Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005245 & UI-2025-005248
First-tier Tribunal No: PA/66485/2024 & PA/66486 /2024
LP/03035/2025
LP/03036/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 2nd of June 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE LAY

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
v

TK & UK
(Anonymity Order made)
Respondent

Representation:
For the Appellant: Ms A Everett, Senior Home Office Presenting Officer
For the Respondent: Mr J Dingley, Counsel instructed by TMF Immigration Lawyers

Heard at Field House on 13 May 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the anonymity of the Appellant is maintained.

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 Secretary of State for the Home Department, who was the Respondent in the FTT, seeks to appeal against the determination of First-tier Judge Khan, promulgated on 1 September 2025, which allowed the appeal of the Appellant, TK (and her dependent child). For consistency and ease of reference I will continue to refer to TK as the Appellant in the case and, in turn, refer to “the Secretary of State”.
2. The Appellant is a 37-year-old Namibia national who the Secretary of State accepted had experienced serious domestic violence at the hands of her former partner. She appealed against a decision dated 29 May 2024 refusing her asylum and human rights claims.
3. FTJ Khan allowed her appeal under Article 3 ECHR, concluding that – while a Refugee Convention reason was not engaged – she nonetheless faced a real risk of serious harm on return from a non-state actor, there would not be sufficiency of protection and internal relocation would not be safe/reasonable in the circumstances.
4. In accordance with Directions, there was a Composite Bundle (284 pages) served ahead of the error of law hearing – page references in this determination are in the form [CB: XX], denoting [Composite Bundle: PDF page finder]. There was a Rule 24 reply dated 11 December 2025 drafted by the solicitors, as well as a skeleton argument dated 10 May 2026.
5. At the outset of the hearing, I clarified a procedural issue with the parties. The Secretary of State had been granted permission on both pleaded grounds by FTJ Beach on 12 November 2025 [CB: 21]. The appeal therefore proceeded into the Upper Tribunal for case management and listing of an error of law hearing in the ordinary way. However, on 11 December 2025, a further grant of permission was sealed and served by the Upper Tribunal itself, addressing the very same grounds. There had been no cross-appeal by the Appellant, no further grounds advanced by the Secretary of State and no procedural basis upon which the original grounds needed to be considered, given that FTJ Beach had not restricted her grant. The UT decision appears to be one made in error, probably owing to an administrative error such that the UTJ believed that there was a renewal application. I canvassed the parties’ view and they were in agreement with me that the UT decision dated 11 December 2025 is a nullity, albeit it will remain with CE-File.
Submissions
6. Ms Everett, on behalf of the Secretary of State, maintained the two pleaded grounds of appeal [CB: 16]. Ground 1 argued that there was a failure by the FTJ to provide adequate reasons for why the Appellant could not internally relocate elsewhere in Namibia. Ground 2 argued that “the conclusion that the appellant would be unable to obtain a sufficiency of protection is unsound, as it ignores the fact that the Namibian authorities have provided such protection [to her in the past]”, most notably following a car incident which led to the ex-partner being sentenced to four years’ imprisonment.
7. As regards Ground 1, Ms Everett characterised the relevant passages in the determination was “woefully brief” and inadequate. This was a “reasons challenge”; the Secretary of State could not divine the reasons the FTJ has come to the key finding on internal relocation. The purported persistence of the ex-partner, noted in part at paragraphs XX and XX, was not enough on its own.
8. On Ground 2, the Secretary of State’s position was that the FTJ was obliged to provide “further reasons on the Namibian authorities’ failure to act” in response to earlier incidents. Paragraphs 21 and 23 do not show why the FTJ has “preferred” the Appellant’s interpretation of the objective country evidence.
9. Counsel for the Appellant acknowledged that the conclusions of the FTJ are “brief” but submitted that they had to be read as part of the determination as a whole. In Mr Dingley’s words, “the findings are the reasons”. The Judge’s view on internal relocation impliedly accepted the Appellant’s evidence that the ex-partner was contacting her family members and that she was from the minority Herero community, a subset of the population in a small country and through whose channels information flowed.
10. Mr Dingley, who represented the Appellant in the FTT, also submitted that, in light of the Appellant’s account of past ill-treatment largely being accepted by both the Secretary of State and the FTT, the Judge was entitled to reach the conclusion that the ex-partner was a serious and persistent threat, one who had previously acted with impunity prior to imprisonment. The authorities had at all times been either reactive or complacent, never proactively providing protection. This was the essential context for the finding on sufficiency of protection.
11. In a short reply, Ms Everett submitted that “it was incumbent on the Judge to give reasons” and that it is an impermissible stretch to find implied reasons on the basis of the Judge’s purported acceptance of the Appellant’s Skeleton Argument or by reference to evidence in the bundles about which the FTJ has not made explicit findings.
Conclusions
12. Having regard to Volpi & Anor v Volpi [2022] EWCA Civ 464 [at 2], a Court or Tribunal considering error of law should be circumspect in interfering with primary fact-finding conducted below:
i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.
13. Moreover, a “reasons” challenge has to surmount a relatively high bar. It is worth noting the Senior President’s Practice Direction, “Reasons for decisions”, dated 4 June 2024, which reminds the IAC that “adequate reasons for a substantive decision may often be short. In some cases a few succinct paragraphs will suffice… a challenge based on the adequacy of reasons should only succeed when the appellate body cannot understand the Tribunal’s thought process in making material findings.”
14. The FTJ has made the following clear findings:
i. “The risk from the Appellant’s former boyfriend is a continuing risk” and a “continuing threat” (paragraphs 16 & 21);
ii. The Appellant is a victim of domestic abuse (paragraph 18);
iii. The abuse was “significant” (paragraph 19);
iv. It included “abuse at home during the relationship”, the Appellant called the police “on previous occasions” to no avail (paragraphs 19 & 21);
v. There was an “incident in which the Appellant’s former boyfriend ran her over” (paragraph 19) and the police did react to this incident and he was imprisoned for four years;
vi. After his release from prison he looked for the Appellant and went to her sister’s house (paragraphs 19 & 20);
15. In all respects, the FTJ has plainly accepted the Appellant’s credibility and account of past harm.
16. At paragraph 23 under the heading “objective evidence and caselaw”, the FTJ makes reference to the refusal letter, the Home Office Review and the Appeal Skeleton Argument of the Appellant, stating “having considered [them], I prefer the evidence submitted by the Appellant and I therefore find that the Appellant’s humanitarian protection claim succeeds”.
17. Under the heading “internal relocation” the FTJ states, at paragraph 27: “in view of my findings above, I find that the Appellant cannot internally relocate to anywhere within Namibia, as her former partner is of a continuing risk and as Namibia is a relatively small country, I find that the Appellant’s former partner will be able to locate her anywhere, if he attempts to do so”.
18. It would have been enough for the Appellant to have established risk in her home area and that it would be unduly harsh in all the circumstances to relocate. However, the FTJ has found that the persistence of the ex-boyfriend, the nature of the abuse and, critically, his post-prison efforts to locate the Appellant all mean that he poses a risk to her throughout Namibia, ie. not just in the home area. It is also reasonable to assume, per Volpi, that the FTJ had regard to the Appellant’s witness statement [CB: 50] and the skeleton argument’s identification of evidence [CB: 33] that the Herero minority make up 7% of the Namibia population with significant intra-community information sharing.
19. My conclusion is that Ground 1 is not made out. The FTJ has done enough, in her reasons/reasoning, to make her final position on internal relocation understood. The Secretary of State disagrees with the outcome but the argument in the grounds – “there has been no evidence advanced to suggest that her ex-partner would either know that she had returned, or have any influence to be able to find her” – is a re-running of arguments made below. The FTJ has, for example, found as a matter of fact that the ex-boyfriend looked for the Appellant through family and others. This is the facet of fact-finding that, in the FTJ’s mind, generated the real risk of serious harm in all of the country.
20. I now come to Ground 2 and sufficiency of protection. Here the FTJ’s reasoning is, in my view, deficient.
21. There is no discrete heading for “sufficiency of protection” nor is the phrase used in the determination. I am, of course, concerned with substance rather than form. Paragraph 21 is the only paragraph which is capable of constituting the FTJ’s consideration of this issue and I am treating it as such. While the FTJ appears to begin to posit a distinction between “abuse at home” (on which the police failed to act) and the car incident (to which they did respond), there is no reasoning which explicitly follows a train of thought through to a conclusion on police attitudes and sufficiency of protection, in light of the police having acted in the past, which forms the core of the Secretary of State’s ground. There is no reference to evidence, whether it be the Appellant’s country material or the Respondent’s Country Policy Information Note, “Women fearing gender-based violence, Namibia,” Version 1.0, September 2021 (since updated), which was relied upon in the refusal letter and review.
22. I agree with Ms Everett that a reader is forced to speculate on what the Judge’s reasons were. They are something less than implied. If they are between the lines, they are nonetheless not fully visible.
23. I also acknowledge Mr Dingley’s point that the FTJ has explicitly, at paragraph 23, appeared to accept the ASA/the Appellant’s evidence in toto, but again the reader is left at a loss as to which evidence and which arguments. Perhaps the FTJ means some of them; perhaps the FTJ means all of them. The ASA is thin on sufficiency of protection.
24. Mr Dingley also suggested the issue was that the police had only ever been reactive to harms already committed rather than proactive to mitigate risk from eventuating. This is no doubt a logical and sensible proposition but I am still do not see it reflected in the FTJ’s own evaluation. I do not suggest that a FTJ would not be entitled to reach the view that, in the particular case, there would not be sufficiency of protection. But there has to be sufficient articulation of the evidence and arguments.
25. By concluding that Ground 2 is made out, I emphasise that i) the FTJ’s firm findings of positive credibility remain undisturbed (indeed, they have not been challenged), as does the finding that there is a real risk of harm by the non-state actor on a country-wide basis (thus preventing internal relocation); but ii) there needs to be a rational and reasoned consideration of sufficiency of protection in light of all the evidence for the purposes of Article 3 ECHR, with adequate attention to the particulars of the case, consistent with AW (sufficiency of protection) Pakistan [2011] UKUT 31 (IAC).
Disposal
26. I invited, on a provisional basis, submissions from the representatives on whether the appeal should be retained in the Upper Tribunal or remitted to the First-tier Tribunal, were I to find an error as regards Article 3 ECHR.
27. Mr Dingley’s position was that, in the event of error, the appeal should be remitted to the FTT. Ms Everett was, on balance, neutral.
28. I have had regard to Section 7 of the “Senior President’s Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal” (SPT Ryder, 11 June 2018), Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC) and AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512.
29. I did consider retaining the case in the Upper Tribunal for consideration of the issue of sufficiency of protection, with leave to the Appellant to give oral evidence if she wished. But one further factor has swayed me to remit to the FTT, albeit with preserved findings. I note that the FTJ, at paragraph 28, stated that “in view of my findings above, I am not required to set out detailed findings in relation to Article 8”. There is, in fact, no finding at all on Article 8 ECHR. This is inconsistent with section 86(2)(a) Nationality Immigration and Asylum Act 2002 which obliged the FTJ to consider the ground of appeal raised by the Appellant in her ASA, not least since it also had prima facie merit: she would be returning to a country where it is accepted she has experienced significant domestic violence. She also has a dependant minor child in the UK (and a partner, albeit one who is not settled). These matters will need to be explored in evidence.
30. It is therefore appropriate in the circumstances of this appeal that the appeal be remitted, with preserved findings, for i) reconsideration of sufficiency of protection for the purposes of Article 3 ECHR/humanitarian protection (having regard to the latest iteration of the CPIN) and ii) evaluation of Article 8 ECHR.

Notice of Decision
Paragraphs 16, 23, 26 & 29 decision of the First-tier Tribunal, which allowed the appeal, are set aside and the appeal is remitted to the First-tier Tribunal (IAC), with the findings of FTJ Khan at paragraphs 15, 18-22, 24 & 27 preserved.

Taimour Lay

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 May 2026