Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005760

First-tier Tribunal No: PA/01340/2020

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 16th January 2026

Before

UPPER TRIBUNAL JUDGE HOFFMAN

Between

JS
(by his litigation friend, the Official Solicitor)
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms C Philps of Counsel, instructed by Duncan Lewis Solicitors
For the Respondent: Ms S McKenzie, Senior Home Office Presenting Officer

Heard at Field House on 12 January 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 Cockburn (“the judge”) promulgated on 1 October 2024 dismissing his appeal against the respondent’s decision dated 28 January 2020 refusing his protection claim and his application to revoke a deportation order dated 29 May 2018.

2. As the appellant lacks capacity to provide instructions to his legal representatives, his interests are represented in this appeal by the Official Solicitor.

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, especially in cases involving foreign offenders, 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 claims to be a Liberian national, born in 1980. He states that in 1990, he and his brother were kidnapped by militants and forced to fight as child soldiers. They escaped three years later, losing contact with each other in the process. The appellant says he relocated to a refugee camp in Nigeria. In 1998, he returned to Liberia but subsequently travelled to Ireland, where he claims he was forced to work without pay. He asserts that he entered the United Kingdom in 2000. In 2004, he wrote a book entitled Voice of a Child Soldier, detailing what is said to be his and his brother’s experiences in Liberia. Although a publisher was found, the appellant decided not to proceed with publication. In 2005, he says he re-established contact with his brother, who was in Nigeria, and used fraudulent means to secure him a visa to the United Kingdom in the appellant’s name. He claims to suffer from PTSD and Tourette’s syndrome and is presently confined to a wheelchair.

5. In 2008, the appellant was arrested under immigration powers and claimed asylum. In refusing his claim, the respondent did not accept that he was Liberian, but instead concluded that he was Nigerian. The appellant appealed that decision, but in a determination promulgated on 28 April 2010, First-tier Tribunal Judge Ennals dismissed the appeal, finding the appellant to be Nigerian. Further representations were rejected in 2012.

6. In 2016, the appellant was convicted of a sexual offence and sentenced to seven years’ imprisonment. As a consequence, the respondent decided to deport him. In a decision promulgated on 5 September 2018, First-tier Tribunal Judge Grimmett dismissed the appellant’s appeal. Taking Judge Ennals’ findings as her starting point, Judge Grimmett also concluded that the appellant is Nigerian.

7. On 22 October 2019, the appellant lodged further submissions with the Home Office, providing additional evidence of his claimed Liberian nationality. Those submissions led to the decision of 28 January 2020, in which the respondent maintained her position that the appellant is Nigerian and not Liberian.

The decision of the First-tier Tribunal

8. In the decision under challenge, the First‑tier Tribunal found that the appellant is excluded from the Refugee Convention pursuant to s.72 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). On the issue of nationality, the judge adopted as her starting point the findings of the two previous tribunals. She considered the evidence submitted by the appellant, including a Liberian birth certificate, a Liberian laissez‑passer, expert country reports, and a copy of Voice of a Child Soldier, but concluded that this material was insufficient to depart from the earlier findings. Having rejected the claim that the appellant is Liberian, the judge was satisfied that he did not require international protection. She also discounted the expert evidence diagnosing PTSD on the basis that it was predicated on his account of being a Liberian child soldier. The judge found that his other mental health conditions did not meet the Article 3 ECHR threshold and that treatment for Tourette’s syndrome and depression would be available in Nigeria. Finally, she concluded that although the appellant would face some difficulties in readjusting to life in Nigeria, there were no very compelling circumstances capable of outweighing the public interest in his deportation.

The appeal to the Upper Tribunal

9. On 22 January 2025, Upper Tribunal Judge Kamara granted the appellant permission to appeal on the single ground advanced on his behalf.

The ground of appeal

10. The ground in question concerns the judge’s findings at [30]:

“I find it significant that [the nationality expert] Dr Manby considered the appellant’s unpublished book, “Voice of a Child Soldier” to be more compelling evidence of his Liberian nationality than the birth certificate. However, the appellant’s book was adduced in the first F-tT appeal where the judge found that in light of “the degree of fraud and deception on the 8 immigration authorities” that he did not find any aspect of the appellant’s account reliable. Although Ms Manby states that “it would be an extraordinary effort to produce this account without actually having lived through the events described”, she makes no reference to the findings of the Tribunal. I therefore attach little weight to this aspect of her evidence.”

11. The appellant argues that while it is correct that Voice of a Child Soldier was before the First-tier Tribunal in 2010, Judge Ennals did not read it, as confirmed in his decision:

“13. All the relevant documents on the court file were taken into account…There was also an appellant’s bundle including a statement, his response to the refusal letter, a statement from the appellant’s partner, and a copy of the manuscript of his book. [The appellant’s then representative] Miss Patrick did not consider it necessary for me to read the book.”

12. The appellant contends that, as Judge Ennals did not read the book, it could not have formed any part of his reasoning when concluding that the appellant is Nigerian. This, it is argued, materially affected Judge Cockburn’s assessment of the expert reports of Dr Manby and Dr O’Reilly, as well as the psychiatric report of Dr Sohail Zafar supporting the appellant’s claim to be Liberian, and the medico‑legal report of Dr Galappathie diagnosing PTSD said to result from his experiences as a child soldier. The appellant submits that this error was highly material to the judge’s conclusions on nationality, vulnerability, and the Article 3 claim.

The application for permission to rely on further grounds of appeal

13. On the morning of the hearing, Ms Philps applied for permission to rely on two further grounds of appeal:

a. Ground 2 contended that the judge failed to have regard to relevant evidence and facts when assessing the appellant’s 2006 advert on the Missing Liberians website and gave inadequate reasons at [34] for refusing to accept that it “reliably relates to the appellant and his family.”

b. Ground 3 asserted that the judge failed to take into account relevant facts when treating the appellant’s Liberian birth certificate with “circumspection” at [27]. Specifically, contrary to the judge’s belief that the birth certificate, which was issued in 2011, could have been disclosed at the 2018 hearing: (i) there was evidence before her that it had been submitted to the Home Office in 2012 when it was examined by the National Document Fraud Unit; and (ii) at the 2018 hearing, the appellant had requested an adjournment on the basis that the respondent held documents of his capable of authentication and proving that he was born in Liberia, but the application was refused because the presenting officer said that there were no original documents in the bundle.

14. Having considered the application for permission to rely on the new grounds in accordance with the three-stage test set out in Denton v TH White Ltd [2014] EWCA Civ 906, I refused to admit the application:

a. The deadline for applying for permission to appeal expired on 18 December 2024. The application to rely on the new grounds was not made until 12 January 2026, on the morning of the error of law hearing. That delay was plainly serious and significant.

b. No good reason had been provided for the delay. Ms Philp explained that she was not the barrister who drafted the original grounds of appeal and, having reviewed the papers afresh yesterday, identified two further issues she considered to be important. However, the appellant has been represented throughout by an experienced firm of solicitors and counsel from the same chambers as Ms Philp. These additional grounds of appeal could and should have been raised in the initial application for permission to appeal.

c. Having considered all the circumstances, the balance weighed against the appellant. While I did not accept Ms McKenzie’s submission that the new grounds were unarguable, and I acknowledged Ms Philp’s point that the outcome of the appeal is of utmost importance to the appellant, those factors were not determinative. Significant weight must be given to the need for procedural rigour and compliance with the Procedure Rules. In this case, the lateness of the application was substantial and unsupported by good reason. This was compounded by the appellant’s failure to properly serve the hearing bundle on the respondent. Granting permission would therefore have necessitated adjourning the error of law hearing, wasting valuable court time, imposing unnecessary expense on the respondent, and causing further delay to the resolution of the case.

The hearing

15. The hearing therefore proceeded to hear submissions on the ground of appeal on which the appellant had been granted permission.

16. I had before me the 1,642-page hearing bundle prepared by the appellant’s representatives as well as the respondent’s Rule 24 response dated 27 January 2025.

17. I heard submissions from both parties and indicated at the end of the hearing that I was satisfied that the First-tier Tribunal had made a material error of law. I set out my full reasons in this decision.

Discussion

18. Ms McKenzie submitted concisely that, at [30], the judge attached little weight to the appellant’s book because, despite Dr Manby’s views on its significance, she had not addressed in her report the findings made by the First‑tier Tribunal in 2010. Ms McKenzie argued that this was a finding the judge was entitled to make and it was consistent with the principles set out in Griffiths v TUI UK Ltd [2023] UKSC 48, which confirm that, when assessing expert evidence, a judge should consider all the circumstances of the case and the evidence before them.

19. However, I am satisfied that the judge did make a material error of law. First, it is necessary to set out the relevant expert evidence of Dr Manby. In her report, she considered the Liberian birth certificate relied upon by the appellant at paragraph 65 and stated that it was “quite common for birth registration to be carried out only when a birth certificate is needed: late issue is not in itself evidence of fraud.” Fairly and appropriately, she went on to explain: “Nonetheless, the late registration process means that it is likely that it is not difficult to acquire a Liberian birth certificate even without very strong evidence of the facts relating to a person’s birth.”

20. At paragraph 67 of her report, Dr Manby continued as follows:

“However, there is other circumstantial evidence that is perhaps more compelling in support of the claim that JS is Liberian, notably the very long and detailed account of his life as a child soldier, as told by JS and his brother, and of the attempts to trace his family in Liberia after the war was over (document 23). It would be an extraordinary effort to produce this account without actually having lived through the events described. Based on my knowledge from supervising research on Liberia and Sierra Leone while I worked for Human Rights Watch, the history seems entirely plausible as a possible set of facts. I do not disagree with the findings of the expert report by Karen O’Reilly in this case (document 14). There is also the 2006 advertisement seeking to trace family members in Liberia (document 3), well before his citizenship was in issue with the SSHD. Additionally, while ‘English’ family names are found in Nigeria, they are much more common in Liberia, due to the history of the country’s founding by formerly enslaved people from the United States.” (Underlining added)

21. I have already quoted paragraph [30] of the judge’s decision above. A fair reading of it is that the judge dismissed the evidential weight of Voice of a Child Soldier on the basis that it had previously been before the First-tier Tribunal in 2010, and Judge Ennals had nevertheless found the appellant to be a Nigerian national. However, given that Judge Ennals failed to read the book, I am satisfied that Judge Cockburn erred in dismissing it for the narrow reasons she gave. It was also irrational for the judge to criticise Dr Manby for not expressly referring to the First-tier Tribunal’s findings regarding the book when Judge Ennals reached his conclusion without having read it. Importantly, like Judge Ennals, Judge Cockburn failed to engage with the question of whether it was plausible that, four years before being encountered by immigration authorities and his nationality being disputed, the appellant would have written a 297-page book detailing his and his brother’s experiences of being kidnapped and forced to fight as child soldiers in Liberia’s civil war, and secured a publisher for it, if he were in fact Nigerian.

22. I am satisfied that this error materially infected the judge’s finding that the appellant is Nigerian, which in turn led to her rejection of Dr Galappathie’s evidence that the appellant suffers from PTSD and her dismissal of the Article 3 medical claim.

Disposal

23. The parties agreed that the appeal should be remitted to the First-tier Tribunal, with the judge’s findings in respect of s.72 of the 2002 Act preserved.

24. The general principle is that cases will be retained by the Upper Tribunal for remaking, subject to the exceptions set out at paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal. Having considered paragraph 7.2, I am satisfied that the extent of the fact-finding required makes it appropriate to remit the appeal. This is because, if a finding is made that the appellant is Liberian, the First-tier Tribunal will, for the first time, need to consider the medical, international protection, and Article 8 claims in that light.

Notice of Decision

The decision of the First-tier Tribunal involved the making of an error of law and is set aside with the findings made at [19]-[23] preserved.

The appeal is remitted to the First-tier Tribunal at Taylor House to be reheard by any judge other than Judge Cockburn.

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

12th January 2026