Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-004415

First-tier Tribunal No: PA/64070/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 16th February 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE RAE-REEVES

Between

ER (Philippines)
(ANONYMITY ORDER MADE)
Appellant
and

SECETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Heywood, Counsel instructed by Wesley Gryk Solicitors
For the Respondent: Mr Ojo, Senior Home Office Presenting Office

Heard at Field House on 2 January 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant (and/or any member of her family, expert, witness or other person the Tribunal considers should not be identified) 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 (and/or other person). Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The appellant appeals against the First-tier Tribunal decision promulgated on 22 February 2025. The Judge dismissed her appeal against the respondent’s refusal of her protection claim. Permission to appeal was granted by Upper Tribunal Judge Perkins on 24 October 2025.
Background 
2. The appellant is a national of the Philippines. She entered the United Kingdom on 16/07/2005 on a visit visa valid until December 2005. She made an Article 8 application to remain which was refused in 2015 and a second application was subsequently made and refused. She was detained on 11/08/2021 at which point she claimed asylum. This was refused on 27/11/2023 and the appeal of that decision came before Judge Head on 07/02/2025 (‘the Judge’).
Anonymity Direction 
3. The First-tier Tribunal made an anonymity direction, and I have no reason to dispense with that direction.
The decision of the First-tier Tribunal 
4. The Judge acknowledges that there is no challenge to the appellant’s claim to have been sexually exploited by her husband between 2001 and 2004. She makes express reference to the lower standard of proof and finds that she could return to the Philippines because she finds there to be no credible basis to believe that the appellant’s husband would kill her.
5. The Judge refers to relevant case law and applicable country material and acknowledges that violence against women is widespread in the Philippines. She finds that the background evidence is clear that the authorities are in general both willing and able to provide effective protection for women experiencing domestic violence.
6. The Judge found that the appellant could safely return to the Philippines and relocate if necessary.
7. Turning to her human rights, the Judge finds no evidence of very significant obstacles to her reintegration into the Philippines. She carries out a balancing exercise in considering the appellant’s human rights outside of the Rules. She places little weight on the appellant’s precarious private life and finds that it would not be disproportionate to refuse her appeal.
Grounds of Appeal 
8. The parties rely on an appeal bundle (‘AB’) of 174 pages. Mr Haywood relies on his grounds for permission to appeal (AB19) and has now uploaded a new Skeleton Argument encompassing Grounds which mirror the previous ones with a slightly changed emphasis. Mr Ojo had no objection to the appellant relying on the updated Skeleton and Grounds. Mr Haywood took me through each of the grounds in turn and Mr Ojo responded on each point.
9. No Rule 24 response has been submitted by the respondent. Despite this, I allowed Mr Ojo some flexibility in referring to the original evidence before the tribunal.
10. In the original Grounds of appeal, the focus in the first Ground is that the judge was wrong to go behind the respondent’s concession that the appellant had been sexually exploited by her husband. It is submitted that the Judge’s finding that there is no evidence that the appellant’s husband wished to kill her contradicts what the respondent had accepted and was not a live matter in the appeal. It is submitted that it is procedurally unfair to make adverse factual findings in a situation where a respondent has accepted key material facts of her claim. It is submitted that the error is material as it influences the Judge’s findings in relation to relocation and protection.
11. The more recent Grounds supported by Mr Haywood’s submissions focus on the procedural unfairness of the Judge going beyond the live issues agreed by the parties.
12. The second Ground relates to an error in the assessment of the background evidence. It is submitted that the Judge’s reliance on the Country Policy and Information Note Philippines Women Fearing Domestic Violence leads the Judge into error because it is not evidence but is a statement of the respondent’s policy position. It is submitted that the Judge quotes verbatim from the CPIN (4.1.1) and this is not evidence: treating it as such is a material error. It is submitted that the Judge erred in her assessment of the background evidence and failed to make any reasoned analysis of that evidence.
13. The third Ground relates to the appellant’s human rights. In the original Grounds, the focus is on the failure to place sufficient weight on the appellant’s residency in the UK of 19 years, six months in the context of the connection between this length and the rules of granting leave after 20 years. In submissions and the renewed Grounds Mr Haywood does not rely on this being a near miss case. His focus is on the failure to consider the strong private and family life evidence before her.
Discussion 
Appellate approach
14. I remind myself at the outset that there must be appropriate judicial restraint in relation to the assessment of an appeal from the specialist First-tier Tribunal. As recently endorsed in MH (Bangladesh) v Secretary of State for the Home Department [2025] EWCA Civ 688, I acknowledge the approach in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22 set out at [72].
15. I direct myself that the correct approach to assessing whether or not there is a material error of law in the Judge’s decision was explained by Brooke LJ in R (Iran) and others v Secretary of State for the Home Department [2005] EWCA Civ 982 at [90] and I note the examples he sets out at [9].
Ground 1
16. The decision follows the modern issues-based approach and sets out reference to those as follows:
i. The agreed outstanding issues between the parties are;
ii. Is there sufficiency of protection available?
iii. Is internal relocation a viable option?
iv. Whether there would be very significant obstacles in the appellant’s reintegration into the Philippines.[11]
17. Mr Ojo relies on the fact that the only issue expressly accepted in the respondent’s refusal letter was the fact of the appellant’s sexual exploitation. He submits that there was no explicit agreement that there was a threat to the appellant. He acknowledges that the appellant did not attend the hearing but relies on TUI UK Ltd v Griffiths [2023] UKSC 48. He directs me to paragraphs 61, 69 and 70 (vi). TUI is a well-known authority for the principle that in general parties are required to challenge in cross examination the evidence of any witness which is not accepted. Mr Ojo suggests that paragraph 66 indicates that the rule would not apply ‘if the matter to which the challenge is directed is collateral or insignificance and fairness to the witness does not require there be an opportunity to answer or explain’. He relies on the fact that there is flexibility in the rule [69]. His reference to paragraph 70 (vi) is not helpful to the respondent as it states ‘cross examination gives the witness the opportunity to explain or clarify his or her evidence. That opportunity is particularly important when the opposing party intends to accuse the witness of dishonesty, but there is no principled basis for confining the rules to cases of dishonesty’. The following paragraph confirms the rule should not be applied rigidly. Mr Ojo submits that in the absence of cross examination the evidence before the Judge is that provided by the appellant in the asylum interview and he took me to a number of questions relating to the perceived threat.
18. In the First-tier Tribunal appeal the issues are silent as to credibility. The refusal letter is ambiguous in that it accepts sexual exploitation and overtly states that some aspects are accepted but does not accept that she cannot relocate or seek state protection. If credibility had been identified as an issue, the Judge would be perfectly justified in considering the appellant’s credibility both under Section 8 of the Asylum and Immigration (Treatment of Claimants) Act 2004 and beyond that as she does in paragraph 21. She would have been entitled to reach her conclusion that there is ‘simply no credible basis for the appellant to believe her husband would kill her’ [21]. The reason she gives for this conclusion are adequately set out but the objection is that credibility was never identified as an issue.
19. It is clear that the Judge was carrying out an assessment of the risk to the appellant and in her analysis of that risk she felt it necessary to consider the basis of the threats that underpin such a risk. This is predicated on the acceptance or rejection of the appellant’s account using the approach adopted by the Judge. However, the absence of the parties identifying credibility as an issue is capable of putting the appellant to a procedural disadvantage and creating a potential unfairness for the following reasons. Firstly, because the issue of credibility was not directly dealt with by the parties on appeal and potentially in their preparation for the hearing. Secondly, because the appellant did not attend the hearing and I need not go behind the reasons for that. It is safe to say that if she had been aware that the credibility of her account was at issue, that may have changed her (and her advisers) approach to the hearing.
20. Mr Haywood submits that it is not beholden on the appellant to show that an error would have produced a different outcome just that it was procedurally unfair and could be material. I accept that submission. If credibility had been identified as an issue by the parties and the opportunity been given to address it, the outcome of the appeal may have been the same. Nothing in this decision suggests I find otherwise. However, I accept the failure to identify the issue of credibility and to go on to make adverse finding on the issue when it had not been identified was procedurally unfair and a material error of law.
21. I reject Mr Ojo’s submission that cross examination is not necessary because the issue was insignificant. As noted above TUI is authority for the principle that fairness generally requires disputed evidence to be challenged. I do not accept that TUI assists the parties because the principal issue before me is not the failure to challenge a witness’s evidence but the identification and reliance on a point that was not at issue before between the parties.
22. Regrettably because the Judge has considered the appellant’s background as lacking credibility, this directly impacts her findings on protection and relocation. Without the findings on the appellant’s credibility, the Judge’s decision on protection and relocation may have been the same but because there is a risk that the appellant’s credibility impacted on the Judge’s findings on protection and relocation those findings cannot stand.
Ground 2
23. In light of my conclusion, I need not deal with Ground 2 save to say that in the absence of the error the Judge would be entitled to reach the conclusions that she did. She would be taken to have taken all the objective evidence into consideration (Volpi v Volpi [2022] EWCA Civ 462 [2 iii]).
Ground 3
24. Putting some distance between his submissions today and the original Grounds, Mr Haywood submits that this is not a near miss case and relies on Volpi. He acknowledges that Section 117B is correctly applied but his emphasis is on the failure to consider the totality of the appellant’s evidence of her private and family life in the UK.
25. I am in no doubt that the Judge directed herself appropriately and conducted a meaningful balancing exercise. She directs herself in respect of the questions in Razgar v SSHD [2004] UKHL 27 and considers key facts such as her two sons living in the UK and her history of exploitation.
26. The Judge was correct in applying section 117B (4)(a) and specifically giving little weight to private life which she identified as being largely precarious or unlawful. Following the guidance in Volpi, I do not consider there to have been an error in law and cannot conclude that her findings on the point are those that no reasonable judge could reach or, in the words of Volpi, are ‘plainly wrong’.
27. There was no appeal in respect of s276ADE (Appendix Private Life).
Conclusion
28. In respect of Ground 1, the Judge’s decision involves a material error of law and the appellant’s appeal on Ground 1 succeeds. No findings are preserved in respect to the protection claim.
29. In respect of Ground 3, there is no error of law and the Judge’s decision on Article 8 is preserved.

Notice of Decision
The decision of the First-tier Tribunal involved the making of an error of law in respect of the asylum appeal. 
The decision of the First-tier Tribunal is set aside solely in respect of the protection claim with no findings preserved on that issue. 
The decision in respect of Article 8 involved no error of law and is preserved.
The protection appeal is remitted to the First-tier Tribunal to be heard de novo before a Judge other than Judge Head. 

V S Rae-Reeves
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

06/01/2026