Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000081
UI-2025-000090

First-tier Tribunal No: PA/02008/2024
PA/02004/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 8th of May 2025

Before

UPPER TRIBUNAL JUDGE HANSON

Between

AE
SE
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Jagadesham instructed by Kirklees Law Centre and Citizens Advice.
For the Respondent: Mr Diwnycz, a Senior Home Office Presenting Officer.

Heard at Phoenix House (Bradford) on 2 May 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellants are granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellants, 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 Appellants’, AE who was born 22 April 2007 and her mother SE, born on 13 October 1978, are citizens of Nigeria. They appeal with permission a decision of a judge of the First-tier Tribunal (‘the Judge’), promulgated following a hearing at Bradford on the 25 November 2024, in which he dismissed their appeals against the refusal of their claims for asylum and/or leave to remain in the UK on any other basis. The date of the refusal is 16 April 2024.
2. The Judge summarised the basis of the claim at [11] – [23] and, having considered the oral and documentary evidence, set out his findings of fact from [45].
3. The Appellant sought permission to appeal which was refused by another judge of the First-tier Tribunal but granted on a renewed application by the Upper Tribunal, the operative part of the grant being in the following terms:
2. Grounds 3 and 4 are the strongest in that it is arguable that the judge failed to take into account matters which were not in contention, failed to provide any reasons for departing from those concessions and relied on matters not raised on behalf of the respondent.
3. Permission is not refused on any ground.
4. In a letter of the 22 January 2025 the Secretary of State advised the Appellants that although the protection claim made on 26 September 2022 had been refused, they had been granted discretionary leave to remain in the United Kingdom.
5. On 10 March 2025 Kirklees Citizens Advice and Law Centre wrote to the Tribunal stating the Appellants wish to pursue their appeals on protection grounds.
Discussion and analysis
6. Ground 3 asserts the Judge erred in rejecting SE’s account, failed to consider or address with legally adequate reasons, material considerations/evidence: (1) that the Respondent accepted that AE had been “made to have a concoction, believed to ‘cure’ autism and/or (2) that various professionals in the UK confirmed that AE had run off whilst in this country.
7. The evidence before the Judge was that the paternal family in Nigeria tried to ‘cure’ AE’s disability by various means including forcing her to drink concoctions containing urine and live frogs. The Judge did not accept the claimed mistreatment in the decision despite the Secretary of State accepting that AE was made to have a concoction believed to ‘cure’ her autism. The grounds assert the Judge failed to adequately consider the acceptance of this evidence in the decision, and how it factored into the overall decision-making process, or provide legally adequate reasons for going behind what was accepted without giving notice to the Appellant of his intention to do so.
8. At [51] the Judge also finds “Likewise I do not accept it is likely ADDE ran off whilst here as there is no evidence from anyone here despite that being readily available”. It is said the Judge is factually wrong as in a letter dated 1 November 2023 from Dr Deepa Hathwar, Consulting Paediatrician, is written “Recently A went missing. Police had to help find her. There were no injuries. Since then she has been wearing a badge saying she has autism”.
9. Also, in a letter dated 18 September 2024 from the Co-op Academy Southfield it is written “…. We are aware mum has encountered similar issues when waiting for public transport with A during the summer holidays resulting in police being called as observed attacking mum and trying to run into the road and away from her…..”
10. Ground 4 asserts it was procedurally unfair for the Judge to find at [48] that it was likely that SE and AE had moved to Delta State as that is where the Centre for Autism and Developmental Disability is based, and “that is the reason she went there rather than for traditional healing, or ostracization” which is said to be a finding that is unsafe in any event.
11. The evidence before the Judge was that AE had been sent to Delta State by her paternal family for ‘healing’. It is submitted to Judge erred in law in making a contrary finding as (a) the Respondent had not made this argument and (b) the Judge did not raise this at the hearing which meant the Appellants could not reasonably be expected to make submissions on this important point. The Appellants argue procedural irregularity and that they were prevented from being able to respond to the argument.
12. Ground 5 asserts it was procedurally unfair of the Judge to go behind the Respondent’s acceptance that AE had been made to drink concoctions to ‘cure’ her disability and the acceptance by the Secretary of State that treatment in Nigeria for epilepsy is “insufficient”.
13. There is no Rule 24 response from the Secretary of State. Mr Diwnycz was able to respond to the grounds of claim at the outset of the appeal in which he conceded that the Judge had erred in law for the reasons set out in Grounds 3, 4, and 5, and that the procedural unfairness that arose meant the Judges other findings were unsafe.
14. The determination is set aside. As a result of the conceded errors, it was accepted there could be no preserved findings as a reading of the determination shows the Judge’s view on these particular points was relevant to the overall outcome.
15. Taking into account the Presidential Guidance and case law the Upper Tribunal, and accepting that the default position will be for appeals to remain in the Upper Tribunal if at all possible, this is a case in which an issue of fairness has arisen that has infected all the findings made.
16. It is a case in which detailed findings will need to be made in relation to the protection claim only as the human rights elements have been resolved by the grant of leave to remain.
17. The Conventional reason relied upon is that of AE being a member of a particular social group as an autistic child. It will be necessary for the judge on the next occasion to consider whether, if that is not challenged, what will happen to AE in Nigeria as an autistic child is sufficient to amount to persecution. It will also be necessary to consider, if the treatment is sufficient to be classed as persecutory treatment, whether there is a sufficiency of protection or internal flight option available to another part of Nigeria.
18. In summary, the Secretary of State concedes that the First-tier Tribunal has materially erred in law. The decision is set aside with no preserved findings.
Notice of Decision
18. The appeal is remitted to the First-tier Tribunal sitting at Bradford to be heard by a different judge.

C J Hanson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

2 May 2025