Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003744

First-tier Tribunal No: PA/51066/2024
LP/12490/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

19th November 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE Ó CEALLAIGH KC

Between

OCO
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Bustani of counsel, instructed by MyUKVisas
For the Respondent: Ms Everett, Senior Home Office Presenting Officer

Heard at Field House on 18 November 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 is a national of Nigeria. The appellant’s case is that her husband is a political activist who faced adverse attention from the Nigerian authorities. The appellant herself claims to fear persecution as a result.
2. On 13 December 2021 the respondent refused the appellant’s protection claim.
3. On 2 May 2025 the appellant’s appeal against the respondent’s decision to refuse her protection claim was dismissed by First-tier Tribunal Judge Scullion. By these proceedings the appellant appeals that decision.
4. Although the appeal was initially resisted by Ms Everett she ultimately accepted that the determination could not stand and must be remitted for rehearing.
Grounds of appeal
5. The grounds of appeal are dated 14 May 2025 and were settled by counsel (not Ms Bustani). They may be summarised as follows:
a. Ground 1: The FTTJ erred in law by failing to take into account a material factor, specifically the appellant’s condition at the time of her interview. In particular, the appellant was interviewed 11 days after her baby was born. The Equal Treatment Bench Book provides inter alia that in such circumstances a woman should not be expected to attend court, and should not be expected to have to provide medical evidence that she cannot attend. Her self-declaration that she was fit to be interviewed, and the lack of medical evidence that she was not, was not a proper basis on which to reject her explanation for errors she made in interview.
b. Ground 2: The FTTJ erred in law in treating a letter from the Oodua People’s Congress as “either fraudulent or… written to order”. This was because: (i) the FTT had failed to consider this evidence in the round as required by Tanveer Ahmed [2002] Imm AR 318 (starred); (ii) the FTTJ had not applied the correct burden of proof; (iii) the FTTJ was not entitled to take judicial notice of the fact that there are “high rates of fraud in Nigeria”; and (iv) while the document was written to order, i.e. at the appellant’s request, that could not rationally be considered to undermine her case that it was genuine.
c. Ground 3: The FTTJ gave weight to immaterial matters and/or failed to give adequate reasons with regard to her treatment of the behaviour of the Nigerian authorities. In particular, it is said that the FTTJ erred in law in disbelieving the appellant’s account because she could not explain why the Nigerian authorities had not arrested the appellant’s husband at the hospital. The FTTJ should have considered whether the appellant’s account was reasonably likely to be true.
d. Ground 4: The FTTJ erred in drawing adverse inferences from the appellant’s failure to obtain documentary evidence in respect of her husband’s hospitalisation. There was no reason to believe that such evidence should be readily available to the appellant or could reasonably have been obtained.
e. Ground 5: The FTTJ erred in failing to take into account that the appellant had been previously ill-treated by the Nigerian state when deciding that she would not be at risk on return.
6. Permission to appeal was refused by First-tier Tribunal Judge Chohan on 11 July 2025. However the application was renewed.
7. Permission was granted by Upper Tribunal Judge Perkins on 15 September 2025. UTJ Perkins was “very concerned” by the FTTJ’s dismissal of the reason given by the appellant for omitting a significant answer at interview i.e. that she had given birth 11 days earlier and was trying to breastfeed during the interview. The UTJ considered that the findings on credibility based on inconsistencies arising from this interview were key to the FTTJ’s reasoning. He considered moreover that it was arguable that the FTTJ had applied the wrong standard of proof to past events. He nevertheless considered that some explanation would be required as to why the appellant would be unable to reestablish herself in Nigeria.
8. The respondent prepared a Rule 24 response dated 22 October 2025 in which she supported the decision of the FTT.
9. The appellant prepared a skeleton argument in advance of the hearing, dated 11 November 2025, which reiterated the grounds on which permission was granted.
Hearing
10. At the outset of the hearing I brought the parties’ attention to the Home Office policy “Asylum Interviews”. The version that was in force when the appellant was interviewed was version 9.0. which provides as follows:
“For claimants who have given birth, you must not arrange interviews until at least 6 weeks after the birth. You should consult with the claimant or legal representatives and if there are health concerns for the mother or baby, you should postpone the interview until they are well enough, but you must obtain medical evidence from one of the bodies or individuals listed above to support any further delay.”
[Emphasis added]
11. Neither party was aware of this policy, though Ms Everett was aware of the practice of not interviewing for at least six weeks after a woman has given birth. I rose to allow the parties to consider the policy and whether it had any implications for the present proceedings.
12. On the resumption of the hearing Ms Everett conceded that she could not continue to defend the determination. It was her view that the appellant required permission to amend her Ground 1 to challenge the failure of the FTT to have regard to the fact that the interview was carried out in breach of policy (the Equal Treatment Bench Book not being directly applicable). However she indicated that she would not oppose such an application.
13. Ms Everett accepted moreover that, as UTJ Perkins had indicated granting permission, the findings in respect of the inconsistencies in the interview were critical to the determination’s reasoning. She accepted in terms that, at a minimum, an FTTJ would need to be very cautious indeed before placing any weight on inconsistencies arising out of an interview conducted in such circumstances. She did not seek to defend the determination and was content for it to be remitted.
14. In the circumstances Ms Bustani applied to amend her grounds of appeal to include as part of Ground 1 that:
“The FTTJ erred in law in failing to take account of the fact that the appellant’s interview was conducted in breach of the Home Office policy “Asylum Interviews” which expressly forbids women being required to undergo interviews within six weeks of giving birth.”
15. I granted that application. I agree that there is a material error of law and that the matter must be remitted for a de novo hearing.
16. Ms Everett accepted that the matter must be remitted and did not seek to defend the determination on any other basis. In my view she was clearly correct to do so.
17. The findings on the appellant’s credibility are the centrepiece of the determination. As the FTTJ held at [16]:
“I find that the appellant’s asylum claim comes down to the credibility of her account.”
18. It is also clear, as UTJ Perkins considered, that the conclusions in respect of the inconsistencies arising from the asylum interview are critical to the FTTJ’s reasoning.
19. The FTTJ concluded [17] that the fact that the appellant had just had a baby was not a “reasonable explanation” for the mistakes she said she had made in the interview. This was because there was no medical evidence suggesting she was unwell, and she had said she was well enough to be interviewed.
20. I have some considerable sympathy for the FTTJ, who clearly did not have the respondent’s policy drawn to her attention. Indeed as noted above the parties today were unaware of it.
21. Nevertheless, the respondent’s policy not to interview women within six weeks of giving birth has been in place for a long time and is in place for good reason. The importance of an asylum interview cannot be overstated (and indeed is exemplified by the weight the FTTJ placed on it here). Requiring a woman to undergo such an interview just 11 days after giving birth, literally having to breastfeed at the same time, was on any rational view highly likely to give rise to error and procedurally unfair. The fact that the interview was carried out in clear breach of the respondent’s policy was plainly relevant to the weight that could properly be attached to it.
22. Ms Everett was right to accept that an FTTJ would need to be very cautious indeed before placing any weight on inconsistencies arising out of an interview conducted in such circumstances, if any weight at all could properly be attached to them. In the present case the FTTJ placed critical, determinative weight on those inconsistencies. That was in my view an error of law.
23. While UTJ Perkins noted that there remain questions for the appellant to answer in respect of internal relocation and sufficiency of protection even if her primary case is made out, Ms Everett did not seek to persuade me that the accepted error did not vitiate the FTTJ’s findings on those issues. She was right to do so, since the appellant’s credibility is key to whether there remains (or ever was) state interest in her.
24. It follows that the appeal is allowed on Ground 1 as amended. In the circumstances I do not need to address Grounds 2-5.

Notice of Decision
The appellant’s application to amend her grounds of appeal is granted. The decision of First-tier Tribunal Judge Scullion did involve the making of a material error of law. The appeal is allowed and the matter is remitted to the First-tier Tribunal for a full rehearing with no findings of fact preserved.

Greg Ó Ceallaigh KC

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

18 November 2025