Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000632

First-tier Tribunal No: PA/60322/2023

THE IMMIGRATION ACTS
Decision & Reasons Issued:

17th June 2025

Before

UPPER TRIBUNAL JUDGE HANSON
DEPUTY UPPER TRIBUNAL JUDGE GREER

Between

CWN
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Coen instructed by Templeton Legal Services.
For the Respondent: Ms Blackburn, a Senior Home Office Presenting Officer.

Heard at Phoenix House (Bradford) on 9 June 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. Both members of the panel have contributed to this decision.
2. The Appellant appeals with permission a decision of the judge of the First-tier Tribunal (‘the Judge’), promulgated following a hearing at Bradford on 23 October 2024, in which he dismissed the appeal against the refusal of her application for international protection and/or leave to remain in the United Kingdom on any other ground.
3. The Appellant is a citizen of Kenya whose birth certificate states she was born on the 27 July 1986, but which appears on her passport as 27 July 1982.
4. The protection claim was made on 15 October 2019 and refused by the Secretary of State in a decision dated 27 October 2023.
5. It was not disputed before the Judge that the Appellant’s ex-husband, a former police officer, had threatened to kill her after she prevented him from taking their children into his custody, that the Appellant is a victim of domestic abuse.
6. Having considered the documents, oral evidence, and submissions made the Judge sets out his findings from [37].
7. Although the Judge accepted the Appellant’s claim as to what had occurred in the past was reasonably likely at [38] he did not accept there was a real risk to the Appellant from her ex-husband in Kenya, for the reasons set out at [39]. The Judge find the Appellant would not be a lone woman as she has support from her sister and her now adult children, nor that it had been established that her former husband had any significant political influence with the police or any connections outside the immediate council ward [40].
8. The Judge accepts the Appellant is a victim of modern slavery, as did the Respondent, but did not find that it has any bearing on the risk to her in Kenya as there was no cogent evidence it will [41]. On the basis of the findings between [37] – [41] the Judge concluded the Appellant had failed to establish she is a refugee [42] and dismissed her Humanitarian Protection and Article 3 ECHR claims in line [43].
9. The Judge considers Article 8 ECHR from [44] finding family life in the UK had been established as had private life. The Judge finds the issue is the proportionality of any interference with the protected right which is considered from [45], leading to it being found that the Respondent’s decision is proportionate.
10. 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 on 18 March 2025, the operative part of the grant being in the following terms:

1. Grounds 2 and 3 are arguable. The respondent did not accept that the appellant was in a genuine subsisting relationship with her partner (see respondent’s review), however the FtTJ found that there was a genuine relationship and that there was family life between them (paragraph 44). It is arguable as the grounds contend there was no assessment of whether there were insurmountable obstacles to family life continuing in Kenya and in the light of her partner’s status. It will be necessary for the appellant’s representatives to demonstrate that this was an issue which was material to the outcome.
2. Insofar as ground 1 is concerned, it appears that the appellant’s account was that she had attempted to relocate but that her husband had found her. I am just persuaded that it is arguable that in the assessment made of internal relocation the FtTJ found that her children could live with her husband but failed to consider whether that would identify her whereabouts and if so any subsequent risk of harm.
3. I grant permission on all grounds.

11. There is no Rule 24 reply from the Secretary of State.
Discussion and analysis
12. Ground 1 asserted the Judge erred in law in finding the Appellant can internally relocate. The submission the Judge incorrectly concluded there was no real risk of harm is a statement of disagreement and nothing more [1].
13. The statement the assessment of whether the Appellant could relocate internally was purely a subjective one by the Judge, which did not take into account the fact she will still be found by her ex-husband, is without merit. The duty upon the Judge was to consider the evidence with the required degree of anxious scrutiny and then make findings supported by adequate reasons. Those reasons only need to be adequate, not perfect.
14. We find the Judge clearly considered the evidence with the required degree of anxious scrutiny. The claim the Judge did not take into account the fact the Appellant’s husband had found her in the past is totally without merit. The Judge sets out a number of reasons why the Appellant’s husband would not find her if she were returned now. It is not made out those findings are in any way speculative or not based upon the evidence or submissions the Judge had to consider. It is not made out the Judge’s assessment of the evidence is undermined by any objective or country information. This ground is, again, disagreement with the Judge’s conclusions arrived at having considered the evidence.
15. The assertion the Judge incorrectly concluded the Appellant would not be found by her ex-husband is, again, mere disagreement with the Judge’s finding that she would not. The Judge deals with the issue of contact between the Appellant and her father and sister and it is not a finding outside the range of those reasonably open to the Judge that her husband would not be able to find her. Mere disagreement with that conclusion is not sufficient [3].
16. The assertion at [4] that the Judge did not give consideration to the fact that if the children chose to live with their father they will be able to lead him to the Appellant as she is not likely to enter communication with the children, is without arguable merit. Firstly there was no evidence before the Judge to show that if the adult children went to live with their father they would tell him where their mother lived, if this fact was known to them, if they knew that to do so would result in their mother suffering serious harm. Many parents and children, adult or otherwise, in families where domestic abuse is involved will conceal places of residence from a violent spouse to avoid such activities.
17. This ground also challenges the determination at [17] – [20] but these are not findings, but paragraphs in which the Judge is recording the evidence given by the Appellant. As noted above, the findings start from [37]. Specific findings regarding internal relocation can be found at [38] – [39] which have not been shown to be findings outside the range of those reasonably open to the Judge on the evidence. Even if the Appellant had expressed concerns that does not mean the Judge was required to accept the same and, having considered the evidence as a whole, was entitled to find as he did in the determination.
18. It is not made out on the basis of the Judge’s findings that the Appellant would have to isolate herself from her family, including her children. The Judge was aware that the Appellant was vulnerable and a victim of domestic abuse and trafficking and clearly factored that into his decision. The assertion at [5] of the Grounds that what was being pleaded contradicts the Judge’s finding the Appellant would not be a lone woman if she returned to Kenya is without merit, as there is no evidential legal basis to warrant finding that she would have to isolate herself. This Ground is, again, mere disagreement with the Judge’s findings.
19. Asserting the Judge erred in failing to apply Sivakumuran [1987] UKHL 1, which it is submitted accepted the Tribunal needed to be satisfied to a degree of 10% that the Appellant may suffer persecution upon return for there to be a real risk of harm, does not disclose any legal error in the Judge’s findings. There have been a number of cases since that decision in relation to the relevant burden and standard of proof. First-tier Tribunal judges are accepted as being experts in the field of immigration and asylum law and to apply the law properly unless it is proved otherwise. The Judge applied the lower standard and arrived at the conclusions in the determination. The Judge exercised judgement having considered the evidence as a whole, and as a result concluded there will be no real risk of harm sufficient to warrant a grant of international protection. That has not been shown to be a finding outside the range of those reasonably open to the Judge on the evidence.
20. We find no material legal error made out in relation to Ground 1.
21. Ground 2 asserts the Judge failed to assess whether there will be insurmountable obstacles to the Appellant and her partner continuing their relationship outside the UK. The Judge was aware the Appellants partner is a Congolese citizen with Indefinite Leave to Remain in the United Kingdom. The Judge’s finding is that it would not be a disproportionate interference with any protected right if he remains in the UK while the Appellant returns to Kenya to make an entry clearance application to re-enter the UK lawfully. That has not been shown to be a finding outside the range of those reasonably open to the Judge on the evidence. In light of that, no material legal error is established, for even if there were insurmountable obstacles to the relationship continuing in Kenya, there is an alternative remedy which has not been shown to be unreasonable or disproportionate to enable them to live in the UK lawfully.
22. Ms Coen raised the issue of the income requirements if the Appellant had to return to Kenya to make such an application submitting that the evidence before the Judge showed that the minimum income requirement could not be satisfied. As Judge Greer pointed out, if the Appellant cannot meet a mandatory requirement of the immigration rules that strengthen the Secretary of State’s argument in relation to the proportionality of any interference when considering what weight to be given to the public interest. That is a sustainable observation.
23. In any event, it has been accepted that family life exists between the Appellant and her partner. In Kenya the Appellant has the option of making an application pursuant to Article 8 ECHR on human rights grounds in which the formal maintenance requirements of Appendix FM have no direct application, although it will require consideration of all relevant issues including any claim upon the public purse in the UK. We find no material are made out in relation to Ground 2.
24. Ground 3 asserts the Judge erred in concluding there will be no consequences of gravity which would result from a decision to interfere with their family life.
25. As noted, the Judge was aware of the status of the Appellant’s partner as being entitled to live and work in the UK. At [44] the Judge specifically records accepting the Appellant has lived with her partner since February 2022 and that their relationship amounts to family life as well as part of their private lives. The Judge accepts that the Appellant’s removal would interfere with their family life in the UK and that the issue is the proportionality of any interference.
26. The Judge does not find there will be no consequences of gravity as if he did, he would not have gone on to consider the fifth of the Razgar questions, that of the proportionality of any interference.
27. The Judges proportionality assessment is set out from [45] which overlaps with some of the comments made above. The conclusion the Respondents decision is proportionate is a finding within the range of those reasonably open the Judge on the evidence and findings.
28. The Court of Appeal have made it abundantly clear in cases such as Volpi v Volpi [2022] EWCA Civ 462 at[2], Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 at [6], and Hamilton v Barrow and Others [2024] EWCA Civ 888 at [33-31], that appellate judges should not interfere with decisions of judges below unless the earlier decision is plainly wrong.
29. We do not accept on the basis of the pleadings, submissions, or having considered the evidence and available documents as a whole, that it is been made out that the Judge has erred in law in a manner material to the decision to dismiss the appeal. The Appellant’s desire for a more favourable outcome to enable her to remain in the United Kingdom and disagreement with the Judges conclusions does not establish that the impugned decision is rationally objectionable or plainly wrong.

Notice of Decision
30. No material legal error has been made out in the decision of the First-tier Tribunal.
31. The determination shall stand.

C J Hanson
Judge of the Upper Tribunal
Immigration and Asylum Chamber

10 June 2025