Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005305
First-tier Tribunal Nos: PA/52702/2024
LP/12091/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 24 April 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE STERNBERG

Between

TS
(ANONYMITY DIRECTION MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms. M Munro Kerr, counsel
For the Respondent: Mr. J Nappey, Senior Home Office Presenting Officer

Heard at Field House in person on 15 April 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
Introduction
1. This is an appeal by the appellant, TS, against the decision of First-tier Tribunal Judge O’Keefe (‘the judge’) who dismissed the appellant’s appeal by a determination dated 12 May 2025 following a hearing which took place on 25 April 2025. That appeal challenged the respondent’s decision to refuse the appellant’s claim for asylum and humanitarian protection dated 18 January 2024.
2. The judge refused permission to appeal by a decision dated 3 November 2025. Upper Tribunal Judge Perkins granted permission to appeal on 9 January 2026 on all grounds. On 14 October 2025. The judge made an anonymity order given the nature of the appellant’s claim. I maintain that order given the nature of the appellant’s claim.
3. The hearing took place before me in person on 15 April 2026. At the start of the hearing I confirmed with the parties that I had all the relevant documents. I then heard submissions from Ms. Munro Kerr for the appellant and from Mr. Nappey for the respondent. I received a composite bundle running to 695 pages in advance of the hearing. At the start of the hearing Ms. Munro Kerr applied to amend ground 1 of the grounds of appeal to raise a new argument; that the appellant was a member of a particular social group because of her religion. I refused that application for reasons which I gave at the hearing which I set out in further detail below. I reserved my decision, which I now give.

Decision of the First-tier Tribunal
4. To understand the challenges advanced by the appellant to the judge’s decision, it is necessary to summarise that decision in some detail. The judge began her judgment (at [1]-[2]) by setting out the appellant’s appeal and that section 32 of the Nationality and Borders Act 2022 (‘NABA 2022’) applied.
5. The judge then set out the background to the appellant’s claim and the course of the hearing itself (at [3]-[7]). This included the appellant’s immigration history: She arrived in the UK on 28 January 2023 and claimed asylum, it is accepted that she was the victim of domestic abuse by her husband in Namibia, it not accepted her husband has power and influence there. The respondent contended there would be sufficiency of protection in Namibia and she could internally relocate. The appellant has been diagnosed with depression, she is a vulnerable adult. No particular modifications to the hearing were sought beyond taking breaks and giving her additional time. She was supported at the hearing by a friend. At [6] the judge listed the issues in dispute. These were: (i) whether the appellant’s claim engaged the refugee convention, (ii) whether she is at risk from her former husband in Namibia, (iii) whether there is sufficiency of protection or internal relocation available, (iv) whether there were very significant obstacles to her integration into Namibia, and (v) whether refusal would have unjustifiably harsh consequences for the appellant. The judge set out that she received oral evidence from the appellant and from Geraldine Takundwa as well as submissions from both sides. The judge then set out the legal framework that applied at [8]-[12] including the two stage test in section 32 of NABA 2022 and the correct burden and standard of proof for an article 8 ECHR claim.
6. The judge then set out her findings. The judge dealt first with whether the appellant’s claim engages the refugee convention (at [13]-[19]). The judge asked herself: is the appellant a member of a particular social group and does that group have a distinct identity in Namibia, namely that she is a woman who is a victim of domestic violence? The judge found that the appellant has a protected characteristic but she must show that women who are victims of domestic violence have a distinct identity in Namibia, being perceived as different by surrounding society. The judge noted that the appellant’s skeleton argument did not refer to any background material to show this. A US State Department report relied on by the appellant shows domestic violence is a widespread issue in Namibia. The appellant provided an open letter from the All African Women’s group asking for the Home Office’s CPIN on this issue to be revised, arguing in that letter that women are perceived as being different by society in Namibia. The judge found that while the appellant has demonstrated she meets s.33(3) of NABA 2022, the evidence does not show she meets s.33(4); that the group has a distinct identity in the relevant country being perceived as being different by the surrounding society. Accordingly, the judge found that the appellant’s claim fails on refugee convention grounds, she then went on to consider the appellant’s claim is on humanitarian protection and article 3 grounds.
7. The judge analysed the humanitarian protection and article 3 ECHR issues raised (at [20]-[45]) and made findings of fact. She noted that the respondent accepts that the appellant has been the victim of domestic violence but does not accept she is at risk on return or that her former partner has power or influence in Namibia. The judge recorded that she bore in mind the appellant’s status as a vulnerable adult. The appellant made an asylum claim on arrival in the UK. In her claim she was vague about her husband’s connections and influence in Namibia. She could not say if he was involved in any particular political party. He was a police officer and a soldier in Angola, his grandmother was Namibian and his family were there. She did not explain how he was powerful in Namibia. She made no mention of her husband being involved in the MPLA political party in her interview although she relied on this in her subsequent second witness statement. Although there were audio problems in her asylum interview, the appellant was asked a number of problems about her husband’s connections and she did not mention the MPLA and she said nothing about the asserted mis-recording of what she had said in her first witness statement of 20 April 2024. The appellant was asked in interview how her husband’s political connections in Angola would reach the Namibian authorities. Despite submitting some background material there was nothing to show membership of any political group in Angola would give the appellant’s husband any influence in Namibia. Even if the appellant’s husband was a member of the MPLA in Angola there was no background evidence to show that he had influence in Namibia. She only mentioned members of her husband’s family being members of the SWAPO party for the first time in cross-examination. She also said for the first time at the hearing that her husband’s aunt had a high position in Government. The other evidence relied on by the appellant does not support her claim. She referred to an incident where her house was burgled but her claim the police took no action is inconsistent with the documents she provided in relation to this incident. Other material provided by her friends and supporters did not support her claim that the police were not interested in the threats and violence she says she suffered. The CPIN highlights problems of gender based violence in Namibia. It sets out steps the state has taken to prevent gender based violence. The appellant has two children in Namibia and other friends there, she was educated to degree level and was working there. She has been the victim of violence in the past, she is a vulnerable adult. Drawing the threads together, her husband’s claimed influence was vague and unparticularised. She gave no detail of her husband’s political involvement her statement, the account of the 2022 burglary undermines her claim the police would not support her. She has not shown her husband has influence and connections in Namibia. She reported a burglary to the police in the past. The background evidence shows sufficiency of protection and internal relocation are available. She has not shown a risk on return. Nor are there barriers to her following her religion on return.
8. The judge then dealt with the appellant’s article 8 ECHR claim (at [46]-[53]). The judge recorded that there was no challenge under article 3 ECHR based on the appellant’s health. The judge found that the appellant has established a private life in the UK and article 8 ECHR is engaged. She is Namibian and has lived the majority of her life there, there are no language barriers to her integration. She fears violence from her husband. She has approached the police in the past and there is adequate protection. She has family and friends in Namibia. The judge found she would be able to follow her religion on return. She has not become estranged from life there. She is taking anti-depressants. The judge found that she has not established very significant obstacles to her integration into Namibia applying a broad evaluative assessment. The judge carried out the article 8 balancing exercise, noting that the appellant’s status in the UK is precarious. The judge set out the factors weighing in favour of the appellant and those against. She does not meet the requirements of the immigration rules to be granted leave to remain on article 8 grounds. Her private life in the UK has only ever been precarious and can only receive little weight. The balance weighs in favour of refusal. The judge found that refusal of the appellant’s application strikes a proportionate and fair balance. The judge then set out her conclusions (at [54]-[56]) dismissing the appellant’s appeal on humanitarian protection and human rights grounds.

Grounds of Appeal
9. The appellant advances four grounds of appeal. In summary they are as follows:
i. The judge’s assessment of whether the Claim engages the Refugee Convention was wrong, the judge ought to have considered whether the appellant was a member of a particular social group, namely as a women in Namibia and, separately, as a Jehova’s Witness;
ii. The judge failed to take into account relevant factors when assessing risk on return;
iii. The judge made an error of fact leading her to unfairly make an adverse credibility finding; the appellant had said that her husband’s aunt was involved in politics in interview.
iv. The judge’s assessment of Article 8 ECHR was flawed.
10. These grounds were developed in a number of ways in the written grounds of appeal and skeleton argument which Ms. Munro Kerr adopted at the appeal hearing, which I set out in greater detail below. I was satisfied by the end of the hearing that I had understood all of the points that each side wished to make and that they had each had the opportunity to make all of those points within the structure of the overarching grounds of appeal I have summarised above.

The Law
11. The Appeal comes before the Upper Tribunal to decide first whether there is a material error of law in the judge’s decision, and if it does, to re-make the decision or to remit the appeal to the First-tier Tribunal to do so.
12. As the appellant seeks to overturn the judge’s findings of fact on issues in controversy between the parties, the approach I should take is set out by the Court of Appeal in Yalcin v SSHD [2024] EWCA Civ 74; [2024] 1 WLR 1626, by Underhill LJ at [50]-[51]:
50. … I should recapitulate the approach that should be taken in considering whether the FTT made an error of law. At para. 72 of his judgment in HA (Iraq) (but with reference to the appeal in AA (Nigeria)) Lord Hamblen said:
"It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. In particular:
(i) They alone are the judges of the facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. It is probable that in understanding and applying the law in their specialised field the tribunal will have got it right. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently – see AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 678 per Baroness Hale of Richmond at para 30.
(ii) Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account – see MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49; [2011] 2 All ER 65 at para 45 per Sir John Dyson.
(iii) When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out – see R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19; [2013] 2 AC 48 at para 25 per Lord Hope."
51. Mr Malik relied on that passage but added some further points by way of amplification. The only one that I need mention is that in AA (Nigeria)1 in this Court Popplewell LJ said, at para. 34:
"Experienced judges in this specialised tribunal are to be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically, unless it is clear from their language that they have failed to do so."
13. I set out further authorities of relevance in my decision below.

The submissions of the Parties
14. Ms. Munro Kerr adopted the written grounds of appeal and submitted as follows:
i. The judge’s assessment of whether the claim engages the refugee convention was wrong. Women are overwhelming the subject of gender based violence in Namibia. The judge failed to consider whether the appellant met the test under the refugee convention as a woman, rather than as a victim of gender based violence. The judge would have found being a woman is an innate characteristic and perceived as different in the surrounding society. The appellant should also be permitted to argue that she was a member of a particular social group due to her religion. The point was acknowledged as a basis of her claim in the reasons for refusal letter. Although there is no witness statement from the advocate who represented her below and the point did not appear in the skeleton argument below, the respondent had conceded this was a basis of the appellant’s claim in the refusal letter. Although the appellant’s evidence was in some places confusing, the point was before the judge. The starting point was the pleadings, the appellant should have had the opportunity to remedy her case. AL v Secretary of State for the Home Department [2026] EWCA Civ 370 at [69] approves Robinson v SSHD: it is necessary for the Tribunal to comply with its obligations under the convention. The consequence is a genuine refusal of a refugee and could lead to a fresh claim. The refusal letter refers to women fearing gender based violence. The judge found that women who have experienced gender based violence are not a particular social group, the judge ought to have considered whether women were seen as a particular social group, the answer was obvious, they were seen as different from men. The judge didn’t look at this. The point clearly was not put on that basis to the judge. It was an obvious point the judge should have taken into account. It is unhelpful for the appellant to have to make a fresh claim when there was an obvious claim. In Namibia a third of women have experienced abuse in a domestic context. There is nothing in the objective evidence that men experience domestic violence at all. To restrict the approach to women who experienced gender based violence is artificial and the judge ought to have gone on to consider whether the appellant as a woman in general was at risk. The appellant’s skeleton argument needs to be read with her witness statement of March 2025 containing headings relevant to the asylum claim. That refers to her religion at p.523. Although the skeleton argument was scant, the judge should have considered the section of the appellant’s witness statement dealing with risk on return. The appellant raises her mental health as a risk factor on return in her statement at p.522. At p.513, she refers to the risk to her of practising her religion.
ii. On ground 2: the appellant lists various factors in her skeleton argument and witness statement that were relevant to risk on return. The decision granting permission to appeal is favourable. The judge found that the appellant could seek protection from the authorities but did not take into account the approach to the authorities to people who have experienced domestic violence. There is no shelter for women who are victims of gender based violence in Namibia. The judge did not take those matters into account, that could have affected her decision and it should be remade on that point. The Judge did take into account the country evidence unhelpful to the appellant but not that which was unhelpful. That was an error. The judge did look at some of those factors at [33]-[35], whether legal protections are effective is relevant. So far as internal relocation is concerned the judge did not take into account relevant factors, the appellant’s witness statement was not set out very well, but there was evidence the appellant’s husband had located her and threatened her and her friends and family. The judge did not take into account that the appellant is a Jehova’s Witness and the appellant’s husband had located her at a Kingdom Hall, that is a way he could trace her. She should not have to choose whether or not to exercise her religion. As to the issue of whether the appellant mentioned her husband’s membership of the MPLA in her interview, the video file of that interview has not been obtained. The judge said the appellant did not raise her husband being involved in the MPLA until her second statement, but the appellant did not make any corrections to her interview in her first statement. There is another explanation; she did not deal with the interview in that statement. She had the transcript at that stage. It is a possible inference that she came up with that explanation later, it is also possible she did not realise she had to deal with it. The appellant’s explanation is recorded in the judge’s decision at [24]. The judge would need to consider whether there was an explanation for the appellant not mentioning this in her first statement. While it was open to the judge to find this was a recent fabrication, there needed to be a basis for such a finding. The ratio of the decision is at [41]. If the judge had found that the appellant had mentioned the MPLA in interview that would have been a material consideration. There is no mention of the word ‘Perla’, which is recorded as being what the appellant had said in the objective evidence, it only makes sense if read as MPLA. It is material due to the contents of paragraph 41 of the judgment.
iii. Question 35 in the appellant’s interview record shows the appellant said that her ex-husband’s aunt was powerful and connected to politics, she was still mentioning who her family are in answer to a follow up question. The follow up at question 36 relates to her husband. She did not give detail about what role her aunt and uncles held in Namibia. It was said he does have powerful relatives. The Judge at [27] correctly found that the appellant did not say her relatives were members of SWAPO. It was factually incorrect for the judge to say that the appellant had not said her husband’s aunt had a high position in government, that is an error of fact leading to an error of law.
iv. There is some overlap between grounds 2 and 4; factors going to risk on return are relevant to integration. It was accepted that the appellant had suffered violence at the hands of her husband. The question of weight to be given to subjective fear was a matter for the judge, the judge needed to deal with it. It would be a breach of her convention rights for her not to be able to practice her faith freely. The appellant will feel unable to practice her faith because her ex-husband had located her. In her witness statement (bundle p.522) the appellant did refer to her religion as a factor relevant to risk on return and that her husband was doing everything he could to stop her exercising her religion freely. It was a relevant factor. This point goes together with ground 2. Even if ground 2 fails, her subjective fear is still relevant. If the appellant is too scared to practise her faith that is an interference in her article 8 rights. Being able to practise her religion is a part of her personality and her moral integrity. There was no consideration taken of the fact that her husband had previously traced her, so she would not be able to live with family members, that is relevant to article 8. The judge needed to consider that factor. There was no consideration given to mental health. She has experienced very serious violence. The judge needed to consider her mental health and her ability to make decisions in context. The judge needed to turn her mind to that point and her failure to do so is an error of law.
15. Mr. Nappey submitted as follows:
i. As to ground 1 Lata (F-tT: Principal Controversial Issues) [2023] UKUT 163 (IAT); [2023] Imm AR 4 and AL v SSHD [2026] EWCA Civ 370 apply. The grounds do not attack the Judge’s findings at [13]-[19] as to whether a woman at risk of gender based violence in Namibia is a member of a particular social group. The appellant argues that the judge should have considered whether the appellant was part of a particular social group based solely on her being a woman. This was never raised, the sole issue was her status as a woman as a victim of domestic abuse. To say the judge ought to have gone on to consider a different convention reason cannot reasonably be made out in light of the authorities. It does raise a fairness point for the respondent; if it was incumbent on the judge to deal with these issues then the Secretary of State should have had the opportunity to deal with it. The question of the appellant’s status as a woman is a different point from her being a victim of gender based violence. The point was not raised, the judge cannot be criticised for making that finding. This is an attempt to raise points that should have been raised before the judge.
ii. Ground 2: the judge dealt with the appellant’s family and friends being threatened, this at [32]. The judge was well aware that this was the appellant's contention but that is contradicted by the appellant’s statements and her account in interview when she did not mention these alleged threats. The contradiction was not dealt with by the appellant. Those were facts the judge was entitled to take into account. There is no omission by the judge. As to the lack of shelters for victims of gender based violence and a lack of prosecutions, the judge looked at the background evidence at [33]-[39], the judge did not address the level of shelters, it was not necessary to address that point specifically in light of her overall conclusion that the appellant would not be at risk in Namibia given her findings on the alleged influence and reach of the appellant’s husband. The judge found that the appellant has family and friends she can turn to. The lack of shelters does not address the other findings the judge made. It is a materiality point; even if the judge should have dealt with it, it is not material in light of the judge’s overall findings on the appellant’s credibility and risk to her on return. This does not address the other findings the Judge made, that the appellant had not reported her husband to the police directly. As to the dispute about the transcript of the interview, the judge dealt with that in detail at [23]-[25]. The grounds do not engage with [26], which addressed the alternative: even if the appellant’s husband was a member of the MPLA in Angola, there is no background evidence to show that membership of such an organisation would mean such a person had any influence in Namibia. Regarding the submission that the appellant’s husband had traced her because of her religion, that is not the way the case was put in the Appellant’s skeleton argument. The judge made clear findings on the risk on return. Just because the judge did not have regard to a passing comment that the appellant’s husband would sometimes follow her to different Kingdom Halls, does not lead to a reading of the determination to say the appellant would be forced to choose between her faith and protection. Such an interpretation of the judge’s determination is unfair. The judge found at [45] that the appellant could exercise her religion freely. Ground 2 has not been made out. The relevant factors as pleaded were taken into account by the judge.
iii. Ground 3: at [27] the judge noted that the appellant mentioned for the first time in cross-examination that members of her husband’s family were members of the SWAPO party. The other core contention raised then for the first time then is that her husband’s aunt had a high position in government. That was not referred to in either of the appellant’s witness statements. Ground 3 does not disclose any error of law.
iv. Ground 4 is parasitic on ground 2. The judge had clear regard to the relevant factors under article 8 from paragraph [46]. As NC v SSHD [2023] EWCA Civ 1379 highlights, subjective fear is a factor to be considered together with support. The Judge found she would have access to adequate protection and her family and friends at [47]. The judge referred to the appellant’s mental health at [48] and [52(ii)]. There was no medical evidence before the judge. There is nothing to show she is unable to access medication or that she is so unwell that she could not function. This was not the way the case was presented to the Judge. Paragraph [48] captures the relevant medical evidence. The judge correctly applied a broad evaluative judgment at [49], coupled with their findings of fact. The judge did accept that the appellant was a victim of domestic abuse, she was plainly aware of it. That does not constitute a material error or law.

Ground 1: particular social group
16. First In considering this ground I note that the appellant does not seek to overturn the judge’s findings at [13]-[19], that the appellant is not a member of a particular social group as a woman who has been a victim of domestic violence or who fears violence in Namibia. Those findings stand undisturbed. Instead, the appellant now seeks to raise two new social groups which she says the judge ought to have found she was part of, firstly women in Namibia in general and secondly Jehova’s Witnesses. The argument that the judge should have considered the appellant as a member of a particular social group because of her religion was only raised for the first time in Ms. Munro Kerr’s skeleton argument served two days before the error of law hearing.
17. I refused the application to amend the grounds of appeal orally at the hearing. I noted that the appellant’s religion had been noted as a basis for her claim in the respondent’s refusal letter and in her original witness statement. However, it was not raised as a convention reason on which the appellant relied in her skeleton argument for the hearing before the judge. Nor is it apparent from the judge’s determination that the appellant invited the judge to find that Jehova’s Witnesses are a particular social group at the hearing based on any evidence or submissions. There is no suggestion to this effect in the judge’s judgment. The appellant did not provide any evidence from the advocate who represented her at the hearing before the judge to suggest that her case had been put on this basis.
18. Accordingly, it seems to me that both the application to amend the grounds of appeal and the argument that the judge should have treated the appellant as being a member of a particular social group in Namibia were not raised with the First-tier Tribunal as being principal controversial issues for determination by the judge.
19. Second, the Court of Appeal has very recently examined the approach that this Tribunal should take in these circumstances in the case of AL v SSHD [2026] EWCA Civ 370. Giving the judgment of the Court Elisabeth Laing LJ reviewed the principal in Robinson v SSHD [1998] QB 929 at [66]-[69], holding at [69]:
The principle in Robinson is a narrow principle. It is limited to points of refugee law which favour a person who claims to be a refugee, and which are ‘obvious’ and arguable with ‘strong prospects of success’. The reason for that principle is that it is necessary to enable the United Kingdom to comply with its obligations under the Refugee Convention.
The Court then reviewed the Upper Tribunal’s decision in Lata, summarising it at [78]-[83] [81] (with emphasis added):
78. In paragraph 27 the UT said, ‘A judge in the FtT can expect clarity as to the remaining issues between the parties by the date of the substantive hearing of the appeal’. It referred to rule 2(4) of the relevant procedure rules (which deals with the overriding objective). ‘The parties’, it continued, ‘are under a duty to provide the FtT with relevant information as to the circumstances of the case, and this necessitates constructive engagement with the FtT to permit it to lawfully and properly exercise its role. The parties are therefore required to engage in the process of defining and narrowing the issues in dispute, being mindful of their obligations to the FtT’.
79. It followed, said the UT, that ‘unless a point was one which was Robinson obvious, a judge’s decision cannot be alleged to contain an error of law on the basis that a judge failed to take account of a point which was never raised for their consideration as an issue in the appeal. Such an approach would undermine the principles clearly laid out in the Procedure Rules’ (paragraph 28). The reference to a ‘Robinson obvious’ point is the decision of this court in R (Robinson) v Secretary of State for the Home Department [1998] QB 929 (‘Robinson’); as to which, see paragraphs 66-69, above.
….
81. The procedures in the F-tT gave ample opportunities for the parties to clarify their cases: the filing of the ASA, the Secretary of State’s review, a case management review hearing, the start of the hearing, when the judge asks what the issues are, and closing submissions. If by the end of the hearing a party has not identified an issue, a judge is entitled to assume that he or she does not need to decide it. The judge will know about the duty of anxious scrutiny in a protection case, particularly when an appellant is not represented. The duty of anxious scrutiny is not ‘an excuse for the failure of a party to identify …the principal controversial issues in the case’. On the contrary, it was the duty of the parties to identify all such issues. On an appeal to the UT ‘it should be rare indeed for there to be a point requiring anxious scrutiny (which is not Robinson obvious in the case of an appellant)’ to have escaped the notice of the F-tT under the new procedures. Proceedings in the Asylum and Immigration Chamber (‘IAC’) are not ‘some form of rolling reconsideration by either party of its position’ (paragraph 33).
82. The parties must ‘identify relevant issues of their own motion. There is no place for hiding a jewel of a submission in the hope it will purchase favour on an appeal. A party that fails to identify an issue before the FtT that it subsequently asserts to have been essential for a judge to consider is unlikely to have a good ground of appeal before’ the UT. That was not to say that the judge in the F-tT should not be curious, and not ask questions if he or she needed more help. ‘Where, as here, a point has not been identified by the parties, and nor is it one which independently drawn the attention of the judge, it is not an issue which can be appropriately raised for the first time’ on an appeal (paragraph 34).
The Court then applied those principles to the facts of AL and approved the decision in Lata at [87]-[100], holding (with emphasis added):
89. It is clear from Lata that it is an appellant’s responsibility to put all her arguments before the F-tT. It is her duty to identify the points which the F-tT is required to resolve in order to decide the appeal. The UT in Lata described those as ‘the principal controversial issues’. That formula is often used in public law to define the duty of a tribunal or other decision-maker to give reasons (see, for example, South Bucks District Council v Porter (No 2) [2004] UKHL 33; [2004] 1WLR 1953). There is therefore a deliberate symmetry, on the reasoning in Lata, between the parties’ duty to identify the main issues for the F-tT, and the F-tT’s duty to explain what it has made of those issues. The F-tT must decide those issues, and give reasons for its decision on them. But the F-tT can only decide them, and is only obliged to decide them, if the parties expressly identify them.
90. Nor is the F-tT obliged to decide every single issue which the parties have identified; only those which, in its view, will enable it to decide the appeal fairly. Nor is a tribunal required to comb through the documents and the evidence in search of potential points for either party, whether the appellant or the Secretary of State. I reject AL’s submission that the F-tT was obliged to read Dr Heke’s reports with a view to detecting the three points: the potential force of this argument is attenuated by the fact that the F-tT rejected the assumptions on which the crucial parts of Dr Heke’s reports were based. The F-tT’s function is not inquisitorial.
91. There are two qualifications to that statement. First, if the F-tT does not understand or is doubtful about an issue which is before it, it should ask the parties to clarify that issue so that it understands it. Second, the narrow principle in Robinson means that in some Refugee Convention cases, the F-tT may be obliged to investigate and decide a point which an appellant has not identified. That principle does not apply in this case, not least because the F-tT carefully considered and rejected AL’s claim under the Refugee Convention, and because AL’s argument does not meet the stringent merits test articulated in Robinson.
…
93. The F-tT cannot now, on an appeal on a point of law, be criticised for not considering a case which AL did not advance. The F-tT was invited to, and did, consider two of those points in the context of AL’s article 8 claim. It did not consider the impact of the removal process because it was not asked to (see paragraph 62, above). In reaching that conclusion I have taken into account the explanation of paragraph 16 of determination 3 in footnote 5 of AL’s skeleton argument. But even if the UT misunderstood counsel’s point, the fact remains that the F-tT did not refer to this argument in its painstaking reasons. I again infer from that that AL simply did not make that point to the F-tT. The F-tT held that AL’s removal was proportionate for the detailed reasons which it gave. In the light of that finding, it is inconceivable that, had the F-tT considered the three points in relation to the stricter article 3 test, the F-tT could have found that that test was met.
…
99. Finally, I said that I would comment on this court’s decision in AAZA2. In the light of the new procedural rigour which applies in the F-tT, the duty on the parties to identify the principal controversial issues in an appeal, their many opportunities to do so, and the fact that appeals to the UT and to this court are on a point of law only, I find it difficult to imagine a case in which the application of Lata could result in any injustice, let alone serious injustice.
20. Applying those principles to this Ground of Appeal I do not consider that there can be any criticism of the judge for not deciding the appellant’s case on a basis which was not put to her. It is correct that the respondent had identified the appellant’s religion as a basis for her protection claim in the refusal letter and she had referred to it as a reason for her asylum claim in her witness statement. However, the appellant’s skeleton argument for the hearing before the judge did not rely on either her sex alone nor her religion as a convention reason. Nor does it appear that she relied on these matters in her oral evidence or the submissions made on her behalf to the judge. The parties were under a duty to identify the main issues for the hearing for the judge. In my judgment, the appellant cannot now assert that her religion was identified as an issue for that hearing where it was referred to in the refusal letter and her first witness statement, but did not appear at all in her skeleton argument and was not raised as amounting to a particular social group at the hearing before the judge. Applying Lata at [34], as approved by the Court of Appeal in AL, the point not having been identified by the parties as being in issue and not having independently drawn the attention of the judge, it is not an issue which can be appropriately raised for the first time on this appeal.
21. Third, the same reasoning applies equally, if not with greater force, to the argument that the judge should have considered the appellant as being part of a particular social group because of her sex alone. This was not referred to in the refusal letter nor explicitly in the appellant’s witness statements, nor was it raised in her skeleton argument for the hearing before the judge.
22. Fourth, I do not consider the appellant’s argument that her religion nor her sex per se ought to have been considered as particular social groups to be Robinson obvious points. I am not able to conclude that either point has a strong prospect of success if it were raised now. The appellant’s skeleton argument for this appeal does not provide any evidence or detailed reasoning in support of the assertion that woman in Namibia are perceived as different from their surrounding society other than an assertion they are different because they are not men. Nor was there any evidence or reasoning advanced in support of the assertion that Jehova’s Witnesses are so perceived. I reject these submission. As I have noted they are without evidential support or any reasoning as to why they were obvious on the facts of the case or that they have strong prospects of success.
23. Fifth, for completeness, I record that I do not consider that the appellant’s arguments on this ground could succeed independently, given the judge’s findings of fact on the risk the appellant faces. It would be necessary for her to succeed both on this ground and in overturning the judge’s findings of the risk she faces (either because of her personal circumstances or because of her membership of a particular social group) in order to make good this ground of appeal.
24. I reject this ground of appeal

Ground 2: risk on return
25. Ms. Munro Kerr put her arguments on this ground on three bases. First that the judge failed to take into account evidence on the lack of shelters for victims of gender based violence and a low level of successful prosecutions of perpetrators of domestic violence in Namibia. Second, that the judge failed to take into account relevant considerations relating to the appellant’s husband’s ability to trace her including to places of worship. Third, that the judge was unfair to find that the appellant made no mention of political connections her husband had when, she now asserts, she referred to the MPLA.
26. In general terms, I agree with Mr. Nappey’s submissions on this ground. First, the judge gave clear and sustainable reasons for finding that the appellant was not at risk on return and that she could access protection. I accept that the judge looked at this issue holistically and in the round in her judgment, in particular at [33]-[45]. The lack of the existence of shelters was of limited relevance in circumstances, where the judge found, including at [37] that the appellant would have access to support from family and friends in the event of her return. As to the significant of a low level of prosecutions for domestic violence, the judge was entitled to note the contradictions in the evidence on that point at [33]-[41]. That the appellant would have preferred the judge to give greater weight to evidence more favourable to her case does not amount to an error of law. This aspect of this ground is no more than a disagreement with the judge’s findings.
27. Second, I must apply Yalcin, and the Court of Appeal’s judgment in Lowe v SSHD [2021] EWCA Civ 62 at [29]-[30] approving the decision in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 at [114]-[115] in the context of immigration appeals. These authorities explain the correct approach of an appellate tribunal to a first instance Judge’s decision on the facts and their evaluation of the facts. I remind myself that the judge had the benefit of hearing the appellant give evidence and observing her being cross-examined which I have not had and that the judge had regard to the entire sea of evidence whereas this Tribunal is ‘island hopping’. The judge concluded that the appellant’s account of her husband’s claimed influence in Namibia was vague and unparticularised. I consider that it was open to the judge to reach those findings and it was proper for her to do so. It is in that context that the appellant asserts that the judge should have given greater consideration to the fact that appellant’s husband had located and assaulted her and threatened her and the significance of her ability to practice her faith. It is wrong to suggest the judge did not take these matters into account. At [22] the judge recorded the appellant’s claim that her husband had managed to find her when he didn’t know where she was living. The judge noted evidence of threats made to the appellant’s friends, including at [31]-[32]. She concluded that the appellant could practise her religion freely at [45]. I am unable to accept the appellant’s submission that these matters were not taken into account when the judge expressly referred to them. The appellant might have preferred them to be given greater weight, but I consider there was no error in the judge’s approach and the weight to give those evidential points was quintessentially a matter for her, bearing in mind that I should exercise restraint before interfering with the judge’s evaluation of the evidence and the appropriate weight to attach to it.
28. Third, the appellant criticises the judge for finding that the appellant did not mention her husband’s membership of the MPLA in her interview or in her subsequent first witness statement. I do not consider that this is a fair criticism of the judge. The appellant and her representatives did not obtain an audio or video file of the interview to assert that the appellant had referred to the MPLA. Nor do I consider it safe to accept the submission that the appellant must have been referring to the MPLA when the word ‘Perla’ appears in the interview record. The fact that the appellant did not make any corrections to the interview record in her first statement does not assist in advancing this point. The short answer to that submission is that it was open to the appellant do so in her witness statement and she did not. I do not consider that it is fair to criticise the judge for correctly stating the approach the appellant had taken.
29. In any event, I accept Mr. Nappey’s submission that even this was an error, it is not a material one because the judge expressly found at [26] that if the appellant’s husband was a member of the MPLA there was no evidence to show that membership of a political organisation in Angola would mean that a person has influence in Namibia. There was no challenge to that finding on this appeal.
30. Accordingly, I conclude that this ground does not show any material error in the judge’s determination of this issue.
31. I reject this ground.

Ground 3: error of fact effecting credibility
32. I deal with this ground very briefly. The appellant asserts that the judge was wrong to find, at [27], that the appellant had not mentioned her husband’s aunt’s high position in government prior to being cross-examined at the hearing. In interview (questions 35-36) the appellant was asked if any of her husband’s family were powerful or involved with politics. She stated that he has three aunts and uncles but did not detail any political position, power or influence that they held. Nor did she answer a follow-up question on how they are powerful or connected to politics, giving further details of her husband’s uncles and aunts but not answering the question asked. The judge found that the appellant did not say that her husband’s aunt had a high position in government before the hearing. That is unarguably correct. I consider the judge’s conclusion on this issue to be unimpeachable.
33. For these reasons, I find that ground 3 does not give rise to any error of law.

Ground 4: article 8 ECHR
34. The appellant’s case on this ground is that the judge failed to take into account her subjective fear on return, her inability to practise her religion, that she would be isolated and would be in poor mental health as a result.
35. I can state my decision on this ground of appeal with relative brevity. First I reject the contention that the judge failed to take into account the appellant’s subjective fear on return. The judge expressly referred to this issue at [48] when setting out the appellant’s circumstances of relevance to article 8 ECHR, stating ‘The appellant has been the victim of domestic abuse in Namibia and I have no doubt that she does remain fearful of her husband.’ It is wrong to assert that the judge failed to take this issue into account when she explicitly referred to it as a part of her reasoning on the article 8 challenge.
36. In the Court of Appeal’s recent decision in Secretary of State for the Home Department v AB [2026] EWCA Civ 230 considered the correct approach to a person’s subjective fear as a part of an article 8 claim. The Court referred to the earlier decision in NC v Secretary of State for the Home Department [2023] EWCA Civ 1379 and held at [76]:
The test is not a subjective one and the court’s assessment of whether CD is able to relocate to India and the potential impact on her if she were to relocate cannot be based simply on her perception of these issues. As was said in Lal3, to treat it this way “would substantially dilute the intended stringency of the test”. Or, to adapt what was said in NC, the court’s assessment is not limited to CD’s “own perception” of whether she can relocate to India but must consider other, objective, matters. As Mr Biggs submitted, the tribunal had to form its own view.
37. Accordingly, it seems to me that the judge took the correct approach; accepting that the appellant’s subjective fear was a relevant factor to consider under the head of article 8 but that it was necessary to consider other objective matters. In my judgment the judge took this approach and cannot be criticised for so doing.
38. Second, the submission that the judge failed to take into consideration the interference caused to the appellant’s article 8 rights by being unable to practice her faith by having to choose between doing so and being traced by her husband is without foundation. To a great extent this point is parasitic on ground 2 and the failure of that ground deprives this point of any real substance. I consider the judge was correct to conclude at [47] that on her findings of fact the appellant would be able to follow her religion on return to Namibia. Accordingly the suggestion that she would have to choose between practising her religion or living safely is a false dichotomy. This aspect of the appellant’s challenge to the judge’s findings on article 8 fails.
39. Third, so too are the issues of the appellant being isolated and in poor mental health deprived of substance by the failure of ground 2. Nevertheless, the judge recorded that the appellant would be able to access adequate protection, that she has family including her mother and sons in Namibia at [47] and noted the appellant’s state of mental health at [48]. All of these matters were plainly taken into account. The judge then carried out the broad evaluative assessment required of her at [49] and correctly carried out the balancing exercise required at [50]-[53]. I do not consider that there was any error in the judge’s approach to these issues, still less a material error of law that would lead to the judge’s judgment being set aside.
40. This ground of appeal fails.

Notice of Decision
41. The First-tier Tribunal’s decision did not involve the making of an error of law.
42. The appeal is dismissed.

D Sternberg

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

16 April 2026

NOTIFICATION OF APPEAL RIGHTS

1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal’s decision was sent:

2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).

3. Where the person making the application is in detention under the Immigration Acts, the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).

4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).

5. A “working day” means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.

6. The date when the decision is “sent’ is that appearing on the covering letter or covering email