Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001800

First-tier Tribunal No: PA/64997/2023
LP/08162/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 9th of September 2025

Before

UPPER TRIBUNAL JUDGE LODATO

Between

FB
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Patel, counsel
For the Respondent: Mr McVeety, Senior Presenting Officer

Heard at Manchester Civil Justice Centre on 12 August 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and/or any member of her family, are 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 and/or any member of her family. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Introduction

1. I have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal because the underlying claim involves international protection issues in that the appellant claims to fear persecution or serious harm on return to Senegal. In reaching this decision, I am mindful of the fundamental principle of open justice, but I am satisfied, taking the appellant’s case at its highest for these purposes, that the potential grave risks outweigh the rights of the public to know of her identity.

2. The appellant appeals with permission against the decision, dated 28 February 2025, of the First-tier Tribunal Judge (‘the judge’) to dismiss the appeal on international protection and human rights grounds.

3. The appellant’s essential factual case is that she is at risk of politically motivated persecution on return. She claims that she was persecuted for this reason before she left Senegal and successfully claimed asylum in Italy. She subsequently travelled illegally to the UK to join her mother who was found, in a judicial decision taken in 2018, to be a Senegalese refugee.

Appeal to the First-tier Tribunal

4. The appellant claimed asylum in the UK on 13 August 2019. Her claim was refused by the respondent on 28 November 2023. The appeal was heard over two hearings in January and February 2025.

5. It is necessary to summarise the decision of the First-tier Tribunal in some detail. At [10], it was recorded that the respondent had accepted that the appellant was granted refugee status in Italy in 2016, that LB was her mother and she was granted refugee status in the UK in 2018 following an appeal. In summarising the issues to be resolved in the proceedings before him, the judge noted, at [12], that the respondent raised, in her review, the issue of Article 8 of the ECHR. It was further recorded here that “Article 8 is not referred to in the ASA and Miss Patel stated at the hearing that the Appellant is not relying on Article 8 and it does not require consideration by the tribunal. No explanation was provided or sought for the Appellant adopting that approach”. The judge began his findings, at [17], by observing that the appellant’s case for international protection was founded on the association she and her mother had with the Pastef Party (referred to as ‘PP’ in the decision) and its leader Ousmane Sonko (referred to as ‘OS’ in the decision). Despite the change of government in Senegal, the appellant maintained that the same personalities remained in positions of power ([18]).

6. At [19]-[20], [23] and [28] of the decision, the judge said this about the Italian grant of asylum and the previous UK determination in relation to the appellant’s family members:

[19] The Appellant’s mother (LB) and the Appellant’s brother (DD aged 24 years) and her sister (DN aged 22 years) came to the UK to seek asylum and were granted asylum following an appeal hearing. The appeal statement from that hearing has been provided which was based on LB’s political opinion and her activities in Senegal. The actual decision outlining the findings of the tribunal has not been provided, however the representatives state it was granted based on her political opinion.

[20] The tribunal has found in 2018 that the Appellant’s mother and two children have a well-founded fear of persecution in Senegal because of LB’s political activities. In 2016, the Italian authorities have also accepted the Appellant had a well-founded fear of persecution in Senegal, the evidence is unclear as to why, however the Appellant claims it was because of the Appellant’s association with her mother and their links to the PP. The papers do not suggest that the Appellant’s grant of asylum was relied upon in LB’s claim. […]

[23] […] I have however accepted her mother and dependent siblings were granted refugee status following a finding by an Immigration Judge that she was at risk of persecution in 2018. […]

[28] I do add weight to the fact that the Italian authorities have granted the Appellant refugee status and the fact the Appellant’s mother and siblings have been granted refugee status following a hearing in the IAC. […]

7. The judge went on to make various credibility and plausibility findings which I summarise as follows:

a) The appellant’s description of being detained and beaten at a police station after various concerts was found to be at odds with her substantive interview description of being part of a crowd dispersed with the use of teargas. It was further noted that she gave divergent accounts about her location when she was arrested in 2015. [20(a)]

b) The police station in which the appellant claimed, in the substantive interview, to have been detained after another concert was inconsistent with the account she gave in her witness statement. [20(a)]

c) The appellant had been inconsistent about the number of occasions she had been arrested. [20(a)]

d) The appellant’s mother’s claim in her witness statement, that her daughter was raped in police detention, was not referred to in the appellant’s substantive interview where nothing was said about a sexual assault. [20(a)]

e) It was not implausible that the appellant might have removed her music from YouTube, but she continued to perform. However, there was little evidence to suggest that the songs had come to the attention of the authorities. [20(b)]

f) An inconsistency relied upon by the respondent as flowing from the appellant’s screening interview attracted little weight in the fact-finding analysis. [20(e)]

g) The appellant’s evidence went from describing a closeness to Ousmane Sonko to political inactivity. Her evidence on this point was found to be “deliberately vague”. [21].

h) The judge reached the following overall conclusion about the appellant’s credibility at [22]:

Taking all of the evidence in the round I am satisﬁed that the Appellant has never been arrested, detained and ill-treated in Senegal as she claims. I also find that the Appellant was not a member of the PP in Senegal and she was not involved with the party’s activities in Senegal.

8. As will be seen from the grounds of appeal summarised below, the appellant’s representatives took aim at two particular parts of the decision, at [20(a)] and [20(d)], where the following points were taken by the judge in relation to corroborative evidence:

[20(a)] […] The Appellant is not required to corroborate her claim with documentary evidence from Senegal, such as ”arrest documents” and a failure to do so cannot damage her credibility (MAH (Egypt) above), therefore I add no weight to that part of the Respondent’s argument. I do accept the Appellant has not supported her claim by producing documentary evidence from Senegal. […]

[20(d)] […] In regard to supporting medical evidence of injuries sustained, I have borne in mind the events were in 2015 and that the Appellant is not required to corroborate her claim with material from Senegal and a failure to do so cannot damage her credibility (MAH (Egypt) above). However, medical records of her time in hospital should be available and I do accept the Respondent’s argument that the Appellant’s claims are not supported by such evidence.

9. The judge addressed LB’s evidence between [24] and [27], including an analysis of the narrative accounts she gave in the context of her ultimately successful asylum claim. It was noted that there were inconsistencies between her witness statement and the appellant’s evidence about the timeline of events before each left Senegal. The judge referred to photographic evidence LB relied upon in her protection claim. The judge reached the following adverse conclusions about LB at [27]:

I have had the benefit of hearing from LB and I did not find her or her account of fearing PP members in Senegal and the UK credible. I find she was fabricating her account in an attempt to support her daughter. The Appellant also claims to have received threats on TikTok from PP members. I find no satisfactory explanation has been put forward to explain why she would receive such threats. I find no satisfactory, evidence has been produced to show the threats were actually made. I find the Appellant has not been threatened by PP members as she claims and she is fabricating her account.

10. The respondent relied heavily on paragraph [29] – I set it out in full:

In a Human Rights Watch article provided by the Respondent, dated 4th April 2024, it states that Senegal’s new prime Minister is the same man, OS, that the Appellant and her mother claim to have supported and canvassed for before ﬂeeing from Senegal and that he was appointed to that post by President BDF. Therefore, the very man, and the political party PP, that the Appellant and her mother canvassed for are now in power in Senegal. At the hearing the Appellant conﬁrmed that she had become a member of the PP since arriving in the UK and holds a member’s card. It was put to the Appellant that the PP are now in power in Senegal and she stated,” not PP alone, there is another party associated with PP from the old regime”. She was asked to name that party and she replied, "I think it’s the APR”. She was asked if she knew what APR stood for and she replied, “not exactly”. I have carefully considered the Appellant’s claim that she now fears the PP, that she says is in a coalition in Senegal and that she fears OS, the very man she supported when she ﬂed Senegal and I do not ﬁnd her or her account credible. Taking all of the evidence in the round I am satisfied that the Appellant has nothing to fear from the authorities in Senegal and she can return back there in safety.

11. The delay in the appellant claiming asylum upon arrival in the UK was held against her credibility to a modest degree ([31]).

12. The judge dealt with the appellant’s human rights between [34] and [36]. It was again acknowledged that the appellant had not argued that the decision breached her Article 8 human rights. A balancing exercise was undertaken in which the public interest was found to outweigh the appellant’s, and her family’s, personal circumstances.

Appeal to the Upper Tribunal

13. The appellant’s grounds of appeal against the decision are threefold:

i. The First-tier Tribunal failed to lawfully assess the appellant’s grant of refugee status in Italy and her mother’s successful asylum appeal in the UK. The tribunal did not explain why it departed from these previous findings, or what weight was attached to them, contrary to established legal principles.
ii. The tribunal applied an inconsistent approach to corroborative evidence. While acknowledging that corroboration is not required, it nevertheless held the absence of such evidence against the appellant.
iii. The tribunal made findings under Article 8 of the ECHR even though this ground was not pleaded or argued. This was procedurally unfair and may prejudice future applications.

14. In a decision dated 22 April 2025, First-tier Tribunal Judge Gumsley granted permission for all grounds to be argued. The following observations were made in granting permission:

Ground one — whilst one has some sympathy with the FtT Judge given that the details of the Appellant’s previous grant of asylum and the Appellant’s mother’s claim and successful appeal were not provided, and whilst not necessarily bound by the previous decisions of either the Italian authorities in the Appellant’s case or the previous Tribunal in the case of the Appellant's mother, it is arguable that the FtT Judge failed to adequately consider and resolve what weight should be attached to those matters and why, particularly in the case of the previous Tribunal, that decision should be departed from.

Ground two — I consider that it is arguable that the FtT Judge was inconsistent as to what, if any, corroborative evidence was or should have been provided and the consequences of not doing so. From the comments made as set out in the grounds it is arguable that the FtT Judge did in fact hold the lack of corroborative evidence against the Appellant.

Ground three — although it was unnecessary for the FtT Judge to consider any Article 8 claim (particularly given that this matter was speciﬁcally not pursued), it is not clear why him doing so was material in undermining the findings made and conclusions made in relation to the other matters which were being advanced. That said this point may be argued on the basis that if a finding on this point, where there was no opportunity to argue it, is allowed to stand this may be of relevance to any future applications, if ever made.

15. At the error of law hearing, I heard oral submissions from both parties. I address any submissions of significance in the discussion section below.

Discussion

16. The weight to be attached to extra territorial protection status decisions was considered be Presidential panel in KK (Recognition elsewhere as refugee) Democratic Republic of Congo [2005] UKIAT 00054. The appellant in those proceedings had been granted protected status in Zimbabwe under a Treaty between African states. It was not a grant of asylum under the Refugee Convention. The following general observations were made between [17] and [19]:

[…] even if the grant had been on grounds which were found in the Geneva Convention, the grant would not be determinative of the position so far as the United Kingdom is concerned. It would still be necessary to consider the substantive merits of the case. […] Where the claimant can show, to a reasonable degree of likelihood, that there was a grant of asylum and that the grant of asylum was made on the same grounds as those which engage the Geneva Convention, the position is as follows.

The earlier grant of asylum is not binding, but it is the appropriate starting point for the consideration of the claim; the grant is a very significant matter. There should be some certainty and stability in the position of refugees. The Adjudicator must consider whether there are the most clear and substantial grounds for coming to a different conclusion. The Adjudicator must be satisfied that the decision was wrong. The language of Babela is that of the burden of proof: their status is prima facie made out but it can be rebutted; the burden of proof in so doing is on the Secretary of State. We do not think that that is entirely satisfactory as a way of expressing it and it leaves uncertain to what standard the burden has to be discharged and what he has to disprove. The same effect without some of the legal difficulties is established by the language which we have used.

But the important point is that it does not prevent the United Kingdom from challenging the basis of the grant in the first place. It does not require only that there be a significant change in circumstances since the grant was made. Clear and substantial grounds may show that the grant should never have been made by the authorities; it may be relevant to show that the authorities in the country in question lacked relevant information or did not apply the Geneva Convention in the same way. Exclusionary provisions may be relevant. The procedures adopted for examination of the claim may also be relevant. Considerations of international comity may be rather different as between EU member states and those with less honest administrations or effective legal systems.

17. The principles decided in Devaseelan [2002] UKIAT 702 will be familiar to anyone who regularly practices in this jurisdiction. It provides that judges considering a claim subsequent to an earlier judicial decision, taken in respect of the same appellant, must treat the earlier judicial assessment of the facts as they were at that time as the starting point for the later judicial analysis. A more nuanced approach is required when there are overlapping facts between a previous judicial decision taken in respect of a family member and the claims of a relative in subsequent proceedings.

18. The procedural danger of such a series of appeals was identified by the Deputy President in TK (Consideration of Prior Determination – Directions) Georgia [2004] UKIAT 00149, at [19] before issuing further guidance on the approach to be taken:

[…] The head of a family, call him X, claims asylum on the basis of his own account and loses on the grounds that his account is disbelieved. There follows thereafter a succession of separate members of X’s family who each makes his/her own asylum application and each expressly accepts that the risks which they fear are based on the risks to X as head of family. If Miss Record’s submissions were correct, then there could be a succession of hearings where a succession of Adjudicators, each deprived of all previous Adjudicator’s Determinations, could be asked to reappraise over and over again the same basic account from X, being an account on which all the successive family members were relying as showing that they were at risk because X was at risk. Unless some very good reason was advanced to the contrary, for example, compelling new evidence to show that X’s evidence (which originally had been disbelieved) was mistakenly appraised by the original Adjudicator, a future Adjudicator is, in the Tribunal's view, not merely entitled to read the Determination in X’s case but also to treat it as determinative as to X’s account.

19. The approach taken in TK was approved by the Court of Appeal in Ocampo [2006] EWCA Civ 1276 where Auld LJ held that Devaseelan was equally relevant in such cases where there is a “material overlap of evidence” (see [25]). He went on to observe that the approach would need to be tailored to the subsequent matter with due regard to the nature of any new evidence, the circumstances in which it featured, or did not feature, in the previous matter and its materiality. It was noted that the principles applied with equal force to previous decisions that supported, as well as undermined, the subsequent appellant’s case.

20. AA (Somalia); AH (Iran) v SSHD [2007] EWCA Civ 1040 is perhaps the leading authority on the approach to be taken when deciding an appeal which follows an earlier determination made in respect to a relative who relies upon similar facts. The Court of Appeal was split on the extent to which TK and Ocampo should be followed. Hooper LJ dissented from the majority view of Carnwath and Ward LJJ. Carnwath LJ (as he then was), giving the lead judgment of the majority, drew upon the principle of administrative law that individuals rightly expect to be treated uniformly in like legal proceedings unless there is a sound basis on which to treat them differently (see [66]). Ocampo was broadly followed, but with the qualification that “material overlap of evidence” was interpreted to mean the “same factual matrix” (see [69]).

21. The relevant principles were again considered by the Court of Appeal in Patel [2022] EWCA Civ 36. Ultimately, the guiding principle must be one of fairness to the parties in reaching the correct decision on the evidence then available even if that means departing from a previous decision. The following principles were identified at paragraph [37] of the judgment of Davis LJ:

i. Where there are different parties but with a material overlap of evidence, the Devaseelan principles of fairness apply with appropriate modification.
ii. What fairness requires will depend on the particular facts of the case. The findings of an earlier decision will be an important starting point, but the successive judge cannot avoid the obligation to address the merits of the case on the evidence then available.
iii. The successive judge will necessarily look for a very good reason to depart from the earlier findings. Whether any new evidence could have been adduced at the previous hearing may be relevant to that issue. Equally, a very good reason may be that the new evidence is so cogent and compelling as to justify a different conclusion.

22. Against the above statements to be found in the authorities, I must assess whether the judge’s analysis of the evidence is consistent with the principled approach required when previous decisions, both in the UK and Italy, have touched on overlapping facts or the same factual matrix. From the detailed summary of the judge’s decision, it is difficult to see that he went beyond recording the existence of the Italian decision and the judicial determination of LB’s asylum claim in the UK. It is clear that weight was attached because the judge said as much, but what is not clear is how much weight was attached. Even the most generous of readings of the judicial analysis could not lead to the inference that the Italian grant of asylum to the appellant and the successful appeal brought by LB on protection grounds was treated as a starting point for considering the claim before him, much less in the case of the Italian grant, a “very significant matter”. Instead, it is difficult to avoid the impression that these important previous decisions were merely noted before commencing an unencumbered analysis of the evidence.

23. However, in fairness to the judge, he was not provided with either the Italian rationale for granting the appellant asylum in 2016 nor was he provided with the 2018 UK appeal decision. This was a failing on the part of the parties, neither of whom appear to have attempted to obtain these important decisions notwithstanding that the hearing went part heard between January and February 2024, a period which presented ample opportunity to make the necessary enquiries. I note that LB was a witness in support of her daughter’s appeal and evidence she had provided in support of her 2018 appeal was made available. It is difficult to understand why the all-important decision itself was not obtained. Without these critical documents, the judge was left to guess at the precise basis on which the appellant and her mother were granted protection status. It would have been wrong for the judge to have assumed that everything LB said in support of her protection case was accepted by the judge who allowed her appeal – the decision may have been more nuanced than that and may have turned on country conditions in place at the time. The same can be said of the Italian decision. All that being said, I am satisfied that the judge was required in law to do more than he did with the uncontroversial fact that both the appellant and her mother were found in official administrative and judicial decisions to be at risk of persecution on return to Senegal. In failing to treat the limited information the judge had as an appropriately attenuated starting point or very significant matter in his assessment of the claim before him, the decision involved an error of law. I will address the materiality of this error below.

24. Turning to ground two, the passages of the decision copied above ([20(a)] and [20(d)]) reveal that the judge was aware of the legal principle in this jurisdiction that corroboration is not a legal requirement before a witness is regarded as credible about their underlying factual claims. However, after asserting the principle, the judge immediately recorded that particular elements of the underlying were not supported by documentary evidence going to the appellant’s claimed arrest and the medical treatment she described receiving after being mistreated in police custody. There is nothing to indicate that the judge assessed the appellant’s explanation as to why she was not in position of such supporting documents. This was perhaps to be seen most clearly at [40] of the appellant’s April 2024 witness statement where she explained that these documents were some 9 years old and she no longer had family remaining in Senegal to obtain them on her behalf. Any judicial conclusion that this kind of evidence was readily available to the appellant would need to have engaged with this account. There is nothing to indicate that the judge had regard to the appellant’s explanation for any gaps in the documentary evidential picture. Read fairly, I am satisfied that a lack of corroboration was wrongly held against the appellant in the assessment of her credibility. This amounts to an error of law. I consider the materiality of this error below.

25. Turning finally to ground three, Mr McVeety accepted at the error of law hearing that this was a material error of law in the sense that the judge has decided a ground of appeal which was never properly before him. Mr McVeety was right to adopt this position. The judge was required to determine this appeal on the strength of the agreed principal controversial issues. I need not look further than the Senior President’s Practice Direction of November 2024 to support this conclusion. It provides as follows, at [1.3]:

[1.3] The disputed issues represent the parameters, or scope, of the appeal and will operate as the foundation and structure for all judicial decisions. Subject to ‘Robinson obvious’ matters and the need for extra care when litigants in person are involved in proceedings, judges should not be expected to infer issues which have not been clearly identified and articulated by the parties.

26. These principles are of particular importance at the substantive hearing of an appeal. A Judge at a substantive hearing can legitimately expect the parties to have a full understanding of their respective legal and factual cases at this stage of the process. Paragraph 11.4 says this about this critical juncture in the process:

[11.3] The outset of the substantive hearing is the final opportunity to refine and further narrow the disputed issues or agree issues or matters that are in dispute. Once settled, the disputed issues define the scope of the appeal hearing and confine the territory to be explored in the evidence, submissions and decision.

27. While the judge noted that an Article 8 human rights ground of appeal was not advanced before him, he plainly considered that any such argument was lacking in merit. In deciding a notional and unargued Article 8 case in this way, the appellant was deprived of a fair opportunity to rely on evidence and arguments which may have weighed in her favour. This error is evidently material in the context of this part of the decision, but it has no bearing on the protection elements of the appeal proceedings.

28. I now address the materiality of the errors I have found in respect of grounds one and two. The first point to note is that the errors going to the approach taken to the previous protection decisions and corroboration were matters which plainly had a bearing on the overall credibility assessment of the appellant and LB. While the fact-finding process was detailed and multi-faceted, I am unable to conclude that the rejection of the appellant and her mother’s credibility would have been just as likely to follow if the previous protections had been treated with the importance they deserved notwithstanding the absence of the reasoning for those decisions. I am unable to infer from the decision that the adverse inferences drawn from inconsistencies in the various accounts were measured against the reality that there must have been some substance to these underlying factual claims if each witness had been previously found to be at risk of persecution on return. Equally, aspects of the appellant’s underlying narrative about being detained and tortured were seemingly questioned on the strength of an absence of corroboration. This was not an isolated error of reasoning but is there to be seen at different junctures of the fact-finding analysis. I do not find it to be rationally possible to separate these errors from the overall conclusion which was built, at least in part, upon these unsafe foundations.

29. The more difficult materiality question is that which stems from paragraph [29] of the decision. In this part of the decision, the judge has, in part, drawn on a meaningful change in the balance of power with Ousmane Sonko now serving as Prime Minister. It was undoubtedly a powerful point weighing against the continuing existence of risk on return that the man on whose behalf the appellant once campaigned had achieved Prime Ministerial power. However, intertwined with this consideration of changed country conditions is a rejection of the credibility of what the appellant had to say about her fears in the current political climate. I am not satisfied that these credibility findings were not impacted by the sweeping adverse credibility findings which preceded them, and which were founded on errors of law. The judge concluded paragraph [29] by referring to his assessment of the evidence in the round. I also take the point made by Ms Patel that paragraph [29] was not expressed in terms which might suggest that it was intended to stand alone as an island without any bridges to the mainland of the preceding fact-finding analysis which occupied the previous 6 and a half pages of comprehensive analysis of the oral and documentary evidence. The judge did not state in terms that he would have reached the same conclusion solely on the strength of the changed political conditions in Senegal. The detailed factual analysis, tainted by errors of law, cannot be seen as mere academic backdrop to paragraph [29].

Disposal

30. The parties were agreed that the appeal should be remitted to the First-tier Tribunal for a de novo hearing if all grounds of appeal succeeded, as they have. Their positions were based on the broad sweep of fact-finding which would be required. In addition, the basis on which the judge proceeded to dismiss a human rights claim which was not advanced before him undermines the procedural fairness of the proceedings in the FTT. Overall, I am persuaded that the correct course is to remit this matter to the FTT to be reheard. I do not preserve any findings of fact.

Notice of Decision

The decision involved material errors of law. I set aside the decision and remit the matter to the FTT to be decided by a judge other than the judge who dismissed the appeal on 28 February 2025. I do not preserve any findings of fact.

Paul Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

22 August 2025