Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002350

First-tier Tribunal No: HU/55413/2024

LH/01386/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 24th of September 2025

Before

UPPER TRIBUNAL JUDGE NEVILLE

Between

Mr OO
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Sowerby, counsel instructed by Templeton Legal Services
For the Respondent: Ms M Kerr, Senior Presenting Officer

Heard at Field House on 15 September 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant, his wife and their child are granted anonymity. No-one shall publish or reveal any information, including their name or address, likely to lead members of the public to identify them. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. The appellant is a Nigerian national who entered the United Kingdom on 5 September 2019 with leave as a visitor, valid until 5 March 2020, but did not return after it expired. In 2021 he met a British citizen and the two began a relationship. They moved in together in early 2023 and married on 24 May 2024. I shall refer to her as the sponsor.
The application for leave to remain and the appellant’s account
2. On 30 January 2024 the appellant applied for leave to remain based on his relationship with the sponsor. In a supporting witness statement, the appellant explained why he could not return to Nigeria, either temporarily to apply from that country as required by the Immigration Rules, or permanently with his wife. He told of how when living on his family farm in Nigeria a gang of Fulani herdsmen had set all the crops on fire and attacked his family, who had to run for their lives. After that, the appellant’s uncle sent him to Lagos to find employment with a company. On arrival, the appellant realised that his employer’s business was running scams. He was told he owed the company a debt for taking him on and must work for them until it was repaid. He was threatened that if he left, or if he disclosed their activity to others, he would be violently punished.
3. In 2019 the business expanded to the UK and decided that the appellant should go with it. They arranged a visit visa, and the appellant accordingly travelled to the UK. He worked for them for a couple of months to avoid suspicion before escaping in the middle of the night. He has since found safe accommodation.
4. The application’s covering letter made it clear beyond doubt that the appellant feared reprisals from those who attacked his village and from those for whom he had worked in Nigeria and the UK, so could not safely return to Nigeria. These were expressly put forward as the reason why family life could not be continued in Nigeria, and why the appellant could not return there to apply for entry clearance.
The refusal decision
5. The application was refused on 16 April 2024. It first explains that the appellant does not meet the eligibility requirements in Appendix FM to the Immigration Rules, because he is in the UK without leave. It goes on to consider whether there are exceptional circumstances, the introduction including that “We note the points you have raised in your application, including your fear of returning to Nigeria”. It later says, under the heading Exceptional Circumstances:
We have considered, under paragraph GEN.3.2. of Appendix FM, whether there are exceptional circumstances in your case which would render refusal a breach of Article 8 of the ECHR because it would result in unjustifiably harsh consequences for you or your family. In so doing we have taken into account, under paragraph GEN.3.3. of Appendix FM, the best interests of any relevant child as a primary consideration. Based on the information you have provided we have decided that there are no such exceptional circumstances in your case.
You have told us that you and your partner would not be safe if you returned to Nigeria as you would face violent attacks there. We have reached this decision because you have provided no specific evidence that the conflicts which drove you to enter the UK are still ongoing and no evidence that you and your partner would be targeted as individuals in Nigeria. You can temporarily return to a different part of Nigeria to where the conflicts occurred to apply for the correct Entry Clearance back into the UK.
Although you are under no obligation to do so, as you claim to have a well-founded fear of returning to Nigeria, you have not taken the opportunity to claim Asylum in the UK on the basis of your fear for your safety in Nigeria where you could fully explain and provide further evidence of your fear of returning there.
The appeal
6. The appellant appealed to the First-tier Tribunal (FtT). The Appeal Skeleton Argument filed on his behalf included that:
17. The Appellant holds no family ties in Nigeria and has previously been threatened by local farmers and gangs who then set fire to the family’s farmland. The appellant is also subject to a company debt from his previous employer who have also made threats against him and forced him to work to pay this off before he was able to escape this job. The appellant has no family, home to return to nor [is he] able to support his partner in Nigeria, which would make them both particularly vulnerable should they return to Nigeria.
7. In the subsequent Respondent’s Review, issue was taken with the appellant’s account of risk on return. This, it was stated, constituted a protection claim and was therefore a “new matter”. The FtT could not consider it without the respondent’s consent, which she declined to give; if the appellant wished for his account to be considered he should claim asylum.
8. Following a hearing on 15 March 2025 in Manchester, the appeal was dismissed in a decision dated 25 March 2025. Inevitably, the Judge was called upon to assess whether the appellant should return to Nigeria. Addressing his account of being at risk on return, the Judge held:
13. I have considered the submissions and the guidance in Mahmud (S. 85 NIAA 2002 – ‘new matters’) [2017] UKUT 488. I accept Ms Nevers submissions that the Appellant’s application relates to leave to remain based upon his relationship with his partner and he is now in effect raising a protection claim. I accept the submission that in such cases the Respondent is entitled to consider a protection application, once made, investigate it and make her decision before the tribunal makes findings on it. I do therefore find the matter is a new matter and as I do not have consent to deal with it, I do not take it into consideration in my findings and decision”.
9. No findings were made thereafter on whether the appellant was telling the truth about the attack on his village, the forced labour in Nigeria, or being trafficked to the UK. The Judge simply omitted it from the factual matrix put forward. Having done so, the Judge concluded: (I have omitted some details to protect the appellant’s anonymity)
22. The Appellant is a […] healthy male that came to the UK five and a half years ago. Prior to meeting the sponsor in 2021 and moving in with her in 2023. I find that he was resourceful enough to be able to find accommodation and money in London in order to support himself for a period of three years. The Appellant has provided no information about his life prior to moving in with the sponsor, other than that outlined in his protection claim which covers only a short period of time when he arrived here. I find that if the Appellant returned to Nigeria he would be returning to a place where he spent the vast majority of his life and where he is familiar with the culture and the language. At the hearing he confirmed he had previously held down employment there [...] and I am satisfied that he would obtain employment there if required to do so. I find that the Appellant would also now have the additional support of his sponsor in terms of financial support. The sponsor estimates her income to be in the range of eighty-eight to one hundred thousand pounds a year (including bonus) and in April 2025 expects that to increase as she becomes an equity partner in the business. […]
10. The appeal was dismissed.
The appeal to the Upper Tribunal
11. Permission to appeal to the Upper Tribunal was granted by Upper Tribunal Judge Landes on 21 July 2025 on two grounds: first, that the judge erred in finding that the trafficking claim was a new matter and excluding it from consideration; second, when considering proportionality, that the Judge had applied the wrong test in any event.
12. I need only consider the first ground of appeal. Section 85(5) of the Nationality, Immigration and Asylum Act 2002 precludes the Tribunal from considering a new matter unless the Secretary of State gives her consent. A “new matter” is defined as follows:
(6) A matter is a “new matter” if—
(a) it constitutes a ground of appeal of a kind listed in section 84, and
(b) the Secretary of State has not previously considered the matter in the context of—
(i) the decision mentioned in section 82(1), or
(ii) a statement made by the appellant under section 120.
13. In Ayoola (previously considered matters) Nigeria [2024] UKUT 143 (IAC), the Upper Tribunal gave the following guidance:
1) If a matter is raised in the course of an application to the Secretary of State, the Secretary of State's refusal of the application will amount to having "considered" the matter for the purposes of regulation 9(6)(b) of the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020, even if the decision under appeal is silent on a matter expressly raised in the application.
2) The references to the matter will have to be sufficiently clear to make it reasonable for the Secretary of State to be expected to respond to it. A buried or tangential reference in an application which ostensibly otherwise relies on some other matter is unlikely to be sufficient to merit the conclusion that it has been "considered" by the Secretary of State. Such a matter will be a new matter, requiring the consent of the Secretary of State for it to be considered by the tribunal.
14. While that authority concerns analogous provisions in the 2020 regulations cited, there is no reason not to extend the same principles to appeals under the 2002 Act. The respondent’s rule 24 Response (not authored by Ms Kerr) argued that the Appeal Skeleton Argument and a second witness statement made after the appeal was lodged were too vague when raising the account. This is irrelevant, as both documents postdate the refusal decision.
15. It can be seen from the way in which the protection and trafficking account was raised that it was put forward for consideration by the respondent. Even if the refusal decision were silent on the protection-based submissions, I would hold that the matter had been considered for the purpose of section 85(5). As it is, the refusal decision expressly confirms that the account was considered when deciding whether there are exceptional circumstances, albeit the account was then rejected due to the quality of the evidence received.
16. Ms Kerr attempted to defend the Judge’s conclusion by (correctly) observing that ordinarily the respondent would expressly decline to consider protection-based submissions and require an asylum claim to be made. While many refusal decisions do positively disavow such consideration however, this one does not.
17. Ground 1 therefore establishes an error of law, the Judge being wrong to conclude that the trafficking and protection account was a new matter. As confirmed in JA (human rights claim, serious harm) Nigeria [2021] UKUT 97 (IAC), the Judge was therefore obliged to consider it as part of the claim put forward that there were exceptional circumstances both within the Rules and in relation to Article 8 proportionality.
18. The error is undoubtedly material to the outcome. The Judge’s overall conclusion is that the appellant can support himself by asking his former traffickers for his old job back. In the absence of his account having been rejected, that decision plainly cannot stand. Ms Kerr argued that in those circumstances, the appeal should still be dismissed because the appellant’s evidence in support of the account was so weak that it was bound to be rejected. While this was certainly a possibility, it was not the only rational outcome that the Judge might have reached. The decision must therefore be set aside.
19. I therefore need not consider the second ground of appeal save to say that there is some force to Mr Sowerby’s submission that the judge failed to grapple with whether she was considering a temporary or permanent return to Nigeria. At the hearing the respondent’s presenting officer had expressly conceded that it would not be reasonable to expect the sponsor to live in Nigeria. The subsequent treatment by the Judge is unclear as to whether it is still concerned with that hypothetical situation, or whether the appellant should return to Nigeria solely to make an application for entry clearance.
20. Having pronounced the above conclusion at the hearing, the representatives agreed that the correct disposal was to remit the appeal to the First-tier Tribunal for rehearing. I agree that none of the judge’s findings can sensibly be preserved as the overall assessment is wrongly premised upon the protection and trafficking account being excluded. The appellant and sponsor also had a child on 1 August 2025 and this will plainly be relevant to proportionality. Ms Kerr sensibly provided the Secretary of State’s consent to that new matter being considered when the appeal is reheard. Given the extent of fact-finding required, and that the appellant should not be unfairly deprived of the benefit of the two-tier appellate structure when his full account is assessed, I consider it appropriate to remit the appeal for re-hearing.
21. Finally, no anonymity order has previously been canvassed. A person who has made an allegation that he or she has been trafficked contrary to section 2 of the Modern Slavery Act 2015 is entitled to anonymity, and in any event the potential harm that could arise on the appellant’s identification should his account be established as true justifies derogation from the principle of open justice. An anonymity order is made in the form above.
Notice of Decision
(i) The decision of the First-tier Tribunal involved the making of an error of law and is set aside.
(ii) The case is remitted to the First-tier Tribunal for re-hearing by a different judge with no facts preserved.
(iii) The Upper Tribunal directs that the respondent remains bound by her concession as to the sponsor’s ability to live in Nigeria, subject to any application to the First-tier Tribunal to withdraw it. Any such application must be made promptly.
(iv) It is recorded that the Secretary of State consents to the FtT considering the new matter of the appellant’s child born on 1 August 2025.
J Neville
Judge of the Upper Tribunal
Immigration and Asylum Chamber

16 September 2025