Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005610

First-tier Tribunal No: PA/01956/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 22 September 2025

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

NMHO
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: No appearance: Fountain Solicitors on file
For the Respondent: Ms S Rushforth, Senior Home Office Presenting Officer.

Heard at Field House on 18 August 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
1. The appellant is a citizen of Burma who sought asylum on the basis of her political opinion and as a member of a particular social group as a victim of trafficking. FtT Judge Lester dismissed the appellant’s appeal. In her grounds of appeal to the Upper Tribunal the appellant raised, inter alia, a ground in relation to her ethnicity.
2. Deputy Upper Tribunal Judge Neilson following an error of law hearing found an error of law in the FtT judge’s decision and in a decision promulgated on 24th June 2025 set out the background (which I do not repeat) and found an error of law in the decision in relation to ground 1 only of the four grounds of appeal as follows:
First Ground of Appeal
13. In relation to the first ground of appeal the issue is whether there was an error of law in the FtT failing to consider the updated country situation and failing to deal with the risk based upon the appellant’s Shan ethnicity as a separate ground upon which the appellant claimed she was at risk of persecution. The appellant states in her grounds of appeal “Having found the appellant not to be credible in respect of her political claim, the IJ should have determined whether her accepted Shan ethnicity nevertheless put her at risk in the current political climate, given the military coup and continued war in Shan state.”
14. For the respondent Ms McKenzie highlighted that the issue of Shan ethnicity alone had not been identified as an issue for the FtT to determine.
15. The appellant’s ethnicity as a separate risk issue was not an issue that was considered by the respondent in their refusal letter of 22 August 2023. In the appellants skeleton argument dated 28 June 2024 (“the ASA”) that was before the FtT the issues are clearly set out as being whether the appellant faced a real risk of persecution or serious harm on account of her political opinion and/or membership of a particular social group on return to Myanmar. In the respondent’s review those issues are repeated. In the determination of the FtT they set out at paragraphs 6 through to 10 the issues in dispute. There is no reference to the appellants ethnicity as a separate ground in respect of which she would fear persecution. In the ASA there is a reference at paragraph 27 to her ethnicity “The risk that the appellant faces is heightened due to her particular vulnerabilities, namely, her Shan ethnicity and political ties, her mental health, lack of family support and the fact that she has previously been subjected to trafficking, sexual exploitation and domestic violence.” I do not read that reference as an assertion that the appellant is putting forward a case based upon her Shan ethnicity as a separate ground. The reference to her ethnicity is combined with a reference to a number of other factors that are alleged to “heighten” the risk she faces.
16. In considering this issue I have had regard to the guidance set out in both Lata (FtT: principal controversial issues) 2023 UKUT 00163 and TC (PS compliance – “issues based reasoning”) Zimbabwe 2023 UKUT 00164 and in particular the guidance that unless a point was one which was Robinson obvious, a judge's decision cannot be alleged to contain an error of law on the basis that a judge failed to take account of a point that was never raised for their consideration as an issue in an appeal.
17. I am satisfied that the issue of the appellant seeking asylum based upon her Shan ethnicity alone was not an identified issue prior to the hearing before the FtT. On the face of it there can be no error of law in failing to deal with that issue. However, it does still need to be considered whether the issue was one that might be Robinson obvious (see R -v- SSHD, ex parte Robinson 1997 3WLR162). At paragraph 37 of Robinson Lord Woolf set out the approach as follows:-
“Because the rules place an onus on the asylum-seeker to state his grounds of appeal, we consider that it would be wrong to say that mere arguability should be the criterion to be applied for the grant of leave in such circumstances. A higher hurdle is required. The appellate authorities should of course focus primarily on the arguments adduced before them, whether these are to be found in the oral argument before the special adjudicator or, so far as the Tribunal is concerned, in the written grounds of appeal on which leave to appeal is sought. They are not required to engage in a search for new points. If there is readily discernible an obvious point of Convention law which favours the applicant although he has not taken it, then the special adjudicator should apply it in his favour, but he should feel under no obligation to prolong the hearing by asking the parties for submissions on points which they have not taken but which could be properly categorised as merely "arguable" as opposed to "obvious".”
18. Was the issue of the appellant’s ethnicity an obvious point to be considered on its own?
19. The FtT do explicitly state at paragraph 69 of the determination “The appellant asserts that her Shan ethnicity alone would bring her to the attention of the authorities.” The FtT then go on to reference at paragraph 69 of the determination the evidence the appellant referred to and conclude the paragraph with “No other materials within the objective evidence were referred to. This material becomes more relevant depending upon the credibility findings.” The evidence that the FtT refer to in paragraph 69 were the United States State Department – Burma 2023 Human Rights Report (“USDD Document”); a Human Rights Watch document – Myanmar – Armed Group Abuses in Shan State – December 2023 (“HRW Document”) and The Human Rights Council - Courage amid crisis: gendered impacts of the coup and the pursuit of gender equality in Myanmar – June/July 2024 (“HRC Document”). The USDD document, the HRW Document and the HRC document sections referenced do not directly deal with Shan ethnicity as a stand-alone factor. The FtT do not then revert to the issue of the appellant’s Shan ethnicity as a stand-alone point after dealing with credibility.
20. Mr Nadeem for the appellant relied upon the written grounds of appeal which explicitly state that the FtT were referred to paragraph 3.1.2 of the CPIN – Myanmar, Critics of Military Regime, June 2023 (“the CPIN”) which states “A person is also likely to be at risk where they are of an ethnicity that is seen by the government as destabilising the country”. The CPIN was before the FtT in the appellant’s bundle. It is not referred to by the FtT at any point in the determination.
21. Under this first ground of appeal the appellant also submitted that the FtT failed to take into account the circumstances following the military coup in 2021. I do not consider that that is correct. Whilst they do not reference the CPIN in the determination a lot of the other material that they do reference contains explicit references to the current position in Myanmar, post 2021. It does appear that the FtT will have had regard to the current position post the 2021 military coup – albeit they do not specifically reference the CPIN.
22. Whilst there is a clear conflict between the FtT who state that no other materials within the objective evidence were referred to and the position of the appellant that the FtT were explicitly directed to the CPIN I am satisfied that the issue of the appellant’s Shan ethnicity was raised before the FtT (given the comment at paragraph 69 of the determination) and the CPIN was also before the FtT in the appellant’s bundle. In these circumstances, given the low burden of proof and the requirement for anxious scrutiny I do think that the issue of the appellant’s ethnicity as a stand-alone point was an “obvious point” and it was therefore an error of law for the FtT not to specifically address it as a stand-alone issue.
23. The appellant also referred in the grounds of appeal to the FtT failing to take into account the military coup in considering the applicability of Section 8 of the 2004 Act. I do not consider that to be a valid point. The application for asylum was made in January 2020. The military coup in Myanmar took place in February 2021. The military coup can have had no bearing upon the appellants actions and behaviours in the period between 2018 and January 2020.
3. The second ground of appeal relating to the judge’s findings that the appellant’s claim to be a victim of trafficking was found not credible. The DUTJ found that the FtT judge had addressed the evidence and why the appellant was not credible and did not qualify for protection. The DUTJ stated that there were sufficient grounds set out in the determination to support the finding of the FtT that the appellant‘s evidence had not established that she was a victim of trafficking nor was she at risk of being re-trafficked.
4. In relation to the third ground of appeal the DUTJ stated ‘The appellant’s case here was premised upon her being a victim of trafficking, being at risk of re-trafficking and being a member of a particular social group. Sufficiency of protection was not an issue in the case’. No error of law was found.
5. In relation to the fourth ground it was asserted that the FtT judge had erred in finding that the appellant could financially rely on someone who had sexually exploited the appellant but this had no bearing on the outcome because ‘The FtT have decided on credibility grounds that there is no risk of re-trafficking’. The remaking
6. The remaking was transferred to me. In relation to the ethnicity issue, I have considered the composite bundle placed before me and the further evidence.   On the afternoon of Friday 15th August 2025, a request from the appellant’s solicitors was received to the effect that an adjournment was required for the hearing on Monday 18th August 2025 owing to a medical certificate supplied.   I refused the application on 15th August 2025 and made the following response as follows which was conveyed to the solicitors on the same day:
‘The medical note dated 13th August 2025 states surgery apparently took place on 9th August 2025. In the circumstances it appears the appellant can work but the medical note which is extremely brief and wholly lacking in detail does not explain what the surgery was, why the appellant is not fit to travel and why she cannot attend court. Further this application has been made at the very last minute. In the interests of justice and further to the Tribunal Procedure (Upper Tribunal) Rules 2008 I refuse the application’
7. By noon of the day of the hearing (Monday 18th August 2025) neither the appellant nor her solicitor appeared. They were aware that the hearing had not been granted an adjournment and of the listing date. The Upper Tribunal made efforts to contact the solicitors by phone direct to their main offices and by the mobile number given to the Upper Tribunal for the solicitor with conduct of the appeal. There was no response.
8. I considered that it was fair in the circumstances to proceed with the appeal. I was aware of the nature of the appeal, but the overriding objective was such that it was in the interests of justice to proceed with the appeal particularly bearing in mind the one error of law which was open for determination – that of the risk owing to the appellant’s ethnicity.   The DUTJ had preserved all findings in the decision, and it was an omission of the consideration of the appellant’s risk owing to her ethnicity which was at large.
9. I explained to Ms Rushforth that I would hear her submissions pending an explanation from the appellant’s solicitors as to the absence of either themselves or the appellant. None was forthcoming by 27th August 2025.
10. As of date of signing this determination no contact has been made by the solicitor nor the appellant.
11. I underscore that the DUTJ found the reference to the appellant’s ethnicity was combined with a reference to a number of other factors that were alleged to “heighten” the risk she faced and this was set out as follows:
“The risk set forward was that the appellant faced a heightened risk due to her particular vulnerabilities, namely, her Shan ethnicity and political ties, her mental health, lack of family support and the fact that she has previously been subjected to trafficking, sexual exploitation and domestic violence.”
12. The difficulty with this assertion from the country background material all of which I have studied is that as noted by the DUTJ the ‘United States State Department – Burma 2023 Human Rights Report (“USDD Document”); a Human Rights Watch document – Myanmar – Armed Group Abuses in Shan State – December 2023 (“HRW Document”) and The Human Rights Council - Courage amid crisis: gendered impacts of the coup and the pursuit of gender equality in Myanmar – June/July 2024 (“HRC Document”). The USDD document, the HRW Document and the HRC document sections referenced do not directly deal with Shan ethnicity as a stand-alone factor.
13. The DUTJ then states ‘the FtT were referred to paragraph 3.1.2 of the CPIN – Myanmar, Critics of Military Regime, June 2023 (“the CPIN”) which states “A person is also likely to be at risk where they are of an ethnicity that is seen by the government as destabilising the country”. The CPIN was before the FtT in the appellant’s bundle. It is not referred to by the FtT at any point in the determination.’
14. Ms Rushforth submitted that the CPIN did not support the appellant’s contention that Shan ethnicity alone placed the appellant at risk. I considered the evidence provided holistically and in the round. The evidence included the bundle provided to the FtT and a further bundle to the Upper Tribunal.
15. The starting point is the findings of the FtT and I set out some of the salient findings from the FtT decision
‘71. Drawing all matters together and considering everything in the round, as well as reminding myself that the burden is on the appellant and the lower standard applies. | also remind myself of the country guidance case TS (political opponents — risk) Burma CG [2013]. | find that the appellant is not credible for all the reasons set out above. | find that the appellant has not established to the lower standard that she is the daughter of Col Yod. | find that on her own evidence she was able to enter and exit Burma repeatedly via student visa without interference by the authorities. | find that on her evidence this was done with the authorities knowing that she was the daughter of Col Yod. She also did this while she had been involved with the electoral reform NGO USAid. This is a non exhaustive summary of the matters set out above and | find that the appellant is not credible.
…
89. | draw all matters together and consider the evidence in the round. | remind myself of the lower standard and that the burden is on the appellant. | find that the appellant has not established to the lower standard that they are a PSG or that they are at risk of retrafficking.’
16. I have had regard to the CPIN particularly sections 3.1.13 onwards which I shall not repeat here but nowhere does it reference that those are at risk of Shan ethnicity alone. I note that a person is likely to be at risk where they of an ethnicity that is seen by the government was destabilising the country but nothing in the CPIN identified that those of Shan ethnicity per se fulfilled that role.
17. I also considered the country guidance case TS (Political opponents –risk) Burma/Myanmar CG [2013] UKUT 281 (IAC). Although dated, this decision gives some insight into the question of ‘destabilising the government’ and at [2] and [3] identifies
‘2. A person is at real risk of being detained in Burma where the authorities regard him or her to be a threat to the stability of the regime or of the Burmese Union.
3. The spectrum of those potentially at risk ranges from those who are (or are perceived to be) actively seeking to overthrow the government to those who are in outspoken and vexing opposition to it. Whether a person is in need of protection will depend upon past and future political behaviour.’
18. This appellant is not considered to have a credible political profile.
19. M Derville D Phil, an anthropologist and independent consultant, who provided expert advice on Myanmar and who designed a vulnerability and resilience index for the EU funded Nexus Response Mechanism in Myanmar and was said to identify key drivers of vulnerability across the country, provided an expert report. This postdates the CPIN. He was, however, specifically asked to provide an answer to the question ‘given MNHO’s background would she face a risk of arrest and/or imprisonment and/or ill treatment if she is returned to Myanmar? If so from whom and for what reasons?’ That was an open question to an expert who gave his report on 11th July 2024. The expert was aware of the appellant’s claimed background and had access to various documents including the appellant’s witness statement. He merely referenced the population of Shan state being engaged in interethnic conflict and referenced a report from Amnesty International in 2021 as to atrocities in Shan State.
20. There remained the preserved findings from the previous decision of Judge Lester. Not only was weight attributed to Mr Melville’s report limited because he had difficulty in setting out his sources (see [61] of the FtT decision) but moreover, his report does not appear to reference more recent events such as the ceasefire brokered by China and predates some relevant reports provided to the Upper Tribunal (see below). He makes a general statement about the discrimination in Shan State but does not identify the appellant is at risk because of her ethnicity alone. He refers to her parentage and her association with an ethnic armed group (however she was found not credible on this) and further that he stated ‘women from ethnic minority’s (sic) such as the Shan who have experienced sexual violence are likely to experience significant social stigma and again the appellant was found not credible on the aspect of sexual violence.   Limited weight is afforded to his report.
21. I considered the further bundle provided to the Upper Tribunal and which included the report ‘Myanmar Security situation return and military service’ dated August 2024. This is post the military coup. This referred to fighting between the SAC and PDF in various areas including in Shan state (page 10 of the report) but this does not attest to specific targeting of those of Shan ethnicity indeed Shan state has 5.8 million people and not the whole area is in conflict.   A ceasefire was negotiated by China between 3 armed groups in Shan State and the junta forces in January 2024. It was noted in the report that there was a surge of different alliances among the ethnic groups fighting the junta.
22. The Humanitarian Aid Relief Trust March 2024 document notes that there was conflict in Shan state. The report stated ‘we heard accounts of the deliberate targeting of Shan villages by military forces and prevention of ethnic Shan civilians from accessing medicines’ but, in my view, this report was largely anecdotally sourced.
23. The ‘written evidence from the UK Shan State Society’ said to be a society for the promotion of peace equality diversity and inclusion for all communities and ethnic groups dated 18th May 2021 predates the CPIN and is simply signed ‘UK Shan State Society’ does not indicate who the authors are.
24. The Myanmar Humanitarian Update No 45 March 2025 was wholly unsourced and simply appeared as an article. Various other press articles were produced which identified fighting in the Shan State (and other states) and which referred to displacement in various parts of Myanmar. That there was conflict in some areas of Shan State did not demonstrate that those with Shan ethnicity are targeted there or elsewhere in Myanmar for that reason alone by the authorities bearing in mind the appellant’s circumstances and would alone account for risk of persecution.
25. The various articles provided in the bundle to the FtT focused largely on sexual violence but also disclosed that there were various armed groups in Shan State fighting each other, for example Myanmar: Armed Group Abuses in Shan State dated 21st December 2023 and The Advance and retreat of a Shan Army apparently dated 3rd May 2022 .
26. The Human Rights Watch Report Myanmar Events of 2024 referred to fighting in 14 states and regions and that civilians in conflict affected areas described living in fear of fighting and arrest and there were aid blockages. Again this did not identify that those living in non conflict zones which appear to be varied in Myanmar were at risk owing to their ethnicity alone.
27. I have considered the evidence in the round. Nothing suggested that on return the appellant who was not found to have credibility to her political claim, nor a victim of trafficking would be targeted specifically because of her Shan ethnicity.
28. In the particular circumstances of this appellant, whose claim was put forward on the basis of her political association and was disbelieved which is reflected in the findings preserved in the decision of the FtT, and on the lower standard of proof applicable to asylum claims I find the appellant is not at risk on return to Myanmar because of her Shan ethnicity alone.
Notice of Decision
I dismiss the appeal on asylum, humanitarian protection and human rights grounds.

Helen Rimington

Judge of the Upper Tribunal Rimington
Immigration and Asylum Chamber
Signed 22nd September 2025