Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004501
UI-2024-004580

First-tier Tribunal No: PA/01777/2023
LP/03905/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

19th June 2025

Before

UPPER TRIBUNAL JUDGE RUDDICK

Between

EK
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr C. Rahman, 12 Old Square Chambers, on a direct access basis
For the Respondent: Ms Simbi, Senior Home Office Presenting Officer

Heard at Cardiff Civil Justice Centre on 10 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 her. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal (“the FTT”) of 27 August 2024 dismissing her protection and human rights appeal. As set out in more detail below, the appellant was granted permission to appeal out of a spirit of generosity, on grounds she did not set out with any clarity in her grounds of appeal and on issues that, it appears on closer examination, she did not raise before First-tier Tribunal. Unsurprisingly, those grounds are not made out.
2. The respondent has decided that the appellant may have been a victim of trafficking for the purposes of forced labour. Anonymity is therefore required under the terms of section 2 (db) of the Sexual Offences Amendment Act 1992.
The appellant’s protection and human rights claim
3. The appellant is a citizen of Kenya, and the respondent accepts that she fled Kenya after being violently targeted by her local community because her son is gay ([7]). The respondent also found that there are reasonable grounds to consider that the appellant may have been the victim of trafficking ([8]); the appellant says that she travelled to the UK with the assistance of an agent, and that the person who picked her up at the airport on arrival forced her into domestic servitude. Although she escaped her first exploiter, the woman whom she approached for help then also forced her into unpaid labour.
4. The appellant’s case before the FTT was that she would be at risk of persecution and serious harm on return to Kenya as the parent of a gay man ([9]). Although the FTT also considered whether she would be at risk of retrafficking, this was not a fear raised expressly by the appellant below. She did not rely on article 8 with regard to her private life in the UK ([10]).
The FTT’s decision
5. The FTT found that the appellant had suffered persecution in her home area, including the burning down of her home, and that she would be at real risk of persecution if she returned there: [21]. However, the FTT found that the appellant had not established that the parents of gay men constituted a particular social group (PSG), because this was not an “innate characteristic” and there was insufficient evidence that the parents of gay men were “perceived as being different by the surrounding society”.: [22]
6. The FTT further found that the respondent’s reasonable grounds decision “may be an indication that the Appellant is a vulnerable individual” but noted that the Appellant was not arguing that she would be “at greater risk of trafficking if she returns to Kenya”: [23]
7. With regard to risk on return as the parent of a gay man, the FTT found that the appellant could safely relocate within Kenya. For two months after her house had been burnt down, she had stayed with a friend who lived around 45 minutes away from her home area, which indicated that the members of her local community were not motivated or able to find her ([25]).
8. Although the respondent’s CPIN indicated that “the parents of LBQ women may experience abuse in Kenya”, there was nothing to indicate that the appellant would be recognised as such a parent if she relocated. She had not had any contact with her son since fleeing Kenya in 2017, and nothing in the appellant’s profile or her son’s profile meant that she would be recognised as the mother of a gay man outside her home area. Moreover, the appellant’s previous experience of travelling throughout Kenya as a businesswoman would assist her in identifying a safe area to relocate to. It would also increase the prospects of her being able to earn a living: [25] Relocation would be reasonable in light of the appellant’s familiarity with Kenyan language and culture and her education and work experience: [26].
9. With regard to the risk of retrafficking, “the features of her case, which led to this happening previously, would not be present if she relocates.”: [25]
10. Because the appellant would not be at risk if she relocated, she would not be in need of state protection: [27]
11. The FTT then dealt with article 8 purely in terms of whether there would be very significant obstacles to reintegration in Kenya and found there would not be, for the same reasons that internal relocation would be reasonable. The FTT noted in this connection that the appellant suffered from high blood pressure, but also that this had been diagnosed before she left Kenya and appeared to have been managed appropriately there: [30].
The grounds of appeal
12. The appellant’s grounds as set out in her application for permission to the UT were:
(i) “FTTJ applied the wrong test and failed to assess the A’s evidence correctly rather relied on the R’s findings without providing adequate reasons in the determination and reached a wrong conclusion. FTTJ’s findings are ambiguous and conflicting. (Paragraphs 21. 22 & 23).
(ii) “FTTJ made a misdirection in law while the R accepted that a positive reasonable grounds decision was made by NRM on 20/10/2023. (Paragraph 27 of the determination).
(iii) “FTTJ failed to assess A’s appeal correctly. The A’s appeal engaged article 8 while the FTTJ accepted but concluded wrongly. FTTJ failed to provide legally justified reasons and made a material error of law. (Paragraphs 28, 29 & 30 of the determination).
(iv) “It is submitted that the FTTJ has erred in law, for the reasons given above, such that the decision should be set aside. Permission to appeal is respectfully sought.
(v) “The A has well-founded fear of persecution in Kenya along with significant obstacles to return to Kenya, that’s why left her home country and claimed asylum and humanitarian protection in the UK.”
13. Grounds (iv) and (v) are simply assertions, which leaves grounds (i)-(iii). These are difficult to understand.
14. Ground (i) asserts that there was a material misdirection in law (“FTTJ applied the wrong test”) but does not identify what test or with regard to which issue. It then adds what appears to be a rationality challenge (“failed to assess the A’s evidence correctly”), a failure to provide adequate or clear reasons, and irrationality in the form of internal contradiction. The specific paragraphs it references, however, bear little obvious relation to any of these complaints. At [21], the FTT found that the appellant suffered persecution in her home area and would be at real risk of persecution if she returned there. At [22], the FTT found that she was not a member of a PSG. At [23], the FTT found that the fact that the respondent has made a positive reasonable grounds decision did not necessarily mean that the appellant was a member of a PSG or entitled to international protection, although it was a factor that would be taken into account in the overall assessment. There is no material misdirection or internal contradiction apparent anywhere in these paragraphs.
15. Ground (ii) is that there was a material misdirection in law at [27], in light of the positive reasonable grounds decision. Paragraph [27] reads:
“The Appellant does not fear persecution from the state. The threat to the Appellant is localised to her home community and therefore, there is unlikely to be a need for protection if she internally relocates.”
16. The FTT found here that because the risk of persecution emanated from non-state actors and was confined to the home area, the appellant would not require state protection if she relocated. There is no arguable misdirection in law. Read as generously as possible, this ground can only be understood as that the FTT failed to make a finding on a material issue, namely, whether the appellant would have sufficient state protection against the risk of retrafficking. However, this cannot be an error unless the FTT was wrong to find that she would not be at risk of retrafficking on return because the circumstances that led to her previous trafficking (i.e. her need to escape persecution) would not be present if she relocated. That finding was made at [25] and is not challenged here.
17. Ground (iii) refers to {28]-[30] of the determination. The first two paragraphs cite SSHD v Kamara [2016] EWCA Civ 813 and AS v Secretary of State for the Home Department [2017] EWCA Civ 1284. At [30], the FTT then applies the principles established in those cases to the facts of the case. Those facts were identified as that the “degree of private life” the appellant was likely to have formed in the UK was not an obstacle to her reintegration in Kenya, and that there were no other obstacles to her reintegration for the reasons given above, namely, that the appellant was born in Kenya, grew up there, was educated there, worked there, and “had her own family” there, and that her experience of travelling around the country for work would help her identify an area where she would be safe and able to earn a living. There is no apparent misdirection in law here, and the FTT has given adequate reasons for its conclusion, based on the limited evidence before it. This ground is simply a disagreement.
18. In a decision dated 24 September 2024, the FTT granted the appellant permission to appeal on article 8 grounds only, noting that the FTT had not considered article 8 outside the rules and that “there is no proportionality/balance sheet assessment carried out.” I pause here to note that the appellant had not pursued an article 8 claim outside the rules before the FTT; her claim was based on very significant obstacles to reintegration, which is within the rules. She did not mention article 8 specifically in her grounds of appeal and her evidence of her private life in the UK was extremely limited. In her appeal statement, she said that she was “healing and […] happy that I am living safely in the UK”, and in her appeal bundle, she included a picture of herself at a church event in the UK and a letter from the church saying that she “Has been actively involved in serving the local community – visiting the sick and feeding homeless persons among other community activities” and was a “valued member of our community”. However, at [9], the FTT recorded that the parties were in agreement about the issues before it. These did not include article 8. At [10], moreover, it specifically confirmed that the appellant was not relying on her family or private life in the UK “for the purposes of Article 8 ECHR.”
19. I consider it clear that the FTT granted permission on a ground that had not been raised and that was not Robinson obvious.
20. The appellant renewed her application on all grounds, and was successful. The UT noted that the grounds were “not strong” and that the ambiguity and conflict in the findings at [21]-[23] (ground (i)) had not been specified and were not apparent. The UT went on to find, however, that it was arguable that the FTT “did not adequately consider the vulnerability of the appellant in an area new to her and her consequent risk of retrafficking and therefore did not consider whether she would have sufficiency of protection from the state in respect of any trafficking risk”. This point was said to be “encompassed by paragraph (ii) of the grounds.” Although the point could be said to be encompassed within what was said at ground (ii), the difficulty here is that the FTT recorded at [23] that
“The positive reasonable grounds decision is part of the evidence that I will consider in reaching my decision. I accept it may be an indication the Appellant is a vulnerable individual. It was not argued on her behalf that she would be at greater risk of trafficking in the future if she returns to Kenya.”
21. Moreover, the appellant did not say in her screening interview, substantive interview or appeal statement that she feared retrafficking in Kenya. Nor was this fear raised in her ground of appeal to the FTT (there was no skeleton argument below).
22. I therefore consider that here, too, the appellant was granted permission to appeal on a ground she had not advanced before the FTT.
23. For the hearing before the UT, Mr Rahman submitted a skeleton argument, dated 28 May 2025. This reframed the grounds as follows:
A. “Failure to Properly Assess the Appellant’s Vulnerability in Internal Relocation.” Under this heading, Mr Rahman asserted that the FTT had accepted that the appellant had been a victim of trafficking and “acknowledged her significant vulnerability” at [23]. The FTT had then erred by failing to “engage with the broader risk factors that contribute to retrafficking and exploitation” when assessing the safety of internal relocation, and by failing to consider whether the appellant would have access to sufficient state protection against the risk of retrafficking.
B. “Insufficient Reasoning Regarding Localized Risk and Systemic Vulnerability”. Here, Mr Rahman cited TD and AD (Trafficked Women) (CG) [2016] UKUT 92 (IAC) for the proposition that “trafficked individuals are at heightened risk of re-exploitation upon return” and AA (Uganda) v SSHD [2008] EWCA Civ 579 for the principle that “internal relocation must be assessed in light of socio-economic conditions, support structures, and individual vulnerabilities”.
C. “Misapplication of the Refugee Convention & Particular Social Group (PSG) Status”. Mr Rahman argued under this heading that the FTT erred by failing to apply Fornah v SSHD [2007] UKHL 46, “which extends PSG status to individuals facing gender-based persecution and systemic social discrimination”) and DH (Particular Social Group: Mental Health) Afghanistan [2020] UKUT 00223 (IAC), “which affirms that societal perception is a determinative factor in PSG recognition.”
D. “Article 8 ECHR & Failure to Conduct a Proper Balancing Exercise”. Mr Rahman made three points here:
(i) “The FtT failed to conduct a proper Article 8 European Convention on Human Rights (ECHR) assessment, despite acknowledging the Appellant’s prolonged residence and integration in the UK.”
(ii) The FTT’s reasoning “contradicts” Kamara, “which requires an assessment of whether an individual would face undue hardship upon removal, including familiarity with social structures, access to healthcare, and availability of essential support networks.”
(iii) “The Tribunal ignored key factors, such as the Appellant’s integration, her lack of available protection in Kenya, and the psychological impact of forced return”.
24. There was no Rule 24 response.
The hearing
25. At hearing before me, I had a composite bundle uploaded to CeFile by the appellant after 4:00pm on the day before the hearing. To Ms Simbi’s credit, she had both chased the bundle and tried to locate as many of the relevant documents as possible herself, and she was prepared to proceed on the morning of the hearing. That bundle included the appellant’s grounds for permission to appeal, the grants of permission to appeal by the FTT and the UT, the appellant’s skeleton argument of 28 May 2025, and the appellant’s bundle before the FTT. It did not include the respondent’s bundle before the FTT, but the parties were content to proceed without it. Since the hearing, I have accessed the respondent’s bundle on the tribunal’s systems. It contains the records of the appellant’s screening interview, substantive interview and grounds of appeal to the FTT. Where relevant, I comment on its contents below.
26. The appellant’s UT bundle also included a statement by the appellant entitled “Modern Slavery Statement”, which set out details of her trafficking to and within the UK and the labour exploitation to which she was subjected. Mr Rahman confirmed, however, that this was not before the FTT, and therefore I have disregarded it in making my decision.
27. In his oral submissions, Mr Rahman explained that the inconsistency at [21]-[23] of the FTT decision was between the acceptance that the appellant had suffered persecution in the past and the finding that it was reasonable for her to relocate internally within Kenya. He submitted that the “test” for a grant of international protection was whether a person had a fear of persecution, and that if they did have a fear of persecution, they could not be expected to return to their own country because of the effect this would have on them. I sought several times to clarify this point with him, as it is fundamentally inconsistent with the long-established principles of international and UK refugee law, which recognise that a person who has been a victim of persecution can be expected to relocate internally if it would be safe and reasonable for them to do so. Ultimately, however, I concluded that this was the submission he intended to make.
28. With regard to the risk of retrafficking, his submissions were in line with the UT’s grant of permission and Grounds A and B of his skeleton argument. He did not submit, however, that the FTT was wrong to note at [23] that this argument had not been made before it.
29. Having noted that Mr Rahman had relied in his skeleton argument on the appellant’s “significant vulnerability” and the “psychological impact” on her of return to Kenya, I asked Mr Rahman what evidence there was of this before the FTT. The only thing he could point to was [7] of the appellant’s appeal statement, where she said that “I have been left traumatised by what happened to me in Kenya and my bad experience in my early days in the UK”. The medical evidence before the FTT records the appellant’s only medical problem as hypertension. Having considered the respondent’s bundle as well, I note that the appellant said at both of her interviews that she had hypertension, for which she had been prescribed medication, but that she had no other mental or physical health problems. Nor did she raise any fear of retrafficking, her private life or integration in the UK, or any article 8 issues.
30. Mr Rahman was somewhat hampered in his submissions on the article 8 ground by the fact that the appellant had presented very little evidence of her private life in the UK before the FTT. He sought to make submissions about the length of time that the appellant has now spent in the UK and about how her private life has developed further since the appeal hearing, but developments since the hearing are not relevant at this stage. Nor had any new evidence been prepared on this issue or any application for new evidence made under Rule 15(2A).
31. Ms Simbi pointed to the reasons the FTT had given for finding that internal relocation would be reasonable (as noted above) and argued that these were cogent reasons and clearly open to the FTT on the evidence before it. With regard to the risk of retrafficking, she pointed out that the appellant had not raised this fear below and submitted that it was reasonably open to the FTT to find on the evidence before it that that the circumstances that had led to her being trafficked – her use of an agent to help her flee persecution in Kenya and her isolation in the UK and lack of familiarity with the culture and society – would not be repeated on return to Kenya.
32. At the end of the hearing, I reserved my decision, which I now give with my reasons.
Discussion
33. In deciding whether the Judge’s decision involved the making of a material error of law, I have reminded myself of the principles set out in a long line of cases, including Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201, at [26], Yalcin v SSHD [2024] EWCA Civ 74, at [50] and [51], Gadinala v SSHD [2024] EWCA Civ 1410, at [46] and [47], and Volpi & Anor v Volpi [2022] EWCA Civ 464, at [2-4] and of the danger of “island-hopping”, rather than looking at the evidence, and the reasoning, as a whole. See Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5 [114].
34. The appellant’s original ground (i) is not made out. There is no inherent contradiction in expecting a person who has suffered persecution in the past to relocate within their own country. It is certainly possible that the experience of persecution may leave a person too physically or psychologically vulnerable to return to the country in which the persecution took place but that does not mean that it is an error of law not to assume that this is the case. As noted above, there was almost no evidence of the appellant’s ongoing vulnerability in front of the FTT. Nor was it argued below that she was too vulnerable to return or relocate internally. Her case was that internal relocation would be unsafe, because her persecutors would be both willing an able to track her down anywhere in Kenya and subject her to further harm.
35. The appellant’s original ground (ii) is not made out, even after its reformulation by the UT in its grant of permission and in Grounds A and B of Mr Rahman’s skeleton argument. The FTT did not “acknowledge” the appellant’s “significant vulnerability” as claimed in the skeleton argument. There was no evidence of “significant vulnerability” before it. The FTT did accept that the appellant “may” be vulnerable as a result of her experience of trafficking. However, the FTT did not make that finding in connection with a claim by or on behalf of the appellant that she was a risk of retrafficking on return because of this vulnerability. As noted above, the appellant did not make such a claim below. The FTT made this remark in the course of rejecting Mr Rahman’s submission that the appellant was ipso facto a member of a PSG because she had received a reasonable grounds decision.
36. Nor is it arguable that the TD and AD establishes the principle that all former victims of trafficking are at risk of retrafficking. Whether there is a risk of retrafficking is a fact-sensitive question. The FTT considered whether the circumstances that led to the appellant being trafficked in the past were likely to be repeated and decided that they were not. Although it did not explicitly consider whether anything in the appellant’s social or economic circumstances would create a new vulnerability to trafficking (the error identified in Ground B), there is no evidence that it was asked to do so. Moreover, there has been no challenge to the factual findings on which the FTT based its conclusion that relocation would be reasonable and reintegration would be possible. These factual findings would be sufficient to conclude that the appellant would not be at risk of retrafficking for economic or social reasons.
37. Ground C bears no relation to anything that was argued in the original grounds and does not speak to the FTT’s reasoning in this case. The FTT’s finding that the appellant was not a member of a PSG was based not based on a failure to recognise the reality of gender-based persecution or the relevance of social perception. It was based on findings that being the parent of a gay son was not an innate characteristic and that parents of gay men were not perceived as socially distinct in Kenya. The grounds do not challenge these findings.
38. Ground D is not arguable. In the first place, the FTT did not make any finding about the appellant’s prolonged residence and social integration in the UK as is claimed. It was not asked to do so, because the appellant did not rely on her private life in the UK in her appeal ([10]) and provided minimal evidence of it. At the hearing before me, Mr Rahman repeatedly made submissions about the appellant’s length of residence in the UK, but it is not relevant to the decision I have to make because it was not relied on below. Secondly, the FTT did consider the appellant’s length of residence in Kenya, her familiarity with the language and culture, her education and her work experience before finding that she could relocate, and then referred back to these findings when considering whether there would be very significant obstacles to reintegration. It also considered the appellant’s only declared health problem – hypertension – and that it had been diagnosed and adequately managed in Kenya. The FTT cannot have erred by failing to consider the lack of protection in the article 8 context, because it had found that protection would not be required, nor in failing to consider the “psychological impact of forced return”, about which there was no evidence before it.
39. For these reasons, the grounds are not made out.
Notice of Decision
The decision of the First-tier Tribunal dated 27 August 2024 contained no error of law and is upheld. The appellant’s appeal is dismissed.

E. Ruddick

Judge of the Upper Tribunal
Immigration and Asylum Chamber

16 June 2025