that the parties could not have confidence about the issues which would fall to be decided such that they would be forced to prepare for every conceivable issue and eventuality. In cases like this, where credibility was not previously in issue, the appellant would be forced to proceed as though it were in issue just in case an inconsistency might be unearthed by the judge’s consideration of the papers in advance of the hearing. This kind of issues-based uncertainty would be inimical to the good administration of justice and would undermine the issues-based approach which involves a crystallisation of issues over time until the critical juncture of the substantive hearing.
39. None of this to say that judges should be incurious. Judges may raise concerns they have about matters which have been conceded irrespective of whether those concerns relate to matters of fact or law. However, in so doing, a firm grip must be maintained on procedural fairness. On the evidence we have considered, and the position adopted by the respondent, we are satisfied that Ms Ballard applied to adjourn the hearing once it had become clear that the credibility of the FGM claim was in issue. It is therefore surprising that there is nothing on the face of the decision to indicate that the application was made, or how it was decided. This is unsatisfactory. In the context of the belated shift in the respondent’s position on a matter of considerable importance, the question of whether it remained fair to proceed with the hearing that day was of real significance. Ms Ballard stated that she applied to adjourn so that a female judge could hear the sensitive evidence which was required. The judge’s makeshift procedural response of directing that the appellant’s evidence be delivered through a process of written questions and answers was, in truth, no answer to the prejudice which the appellant then faced. If it was felt that the interests of justice demanded a female judge to ventilate these sensitive personal matters, this is what should have happened even if that meant adjourning the hearing. A hastily contrived alternative process for the delivery of evidence was not an adequate solution.
40. If the judge had acceded to the application to adjourn, we have some insight into what that adjournment might have produced. The appellant made an application, under rule 15 of the Tribunal Procedural Rules, to adduce further evidence if an error of law was found and we were minded to remake the decision. In a report dated 12 February 2025, Dr Cohen provided expert evidence in which she assessed the appellant’s physical scars under the Istanbul Protocol principles. She found physical evidence which was typical of FGM. In introducing the credibility of the FGM claim as an issue at such a late stage of the proceedings, and not adjourning the hearing, the appellant and the fact-finding process was deprived of this potentially highly relevant evidence. We make no findings on the FGM issue because we are here concerned with whether there has been a material error of law, but it would clearly be open to a fact-finding judge to attach significant weight to the expert scarring evidence.
41. We are in no doubt that the judge adopted a procedurally unfair approach in how he dealt with the withdrawal of the respondent’s concession and the consequential procedural steps which fell to be considered. These are material errors of law. We set aside the decision and preserve no findings of fact.
42. As the appeal has succeeded on ground one, it is unnecessary to comment further on grounds two and three.
Further Hearing
43. We invited the parties to provide submissions as to what they thought the appropriate way forward should be if we were to find that there was a material error of law. Both parties agreed that the matter should be remitted to the First-tier Tribunal because the appellant had not had a fair hearing.
44. We consider the venue of the remaking by applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC). We have carefully considered whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statement. We also take into consideration the history of this case, the nature and extent of the findings to be made as well as the fact that the nature of the errors of law in this case mean that the appellant was deprived of a fair hearing. We further consider that it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process and we therefore remit the appeal to the First-tier Tribunal.

Notice of Decision
The decision of the First-tier Tribunal contains material errors of law, and we set it aside in its entirety.
The matter is remitted de novo to the First-tier Tribunal for hearing before a judge other than First-tier Tribunal Judge McCall. None of the findings of fact shall stand.
The respondent must reflect on their position as to the issues to be determined in this appeal. By 5pm on 2 August 2025, the respondent must provide a further review in which it is made clear whether the appellant’s credibility, and the credibility of her claim to have suffered FGM, are in dispute. If it is sought to put these matters in issue, the review must contain an application to withdraw the concession made in the reasons for refusal letter and set out the claimed good reasons which underpin the application. Any such application would then need to be decided in the First-tier Tribunal.
The anonymity direction which was previously made continues.

Paul Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

26 June 2025