Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-004390

First-tier Tribunal No: PA/66392/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 25 February 2025

Before

UPPER TRIBUNAL JUDGE BRUCE
DEPUTY UPPER TRIBUNAL JUDGE O’RYAN

Between

TM
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Schwenk, Counsel instructed by Mamoon Solicitors Ltd
For the Respondent: Mr McVeety, Senior Home Office Presenting Officer

Heard at Manchester Civil Justice Centre on 16 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

1 This is the Appellant’s appeal against the decision of a Judge of the First tier Tribunal dated 2 September 2025, dismissing the Appellant’s appeal against the Respondent’s decision of 24 May 2024, refusing the Appellant’s protection and human rights claims.
2 The Appellant is a national of Botswana and entered the United Kingdom on 30 December 2021 with 6 months entry clearance as a visitor. She overstayed that leave to enter and claimed asylum on 26 October 2023.
3 The Appellant’s protection claim was that she feared serious harm from her former partner, LT. The Appellant stated that she formed a relationship LT in 2014 and they had had a son later that year. The Appellant stated that the relationship grew strained and LT became violent. This became worse from around 2019 and LT was being unfaithful. The Appellant asserted that she was beaten and raped a number of times by LT and had made threats to kill her.
4 On one occasion in 2020 LT was said to have beaten the Appellant and broken her teeth. The Appellant reported the matter to the police. In her protection claim the Appellant relied upon a letter said to be from a police station commander in Gaborone, Botswana, addressed ‘To Whom It May Concern’ and stating that the Appellant had reported that she had been beaten by her boyfriend LT, had been bruised in the face and had broken one of her teeth, and that the case would be referred to customary court for prosecution. The Appellant stated that at this time LT had been arrested and detained for two days but was later released.
5 The Appellant also stated that there had been a dispute over custody arrangements for their son and that LT had applied to the courts in around 2020-2021 to have sole custody of the child. The Appellant stated that the court reviewed his request for custody and the application was denied. The Appellant stated that since she came to the United Kingdom, care of her son had alternated between LT, and the Appellant’s aunt in Botswana.
6 The Appellant stated that she came to the United Kingdom for a visit, but that LT had continued to make threats against her while she was here, and she decided not to return. She said that she delayed making a claim for asylum because she did not know the process.
7 The Appellant asserted that she would not have effective protection available to her in Botswana, and she could not internally relocate, and that her removal from the United Kingdom would result in serious harm to her. Further, the Appellant argued that removal would amount to a disproportionate interference with the family life that she had developed with a new partner in the United Kingdom, OM.
8 The Respondent refused the Appellant’s application in a decision dated 24 May 2024. We consider in more detail below the position adopted by the Respondent in relation to the Appellant’s protection and human rights claims within that letter. However, the Respondent took the position that the Appellant’s removal from the United Kingdom would not amount to a breach of the Refugee Convention or represent an unlawful interference with her rights under Article 8 European Convention on Human Rights, and the Appellant was not entitled to humanitarian protection.
9 The Appellant appealed against that decision, and filed and served a witness evidence and an appeal skeleton argument (‘ASA’). The Respondent in turn provided a Respondent’s review dated 31 May 2025, the parties following the reformed appeal procedures as described in Lata (FtT: principal controversial issues) India [2023] UKUT 163 (IAC).
10 As is apparent from the judge’ subsequent decision dated 2 September 25, no oral evidence was called, by agreement between the parties, and as recorded at paragraph 9 of the judge’s decision. Paragraph 15 of the judge’s decision is also relevant, which we consider in more detail below.
11 The judge dismissed the appeals on the basis that effective protection and internal relocation were available to the Appellant in Botswana. Further, that the Appellant’s removal from the United Kingdom would not represent any unlawful interference with the Appellant’s rights under Article 8 European Convention on Human Rights.
12 The Appellant now appeals against the judge’s decision on the sole ground that the Appellant was subject to procedural unfairness. The Appellant’s grounds of appeal assert that:
“...the parties agreed that there was no dispute between the parties as to the truthfulness of the Appellant claims...”,
but that:
“The tribunal’s findings at [20], [22], and [35], go behind the Respondent’s concessions. The parties were not put on notice that the Tribunal did not accept aspects of the Appellant’s claim which had been accepted by the Respondent. This deprived the Appellant of a fair hearing, and is a material legal error.”
13 Permission to appeal was granted by Judge of the First tier Tribunal Le Grys, in a decision dated 17 September 2025, expressing the view that the ground of appeal was arguable in respect of Article 8, but observing:
“The Appellant will need to demonstrate that any error was material, given that the Tribunal the position in the alternative in any event at [38]. As however, the decision then refers at [42] to little weight being attached to family life established when a person’s immigration status is precarious, whereas s.117B(5) of the 2002 Act refers only to private life, before emphasising again that the genuineness of the relationship and not been shown, is it is at least arguable that the Tribunal has fallen into error in its consideration of family life.”
14 The grant of permission observed that the ground was weaker in respect of the asylum claim, observing that the judge’s findings at [20] and [22] related to sufficiency of protection and internal flight (and, impliedly, that these were the matters that the parties had agreed were for matters for the Judge to determine).
15 The Appellant has filed an application under Rule 15 (2A) Tribunal Procedure (Upper Tribunal) Rules 2008, seeking to admit evidence not placed before the First tier Tribunal. One item of evidence relied upon is a transcript of the hearing before the judge, produced from the official recording of the proceedings by eScribers Ltd. As the challenge to the judge’s decision is in relation to procedural fairness, it is appropriate that we grant permission to the Appellant to rely upon the transcript of the hearing before the judge.
16 The Rule 15(2A) application also contains witness statements post-dating the judge’s decision and the application itself acknowledges that that additional evidence is not relevant to the establishment of any material error of law, but would only become relevant if the judge’s decision was set aside and the appeal re-determined.
Submissions of the parties
17 The matter came before this Tribunal on 16 December 2025. The Appellant’s case is, in summary, that the Respondent made certain concessions as to the credibility of the Appellant’s account, which influenced the position taken by the Appellant (that it was not necessary for her to give oral evidence) and that the Judge erred in law in not respecting the concessions made by the Respondent, resulting in unfairness to the Appellant.
18 We indicated our view that it was necessary to consider in some detail the position adopted by the Respondent from time to time in relation to the Appellant’s case, and to consider the discussion between the parties at the outset of the hearing before the judge. We drew the following matters to the parties’ attention during the course of submissions.
Parties’ positions on the issues prior to the hearing before the judge
19 The Respondent’s decision letter of 24 May 2024 set out at [7]-[8]:
“Material facts I accept
7) Domestic Dispute with (LT).

Material facts I do not accept
8) You have been sexually abused by (LT).”
20 It was therefore apparent that specific elements of the Appellant’s account were not accepted by the Respondent within the decision letter, although no reasoning is given as to why the alleged sexual abuse by LT was not accepted, and there is no clarity as to what the accepted ‘domestic dispute’ comprised.
21 Further, paragraph 10 considers the question of sufficiency protection in the alternative basis that ‘… if the key material facts of your claim had been accepted…’ (emphasis added).
22 Further, paragraph 10(e) of the decision letter, under the heading ‘Protection from persecution...’, the Respondent states:
“The person you claim to fear (LT) is a non-state actor and you have failed to demonstrate that it is reasonably likely they have sufficient power or influence over the authorities in Botswana.”
23 Further, at paragraph 11b of the decision letter, under the heading ‘Internal relocation...’ the Respondent does not accept that LT had power or influence to locate the Appellant within Botswana.
24 It is thus readily apparent that the decision letter itself takes issue with certain elements of the Appellant’s account in relation to her protection claim, including the extent of LT’s power or influence in Botswana.
25 In relation to the Appellant’s Article 8 family life with her new partner OM, the decision letter provides a paragraph 15(b):
“From the information provided it appears that, you have provided no evidence apart from the name of your (new) partner, (OM). You also stated that you had met (OM) 1 year ago. Therefore, it is not considered that (OM) is your spouse, civil partner, fiancé(e) or proposed civil partner, or that you have been living together with (OM) in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application.”
26 The Respondent therefore seems to direct herself only as to whether their particular relationship met the definition of certain types of relationship set out within the immigration rules; the decision letter itself does not assert that there is no genuine or subsisting relationship.
27 The Appellant’s witness statement for the hearing, dated 3 April 2025, asserts at numerous points that her former partner LT had been in the police; he now worked for a bank, and asserted that he had a degree of influence which would mean that the Appellant could not obtain effective protection in Botswana.
28 In the undated ASA filed on behalf of the Appellant, the Appellant’s ‘Schedule of Issues’ asserts that the issues requiring determination were: whether the Appellant’s removal would amount to a breach of Refugee Convention obligations; whether she is entitled to humanitarian protection; whether her removal would be unlawful under s.6 HRA 1998; and whether there is internal relocation available in Botswana. The ASA explicitly accepts that the Appellant was aware that the Respondent did not accept that the Appellant had been sexually abused by LT.
29 The ASA does not make any discreet arguments about Article 8 family life with the Appellant’s new partner.
30 We also consider the Respondent’s review document dated 31 May 25. We are of the view that this needs to be read in sections. The document summarises the Appellant’s Schedule of Issues at paragraphs 3(i)-(v) and then addresses those issues in a ‘Counter Schedule’, which commences at paragraph 5 with a heading ‘Issues i, iv, and v’, which are the Appellant’s protection based issues. It is under that heading that paragraph 10 is found:
“10 The R notes that no credibility indicators were made against the A in the RFRL, therefore, the material facts of the A’s case are not contested. However, the R submits that the A would not be at risk of persecution from her husband on return as she has recourse to both protection and internal relocation. The R relies upon RB pages 6-9 to demonstrate this.”
31 We note that ‘credibility indicators’ have featured in Home Office asylum instructions/guidance for some years and were considered in KB & AH (credibility-structured approach) Pakistan [2017] UKUT 491 (IAC). They are characteristics of an applicant’s account including sufficiency of detail; internal consistency; external consistency; and plausibility which might speak one way or another on the issue of whether an applicant’s account should be treated as credible. It is not clear why the Respondent’s review appears to assert that no ‘credibility indicators’ were made against the Appellant in the refusal letter, when it was clear that certain elements of the Appellant’s account had not been accepted.
32 Notwithstanding a certain lack of clarity in what the Respondent meant by the use of the expression ‘no credibility indicators were made against the A in the RFRL...’, it is apparent that later in the same section of the letter, addressing the Appellant’s protection claim, the Respondent continues to dispute that LT had any power or influence in Botswana (paragraph 14 of the review document).
33 The next section of the Respondent’s review is from paragraph 17 onwards, and purports to address the Appellant’s Schedule of Issues from her ASA, issues ii and iii (being humanitarian protection issues, and issues under the Human Rights Act 1998). This section set out the Respondent’s position on the Appellant’s new relationship: at paragraph 29, the Respondent asserts that no evidence had been produced to demonstrate that the Appellant and her partner were in a genuine and subsisting relationship. It is also to be noted that issues are raised about lack of evidence at paragraphs 31-32, and at paragraph 35, the Respondent does not accept that the Appellant has a genuine or subsisting relationship with her claimed partner.
34 Having drawn these passages to the parties attention during the hearing before us, neither party asserted that we were proceeding under any misapprehension as to the content of the documents.

The hearing before the Judge
35 It is recorded at paragraph 9 of the determination that “ It was agreed that the appeal could proceed on the basis of submissions only and she did not give live oral evidence.”
36 Further, paragraph 15 of the judge’s decision provides:
“As per paragraph 10 of the Respondent’s Review no credibility indicators are confirmed to be made against the Appellant and the Respondent does not dispute the material facts in the Appellant’s case. In the circumstances the parties were agreed that the schedule of issues that falls to be determined in this appeal are restricted to sufficiency of state protection, the scope for reasonable internal relocation and the Appellant’s Article 8 appeal.”
37 The subsequent transcript establishes what was discussed at the outset of the hearing. The following is set out at the top of page 3 of the transcript:
“MR HUSSEIN (the Home Office Presenting Officer): Well, given obviously that there are no credibility issues, so it is not going to be cross examination in reference to credibility. It was more on just sufficiency of protection and internal relocation. So, it is not something that is going to be held towards her credibility. If you wanted to go submissions only, I am happy to make submissions on the Home Office’s position on sufficiency of protection and internal relocation, and we could proceed that way. And then, obviously, there is a bit of Article 8 in there as well. So, yes, that would be the basis of my submission. So, it is not really that the cross examination is going to be affecting the credibility at all, so it is entirely a matter for yourself, Judge.
JUDGE: Well, I mean, arguably it is not a matter for me, because I do not want to kind of, constrain anybody, so - but I mean, by the sounds of it, you are entirely satisfied there is not a credibility issue.
MR HUSSEIN: Yes.
JUDGE: I mean, it does seem to me that the appropriate way is just to deal with it on the basis or submissions. I mean, we know what the profile of the Appellant is and so, I mean, if you are not seeking an opportunity to cross examine - and I think I am taking, from what you are saying, that you do not - then I am content to simply hear submissions.”
38 Mr Greer later purported to summarise the ‘agreed facts’ at page 4:
“MR GREER (Counsel for the Appellant): Yes, Judge, I will seek to persuade you to allow this appeal. It is a case in which the facts are not in dispute. The facts, of course are that this young woman married a slightly older man, who set about abusing her, in a way which is not unusual, sadly, in her country of origin. And that, on the breakdown of their marriage, he leveraged the misogynistic or perhaps chauvinistic court process, in order to get custody of the child. When she complained about him to the police, the police initially arrested him for a short period of time and then released him, and referred to the case to a customary court, rather than taking formal legal action against him. Those are the facts of the case and those facts must inform the tribunal’s decision as to when this woman goes back to that environment, she can now avail herself of state protection.”
39 In relation to Article 8 ECHR the transcript shows that Mr Greer made submissions in support of a finding that the there was a genuine and subsisting relationship; and the Respondent argued that there was no such relationship, specifically arguing that “There is no evidence before us to determine that this is a genuine and subsisting relationship”. In his final reply, Mr Greer reiterated his earlier submissions as to the existence of the relationship, but notably, did not complain that the Respondent’s submission, challenging the existence of the relationship, was inconsistent with any concession made by the Respondent.
40 Before us, Mr Schwenk agreed, upon considering the documents referred to at [19]-[38] above, that the nature of any concession made by the Respondent could have benefitted from more detail, but argued that Mr Greer, Counsel for the Appellant before the judge, was entitled to take the Respondent’s concession at face value, and that Mr Greer had made submissions in good faith on the understanding that the Appellant’s credibility was not in dispute.
41 Mr McVeety submitted that the Appellant’s grounds of appeal made no substantive challenge to the judge’s findings at [21], [27], and [28] (which contained findings as to the existence of a functioning judicial system in Botswana; the availability of support systems in Botswana for persons subject to gender based violence, and the Appellant’s own acceptance that she may be able to obtain a civil restraining order in Botswana). Overall, it was said that the Judge had found that effective protection was available to the Appellant in Botswana and there was no challenge to that finding by way of reference to relevant country information.
42 We queried whether an general finding of the existence of effective protection would be effective for all persons, reminding Mr McVeety of relevant authority in AW (sufficiency of protection) Pakistan [2011] UKUT 31 (IAC)1 which recalled guidance provided by the Court of Appeal in Bagdanavicius [2005] EWCA Civ 1605, that notwithstanding systemic sufficiency of state protection, a claimant may still have a well founded fear of persecution if authorities know or ought to know of circumstances particular to his/her case giving rise to the fear, but are unlikely to provide the additional protection the particular circumstances reasonably require. Mr McVeety agreed with that proposition of law but submitted that in the context of Botswana, it was unlikely that any person’s circumstances could ever demonstrate that an otherwise generally available system of effective protection would not be available for them,.
43 Mr McVeety submitted that even if there was a lack of clarity in what concession was being made by the Respondent, it did not make any difference to the outcome of the appeal and there had been no procedural unfairness.
Discussion
44 The Appellant has submitted to this Tribunal the authority of NR (Jamaica) [2009] EWCA Civ 856, although it did not feature in oral submissions. In NR the Court of Appeal referred to the earlier matter of Carcabuk v Secretary of State for the Home Department 8 May 2000 (unreported) with apparent approval:
“10. In Carcabuk guidance was offered as to the approach to be taken by tribunals to concessions. As was said [11-12]:
"It is in our judgment important to identify the precise nature of any so-called concession. If it is of fact…the adjudicator should not go behind it. Accordingly, if facts are agreed, the adjudicator should accept whatever is agreed. Equally, if a concession is clearly made by a HOPO that an Appellant is telling the truth either generally or on specific matters, the adjudicator may raise with the HOPO his doubts whether the concession as appropriate but, if it is maintained, he should accept it. But there is all the difference in the world between a concession and a failure to challenge. The former will bind the adjudicator, the latter will not. Furthermore, any concession can be withdrawn so that, for example, the case before the Tribunal can be presented in a different way to that before the adjudicator. It is open to a HOPO to withdraw a concession made before an adjudicator before the hearing is concluded, but the Appellant must be given a proper opportunity to deal with the new case against him and unless there is good reason for the withdrawal such as the discovery of fresh material we doubt that the adjudicator should permit any adjournment which such withdrawal would be likely to necessitate…
We can summarise the position as follows:-
…(3) If the HOPO wishes to withdraw any concession made: in a refusal letter or explanatory statement, he must inform the Appellant or his advisor as soon as possible and it will be for the adjudicator to decide if an application for an adjournment to enable the new case to be met is made, whether to grant it. If he does not, the concession will stand…
(6) A concession can be withdrawn but, if a HOPO seeks to do this, the adjudicator must be satisfied that the Appellant will not be prejudiced if the hearing continues and should only allow an adjournment if persuaded that there was good reason to have made and to withdraw the concession"
45 We note that Carcabuk has been further cited with approval by the Upper Tribunal MH (Appendix EU, withdrawal of concession) Albania [2025] UKUT 351 (IAC) at paragraph 40.
46 We find that, contrary to the guidance in Carcabuk, there was in this matter a lack of precision in the proceedings below taken by the parties in identifying the nature of any concession made by the Respondent. The Appellant appears to submit that all elements of the Appellant’s account, including her assertions as to the power and influence of LT in Botswana, and the existence of a genuine and subsisting relationship with her new partner in the United Kingdom, had been accepted by the Respondent. However, a cursory perusal of the Respondent’s position set out in the refusal letter establishes that this was not so. Further, the Respondent’s review document clearly maintained the rejection of the Appellant’s assertion that LT had a position of power and influence. Further, the review document explicitly rejected the Appellant’s assertion that the Appellant’s claimed new relationship was genuine and subsisting. Further in that regard, we find that a the Respondent’s comment at paragraph 10 of the review document regarding ‘no credibility indicators’, found within the section relating to protection issues, did not apply to the later section in the review document addressing humanitarian protection and Human Rights Act 1998 issues. Hence, the review document was not to be read as indicating that no credibility issues were being taken in relation to the Appellant’s relationship in the United Kingdom.
47 What, then, was the ‘precise nature’ of any concession said to have been made by Mr Hussain, representing the Respondent, at the beginning of the hearing before the judge? We are of the view that no clear or precise concession was made by Mr Hussain within his remarks at the outset of the hearing, which had the result of altering the Respondent’s position as set out it the review document. Mr Hussain’s language was loose, in particular in relation to the Appellant’s claimed new relationship: “And then, obviously, there is a bit of Article 8 in there as well.”
48 Further, with respect the Appellant’s experienced advocate Mr Greer, his own summary of the alleged agreed facts, as set later in the transcript of the hearing, was similarly loose:
“The facts, of course are that this young woman married a slightly older man, who set about abusing her, in a way which is not unusual, sadly, in her country of origin. And that, on the breakdown of their marriage, he leveraged the misogynistic or perhaps chauvinistic court process, in order to get custody of the child. When she complained about him to the police, the police initially arrested him for a short period of time and then released him, and referred to the case to a customary court, rather than taking formal legal action against him. Those are the facts of the case...”
49 We accept the guidance in Carcabuk that it is important to identify the precise nature of any ‘so-called’ concession applied to the judge as well as the parties. We find that it would have been preferable for the learned judge to have explored further with the Respondent what the precise nature of any concession was.
50 However, insofar as the Judge may have failed to follow that guidance, the burden in the present appeal lies on the Appellant to establish that there was a material error of law in the Judge’s decision, including whether the hearing was procedurally unfair. The Appellant has to demonstrate that she was caused unfairness by a specific concession made by the Respondent not having been followed by the Judge. However, we find that no clear concession was made by the Respondent at the outset of the hearing that was any different to the Respondent’s position in the review document which the Appellant is taken to be fully aware of. We do not find that the Appellant has been caused any procedural unfairness by reason of the judge having ‘gone behind’ any specific concession of the Respondent.
51 Further and in any event, we make the following additional findings, noting that the Appellant has argued that the judge erred in his approach at paragraphs [20], [22], and [35].
52 Whilst at [20], the judge appears to take issue with a police report dated 8 July 2020, the judge ultimately finds that the document does demonstrate, and the judge does accept, that the police took the Appellant’s complaints made to them seriously. Thus, we find that the content of letter was in fact accepted by the Judge, and his appearing to take issue with the document was not material.
53 At [22], the judge does not accept the alleged extent of LT’s power and influence. This was an issue that the Respondent disputed in the review document and we find there was no procedural unfairness in the judge coming to his own conclusions on that matter, and there is no substantive challenge to the judge’s finding.
54 In relation to the judge’s consideration of the Appellant’s new relationship at [35], we have found that there was no procedural error in the judge making his own findings, that matter being left firmly in issue within the Respondent’s review. Further, the Appellant’s complaint of procedural unfairness, made on appeal after the judge gave his determination, is inconsistent with Mr Greer not having raised any alleged procedural unfairness on this issue in his oral submissions before the judge, being aware that Mr Hussain had just argued on behalf of the Respondent that the relationship was not genuine and subsisting.
55 Even if we are wrong about that, the judge made findings in the alternative, assuming that there was such a relationship, from paragraph 38 line 4, to paragraph 42 line 6, which findings are not challenged by the Appellant. We are of the view that the judge completes his consideration of the Appellant’s case under Article 8 ECHR on the alternate basis that there was a genuine and subsisting relationship, at paragraph 42 line 6, and the remainder of that paragraph, commencing ‘As previously found...” is merely a convenient reference back to the judge’s primary finding, that there was no such relationship.
56 Whilst Judge of the First tier Tribunal Le Gys appears to query, when granting permission to appeal, whether the judge was entitled to suggest at paragraph 42 that little weight should be attached to both the private life and family life of those who have accrued such life in the UK during a period in which their stay was precarious, we acknowledge that s.117B(5) Nationality, Immigration and Asylum Act 2002 refers to little weight being given to a private life established when the person’s immigration status is precarious, and not family life. However, s.117B(4) provides that both private life and family life is to be given little weight if established when the person’s presence was unlawful, The Appellant’s claimed relationship with OM was established when she was present as an overstayer. The judge did not misdirect himself in law.
Conclusion
57 The judge’s decision did not involve the making of a material error of law.
58 The Appellant’s appeal is dismissed.

Judge O’Ryan

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 February 2026