Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005420
First-tier Tribunal No: HU/64382/2023
LH/07700/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 5th of June 2026

Before

UPPER TRIBUNAL JUDGE KHAN

Between

TWH
(Anonymity Direction Made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Schymyck, instructed by Duncan Lewis Solicitors
For the Respondent: Mrs Nolan, Senior Home Office Presenting Officer

Heard at Field House on 14 May 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity because the case involves consideration of sensitive medical issues. 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 a decision of the Upper Tribunal (Immigration and Asylum Chamber) (‘the Upper Tribunal’). The Upper Tribunal is an independent decision-making body with powers given to it by an Act of Parliament. This decision is made in the context of the Upper Tribunal’s role in considering statutory appeals from decisions made by the First-tier Tribunal (Immigration and Asylum Chamber) (‘the First-tier Tribunal’).
2. The losing party in an appeal before the First-tier Tribunal can apply for permission to appeal to the Upper Tribunal. If permission is granted, the Upper Tribunal will consider the legal arguments put forward by both sides in the appeal. The Upper Tribunal only has power to set aside a decision of the First-tier Tribunal if it concludes that the arguments put forward by the party that applied to appeal show that the decision involved the making of an error of law: see section 12 of the Tribunals, Courts and Enforcement Act 2007 (‘TCEA 2007’).
3. If the Upper Tribunal finds that a decision of the First-tier Tribunal did not involve the making of an error of law, the First-tier Tribunal decision will stand. If a decision of the First-tier Tribunal is found to involve the making of an error of law the Upper Tribunal has power to set aside the decision. The Upper Tribunal will then decide whether it will remake the decision or whether the appeal might need to be reheard in the First-tier Tribunal.
Background
4. The appellant is a national of Jamaica. He entered the United Kingdom in 1999 on a visit visa and was subsequently granted indefinite leave to remain in the UK on the 10 January 2005 as a dependent of his mother. Although he had a British partner, they are no longer in contact, and his son is now an adult.
5. The appellant has a lengthy criminal history starting in or around 2006 and continuing to July 2023. Of specific relevance to this hearing, the appellant was convicted on the 07 September 2016 of possessing with the intent to supply a controlled drug of class A, resulting in the term of 6 years imprisonment. This is the index offence.
6. On 30 April 2019, the appellant was served with a deportation order under section 3(5) of the Immigration Act 1971. This provides that a person who is not a British citizen is liable to deportation from the United Kingdom if the respondent deems their deportation conducive to the public good. Section 32 of the UK Borders Act 2007, defines a ‘foreign criminal’ as someone who is not a British citizen and who has been sentenced to a period of at least 12 months.
7. On 29 November 2021, the appellant received a positive reasonable grounds (RG) decision, and a positive conclusive grounds (CG) decision was made on 17 March 2023.
8. On the 4 December 2023, the respondent refused (‘decision’), the appellant’s protection and human rights claim and maintained the deportation order. The appellant appealed the respondent’s decision to the First-tier Tribunal. In a determination dated 29 July 2025, the appellant’s appeal was dismissed, following an oral hearing, by First-tier Tribunal Judge Head (‘FTTJ’).
9. By a sealed order dated 02 January 2026, permission to appeal was granted by Upper Tribunal Judge Reeds on all five grounds of appeal.
10. The matter now comes before me to determine whether the First-tier Tribunal erred in law, and if so, whether any such error was material and whether the decision of the First-tier Tribunal should be set aside.
11. The appellant and respondent were ably represented by Mr Schymyck and Mrs Nolan, respectively. I am grateful to them for their very helpful submissions.
12. The FTTJ made an anonymity direction and that direction is maintained.
Upper Tribunal Proceedings
13. The 5 Grounds of Appeal relied upon by the appellant before the Upper Tribunal are as follows:
(1) the First-tier Tribunal relied on matters which had not been properly put to the appellant which was procedurally unfair;
(2) the First-tier Tribunal failed to consider the differing level of risk presented by gangs in the UK and Jamaica; and/or it was procedurally unfair to rely on matter not raised by the respondent;
(3) the First-tier Tribunal failed to properly take into account the impact of the appellant’s learning disability on his employment opportunities on return to Jamaica;
(4) the first-tier Tribunal failed to consider the risk of suicide in the context of the lack of support that the appellant will have in Jamaica; and,
(5) the First-tier Tribunal failed to consider the speed with which the appellant would need to obtain accommodation and welfare benefits in order to avoid homelessness and access free medication.
14. As can be seen from the grounds, it is clear that Grounds (i) & (ii) raise matters on the basis of procedural unfairness.
15. In granting permission, Upper Tribunal Judge Reeds considered inter alia that Grounds (i) & (ii) were arguable with the other grounds (iii)-(v) having ‘less merit’ but given the interplay between some of the grounds as raised, she did not limit the grounds.
Findings and Reasons
16. I have considered the First-tier Tribunal decision, the documentation that was before the First-tier Tribunal, the grounds of appeal, and the submissions made at the hearing, before coming to a decision in this appeal. It is not necessary to summarise the oral submissions because they are a matter of record, but I will refer to any relevant arguments in the decision.
17. I bear in mind that judicial caution and restraint is required when considering whether to set aside a decision of a specialist tribunal. In particular, judges of a specialist tribunal are best placed to make factual findings: see HA (Iraq) v SSHD [2022] UKSC 22. 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 SSHD [2007] UKHL 49 and KM v SSHD [2021] EWCA Civ 693. 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 SSHD [2020] UKSC 49. 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 FTT (SEC) [2013] UKSC 19.
Procedural Unfairness
18. I turn first to address Grounds (1) & (2) which raise matters on the basis of procedural unfairness. In support of Ground (1), Mr Schymyck relies on paragraph 20 (i)-(v) of his skeleton argument.
19. In summary, Mr Schymyck states that the First-tier Tribunal relied on a number of matters which had not been properly put in issue by the respondent or raised by the judge at the hearing.
20. These were (i) the First-tier Tribunal made criticisms of the NRM decision which were not raised by the respondent or the judge; (ii) the criticism of Colin Carswell’s expert evidence of the appellant being a victim of modern slavery in the UK was never made by the respondent, the only criticism of Mr Carswell in the respondent’s first review was limited to his lack of expertise about conditions in Jamaica; (iii) the respondent never submitted that the appellant would not be at risk of forced criminality in Jamaica because of his recent success in avoiding forced criminality in the UK (developed further in Ground 2); (iv) it was never put to the appellant by the respondent or the judge that the appellant would be fit to work in Jamaica (developed further in Ground 3, and (v) it was never put to the appellant that his account of his mental illness was inconsistent with his comments in his medical records by Dr Okore.
21. Mr Schymyck submitted that the sheer weight of the matters relied on meant that the First -tier Tribunal decision was rendered cumulatively unfair. However, he argued that the heart of the procedural unfairness was exemplified at point (iii) above when taken with Ground 2. This matter was never raised before the First-tier Tribunal and was not even disputed in the respondent’s Rule 24 response.
22. Mr Schymyck took me to paragraph [77] of the determination where the FTTJ stated ‘Indeed, the appellant has conscientiously taken steps to avoid any situation that would present the risk of re-trafficking in the UK, and I find that he can reasonably be expected to continue to do so after his return to Jamaica’.
23. Mr Schymyck submits that the inference made by the FTTJ, is that if the appellant behaves in the same manner as he does in the UK on return to Jamaica, then he can avoid exploitation in Jamaica. However, he submits that this inference would only be credible if the prevalence of organised gangs in Jamaica were shown to be at the same level as in the UK and that was not the evidence before the FTTJ. The prevalence of organised gangs in Jamaica was shown to be much higher than in the UK as noted in the expert evidence of Mr Sobers dated 6 June 2025 (at paragraph 42) where he stated that in 2023 there were 176 active gangs in Jamaica.
24. Additionally, Mr Schymyck submits that the FTTJ had not taken into account the protective factors available to the appellant in the UK that would not be available to him in Jamaica, for example, accommodation and financial support from this local authority or in-person family support. Further, given the appellant’s learning difficulties it would be much harder for him to overcome bureaucratic hurdles to access essential services, resulting in his risk of re-trafficking/exploitation being higher in Jamaica than in the UK.
25. Mr Schymyck concluded by saying that the FTTJ had made a material error because it went to the risk of re-trafficking in the appellant’s protection claim and the Article 8 ECHR assessment in respect of the appellant’s reintegration in Jamaica.
26. Mrs Nolan for the respondent relied on the Rule 24 response more generally. However, that document does not provide a detailed response to this particular ground but merely states that the judge’s findings were open to them on the evidence while cautioning appellate bodies from interfering with factual findings unless the decision is one which no reasonable judge could have reached.
27. In her submissions, Mrs Nolan, observed at [66] that the FTTJ states that she had considered both the medical and country guidance evidence and also referenced the appellant’s concern that due to his specific vulnerabilities he would be targeted by gangs in Jamaica [68].
28. In concluding her submissions on procedural unfairness, Mrs Nolan took me to the decision in MN (Vietnam) v SSHD [2026] EWCA Civ 485 and the dicta of Dove LJ at [35] where he stated that determinations should be read as a whole and in context and should not be construed in a manner more appropriate to a contract or statute. What was required is a ‘straightforward down to earth reading’ of the determination which seeks to identify whether there is ‘room for genuine doubt as opposed to forensic doubt’.
29. I have carefully considered the submissions made on behalf of the appellant and the respondent on the central premise of the appellant’s ground of procedural unfairness. Despite Mrs Nolan’s spirited submissions, I have no hesitation in concluding that the ground of procedural unfairness has been made out for the reasons that follow.
30. The FTTJ at [66]-[70] sets out her findings concerning the risk of the appellant being forced into modern day slavery on return to Jamaica and effectively concludes that if he continues to do what he has been doing in the UK on return to Jamaica, he will be able to avoid any situation that would present the risk of re-trafficking.
31. I have read the whole decision in accordance with the guidance in MN (Vietnam). However, I am unable to find any proper evidential foundation for the conclusion reached by the FTTJ at [70]. The expert evidence of Dr Davies referenced at [69] by the FTTJ to the effect that the risk of the appellant reoffending in the UK is low, is correctly stated. However, that finding was directed to the appellant’s continued presence in the UK and therefore does not provide the evidential foundation for the FTTJ to conclude that he could avoid the risk of re-trafficking or forced criminality in Jamaica by doing the same as he does in the UK.
32. In this regard, the expert report of Lisa Davies does not support the FTTJ conclusion at [70]. A careful reading of the expert report under the heading ‘Key Findings’ at paragraph 1.20. states:
‘I assess the risk of relapse into substance use and deterioration in his mental health to be high in the event of removal. His risk of suicide is high in the event of removal. He would benefit from ongoing support from his Hestia key worker. The risk of him being re-trafficked if returned to Jamaica is assessed as high. There is a low risk of further offending and serious harm to members of the public whilst [he] remains in the UK and is compliant with medication and abstinent from substances and excess alcohol’.
At paragraph 6.4.5. the expert report states ‘He would in my opinion be at increased risk of a return to drug use to cope in the absence of professional support, anti-trafficking support and the absence of supportive relationships if returned to Jamaica, and this would significantly increase his vulnerability and risk of further exploitation’.
At paragraph 10.0.19. of the expert report it states ‘If faced with further exposure to traumatic events, exploitation or high stress, there is a risk of relapse into substance use and this in turn would significantly increase the risk of [him] coming into contact with those involved in drug supply which in turn increases his risk of being targeted and exploited’.
33. The country guidance case of AB (Protection- criminal gangs internal relocation) Jamaica CG [2007] UKAIT 00018 primarily addresses the availability of sufficiency of protection and internal relocation and does not provide the evidential foundation for the FTTJ conclusion at [70].
34. I am reminded that the core allegation giving rise to procedural unfairness is that matters should have been put to the appellant in the hearing by the judge, or the hearing should have been adjourned to allow the respondent to have prepared to raise those issues.
35. In this context, I recall the decision of the Court of Appeal in Abdi v Entry Clearance officer [2023] EWCA Civ 1455. At [28]-[41] Popplewell LJ stated whether there is procedural unfairness is fact sensitive. He observed that a tribunal may identify an issue which has not been raised by the parties to the proceedings, but it will be unfair, ordinarily at least, for it to base its decision upon its view of the issue without giving the parties an opportunity to address it upon the matter. He further stated that as an expert body, the tribunal is entitled to reject evidence notwithstanding that the evidence has not been challenged before it. Fairness, may, however require it to disclose its concerns about the evidence so as to afford the parties and opportunity to address them’.
36. At [37] Popplewell LJ, approved the dicta of Moses LJ in SH (Afghanistan) v SSHD [2011] EWCA Civ 1284 where he stated that ‘Tribunals, like courts must set aside a determination reached by the adoption of an unfair procedure unless they are satisfied that it would be pointless to do so because the result would inevitably be the same’. Accordingly, the test is whether remission would be pointless because the result would inevitably have been the same.
37. Applying the law to the factual situation, the FTTJ did not have the evidential foundation to conclude at [70] that the appellant would not be at risk of forced criminality in Jamaica because of his recent success in avoiding forced criminality in the UK. The appropriate way for the FTTJ to have dealt with this issue was to have raised it with the parties and given them the opportunity to address it. This was even more important given that the expert and country guidance evidence does not support the conclusion reached even though it is mentioned in the decision. Accordingly, it cannot be reasonably considered that remission in this case would be pointless because the result or outcome would inevitably be the same regardless of the unfair procedure adopted by the FTTJ.
38. For the foregoing reasons, the decision reached by the First-tier Tribunal involved procedural unfairness constituting a material error of law. The error is material because it is central to the appellant’s protection claim of re-trafficking and the Article 8 ECHR assessment regarding his reintegration in Jamaica.
39. In light of my conclusion, the appeal is allowed, the decision of the First-tier Tribunal must be set aside and there is no need for me to go on to consider the other grounds of appeal.
40. At the hearing, I canvassed the parties in respect of further steps in the event of a finding of a material error of law. The parties agreed that if the procedural unfairness ground was made out that the matter should be remitted to the First-tier Tribunal for a full rehearing. That is my view also. Given the critical nature of the conclusions on the risk of forced criminality in Jamaica (re-trafficking) no part of the determination can be preserved.

Notice of decision
The decision of First-tier Tribunal Judge Head of 29 July 2025 did involve the making of an error of law and is set aside. The matter is remitted to the First-tier Tribunal for rehearing before a differently constituted tribunal with no findings of fact preserved.

K.A.Khan

Judge of the Upper Tribunal
Immigration and Asylum Chamber

26 May 2026