Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004701
UI-2025-005219

First-tier Tribunal No: PA/60545/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 9th March 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE WILSON

Between

G Q
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Bahja (Counsel)
For the Respondent: Mr Hulme (Senior Presenting Officer)

Heard at Field House on 3 December 2025

DECISION AND REASONS
Introduction
1. The Appellant appeals against the decision of a First-tier Tribunal Judge (‘the Judge’) promulgated on 9 September 2025 dismissing his appeal against the Respondent’s refusal of his protection claim dated 9 April 2024.
Grounds of Appeal
2. I summarise the grounds as follows:
a. Ground 1 – The Judge misunderstood the Appellant’s Convention reason argument. The Judge incorrectly records that only the first limb of the Section 33(3)–(4) Nationality and Borders Act 2022 (NABA) test was relied upon. The Appellant’s skeleton argument [16–21] made clear that the appeal was advanced on the basis that the Appellant satisfied both limbs of the test.
b. Ground 2 – the Judge failed to properly determine the Appellant’s appeal made pursuant to Article 4 of the ECHR. The Judge “preferred” to consider the Article 4 claim within his Article 3 assessment, rather than determining it as a separate, freestanding ground. The Tribunal is required to decide Article 4 within the context of the legal framework which applies to Article 4 and not to subsume the Appellant’s Article 4 claim into the Article 3 assessment. Given the accepted history of trafficking in 2011 in Albania and Greece it was reasonable to infer the Appellant would be re-trafficked upon return to Albania by those who had exploited him in the past. The risk of re trafficking engages the protective duty under Article 4.
c. Ground 3 – In assessing credibility the Judge failed to properly apply Section 8 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004. The Respondent accepted the Appellant’s account of human trafficking. Accordingly, delay in claiming asylum is immaterial, as the core facts had been accepted.
d. Ground 4 – The Judge made findings that were perverse and irrational. The Judge stated that the “only evidence” of trafficking was oral evidence. The Judge did not consider the Reasonable Grounds and Conclusive Grounds NRM decisions, nor the medical evidence which was consistent with forced labour. In addition, the Judge speculated, without evidential basis, that the asylum claim was motivated by a new partner and child.
e. Ground 5 – The Judge permitted reliance on the unreported decision of DK v Secretary of State for the Home Department [2024] UKUT (Unreported) (IAC) (UI-2023-003379) but then failed to give adequate reasons why he rejected its reasoning. The Judge was required to give reasons for treating DK as unpersuasive, particularly as it directly addressed whether male Albanian trafficking victims form a PSG.
Permission to Appeal
3. In a decision dated 8 October 2025, First tier Tribunal Judge Dieu granted permission on Grounds 1 and 2 only. Permission was refused on Grounds 3, 4 and 5.
4. The Appellant made a renewed application to the Upper Tribunal. In a decision dated 19 November 2025, Upper Tribunal Judge Landes granted permission on remaining Grounds 3, 4 and 5. In addition, Judge Landes observed that “the judge seemed to have taken a rather different view of the appellant’s credibility than that taken by the respondent in the reasons for refusal letter. The respondent accepted the material facts and the reasons why the respondent considered the appellant did not have a well-founded fear of persecution were not based on adverse credibility findings [[11] Reasons for Refusal Letter]”.
The Response
5. The Respondent filed and served a Rule 24 response dated 17 October 2025. As this response was produced prior to the Appellant lodging his renewed application to the Upper Tribunal, it dealt only with the two grounds on which the First‑tier Tribunal had granted permission. In respect of Ground 1, the Respondent submitted that the challenge amounted to no more than a disagreement with the Judge’s findings. In relation to Ground 2, the Respondent submitted that “ it was difficult to imagine” conditions of slavery or forced labour being present without a breach of Article 3. In addition, the authority cited in the Skeleton argument before the First tier Tribunal should be distinguished as it relates to Vietnam where the country conditions and support framework differ to Albania.
Submissions
6. Mr Bahja relied upon the Grounds of appeal. Mr Bahja’s oral submissions reflected the grounds of appeal, where appropriate he developed or highlighted relevant themes. In relation to Ground 1, Mr Bahja submitted that the Judge had misunderstood the argument before him. The Skeleton argument before the Judge clearly demonstrated that the Appellant’s case was advanced on the basis that both limbs of the test set out in Section 33(3)–(4) of NABA were satisfied. The Judge failed to engage with these arguments. This failure was compounded by the Judge’s subsequent failure to properly engage with the reasoning in DK, which, while unreported, had been permitted to be relied upon and directly addressed the issue of distinct identity. In relation to Ground 2, Mr Bahja submitted that the legal duty under Article 4 required a separate structured analysis that the judge failed to undertake. Albeit Mr Bahja accepted that the Tribunal would wish to consider if the outcome would be different if such an exercise had been conducted. As to Ground 3, the Judge erred in attaching adverse weight to delay in circumstances where delay could not rationally undermine credibility as the credibility of the Appellant’s account had been accepted [skeleton argument [48–49]]. Turning to Ground 4, Mr Bahja submitted that the judge’s findings were irrational and perverse in light of the Conclusive Grounds decision. Mr Bahja submitted that these findings were not supported by evidence and were irrational. In relation to Ground 5, Mr Bahja submitted that the Judge had not given adequate reasons as to why DK was not persuasive.
7. For the Respondent, Mr Hulme submitted that the Judge’s decision did not involve the making of a material error of law. In relation to Ground 1, Mr Hulme submitted that the claimed misunderstanding of the Appellant’s Convention reason argument amounted to little more than an attempt to re‑argue the appeal. The Judge had identified the correct two‑stage conjunctive test. In addition the appellant’s evidence was that he had no contact with the gang since 2011; he did not know whether the person or person concerned remain in Albania or whether they had connections to the authorities. As such risk was not made out. The implication being that any error was not material. In relation to Ground 2, Article 4 must be read in conjunction with the relevant statutory and Immigration Rules framework. Even if Article 4 is engaged it does not automatically follow that the Appellant would be granted leave to remain absent a current risk of re‑trafficking. The Appellant had been assessed through the NRM process, had found to be trafficked and had not been granted ongoing leave. Contrary to what is said in the grounds and skeleton argument DC (trafficking: protection/human rights appeals) Albania [2019] UKUT 00351 (IAC) and TDT, R (On the Application Of) v The Secretary of State for the Home Department (Rev 1) [2018] do not support the Appellant’s appeal. Any protective duty, as identified in DC [29] does not extend to the Appellant because his circumstances are such that the risk of re-trafficking has not been made out. As to Ground 3, Mr Hulme submitted that the Judge was entitled to take account of the very significant delay in claiming asylum. AM and BM (Trafficked women) Albania CG [2010] UKUT 80 (IAC) [186]–[187] makes clear the motivation of traffickers is a relevant consideration when assessing risk. The Appellant had not provided a rational explanation for the delay in claiming asylum and as a result the Judge was entitled to draw inferences. Regarding Ground 4, Mr Hulme relied upon MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9 which provides that NRM decisions are not binding on the Tribunal [11]. Mr Hulme maintained that the Judge had properly evaluated the evidence. The Judge had correctly found that the Appellant’s account lacked credibility, particularly in light of the absence of contact with traffickers since 2011 and the absence of evidence about whether those individuals remained in Albania. The Judge’s findings, including those relating to motivation for bringing the asylum claim, were open to him on the evidence. In particular, the Judge was entitled to consider the Appellant’s immigration history, [pages 72–73 of the Upper Tribunal bundle] and draw inferences from that immigration history . In relation to Ground 5, the Judge made clear [20–21] that he had considered DK. The Judge correctly concluded that he was not bound by this decision and had given rational reasons for distinguishing it. Mr Hulme emphasised that the Judge correctly recorded that DK is a pre‑NABA case and accordingly could be distinguished. In addition, Mr Hulme submitted that DK turned on materially different facts. In DK, the appellant’s traffickers had pursued him as recently as 2023 and had described links between traffickers and the police, whereas in the current appeal the Appellant had accepted that he had no contact with his traffickers since 2011 and did not know whether his alleged traffickers remained in Albania or whether they had links to the police [Judge’s Decision and Reasons [25]]. Overall, Mr Hulme submitted that none of the grounds disclosed any material error of law and invited the Tribunal to uphold the Judge’s decision.
Discussion
8. For the purposes of this decision and reasons it is appropriate to deal with the Grounds of Appeal out of sequence.
9. In relation to Ground 1, the Judge correctly identifies that the test set out at Section 33 (3) and (4) of NABA is conjunctive [22]. The judge goes on to state [22]:
As I understand the argument put forward on behalf of the Appellant, it is suggested that the first of these two limbs should be sufficient for him to be recognised under the Refugee Convention on the basis that the second is not applicable. I agree with the Respondent (and by implication the Appellant) that the second condition required by Section 33 cannot be met. It follows that the Appellant has not established that he can bring himself within the Convention.
10. The Judge does not engage with the Appellant’s skeleton argument dated 26 August 2025 [16-21]. The skeleton argument notes the conjunctive test that applies following the coming into force of Section 33(3)-(4) of the NABA [17]. The Skeleton argument records that as the first limb of the test is not in dispute, the sole issue” is whether male trafficking victims have a distinct identity within Albanian society. The Skeleton argument then cites DK and applies to rely upon this unreported case. In DK it is held that Albanian male victims of trafficking have a distinct identity within Albanian society. The Skeleton argument quotes the evidence that the Tribunal in DK found persuasive when making this finding. In particular, the Asylos and ARC Foundation Report dated May 2019.
11. In my judgement, having considered the skeleton argument that was before the First tier Tribunal, it is clear that the Appellant’s case before the Judge was that the appellant satisfied both limbs of the conjunctive test set out at Section 33 (3) and (4) of NABA. In my judgement, it is also clear that the Judge misunderstood the Appellant’s case. The Judge proceeded in the mistaken belief that the Appellant’s case was that only the first limb of the test (innate characteristic) had to be satisfied. This is an error of law. The Judge failed to engage with and resolve a material issue before him.
12. Ground 5 is linked to Ground 1. It is undisputed that the Judge gave permission for the Appellant to rely upon the unreported decision of DK. I am satisfied that the Judge proceeded in the mistaken belief that the Appellant relied upon DK to demonstrate that the test for a PSG was disjunctive and that only one element would need to be established [21 & 22]. When the decision is read as a whole it is clear that as a result of the Judge’s mistaken approach he failed to give adequate reasons why he found DK unpersuasive within the context of the Appellant’s assertion that male victims of trafficking have a distinct identity within Albanian society. That is a material matter and failing to give adequate reasons in respect of this material matter is an error of law.
13. Turning to Ground 3, within the Reasons for Refusal Letter dated 9 April 2024, the Respondent summarises the Appellant’s basis of claim. The Respondent notes “your problems began at the start of 2010 because you borrowed (€15,000) to pay for your father’s cancer treatment in Albania and could not pay it back, you were threatened in 2010” [1b]]. The Respondent accepted that the Appellant is a victim of trafficking [7]. The Respondent indicated that the material facts were accepted [8]. In my judgment, it is clear from the Reasons for Refusal Letter that the Respondent accepted the Appellant’s account of trafficking was as a result of a debt that he owed to loan sharks.
14. Neither party sought to argue that this concession had been withdrawn during the First-tier Tribunal proceedings. There was no application to withdraw this concession during the Upper Tribunal proceedings.
15. However, the judge found the Appellant had not established the basis for why he had been trafficked [28]. The Judge made this finding, in part, due to the Appellant’s delay in claiming asylum [26].
16. In my judgement, the reasons for the Appellant’s trafficking were not in dispute. It is clear from the Reasons for Refusal Letter that the Respondent accepted the Appellant’s account of trafficking on account of a debt owed to loan sharks. I agree that the issue of delay was irrelevant to the credibility of the Appellant’s account of his trafficking because the credibility of this account was undisputed. Accordingly, in my judgment the Judge has given weight to immaterial matters which is an error of law.
17. This error of law is material. The accepted factual matrix was that the Appellant had previously been trafficked on account of a significant debt owed to loan sharks. As a result of the Judge’s error, he did not assess the Appellant’s subjective fear [JCK (s. 32 NABA 2022) (Botswana) [2024] UKUT] or the risk upon return (to include the risk of re-trafficking) within this context. AM and BM makes clear that the motivation of traffickers is a relevant consideration when assessing risk. A significant outstanding debt, even given the passage of time, is a motivating factor. The error resulted in the Judge failing to consider this material factor which is relevant to both the subjective fear and risk on return, to include the risk of re-trafficking. Accordingly, I am not satisfied that the Judge would have inevitably dismissed the appeal had the Judge not erred.
18. In relation to Ground 2, I do not accept that the Judge’s consideration of the Article 4 claim, within his Article 3 analysis amounts to an error of law. However, the assessment of the risk of re-trafficking is an integral component of the Article 4 analysis. The Ground also contends that the Judge failed to consider the risk of re-trafficking within the context of the Appellant’s accepted account. It follows from all that I have said above that Ground 2 is made out. The Judge failed to consider the risk of re-trafficking within the context of the Appellant’s accepted account of having been trafficked in the past due to an outstanding debt to loan sharks. The error resulted in the Judge failing to consider this material factor that was relevant the risk of re-trafficking. Again, I am not satisfied that the Judge would have inevitably dismissed the Article 4 appeal had the judge not erred.
19. As the Appellant succeeds on Grounds 1-3 & 5 it is unnecessary to consider Ground 4.
20. I have considered Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC) and the relevant Practice Direction and Practice Statement. I am satisfied that the nature and extent of the errors of law are such that it is necessary to depart from the general principle that this appeal should be retained within the Upper Tribunal for remaking. The errors identified are indicative that the Judge fundamentally misunderstood elements of both the Appellant’s and Respondent’s case such that I am not satisfied that the parties had the opportunity for their respective cases to be considered by the First tier Tribunal. Accordingly, it is appropriate to remit the case to the First tier Tribunal.
Notice of Decision
21. The decision of the First-tier Tribunal involved the making of a material error of law and is set aside.
22. The matter is remitted to the First-tier Tribunal to be heard de novo by a different First tier Tribunal Judge.
23. I do not preserve any findings of fact.

G Wilson

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

2 March 2026