Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2024-004640
First-tier Tribunal No: PA/53280/2022
IA/10721/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 17th of June 2026

Before

UPPER TRIBUNAL JUDGE HOFFMAN

Between

AB
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr E Wilford of counsel, instructed by Duncan Lewis
For the Respondent: Ms A Nolan, Senior Home Office Presenting Officer

Heard at Field House on 8 June 2026

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
1. The appellant appeals, with permission, against the decision of First-tier Tribunal Judge C J Woolley (“the judge”) promulgated on 3 August 2024 dismissing his appeal against the respondent’s decision dated 12 August 2022 to refuse his asylum claim.
2. For the reasons set out below, I am satisfied that the First-tier Tribunal made material errors of law in its decision.
Anonymity
3. The First-tier Tribunal made an anonymity order in respect of the appellant. There has been no application to set aside that order. While I recognise the strong factors in favour of open justice, in the present case I am satisfied that it is appropriate to continue the anonymity order given that the appellant seeks international protection.
Background
4. The appellant is a national of Algeria. He left Algeria in December 2017 and travelled through Spain, France, and Belgium before entering the United Kingdom concealed in the back of a lorry. He claimed asylum on 14 April 2018 on the basis that he feared persecution on account of his sexual orientation as a gay man.
5. The respondent refused the appellant’s asylum claim on 12 August 2022, on the basis that she did not accept that the appellant is gay. In any event, it was considered that he had failed to provide a consistent account of the attacks he claimed were perpetrated by family members. Relying on the country guidance case of OO (Gay Men) Algeria CG [2016] UKUT 00065 (IAC), the respondent further found that, in general, the Algerian authorities do not persecute gay men. She also concluded that the appellant was not entitled to leave to remain on human rights grounds.
The appeal to the First-tier Tribunal
6. The appellant’s appeal was heard by First-tier Tribunal Judge Woolley on 31 July 2024. The judge found that the appellant lacked the mental capacity to engage effectively in the proceedings and, accordingly, he did not give oral evidence.
7. In his decision, the judge accepted that the appellant is gay. However, he found that the appellant’s father—who had previously attacked him—had since died and had been his sole persecutor. The judge further concluded that the appellant could reasonably be expected to reside with his mother’s family, as he had done prior to leaving Algeria. He rejected the evidence of the country expert relied upon by the appellant and was satisfied that, on the facts, the appellant would be unlikely to face persecution from the Algerian authorities on account of his sexuality. The judge considered that the appellant had lived discreetly as a gay man in the United Kingdom and would be likely to adopt a similar approach upon return to Algeria.
8. In relation to the appellant’s mental health, the judge did not accept that he is a seriously ill person and found that he would be able to access appropriate healthcare in his country of origin. Nor was the judge satisfied that the appellant’s removal would constitute a disproportionate interference with his right to respect for private life.
9. The appeal was therefore dismissed on all grounds.
The appeal to the Upper Tribunal
10. On 8 October 2024, permission to appeal was granted by First-tier Tribunal Judge Dempster on the following grounds:
• Ground 1: The judge erred in rejecting the appellant's account that his family would no longer support him and/or gave insufficient reasoning for his finding.
• Ground 2: The judge failed to give proper consideration to the examples of persecution of gay men in Algeria provided by the country expert Dr Hasan Hafidh.
• Ground 3: The judge erred in his understanding of what it means to live openly as a gay man; his reason was illogical; and he gave excessive weight and/or relevance to the appellant’s lack of membership of LGBTI organisations or attendance at LGBTI events.
• Ground 4: The judge failed to give proper consideration to the appellant’s Article 2 and 3 ECHR and humanitarian protection claims, in particular by failing to consider the way the appellant would be treated by Algerian society as a gay man taken together with his mental health difficulties.
• Ground 5: The judge erred by failing to consider the appellant’s mental health when considering whether there were any very significant obstacles to him re-establishing his private life in Algeria for the purposes of paragraph 276ADE of the Immigration Rules and/or as part of his humanitarian protection claim.
• Ground 6: The judge failed to give consideration to the evidence that the appellant is not fit to fly.
11. In a response filed in accordance with rule 24 of the Procedure Rules on 25 March 2026, the respondent accepted that the judge did err in law for the reasons given in Ground 2. However, the respondent maintained her opposition to the remaining five grounds of appeal.
The hearing
12. I had before me: the 540-page consolidated bundle prepared by the appellant’s representatives; the respondent’s First-tier Tribunal bundle (which had been omitted from the consolidated bundle); and Mr Wilford’s skeleton argument dated 27 May 2026.
13. I heard submissions from both parties, which are recorded in the record of proceedings.
14. At the end of the hearing, I reserved my decision.
Discussion
Ground 2
15. I begin with Ground 2, as the respondent has properly conceded that the judge erred for the reasons advanced by the appellant. That concession was rightly made. The judge considered the evidence of the country expert, Dr Hasan Hafidh, at [31]–[34]. At [31], the judge concluded that Dr Hafidh’s opinion that gay men in Algeria cannot live openly without experiencing violence and harm was contrary to the findings in OO.
16. At [32]–[33], the judge went on to consider specific examples of persecution identified by Dr Hafidh. The first concerned the conviction of 44 men following a raid on a gay wedding. The judge found this not to be inconsistent with OO, stating (in the judge’s words) that “there was a risk of attracting adverse attention in extreme cases”. That is not the language used by the Upper Tribunal in OO. At [172], the Tribunal stated, in more measured terms, that “[i]n the very few cases where there has been a prosecution for homosexual behaviour, there has been some other feature that has given rise to the prosecution”. I am satisfied that it was not irrational or unreasonable for the judge to regard attendance at a gay wedding as a potential exacerbating feature capable of giving rise to a risk of prosecution by the Algerian authorities. The same applies to the judge’s conclusion that the account of a gay man being abused by his family and expelled from his home was not inconsistent with OO.
17. However, I am satisfied that the judge strayed into impermissible speculation when considering two further examples highlighted by Dr Hafidh. The first concerned a student who was found murdered in his bedroom, with the words “he is gay” written on the wall by his killers. The judge suggested that there might “however be many explanations for this other than it being a homophobic crime”, and noted that “commentators said that the perpetrators were gay themselves; or it may have been used as a cover for an attack that was not homophobic”. As Mr Wilford submitted, this misstates Dr Hafidh’s report, which records at paragraph 43: “In an attempt to discredit the homophobic nature of this attack, commentators tried to assert that the perpetrators were gay themselves; however, this has not and has never been confirmed.” Moreover, it was irrational for the judge to rely on unidentified “commentators” in order to diminish an incident that bears the clear hallmarks of a homophobic crime.
18. The judge then addressed a further incident involving the robbery of a gay man at a café. The victim’s phone was stolen, after which he was chased by men brandishing sticks and knives while shouting homophobic chants. The judge concluded that this “might be a simple robbery—the chants do not necessarily mean that the motivation was homophobic”. In my view, that conclusion is untenable. It is perverse to find that the combination of weapon-wielding attackers and explicitly homophobic chants directed at the victim does not indicate a homophobic motivation.
19. For those reasons, I am satisfied that Ground 2 is made out.
Ground 1
20. At [35], the judge accepted that the appellant is gay and, at [36], that he had been attacked and stabbed by his father on account of his sexuality. However, the judge went on to conclude that, because his father is now deceased, the appellant could return to Algeria and live with his maternal family. The judge found that “there is no evidence that they were only supporting him because of the inheritance situation [relating to his mother, who is now also deceased]; the fact that they gave him a home for seven years shows[,] I find[,] that they were tolerant of the appellant’s homosexuality.” The judge further concluded that “the evidence is that his extended family have been supportive of the appellant. He has two brothers in Algeria and he says in his statement that his youngest brother is supportive of him.”
21. In order to understand the judge’s reasoning at [36], it is necessary to consider the findings at [25]. There, the judge rejected the appellant’s evidence that he had been tolerated by his maternal family only because “his mother had a right to their parents’ inheritance”, and that they would “no longer pretend to accept me as they have nothing to lose”, given that his mother died before her parents and thus neither the appellant nor his brothers could claim any such inheritance. The judge considered that assertion to be speculative and further held that “there is no evidence from any family member (including the uncle who might be expected to know about this situation) either that they were pretending to accept him between 2010 and 2017, or that they would not accept him now.”
22. First, it is difficult to see what evidence the appellant could reasonably have been expected to adduce from his maternal family in order to establish that their acceptance of him had been feigned for reasons connected to inheritance. Moreover, as the appellant submits, the “uncle” referred to by the judge at [25] is in fact his paternal uncle, who resides in the United Kingdom. In those circumstances, it is unclear what knowledge he could realistically be expected to have regarding the motivations of the appellant’s maternal family in Algeria. Further, it does not appear from the decision that this issue was ever put to the uncle in evidence. The appellant asserts that it was not, and the respondent does not contend otherwise.
23. For those reasons, I am also satisfied that Ground 1 is made out.
Ground 3
24. At [38], the judge noted that the appellant was not a member of any LGBTI organisations in the United Kingdom and had provided no evidence of public expressions of his identity, such as participation in “marches or attendance at mardi gras [sic]”. The judge concluded that the appellant had “lived discreetly in the UK out of choice” and that this was “a strong indication that he will behave the same way in Algeria”.
25. The appellant contends that the judge erred in equating living openly as a gay person with the need to publicise or actively demonstrate one’s sexuality. He submits that living openly does not require participation in events or organisational membership, but simply entails not concealing one’s identity—for example, not feeling obliged to deny it if asked.
26. Having considered the matter with care, I am satisfied that this ground is not made out. When [38] is read as a whole, it is apparent that the judge’s references to the appellant’s lack of involvement in LGBTI organisations or public events were not intended to suggest that such activities are prerequisites for living openly. Rather, they were made to highlight the absence of evidence as to how the appellant expressed his sexuality in the United Kingdom. For the reasons given at [38], the judge was rationally entitled to conclude that the appellant had been discreet about his sexuality and that, upon return to Algeria, he would be likely to remain so by personal choice. That conclusion is consistent with the guidance in OO, in particular headnotes 4–6.
Ground 4
27. I am satisfied that the judge was, in principle, entitled to conclude that the humanitarian protection claim and the claims under Articles 2 and 3 ECHR stood or fell on the same factual matrix as the asylum claim. However, for the reasons already given, I have found that the judge’s assessment of the asylum claim is vitiated by errors of law. Those errors necessarily undermine and infect the conclusions reached in respect of humanitarian protection and Articles 2 and 3.
Ground 5
28. At [54]–[56], the judge considered whether there were very significant obstacles to the appellant re-establishing his private life in Algeria. At [54], he addressed the appellant’s contention that his mental health issues prevented him from doing so, describing that argument as “fallacious”. The judge then referred to the expert psychiatric report prepared by Dr Naresh Kumar Buttan and made the following observations:
“…The report by Dr Buttan dealt solely with his incapacity to engage in court proceedings. It was not designed for, and cannot be used as, as [sic] a tool to measure his capacity or incapacity to participate in Algerian society. Dr Buttan does not pretend to know anything about Algerian society and the report would have to relate to Algerian society to be used in such a way…”
29. Two errors arise from that passage. First, contrary to the judge’s assertion, Dr Buttan’s report was not confined solely to the question of the appellant’s capacity to engage in the appeal proceedings. At section 8.9 of the report, Dr Buttan considers the likely impact on the appellant’s mental health if returned to Algeria, concluding that such a return “would increase his suicidal risks and also worsen his mental health as he will be reminded of his past traumas and make his PTSD worsen.” He further opined that the appellant’s depression would deteriorate due to the absence of his support network in the United Kingdom. Secondly, whilst the judge may have been correct to observe that Dr Buttan is not an expert on Algerian society, he was nonetheless required to consider the evidence in the round. Had he done so, he would have assessed Dr Buttan’s report alongside that of the country expert, Dr Vinita Templeton, who, at paragraphs 108–123, addresses the quality and accessibility of mental healthcare in Algeria. The judge, however, gave no consideration to Dr Templeton’s evidence.
30. I am therefore satisfied that Ground 5 is made out.
Ground 6
31. The appellant argues that the judge erred by failing to consider Dr Buttan’s opinion that he is not fit to fly. I am not satisfied that this amounts to an error of law. In reality, this is a subsidiary issue when compared to the central questions in the appeal, namely the risk of persecution as a gay man and the implications of the appellant’s mental health on return to Algeria. Fitness to fly is inherently variable and may depend on the mitigation measures that the respondent is reasonably able to put in place at the point of removal. In my view, it is not a matter of material significance to the outcome of the appeal.
Conclusion
32. For the reasons set out above, I am satisfied that Grounds 1, 2, 4, and 5 are made out. These errors are material and it follows that the decision of the First-tier Tribunal must be set aside. Although the appellant has not succeeded on Ground 3, I consider it unrealistic to preserve the relevant findings. On rehearing, the Tribunal will be required to make findings de novo as to the risk faced by the appellant on return and his ability to reintegrate. In that context, it would not be appropriate, in my judgment, to constrain the Tribunal’s assessment of whether the appellant would be expected to live discreetly on return.
Disposal
33. I remind myself that there is a general presumption that an appeal should be retained in the Upper Tribunal unless the proceedings before the First-tier Tribunal were tainted by procedural unfairness, or the nature or extent of the fact-finding required for remaking the decision would be extensive. In the present case, there was no procedural unfairness. Mr Wilford submitted that the appeal should nonetheless be remitted to the First-tier Tribunal given the extent of fact-finding required, and Ms Nolan accepted that, if Ground 1 were made out, that would be the appropriate course. I was also informed of a potentially significant new development affecting the appellant, which may be material to the appeal. In those circumstances, and given that the appeal will require a full rehearing de novo, I am satisfied that the extent of the necessary fact-finding would be considerable. Accordingly, applying paragraph 7.2 of the Practice Statements for the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal, I conclude that the appeal should be remitted to the First-tier Tribunal for rehearing.
34. I note that the appeal was previously heard at Columbus House, Newport. However, the appellant now resides in London and his legal representatives are also based there. I therefore direct that the rehearing take place at Taylor House, London.
Notice of Decision
The decision of the First-tier Tribunal is vitiated by a material error of law and is set aside with no findings preserved.
The appeal is to be remitted to the First-tier Tribunal at Taylor House to be heard by any judge other than Judge C J Woolley.

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

9th June 2026