Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-000902
First-tier Tribunal No: RP/50151/2023
LP/10930/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

9th October 2026

Before

UPPER TRIBUNAL JUDGE REEDS
DEPUTY UPPER TRIBUNAL JUDGE GREER

Between

JD
(Anonymity direction continued)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Pratt, Solicitor
For the Respondent: Mr Wain, Senior Presenting Officer

Heard on 2 September 2026

DECISION AND REASONS
1. The Appellant appeals, with permission, against the decision of a First-tier Tribunal Judge (‘the Judge’) promulgated on 28 November 2024 dismissing his appeals on asylum, humanitarian protection and human rights grounds.
2. An anonymity order was made by the First-tier Tribunal pursuant to Rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. No application was made to vary or discharge that order and we maintain it.
3. The Appellant is a citizen of Namibia. It is his case that he was a member of, and employed by, the ruling SWAPO party. He says that he uncovered evidence of corruption and election fraud, which he then disclosed to a candidate standing for president against the SWAPO candidate. As a result, the Appellant feared reprisals at the hands of SWAPO and the Nambian State.
4. The Appellant made an application for asylum on 22 January 2021. In a written decision dated 17 November 2023, the Respondent refused the Appellant’s application. The Respondent accepted the Appellants’ nationality and identity but rejected the substance of the claim.
5. The appeal came before the Judge on 15 November 2024. In a written decision dated 28 November 2024 the FtT dismissed the Appellant’s Appeal.
6. In summary, although the Judge accepted to the required standard that the Appellant had been a member of SWAPO, the Judge rejected the Appellant’s claim to have discovered election fraud and to have disclosed its existence to a presidential candidate. As a consequence, the Judge dismissed the Appellant’s Asylum and Human Rights appeals.
The appeal before the Upper Tribunal
7. The Appellants sought permission to appeal. At the hearing before us Ms Pratt helpfully clarified the grounds upon which she sought to rely. We are grateful to her for the realistic approach that she took in narrowing the complaints.
8. Ground 1: Procedural unfairness: Ms Pratt submitted that the hearing before the First-tier Tribunal was procedurally unfair. Two matters were relied upon. First, it was said that the Appellant was afforded insufficient time to deal with the interview records. Secondly, the hearing was affected by significant background noise caused by the hearing centre's air conditioning. Taken these matters together, Ms Pratt submitted that the Judge ought to have adjourned the hearing.
9. The written grounds also alleged bias. Having heard Ms Pratt's submissions, we understood that allegation to be no more than a way of describing the alleged procedural unfairness. It was not suggested before us that the Judge was in fact biased against the Appellant.
10. Ground 2: Mistake of fact: Ms Pratt submitted that the Judge misunderstood the Appellant's evidence in respect of material aspects of his claim. It was argued that those misunderstandings caused the Judge to identify inconsistencies in the Appellant's evidence which were not in fact present and that those perceived inconsistencies were then relied upon adversely when assessing his credibility.
11. Ground 3: Inadequate reasons: The Appellant submitted that the Judge failed adequately to engage with material documentary evidence which was before the First-tier Tribunal. Although the Judge stated that he had considered all of the evidence, it was argued that the decision does not explain what he made of particular items of case-specific and background evidence which were capable of supporting material aspects of the Appellant's account. The informed reader is therefore unable to understand what weight, if any, was attached to that evidence or why it did not affect the Judge's conclusions.
12. Ground 4: Inadequate reasons: The Appellant submitted that the Judge failed to give adequate reasons for the weight which he attached to the expert evidence before the First-tier Tribunal.
13. Permission to appeal was granted by Upper Tribunal Judge Kamara on 24 March 2025.
14. In granting permission, Judge Kamara observed:
The grounds raise a series of arguable points. In addition, it is arguable that there was procedural unfairness in that the applicant had not been provided with the interview records until the day of the hearing and was expected to address issues arising during the course of that day. It is further arguable that there were issues with the judge’s understanding of the appellant’s evidence possibly caused by noisy air conditioning. There are multiple references in the grounds to the need for the recording of the hearing to be made available.
15. The appeal therefore comes before the Upper Tribunal to determine whether the decision of the First-tier Tribunal involved the making of an error on a point of law.
The appeal before the Upper Tribunal
16. The matter has a lengthy procedural history which is set out in the earlier directions of Upper Tribunal Judge Reeds and Upper Tribunal Judge Lodato. By way of brief summary, the grounds of appeal allege that the Judge misheard aspects of the Appellant’s oral evidence at the hearing before him. Representatives of both parties filed with the Tribunal their notes of the hearing. They did not agree as to the Appellant’s answer to a question from the Judge in respect of his membership of SWAPO.
17. To settle the issue, representatives on each side attended an appointment at Field House in London to listen to an audio recording of the First Tier Tribunal hearing. In response to Judge Lodato’s directions, Ms Pratt filed a witness statement describing the question and answer that she heard on the recording. For the Respondent, Ms Nolan filed a position statement. It confirms that Ms Nolan listened to the audio recording of the hearing, but it is entirely silent as to what Ms Nolan heard of the Appellant’s evidence which is the subject of dispute in this appeal.
18. At the hearing before us, Mr Wain fairly accepted that the SSHD did not dispute the accuracy of what Ms Pratt’s witness statement said appeared on the audio recording. We proceed on that basis.
Decision on error of law
19. We find it appropriate to deal with Ground 2 first.
Ground 2
20. For the reasons that follow, we are satisfied that Ground 2 discloses a material error of law. In approaching this ground, we have kept in mind what is said at [62] of E v Secretary of State for Home Department [2004] EWCA Civ 49.
SWAPO Membership
21. At questions 60–62 of his substantive interview, the Appellant was asked a series of questions about his specific role within SWAPO. He said that he had worked as an archivist for the party from 2014 or 2015 until his “resignation” in July or August 2019. Question 62 records the following exchange:
How often were you involved in these activities?
From 2014-2015 that is when I started working for the party and I only resigned around 2019 Jul/Aug time.
22. Read in the context of the questions which immediately preceded it, the more natural interpretation of that answer is that the Appellant was describing his resignation from his role as an archivist. We recognise, however, that the answer is capable of another interpretation: namely, that the Appellant meant that he resigned from SWAPO altogether in 2019.
23. The interviewer then moved to another topic. The Appellant was not asked to clarify whether, by “resigned”, he meant that he had resigned from his particular role within SWAPO or had ceased to be a member of the party altogether. The ambiguity was therefore left unresolved at interview.
24. What is no longer in dispute is that the Judge sought to clarify this matter at the hearing. He was plainly entitled to do so. Ms Pratt's agreed witness statement records what can be heard on the audio recording of the Appellant's answer to the Judge's question. The Appellant said that he had not resigned from SWAPO and remained a member of the party as at the date of the hearing.
25. That is not how the Judge understood the evidence. At [12], the Judge proceeded upon the basis that the Appellant had said that he was no longer a member of SWAPO. The parties now agree that this is not what the Appellant said. The Judge therefore proceeded upon a mistake of fact.
26. In fairness to the Judge, Ms Deria's contemporaneous note records the Appellant's answer in substantially the same way. The fact that two people in the hearing room understood the answer in the same way may be explained by the background noise which can be heard on the recording. That explains how the mistake arose. It does not alter the fact that there was a mistake. The remaining question is whether it was material.
27. For the Respondent, Mr Wain submitted that it was not. He argued that the Judge accepted in any event that the Appellant remained a member of SWAPO until the date of the hearing. We do not accept that submission. It does not reflect what the Judge actually found at [12].
28. Read fairly and as a whole, [12] records an adverse credibility finding arising from the Judge’s conclusion that the Appellant had given inconsistent evidence as to whether he had resigned from SWAPO. The Judge understood the Appellant to have said at interview that he resigned from SWAPO in 2019 and to have given inconsistent evidence about his membership at the hearing. The Judge expressly relied upon that perceived inconsistency when assessing the reliability of the Appellant's account. There was, however, no such inconsistency. The evidence which the Appellant actually gave at the hearing was that he had not resigned from SWAPO and remained a member. That evidence was capable of being reconciled with the interview when the interview answer is read, as we consider it naturally should be, as referring to his resignation from the particular role of archivist.
29. We have considered the submission advanced in the Respondent’s position statement, namely, whether the error was nevertheless immaterial because the Judge identified other matters which weighed against the Appellant's credibility. We are unable to reach that conclusion. Credibility was assessed cumulatively. We cannot know what conclusion the Judge would have reached had he appreciated that this particular inconsistency was not present. Nor is it for us to reconstruct the credibility assessment by removing this consideration and deciding for ourselves whether the remaining reasons would have produced the same result.
30. We therefore find that the Judge's misunderstanding of the Appellant's evidence gave rise to a material mistake of fact which infected his assessment of credibility. The decision consequently involved the making of a material error of law and cannot stand.
Independent Opposition Candidate
31. A further apparent misunderstanding of the evidence emerged during Mr Wain's submissions before us. Mr Wain took us to [26] of the First-tier Tribunal's decision, which it is useful to set out in full:
The issue in the appeal is not whether the Appellant wrote that letter and gave it to the police as a complaint. The issue is, are the contents of the letter reasonably likely to be true? I do not find the letter shows, even to the low standard required, that the Appellant is being targeted by SWAPO for divulging information to an “independent candidate.” He makes no reference in it to talking to the leader of the opposition party about organised election interference by SWAPO to secure an election victory. The independent candidate is clearly not a member of the opposition party.
32. In his witness statement, the Appellant describes disclosing information to Dr Itula, whom he describes as the president of the Independent Patriots for Change (“IPC”). In his letter to the police dated 26 August 2019, the Appellant repeatedly describes Dr Itula as the “Independent” candidate for president. At first glance, those descriptions might appear different. The identity of the person to whom the Appellant says that he disclosed the information is, however, the same throughout: Dr Itula.
33. The question is whether there was in fact an inconsistency in the Appellant's evidence on this point. We find that there was not. There is nothing necessarily inconsistent about describing the same person as an “Independent Candidate” for president and as the president of a political party bearing the word “Independent” in its name. The descriptions are capable of comfortably standing together.
34. It is also of some significance that the word “Independent” is capitalised throughout the Appellant's letter to the police. Read in context, this tends to suggest that the Appellant was using the expression as a description or title associated with Dr Itula, rather than drawing the distinction which the Judge appears to have understood him to be drawing.
35. Read fairly, the final sentence of [26] identifies the perceived inconsistency in simple terms: the Judge considered that an “independent candidate” was necessarily different from the leader of an opposition party. That was the factual premise upon which the Judge proceeded. On the evidence before us, that premise was mistaken.
36. Mr Wain sought to defend [26] on a different basis. He submitted that the inconsistency identified by the Judge was not between the description of Dr Itula as an independent candidate and as the leader of an opposition party. Rather, he submitted that the Judge was concerned that the Appellant's letter to the police did not record him having disclosed information about electoral interference to anyone at all.
37. We reject that submission. It is not supported by a fair reading of [26]. The final sentence identifies expressly the distinction which the Judge considered significant. It is not for us to reconstruct the Judge's reasoning by identifying a different inconsistency upon which the decision might have been based.
38. In any event, Mr Wain's alternative interpretation encounters a more fundamental difficulty. The letter does record the Appellant providing information concerning the election to Dr Itula. It follows that, even if we were to accept Mr Wain's interpretation of the Judge's reasoning, the finding would rest upon a further mistake as to the contents of the documentary evidence.
39. Whichever interpretation is placed upon [26], the adverse credibility finding cannot safely stand. If the Judge considered that the Appellant gave inconsistent evidence as to the identity or political position of the person to whom he disclosed the information, there was no such inconsistency. If, as Mr Wain submitted, the Judge considered that the police letter did not describe the Appellant disclosing information concerning the election at all, that too was factually incorrect.
40. Ground 2 discloses an error of law.
Ground 3
41. This ground concerns the Judge's treatment of documentary evidence which was before the First-tier Tribunal. For the reasons that follow, we are satisfied that it is made out.
42. At [8], the Judge said:
I have read and given anxious scrutiny to all the documents submitted by both parties irrespective of whether an individual document is specifically mentioned here together with the oral testimony tested at the hearing in reaching my Decision.
43. We take that statement at face value. We do not therefore proceed upon the basis that the Judge simply overlooked the documentary evidence before him. The question is whether the decision contains sufficient reasoning to enable the Appellant, the informed reader and this Tribunal to understand what the Judge made of documentary evidence which was capable of bearing materially upon the Appellant's account.
44. On the evening before the hearing, the Appellant uploaded a number of documents said to originate from Namibia. Those documents included an affidavit from PS, who is said to be a member of SWAPO and personally acquainted with the Appellant. PS describes his knowledge of the Appellant's role as an archivist and his involvement with the IPC. If reliable, that evidence was capable of providing independent support for important parts of the Appellant's account of the events which caused him to leave Namibia.
45. The documents also included a newspaper article said to identify PS as a prominent member of SWAPO and email correspondence between PS and the Appellant. The significance of those documents was that they were capable of providing some support both for the identity of PS and for the Appellant's claimed relationship with him.
46. It is unfortunate that this evidence was filed only on the evening before the hearing. It is also unfortunate that the decision does not record, however briefly, whether the documents were admitted. There is, however, no dispute about that. Both advocates told us that the Appellant applied at the hearing for the documents uploaded on 14 November 2024 to be admitted and that the Judge granted that application. We accept their agreed account. The documents therefore formed part of the evidence which the Judge was required to consider.
47. In his submissions, Mr Wain properly drew our attention to QC (verification of documents; Mibanga duty) [2021] UKUT 33 (IAC). At [57], Lane J said:
57. To sum up, the judicial fact-finder has a duty to make his or her decision by reference to all the relevant evidence and needs to show in their decision that they have done so. The actual way in which the fact-finder goes about this task is a matter for them. As has been pointed out, one has to start somewhere. At the end of the day, what matters is whether the decision contains legally adequate reasons for the outcome. The greater the apparent cogency and relevance of a particular piece of evidence, the greater is the need for the judicial fact-finder to show that they have had due regard to that evidence; and, if the fact-finder's overall conclusion is contrary to the apparent thrust of that evidence, the greater is the need to explain why that evidence has not brought about a different outcome.
48. We respectfully agree. A Judge is not required to refer to every document before the Tribunal, still less to rehearse its contents. The absence of express reference to a particular document does not, without more, establish that it was overlooked. The question is whether the decision, read fairly and as a whole, contains sufficient reasons to enable the reader to understand what the Judge made of evidence which was apparently material to the issues which he was required to determine.
49. In our judgment, the affidavit from PS was not peripheral evidence. The Judge rejected the Appellant's account of his activities within SWAPO and his involvement with the IPC. PS purported to have personal knowledge of those matters. If his evidence was accepted as reliable, it was therefore capable of providing independent support for parts of the very account which the Judge rejected.
50. The difficulty is that we cannot tell what the Judge made of it. The decision does not tell us whether the Judge accepted that PS was the person he claimed to be, whether he regarded the affidavit as reliable, what weight he attached to it, or why it did not affect his conclusions as to the Appellant's credibility. The same difficulty arises, albeit with less force, in respect of the newspaper article and email correspondence which were relied upon as supporting PS's identity and his relationship with the Appellant.
51. We do not suggest that the Judge was bound to accept these documents as reliable. He was not. Nor do we express any view as to the weight which should ultimately be attached to them. Those were matters for the First-tier Tribunal. The difficulty is that the documents were admitted, were capable of materially supporting the Appellant's account, and the decision does not enable us to understand what the Judge made of them.
52. We are therefore satisfied that the Judge failed to give adequate reasons for his treatment of material documentary evidence. Ground 3 is made out.
53. Taken together, Grounds 2 and 3 disclose material errors of law. This is because they informed the Judge’s conclusion in respect of the contested factual issues in dispute between the parties. We cannot be satisfied that the same outcome was inevitable but for the error nor that the Appeal was bound to fail. This being so, the decision of the FtT must be set aside.
54. Given our conclusions in respect of Grounds 2 and 3, it is not necessary for us to determine the remaining grounds. We nonetheless consider it appropriate to address them briefly. This is both because of the nature of the allegations made and because we heard full submissions from the parties upon them.
Ground 1
55. We are not persuaded that the Judge permitted or committed any procedural irregularity in the manner in which he conducted the hearing.
56. We take at face value the Appellant's evidence that he had not seen the transcripts of his Screening Interview or his Home Office interview until the morning of the hearing before the First-tier Tribunal. It is not clear to us why that was so. Perusal of the myHMCTS electronic file, to which the Appellant's professional representatives had access, demonstrates that the Respondent's bundle containing both interview records was uploaded on 15 February 2024, some nine months before the hearing. We nonetheless accept that the transcripts were not shown to the Appellant, and that his instructions upon them were not taken, until the morning of the hearing.
57. We see no procedural unfairness in the Judge admitting the interview records into evidence. They had been filed in accordance with the Tribunal's directions and had been available to the Appellant's representatives for some nine months. More importantly, as Ms Pratt candidly accepted before us, no objection was made to their admission. There was no error in the Judge admitting them.
58. Nor are we persuaded that the Judge acted unfairly by proceeding with the hearing. On the account advanced in the grounds, the Judge accepted that the Appellant had not previously seen the transcripts and afforded him time to consider them with his solicitor. The appeal was called on later that day. At that stage, the Appellant's representative did not seek any further time and did not apply for an adjournment. She was permitted to clarify matters arising from the transcripts in examination-in-chief and re-examination.
59. Crucially, Ms Pratt did not suggest to the Judge that the time which had been afforded was insufficient or that the Appellant was otherwise unable properly to deal with the interview records. This being so, we do not accept that the Judge can properly be criticised for failing to adjourn the appeal of his own motion. The fact that the Appellant's representatives might, with hindsight, have preferred more time does not demonstrate that the hearing was unfair.
60. We turn to the second complaint. There can be no doubt that the hearing room was affected by background noise. The recording was sufficiently poor that it has not been possible to produce a reliable transcript of the hearing. The question for us is whether the background noise rendered the proceedings unfair.
61. We are not persuaded that it did. Both parties were professionally represented. As Ms Pratt accepted before us, neither representative made an application to the Judge arising from the background noise. The Judge himself identified the problem with the advocates in open court and suggested that the parties mitigate it by raising their voices. The advocates agreed to proceed on that basis. Neither suggested that they, their clients or the Judge were unable adequately to hear the evidence.
62. In circumstances in which the Judge identified the difficulty, proposed a practical means of addressing it and both professionally represented parties agreed to proceed, we find no procedural irregularity in the Judge doing so. Ground 1 is not made out on that basis.
Ground 4
63. Ground 4 addresses the FtT’s treatment of expert evidence before it. We are not persuaded that there is any error in the manner in which the FtT addressed the expert report.
64. At [14] – [25], the Tribunal analysed the expert report in detail. It noted, at [14], a fundamental flaw in the instructions to the expert. The expert was asked whether the events described by the Appellant were “more likely than not” to be true. This instructed the expert to trespass upon the province of the Tribunal. As the Tribunal correctly noted, matters of credibility are for the Tribunal to decide. The Tribunal was entitled to find that this matter significantly undermined the weight to be attached to the report. The points taken at [15] to [24] were equally open to the Judge and were clearly expressed. In our judgment, these are all matters which were rationally open to the Judge and are carefully explained on the face of the decision. The informed reader can have no doubt what the Judge thought about the report.
65. However, even if we were to be persuaded that the FtT’s analysis of the expert report were flawed, we are not satisfied that it would have been material. This is because the dispute to which the expert evidence spoke was resolved in the Appellant’s favour. This is because at [24], the Judge concluded,
“Notwithstanding the above, I conclude that Mr Birchall’s conclusions that the SWAPO membership card and the SWAPO “testimonial” are genuine is sufficient evidence for me to conclude that the Appellant has shown, on the evidence as a whole, that there are authentic documents which prove, to the low standard required, the Appellant is still a member of SWAPO and held in high regard by the party.”
66. Ground 4 is not made out.
Disposal
67. Having considered the practice statement recited and the decision of the Court of Appeal in AEB v SSHD[2022] EWCA Civ 1512 and that of the Upper Tribunal in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46, and in the light of the overriding objective we are satisfied that the appeal falls within paragraph 7.2 (b) as it will be necessary to undertake an assessment of all the factual evidence, oral and documentary, and undertake an assessment of the credibility of the claim when reaching a decision and thus the appeal should be remitted to the FtT for hearing.
Notice of Decision
68. The decision of the FtTJ involved the making of an error of law and the decision of the FtTJ shall be set aside and remitted to the FtT.

J. Greer

Deputy Upper Tribunal Judge Greer