Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-003412
First-tier Tribunal No: PA/51900/2024
LP/10083/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

27th October 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE JARVIS

Between

PY
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms A. Imamovic, Counsel instructed by Spencer West LLP
For the Respondent: Mr D. Simpson, Senior Home Office Presenting Officer

Heard at Field House on 14 October 2026

Order Regarding Anonymity

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

DECISION AND REASONS

Introduction
1. The Appellant has appealed to the Upper Tribunal against the decision of First-tier Tribunal Judge Elliott (hereafter “the Judge”) promulgated on 23 January 2025. Permission to appeal to the Upper Tribunal was granted by the same Judge on 16 July 2025.
2. For completeness the Judge sought to limit the grant of permission to the matters raised in ground 1, ground 2(3)(a) and ground 2(3)(b). The Respondent helpfully and properly accepts in her r. 24 response that the Judge failed to adhere to the Upper Tribunal’s guidance in Safi and others (permission to appeal decisions) [2018] UKUT 388 (IAC) meaning that there was in fact no restriction on the grounds to be argued before the Upper Tribunal.
Relevant background
3. The Appellant’s appeal (along with the appeal of her partner) were heard at the Birmingham Tribunal on 23 December 2024.
4. At §6 the Judge summarised the Appellant’s international protection claim as being based upon a risk of persecution or serious harm at the hands of her ex-husband who had previously subjected her to violence and threatened to kill her should he find her.
5. At §8 the Judge (at (b)) recorded that the Respondent had accepted the Appellant’s claim to have suffered marital difficulties, that she had become estranged from her ex-husband, that she had stopped paying their business suppliers and that her ex-husband had had to borrow money to pay those suppliers.
6. In the following paragraph the Judge recorded the agreed issues to be determined by the Tribunal including whether the Appellant was a member of a particular social group as a ‘member of a family’ under the Refugee Convention.
7. From §§23 to 28 the Judge considered the Appellant’s overall evidence in respect of the claim to have experienced violence at the hands of her ex-husband including the claim that he burnt her leg with an iron.
8. In those paragraphs the Judge explained that they were not prepared to give any real weight to the submitted photographs and noted discrepancies between the accounts of violence given in various parts of the Appellant’s evidence.
9. At §28 the Judge stated that whilst they accepted that victims of domestic violence may find it difficult to discuss past events, this Appellant’s account lacked any real detail, the witness statement was vague about the history of alleged violence and lacked consistency.
10. As part of the Judge’s overall findings they also took into account that the Appellant had first arrived in the United Kingdom on 29 April 2019 (see §29 of the decision). The Judge also took into account the ‘HO minute sheet’ record provided by the Respondent in which it is recorded that the Appellant stated that she had three children and a husband in Malaysia, that the children were being looked after by her husband and grandparents. The notes also recorded that the Appellant jokingly told the Respondent that they should send her back to Malaysia when her prepaid bankcard did not work at an ATM in the airport.
11. At §30 the Judge observed that it was significant that the Appellant denied that she was any under any threat, that she was apparently happy to return to Malaysia and failed to make any mention of being at risk of serious harm from her husband due to any violence towards her or threat to kill her. The Judge noted that this interaction with the Respondent occurred at a time when the Appellant claimed that the violence from her ex-husband was very real and ongoing.
12. Furthermore, the Judge considered that the Appellant returned to the United Kingdom in July 2019 having travelled via Dublin (§31). The Judge noted the Appellant’s claim that she had a job arranged in a factory, that she was collected on arrival to the UK, taken to the factory and in essence held their until she and her partner managed to escape in June 2021.
13. Taking the account at its highest, the Judge concluded that the Appellant had the opportunity to claim asylum in Ireland but did not do so. The Judge recorded the Appellant’s oral evidence that she had travelled onwards from Dublin to Belfast and noted that she had not suggested that she was in the company of an agent who had arranged her travel. The Judge took into account that the Appellant had failed to claim asylum in Northern Ireland or on arrival at the port in England.
14. Furthermore, the Judge took account of the Appellant’s evidence that she had spoken to some solicitors but could not afford the likely cost of making the asylum claim at the time but found it significant that the Appellant did not claim asylum in July 2022 when she was arrested by the Respondent and in fact only claimed after a decision had been made to remove her from the United Kingdom: §32.
15. Additionally, at §33 onwards, the Judge considered a further significant discrepancy in the Appellant’s evidence: when the Appellant arrived in the United Kingdom in April 2019 and was questioned by UK border officials, she said that her hotel accommodation had been booked by her friend Roy (who is Chinese and whom she met in Singapore a very long time ago). The Appellant further stated that they had not met in person for a long time but had remained in contact by telephone; she added that Roy was employed as a chef in the United Kingdom, was born in June 1973 and that his Chinese name was Mr Yao.
16. The Judge contrasted that evidence by reference to the Appellant’s witness statement (at paragraph 6) in which she stated that she met Mr RN (the second Appellant at the appeal hearing) in Singapore a long time ago and that they had remained friends over the years. She referred to Mr RN as her fiancé and it was because she knew that he was living in the UK, and her home situation had become intolerable, that she fled to this country.
17. The Judge compared that to the Appellant’s oral evidence in which she said that she had first met Mr RN in 2019 but had not known him before coming to the UK. When the Appellant was challenged about this evidence by reference to her witness statement, she said that the person she referred to in her statement was a different person (a Mr Chung). The Appellant further denied referring to him as her fiancé, that he was only a friend and that they were no longer in contact (§35).
18. At §36 the Judge concluded that this account was wholly incredible and that it was clear from the Appellant’s evidence, including that the two men had the same name and date of birth, that this was in fact the same person and not two different people as alleged.
19. At §37 the Judge found that the Appellant’s account as to who Roy is and his involvement in her arrival in the UK was totally inconsistent and lacking in credibility.
20. At §38 the Judge concluded that, having considered the Appellant’s evidence in the round, her account was vague and inconsistent. The Judge found that the Appellant’s oral evidence was inconsistent with her witness statement and the account she gave to the Respondent in April 2019.
21. In the same paragraph the Judge took into account and applied the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 and concluded that the Appellant’s claim in April 2019 that she was coming to the United Kingdom (I presume reading back into the judgment: as a visitor) was inconsistent with her current claim that she came to this country to avoid persecution at the hands of her ex-husband. The Judge concluded that section 8(2)(b) should apply.
22. Furthermore, the Judge also found that the Appellant had failed to make an asylum application in Ireland (a safe third country) on arrival in July 2019 when she had a reasonable opportunity to do so contrary to section 8(4).
23. The Judge added that the Appellant also failed to make an asylum claim in the United Kingdom before being notified of the decision to remove her which engaged section 8(5) and she had failed to make an asylum claim prior to her arrest in July 2022 despite having had a reasonable opportunity to do so which engaged section 8(6). In summary the Judge found that these various section 8 factors seriously damaged the Appellant’s credibility.
24. Drawing those threads together the Judge, at §39, found that the Appellant had failed to demonstrate a credible account of events in Malaysia. The Judge accepted that the Appellant’s business had fallen into debt when her marriage failed but did not accept her account (at the lower standard) that she had come to this country to flee persecution from her ex-husband.
25. In the same paragraph the Judge concluded that whether the Appellant was trafficked into the United Kingdom for work or was trafficked once here was not clear although the Judge further noted that the Appellant had received a negative conclusive grounds decision from a Single Competent Authority which the Judge was told was being challenged.
26. The Judge concluded that it was more likely that the Appellant had come to the United Kingdom for work as she had said so in her interview and in oral evidence.
27. Finally, the Judge noted at §40 that the adverse credibility findings made meant the question of risk on return to Malaysia had become academic. The Judge however went on to make further findings in respect of the Appellant’s claim to be part of a particular social group under the Refugee Convention. The Judge finally dismissed the Appellant’s appeal.
28. For completeness, in granting permission to appeal against their own decision, Judge Elliott indicated at §4 of the decision that they may have erred in failing to give sufficient weight to the reports of Andie Tucker and the US State Department.
29. The Judge however did not accept that there were any arguable grounds of challenge against their adverse credibility findings and application of section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.
The error of law hearing
30. At the beginning of the error of law hearing, I heard preliminary submissions from both representatives about the scope of the Upper Tribunal’s consideration of the Appellant’s appeal. As I have noted earlier, the Respondent accepted that the First-tier Tribunal had not lawfully restricted the grounds upon which the Appellant could argue that the decision had been reached unlawfully.
31. Both representatives however also accepted that the Appellant’s appeal effectively boiled down to a challenge to the Judge’s adverse credibility findings. This is because the consequence of the Judge’s adverse credibility findings was that the core features of the Appellant’s claim were disbelieved. The Appellant has not raised a ground of appeal challenging the Judge’s decision on the alternative basis that the appeal should still have been allowed even where the Appellant’s core claim had been rejected.
32. Ultimately then the other grounds of appeal advanced by the Appellant were subsidiary to the core argument that the Judge had materially erred in their credibility findings.
33. I heard oral submissions from Ms Imamovic who relied upon the written grounds and her skeleton argument dated 6 October 2026. In essence Ms Imamovic emphasised that the Judge’s findings were materially undermined by the failure to give proper account to the Appellant’s underlying claim that she was a traumatised victim of domestic violence, as well as a potential victim of trafficking/modern slavery.
34. Ms Imamovic posited the potential for reasonable explanations which could explain, for instance, the evidence given about Mr RN/Roy in the Appellant’s witness statement. She speculated that this could have arisen due to a mistake by the Appellant or misunderstanding by the person drafting the statement.
35. In response Mr Simpson asserted that the Judge’s findings were open to them and that sufficient attention had been given by the Judge to the Appellant’s claim that she had been a victim of domestic violence at the hands of her ex-husband.
36. In reply, Ms Imamovic submitted that the Respondent’s own guidance on assessing credibility listed variable ways in which a person’s evidence could be impacted by trauma. In answer to the Tribunal’s question, Ms Imamovic submitted that, whilst the Respondent had conceded the credibility of the Appellant’s account of marital difficulties at paragraph 8(b) of the refusal letter, the Respondent had however distinctly not accepted the Appellant’s claim to have been a victim of domestic violence.
37. Ms Imamovic went on to accept that Appellant’s counsel at the First-tier Tribunal hearing (whom I was told has sadly passed away) did not appear to argue that the Tribunal should treat the Appellant as a vulnerable witness and acknowledged that the Appellant had not provided medical evidence other than the rule 35 report. Ms Imamovic otherwise submitted that the Judge was still under a duty to consider the Appellant’s vulnerability as well as the Respondent’s guidance about the impact of trauma on the reliability of an account.
38. At the end of the submissions, I formally reserved my judgment.
Findings and reasons
39. In my judgment there is no merit in the Appellant’s argument that the Judge erred by failing to take into account the Respondent’s guidance on the assessment of credibility when that document was not referred to by Counsel at the First-tier Tribunal hearing either in the skeleton argument from 6 December 2024 or in his submissions. The guidance is for the benefit of the Respondent and does not bind the Tribunal; it cannot be argued that the Judge was under any duty to make express reference to it or take it into account.
40. I further reject Ms Imamovic’s own explanations for discrepancies in the evidence including the witness statement and/or other explanations for the Appellant’s behaviour including the delay in claiming asylum which were not part of the Appellant’s evidence or otherwise advanced to the Judge by Counsel on behalf of the Appellant during the First-tier Tribunal hearing. Again it is clear that a Judge does not err in law by failing to take into account explanations or evidence which were not put before them in the first place. I reject the Appellant’s submission at ground 2(a) that there are “well-established reasonings” in respect of delayed disclosure meaning that a Judge would be duty bound to engage with them even though not relied upon by the Appellant.
41. There is however more strength in the Appellant’s assertion that the Judge did not lawfully apply section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 or clearly engage with her explanations in her witness statement for the failure to claim asylum on arrival in the United Kingdom in 2019 and/or in Ireland.
42. I have taken account of the relevant paragraphs in the Appellant’s witness statement as referred to by the Appellant in her grounds of appeal and in Ms Imamovic’s skeleton argument for this hearing.
43. Overall, I am just about persuaded that the Judge erred in their consideration of the sub-sections of section 8 identified at §38 of the judgment.
44. It is evident that the Judge did not expressly engage with relevant explanations advanced by the Appellant for, especially, her delay in claiming asylum which included her ignorance of UK immigration law (paragraph 5 of the 5 December 2024 witness statement) and her evidence (at paragraph 17 of the same) that she was stopped at London Heathrow Airport by an Immigration Officer and asked about her black eye; that she denied being beaten by her husband due to her fear of being denied entry to the UK. I am mindful that this detail is not included in the HO minute sheet summarising the encounter between the Respondent and the Appellant, but it was nonetheless part of the Appellant’s explanation for not claiming asylum in 2019 which the Judge did not directly engage with.
45. I also see some force in the argument advanced in the grounds that the Judge centred only upon the reasonable opportunity to claim asylum in Ireland without expressly engaging with the Appellant’s explanation for why she did not, meaning that the Judge did not consider all of the evidence relevant to the assessment of what weight should be given to the adverse behaviour (under the section) contrary to the Court of Appeal’s judgment in JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878 at §§20 & 21.
46. The latter parts of §38 contain the same concentration upon the behaviour but not the underlying explanation given for that conduct by the Appellant, I find again that this is not consistent with the wording of the section or the guidance in JT.
47. I have considered whether these errors are material in light of the other significant adverse findings made by the Judge, some of which touch upon section 8 issues.
48. Ultimately, I have concluded by a narrow margin, that the Judge’s overall assessment of the Appellant’s credibility did give significant weight to the application of section 8 and that there is insufficient engagement with the Appellant’s evidence as to the reasons for that behaviour. I therefore find that the Judge’s errors in that assessment are ultimately material to their conclusion that the Appellant was not truthful in her account.

Notice of Decision
49. The decision of the First-tier Tribunal Judge is set aside in its entirety.
50. The appeal is remitted to the First-tier Tribunal for full rehearing, not to be before First-tier Tribunal Judge Elliott.

I Jarvis

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

23 October 2026