Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001525

First-tier Tribunal No: PA/65102/2023
LP/14251/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 10th of June 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE LOKE

Between

AB
(Anonymity Order made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M. Murphy, Counsel
For the Respondent: Ms J. Isherwood , Senior Home Office Presenting Officer

Heard at Field House on Monday 2 June 2025

DECISION AND REASONS
BACKGROUND
1. The Appellant appeals against the decision of First-tier Tribunal (FtT) dated 17 February 2025 (“the Decision”) dismissing her appeal against the decision of the Secretary of State dated 29 November 2023 refusing her application for asylum made on 16 June 2022.
2. The Appellant filed an application for permission to appeal with the FtT on 26 February 2025. Permission to appeal was granted by the FtT on all grounds on 3 April 2025.
3. The Grounds relied on by the Appellant can be summarised as follows:
Ground 1: the Judge erred in assessing the Appellant’s evidence under paragraph 276ADE.
Ground 2: the Judge erred in assessing risk upon return when applying AD and TD (Trafficked women) Albania CG 2016 92 (IAC).
4. In granting permission, Juge Turner stated:
The grounds assert that the Judge erred in misdirecting themselves regarding whether the Appellant would face very significant obstacles to reintegration to Albania. The grounds argue insufficient reasons as to the conclusion that the Appellant could work, noting the Appellant’s unchallenged evidence that she could not. Aside from this point, it is noted at paragraph 59 and 60 that the IJ concludes that returning as a single women would not be easy with limited work experience however concludes that this did not mean that the Appellant would face persecution or inhumane or degrading treatment. As such the IJ concludes that the Appellant’s claim under paragraph 276 of the Immigration Rules was refused. The IJ here applies the incorrect test and fails to explain at all why the Appellant would not face very significant obstacles based on the findings made. This is an arguable error of law.
It is argued that the IJ fails to find that the Appellant falls into the category of a ‘trafficked woman’ when assessing return and AD and TD. Whilst the issue of whether the Appellant is at risk of trafficking on return to Albanian is not considered in the decision letter, it is noted in the ASA which the Appellant acknowledged was served late and so not in readiness for the Respondent’s review. It does not appear that the Appellant ever claimed to have been the victim of trafficking but rather at risk of trafficking on return. There were no findings made in this regard on the determination, nor was there any discussion as to whether this was a ‘new matter’ for the purpose of this appeal. This was a further arguable error.
As an additional point, despite the findings that the Appellant had been the victim of past physical and sexual violence, it is unclear why at paragraph 52 the IJ concludes that this past abuse did not amount to persecution.
ISSUE
5. My task is to determine whether the First-tier Tribunal made a material error of law. I am not determining the appeal against the decision of the SSHD. It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. It does not matter that I would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
6. I remind myself of the following principles that the law says must apply when considering. In summary, having considered: KM v Secretary of State for the Home Department [2021] EWCA Civ 693 AH (Sudan) v SSHD [2007] UKHL 49, AA (Nigeria) v SSHD [2020] EWCA Civ 1296, MA (Somalia) v SSHD [2010] UKSC 49 and Volpi & Anor v Volpi [2022] EWCA Civ 464:
1. The First-tier Tribunal is an expert tribunal and an appellate court should not rush to find a misdirection an error of law merely because it might have reached a different conclusion on the facts or expressed themselves differently
2. The UT should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
3. The UT should not be astute to characterise as an error of law what, in truth, is no more than a disagreement with the UT's assessment of the facts.
4. Where a relevant point is not expressly mentioned by the First-tier Tribunal, the court should be slow to infer that it has not been taken into account.
5. The UT is an appellate court and it is bound, unless there is compelling reason to the contrary, to assume that the First-tier Tribunal judge has taken the whole of the evidence into his consideration. The mere fact that the First-tier Tribunal does not mention a specific piece of evidence does not mean that he overlooked it.
6. Experienced judges in this specialised tribunal are to be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically.
7. Reasons for judgment will always be capable of having been better expressed. An appellate court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.
8. Decisions should be respected unless it is quite clear that the First-tier Tribunal has misdirected itself in law.
9. The focus should be on the way the First-tier Tribunal performed the essence of the task required
7. If it is determined that the Decision does contain an error of law, I then need to decide whether to set aside the Decision in consequence. If I set the Decision aside, I must then either re-make the decision or remit the appeal to the First-tier Tribunal to do so.
8. I had before me a bundle running to 405 pages (pdf) ([B/xx]) containing the documents relevant to the appeal before us, and the Appellant’s and Respondent’s bundles before the First-tier Tribunal.
9. Having heard from both representatives I indicated at the error of law hearing that there was indeed an error of law in the Decision, and that I would provide written reasons in due course, which I now turn to do.
DISCUSSION
10. The grounds of appeal are at B/6.
11. With respect of Ground 1 it was submitted that the Judge gave insufficient reasons as to why he found firstly that the Appellant was able to work, and secondly why he found the Appellant could seek the support of her family.
12. At [58] of the Decision the Judge stated that the Appellant was physically able to work. Mr Murphy in oral submissions stated that the Appellant’s evidence that she was unable to work had not been challenged. There was no audio or transcript of the appeal hearing, however Mr Murphy submitted that he had been counsel in the trial. His own record of proceedings from the day of the appeal noted that the Appellant had given evidence that due to her mental health issues she was not able to work, and that no questions were asked by way of challenge to this.
13. It is open to a Judge to reject evidence, even evidence that has been unchallenged, however if evidence of a witness is to be rejected it should be challenged at the hearing to allow the witness to address the challenge; Abdi and others v Entry Clearance Officer [2023] EWCA Civ 1455. It appears that no such challenge was made.
14. However, procedural unfairness does not automatically amount to an error of law. In this case, not only did the Judge fail to challenge the witness at the appeal hearing, the Judge did not give reasons in the Decision as to why he found the Appellant was physically able to work. The issue of whether the Appellant would be able to work is a factor relevant to her returnability to Albania and the assessment of Articles 3 and 8.
15. With respect of the Judge’s findings regarding the Appellant’s contact with her family in Albania, the Judge stated at [41] that ‘It is unclear what level of support will be available to Ms AB.’ However in the same paragraph the Judge re-iterates that the Appellant’s mother is deceased and that her father’s views are that she should return to her husband. At [49] the Judge noted that the Appellant had limited contact with her family. At [57] the Judge states that the Appellant has family residing in Albania although the Appellant had stated she could not turn to them for support. The Judge made no adverse credibility finding on this issue. That being the case his reliance on the fact that she had family in Albania fails to take into account her evidence that she was unable to turn to them for support.
16. In granting permission to appeal, Judge Turner commented that the Judge applied the incorrect test when considering para 276 of the Immigration Rules. At [59-60] the Judge stated:
59. Returning as a single woman would not be easy, especially as she has limited work experience, but this does not mean that she would be persecuted or that this case reaches the threshold of inhuman or degrading treatment.
60. I therefore find that the appellants application on the basis of her private life under paragraph 276 is refused.
17. In these two paragraphs the Judge conflated the consideration of Article 3 and para 276. Furthermore, and significantly the Judge failed to include a consideration of the Appellant’s Article 3 claim. Ms Isherwood accepted this, however pointed to the fact that the Judge at [62] had considered an Article 3 medical claim. However, the Appellant did not make an Article 3 medical claim. The Appellant’s entire claim rested on a broad Article 3 consideration, on the basis that the Appellant is a victim of domestic violence suffering from mental health issues and would be returning to Albania without any support. The Judge failed to draw these points together to make any Article 3 finding based on these circumstances.
18. Ground 1 discloses a material error of law for the above reasons.
19. Given my findings on Ground 1 it is unnecessary for me to proceed to consider Ground 2. However, there is an overlap between Grounds 1 and 2, namely his errors with respect of Ground 1 infected his consideration of whether the Appellant was at risk of being re-trafficked, and therefore I find there is a material error of law disclosed by Ground 2 also.
20. Both parties indicated that the appropriate course, were I to find a material error of law, would be to remit the appeal to the FtT. I also agree on the basis that the errors pertained to the Appellant’s credibility, and furthermore there was an omission in making the appropriate Article 3 finding which was crucial to the Appellant’s case.
21. I note that Judge Turner, in granted permission with respect of Ground 2 noted that the issue of the Appellant being at risk of being re-trafficked had not been a point considered either by the Home Office in their decision letter or review decision. It was therefore a new matter. It is unfortunate neither party raised this at the appeal, and both the Appellant and Respondent invited me to make directions with respect of this being considered by the Respondent prior to remittal.
CONCLUSION
22. For the reasons set out above, the Decision does contain an error of law. I set aside this Decision and remit it to be heard de novo at the FtT.
NOTICE OF DECISION
The Appellant’s appeal is allowed.
The Appeal will be remitted to the FtT to be heard by a Judge other than Judge Wyman.
Directions
1. Within 21 days of this decision being received, the Respondent is to indicate in writing to the Appellant and the FtT whether consent is given for the Tribunal to consider the issue of whether the Appellant is at risk of being re-trafficked.
2. Management of this hearing is transferred to the FtT, who may wish to list this matter for an administrative or oral case management hearing in the event consent is not given by the Respondent.
3. An anonymity order is already in place with respect of the Appellant. No party invited me to reconsider this order. Given the nature of the Appellant’s asylum claim it is appropriate for the anonymity order to continue.

S Y Loke
Deputy Upper Tribunal Judge Loke
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

3 June 2025