Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000272
UI-2025-000277
UI-2025-000276

First-tier Tribunal No: PA/01793/2024
PA/75555/2024
PA/75552/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

7th August 2025

Before

UPPER TRIBUNAL JUDGE JACKSON
DEPUTY UPPER TRIBUNAL JUDGE CLARKE

Between

KG
EG
DG
(ANONYMITY ORDERS MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellants: Mr Nath of Counsel, instructed by Perry Clements Solicitors
(on 25 March 2025).

For the Appellants: Mr Badar of Counsel, instructed by Perry Clements Solicitors
(on 14 July 2025).

For the Respondent: Ms Everett, Senior Home Office Presenting Officer.

Heard at Field House on 25 March 2025 and 14 July 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 Appellants. Failure to comply with this order could amount to a contempt of court. This order is made on account of the fact that the Appellants’ claim is for international protection.

DECISION AND REASONS
INTRODUCTION
1. The Appellants appeal against the Decision of First-tier Tribunal Judge Ketteley, promulgated on 2 December 2024 (“the Decision”), dismissing their appeal against the Respondent’s decision dated 8 December 2023 (“RFRL”), refusing their protection claim dated 23 July 2018.
2. The first Appellant is the mother of the second and third Appellants. All three Appellants are Albanian nationals.
BACKGROUND
3. The RFRL conceded that the first Appellant is a victim of trafficking but refused the Appellants’ protection claim on the basis that the first Appellant was not at risk of re-trafficking. The Respondent found that there was sufficiency of protection and a viable option of internal relocation to Elbasan, Sarande or Vlore.
4. By way of summary, the first Appellant’s account of trafficking is as follows:
5. In October 2017, the first Appellant and her husband (“H”) travelled to Belgium where they stayed in the apartment of T, a friend of H’s, whilst H looked for work. Towards the end of 2017 H travelled to the Netherlands for a job whilst the first Appellant remained in the apartment of T.
6. When H did not return, T told the first Appellant that H had been arrested in the Netherlands and needed money for a lawyer. T then told the first Appellant that he had found her a job as a cleaner in a hotel. In celebration, T bought the first Appellant a drink, which she believes was spiked. The first Appellant believes that she was then raped by T.
7. The following day, T informed the first Appellant that H had borrowed money from him and said that if she worked for 3-4 months, she could return to Albania with the debt repaid. The first Appellant was then taken to a house on the outskirts of Brussels, where she was made to work as a prostitute from November 2017 until 18 April 2018.
8. In April 2018 the first Appellant was taken to hospital by a friend of T’s, whereupon the first Appellant was told that she was pregnant with the second Appellant. The Appellant believes that the second Appellant was born out of prostitution.
9. The first Appellant escaped the hospital and made her way to a friend’s house in Brussels where she stayed for 4-5 days. During this time, the Appellant contacted her family in Albania and was told by her maternal uncle that her parents had heard that she was a prostitute in Belgium and that her father wanted to kill her.
10. The Appellant then fled Belgium for the UK on 18 April 2018 in the back of a lorry and claimed asylum on 13 July 2018. On 18 September 2018 the second Appellant was born. In the third week of October 2019, H contacted the first Appellant and told her that he was in the UK. The Appellant told H what had happened after he had left Belgium, and they began seeing each other again on a regular basis.
11. On 5 November 2019, whilst visiting H at his sister’s house in south London, the first Appellant and H were arrested. The first Appellant was released on bail and H was detained for 27 days. In February 2020 the first Appellant fell pregnant with H’s child and on 16 November 2020 she gave birth to the third Appellant.
12. On 21 June 2021 the first Appellant and H were arrested for conspiracy to supply cocaine, whereupon the second and third Appellants were put into foster care. On 13 May 2022 the first Appellant was found not guilty, whilst H was sentenced to four and a half years imprisonment. The first, second and third Appellants then reunited.
PROCEDURAL HISTORY
FIRST-TIER TRIBUNAL DECISION DATED 2 DECEMBER 2024
13. For the purposes of understanding the error of law grounds before us and the procedural history, FTIJ Ketteley made the following findings:
At [22] the Appellant relied on TD and AD (Trafficked women) CG [2016] UKUT 00092 (IAC) and argued that she was at risk of re-trafficking by the original traffickers or other traffickers.
At [23] the FTIJ rejected the claimed risk from the original traffickers because they were based in Belgium and there was no evidence that they had any reach or influence in Albania.
At [26] the Appellant argued in relation to the disputed TD factors indicating risk of re-trafficking that H was currently in prison and the first Appellant would “essentially be a single mother upon her return to Albania with no male protector…..she now has two children and has no husband or likely family support to enable her to hold down employment”, in addition, the first Appellant has mental health issues caused by her trafficking.
At [27] “There is evidence that she has been diagnosed in the past with post-natal; depression as well as anxiety (see letter dated 25 January 2019 from GP surgery at p32 of the Appellant’s bundle). Whilst there is no formal diagnosis of PTSD, there is an indication that the Appellant presents as someone with complex PTSD (see letter dated 25 November 2019 regarding attendance at trauma therapy at p31 Appellant’s bundle). The more recent evidence in relation to the Appellant’s mental health is that she has low mood and elements of anxiety which are helped though anti-depressant medication (see letter dated 14 February 2024 from GP Surgery at page 39 of the Appellant’s bundle) and the letter provided at the start of the hearing from Waythrough confirms she has been receiving 1:1 mental health support since 22 April 2022 [……] I find that Appellant has ongoing mental health needs which she manages through medication and accessing appropriate therapies. Given her frequent moves around the UK since her arrival, I also find that the Appellant is proactive in managing her mental health needs and engaging with mental health professionals to obtain the support she needs”.
At [28], the FTIJ takes into account the CPIN: Mental Healthcare Albania December 2022, as updated on 12 July 2024, and finds that, “she will continue to manage her mental health needs upon her return to Albania and that this would reduce the vulnerability to re-trafficking arising from her mental health.”
At [29] the FTIJ finds that, “the Appellant does not have contact with her family in Albania. The lack of family support is a factor which may increase the risk of re-trafficking as she will not benefit from their support in re-integrating into Albania”
At [30] the FTIJ finds, “I recognise that the Appellant’s husband would not be returning with her as he is serving a custodial sentence in the UK, however I find that the fact she had a husband abroad would act as a protective factor for her and this would reduce her risk of re-trafficking. Indeed, there is no evidence before me that her husband has rejected the oldest child who was born outside of the marriage and note that the child has taken his surname which leads me to find that his acceptance of the child born outside of their marriage will further reduce her vulnerability upon return”.
At [31] the FTIJ finds that, “on her return to Albania, she is returning to a country where she speaks the language and understands the culture and where she has a network of friends which she could re-activate. Whilst the evidence before me is that she has not gained any additional work experience since entering the UK, it remains the case that the Appellant did undertake formal education in Albania and , in the past, was able to secure employment in a supermarket and there is no reason to think that she would not be able to do so again or find similar type employment which would dovetail with raising her children.”
At [32] the FTIJ concludes, “I am not persuaded that she has made out that she is at risk of re-trafficking in line with the guidance in TD and AD (Trafficked women) CG [2016] UKUT 00092 (IAC).
GROUNDS OF APPEAL AS ORIGINALLY PLEADED
14. In an application for permission to appeal to the First-tier Tribunal dated 1 December 2024 (which we note is the day before the FTT decision was promulgated), we summarise the grounds of appeal settled by Mr Gajjar of counsel as follows:
1. “Irrational conclusion in relation to the Appellant’s husband”
The Appellants’ case before the FTT was that she would be perceived as the mother of illegitimate children on return, therefore the FTIJ’s findings at [30] are irrational for 2 reasons
a) First, the FTIJ found that H accepted the eldest child because she had adopted H’s surname. However, the child was registered on 24 September 2018 whilst the first Appellant and H were only reconciled in 2019.
b) Second, the Appellant’s husband is in prison in the UK and the FTIJ accepts that he would not be returning with the Appellants. However, the FTIJ found that H would be a protective factor reducing the risk of exploitation. This is inconsistent with the guidance in TD and AD. As the Appellant was trafficked in Belgium when H left for the Netherlands, “nothing within the documents, therefore, supports the proposition that the presence of a husband abroad, let alone one who is in prison, serves as a protective factor”.
2. “Failure to properly or rationally consider the medical evidence”
The FTIJ’s finding that the first Appellant could access medical care on return is perverse and/or fails to properly consider the evidence. In particular, the letter of Diane-Jane Holman at RB [81-82] which states,
“My concern would be any further displacement, which would be detrimental to the emotional and mental wellbeing of [the Appellant]”
3. “Failure to consider material factors”
The FTIJ failed to consider the stigma that the Appellant is likely to face as a woman who worked in prostitution.
4. “Failure to make adequate findings/give adequate reasons”
The FTIJ records that the eldest child has been in primary school since September 2023 and at paragraph [42c] found that a factor on the Appellant’s side of the balance in his Article 8 assessment, “was that her husband is serving time in prison, she visits with the children and their removal would hinder their ability to maintain the limited contact they do on a face to face basis […..]”. However, the FTIJ fails to make adequate findings in relation to the proportionality of these consequences.
PERMISSION TO APPEAL TO THE UPPER TRIBUNAL
15. On 16 January 2025, Mr Gajjar’s application for permission to appeal was granted without restriction by First-tier Tribunal Judge L J Murray.
16. In so doing, FTIJ Murray found it arguably irrational for the FTT to have found that the Appellant would be returning as a married woman and that this would be a protective factor, given that she would be returning without her husband and with her two children.
ERROR OF LAW HEARING 25 MARCH 2025; DIRECTIONS DATED 1 APRIL 2025 and 25 MAY 2025
17. This error of law appeal was originally convened on 25 March 2025. As set out in our Directions dated 1 April 2025 (as annexed to this decision), after we had heard argument on the pleaded grounds of appeal and during disposal discussions, Mr Nath for the Appellants confirmed that the first Appellant’s husband had been on license for some 26 or 27 months. The effect of this disclosure was that the husband had not been in prison at the time of the First-tier Tribunal hearing; as argued before the FTT; in grounds of appeal 1 and 4; and as maintained before us in oral argument.
18. The Directions of 1 April 2025 therefore required the Appellant’s representatives to confirm whether this disclosure was correct. In summary, the replies from the Appellants’ solicitors, Counsel before the First-tier Tribunal and Counsel before the Upper Tribunal, all confirmed that Mr Nath’s disclosure was correct.
19. In the light of these replies, further Directions were issued on 25 May 2025 (as annexed to this decision) to reconvene the error of law hearing to hear submissions on the materiality of the grounds of appeal as originally pleaded. Direction 2 required that any application to amend the grounds of appeal be served “no later than 4pm, 14 days before the reconvened hearing”.
20. We make clear that the Hamid issues alluded to in the annexed Directions are now being dealt with as a separate matter.
AMENDED GROUNDS OF APPEAL
21. On Friday 30 June 2025, amended grounds of appeal were served upon the Upper Tribunal by email, out of time at 17.54, with an accompanying explanation that,
“The reason for the delay is that the person with conduct of the case suffered a sudden bereavement on Thursday 28 June, which has affected sending the attached within the time limit.”
22. In the “background” to these amended grounds of appeal, as settled by Mr Badar of Counsel and dated 30 June 2025, the Appellant concedes at [2.3] that the FTT had previously been presented with an incorrect factual matrix,
“[…..] the Judge was provided with the factual matrix that consisted of the continued incarceration of the First Appellant’s husband. As it has transpired, this is not the case.”
23. The following amendments to the original grounds of appeal were then restricted to grounds 1 and 4; with grounds 2 and 3 as originally pleaded remaining intact. As can be seen from these amendments, which we set out verbatim below, they singularly rely upon a factual matrix of the husband being on license, which was not in evidence before the First-tier Tribunal.
Ground (1) – Irrational conclusion in relation to the Appellant’s husband
4. The First Appellant’s case is that she would be perceived as the mother to illegitimate children which would increase her risk of being re-trafficked in Albania. The Judge arguably irrationally rejected this account and, in doing so, said as follows:
“30. It is agreed between the parties that the Appellant would return to Albania with her two children as a family unit. On the evidence before me I accept that the oldest child is a child born through prostitution with the younger child being born to her and her husband (see birth certificates at p87 and 88 of the Respondent’s bundle). TD and AD (Trafficked women) CG [2016] UKUT find that women with children outside of marriage find it more difficult to reintegrate on return and so are particularly vulnerable to re-trafficking. However, in the Appellant’s case, her evidence is that she has reconciled with her husband and so would not be returning as a single woman. I recognise that the Appellant’s husband would not be returning with her as he is serving a custodial sentence in the UK however I find that the fact she had a husband abroad would act as a protective factor for her and this would reduce her risk of re-trafficking. Indeed, there is no evidence before me that her husband has rejected the oldest child who was born outside of the marriage and note that the child has taken his surname which leads me to find that his acceptance of the child born outside of their marriage will further reduce her vulnerability upon return.”
5. There are several arguable difficulties with the Judge’s approach:
5.1. [EG] was born as a result of the Appellant being forced into prostitution. The Judge has assumed the Appellant’s husband, with whom the Appellant had reconciled, is accepting of the child, in large part because [EG] has his surname. This is perverse. The evidence shows that the Appellant got in touch with her husband in 2019 [RB/85]. Meanwhile, [EG’s] birth – where she used the surname [G] – was registered before this: on 24 September 2018 [RB/88]. It does not flow that the use of her husband’s name was, as the Judge appears to suggest, the product of some sort of gesture on her husband’s part.
5.2. The Appellant’s husband is in prison in the United Kingdom and the Judge accepts they would not, therefore, be returning as a family unit. Nonetheless, the Tribunal found that the presence of a husband abroad acts as a “protective factor” reducing the risk of exploitation. This conclusion is not supported by the Respondent’s published objective guidance, TD and AD, or, and perhaps most importantly, the narrative in this very case. When the Appellant was first trafficked in Belgium, she and her husband had both left Albania and travelled to Belgium together. Owing to financial problems, her husband, Blerim, travelled to the Netherlands for work whilst she stayed in Belgium where she was raped and forced into prostitution. Nothing with the documents, therefore, supports the proposition that the presence of a husband abroad, let alone one who is in prison, serves as a protective factor. As the First Appellant’s husband is on licence, does not appear to have any direct relationship with the First Appellant, it is respectfully submitted that the Judge’s conclusion of him acting as a ‘protective factor’ is irrational.
6. It is submitted that these errors go to the risk on return, relocation and internal protection.
[…………]
Ground (4) – Failure to make adequate findings / give adequate reasons
9. In respect of the article 8 appeal on family and private life grounds, the Judge recorded the Appellant’s submission that [EG] has been in primary school since September 2023 and further, at paragraph [42(c)] found one of the factors in favour of the Appellant was that her husband is serving time in prison , she visits with the children and their removal would hinder their ability to maintain the limited contact they do on a face-to-face basis, although they could use modern means. The Judge does not appear to make adequate findings in relation to the proportionality of these consequences.
9.1. As the amendments above set out, the aspect that the husband is serving time in prison is incorrect, although not due to any fault of the Judge. It is respectfully submitted that this consideration requires to be revisited with the actual facts which are that the husband is on licence and does not have a relationship with the First Appellant (see ¶ 25 of the RFRL).
9.2. The thrust of the grounds which are failure to make adequate findings/ give adequate reasons is maintained in respect of the other points at ¶42, bar for subsection (c), as amended above.
(amendments to original grounds of appeal in bold text)
RESUMED ERROR OF LAW HEARING 14 JULY 2025
24. This matter now comes back before us for a resumed hearing to (i) determine the application to amend the grounds of appeal; and (ii) determine whether there is an error of law in the Decision of FTIJ Ketteley pursuant to s.12(1) of the Tribunal Courts and Enforcement Act 2007. If we find an error, we must then determine whether the error is material, such that the Decision should be set aside. If the decision is set aside, we must decide whether to remake the decision in the Upper Tribunal or remit the appeal to the First-Tier Tribunal, pursuant to s.12(2) of the 2007 Act.
25. At the outset of the hearing, we ensured that the Appellant and the Albanian interpreter understood each other before explaining that we would be hearing the resumed error of law appeal first and may not require her to give any evidence unless we found a material error and proceeded to remake the appeal.
26. We then endeavoured to ensure that the parties had before them a consolidated hearing bundle (“CB”) comprising of 178 pages, the amended grounds of appeal consisting of 5 pages, our Directions dated 1 April 2025, our Directions dated 25 May 2025, a supplementary Appellant’s witness statement dated 7 July 2025 (“SWS”) and a rule 15 (2A) application dated 7 July 2025.
27. Unfortunately, Ms Everett confirmed that she did not have a copy of the amended grounds but that she had read the amended grounds before the start of the hearing and was content to proceed.
28. We then invited Mr Badar to make his application to amend the grounds of appeal and indicated that we should be addressed on Akter (appellate jurisdiction; E and R challenges) [2021] UKUT 00272 (IAC), at [39] – [44]. At which point we rose for 10 minutes to allow the parties time to read the case law and for Ms Everett to receive a copy of the amended grounds.
29. Upon returning to the hearing room, we then heard submissions from Mr Badar and Ms Everett on the Appellant’s application to amend the grounds of appeal.
APPLICATION TO AMEND THE GROUNDS OF APPEAL
30. As is evident from the amended grounds of appeal, they rely upon a new factual matrix which recognises that H was on license at the time of the FTT hearing; which the FTIJ could not possibly have been aware of, in the light of the incarceration case previously advanced by the Appellant before the FTT.
31. In E and R v Secretary of State for the Home Department [2004] EWCA Civ, as set out in Akter at [39] – [40], Carnwath LJ confirmed that in certain circumstances a mistake of fact that is unbeknown to a Judge may give rise to a challenge on a point of law where the mistake of fact engenders unfairness,
"66. In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of CICB. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning."
"91. In summary, we have concluded in relation to the powers of this Court:
i) An appeal to this Court on a question of law is confined to reviewing a particular decision of the Tribunal, and does not encompass a wider power to review the subsequent conduct of the Secretary of State;
ii) Such an appeal may be made on the basis of unfairness resulting from "misunderstanding or ignorance of an established and relevant fact" (as explained by Lord Slynn in CICB and Alconbury);
iii) The admission of new evidence on such an appeal is subject to Ladd v Marshall principles, which may be departed from in exceptional circumstances where the interests of justice require.
92. In relation to the role of the IAT, we have concluded
i) The Tribunal remained seized of the appeal, and therefore able to take account of new evidence, up until the time when the decision was formally notified to the parties;
ii) Following the decision, when it was considering the applications for leave to appeal to this Court, it had a discretion to direct a re-hearing; this power was not dependent on its finding an arguable error of law in its original decision.
iii) However, in exercising such discretion, the principle of finality would be important. To justify reopening the case, the IAT would normally need to be satisfied that there was a risk of serious injustice, because of something which had gone wrong at the hearing, or some important evidence which had been overlooked; and in considering whether to admit new evidence, it should be guided by Ladd v Marshall principles, subject to any exceptional factors.
32. The 3-part test for the admission of new evidence on appeal, as confirmed by Lord Denning in Ladd and Marshall [1954] EWCA Civ 1, is as follows,
“In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”
33. In Akter, the Presidential panel explained the “exceptional factors” caveat to the Ladd and Marshall test, identified at [92(iii)] of E and R, in the following terms,
“44. Although Carnwath LJ spoke about the possibility of the Ladd and Marshall principles being modified in exceptional circumstances, we see no reason in the present case why they should be. The ability of the appellants to make fresh submissions pursuant to paragraph 353 of the Immigration Rules is, in our view, highly material to the question of whether those principles should be diluted. The existence of the "fresh claim" procedure, arising from the overarching continuing obligation of the Secretary of State to act compatibly with the ECHR up to the point of actual removal, means there is no reason to modify.”
34. In support of the contention that a mistaken case was advanced before the First-tier Tribunal in the instant appeal, the Appellant now seeks to admit a new Appellant’s witness statement dated 7 July 2025, which purports to confirm that she is estranged from her husband whilst also confirming that her husband was on license at the time of the First-tier Tribunal hearing.
35. In submissions, we invited Mr Badar to address us on whether the Ladd and Marshall test was met, and if not, whether there were exceptional circumstances that would lead to a “serious injustice”, such that the test should be modified.
36. In reply, Mr Badar conceded that the Ladd and Marshall test could not be met because the Appellant’s representatives had failed to exercise reasonable diligence by not obtaining and presenting evidence of the husband’s release on license at the material time.
37. In terms of exceptionality, we asked Mr Badar why the Appellant could not now simply make fresh submissions to the SSHD under paragraph 353 of the Immigration Rules, in reliance upon this new factual matrix. In reply, Mr Badar argued that there was no certainty that the Appellant would meet the fresh claim test under paragraph 353.
38. In reply Ms Everett argued that there was no unfairness and therefore permission to amend the grounds should not be granted; evidence relating to the husband’s release could easily have been obtained and presented to the FTT; the Appellant had relied upon her relationship with her husband and his location as being material to her claim before the FTT; and it is not possible to pre-judge the outcome of a fresh claim and therefore there is no exceptionality.
39. We refused the Appellant’s application to amend the grounds. The principle identified in E and R, at [66] as set out above, is predicated upon fairness, and as indicated at the hearing, we do not accept that there was any unfairness given the conceded failure of the Appellants’ representatives to act with due diligence and present the facts now relied upon to the FTT. In this regard we find that the Appellant and/or her legal representatives must take some responsibility for the current situation.
40. We find no exceptional circumstances such that the Ladd and Marshall test should be modified in this case. Whilst Mr Badar argued that the Appellant’s case may not be accepted as a fresh claim by the SSHD, we find that that is a submission that suggests that the SSHD would fail in her continuing obligation to act compatibly with the ECHR up to the point of actual removal, as reasoned in Akter at [44]. In the absence of any evidence to the contrary, we find that the presumption must be that the SSHD will seek to act consistently with her international obligations. We agree with Ms Everett that it is not possible for this Tribunal to pre-judge any fresh claim decision because as things stand, there are no judicial findings of any kind in relation to the new factual matrix now presented by the Appellant.
41. We therefore find that refusing the application to amend the grounds of appeal would not result in any “serious injustice” because it is open to the Appellant to make a fresh claim in reliance upon her new factual matrix.
42. We then indicated to Mr Badar that the position is that we must now determine the grounds of appeal as originally pleaded and that in this regard we had already heard full submissions from Mr Nath at the hearing on the 25 March 2025. Mr Badar agreed and confirmed that any reference within those grounds to the husband being in prison (in ground 1 and part of ground 4) was no longer pursued.
43. We then indicated that we would reserve our decision and provide that in writing with our reasons. We now set our reasoning and Decision as follows.
DISCUSSION AND FINDINGS
44. In the light of Mr Badar’s withdrawal of the originally pleaded grounds insofar as they relate to the husband being in prison, we make the following findings in relation to the remaining operative parts of the grounds of appeal.
GROUND 1: IRRATIONAL CONCLUSION IN RELATION TO THE FIRST APPELLANT’S HUSBAND
45. The only remaining live complaint, as set out at [5.1], is a perversity challenge,
“EG was born as a result of the Appellant being forced into prostitution. The Judge has assumed the Appellant’s husband, with whom the Appellant had reconciled, is accepting of the child, in large part because [EG] has his surname. This is perverse. The evidence shows that the Appellant got in touch with her husband in 2019 [RB/85]. Meanwhile, [EG’s] birth – where she used the surname [G] – was registered before this: on 24 September 2018 [RB/88]. It does not flow that the use of her husband’s name was, as the Judge appears to suggest, the product of some sort of gesture on her husband’s part.”
46. When considering irrationality, we remind ourselves of the test in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 that “if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming”. Equally, as confirmed in R (Iran) [2005] EWCA Civ 982 at [90(2)], “a finding might only be set aside for error of law on the grounds of perversity if it was irrational or unreasonable in the Wednesbury sense, or one that was wholly unsupported by the evidence.”
47. The first point to note, as evidently conceded at [5.1] of the grounds, is that the factual matrix before the FTIJ was that “the Appellant had reconciled” with her husband. There is no challenge within the grounds to this finding of reconciliation.
48. In the Appellant’s undated witness statement at paragraphs [38] – [42], as before the FTT, the Appellant describes this reconciliation process with her husband: that in the third week of October 2019 she received a call from H who had previously disappeared when she was in Belgium; that they then had a tearful reunion; and that they then started seeing each other again. This led to H becoming a dependent upon the first Appellant’s asylum claim and H moving into the same house as the first Appellant and EG. The first Appellant then describes herself, EG and her husband being rehoused in Glasgow together by Migrant Help before becoming pregnant by H with her second child, DG.
49. In the light of this factual matrix, the FTIJ at [30] found,
“on the evidence before me I accept that the oldest child is a child born through prostitution with the younger child being born to her and her husband […….] TD and AD (trafficked women) CG [2016] UKUT found that women with children outside marriage find it more difficult to reintegrate on return and so are particularly vulnerable to re-trafficking. However in the Appellant’s case, her evidence is that she has reconciled with her husband […..] there is no evidence before me that her husband has rejected the oldest child who was born outside the marriage and note that the child has taken his surname which leads me to find that his acceptance of the child born outside of their marriage will further reduce her vulnerability upon return”.
50. Contrary to the grounds, the FTIJ does not suggest that EG took the husband’s surname following “some sort of gesture” by the husband. Equally, the FTIJ’s reasoning does not suggest any misunderstanding of the chronology of when EG was registered and when the first Appellant and her husband were reconciled. It is clear to us that the FTIJ found that the husband had accepted EG because the first Appellant had reconciled with her husband and there was no evidence before him that the husband had rejected EG. We note that the Appellant does not challenge the finding that there was no evidence before the FTIJ to suggest that H had rejected EG.
51. We find that once the judge had made this “acceptance” finding, he then treated the acceptance as an accomplished fact that was relevant to the Appellant’s vulnerability on return when finding at [30], “[….] and note that the child has taken his surname which leads me to find that his acceptance of the child born outside of their marriage will further reduce her vulnerability upon return”.
52. We find in the light of the undisputed evidence of reconciliation; the witness statement evidence of cohabitation as a family unit; and the absence of any evidence that the husband had rejected EG, that the finding that the husband had accepted EG was within the FTIJ’s reasonable range of responses.
53. We therefore dismiss ground 1.
GROUND 2: FAILURE TO PROPERLY OR RATIONALLY CONSIDER THE MEDICAL EVIDENCE
54. The evidence which ground 2 suggests was improperly or irrationally considered by the FTIJ is a letter from Counseller Diane-Jane Holman contained in the Respondent’s bundle (“RB”) before the FTT at [81-82], and in particular the sentence,
“My concern would be any further displacement, which would be detrimental to the emotional and mental wellbeing of [the Appellant]”
55. We find that the suggestion that the FTIJ failed to consider the evidence of Diane Jane Holman at RB [81-82] is misconceived. The letter at RB [81-82] is undated but an identical signed copy of this letter, dated 25 November 2019, was produced in the Appellant’s bundle before the FTT, as contained in the consolidated hearing bundle before us (“CB”) at [58].
56. Aside from the absence of any date, the only material difference between these two letters appears to be that the dated copy at CB [58] refers to EG as being 15 months old, whilst the undated letter at RB [81-82] refers to EG as being 13 months old. The letter at CB [58] is therefore the more recent of the 2 letters, notwithstanding that it was some 5 years old at the date of the FTT hearing.
57. We find that the FTIJ at [27] expressly takes this letter into account when stating, “whilst there is no formal diagnosis of PTSD, there is an indication that the Appellant presents as someone with complex PTSD (see letter dated 25 November regarding attendance at trauma therapy at p31 Appellant’s bundle)”.
58. We reject ground two’s suggestion that the FTIJ irrationally found that the Appellant could access care on return because this letter states “my concern would be any further displacement or changes, which would be detrimental to the emotional and mental well being of K”. At its highest this letter, or indeed this sentence, says nothing about the Appellant’s ability to engage with treatment on return. Equally, we note that the letter was 5 years old at the date of the FTT hearing and between then and the date of hearing, the Appellant experienced a number of changes in location and circumstances whilst continuing to seek support.
59. In making this finding we note that ground 2 does not challenge either the FTIJ’s findings at [28] that treatment is available, or the FTIJ’s assessment of the more recent medical evidence and the Appellant’s conduct in the UK,
“The more recent evidence in relation to the Appellant’s mental health is that she has low mood and elements of anxiety which are helped though anti-depressant medication (see letter dated 14 February 2024 from GP Surgery at page 39 of the Appellant’s bundle) and the letter provided at the start of the hearing from Waythrough confirms she has been receiving 1:1 mental health support since 22 April 2022 [……] I find that Appellant has ongoing mental health needs which she manages through medication and accessing appropriate therapies. Given her frequent moves around the UK since her arrival, I also find that the Appellant is proactive in managing her mental health needs and engaging with mental health professionals to obtain the support she needs”.
60. We find that the FTIJ’s conclusions on the Appellant’s ability to access care in Albania are therefore within a reasonable range of responses and dismiss ground 2.
GROUND 3: FAILURE TO CONSIDER MATERIAL FACTORS
61. Ground 3 argues that the FTIJ failed to consider the stigma that the Appellant is likely to face as a woman who worked in prostitution. We find the ground misconceived.
62. As we raised with Mr Nath at the hearing on 25 March 2025, we could find no evidence to suggest that the Appellant had argued before the FTT, that she would be stigmatised as a “woman who worked as a prostitute”.
63. In this regard, Mr Nath was unable to take us to anything in the papers to suggest that this argument had been advanced. In the absence of such a case being articulated before the FTT we find no error in the FTIJ failing to consider “stigma”.
64. We therefore dismiss ground 3.
GROUND 4: FAILURE TO MAKE ADEQUATE FINDINGS/GIVE ADEQUATE REASONS
65. The singular remaining argument under ground 4 is as follows:
“In respect of the article 8 appeal on family and private life grounds, the Judge recorded the Appellant’s submission that [EG] has been in primary school since September 2023 [……] The Judge does not appear to make adequate findings in relation to the proportionality of these consequences.”
66. The inherent difficulty with the ground as pleaded is that it is wholly unclear what “consequences” of the 1 year of primary schooling the FTIJ was supposed to have taken into account in his proportionality assessment.
67. The FTIJ’s Article 8 assessment is contained at paragraphs [36] – [44]. At [36] the FTIJ records that Mr Gajjar did not suggest that the immigration rules could be met. At [37], the FTIJ then confirms that he heard no submissions on the Best Interests of the children. However, the FTIJ in any event considered Best Interests and found that “their best interests are to remain with their mother”. That finding is not challenged.
68. At [38] the FTIJ then clearly has regard to the Appellant’s Article 8 submission in respect of EG’s private life; that is, she had started primary school in September 2023, she spoke only English and that she had friends in the UK.
69. In the FTIJ’s Article 8 conclusions at [43] the FTIJ reasons that “whilst both children have been born in the UK, they would be returning to Albania with the Appellant who can support them in integrating into life there”.
70. We do not accept that the FTIJ failed to have due regard to EG’s 1 year of primary schooling, as it is clear that the FTIJ sets out the substance of EG’s private life at [38], as relied on by Mr Gajjar, and expressly takes into account the entirety of that private life in the Article 8 conclusions at [43].
71. In the absence of any Best Interest arguments being advanced by the Appellant, we do not understand what “consequences” the FTIJ failed to factor into his proportionality assessment. In this regard we note that the ASA before the FTT at CB [29], also fails to mention s.55 and simply states as a bare fact that EG has attended primary school since September 2023.
72. We find that the FTIJ has given adequate reasons for his conclusion that the Article 8 balance fell against the Appellant when finding that the children would return with their mother to Albania as a family unit and that she would assist them with re-integration at [43]. We find these conclusions within a reasonable range or responses in the light of the scope of the Article 8 case advanced.
73. We therefore dismiss ground 4.
CONCLUSION ON THE ERROR OF LAW
74. For reasons above, we find that the Decision of the First-tier Tribunal does not disclose any material errors of law.
NOTICE OF DECISION
1. The Decision of First-tier Tribunal Judge Ketteley does not contain any material errors of law. As such, it is not necessary to set aside the decision.
2. The decision to dismiss the appeal is therefore confirmed.

D. Clarke

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

20 July 2015

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000272
UI-2025-000277
UI-2025-000276

First-tier Tribunal No: PA/01793/2024
PA/75555/2024
PA/75552/2024

THE IMMIGRATION ACTS

Directions Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE JACKSON
DEPUTY UPPER TRIBUNAL JUDGE CLARKE

Between

KG, EG, DG

(ANONYMITY ORDERS MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:
For the Appellants: Mr Nath of Counsel, instructed by Perry Clements Solicitors.
For the Respondent: Ms Everett, Senior Home Office Presenting Officer.

Heard at Field House on 25 March 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellants and any member of their family 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 appellants or any member of their family. Failure to comply with this order could amount to a contempt of court. This order is made on account of the fact that the Appellants’ claim is for international protection.

DIRECTIONS
INTRODUCTION
1. The Appellants appeal against the Decision of First-tier Tribunal Judge Ketteley promulgated on 2 December 2024 (“the Decision”), dismissing their appeal against the Respondent’s decision dated 8 December 2023 (“RFRL”), refusing their protection claim dated 23 July 2018.
2. The first Appellant is the mother of the second and third Appellants. All three Appellants are Albanian nationals.
BACKGROUND TO THE APPEAL BEFORE THE FIRST-TIER TRIBUNAL
3. For the purposes of these Directions, in summary, the RFRL conceded that the first Appellant was a victim of trafficking but refused the Appellants’ protection claim on the basis that the Appellant was not at risk of re-trafficking. The Respondent found that there was sufficiency of protection and viable internal relocation options in Elbasan, Sarande or Vlore.
4. On 12 November 2024, when this appeal came before First-tier Tribunal Judge Ketteley, the Appellants were represented by Mr Gajjar of Counsel, who was instructed by Perry Clements Solicitors.
5. Before the FTT, the Appellants argued at [26] of the Decision that the first Appellant would be at risk of re-trafficking in Albania as a single mother, on account of her husband being in prison in the UK at the date of the First-tier hearing,
“She says she is at a great risk of re-trafficking. Mr Gajjar advances she does not benefit from any protective factor [……..] with her husband currently in prison in the UK, he says she would essentially be a single mother upon her return to Albania with no male protector”.
6. Equally, the ASA before the FTT at [7.2] (dated 11 November 2024) argued that,
“all of the Appellant’s children are likely to be regarded as illegitimate. She does not have a male protector as her husband is in prison”.
7. In this regard we note that no other reason was advanced before the FTT for the suggestion that the husband would be unable to return with the Appellants to Albania, given that he is also an Albanian national and given the reference to the couple having reconciled their relationship.
8. In the light of the case advanced – and in the absence of any suggestion by the Respondent that this was incorrect - the FTIJ at [30] considered re-trafficking in this context, as found at [30],
“I recognise that the Appellant’s husband would not be returning with her as he is serving a custodial sentence in the UK, however I find that the fact she had a husband abroad would act as a protective factor for her and this would reduce her risk of re-trafficking […..]”
9. We further note that when considering Article 8 and proportionality at [42(c)] the FTIJ records,
“the Appellant’s husband is serving time in prison in the UK and she has visited him with the children so, once removed to Albania, the ability to maintain that limited face-to face relationship with him would be hindered although it can continue through other means […]”.
10. At this stage we presume that the finding at [42(c)] arose from the oral evidence before the FTT, because we can find no mention of prison visits in the documentary evidence before the FTT.
PERMISSION TO APPEAL TO THE UPPER TRIBUNAL
11. In Grounds of Appeal settled by Mr Gajjar on 1 December 2024, Grounds 1 and 4 are predicated upon this same factual matrix, that is, the husband was in prison at the date of the FTT hearing on 12 November 2024.
12. Ground 1 is titled “Irrational Conclusion in Relation to the Appellant’s Husband” and argues that the FTIJ erroneously found that the husband would be a protective factor, despite the fact that he was in prison in the UK. In this regard, paragraph [5.2] of Ground 1 states that, “the Appellant’s husband is in prison in the United Kingdom and the Judge accepts they would not, therefore be returning as a family unit.”
13. Equally, Ground 4 at [9] argues that “one of the factors in favour of the Appellant was that her husband is serving time in prison [……] the Judge does not appear to make adequate findings in relation to the proportionality of these consequences”.
ERROR OF LAW HEARING, 25 MARCH 2025
14. At the Error of Law hearing, Mr Nath, Counsel for the Appellant, continued to rely on these Grounds of Appeal, indeed he expressly stated in submissions that it was “irrational to find the husband a protective factor if he was incarcerated”. Mr Nath made it very clear that Ground 1 was the “main ground”.
15. Of considerable concern to us is that when discussing potential disposal of the appeal after submissions on the grounds of appeal were completed by the parties, Mr Nath submitted that if an error of law was found, further updating evidence would be required, including in relation to the First Appellant’s husband who had then been on license for some 26 or 27 months.
16. If this disclosure is correct, this raises serious questions as to the pursuit of grounds 1 and 4 in this appeal; which appear to challenge findings that are based on a known mistake of fact, that is, that the husband was still in prison at the date of the First-tier Tribunal hearing when he had by that date already been released on licence. This raises, in particular, the issue of whether either ground of appeal could be material to the outcome. This matter was not addressed at the hearing, nor could it have been by the Respondent given that Mr Nath had not been forthcoming about the husband being on licence during submissions.
17. This also raises questions as to the conduct of the appeal before the First-tier Tribunal, at which point it appears that the husband was already on licence but submissions were made relying specifically on his incarceration.
18. In these circumstances, further written submissions are required from the parties to explain the situation around the First Appellant’s husband’s imprisonment/release and their positions as to the impact of this on the grounds of appeal pursued. We therefore Direct as follows:
DIRECTIONS
1. By no later than 4pm on the 14th day after service of these Directions, the Appellants must file and serve a statement addressing:
a) Whether the first Appellant’s husband is on license, and if so, since when.
b) What evidence was before the First-tier Tribunal as to the first Appellant’s imprisonment and as to prison visits. This may include a note of the oral evidence/hearing with a view to this being agreed between the parties if possible.
c) The materiality of any error of law on grounds 1 and 4 if the first Appellant’s husband was not in prison at the date of the hearing before the First-tier Tribunal and whether these grounds are still pursued.
2. By no later than 4pm on the 14th day after service of the representatives’ responses to Direction 1, the Respondent must file and serve a position statement confirming,
a) Whether any hearing notes or other information provided by the Appellants’ representatives, in relation to oral submissions or evidence before the First-tier Tribunal, are agreed. If not, any notes of the evidence/hearing from the Respondent should be produced.
b) The Respondent’s position on the materiality of grounds 1 and 4, in the light of the Appellants’ response. This may include information as to the first Appellant’s husband’s status in the United Kingdom at the time of the First-tier Tribunal.
3. On the first available date after the date identified in Direction 2, the Parties’ responses are to be placed before Upper Tribunal Judge Jackson and Deputy Upper Tribunal Judge Clarke, for consideration as to whether further Directions or listing of a resumed hearing is required; if not, for the issue of a Decision on the Error of Law.
Notice to Show Cause (to Perry Clements Solicitors)
(1) Further to the decisions in R (Hamid) v SSHD [2012] EWHC 3070 (Admin), R (Sathivel & Ors) v SSHD [2018] EWHC 913 (Admin) and R (Shrestha) v SSHD [2018] UKUT 00242, Perry Clements Solicitors are directed to file a written response to the following points within fourteen days of the date this order is sent.
(i) Perry Clements Solicitors shall identify the person responsible for the case, if not Felicia Kenine identified on the CE File as the contact for this appeal. If the person responsible is not a qualified solicitor, the firm shall also identify the solicitor who is responsible for supervising the caseworker.
(ii) Perry Clements Solicitors shall make any further representations in response to the matters outlined above relating to the conduct of this case, before the Upper Tribunal considers whether it is appropriate to refer the matter to the Solicitors Regulation Authority. Failure to respond to these directions will lead to the matter being referred to the Solicitors Regulation Authority.
Notice to Show Cause (to Mr P Nath of Counsel)
(1) Further to the decisions in R (Hamid) v SSHD [2012] EWHC 3070 (Admin), R (Sathivel & Ors) v SSHD [2018] EWHC 913 (Admin) and R (Shrestha) v SSHD [2018] UKUT 00242, Perry Clements Solicitors are directed to file a written response to the following points within fourteen days of the date this order is sent.
(i) Mr Nath shall make any further representations in response to the matters outlined above relating to the conduct of this case, before the Upper Tribunal considers whether it is appropriate to refer the matter to the Bar Standards Board. Failure to respond to these directions will lead to the matter being referred to the Bar Standards Board.
Notice to Show Cause (to Mr J Gajjar of Counsel)
(1) Further to the decisions in R (Hamid) v SSHD [2012] EWHC 3070 (Admin), R (Sathivel & Ors) v SSHD [2018] EWHC 913 (Admin) and R (Shrestha) v SSHD [2018] UKUT 00242, Perry Clements Solicitors are directed to file a written response to the following points within fourteen days of the date this order is sent.
(i) Mr Gajjar shall make any further representations in response to the matters outlined above relating to the conduct of this case, in particular in relation to matters on which he was instructed, including the First-tier Tribunal hearing and the grounds of appeal, before the Upper Tribunal considers whether it is appropriate to refer the matter to the Bar Standards Board. Failure to respond to these directions will lead to the matter being referred to the Bar Standards Board.

D. Clarke

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

1 April 2025

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2025-000272
UI-2025-000277
UI-2025-000276

First-tier Tribunal No: PA/01793/2024
PA/75555/2024
PA/75552/2024

THE IMMIGRATION ACTS

Directions Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE JACKSON
DEPUTY UPPER TRIBUNAL JUDGE CLARKE

Between

KG, EG, DG

(ANONYMITY ORDERS MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr Nath of Counsel, instructed by Perry Clements Solicitors.
For the Respondent: Ms Everett, Senior Home Office Presenting Officer.

Heard at Field House on 25 March 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellants and any member of their family 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 appellants or any member of their family. Failure to comply with this order could amount to a contempt of court. This order is made on account of the fact that the Appellants’ claim is for international protection.

DIRECTIONS
BACKGROUND
1. On 25 March 2025, the Appellants’ error of law appeal was heard at Field House. After submissions were concluded, Mr Nath disclosed that the first Appellant’s husband had been on license for 26 – 27 months. This appeared to us to be contrary to grounds 1 and 4, which relied upon the husband’s incarceration in the UK at the time of the hearing before the First-tier Tribunal.
2. On 9 April 2025, Directions dated 1 April 2025 were served upon the parties. In summary, those Directions required the Appellants to confirm the first Appellant’s husband’s true circumstances at the date of the first-tier Tribunal hearing and whether grounds 1 and 4 were still pursued in the light of Mr Nath’s disclosure. In addition, the Directions contained notices to show cause to Mr Gajjar of counsel, who appeared before the First-trier Tribunal, Mr Nath of counsel, who appeared before us at the Upper Tribunal and Perry Clements Solicitors. The first Appellant and her representatives all served responses to the notices to show cause within 14 days of service of the Directions. The response from Mr Nath deferred to Perry Clements Solicitors as to whether the appeal was still pursued on grounds 1 to 4; however, their response did not address this in any meaningful way, or at all in relation to ground 4.
3. The Directions further required the SSHD to provide a position statement in respect of the materiality of grounds 1 and 4, in the light of the Appellants’ responses. To date there has been no response from the SSHD, although we appreciate this may be related to the lack of clarity from Perry Clements Solicitors as to the Appellant’s position on this.
4. Having reviewed the Appellants’ responses, it appears to us that the Appellants concede that the husband was indeed on license at the time of the First-tier Tribunal hearing, contrary to the thrust of grounds 1 and 4. However, in the light of the SSHD’s failure to respond, we consider it appropriate to reconvene the Appellants’ error of law appeal for the parties to make submissions on the materiality of the pleaded grounds of appeal.
5. We further consider that a reconvened hearing would give Ms Everett the opportunity of commenting upon Mr Nath’s inference at [4] of his statement, that Ms Everett raised the question of the husband’s incarceration prior to the start of the error of law hearing. In the light of this question - and given that the error of law hearing went part-heard - Ms Everett’s attendance at the resumed hearing is required.
6. We confirm that the Hamid Directions will now be dealt with as separate matter to the error of law issue moving forward.
DIRECTIONS
1. The Appellants’ error of law appeal is to be reconvened at Field House on the first available date before Upper Tribunal Judge Jackson and Deputy Upper Tribunal Judge Clarke, with a time estimate of 2.5 hours. An Albanian interpreter is required.
2. Any application to amend the grounds of appeal must be filed and served no later than 4pm, 14 days before the reconvened hearing.
3. Should an error of law be found, the parties must come prepared for the appeal to be remade on the same day.
4. No later than 4pm, 7 days before the relisted hearing, the Appellant may file and serve any further evidence upon which she wishes to rely for any remaking of her appeal. For any witness who intends to give oral evidence, this must include a written (or updated written statement), signed, dated and accompanied by a statement of truth to stand as evidence in chief.
5. Ms Everett’s attendance at the reconvened hearing is required.

D. Clarke

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

25th May 2025