Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: Case No: UI-2025-003986
First-tier Tribunal No: PA/56320/2024
LP/01254/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 5 June 2026

Before

UPPER TRIBUNAL JUDGE LANE

Between

BI
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:

For the Appellant: Mr Greer
For the Respondent: Dr Ibisi, Senior Presenting Officer

Heard at Manchester Civil Justice Centre on 24 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
1. The appellant is a male citizen of Namibia. He appealed to the First-tier Tribunal against a decision of the Secretary of State dated 1 March 2024 refusing his application for international protection. The First-tier Tribunal dismissed his appeal and the appellant appealed to the Upper Tribunal. By a decision promulgated on 10 December 2025, Upper Tribunal Judge Landes set aside the First-tier Tribunal’s decision for error of law. She also made the following directions regarding the remaking of the decision in the Upper Tribunal. I have included the preceding paragraphs of her decision by way of explanation:
4. The appellant makes two representations so far as the proposed preservation of findings is concerned. Firstly, in respect of [34] saying that the preserved finding should include that the appellant has been living as an openly bisexual man in the UK from March 2024. There may be a misunderstanding. I did not propose any findings at [34] be preserved, given one of the errors of law concerned the FTJ seeking objective support that the appellant had lived openly as a bisexual man in the UK. In any event it is not appropriate that there be a preserved finding at [34] as suggested. The FTJ did not find that the appellant had been living as an openly bisexual man for a year, she simply repeated the appellant’s claim, “he stated that he has only been living as an openly bisexual man in the UK for the last year”. In fact she was not satisfied that he did live an openly bisexual lifestyle, and whether the appellant is living an openly bisexual lifestyle in the UK will have to be decided at the remaking hearing.
5. In respect of my preliminary view that the findings at [38] of the FTJ’s decision as set out at [10] below should be preserved, the appellant says that the findings can only be reflective of the appellant’s actions and intentions at the date of the hearing in March 2025 and so the appellant may be able to evidence change at the date of the resumed hearing. That is right; it should not however lead to the conclusion that the judge’s findings should not be preserved, simply that they are limited to the evidence she had at the date of the hearing. I consider that caveat should apply to the preserved findings at [33] as well in case the country position changes.
6. The preserved findings are therefore the following:
(i) The appellant does not have a well-founded fear of his siblings due to the inheritance matter; [24]
(ii) It is an agreed finding that the appellant is a bisexual man [27];
(iii) As at March 2025:
1) Most openly gay/bisexual men in Namibia would most likely encounter discrimination and be affected by hostile rhetoric directed against the LGBT+ community [33];
2) There had been 6 murders of queer individuals following the Supreme Court ruling in favour of same sex marriages conducted abroad, and that, coupled with public hostile rhetoric, must be really frightening for the LGBT+ community [33];
3) Activists who openly campaigned for LGBT+ rights may be at increased risk of serious harm in Namibia [33];
(iv) As at March 2025:
1) There was no satisfactory evidence that the appellant intended to form a lasting relationship/marriage with a man [38];
2) The appellant was not an LGBT+ rights activist [38].
2. At the resumed hearing, I heard oral evidence from the appellant. I have adopted the findings of fact preserved by Upper Tribunal Judge Landes. As regards the fresh evidence given by the appellant, the burden of proof remains on him. I have applied the legal framework stated at [11-13] of the First-tier Tribunal’s decision (no party having indicated that the framework is not accurate) and notwithstanding that the decision has been set aside.
3. The appellant adopted his written statements as his evidence in chief. He confirmed that he is not an activist for bi-sexual rights. He said that he did not want to enter a relationship with another man whilst his immigration status remained uncertain. He also indicated that his primary interest at the present time is playing rugby.
4. The appellant was cross examined by Dr Ibisi, who appeared for the Secretary of State. He said that, if he met the right person, he would marry a woman. He did ‘not have time’ to attend Gay Rights events. He would not live openly in a society which discriminated against bi-sexual individuals.
5. Dr Ibisi submitted that nothing had changed since the time of the First-tier Tribunal’s decision. family and friends knew then that the appellant is bi-sexual and they knew now. Mr Greer submitted that the appellant as an ‘out’ bi-sexual man would be at real risk in Namibia.
6. I found the appellant to be a truthful witness; indeed, Dr Ibisi did not seek to submit otherwise. Both parties agree that he is bi-sexual. I find that he is not a gay rights activist and has no present desire to enter a serious relationship with another man. The appellant stated that he would be happy to enter a relationship with a woman and that he does not participate in the gay rights community or scene in the United Kingdom. The only part of his oral evidence which I consider to be unpersuasive was that in which he said that he would live openly in Namibia were it not for the discrimination he would face there and that he had not sought a committed relationship with a man whilst living in the United Kingdom because he had no secure immigration status. Those statements seemed to be odds with the life in the United Kingdom which he described in his oral evidence. I find that the appellant would have entered a serious relationship with a woman or a man had he met the right person and that he would have done having no regard to his current immigration status. Considering his evidence as a totality, I find that the appellant would live in a similar way in Namibia; I do not accept that his behaviour would be different in Namibia on account of a fear of discrimination or hostility. I find that the appellant has lived in the United Kingdom entirely as he would choose to; going to the gym, playing rugby (which clearly means a great deal to him) and engaging in relationships with both men and women as these might arise in the ordinary course of his everyday life. I accept that he has been to gay clubs in Norwich and Chester but find that he has done so occasionally and casually and without any intention to find a lasting same sex partner. I find that the appellant is comfortable with the fact that only his family and friends know of his sexuality. That arrangement suits his temperament which is naturally rather reserved. It is an arrangement which I find the appellant would continue in Namibia. It is on the basis of those findings and the preserved findings of the First-tier Tribunal that I have considered whether the appellant faces a real risk of ill treatment on return to Namibia.
7. The primary background material remains Country Policy and Information Note : Namibia: Sexual orientation and gender identity and expression (Version 3.0) October 2024 (‘the CPIN’). The evidence cited in the CPIN dos not paint a consistent picture of the treatment of gay and bi-sexual men in Namibia. Whilst there is some evidence that LGBT+ individuals face ‘widespread discrimination ’(9.2.1) and occasionally violence and an ‘anti same-sex marriage bill’ had been brought before parliament, the Supreme Court had in 2023 recognised same-sex marriages performed abroad for immigration purposes. There is evidently a tension within the state authorities in Namibia between elements of the judiciary and executive which are no wholly hostile to LGBT+ rights and factions which seek to outlaw gay marriage. However, the fact that those factions oppose gay marriage (which has only found acceptance in Western European countries in recent years), rather than homosexual activity more generally, does not suggest that the appellant, who I find is temperamentally disinclined to reveal his sexuality beyond friends and family and who I find would not refrain from a more open expression of his sexuality for fear of discrimination or ill treatment, would encounter difficulties from those authorities. The CPIN indicates that the level of open violence towards gay individuals exists but is not ubiquitous; gay individuals may suffer isolated indiscriminate violence in any the majority of societies and the appellant’s natural discretion as regards his sexuality would further reduce any risk below the threshold of ‘real risk’.
8. If the level of threat from the authorities in Namibia does not cross the threshold of risk for an individual having the appellant’s characteristics, would he at risk from the community in general? The CPIN contains the results of an Afrobarometer study from 2024 at 9.1.3. The study used questions that probed public feelings about having members of certain groups as immediate neighbours. The results are based on interviews conducted on a ‘nationally representative, random, stratified probability sample of 1,200 adult Namibians between 14 March and 2 April 2024. Participants were asked: ‘For each of the following types of people, please tell me whether you would like having people from this group as neighbours, dislike it, or not care. For the group ‘Homosexuals’, a majority (50.9%) stated that they ‘would not care’ (32.2%), would ‘somewhat like’ or ‘strongly like’ to have a homosexual individual as a neighbour whilst 30.4% would ‘strongly dislike’ to have such a neighbour. These results are rather striking and appear to reinforce the evidence elsewhere in the CPIN (9.1.1 and 9.1.2) that ‘there has been a gradual shift in public opinion towards LGBTQ+ rights in Namibia’ and that Namibia had been ranked as ‘the third most tolerant country in Africa in terms of homosexuality.’
9. Section 31(2) of the Borders Act 2022 provides that persecution must be ‘sufficiently serious by its nature or repetition as to constitute a severe violation of a basic human right, in particular a right from which derogation cannot be made under Article 15 of the Human Rights Convention …’ ’ I find that, whilst discrimination and isolated acts of violence against LGBT+ individuals do occur, the state authorities and the community in general do not present to an individual having the characteristics of the appellant a threat which crosses that threshold by its nature or repetition. In the circumstances, I remake the decision dismissing the appellant’s appeal against the Secretary of State’s decision.

Notice of Decision
I have remade the decision. The appellant’s appeal against the decision of the Secretary of State dated 1 March 2024 is dismissed.

C. N. Lane

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 10 May 2026