Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-003034
First-tier Tribunal No: PA/55108/2023
LP/01047/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 17th March 2026

Before

UPPER TRIBUNAL JUDGE LODATO

Between

BC
(Anonymity ordered)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Holmes, counsel
For the Respondent: Mr Diwnwyz, Senior Presenting Officer

Heard at Phoenix House (Bradford) on 2 March 2026

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

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 I have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal because the underlying claim involves international protection issues in that the appellant claims to fear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 Nigeria. 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 his identity.
2. This decision follows my previous decision, sealed on 6 November 2025, in which I found that the decision of the First-tier Tribunal involved a material error of law. The error of law appeal was allowed on a narrow basis in that the findings which went to what would be likely to unfold for the appellant on return to Nigeria were found to be legally unsafe. The central issue for me to decide was agreed between the parties to be whether the Nigerian authorities are reasonably likely to already be aware, or will learn through the enforced returns process, of the appellant’s activities on behalf of IPOB, a Biafran independence movement proscribed by the Nigerian government. Mr Diwnwyz accepted in his oral submissions that the Nigerian authorities would be reasonably likely to persecute the appellant for his imputed political opinion if they were already, or became, aware of his sur place political activities in the UK even if those activities were motivated by non-political reasons.
Legal Framework
3. Article 1A(2) of the Refugee Convention 1951 defines a refugee as an individual who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
4. I repeat the legal principles I cited in the error of law decision about how the tribunal should approach whether to draw an inference that a foreign state’s intelligence-gathering operations might have already identified a member of the diaspora as a political activist. Sedley LJ said this in YB (Eritrea) v SSHD [2008] EWCA Civ 360, at [18]:
As has been seen (§7 above), the tribunal, while accepting that the appellant's political activity in this country was genuine, were not prepared to accept in the absence of positive evidence that the Eritrean authorities had "the means and the inclination" to monitor such activities at a demonstration outside their embassy, or that they would be able to identify the appellant from photographs of the demonstration. In my judgment, and without disrespect to what is a specialist tribunal, this is a finding which risks losing contact with reality. Where, as here, the tribunal has objective evidence which "paints a bleak picture of the suppression of political opponents" by a named government, it requires little or no evidence or speculation to arrive at a strong possibility – and perhaps more – that its foreign legations not only film or photograph their nationals who demonstrate in public against the regime but have informers among expatriate oppositionist organisations who can name the people who are filmed or photographed. Similarly it does not require affirmative evidence to establish a probability that the intelligence services of such states monitor the internet for information about oppositionist groups. The real question in most cases will be what follows for the individual claimant. If, for example, any information reaching the embassy is likely to be that the claimant identified in a photograph is a hanger-on with no real commitment to the oppositionist cause, that will go directly to the issue flagged up by art 4(3)(d) of the Directive
5. A more recent analysis of this kind of argument is to be found in WAS (Pakistan) v SSHD [2023] Imm A.R 1723 where the following was said by Elisabeth Laing LJ at [84]:
I paraphrase a question which Phillips LJ asked Mr Holborn in argument, 'What evidence did the UT expect?' It is very improbable that there would be any direct evidence of covert activity by the Pakistani authorities, whether it consisted of monitoring demonstrations, meetings and other activities, monitoring social media, or the use of spies or informers. I do not consider that Sedley LJ was suggesting, in paragraph 18 of YB (Eritrea), that a tribunal must infer successful covert activity by a foreign state in the circumstances which he described. He was, nevertheless, making a common-sense point, which is that a tribunal cannot be criticised if it is prepared to infer successful covert activity on the basis of limited direct evidence. Those observations have even more force in the light of the great changes since 2008 in the sophistication of such methods, in the availability of electronic evidence of all sorts, and in the ease of their transmission. To give one obvious example, which requires no insight into the covert methods which might be available to states, it is very easy for an apparently casual observer of any scene to collect a mass of photographs and/or recordings on his phone, without drawing any adverse attention to himself, and then to send them anywhere in the world.
6. The appellant bears the burden of substantiating the primary facts of a protection claim. The standard is a reasonable degree of likelihood (sometimes referred to as a realistic possibility).
Appeal to the Upper Tribunal
7. At the remaking hearing, I heard oral evidence from the appellant and his witness, who I will refer to as ‘Mr I’, a leading figure in the Northern England chapter of IPOB. At the conclusion of the hearing, I heard submissions from both parties. I address any evidence or submissions of significance in the discussion section below.
Discussion
8. The parties were agreed that the appeal should be allowed on Refugee Convention grounds if I found, to a reasonable degree of likelihood, that the Nigerian authorities might already be aware of the appellant’s conduct in the UK on behalf of IPOB. This would be irrespective of the appellant’s reasons for engaging in this conduct because it was agreed that the Nigerian authorities would not overlook such activity on the basis that it may have been pursued disingenuously or for social reasons.
9. The starting point for my analysis must be the relevant findings of fact preserved in the error of law decision from the set aside FtT decision. The appellant was found to be a witness generally lacking in credibility. However, Mr I, who gave oral evidence before the FtT as he did before me, was found to be a truthful witness. The FtT judge reached the following preserved findings of fact at [24] of his decision:
I accept it is reasonably likely he is a member of IPOB as I have no real reason to doubt the evidence of [Mr U] and [Mr I] both of whom attended to have their evidence tested. […] Despite the pictures not being dated they do show the Appellant participating on various occasions at events. I am satisfied that his involvement only began in 2016 given the evidence of [Mr U] and [Mr I]. I am satisfied it was opportunistic and to develop a social life rather than due to any genuinely held political beliefs given the delay in claiming asylum, use of a passport to which he was not entitled, and use of a false name all of which undermine his credibility.
10. The FtT judge did not doubt that the appellant had participated in the political events he claimed to be involved in and had done so since 2016. I have considered the supporting evidence and note that the appellant can be seen to be handing out leaflets to passers-by on Parliament Square while wearing a distinctive Biafran independence cap. In other pictures he can be seen to be at the forefront of a gathering, at the same location, of Biafran independence activists carrying several large flags in Biafran colours. Additional pictures show him in prominent positions among protestors in Manchester and outside the Kenyan Embassy in London. This evidence must be considered in tandem with the narrative evidence of Mr I who attended the remaking hearing as a witness. The appellant and Mr I were supported by approximately 10 members of the Biafran independence movement. In unchallenged observations made in his witness statement, Mr I described the appellant as a “known and long-standing member of IPOB” and “someone who has been active for many years and is well known within the movement” [para 12]. He further stated that “his long involvement, senior position, and public visibility make him easily identifiable to the authorities”.
11. The parties invited me to consider the Country Policy and Information Note on Nigeria: Separatist groups in the South-East of March 2022. Section 10.5 addresses the monitoring activities of the Nigerian authorities both within their controlled territory and beyond. Paragraph 10.5.1 states that there is no information to support “capability, presence and activities of the intelligence services in the UK”. However, the guidance, drawn from various reputable international sources, goes on to point out the extent to which the Nigerian authorities have used intense surveillance of their own citizens in Nigeria and have resorted to blocking internet services. At 10.5.7 and 10.5.9, the following observations were made:
[10.5.7] Freedom House’s Freedom on the Net 2021, covering events in Nigeria between June 2020 and May 2021, based on a number of sources, observed:
‘In December 2020, an investigation by the Citizen Lab identified the Defence Intelligence Agency, Nigeria’s primary military intelligence agency, as a likely customer of the surveillance company Circles. The company—which is affiliated with the private Israeli firm NSO Group, known for its Pegasus spyware—provides services that allows customers to monitor calls, texts, and cell phone geolocation by exploiting weaknesses in mobile telecommunications infrastructure… Previously, a June 2016 Premium Times investigation found that politicians in Bayelsa, Delta, and Rivers States had purchased spyware from Circles…
[…]
[10.5.9] The FH report also noted, in the context of Nigeria not outside of the country: ‘In October 2019, a Nigerian law enforcement agency disclosed that Nigerian security forces use software from Cellebrite and AccessDataGroup, two companies that provide technology to extract and forensically search data from electronic devices, including devices protected by strong encryption. Forensic search technology was reportedly used to search over 20 computers and phones sized from the Daily Trust when the paper’s editors were arrested in January 2019 for their reporting on military operations in the northeast… Earlier news reports revealed government contracts with the Italian surveillance firm Hacking Team,… as well as the presence of a command-and-control server located within Nigeria… ‘The government’s intent to enhance its surveillance capabilities is reflected in federal budget allocations. Tens of millions of dollars have been set aside since 2018 for various surveillance projects… that apparently fall under the purview of the Office of the National Security Adviser (ONSA) and Department of State Security (DSS). These include tools for social media monitoring, and drones and other mobile surveillance tools… apparently capable of intercepting mobile phone traffic and collecting location data of mobile phone users… The 2021 Executive Budget Proposal once again included funding for surveillance equipment…
[…]
12. While the above country background information refers to the activities of Nigerian intelligence agencies in Nigeria, it does provide an indication of the commitment of the Nigerian state to root out separatist actors and the investment in costly resources to support that effort. As alluded to in the authorities I have cited above, it would be unrealistic to expect the appellant to be able to provide direct evidence of intelligence activities in the UK on behalf of the Nigerian state. The very nature of such activities is that they are closely guarded secrets. However, I must keep in mind the essential quality of the risk assessment I must undertake. At [52] of his judgment in MAH (Egypt) v SSHD [2023] EWCA Civ 216, Singh LJ said this:
It is also well established that the standard required is less than a 50% chance of persecution occurring. Even a 10% chance that an applicant will face persecution for a Convention reason may satisfy the relevant test […]
13. Applying the appropriate threshold to assess the risk of whether the Nigerian authorities might already be aware of the appellant’s activities in the UK, I bear in mind the evidence of his prominent and public-facing involvement in demonstrations, Mr I’s evidence of his profile within IPOB in the UK over the course of a decade and the commitment of the Nigerian authorities to root out such separatist actors. I infer, from the overall circumstances and evidence in the round, that the Nigerian authorities will already be aware of the appellant’s activities on behalf of IPOB and that this will put him at risk of persecution on account of his imputed political opinion if he were to return to Nigeria. It is unnecessary to consider how the appellant might respond under questioning at the point of return or whether he would lie, or withhold information, about his conduct in the UK. This is because I find that he is already at risk on return.
Notice of Decision
On remaking, I allow the appeal on Refugee Convention grounds.

P Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 March 2026