Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2025-003511

First-tier Tribunal No: PA/02213/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 17th of October 2025

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN

Between

IT (NAMIBIA)
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In person
For the Respondent: Ms A Ahmed, Senior Presenting Officer

Heard at Field House on 3 October 2025

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. The appellant appeals a decision of the First-tier Tribunal to refuse her asylum and human rights (articles 3 and 8 ECHR) appeal. The decision was sent to the parties on 19 May 2025.
2. The appellant attended the hearing in person by video link.
Anonymity
3. The First-tier Tribunal declined to order anonymity in this international protection appeal but gave no reasons for adopting this approach. There was no express consideration of paragraphs 22 and 23 of the First-tier Tribunal Presidential Guidance Note No. 2 of 2022 concerned with anonymity in protection appeals. Additionally, there was no engagement with the respondent’s acceptance that the appellant had been subject to sexual assault and suffered mental and physical abuse.
4. Consequent to the grant of permission to appeal, Upper Tribunal Judge Landes issued an anonymity order by a decision dated 12 September 2025. Neither party requested that the order be set aside.
5. I observe that the appellant seeks international protection and at the present time I consider on balance that her right to a private life, as protected by article 8 ECHR, outweighs the right of the public to know that she is a party to these proceedings. The latter right is protected by article 10 ECHR. Consequently, I do not set aside the anonymity order issued by Upper Tribunal Judge Landes.
6. The anonymity order is confirmed above.
Brief Facts
7. The appellant is a national of Namibia and presently aged 26. She lived with her mother until her mother’s death in December 2018. She had previously left school to care for her mother.
8. To avoid homelessness, she was taken in by an uncle, who initially permitted her to work. After a few weeks, her uncle raped her. A regular pattern of rape and abuse commenced. The appellant refers to these events as unbearable.
9. She ran away from the uncle’s home in January 2020 and began sleeping rough. She was reduced to begging for food. After a period, she considered that she could no longer survive on the streets and was reduced to returning to her uncle where she was again subjected to rape and abuse.
10. She reported the circumstances of her predicament to the Herero Traditional Authority, but it considered the matter to be a domestic one and did not intervene. She was informed by the Authority that she should return to her uncle and his home.
11. Having returned, she later ran away for a second time and was again reduced to sleeping on the streets and begging. Consequent to her experiences, she decided that she could not cope and returned to her uncle. The cycle of rape and abuse recommenced.
12. She ran away for a third time in August 2020, again sleeping rough and begging for food. At this time and then unknown to her she was pregnant. She woke up in considerable pain in December 2020 and returned to her uncle’s home as she wanted a roof over her head. He continued to rape and abuse her, even though she remained in pain. After a time, she became aware of her pregnancy.
13. By January 2021, her condition was so poor that she walked to a hospital where she was informed that both she and her unborn child were in danger. After medical intervention, her child was born premature and was placed in an incubator. She was allowed by the hospital to stay with her baby for five months. She was then required to leave, and with nowhere else to go she returned to her uncle. Though she was breastfeeding, he would beat her and deny her food. She had difficult producing milk. The cycle of rape and abuse continued. Because of her baby, the appellant did not feel that she could leave the house.
14. In December 2022, someone who knew her mother took her to an aunt of whom she was previously unaware. She explained her circumstances to her aunt, who agreed to care for her child. The appellant then left Namibia in late December 2022 and travelled to Botswana before travelling to the United Kingdom.
15. The respondent refused the appellant’s application for international protection by a decision dated 5 April 2024. I observe that the respondent accepted that the appellant had been sexually assaulted by her uncle and had suffered mental and physical abuse. The respondent also accepted that the appellant had given birth to her child who was now being looked after by an aunt.
16. The respondent did not accept that the appellant had a well-founded fear of persecution, observing that the uncle is a non-state actor and did not have any power or influence over the authorities in Namibia. In any event, though not accepting that she feared her uncle or that he intends to harm her, the respondent considered that sufficiency of protection and internal relocation were available to her.
Decision of the First-tier Tribunal
17. The appeal came before the First-tier Tribunal sitting at Hatton Cross on 28 March 2025. The appellant attended and gave evidence. She was unrepresented. The respondent was represented by a Home Office Presenting Officer.
18. The First-tier Tribunal refused the appellant’s appeal, making several adverse findings as to credibility.
Grounds of Appeal
19. The appellant did not have the aid of a legal representative when drafting her grounds of appeal, which primarily identify her challenge as one directed to a failure by the First-tier Tribunal to consider the evidence before it with anxious scrutiny.
20. First-tier Tribunal Judge Mulready granted the appellant permission to appeal by a decision dated 23 June 2025.
Analysis
21. At the outset of the hearing, I raised with Ms Ahmed an additional ground of appeal that was arguably obvious on the face of the papers. My observation was made in accordance with the Court of Appeal judgment in Secretary of State for the Home Department v George [2024] EWCA Civ 1192; [2025] 1 WLR 1025, at [75] where the Court of Appeal considered the “Robinson” obvious principle enunciated in R v Secretary of State for the Home Department, ex parte Robinson [1997] EWCA Civ 3090; [1998] QB 929. The Court of Appeal confirmed that the Robinson obvious point was limited to points of refugee law which favour a person who claims to be a refugee, and which are “obvious” and arguable with “strong prospects of success”. Elisabeth Laing LJ confirmed that the reason for the principle is that it is necessary for the United Kingdom to comply with its obligations under the 1951 UN Convention on the Status of Refugees.
22. The First-tier Tribunal ought properly to have noted that the appellant was unrepresented before it and to have ensured that it adequately considered whether she was vulnerable. There was no consideration. Observing the appellant’s stated personal history, addressed above, and the concessions made by the respondent as to elements of this history, I am satisfied that there was a material failure by the First-tier Tribunal to consider whether, consequent to the accepted fact that the appellant is a victim of sexual assault, she is a vulnerable person. There was no consideration by the First-tier Tribunal of the guidance of the Court of Appeal in AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123; [2018] 2 All ER 350, at [21]-[22]. Additionally, there was no consideration of the Joint Presidential Guidance Note No. 2 of 2010 “Child, vulnerable adult and sensitive appellant”.
23. The failure by the First-tier Tribunal to consider whether an unrepresented victim of sexual assault and abuse is vulnerable is a material error of law.
24. I observe that having failed to consider relevant guidance and to assess whether the appellant was vulnerable, the First-tier Tribunal made adverse findings as to elements of her stated history of escaping sexual assault, namely as to her belief that she was required to return to her uncle’s home because of the destitute conditions in which she found herself. It was materially erroneous for the First-tier Tribunal to assess the appellant’s credibility on this issue without first considering the impact of her vulnerability upon her evidence.
25. The material error in respect of the vulnerability assessment flows into the article 8 ECHR proportionality assessment.
26. Having been provided time to consider this issue, Ms Ahmed confirmed the respondent’s agreement that the failure to consider vulnerability was a material error of law.
27. In the circumstances the only appropriate course is to set aside the decision of the First-tier Tribunal in its entirety. The findings of fact made are clearly infected by the failure to assess at the outset whether the appellant is vulnerable for the purpose of the proceedings. Whilst ultimately this assessment will be for a judge considering this appeal at a future date, it would appear on the face of the papers that the appellant is vulnerable as the victim of serious sexual assault and abuse.
28. I take this opportunity to make further observations in respect of concerns arising from the First-tier Tribunal’s decision. There was no clear identification of the applicable standard of proof. I note the appellant’s application for international protection was made on 2 January 2023 and so after sections 31 to 36 of the Nationality and Borders Act 2022 came into force: JCK (s.32 NABA 2022) (Botswana) [2024] UKUT 100 (IAC). Whilst there is no requirement that there be express reference to these sections, it must be possible to read the application of the relevant standard in a decision. That has not proven possible in this decision.
29. Secondly, there was no assessment as to whether the appellant fell to be considered under one of the five reasons established by the 1951 Refugee Convention.
30. Thirdly, there was no separate consideration of the appellant’ human rights (article 3 ECHR) appeal.
Resumed Hearing
31. The material errors identified above are fundamental, and there has to date been no adequate consideration of the appellant’s appeal. In the circumstances, the only proper course is for this matter to be remitted back to the First-tier Tribunal. Ms Ahmed agreed.
32. An issue arose as to the most appropriate venue. The appellant has recently moved to the southwest of England and the most appropriate First-tier Tribunal Hearing Centre to hear her appeal is Newport. The appellant indicated that she was content for the transfer of her appeal to Newport.
33. The appellant is currently pregnant and experiencing difficulties that presently impact upon travel. It may be that the First-tier Tribunal may consider the appropriateness of the appeal hearing taking place remotely. That is a matter for the First-tier Tribunal and not this Tribunal.
34. In the circumstances, to aid the First-tier Tribunal and the parties. I direct:
i. Upon transfer to the First-tier Tribunal sitting in Newport, this matter is to be listed for a case management hearing.
ii. The appellant is permitted to attend the case management hearing remotely.
Decision and Reasons
35. The decision of the First-tier Tribunal sent to the appellant on 19 May 2025 is subject to material error of law. It is set aside in its entirety.
36. The appeal is remitted to the First-tier Tribunal sitting at Newport.
37. The anonymity order issued by Upper Tribunal Landes on 12 September 2025 is confirmed.

D O’Callaghan
Judge of the Upper Tribunal
Immigration and Asylum Chamber

6 October 2025