Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001079

First-tier Tribunal No: PA/65018/2023
LP/09967/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 24th of June 2025

Before

UPPER TRIBUNAL JUDGE HANSON

Between

TO
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation(remote):
For the Appellant: Mr Thrower of Broudie Jackson Canter Solicitors.
For the Respondent: Ms Young, a Senior Home Office Presenting Officer.

Heard at Phoenix House (Bradford) on 18 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, a citizen of Nigeria, appeals with permission a decision of a judge of the First-tier Tribunal (‘the Judge’) who, in a determination written following a hearing at Manchester on 17 December 2024, dismissed his appeal against the Secretary of State’s decision dated 28 November 2023 refusing his application for leave to remain on protection and/or human rights grounds, made on 18 January 2021.
2. The Appellant asserted that he will be at risk on return to Nigeria due to his disability, severe visual impairment, and his status as a victim of modern slavery, or in the alternative, is entitled to a grant of humanitarian protection as he fears his wife’s father who did not approve of their marriage and also fears the man who trafficked him to the UK. The Appellant also asserts he has a right to remain on the basis of his private life as he falls within the ‘recovery’ period allowed to a victim of trafficking, meets the requirements of paragraph 276ADE(1)(vi) of the Immigration Rules on the basis there would be very significant obstacles to his integration into Nigeria, and that his circumstances mean refusal would result in unjustifiably harsh consequences so as to make any interference with a protected right disproportionate.
3. The Judge sets out the points conceded at [12] and those in dispute at [13].
4. The Judge sets out findings of fact from [19], making findings in relation to each of the relevant issues before dismissing the appeal on all grounds at [87].
5. The Appellant sought permission to appeal on four grounds being: Ground 1 - material misdirection of law, applying the incorrect standard of proof, Ground 2 - perversity/failure to follow country guidance; disability as a protective factor against trafficking. Ground 3 - irrationality/unfairness: findings on the negativity of the expert report. Ground 4 - procedural unfairness in relation to the failure to grant an adjournment in light of materially new matters raised by the Presenting Officer. For the reasons more fully set out in the pleadings of Mr Thrower dated 3 January 2025.
6. Permission to appeal was granted by another Judge of the First-tier Tribunal on 4 March 2025, the operative part of the grant being in the following terms:
2. As identified in ground 1, it is arguable that the Judge has erred in applying the standard of proof at [35]. A positive finding on balance is not necessarily inconsistent with the application of the lower standard, but there do not appear to be clear findings in relation to the Appellant’s claims about his father-in-law on any standard.
3. I am less persuaded by the merits of the other grounds, but do not limit the grant of permission.
7. Following the grant of permission to appeal directions were issued by the Upper Tribunal on 5 March 2025.
8. The Appellant made an application pursuant to Rule 15 (2A) of the Upper Tribunal Procedure Rules to admit a Positive Conclusive Grounds decision letter and minute made by the Competent Authority on 1 April 2025, accepting that the Appellant was a victim of Force Labour in Nigeria and the United Kingdom between 2013 and 2016. It is said this evidence is highly relevant to the fourth ground of appeal relating to the lack of reasons advanced by the Secretary of State for challenging the Appellant’s credibility as to the incidents of Modern Slavery in the UK. It is accepted no conclusive grounds decision had been reached when the claim came before the Judge which was why it had not been adduced as part of the evidence on that occasion.
9. When asked whether she consented to the Rule 15 (2A) application Ms Young stated she did not as the appeal was only at the error of law stage and it was accepted this was not evidence before the Judge, who cannot be criticised for not having taken it into account.
10. There was no Rule 24 reply from the Secretary of State in relation to the Appellant’s challenge.

Discussion and analysis
11. At the outset Ms Young advised that she had been made aware that a skeleton argument had been filed by Mr Thrower and asked for time to give it proper consideration before making her submissions. Such time was granted.
12. On return Ms Young accepted that the Judge had erred in law as alleged in Ground 1. The point pleaded is relevant as the Applicant lodged his protection claim on 18 January 2021 meaning this was before the coming into force of the Nationality, Asylum and Borders Act 2022 (NABA), and that the applicable standard of proof was whether there was a real risk of persecution often referred to as a reasonable likelihood or the ‘lower standard’.
13. From [28] – [34] the Judge carries out an assessment of the Appellant’s claim of harm being suffered at the hands of his father-in-law, leading to it being found at [35]:
35. Taking the above in the round I find (on the balance of probabilities) that the Appellant experienced harassment from his father-in-law’s man and that his fear of harm from his father-in-law was genuine, albeit based on a fear of his father-in-law’s supernatural capabilities. I am not satisfied on the lower standard of proof that such fear was or is well-founded or that there was or is a real risk of serious harm or persecution.
14. The Grounds assert that the reference to the balance of probabilities in relation to past events is the incorrect standard of proof and that the Judge has used this standard of proof to assess all the Appellant’s facts, resulting in too high a standard of proof affecting the entirety of the determination.
15. Ms Young submitted the Judge had made some positive findings at [35] which will be in the Appellant’s favour but these could not be separated from the determination as a whole, which shows that adverse findings were made applying the wrong standard of proof.
16. In relation to Ground 2, Ms Young accepted that the ground as pleaded was made out based on the failure of the Judge to take proper account of the Appellant’s disability.
17. Whilst the Judge at [52] refers to the fact there may be an increased risk of trafficking by reason of an individual’s vulnerability, and at [58] refers to the same decision of HD, the Judge erred at [60] where it is found that the Appellant’s disability makes him vulnerable but not necessarily in a sense that means he would be more prone to being trafficked. It was accepted that the findings in that paragraph made out the Appellant’s claim, as those findings are completely contrary to the Secretary of State trafficking guidance.
18. Ms Young had a number of submissions to make in relation to the other grounds but in light of the fundamental nature of the errors that were accepted, particularly in relation to an application of an incorrect standard of proof, and failure to properly consider and apply the law and guidance, it was accepted to determination as a whole will have to be set aside and the matter considered afresh.
19. For the sake of completeness, had I been asked to make a finding on Grounds 3 and 4, I would also have found the challenges made out.
20. It was accepted the application of the incorrect standard proof and the points raised in the grounds of challenge undermined the whole of the determination, which I set aside with no preserved findings. Extensive fact finding will be required on the next occasion.
21. I find the unfairness impacts the decision as a whole and, even having considered the joint Presidential Guidance and Upper Tribunal case law relating to remittals, and the default position that an appeal should remain in the Upper Tribunal, I find it appropriate to remit this appeal to the Manchester Hearing Centre to be heard afresh by a different judge with a view to that tribunal substituting a decision to either allow or dismiss the appeal.
22. I record at this stage, but no more, that in light of the positive decision of the Competent Authority in relation to the Appellants trafficking claim, Ms Young indicated she will refer the matter back to the relevant team for the matter to be considered fresh. I hope that when she does so an appropriate review will be undertaken and, if necessary, either leave granted or a fresh decision letter produced so First-tier Tribunal is aware of all the relevant issues that will need to be considered on the next occasion.
Notice of Decision
23. The First-tier Tribunal materially erred in law. I set that decision aside with no preserved findings.
24. The appeal shall be remitted to the First-tier Tribunal sitting at Manchester to be heard de novo by a different judge.

C J Hanson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

18 June 2025