Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000047

First-tier Tribunal No: PA/02201/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 22nd of April 2025

Before

UPPER TRIBUNAL JUDGE PICKUP SITTING IN RETIREMENT

Between

HMA
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Jafar of Counsel
For the Respondent: Ms A Nolan, Senior Home Office Presenting Officer

Heard at Field House on 11 March 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, [the appellant] (and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) 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 (and/or other person). Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. The appellant, a citizen of Kenya, who left the country in 2018, appeals to the Upper Tribunal against the decision of the First-tier Tribunal promulgated 14.11.24 dismissing her appeal against the respondent’s decision of 13.12.23 to refuse her claim for international protection made on 17.6.20, on grounds of sexual orientation, having had a same-sex relationship with fellow-citizen, L, which was discovered by her family and became known in the community. She claimed to fear that she would be killed by her husband and by the authorities.
2. Following the helpful submissions of both representatives, I reserved my decision to be given in writing, which I now do.
3. The grounds, which are poorly set out with inconsistent paragraph numbering and absent quotation marks, first argue that because of various errors in the drafting of the decision, the reader is unable to understand the decision, reliance being placed on [15] of the decision. It is also submitted that contradictory statements on critical issues are made at [24] of the decision.
4. It is further asserted that the judge made negative credibility findings at [19] and [20] of the decision but without providing adequate reasons. Complaint is made that at [10] the judge stated that there was no witness statement from the surrogate, when there was one. It is also argued that the alternative finding as to sufficiency of protection did not accord with background evidence and the respondent’s policy. Finally, it is averred that the judge failed to consider the risk to the appellant from vigilante groups.
5. In granting permission, the First-tier Tribunal considered that the various typographical errors do not amount to arguable errors of law. However, it was considered arguable that: (i) the findings at [19] and [20] lack adequate reasons; (ii) that material evidence was not considered at [10]; (iii) that the sufficiency of protection grounds are arguable; and (iv) not all sources of risk were considered in relation to internal flight.
6. It is unfortunate that the many apparently careless errors in the decision were not spotted and corrected by the judge before the decision was promulgated. The impression created is of a decision made in haste. However, most of these do not in fact prevent the reader from understanding the intended meaning. For example, whilst the grounds complain about the wording at [15] of the decision, it is clear that in the first sentence the judge intended to refer to the appellant’s friend, L, and not the appellant. Similarly, at [18] when the judge refers to making “submissions” the obvious intent was to set out ‘findings.’
7. More significant is the error at [24] of the decision, where the judge stated, “I am also of the view that the A is entitled to humanitarian protection is there is no real risk that she would face the possibility of torture, unlawful killing, torture or inhuman degrading treatment etc.” Although badly phrased, I am satisfied that the intention was to state that the appellant was not entitled to humanitarian protection. I have some sympathy for the appellant. At the very least anyone reading the decision would be most unimpressed and led to doubt that anxious scrutiny had been applied to the case.
8. However, Mr Jafar conceded that the sense of the complained-of examples of typographical errors was readily discernible, and he did not pursue this ground with any vigour. In the circumstances, I am satisfied that none of the typographical errors are by themselves material to the outcome of the appeal. Nevertheless, they are relevant to my other findings as to the way in which the appellant’s case was addressed.
9. Similarly, I find no material error of law in relation to [10] of the decision where the judge is said to have overlooked the witness statement of the ‘surrogate’ (donor). Nothing at all turns on the fact of the pregnancy or how conception was achieved. It is not part of the credibility findings.
10. Not referenced in the grounds or submissions is the statement at [15] that “A gave credible evidence regarding the fact that she would spend time with Lucy in the company of her children as the children thought that she was a merely a friend.” However, I am satisfied that this was not a finding but part of the summary of Mr Jafar’s submissions to the First-tier Tribunal. The findings do not in fact begin until [19] of the decision.
11. The complaint about [19] and [20] of the decision is that the judge set out what amount to conclusions without providing any or any adequate reasoning in support. At [19], for example, the decision states: “I do not accept the core of the A’s claim for the following reasons. It is not credible that the A would have been able to keep the relationship a secret from the family for a period of five years. The A claims that she managed to also spend time with Lucy in a rented flat which she would also take her children. I also do not find it credible that the A was able to keep the relationship from the family by spending time with Lucy rather than going to work.” However, the reasoning for rejecting the ‘core of the claim’ does not end at [19], nor at [20], but continues through to [22].
12. I note that on this issue, the refusal decision had stated, “You were inconsistent about how you were able to keep the relationship a secret for 5 years, stating that no one knew about the relationship, although you had introduced lucy to your family as a friend (AIR Q72) and they knew you spent a fair amount of time together.” The respondent also pointed out that the appellant claimed to take her children to the flat she and L rented together, up to four times a week, instead of going to work. The respondent had additionally challenged the account of how the family found out about the claimed relationship and pointed to an insufficiency of detail in the family’s reaction to the discovery as reported by the appellant.
13. The First-tier Tribunal similarly found crucial aspects of the appellant’s case not credible. The judge had earlier set out the appellant’s account in some detail and it was not necessary to repeat it.
14. The issue is whether there are adequate reasonings for the findings, or whether those purported reasons are mere conclusions. Rather than dissecting the decision line by line, it is necessary to read the credibility findings as a whole. In particular, the findings at [19] to [22] must be read together. In essence, the judge did not believe the proffered account and there is nothing to suggest that a higher standard of proof was applied.
15. However, Mr Jafar is justified in pointing out that at [19] of the decision, the judge misstated the appellant’s case. It was not her case that the ‘relationship’ between herself and L was kept secret from the family, as the evidence was that L had been introduced to the family as a friend and the family was aware of that friendship. The appellant had met L in 2013, and the friendship did not grow into a sexual relationship until 2015, lasting for about two and half years before the appellant fled in 2018. Mr Jafar submits that the relationship was not purely or exclusively sexual and visits by the appellant, in company with her children, to the flat in which L lived would not in themselves have been regarded as untoward. It may be that the judge intended to refer to the sexual relationship, but it remains far from clear.
16. The complaint about [20] of the decision is that the judge had overlooked the statement of L as to the alleged discovery of photographs on her phone. Mr Jafar points to [20] of the decision where the judge stated, “It is not clear how the family of A found out about the pictures,” which appears to be relied on as an adverse credibility finding. I was referred to [11] of L’s witness statement, found at 81 of the appellant’s bundle, in which she states that repair technicians found intimate photos on her mobile phone and shared those images with others. She adds, “Mowlem being a small community, members of the public were able to identify that it is me and Hannah that appeared in the images.” The precise mechanism as to with whom or how the images were shared is not known and could not reasonably be known even if the factual account relied on is truthful. However, the suggestion is that it is reasonable to suppose that the ‘scandalous’ discovery in a small community could easily have spread through that community. It follows that I am satisfied that taking this as an adverse finding against the appellant is somewhat unfair and inadequately reasoned.
17. At [21] of the decision, the judge stated, “The A has not provided evidence to support her suggestion that the actions of the technicians was organised by A’s family, I referred myself to questions 75 and 80 of the A’s asylum interview.” However, it was not the appellant’s case that the sharing the photograph by the technicians was something organised by the family, nor that the attack on L was organised by the technicians. Questions 75 and 80 do not support the judge’s statement. At Q75 the appellant stated that having backed up the phone, the technician saw the intimate photos and “this was all in the local area so he started telling people.” At Q80, the appellant was asked how her family learnt of the attack on L, to which she responded, “So after the news spread out my family found out about it, so after I think some of them had a planning in the attack on (L) so did my husband.” The appellant was referring to her family, not the phone technician. In the circumstances, I accept the submission that the judge has again misstated or misunderstood the appellant’s case.
18. Ms Nolan submitted that despite the aforesaid shortcomings of the First-tier Tribunal decision, the judge had “done enough” and that it could be said that the findings were irrational or ones which no reasonable judge could have made.
19. In making the credibility findings and in relation to the alternative findings of sufficiency of protection and reasonable internal relocation, the grounds also assert that evidence was left out of account and the alternative findings were inconsistent with the country background information. However, unless the contrary is demonstrated, the judge must be taken at his word when at [18] it was confirmed that the oral and documentary evidence, together with the skeleton argument and submissions, had all been considered before findings were reached and the decision made. It was not necessary for the judge to set out or precis the evidence, provided it is clear that it has been taken into account. In the circumstances, failure to cite the witness statement of L, which is mentioned at [9] of the decision, or that of the ‘surrogate’ are not in themselves material errors of law. But once again, they do bear on the overall assessment of the treatment of the appellant’s case by the First-tier Tribunal.
20. For the reasons summarised below, I am satisfied that there were clear errors in relation to the treatment of both alternative findings: sufficiency of protection and internal relocation.
21. In relation to sufficiency of protection, the judge stated at [22]: “Alternatively, even if I were to accept the relationship between the A and Lucy at its highest the A would be able to seek sufficient protection from the state as a gay woman in Kenya, I referred myself to CPIN 5.4.1 this covers sexual orientation, gender identity and expressions.”
22. The grounds set out the content of CPIN 5.4.1, which does not in fact support the judge’s conclusion on sufficiency of protection. The grounds also point to the respondent’s policy set out at 2.5.5 of the CPIN, which states that: “In general, the state appears able but unwilling to offer effective protection and the person will not be able to avail themselves of the protection of the authorities.”
23. In relation to internal relocation the grounds again refer to the respondent’s policy at 2.6.6. of the CPIN: “Internal relocation is not viable if it depends on the person concealing their sexual orientation and/or gender identity in the proposed new location for fear of persecution.” It is further complained that in relation to internal relocation, the judge had only considered risk emanating from the appellant’s family and did not take account of mob/vigilante violence towards those whose sexuality is not accepted by society in general. I am satisfied that this point is also well-made.
24. Ms Nolan accepted that the judge erred in respect of both sufficiency of protection and internal relocation. In summary, the respondent’s policy, as can be seen from the CPIN (replaced by a new version as of February 2025) is that for those who cannot be expected to hide their sexual orientation, there is no sufficiency of protection for LGBTI individuals in Kenya and internal relocation is not a viable option. However, Ms Nolan pointed out that these are alternative findings to the adverse credibility findings of the First-tier Tribunal and if the credibility findings were to stand, these alternative findings are immaterial to the outcome of the appeal. She also submitted that despite the respondent’s policy being clear, it was ultimately for the judge to determine the risks and availability of protection or internal relocation. Having said that, she did not resist the grounds on those alternative findings any further than as stated above. In the circumstances, it was not necessary for me to consider the now replaced CPIN any further and I am satisfied that the judge was in error on both alternative findings.
25. The difficulty is that when taken together as a whole, the decision is so riddled with errors, both typographical and misstatements of the evidence, together with a misunderstanding of the purport of the objective evidence, that the objective reader of the decision cannot be at all satisfied that anxious scrutiny has been applied to the appellant’s case. I am driven to the conclusion that in these circumstances it would be unfair to permit the decision to stand and that collectively the errors amount to a material error of law. It follows that the decision must be set aside to be remade de novo.

Notice of Decision
The appellant’s appeal to the Upper Tribunal is allowed.
The decision of the First-tier Tribunal is set aside with no findings preserved.
The remaking of the decision is remitted to the First-tier Tribunal to be remade de novo.
I make no order as to costs.

DMW Pickup

Judge of the Upper Tribunal Sitting in Retirement
Immigration and Asylum Chamber

11 March 2025