Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-004373

First-tier Tribunal No: HU/52762/2023
LH/02854/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 6th January 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE SILLS

Between

SM
(ANONYMITY ORDER MADE)
Appellant
and

Entry Clearance Officer
Respondent

Representation:
For the Appellant: Mr Hussain
For the Respondent: Mr Wain

Heard at Phoenix House (Bradford) on 1 December 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 the decision of the First Tier Tribunal (the FTT Decision) dated 4 June 2025.

2. I have decided to make an anonymity direction. One of the issues in this appeal is the Appellant’s claim that she suffered sexual abuse as a child. As the Appellant is an alleged victim of a sexual offence, it is appropriate to make an anonymity direction.

Background

3. The Appellant is a Zimbabwean national born in 2004. She applied for entry clearance in April 2022 to join her father (the Sponsor) in the UK. The application was refused on 7 February 2023 and the Appellant appealed. The appeal was dismissed on 4 June 2025. The Judge found that the Appellant’s mother had had sole responsibility for the Appellant’s upbringing. The Judge found that there were no serious and compelling reasons which made the exclusion of the child from the UK undesirable. The Judge rejected the claim that the Appellant had disclosed that she had been sexually abused by her stepfather aged 5 and found that the Sponsor was not a credible witness. The Judge found that this was a fabrication and neither witness was credible on this issue. The Judge found that even if the Appellant were suffering from Bipolar Disorder, she was receiving appropriate medical treatment in South Africa where she lived. Whilst the Appellant’s mother had cancer, the evidence did not establish that her mother could not care for the Appellant. The Judge did not accept that there were serious and compelling family or other considerations which make the exclusion of the Appellant from the UK undesirable and so the Appellant did not meet the requirements of the Rules. Any interference with the ECHR Article 8 rights of the Appellant was proportionate. The appeal was dismissed.

4. The Appellant applied for permission to appeal relying on lengthy, inadequately delineated, grounds of appeal. The FTT granted permission to appeal on 19 September 2025. The grant of permission delineates the grounds, granted permission to appeal on limited grounds only, and found it arguable that the Judge had failed to give adequate reasons for adverse findings on matters that were not in dispute.

The Hearing

5. At the hearing before me, I heard submissions from the representatives. I reserved my decision.

Decision

6. I am satisfied that the FTT Decision does contain a material error of law as identified by the Appellant. I find that the Judge acted procedurally unfairly by finding that the claim that the Appellant had been sexually abused by her stepfather was a fabrication, and that both witnesses who gave evidence (the Sponsor and his wife) were not credible on this issue. These findings were procedurally unfair because the Respondent had at no point disputed this claim, and the witnesses were not challenged on this claim at the hearing.

7. The Appellant claimed that she was a victim of sexual abuse in her initial application for entry clearance. The Appellant herself makes the claim in her statement of 5 November 2022 as does the Sponsor in his statement of 6 November 2022. It is raised in the submissions in support of the application. The Appellant submitted evidence that she claims corroborates the account in the form of messages from 2016. The decision under appeal dated 7 February 2023 takes no issue with this claim. The claim is made clearly in the appeal skeleton argument. The claim is made in the Sponsor’s appeal witness statement. The Respondent took no issue with the claim in the Review. So, this was a claim that had been repeatedly asserted by the Appellant and had not been disputed by the Respondent prior to the hearing.

8. Before me, Mr Wain accepted that the Respondent had not challenged that claim at the hearing. Even without that concession, I am satisfied that this claim was not challenged at the hearing. Mr Hussain represented the Appellant before the FTT and the Sponsor was present at the hearing and both have asserted that the credibility of this claim was not challenged at the hearing. The Respondent has not adduced any note of the hearing, and could have applied to obtain a recording of the hearing but did not do so. The FTT Decision itself does not indicate that there was any challenge on this issue at the hearing. Hence, I am satisfied that there was no challenge to the credibility of this claim at the hearing.

9. At the hearing before me, along side his acceptance that there had been no challenge to the claim that the Appellant had been sexually abused by her step father, Mr Wain also accepted that this claim was relevant to the two material issues before the Judge, namely whether there were exceptional and compelling circumstances under the Rules, or whether the decision was proportionate. Mr Wain relied on the case of Tui v Griffiths 2023 UKSC 48 and argued that the exemption to the requirement to cross examine set out at para 62 applied, that the claim was manifestly incredible. I do not accept that the claim can be said to be manifestly incredible. The claim was made in the application for entry clearance and has been maintained since then. There is some limited corroboration. Nothing about the claim itself is manifestly incredible. Hence, I find that the exception relied on by Mr Wain did not apply.

10. I am satisfied that the Judge acted procedurally unfairly. It was unfair of the Judge to find that the Appellant’s claim that she was sexually abused as a child was a fabrication in circumstances where it was raised by the Appellant in the application and maintained since then, it was not disputed by the Respondent prior to the hearing, and there was no challenge to the claim at the hearing. I therefore find that the decision contains a material error of law as it was procedurally unfair and set aside that decision.

11. I have considered whether to retain the appeal in the UT or remit the matter to the FTT bearing in mind paragraph 7 of the relevant Practice Direction. I am satisfied that the procedural unfairness to the Appellant was such as to mean she was denied a fair hearing. That being the case, it is appropriate for the appeal to be remitted to the FTT with no findings preserved.

Notice of Decision

The decision of the FTT contains a material error of law and is set aside.
The appeal is remitted to the FTT to be heard a fresh by a different FTT Judge with no findings preserved.

Directions

1. Withing 4 weeks of the date this decision is promulgated, the Respondent should file and serve a consolidated Respondent’s bundle containing all the evidence the Respondent wishes to rely upon.

2. Withing 5 weeks of the date this decision is promulgated, the Appellant should file and serve a consolidated Appellant’s bundle containing all the evidence the Appellant wishes to rely upon.

3. The appeal should be listed for hearing on the first available date six weeks after the date this decision is promulgated, at Taylor House, with a time estimate of 2 hours.

Judge Sills

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

19 December 2025