Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-004642

First-tier Tribunal No: PA/56949/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 12th of December 2025

Before

UPPER TRIBUNAL JUDGE McWILLIAM
DEPUTY UPPER TRIBUNAL JUDGE T BIBI

Between

AS
(ANONYMITY ORDER MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Alessandro Belluzzo, Counsel
For the Respondent: Mr Kevin Ojo, Senior Home Office Presenting Officer

Heard at Field House on 01 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. The appellant is a national of Sierra Leone who was born in August 1997.
2. We note that the First-tier Tribunal Judge did not make an anonymity order. Given the nature of the protection claim and in accordance with the Presidential Guidance Note No. 2 of 2022, we now make an anonymity order. Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity.
3. The appellant appeals against the decision of First-tier Tribunal Judge Freer dated 24 July 2025, dismissing his appeal against the Secretary of State’s decision of 01 March 2024 refusing his asylum and humanitarian protection claim. Permission was granted on all grounds by First-tier Tribunal Judge Bowen on 02 October 2025.
4. The principles and cautious approach to be applied by an appeal court to first instance findings of fact are well established and set out in Volpi v Volpi [2022] EWCA Civ 464 at [2]. We remind ourselves of the role of the First-tier Tribunal as an expert Tribunal and also bear in mind that a determination should not be ‘picked over’ or subjected to narrow textual analysis: HA (Iraq) v SSHD [2022] UKSC 22, 1 WLR 3784 at §72.
Background
5. The basis of the appellant’s asylum claim is his sexuality. As a gay Muslim man, he asserts that he is a member of a Particular Social Group. He joined a gay support group and fears his wife, family, and the wider Muslim community, as they disapprove of the life he has chosen. He believes that if returned, he will be killed.
6. The appellant was granted a visa for a canoe championship in the UK on 21 June 2022 valid to 21 December 2022. He entered the UK on 05 July 2022. He claimed asylum on 14 September 2022. His appeal against that decision came before the Judge at a hearing on 21 July 2025. The parties agreed that the appeal turned on the appellant’s credibility.
The findings of the Judge
7. The Judge found the appellant not credible, noting numerous inconsistencies in his account. The Judge did not accept the appellant’s claimed sexuality, his fear of persecution in Sierra Leone, or that he had suffered past persecution for that reason. In his decision the Judge said the following:
“30. In his oral evidence, he said that he wanted to work in construction. He has an identity card that describes him as a construction site worker. He could have used a lawful route to apply for work in designated shortage occupations noted in the relevant Appendix to the Immigration Rules, but he did not do so. Instead, he came for a sports championship and then overstayed very significantly before making his claim. This inevitably is detrimental to his overall credibility.
31. This inevitably is detrimental to his overall credibility. There is no credible explanation given for why he did not claim asylum in the first few weeks or few months after his arrival. If a person is in fear for their life, solving that problem acquires both great importance and great urgency, which has not been shown here. He came here as an adult in his mid-twenties born in 1997. If he knows enough about how the world works to organise a visa for air travel, he might well have considered asylum too at an early stage.”
Grounds of appeal
8. The appellant sought permission to appeal on the grounds that the Judge at [30] and [31] of the decision the Judge made a factual errors which infected the Judge’s assessment of the appellant’s credibility. The appellant had not significantly overstayed nor was he an overstayer when he made his asylum claim within a couple of months of entering the UK.
9. There was no Rule 24 response filed by the Respondent.
Submissions
10. Although this was the appellant’s application we decided to hear initially from Mr Ojo. The parties did not object to this.
11. Mr Ojo conceded that the Judge incorrectly set out the chronology. He said that the error is confined to a narrow aspect of the credibility assessment and does not undermine the core reasoning or the conclusion reached by the Judge. Mr Ojo referred to KB & AH (credibility structured approach) Pakistan [2017] emphasising that not every error of fact or law will be material, as it does not affect the ultimate outcome.
12. In respect of ML (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 844, on which the appellant relied in his grounds, Mr Ojo submitted that the errors in this case were less significant than those in ML and therefore immaterial.
13. Mr Ojo referred to [17] of the decision where the Judge stated: -
“In the following remarks, my overriding purpose is to highlight where there is consistency or inconsistency. By contrast, I have taken into account that in the current law, lack of corroboration, however great, is not sufficient to dismiss such a claim.”
14. A further reference was made at §33 of the decision, which addressed the application of Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004:-
“There is no explanation for why he failed to claim in Belgium, where he stopped enroute. Perhaps he did not want to miss the canoe event, but these facts taken as a whole give rise to Section 8 credibility weighting against the appellant.”
15. Mr Ojo submitted that the Judge properly considered the statutory requirement to consider conduct that may damage credibility, namely the appellant’s failure to claim asylum in Belgium and the subsequent delay of two months before claiming asylum in the United Kingdom. This finding was not challenged in the grounds of appeal and remains a valid component of the overall credibility assessment.
16. Following Mr Ojo’s submissions, we indicated to Mr Belluzzo that we did not need to hear from him. This was because, having considered the grounds and the respondent’s submissions, we were satisfied that there was a material error of law in the decision of the First-tier Tribunal for the reasons we explain below.
Error of Law
17. We take into account Mr Ojo’s articulate and helpful submissions; however, we find that there is a material error of law arising from the Judge’s misunderstanding of the chronology.
18. The appellant was not an overstayer. He had not overstayed at all let alone significantly as found by the Judge. Moreover, he made his asylum claim just over two months after he arrived. The Judge, however, queried why he had not made an application within the first few weeks or months after his arrival.
19. In ML the Court of Appeal held that factual errors in a determination could constitute an arguable error of law. Stanley-Burton LJ was very clear in his judgment at [16]:
“In agreement with Moses LJ, I consider it clear that a material error of fact in a determination of a tribunal will constitute an error of law. A material error of fact is an error as to a fact which is material to the conclusion. If there is any doubt as to whether or not the incorrect fact in question was material to the conclusion, that doubt is to be resolved in favour of the individual who complains of the error. It is clear from the determination of the First-tier Tribunal that the appeal of this appellant was not considered with the care that was required.”
20. We accept Mr Ojo’s submission that the material errors of fact in ML were more serious than those made by Judge Freer. The Judge in ML had made numerous errors. However, we do not accept that ML supports that in this case there is no material error. We take on board what Mr Ojo said about materiality in the light of the credibility findings as a whole. In ML there were said to be undoubtedly powerful factual reasons for dismissing the claim. What is clear from [30] and [31] is that the Judge attached weight to the adverse immigration history which was factually incorrect. It is impossible to determine how much weight he placed on this in the overall credibility assessment. It follows that we cannot conclude that the mistake is immaterial.
21. We set aside the decision of the FTT. Having considered the nature and extent of the error identified and applying the guidance in AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512, we conclude that bearing in mind the error is essentially one of fairness, the appropriate course is to remit the appeal to the First-tier Tribunal for a fresh hearing.
Notice of Decision
22. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
23. We set aside the decision of the First-tier Tribunal and remit the case to the First-tier Tribunal to be heard by a different Judge.

Joanna McWilliam

Upper Tribunal Judge McWilliam
Immigration and Asylum Chamber
9 December 2025

T Bibi

T Bibi
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
9 December 2025