Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000832

First-tier Tribunal No: PA/60308/2023
LP/07559/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 20th of June 2025

Before

UPPER TRIBUNAL JUDGE HIRST
DEPUTY UPPER TRIBUNAL JUDGE BEACH

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

VM
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr Reynolds, Counsel instructed by David Benson Solicitors
For the Respondent: Mr Parvar, Senior Home Office Presenting Officer

Heard at Field House on 1 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. The appellant appeals, with permission, against the decision of the First-tier Tribunal, promulgated on 8th November 2024, dismissing the appellant’s appeal against a decision of the Secretary of State made on 30th October 2023, refusing her protection and human rights claim.
Background to the appeal
2. VM is a Namibian national. She arrived in the UK on 18th June 2022. She claimed asylum on the day of her arrival in the UK.
3. VM states that, following the death of her husband, she was forced to marry her brother in law; SH. She states that SH was physically and sexually abusive to her and that as a result of the abuse, she moved to another area of Namibia and reported the abuse to the police. VM states that SH found her in the other area of Namibia and brought her back to his home area where the abuse continued. She states that she reported the abuse to the Traditional Authority which did not assist her and that, subsequently, she managed to leave again and remained in hiding for a week before she left Namibia and travelled to South Africa. She then travelled from South Africa to the UK. VM states that after leaving Namibia, SH has harassed her aunt and her children (whom she left with her aunt) in Namibia and has made threats to kill. She states that she cannot seek sufficient protection from the Namibian authorities and that there is not a realistic internal flight alternative available to her. VM also made a claim on Article 3 medical grounds.
4. The respondent accepted that VM was a Namibian national, that she had been forced to marry SH and that SH had been sexually and physically abusive towards VM. The respondent did not accept that there would not be sufficient protection available to VM in Namibia and/or that there was not a realistic internal flight alternative available to VM in Namibia. The respondent also refused the Article 3 medical claim.
5. The Tribunal dismissed the appeal. The judge noted that the appellant’s evidence was that she had reported the abuse to the Namibian police who had recorded the incident, had commenced an investigation diary and had looked for SH. The judge placed little weight on the country expert report and found that the CPIN showed that there was sufficient protection available to the appellant. The judge did not address internal relocation having found that there was a sufficiency of protection available to the appellant.
6. The appellant sought permission to appeal. Permission to appeal was initially refused by Judge G Clarke of the First-tier Tribunal on 29th January 2025. The appellant renewed the application for permission to appeal and permission to appeal was granted on 27th March 2025 by Deputy Upper Tribunal Judge Lewis who granted permission on ground 1 only (sufficiency or protection) but who noted that ground 2 (internal relocation) may become relevant if ground 1 was successful.
7. The appeal came before us at an error of law hearing on 5th June 2025. There were two issues:
a. Whether the judge had erred in finding that there was a sufficiency of protection
b. If the judge had erred in finding that there was a sufficiency of protection, whether the judge had erred in his assessment of internal relocation
The error of law hearing
8. At the hearing before us, the appellant was represented by Mr Reynolds, Counsel instructed by David Benson Solicitors. The respondent was represented by Mr Parvar, a Senior Home Office Presenting Officer.
9. In his submissions, Mr Reynolds informed us that there was some agreement between the parties as set out in the respondent’s skeleton argument. He confirmed that there were no grounds relating to Article 3 medical grounds.
10. Mr Parvar referred to his skeleton argument and said that the respondent accepted that there was a material error of law. He submitted that a number of findings of the First-tier Tribunal decision should be preserved; Paragraph 37 regarding a police report and investigation, Paragraph 44 stating that SH had no influence in Namibia, Paragraph 7 confirming that the respondent accepted that the appellant had been the victim of a forced marriage and the victim of abuse at the hands of SH, Paragraphs 40-43 inclusive regarding the country expert report and Paragraphs 46-51 inclusive regarding the Article 3 medical claim. Mr Parvar acknowledged that it may be more appropriate simply to note the contents of paragraph 37 and that it was necessary to explore this rather than preserve it as a finding.
11. In response, Mr Reynolds noted that it was accepted that the appellant had given a credible account. He submitted that it was unfortunate that the appellant had not been re-examined regarding her interaction with the authorities. He said that there had been an incident in January 2022 which was reported to the police and which led to an investigation diary. He said that it was not disputed that SH came to another area of Namibia and brought the appellant back to his home area. Mr Reynolds said that there was a potential issue why she did not report that incident to the police. He said that the appellant was effectively abducted by the appellant and the police did not do anything about this despite compelling medical evidence. Mr Reynolds said that there had also been visits by SH to the appellant’s aunt where the appellant’s children were living. He submitted that the positive credibility findings should be maintained but accepted that SH was not a person of influence in Namibia. He did not agree to preserving the findings regarding the country expert report but noted that more reliance was, in any event, placed on the CPIN by both parties.
Error of law decision
12. We bear in mind that an appellate tribunal should be wary of setting aside a decision by a lower tribunal. In doing so we apply what was held in in Ullah v SSHD [2024] EWCA Civ 201 at [26]. We further bear in mind what was said in Volpi v Volpi [2022] EWCA Civ 464 at [2] and what was held in HA (Iraq) [2022] UKSC 22 at [72].
13. However, we find that there is a material error of law in the judge’s decision. The judge’s assessment of sufficiency of protection was undertaken without making clear findings of fact on all of the relevant evidence.
14. Permission to appeal was granted on ground 1 only which addressed the judge’s assessment of sufficiency of protection, although the grant of permission acknowledged that ground 2 regarding internal relocation may become relevant if ground 1 succeeded. The judge found that SH was a non State actor, that it had not been established that he had any influence in Namibia, that the authorities acted when the appellant approached them and that the CPIN confirms that there is a sufficiency of protection available to the appellant [44]. The judge placed little weight on the expert evidence provided by the appellant [43].
15. The appellant’s account in her written evidence was that she reported the forced marriage to SH to the Traditional Authority in October 2021 and that no action was taken [paragraph 5 of her witness statement], that she reported the abuse to police on 1st January 2022 and was told that no action would be taken [paragraph 8 of her witness statement] and that she then made a further report to the Traditional Authority in February 2022 and again no action was taken [paragraph 9 of her witness statement]. The FtT decision records the appellant’s oral evidence as being that she reported the abuse to the police, they recorded a complaint and started an investigation diary, obtained medical evidence and started looking for SH [37]. There was therefore a potential discrepancy in the evidence before the judge regarding the police investigation. The judge does not explicitly state that he accepted that oral evidence but the evidence is set out by him [37] and he makes later reference to this evidence when making his finding regarding sufficiency of protection [44].
16. However, there was also evidence before the judge which the judge did not evaluate and about which the judge did not make clear findings of fact. The appellant’s evidence was that after she travelled to Walvis Bay, SH found her and took her and the children back home after which the abuse intensified [paragraph 8 of her witness statement]. The judge makes no finding on this evidence. The appellant’s evidence was also that SH had contacted her aunt and children after the appellant had left Namibia and made threats to kill [paragraph 12 of her witness statement]. The judge does not make any clear finding regarding these claimed incidents.
17. The lack of findings regarding core aspects of the appellant’s account mean that it is unclear whether the judge accepted that evidence and if he did accept the evidence, to what extent, if any, it affected his findings regarding sufficiency of protection. These were key aspects of the appellant’s account which required clear and reasoned findings before any assessment of sufficiency of protection.
18. We concur with the agreement of the parties that the decision contains material errors of law in consideration of the appellant’s account and in consideration of the background evidence. We are further satisfied that it would be in the interests of justice to remit this appeal to the First-tier Tribunal to be heard again afresh by a different judge.
19. Mr Parvar submitted that various findings should be preserved; the finding that the appellant had been forced to marry SH after the death of her husband, the finding that the appellant was abused by SH (both of those were accepted in the respondent’s reasons for refusal letter dated 30th October 2023), the findings regarding the expert evidence [41-43] and the finding that SH did not have any influence in Namibia [44].
20. Mr Reynolds agreed that the findings that the appellant was forced to marry SH after the death of her husband and was abused by him should remain as they had been accepted by the respondent. He also accepted that it could not be said that SH had any sphere of influence in Namibia as this was not the appellant’s account. Mr Reynolds submitted, however, that the findings regarding the expert report should not be preserved.
21. We find that the findings regarding the expert report should not be preserved. It is for the judge hearing the appeal to make an assessment of the evidence and that includes an unfettered assessment of expert evidence. We do not, therefore, preserve that finding. We do preserve the findings that the appellant was forced to marry SH after the death of her husband, that she was abused by SH and that SH does not have influence in Namibia. We note too, that the appellant’s account in her oral evidence regarding the extent of the police investigation differed from her written evidence but this is a matter to be considered further by the judge hearing the remitted appeal. There will also need to be an assessment of whether (if there is an insufficiency of protection in Namibia) there would be a realistic internal flight alternative available to the appellant.

Notice of decision
1. The decision of the First-tier Tribunal involved the making of an error of law and we set it aside.
2. We remit the appeal to the First-tier Tribunal to be heard by a different judge. For the avoidance of doubt, the only findings which are preserved are (a) that the appellant was forced to marry SH after the death of her husband (b) that SH was abusive towards her and (c) that SH does not have any influence in Namibia.

F Beach

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

16th June 2025