Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-002968
PA/64007/2023
IA/01023/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 10th March 2026

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

GM (NAMIBIA)
(anonymity order made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Katani, Katani & Co Solicitors
For the Respondent: Mr Mullen, Senior Home Office Presenting Officer

Anonymity

Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him, any of his witnesses or any member of his family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings

Heard at Melville St, Edinburgh on the 4 February 2026

DECISION AND REASONS
1. The Appellant is a national of Namibia born in 1991.
2. The Appellant claimed asylum in the UK as long ago as May 2018. For reasons that are unclear, the Secretary of State did not make a decision on his claim until 28 March 2023, but when she did, she accepted much of what the Appellant had to say. She accepted that he was Namibian, that he was from the Herero tribe, and that he was bisexual: she accepted his account of having had a relationship with a distant cousin as a teenager, and having suffered physical and verbal abuse from his family as a result. The Respondent was not however prepared to grant the Appellant protection. Although she accepted that traditional views in Namibia remain opposed to same-sex relationships, she reasoned that this was not true of everywhere and everyone in the country. The Appellant could, for instance, relocate to Windhoek, where the population were generally more accepting of same sex relationships. The Appellant could, if necessary, seek the protection of the Namibian government.
3. On appeal the First-tier Tribunal dismissed the Appellant’s case. Apparently failing to appreciate that none of the facts were in issue, the Tribunal made negative credibility findings about the Appellant’s evidence.
4. By her decision dated 24 November 2025 Deputy Upper Tribunal Judge Howarth set the First-tier Tribunal decision aside with the consent of the Respondent, who had accepted that the First-tier Tribunal had erred in law by:
i) Impermissibly requiring corroboration contrary to recognised principles of refugee law;
ii) Going behind the concessions of fact made by the Respondent without giving the parties notice of its concerns.
5. Although (ii) raised issues of fairness, the parties before Judge Howarth were in agreement that this was a matter that could properly be retained in the Upper Tribunal, rather than requiring a complete rehearing in the First-tier Tribunal. That is because the issues between the parties are narrow. Before me the parties identified those matters as follows:
i) Is there currently a real risk of harm to the Appellant for reasons of his membership of a particular social group?
ii) Is there a place in Namibia where he could reasonably be expected to relocate in order to avoid such harm?
iii) In the event of the Appellant being threatened with harm, would the Namibian government provide him with a sufficient degree of protection?
6. At the hearing before me GM adopted his witness statement and gave brief oral evidence, including answering questions put to him by Mr Mullen. The representatives then made submissions and I reserved my decision, which I now give.
The Evidence
The Appellant’s Account
7. The key life events narrated by the Appellant, and accepted by the Respondent, are as follows.
8. The Appellant first found himself attracted to other boys when he was at school. His first relationship was when he was 18 years old and it was with a distant cousin, ‘R’. The Appellant and R were both playing football professionally at this time so saw a lot of each other; they became close and it ‘just happened’. They were in an “on-off” relationship for about a year. It was difficult because they were constantly afraid of discovery.
9. In 2010 the Appellant had a relationship with a woman, ‘T’. R became very upset when he found out, and the Appellant believes he must have told someone about their relationship because the rumour spread through the extended family and caused a scandal. The Appellant was subject to pressure, verbal and physical abuse by family members, including his grandfather lashing him with a whip. T’s family were horrified that she was having a relationship with a man who also sleeps with men (MSM), and when she discovered she was pregnant, her family forced her to terminate the pregnancy. The pressure continued on the Appellant; in 2011 he was assaulted by his great-grandfather, who kicked him in the groin, causing him to lose his left testicle.
10. The Appellant tried his best to “fit in” and make his family move on from this episode. He did not have any further same-sex relationships. He was supporting his mother and siblings by playing football. After a couple of years the rumours started again, this time because the Appellant had drawn close to one of his fellow players. The Appellant avers that his relationship with this man was entirely platonic, but because of his history his family would not believe him. He was “cursed” by members of his extended family. The Appellant sought the intervention of traditional leaders, but they did not manage to resolve the situation.
11. In 2016 the Appellant was in a bar with a cousin, who was a serving police officer. Some men in the bar recognised the Appellant and started abusing him, calling him “Moffie”, which is a homophobic slur in Namibia. In his oral evidence the Appellant explained that by this time he was a relatively well-known footballer in Namibia and this is how he was recognised. These men attacked him and beat him to unconsciousness. The Appellant woke in hospital, with his cousin by his bedside. He was suffering from swelling on his brain and his mother had to pay for him to have private medical treatment. She told him that she thought he should leave Namibia for his own safety.
12. After he recovered the Appellant met up with R. They decided that they would plan to leave Namibia together. It took them some time to save up the money and make the arrangements. The Appellant and R left Namibia together and arrived in the UK in May 2018. They sought protection and lived together, lodging with an uncle who was a British citizen. The Appellant and R subsequently decided to split up and go their separate ways.
13. In 2020 the Appellant went to Southampton to play in a football tournament organised by the Namibian community in the UK. He saw T there. She told him that her family had never forgiven her for her involvement with him, and that she had decided to leave Namibia to get away from them. They stayed in touch after this meeting and subsequently rekindled their relationship. The Appellant now lives with T in Glasgow, and they have had a baby together.
Country Background Evidence
14. The Appellant relies on an expert report prepared by Dr George Hamandishe Karekwaivanane BA, MA, MSc, DPhil (Oxon), FHEA, MEWI, Senior Lecturer in African Studies at the University of Edinburgh. Dr Karekwaivanane has written widely on society, history and customs in the countries of Southern Africa, and is currently writing a book on Namibia. His expertise has not been challenged by the Respondent.
15. Dr Karekwaivanane writes that there is a substantial body of research indicating that whilst the police in Namibia are able to provide protection to members of the LGBTQI community, they are generally unwilling to do so. He cites several examples, including excerpts from the current CPIN. He is only aware of one example where the police did intervene to offer protection, but this was an unusual and high profile case. A traditional leader and former presidential candidate was filmed beating and whipping a transgender woman who was tied to a chair. The clip went viral on social media and civil society groups put pressure on the police to investigate the incident. Dr Karekwaivanane emphasises that this kind of action is very rare, and that the ‘exception proves the rule’: in fact the police had initially refused to charge the perpetrators and it was only after the case was raised with the Police Commissioner that action was taken.
16. Dr Karekwaivanane writes that instead of offering protection the police are seen as a threat to MSM. He cites a report by human rights organisation ‘The Other Foundation’:
“The significant experiences and needs of LGBTI people relate to the prevalence of physical and sexual violence, including general violence, police violence, rape and rape by police. Violence against LGBTI people is pervasive and there are “high levels of sexual and other violence targeting people because of their sexual orientation and gender identity [which] are endemic in some areas of our country.” (ORN Human Rights Report on LGBTI People in Namibia, 2013).
Upwards of 40% of MSM experience human rights abuses including rape and violence, and this violence is reported as one of their main health challenges. Hatred, extreme violence and rejection from family and communities, including lack of financial support, is a significant challenge and there is often a refusal on the part of police to prosecute violence against LGBTI people. Harassment and brutality at the hands of the police is a reality and police create methods to humiliate trans people, including forcing them to strip in public”.
17. In respect of societal attitudes generally, and the possibility of relocation, Dr Karekwaivanane examined several studies conducted over the past decade.
“The capital city of Namibia is Windhoek, and the population of the city is larger than the next ten cities and towns put together. In many ways, it is one of, if not the most, most cosmopolitan diverse areas in Namibia. Despite its size and diversity, studies have consistently shown that LGBTQ+ people experience a lot of abuse and discrimination in Windhoek. One such study was that by Zahn et al which surveyed more than 200 men who have sex with men in Windhoek, and it found that 52.13% of the respondents had experienced human rights violations. Mpuka’s study on police attitudes toward LGBTQ+ individuals was conducted in Windhoek, and it also found that LGBTQ+ people experienced persecution. In short, despite its size and diversity or the fact that it holds periodic ‘Pride’ events, the objective evidence shows that LGBTQ+ people experience abuse and discrimination in Windhoek. The study by Stephenson et al. was broader in its scope in that it focused on 5 Namibian cities of different sizes, i.e. Windhoek, Luderitz, Keetmanshoop, Mariental and Khorixas. Their study shows that They found that men who have sex with men faced abuse in all these cities”.
18. Dr Karekwaivanane further considers the findings of a larger-scale survey, based on the responses of a nationally representative sample, the ‘Afrobarometer’. One of the questions that is regularly included in this regularly conducted survey relates to attitudes towards LGBTQ+ people. Dr Karekwaivanane contrasts the responses given in 2019 to those collected in 2021. The results are that there are significant rises in intolerance across all groups – male/female, urban/rural. He concludes that there is a “clear direction of travel” with attitudes towards the LGBTQI community getting worse rather than better:
“What the results show is a sharp spike in homophobia in recent years. When one looks at the data across gender and region, it is clear that there are high levels of homophobia in Namibia, and these levels are rising. As I will discuss later, this data is reflective of the current anti-LGBTQ+ backlash that is currently underway in Namibia”.
19. In respect of this backlash, Dr Karekwaivanane explains that this has arisen in response to a series of court decisions including a High Court ruling that laws criminalising sexual relations between men were unconstitutional. This led to public outcry, with the government responding with a new law to close the constitutional concern expressed by the courts. Although the courts have indicated a willingness to protect LGBTQI rights, the government, fearing public outrage, have responded by curtailing them further, in particular legislating to ensure that same-sex marriage cannot be considered legal in Namibia, criminalising not only parties to such marriages, but anyone who witnessed, celebrated or supported such unions. In the immediate aftermath of the court decisions there was a dramatic uptick in extreme violence against LGBTQI individuals, such as the horrific murder of a trans woman who was found with 32 stab wounds; her genitals had been cut off and left on top of her body.
20. The report goes on to examine deeply homophobic and hostile comments and policies adopted by traditional tribal leadership structures in Namibia, which would, in Dr Karekwaivanane’s estimation, make life in rural locations or smaller cities extremely difficult for LGBTQI individuals. He cites examples of openly gay or trans activists facing “inciendary” threats and condemnation by such leaders. He concludes:
“In summary, it is my professional opinion that there are no areas in Namibia where an openly LGBTQ+ individual would be free from persecution or harm. As shown above, an examination of the objective evidence on the treatment of LGBTQ+ people in large cities like Windhoek and in smaller cities like Swakopmund, Luderitz and Keetmashoop show that LGBTQ+ individuals face discrimination and abuse”.
21. In a subsequent addendum to his report, prepared in response to the Respondent’s review of the evidence, Dr Karekwaivanane underlined that in his view the positive court rulings should not be taken as an indication that life is improving for LGBTQI individuals in Namibia. He lists a number of men who have been murdered since the rulings were handed down, including a number in Windhoek. He further points to the evidence, accepted by the Respondent, that the Appellant was a professional footballer before he left Namibia. As such he is likely to be recognised by members of the public.
22. Although I was not referred directly to it (Dr Karekwaivanane himself cites several passages), I have also had regard to the Country Policy and Information Note Namibia: Sexual orientation and gender identity and expression (Version 3.0 October 2024). As the name suggests, this document is intended to express the Secretary of State’s policy as well as give information about Namibia. It is markedly different in tone from the report of Dr Karekwaivanane. In respect of the key issues I have to resolve the policy states that there is not in general a danger of persecution for LGBTQI individuals from the state, including the police; there is not in general a risk to such persons from members of society at large; there is a viable internal relocation alternative in Windhoek; there is a sufficiency of protection.
Legal Framework
23. The correct legal approach to cases such as this is to be found in the judgment of the Supreme Court in HJ (Iran) & HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31. At paragraph 82 Lord Rodger set out the framework for enquiry to be applied to claims based on sexual orientation:
“When an applicant applies for asylum on the ground of a well-founded fear of persecution because he is gay, the tribunal must first ask itself whether it is satisfied on the evidence that he is gay or that he would be treated as gay by potential persecutors in his country of nationality. If so, the tribunal must then ask itself whether it is satisfied on the available evidence that gay people who lived openly would be liable to persecution in the applicant’s country of nationality.
If so, the tribunal must go on to consider what the individual applicant would do if he were returned to that country. If the applicant would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well-founded fear of persecution - even if he could avoid the risk by living “discreetly”. If, on the other hand, the tribunal concludes that the applicant would in fact live discreetly and so avoid persecution, it must go on to ask itself why he would do so…”
24. Although the Appellant here does not claim to be gay, the parties before me agree that the word “gay” may simply be replaced by the word “bisexual” for the purposes of this appeal.
25. The other relevant consideration identified in the representatives’ submissions is paragraph 339K of the Immigration Rules:
339K. The fact that a person has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, will be regarded as a serious indication of the person’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.
My Findings
26. Beginning with the first of Lord Rodger’s questions, I need do no more than record the Secretary of State’s acceptance that the Appellant is bisexual, and that he is a man who has sex with men (MSM).
27. I must next consider whether, on the evidence before me, he has demonstrated that MSM who live openly in Namibia face persecution. As I note above, there was a marked difference between the CPIN and the report of Dr Karekwaivanane. For instance, in respect of the police the CPIN says this:
“4.1.3 The government operates a generally effective criminal justice system that is able to detect, prosecute and punish criminal acts against people, including through the police service and an independent judiciary. Sources indicate that the police did not incite or perpetrate violence against LGBTI people or those reporting it. The US State Department noted that government officials acknowledged that the police had been reported to act with ‘apathy’ towards LGBTI people”
28. Although it does acknowledge, [at 8.5.3], that “the mistreatment of citizens by police officers is also common”, there is no mention in the CPIN of the sources cited by Dr Karekwaivanane which indicate that serious violence, including rape, is widely perpetrated against LGBTQI individuals by police officers in Namibia. Those sources include publicly available reports by human rights organisations, articles in the media, and published academic studies. The failure to even consider these sources leads me to question the reliability of the conclusions reached by the authors of the CPIN. There would further appear to be a disconnect between the policy statements made in the CPIN, and the information they are supposedly based on. For instance [at 3.2.1] the report says “LGBTI people are not likely to face persecution or serious harm from nonstate actors”, before immediately noting [at 3.2.3]:
“There are also some reports of violence, harassment and ill-treatment of LGBTI people, including several murders. Sources noted an increase in violence since the bills opposing same-sex marriage were introduced to parliament in July 2023”
29. Although I have noted what is said in the CPIN about the progress that has been made in terms of equality and dignity for those who identify as LGBTQI in Namibia, on the question of risk I prefer the well sourced and balanced evidence of Dr Karekwaivanane. His conclusions are unequivocal. Although some members of Namibian society are becoming more tolerant, and the courts have attempted to uphold the constitutional rights of LGBTQI individuals, there remains a real risk of persecution for those who choose express their sexuality openly, with one study finding over 52% of respondents had suffered human rights violations. I note that this is consistent with the accepted facts in this case. The Appellant has already suffered serious harm at the hands of family members (being whipped, losing a testicle after being kicked in the groin) and by members of the public: it is notable that that the men in the bar who kicked the Appellant unconscious did so regardless of the presence of his cousin, a serving police officer, who was apparently powerless to intervene.
30. I am satisfied that there would be a real risk of persecution for the Appellant if he chose to live openly as a MSM in Namibia.
31. In accordance with the guidance in HJ, I am next required to consider how in fact the Appellant would act if returned to Namibia. As Mr Mullen pointed out in his submissions, the Appellant is now in a heterosexual relationship with T, and they have a daughter together. Neither T nor the child have any leave to remain and would be expected to return to Namibia with the Appellant, where presumably they would carry on living as a family unit. How, he asks, in those circumstances, can it be said that there is a real risk of the Appellant living openly as a MSM in Namibia? On a pure HJ analysis, Mr Mullen is of course correct.
32. In response Mr Katani submits that this is not the end of the matter. The question in this case is whether there is a real risk of the Appellant’s past catching up with him so as to expose him to risk in the future. Mr Katani relies on the following matters in that regard. He rightly submits that my starting point must be the past persecution that the Appellant has already been subjected to. Paragraph 339K of the Rules requires me to consider whether there are good reasons to consider that such persecution will not be repeated. Whilst his current living arrangements would, absent any other fact, certainly amount to such ‘good reasons’, there remain two difficulties for the Appellant. First, the continued hostility towards him from members of his own family, and that of T. It is notable that his past relationship with T did not seem to ‘absolve’ him, since he continued to be subject to suspicion and hostility. Significant incidents of serious harm occurred after the Appellant had attempted to ‘normalise’ his behaviour by having a relationship with T and doing his best to “fit in” by avoiding any further relationships with men. In submissions Mr Mullen, rightly in my view, acknowledged that this history would probably establish a current risk of harm to the Appellant in his home area. The second factor, relevant to Namibia as a whole, is the uncontested fact that the Appellant was a professional footballer in Namibia for a number of years. Having considered the evidence as a whole, it seems to me that this matter, and in particular the 2016 incident in the bar, is the key to this case.
33. The Appellant’s assailants on that occasion did not witness him acting in a way that might reveal that he was MSM. On the contrary, he was having a drink with a number of straight men, including a police officer. When asked what might have motivated these men to subject him to an overtly homophobic assault, the Appellant explained that it was because they recognised him because he was a footballer; what he did not say, but appears obvious on the facts, is that he was not only known to be a footballer, but known to be a footballer who had sex with men. Otherwise there is no explanation for why they called him a “moffie” as they kicked him in the head. The inference I draw from this is that the scandal that had engulfed the Appellant domestically led to rumours about his sexuality spreading beyond his extended family. It seems to me that such an unusual fact about a public figure is likely to be remembered, particularly by those who bear an animus towards the LGBTQI community. I am therefore satisfied that there was, and continues to be, a real risk of harm for the Appellant anywhere in Namibia.
34. The last matter I need to consider is whether the police in Namibia are able and willing to provide him with a sufficient degree of protection so as to obviate the UK’s obligations to offer surrogate protection. I need not deal with that matter in any detail, since having reviewed the evidence offered by Dr Karekwaivanane, Mr Mullen accepted that they would not. It follows that this appeal must be allowed on protection grounds.
Decision and Directions
35. The decision of the First-tier Tribunal is set aside.
36. There is an order for anonymity in this appeal, in part to protect the identity of the Appellant who is a refugee, and in part to protect the identity of his daughter.
37. The decision in the appeal is remade as follows: the appeal is allowed on protection and human rights grounds.

Upper Tribunal Judge Bruce
Immigration and Asylum Chamber
6 March 2026