Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001183

First-tier Tribunal Nos: HU/58902/2023
LH/05532/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 3rd of June 2025

Before

UPPER TRIBUNAL JUDGE SHERIDAN

Between

VIVIAN NGOZI EME
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S Ferguson, Counsel instructed by Barclay Solicitors
For the Respondent: Mr K Ojo, Senior Home Office Presenting Officer

Heard at Field House on 9 May 2025

DECISION AND REASONS
Background
1. The appellant is a citizen of Nigeria born in 1986. She entered the UK as a student in 2012 with leave until 2015.
2. In 2013 she married a British citizen. She experienced domestic violence and the relationship broke down in 2015.
3. In 2015 she applied for leave on private life grounds and this was refused.
4. In 2016 an application for leave on grounds of domestic violence was refused.
5. In April 2022 the appellant applied for leave on the basis of her private life in the UK. The respondent refused this application. She appealed to the First-tier Tribunal where her appeal came before Judge of the First-tier Tribunal Hussain. In a decision dated 29 December 2024 the judge dismissed the appeal. The appellant now appeals against this decision.
Decision of the First-tier Tribunal
6. A central issue before the judge was whether the appellant would face very significant obstacles integrating into Nigeria such that the conditions of paragraph 276ADE(vi) were satisfied.
7. The judge characterised the appellant’s claim as to why she would face very significant obstacles integrating into Nigeria as being that she (i) suffers from mental health issues and will face stigma; (ii) will face discrimination because of her failed marriage; and (iii) lacks family support and would be a lone woman.
8. The appellant claimed that her family had disowned her. The judge did not believe her. The key reason for this is that an entry in the appellant’s GP records is inconsistent with her claim to have been disowned. In paragraph 32 the judge explained:
“32. What I did find undermines the appellant’s claim that she has been disowned by her family and particularly, her mother with whom she claims she has had no contact since 2021; it will be recalled the appellant said that her mother described her as a failure. On page 14 of the medical notes and page 98 of the appellant’s bundle, a doctor’s note states ‘Suicide risk assessment no suicidal ideation plan or intent and states faith, friends and mum are protective factors’ (my emphasis). It is unsurprising that the appellant’s mother is a protective factor; I surmise most mothers would be supportive of their children in almost all circumstances, not least in the case of this appellant who has had a failed marriage marred by violence”.
Decision undermined by procedural unfairness
9. The appellant’s evidence was that she has been disowned by her family and has not had contact with her family (including her mother) since 2021. The judge rejected this evidence on the basis that it is contradicted by an entry in the appellant’s medical records dated 3 August 2022 where it is stated:
“Suicide risk assessment no suicidal ideation plan or intent and states faith, friends and mum are protective factors”. [Emphasis Added]
10. The reference to the appellant’s mother in this entry led the judge to find that the appellant has not been disowned, as she claims, by her mother and therefore, on return, would not be alone as she would have the support of her mother.
11. Ms Ferguson argued that the entry in the medical records referring to the appellant’s mother was not raised by the respondent (either before or at the hearing) or put to the appellant by the judge; and therefore it was procedurally unfair to draw an adverse inference from it without first giving the appellant an opportunity to address the issue.
12. As explained in Abdi v SSHD [2023] EWCA Civ 1455, it will often (but not always) be procedurally unfair to not give a witness an opportunity to address an apparent inconsistency in their evidence. Paragraph 33 of Abdi states:
The recent decision of the Supreme Court in TUI UK Ltd v Griffiths [2023] UKSC 48 re-emphasises the principle that fairness generally requires that if the evidence of a witness is to be rejected, it should be challenged at the hearing so as to give them an opportunity to address the challenge; and that that is a matter of fairness to the witness as well as fairness to the parties, and necessary for the integrity of the court process in enabling the tribunal to reach a sound conclusion: see especially at [42]-[43], [55], and [70]. The rule is subject to certain exceptions and is to be applied flexibly in the circumstances of any individual case in application of the criterion of the overall fairness of the trial.
13. There are, in my view, two reasons why in this case it was procedurally unfair for the judge to attach weight to the entry in the medical records without this being put to the appellant beforehand to given her an opportunity to proffer an explanation. The first is that the issue of family support was highly significant. It was common ground that the appellant suffers from depression and anxiety (although without a formal diagnosis), has lived outside of Nigeria for over ten years, and that lone women in Nigeria face challenges. In these circumstances, the existence of family support was, plainly, an important – and material - consideration as part of the assessment of whether the appellant would face very significant obstacles integrating on return.
14. The second reason is that, although the inconsistency between the appellant’s evidence and the GP records is obvious once the relevant GP record is identified, it is apparent that neither the respondent nor the appellant identified the inconsistency at or prior to the hearing. As the appellant was not aware of the inconsistency, it was not something she could foreseeably address without the tribunal specifically raising it. This is analogous to the circumstances of the appellant in Abdi: see paragraph 36 of Abdi.
15. For these reasons, I find that the decision is undermined by procedural unfairness and therefore cannot stand.
Disposal
16. The general principle is that cases will be retained in the Upper Tribunal for re-making. However, there are exceptions to this as set out in paragraphs 7.2(a) and (b) of the Practice Statement. Paragraph 7.2(a) states that the Upper Tribunal is likely to proceed to re-make a decision unless the Upper Tribunal is satisfied that the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party’s case to be put and considered by the First-tier Tribunal. In my view, the error identified in this decision falls within this exception and therefore I am of the view that the case should be remitted to the First-tier Tribunal to be made afresh before a different judge.
Notice of Decision
17. The decision of the First-tier Tribunal involved the making of a material error of law and is set aside. The case is remitted to the First-tier Tribunal to be made afresh by a different judge.

D. Sheridan
Judge of the Upper Tribunal
Immigration and Asylum Chamber

23 May 2025