Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-004682

First-tier Tribunal No:
PA/64520/2024
LP/02505/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 18th February 2026

Before

UPPER TRIBUNAL JUDGE RUDDICK

Between

KK
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No representation
For the Respondent: Mr M. Pugh, Senior Home Office Presenting Officer

Heard at Field House on 12 January 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 appeals with permission against the decision of the First-tier Tribunal (“FTT”) dated 22 June 2025, which dismissed her protection and human rights claims.
2. The FTT made an anonymity order in this on the grounds that “the importance of facilitating the discharge of the obligations of the United Kingdom under the Refugee Convention in the circumstances of this case outweighs the principle of open justice.” I agree that the order should continue for that reason. In addition, the appellant is accepted to be a victim of sexual violence and trafficking for the purposes of sexual exploitation, such that anonymity is required under section 1 of the Sexual Offences (Amendment) Act 1992.
Background
3. The respondent accepts that the appellant is a citizen of Namibia and that she was “abused as a teenager by family members” and “exploited in South Africa.” More specifically, she says that she was raised by her grandmother, because her parents died when she was very young. Her grandmother died when she was 15 years old, and she was taken in my a maternal aunt. Several of her male cousins raped her repeatedly, and as a result, she fell pregnant with her first child, who was born in December 2007. I will call him “C1” for the purposes of this decision.
4. In 2019, she met her husband and moved with him from her village to the city of Walvis Bay. They married the following year. In July 2022, however, she was deceived by a female cousin, who “seemed like a good person” and “often helped her”, including by giving her discounts on clothes she imported from South Africa. She offered to help the appellant set up her own business in South Africa but instead trafficked her into prostitution there. After four days, she managed to escape, and the South African police helped her return to Namibia.
5. The respondent has neither expressly accepted nor rejected the rest of the appellant’s account, which she set out in a witness statement dated 12 February 2024. This is that after she returned to Namibia, she reported what had happened in South Africa both to the police and to a social worker to whom the police had referred her. She says that just over a month later, one of her male cousins came to her home in Walvis Bay to try to force her to return to their village. When she refused, he beat her, and after she fled, he burned down the family home. She and her husband reported this incident to the police, but they then decided to flee the country.
6. The appellant, her husband and her son travelled to the UK by way of Botswana. They arrived on 12 December 2022, and the appellant claimed asylum on arrival. Her husband and her son are dependants on her claim.
7. In October 2023, the appellant gave birth in the UK to her second son, whom I will call “C2”.
8. The appellant has been unrepresented throughout her asylum claim.
9. The respondent did not interview the appellant about her asylum claim. The Appeal PF1 Form (the first page of the respondent’s bundle of documents before the FTT) states that this was because the Home Office could not locate “the appropriate interpreter.” This meant that the only questions the respondent asked about the appellant’s children were those asked at the initial screening interview, conducted at the airport. These were whether C1 faced a risk on return to Namibia, whether the appellant believed that the risk was the same as the one she faced, and whether he had any medical conditions, disabilities, infectious diseases, or medications that he should be taking. The appellant answered “yes” to the first two questions and “no” to the others.
10. The respondent decided the claim on the basis of the appellant’s screening interview, her typed statement of 12 February 2024 (which she said was written by her older son due to her limited English), and the documents submitted by the appellant. These were:
(i) a Namibian Police Force “Case Docket” stamped on 29 July 2022;
(ii) two handwritten statements setting out the events in South Africa, stamped 29 July 2022;
(iii) a three-page form completed by a social worker recording a report of human trafficking, sexual exploitation and sexual violence and the support that the appellant had been offered, stamped 1 August 2022;
(iv) the appellant’s “Statement Under Oath” asking for protection against her cousins, stamped by the Police in the Khomas Region on 2 November 2022;
(v) the passports of the appellant, her husband and her older son; and
(vi) C2’s birth certificate.
11. In a decision dated 8 April 2024, the respondent refused the appellant’s asylum claim. The respondent’s decision-maker accepted that the appellant had been abused by her family members as a teenager and exploited in South Africa. They also accepted that women fearing gender-based violence constitute a particular social group in Namibia, based on the Home Office Country Policy and Information Note (“CPIN”), Namibia: Women fearing gender-based violence. The respondent’s decision-maker then stated, “I am satisfied the treatment you fear would be persecution because being abused by your family does not reach the threshold of persecution.” This is difficult to understand, given that the appellant’s account of having been raped by her male cousins and trafficked into forced prostitution by a female cousin was accepted. It is also inconsistent with the respondent’s own position and long-established caselaw, which accepts that gender-based violence at the hands of family members may constitute persecution. However, nothing tuns on this incoherent statement, because it played no role in the rest of the decision.
12. The respondent then considered the appellant’s asylum claim under two headings. The first was entitled “Protection from persecution”. Here, the respondent relied on the CPIN for the assessment that the police in Namibia are generally willing and able to provide protection in “similar circumstances to you”. In addition, the appellant had “family living in Namibia who have been willing to support you and your dependents [sic] in the past” and was “married to a man who has provided an income for you and your children previously.” She therefore had support that could assist her in “accessing and reporting of [sic] any further persecution.” Moreover, the people she feared were non-state actors and the appellant had not shown that they had influence over the authorities or had the “means, will or resources” to trace her.
13. The second heading was “Internal relocation”. Here, the respondent noted that there was freedom of movement in Namibia. The respondent then repeated that police protection would be available and that the appellant had not demonstrated that “the non-state actors you claim to fear, [sic] would have the means, will or resources to trace you.” Moreover, the appellant had demonstrated “considerable personal fortitude” in relocating to the UK and had “offered no explanation why you could not demonstrate the same resolve to re-establish your life in Namibia.”
14. This was followed by the statement that the appellant did not qualify for Humanitarian Protection because she was not at real risk of any relevant harm.
15. The refusal decision mentioned the appellants’ children in the next section, entitled Family and Private Life. Under the heading of “Family Life”, the decision-maker asserted
“You fail to meet the eligibility requirements under the partner route of Appendix FM;
“27. E-LTRP.1.2. [This sets out that the appellant’s husband does not meet the immigration status requirements for being considered a partner under Appendix FM].
“28. EX.1. – I have considered the need to safeguard and promote the welfare of children in the UK, which means that consideration of a child’s best interests is a primary but not the only consideration in immigration cases. I have fully considered your children's circumstances, including the following:
• Whether it is reasonable to expect the child to live in another country.
• The level of the child's integration into the UK.
• How long the child has been away from another country.
• Where and with whom the children will live if they leave the UK.
• What the arrangements for the child will be in that country.
• What is the strength of the child's relationship with a parent or other family member(s) in the UK that would be affected if the child leaves the UK
“You fail to meet the following eligibility requirements under the parent route of Appendix FM
29. E-LTRPT.2.2 – Your children [C1] and [C2] do not meet the residency requirements because they;
30. Are not British or have settled status.
31. Does not have limited leave under Appendix EU in accordance with paragraph GEN.1.3.(d)
32. Have not lived in the UK continuously for at least the 7 years immediately before the date of application.
33. You have not raised any exceptional family circumstances in your case.”
16. There were no findings with regard to any of the issues identified at [28]. Indeed, the only evidence that respondent’s decision-maker had before them that was relevant to these issues was the length of the children’s residence in the UK.
17. There was a further reference to the children under the heading “Compassionate circumstances”. It read, in its entirety:
“You have not raised any exceptional compassionate circumstances in your case.
38. The rights of any affected children have been considered in accordance with Section 55 of the Borders, Citizenship and Immigration Act 2009 and the reasons for refusing leave have been set out in the above paragraphs.”
18. There were separate and identical refusal decisions for C1 and C2. These began:
“You asked to be treated as a dependant on the asylum application of [KK]. Their asylum application has been carefully considered and this letter is to advise you of the outcome of that decision.
“It has been decided that [KK] does not qualify for asylum. It has also been decided that as their dependant, you have also not been recognised as a refugee and not granted leave.
“It has been decided that [KK] does not qualify for asylum or Humanitarian Protection, but they can appeal this decision. As a dependant, you do not have a right of appeal.”
19. The rest of the letter informed the children of their liability for removal, the consequences of illegally staying in the UK, and how to contact the Home Office Voluntary Departure Service.
20. The appellant appealed. Her online “Appeal Reasons” began with a reference to Para 339L of the Immigration Rules and a long statement about the principle of non-refoulement. The appellant then responded to the refusal letter by asserting that she had relocated several times within Namibia and “the people in question” had found a way to locate her, through police reports, influence or buying information. They had also found out she had returned to Namibia from South Africa “even without my family knowledge or communication then of the police. That demonstrate[s] the influence and link there is between the police and the abuser.” She said she was also submitting a letter from a person in Namibia who had helped them and had been threatened by her family members.
21. The appellant then said:
“Obviously since I was not provided with any assistance or referral to any solicitor or an interpretor [sic] which I have asked for it has been difficult in terms of compiling and writing all this in the way that's […] with accordance with the home office.
“We thing [sic] this is one of the main reason we got refused because we didn't have any solicitor or advise from the person knows the rules and regulations and has a better understanding then [sic] we do.
“While our case was being processed we where [sic] question by the case worker my kids are included in my case or they have their own cases. Yes he explained to us that, we did any link or they didn't from being born here, or have a link such as been explained. We understand that under Asylum the kids can't be return to their country of origin till they are 18. Weather [sic] all this played a part or not we don't know and what was main reason behind this question when he known that, non[e] of the kids where not born here or had any link to here.
“We want to settle here as a family as returning is not an option at all.
“We will attach all the evidence and information we have which may help to be better understood.
“[….]
“We believe that, the case worker never really looked in to this, because this are the things I went through to the point of leaving Namibia to come here. It is under this that if I were to be return would really be the same as being killed before I bought the plane because that's what's going to happen to us if we are return to Namibian [sic]. So hearing that news also affected my health and well being as I am a high blood pressure person and been through alot [sic]. I am begging, asking, requesting, for the sake of my kids and myself that you reconsider these decisions for our family safety and wellbeing,”
22. A long series of general statements of principle follow. These discuss the concept of “protection” under international law, the duty to identify the protection needs of vulnerable migrants, and two references to the legal requirement for States to assess the best interests of a child before any decision is taken to remove them, in accordance with the UN Convention on the Rights of the Child.
23. The only document that the appellant submitted in support of her appeal was a letter purporting to be from a person in Namibia named AK, in which she stated that she wished to withdraw “from being a witness” on the appellant’s behalf after being subjected to threats and violence.
24. The respondent conducted a Respondent’s Review. AK’s letter was dismissed as vague and inadequate to establish that the unknown persons she said were seeking the appellant had any power or influence over the Namibian authorities. The respondent also said for the first time that it was not accepted that “there was any ongoing adverse interest” in the appellant in Namibia. The respondent repeated that internal relocation would be available. There was no mention of the children.
The decision of the First-tier Tribunal
25. In the challenged decision, the FTT identified the issues in dispute as follows:
“5. The respondent conceded the following matters:
(a) The appellant’s identity and nationality
(b) The appellant was abused when she was young; thereafter she was exploited while in South Africa
“6. The parties agreed that the following issues remain in dispute:
(a) Whether the appellant can seek effective state protection or internally relocate.”
26. A section entitled “Legal Framework” followed at [10]-[12]. The set out principles applicable in Refugee Convention and humanitarian protection claims.
27. The FTT’s “Findings” are set out at [13]-[25]. At [13]-[15], it set out the appellant’s account and noted that the respondent accepted it, but found that internal relocation would be available. At [16], [18] and [20], it noted various submissions from the respondent’s representative. These included that:
(i) there was an inconsistency between the social worker’s report and the appellant’s account;
(ii) there were periods of time when the appellant was able to live in Namibia without being threatened or harmed by her cousins; and
(iii) there was no explanation for why the cousins would seek to harm her again after she had been able to live in Namibia “peacefully for a number of years”.
28. The FTT made no comment on these submissions, but at [19], it appears to accept the submission that there was insufficient evidence of ongoing adverse interest from the appellant’s cousins:
“I note that the initial incident the appellant relies on occurred when she was 15 years old, she was unfortunately subjected to horrific sexual abuse which went on for a number of years and she became pregnant as a result. I note however the appellant travelled to South Africa without difficulty. She claims however this was arranged by her cousin the perpetrator. I note also the appellant was able to get married.”
29. At [21], the FTT concluded that the appellant would no longer be at risk from her cousin, noting that there was an attempt at reconciliation in 2022, although the appellant “did not trust it.” The FTT also found that the appellant had failed to show that the cousin had the “means, capability, power or influence to locate the appellant if she were to return” to Namibia. No reasons are given for this finding; it appears to follow from the comments that immediately proceeded it, about the appellant’s ability to live without incident in Namibia for a number of years, to marry and to leave the country.
30. At [22], the FTT found that the appellant could relocate safely and that it would not be unduly harsh, as she would not be returning as a lone woman.
31. At [23], the FTT found that state protection would be available, as the police had taken action in the past. Moreover, a “number of years” had passed since “these incidents occurred” and the appellant had failed to establish that her cousin or her family still sought to harm her.
32. On the basis of these findings, the FTT dismissed the appeal on Refugee Convention grounds: [24]).
33. The final section of the appeal was entitled “Appeal on Humanitarian Protection Grounds/ Art 3/ Art 8.” It read in its entirety:
“26. The appellant has failed to show there are substantial grounds for believing there is a real risk of serious harm on return such that she should be entitled to subsidiary or humanitarian protection.
“27. I find the appellant has failed to establish an Article 3 risk on return.
“28. In light of my findings above, in relation to paragraph 276ADE(1)(vi) I find the appellant has failed to show there would be very significant obstacles to her integration on return to Namibia.“
The appeal to the Upper Tribunal
34. The appellant’s grounds of appeal state that they have been filed “pursuant to directions of Grimes IJ dated 6 July 2024, to address whether the Respondent had complied with its section 55 duties.” The directions referred to are not before me.
35. The grounds submit that the respondent clearly did not comply with her section 55 duties. Although this breach can be remedied by the First-tier or Upper Tribunal, this will “require appropriate judicial investigation and determination”. In this case, the appellant had “provided enough information concerning the affected children” to establish that it would not be in their best interests to return to Namibia. This was for four reasons: the respondent had acknowledged that the children could be in danger from the perpetrator; the appellant had established that police protection had been ineffective; relocation would “effectively mean starting their lives again afresh”; and the appellant had “already told the respondent” that the perpetrator had been able to track them every time they moved within Namibia.
36. On 4 September 2025, Resident Judge Wilson reviewed the decision and announced his intention to set aside the decision under Rule 35 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber Rules 2014) because the appellant’s appeal reasons had specifically raised the issue of the best interests of the appellant’s children but the determination had not dealt with it. On 18 September 2025, a Senior Presenting Officer wrote to the FTT, on behalf of the respondent, to argue that the decision should not be set aside. She pointed out that there was no error in the FTT’s findings on the appellant’s protection claim. As to the children’s best interests, the respondent accepted that the FTT “does not specifically refer to the best interests s.55 consideration” but submitted that it was “unclear from the papers whether a standalone Article 8 claim was pursued in any event”. Finally, the Senior Presenting Officer “raise[d] the question of materiality”, pointing out that the children were not British and had only resided in the UK since December 2022, and that they would be returning to Namibia as part of a family unit.
37. On 7 October 2025, RJ Wilson decided not to set the decision aside because he was “mindful of the Respondent’s submissions that the protection findings are potentially unaffected by the error of law identified in the grounds of appeal.” However, permission was granted on the ground that it was arguable that the judge had not properly engaged with the best interest of the children.
38. On 17 October 2025, another Senior Presenting Officer filed a Rule 24 response on behalf of the respondent. This stated:
“2. The respondent does not oppose the appellant’s application for permission to appeal and invites the Tribunal to determine the appeal with a fresh oral (continuance) hearing to consider whether the appellant.
“3. I can confirm that Article 8 of the ECHR was in issue in this appeal. The best interests of a child affected by the decision is a primary consideration for the Tribunal in the Article 8 balancing exercise. There is no reference anywhere in the determination to the judge considering the best interests of the appellant’s children in reaching her conclusion.”
39. On 8 December 2025, the Upper Tribunal issued directions to the parties. It found the Rule 24 response “unclear”, in that it did not deal with whether the FTT’s findings on the protection claim were infected by an error of law or address the materiality of any error regarding the children’s best interests. It directed that “Whether or not the judge made material errors of law and if so in what respect will be considered at a hearing.”
The hearing
40. The appellant was unrepresented at the hearing before me. She participated in the hearing with the assistance of a Herero interpreter, who appeared by CVP link. I was satisfied that she and the interpreter understood each other.
41. At the beginning of the hearing, I explained to the appellant what the purpose of the hearing was. I explained that it was my role to decide if the First-tier Tribunal judge who dismissed her appeal had made a legal mistake. If I decided that the previous judge had made a serious mistake, then I would set aside his decision. This hearing was her opportunity to explain to me how the previous judge had made a mistake. Even though this was a legal issue, she did not have to use legal language. She could explain this to me in her own words.
42. I also explained that if I found that the previous judge had made a serious legal mistake, I would set aside his decision. She would then have an opportunity to give new evidence at a separate hearing in the future. For this reason, I would not need to hear any new evidence from her today.
43. I asked the appellant who had drafted the grounds of appeal, given her limited English. She said she had been assisted by a man named “Secret” who had since returned to Zimbabwe. She had not paid him for his assistance.
44. I then said that I would explain to the appellant what had been said in the grounds, to ensure that she understood them. The grounds had argued that the First-tier Tribunal judge had made a mistake by not considering the best interests of her children. I told her that the respondent (the Home Office) had agreed that the judge had made this mistake. The purpose of the hearing before me was to decide two things. The first was whether this mistake was serious enough that the decision had to be set aside, and the second was whether the judge had also made a mistake in finding that she would not be at risk from her cousins if she returned to Namibia.
45. I then asked Mr Pugh to confirm that he was content with my summary of the issues before me. He submitted for the first time that he wished to withdraw the respondent’s Rule 24 response because he did not agree with it. His position was that the FTT was not required to consider the best interests of the children expressly but was entitled to consider them implicitly and it had done so in this case. He further said that he preferred the Rule 35 response (although, in my view, this did not contain the position he was advancing before me). I did not allow the respondent to withdraw the Rule 24 response so late in the day, and without any explanation other than that Mr Pugh did not agree with it. I did not consider it in accordance with the overriding objective to allow the respondent to change her position on the afternoon of the hearing, with no prior notice to the Tribunal or to the appellant and without any justification other than a difference of opinion between her various representatives. Moreover, as the appellant was unrepresented, this sudden change of position would have likely made it very difficult for the appellant to proceed without an adjournment.
46. I then invited the appellant to tell me if she thought the First-tier Tribunal judge had been mistaken in finding that her cousins were no longer interested in harming her, and that if they were, she could safely relocate within Namibia or seek help from the police. She said, in summary, that she had tried to hide in three different places, but her family had found her each time. When she reported them to the police, all the police had done was to take statements. No one had been arrested. She believed that she believed the threat from her family was “ongoing” and pointed out that “the person who helped me got in trouble because of trying to help me,” referring to the letter from AK.
47. After some further discussion to clarify the appellant’s submissions, I told the appellant that I understood what she was saying, but that I was not persuaded that the First-tier Tribunal Judge had made a legal mistake when it decided that she could seek help from the police or relocate within Namibia.
48. I then heard submissions from Mr Pugh about the materiality of the FTT’s failure to consider the best interests of the children. I will address those submissions in the discussion below.
49. At the end of the hearing, I informed the parties that I considered that the FTT had not erred in dismissing the appellant’s asylum claim, but that it had erred by failing to consider the best interests of the appellant’s children. I therefore intended to set aside the appeal, but only with regard to the appellant’s article 8 claim. I explained that I would put my decision in writing in more detail, to ensure that the appellant understood it.
Discussion
50. When deciding whether the First-tier Tribunal made an error of law, I have to follow the guidance of the Court of Appeal.1 This includes the following:
(i) I cannot set aside the factual findings of the First-tier Tribunal simply because I disagree with them. I can only set them aside if the First-tier Tribunal made a decision that no reasonable judge could have made.
(ii) First-tier Tribunal judges are experts in their field. This means I need to assume that they know the relevant law, that they have taken into account all the evidence before them, and that they applied the law correctly – unless there is “compelling evidence” to the contrary.
(iii) The decision of the First-tier Tribunal has to be read as a whole.
(iv) First-tier Tribunal judges are not required to set out every step of their reasoning explicitly. Some of their reasoning can be set out by inference.
(v) First-tier Tribunal judges have had the opportunity of hearing oral evidence from the witnesses before them. This is another reason to be slow to overturn their findings of fact.
51. Applying these principles to the FTT’s reasons for dismissing the appellant’s asylum claim, I find that the appellant has not shown that it made an error of law. It set out its reasons between [16] and [23] of its decision. It is clear that the FTT found that there was not a real risk that the appellant’s cousins still wanted to harm her, in spite of the terrible abuse they had subjected her to as a child. The main reason for this was the number of years that had passed, during which the appellant had lived in Namibia without suffering further harm. She had been able to marry, and to leave the country for South Africa without interference. The FTT also noted the appellant’s oral evidence that one cousin had arranged her trafficking to South Africa so that he could pay someone else to kill her there. I consider that it is implicit in the decision that the FTT did not find this explanation for the link between her previous abuse and her trafficking to South Africa persuasive. I consider it also implicit that the FTT agreed with the respondent’s submission that there was no explanation for why the cousins should have decided to take action against her in this way, and later by burning down her home, so many years after the initial abuse had ended and three years after she had left her village.
52. The FTT also found that the police protection would be available. The FTT noted the appellant’s claim that the police could not protect her, but it was not required to accept this. The appellant’s own evidence was that they had recorded her recent complaints and referred her for support, and that her cousins had then sought to reconcile with her. The FTT also had before it the respondent’s CPIN. I do not find that no reasonable judge could find, on the basis of this evidence, that police protection would be available.
53. In her submissions before me, the appellant repeated the basic outline of her account. However, she did not point to any legal error made by the FTT. She also referred to the evidence of AK. It is true that the FTT did not specifically refer to this evidence, but as it was unsigned, undated and not accompanied by any identity document or other indication of its reliability, I do not consider that the FTT was required to give reasons for not putting any weight on it.
54. For these reasons, I find that the FTT’s decision to dismiss the appellant’s asylum claim did not involve the making of a material error of law.
55. As noted above, the respondent has accepted that the FTT erred by not considering the bests interests of the appellant’s children. The appellant did raise them in her grounds of appeal, contrary to what was said in the Rule 35 response. It is obvious that the respondent did not comply with her section 55 duties. The appellant was asked no question about her older child other than whether his asylum claim was based on the same facts as hers, and whether, when he arrived in the UK in December 2022, he had any disabilities or health needs. The respondent then decided the appellant’s asylum claim in April 2024, almost 16 months later, without collecting any further information about him. The respondent collected no evidence about the appellant’s younger child at any time. The only evidence the decision-maker had about him was his birth certificate. In the refusal decision, the only findings that were made about the children were that the appellant could not meet the eligibility requirements for a grant of leave to remain under Appendix FM because they were not British and had not lived in the UK for seven years. The respondent also noted that the appellant had not provided any evidence of any exceptional circumstances, but this ignored the legal duty to gather the evidence necessary to make an informed finding about the children’s best interests.
56. The duty of the First-tier Tribunal in such a case was set out clearly by the Supreme Court in CAO v Secretary of State for the Home Department [2024] UKSC 32. It is to step into the shoes of the respondent and make its own findings about where the children’s best interests lie, and then take them into account in its article 8 assessment. CAO is entirely clear about this:
“46. [….] the responsibility to consider the best interests of a child is now placed firmly on the FTT itself. If in the course of an appeal it finds that it does not have the information necessary to do that properly, it is required to exercise its powers under rule 4(3)(d) to ensure that additional material bearing on that question is obtained and brought before it.”
57. In his submissions, Mr Pugh relied on heavily on the Supreme Court’s statement at [47] that, “It is not incumbent on the FTT to cast about, or to order inquiries to be made, to see whether any evidence has been omitted or overlooked.” In doing so, he took that statement out of context. It is preceded by the qualification that “in ordinary circumstances […] the FTT will be entitled to assume that the parent has adduced all the relevant evidence which is sought to be relied upon which bears on that issue”. It is followed by the further qualification that “That is especially so where the parent and child are represented by a lawyer” (emphasis added). That obviously was not the case here.
58. More telling still, the paragraph following the sentence relied on by Mr Pugh reads:
“Although this is the general position, there may nonetheless be circumstances where, even though a point has not been taken, it is obvious that it requires examination in order to reach a proper conclusion regarding the best interests of a child affected by the decision. For example, if a decision affected a child and no attempt at all had been made to consider their best interests, that would be an obvious omission and the FTT would be bound to investigate to make sure that proper consideration was given to that issue [….] Since in a human rights appeal the FTT is the new primary decision-maker, whose decision supersedes that of the Secretary of State, it is subject to a form of the usual public law duty on a decision-maker to make such inquiries as it may consider to be necessary to inform itself about relevant matters (taking into account the responsibility on the parties in this context to present all the evidence they wish to rely upon in support of their case and the usual justified expectation that they will have done that) and will commit an error of law if, being on notice of a vital gap in the evidence, it irrationally fails to make relevant inquiries to address that.”[emphasis added]
59. Mr Pugh submitted that a “gap in the evidence” could only arise if there was evidence. As there was no evidence concerning the children before the FTT, there could not be a gap in it. I consider that this is fundamentally at odds with the two cases cited by the Supreme Court here, Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1065B (Lord Diplock) and R (Khatun) v Newham London Borough Council [2004] EWCA Civ 55; [2005] QB 37, paras 35–36 (Laws LJ). A gap in the evidence arises when no rational decision-maker could conclude that they had sufficient evidence before them to make a rational decision. This obviously can arise when, as here, there is no up-to-date evidence at all.
60. Moreover, in the specific context of the best interests of children, the Supreme Court has identified some of the steps that must be taken in order to make a lawful decision. These were set out by Lord Hodge in Zoumbas v Secretary of State for the Home Department [2013] UKSC 74 at [10] and endorsed again in CAO at [51]. These include:
“(4) […] while different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play; (5) it is important to have a clear idea of a child’s circumstances and of what is in a child’s best interests before one asks oneself whether those interests are outweighed by the force of other considerations; (6) to that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment.” [emphasis added]
61. Of course, the best interests of children are only a primary consideration. They are not a paramount consideration. It may well be that once the are properly identified and weighed in the balance, the appellant’s article 8 claim still does not succeed. However, it is clear that they must be identified, and that the First-tier Tribunal made no attempt to do so in this case.
62. For these reasons, the decision of the First-tier Tribunal to dismiss the appellant’s article 8 claim involved the making of a material error of law, requiring it to be set aside.
63. The appellant has not identified any error of law in the First-tier Tribunal’s decision to dismiss her refugee claim, and that aspect of its decision is preserved.
64. Taking into account the guidance set out in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) and AEB v SSHD [2022] EWCA Civ 1512, as well as the Practice Statement of 11 June 2018, and I consider that remittal to the FTT is appropriate given the extensive fact-finding required.
Notice of Decision
The decision of the First-tier Tribunal dated 22 June 2025 is set aside in part and is remitted to the First-tier Tribunal for a fresh hearing on article 8 grounds only, before any other judge.

E. Ruddick

Judge of the Upper Tribunal
Immigration and Asylum Chamber

10 February 2026