Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001412

First-tier Tribunal No: PA/62685/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 12 August 2025

Before

UPPER TRIBUNAL JUDGE LODATO
DEPUTY UPPER TRIBUNAL JUDGE GREER

Between

MN
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Read of Counsel instructed by Hazelhurst Solicitors.
For the Respondent: Ms Isherwood, a Senior Home Office Presenting Officer.

Heard at Phoenix House (Bradford) on 16 July 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 a decision of the First-tier Tribunal (‘Judge N. Malik’), promulgated on 23rd December 2024 following a hybrid hearing at Manchester on 6th December 2024, in which the Judge dismissed the appeal against the refusal of the Appellant’s application for international protection.
2. The Appellant is a citizen of Namibia. She made her application for asylum 6th May 2022 and on 17th November 2023 the Respondent refused her application for asylum. She appealed against that decision, enjoying as she did a right of appeal to the First-Tier Tribunal.
3. It was not disputed before the Judge that the Appellant was a bisexual woman and a member of the Herero minority ethnic group. The Appellant claimed that she had been forced by her family to marry her cousin. She objected to this marriage and complained, first, to the Namibian State Police and, second, to the Kambazembi Royal Traditional Authority. It is the Appellant’s case that the Police refused to intervene, regarding forced marriage to be a traditional matter falling outside of its auspices. The Traditional Authority resolved the complaint in the Appellant’s family’s favour, refusing to intervene on the Appellant’s behalf. The Respondent rejected this account, arguing that the Appellant’s claims were not reasonably likely to be true. Alternatively, the Respondent argued that the Appellant could avail herself of state protection or could reasonably be expected to move to either Swakopmund or Windhoek.
4. In its written decision, the First-Tier Tribunal rejected the Appellant’s claim to have been the victim of forced marriage. It set out its reasons at Paragraphs [9b)] to [9e)]. At [9f)] to [9h)] the determination records the Tribunal’s findings in respect of the availability of State Protection and Internal Relocation.
5. The Appellant sought permission to appeal which was granted by another Judge of the First-tier Tribunal, the operative part of the grant being in the following terms:
Ground 1 asserts that the Judge erred in apparently failing to take the latest version of a Home Office policy document into account. This is inferred from the fact that the Judge records that it was submitted that the policy document was out of date and that he should prefer the evidence of an expert report. It appears from the decision [9a)] that the Judge was specifically told that the report was out of date and not told that there was a new version. In those circumstances it would not have been an error to rely on the submissions. If this ground is pursued before the Upper Tribunal, it will need to be made clear whether or not the Judge was notified that a newer version of the report was available, and whether the Judge was specifically told that the Home Office evidence was “out of date” if a new report .
3. Ground 2 argues that findings at 9c) of the decision are contradictory and irrational. This is arguable. Having found that there was a document from the police apparently confirming that the Appellant had filed a complaint with the police, the judge needed to find whether or not that document was reliable even if only on Tanveer Ahmed principles. Without a clear finding as to whether that document was reliable, it is hard to see how the judge could conclude that the Appellant would have received protection from the police.
4. Ground 3 argues that at 9d) insufficient weight was given to the Appellant’s evidence when explaining an apparent contradiction in her evidence as to whether the traditional authorities “encouraged” her husband to beat her, or simply empowered them to do so by not interfering. Weight is a matter for the Judge, but as the decision reads it appears that this has been treated in and of itself as being sufficient to conclude that the Appellant was lying. It is arguable that this finding was not open to the judge.
5. Ground 4 argues that the Judge has not given reasons for a finding that a claim that the Appellant was forced to marry her husband “lack credibility” [9e)]. The Judge has given reasons for this at 9b).
6. Ground 5 argues that the Judge has given inadequate reasons for finding that the Appellant would be safe were she to join the established LGBTQ+ community in Windhoek in the absence of evidence that that community is generally safe. The Judge did note that the evidence cited by the expert showed only discrimination and cited reports from 2016 and 2017 to support this conclusion. The grounds do not cite evidence to show that the community is not safe. This ground is not arguable.
7. Ground 6 argues the decision fails to engage with the principles set out in HJ (Iran) and HT (Cameroon) v SSHD [2010] UKSC 31. It is arguable that having accepted the Appellant’s sexual orientation consideration should have been given to this issue, albeit the findings on internal relocation may have been adequate to address these issues. Accordingly this ground is just arguable.
8. Permission to appeal is granted on grounds 1, 2, 3, and 6 only.
6. In his skeleton argument, Mr Read acknowledged that he was limited to grounds 1, 2, 3 and 6. At the hearing before us, Mr Read initially intimated that he wished to apply to vary his grounds to rely upon grounds 4 and 5. However, he ultimately withdrew his application and it was therefore not necessary for us to adjudicate upon it. There is no Rule 24 reply from the Secretary of State. At the hearing before us, Ms Isherwood argued that the First Tier Tribunal decision contained no material legal error.
Discussion and analysis
7. Mr Read pressed Ground 2 which sought to challenge the First Tier Tribunal’s findings of fact in respect of the Appellant’s claim to have been forced into marriage in Namibia. In addressing this ground, we have kept in mind the guidance in Volpi and another v Volpi [2022] EWCA Civ 464; [2022] 4 WLR 48 (Volpi) and T (Fact-finding: second appeal) [2023] EWCA Civ 485. Those cases had themselves referred to the review of the law in this area by the Supreme Court in McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477 and Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5; [2014] ETMR 26 (Fage). In short, it is a well-established principle of law that there is a need to show restraint when addressing findings of fact made by a specialist fact finding Tribunal.
8. Mr Read’s submission focussed on Paragraph [9c)] of the First Tier Tribunal’s decision. The paragraph is the second of 4 paragraphs under the heading, “Forced Marriage,” which deals with the question of whether the Appellant was, as she claimed, forced into marriage. [9c)] begins by referring to a sworn declaration from a police officer which had been adduced by the Appellant (and reproduced at page 173 of the Appellant’s Bundle at the hearing before us). That document is dated 1st July 2019, is written from the perspective of a police officer, and says this:
She came to report that her parents are forcing her to get married to her cousin, of which she did not want. I further informed her that we do not deal with forced marriages and referred the matter to the traditional authorities.
9. In the absence of any express finding on reliability, the informed reader can only assume that the document describing the Appellant’s interaction with the police has been taken at face value.
10. [9c)] of the First Tier Tribunal’s determination then refers, briefly, and in general terms, to the existence of laws preventing domestic violence, as described in the Respondent’s Country Policy and Information Note on women fearing gender-based violence of September 2021. The paragraph then concludes:
Again, whilst I have considered the findings of the expert report, I find if the appellant genuinely believed she was being forced to marry her cousin she would have been able to seek redress from the police service.
11. In our judgment, there are 3 potential interpretations of this passage. Each of them is equally problematic.
12. The interpretation preferred by Mr Read is that the paragraph seeks to address the plausibility of the Appellant’s behaviour as part of the assessment of whether the Appellant’s claims are reasonably likely to be true. This appears to us to be the natural reading of the paragraph, given the reference to what the Appellant would have been able to do if she genuinely believed that she was being forced to marry her cousin. The difficulty with this reasoning is that, if reliable, the document mentioned at the beginning of the paragraph demonstrates that the Appellant did behave in precisely the manner in which the Tribunal says she should have behaved. Put simply, read as a whole, the paragraph is self-contradictory. We agree with Mr Read that on his interpretation, the conditional reasoning contained in Paragraph [9c)] is self-defeating and is perverse.
13. Ms Isherwood recognised that the passage did appear to be contradictory on its face but argued that the determination makes sense when read as a whole. She took us to paragraph [9b)] and argued that what the First Tier Tribunal really meant to say was that if the Appellant genuinely feared her family, she could have returned to the police for a second time after the Traditional Authority resolved the complaint in the Appellant’s family’s favour. It is correct that at [9b)], the First Tier Tribunal refers to, “a route to challenge a finding of the traditional court”. However, the route described on the face of the decision is, “an appeal lodged with the magistrate's courts”. This is an entirely separate process from a police complaint. We therefore find that the interpretation preferred by Ms Isherwood is not supported by a fair reading of the determination and does not assist the informed reader in making sense of the decision.
14. A third potential interpretation is that the paragraph expresses the Tribunal’s finding as to the reliability of the document relied upon by the Appellant. In other words, as the document does not sit well with the background evidence as to how life goes on in Namibia, it cannot be reliable. The difficulty with this interpretation is that it is unclear, even on the most sympathetic reading of the determination, what evidence supports that assessment. On any rational view, the Country Policy and Information Note cited by the First Tier Tribunal is supportive of the Appellant’s claims, in particular what is said about the reception that women reporting Gender Based Violence receive at police stations (at 7.3.6) and the challenges that ethnic minority women such as the Appellant face when seeking protection from gender based violence (at 7.3.7). Given that the Tribunal’s finding is at odds with the background evidence cited by the Tribunal, the decision does not entitle the Appellant to understand why the Tribunal has found as it has.
15. Looking at paragraph [9c)] in the context of the determination as a whole, we are unable to construct a coherent or lawful interpretation of the Tribunal’s reasoning. We recognise the pressures on First Tier Tribunal judges to write concise decisions, and we have not sought to read the decision as it were a statute. However, even applying those principles, we are left unable to determine the basis on which the Tribunal rejected the Appellant’s account. The reasoning in paragraph [9c)] is ambiguous, internally inconsistent, and unsupported by the background evidence cited. It does not enable the Appellant to understand why the Tribunal found against her. In our judgment, this constitutes a material error of law.
16. We consider that this error contaminates the entirety of the determination. This is because the assessment of the availability of state protection and an internal flight alternative (at [9f)] – [9h)]) is predicated on the finding that the Appellant had not been forced into marriage and could rely upon a supportive family. Had the factual dispute relating to the Appellant’s claim to have been forced into marriage with her cousin been accepted, the Tribunal’s assessment would necessarily have been markedly different. None of these findings can be preserved and they must be set aside.
17. This being the case, it is not necessary for us to determine Grounds 1, 3 and 6.
Disposal
18. Mr Read argued that this case should be remitted to the First-tier Tribunal. Having considered and applied the guidance in paragraph 7 of the Senior President's Practice Statement and AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (Remaking or remittal) [2023] UKUT 46 (IAC), we are satisfied that it is appropriate to remit the appeal to the First tier Tribunal because substantial fact-finding will need to be made.
19. That said, there has been no application to withdraw the Respondent’s concession that the Appellant is, as she claims, a bisexual woman. The First Tier Tribunal will be entitled to proceed on the basis that the Appellant’s claim to be a bisexual woman is no longer contested by the Respondent. There also appears to be no dispute over the fact that the Appellant belongs to the Herero minority ethnic group. The position of women from minority ethnic groups in Namibia is set out in bleak terms in both the expert report and in the Respondent’s background information. The cumulative impact of the Appellant’s sexual orientation, her gender and her membership of a minority ethnic group as they relate to the Appellant’s claim to have a well-founded fear of persecution upon return to Namibia will be a matter for the First Tier Tribunal.
Notice of Decision
1. The decision of the First Tier Tribunal is set aside as it involved a material error of law. No findings are preserved.
2. The matter is to be remitted to the First-Tier Tribunal to be determined de novo by a judge other than Judge N. Malik.

J. Greer

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

24th July 2025