Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005782
First-tier Tribunal No: PA/63284/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 13th of March 2026

Before

UPPER TRIBUNAL JUDGE LODATO

Between

BNUU
(ANONYMITY ORDERED)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Patel, counsel
For the Respondent: Dr Ibisi, Senior Presenting Officer

Heard at Phoenix House (Bradford) on 23 February 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 and Background
1. I have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal (‘FtT’) because the underlying claim involves international protection issues in that the appellant claims to fear persecution or serious harm on return to Namibia. In reaching this decision, I am mindful of the fundamental principle of open justice, but I am satisfied, taking the appellant’s case at its highest for these purposes, that the potential grave risks outweigh the rights of the public to know of his identity.
2. The appellant appeals with permission against the decision, dated 19 May 2025, of a judge of the First-tier Tribunal Judge (‘the judge’) to dismiss the appeal on international protection grounds. The essence of his asylum claim is that he is at risk from his father on account of being a bisexual man. One of the reasons he claimed to be fearful was that he believed his father arranged for his younger brother to be killed on account of his sexuality. Part of his case before the FtT was that he relied on a YouTube clip of a news report which corroborated the fact of the killing. That the judge did not consider the footage and found that the failure to properly put the video before her, is said to be a material error of law.
The FtT Decision
3. The appellant appealed against the respondent’s refusal of his protection claim. The appeal was heard by the judge on 9 May 2025 before dismissing the appeal in a decision promulgated on 19 May 2025. For the purposes of the present proceedings, the following key matters emerge from the decision:
• The judge recorded the agreed and disputed issues between the parties at [6]-[7]. The respondent accepted that the appellant was a bisexual man as he had claimed. However, the existence of any adverse attention from his father or the wider community was disputed and was therefore an issue for the judge to resolve. Sufficiency of protection and internal relocation were additional disputed issues.
• The judge rejected the respondent’s suggestion that the manner in which the appellant left Namibia counted against his credibility ([14]).
• The judge was, however, concerned about tension in the appellant’s various accounts as to how he came to be in possession of documents from Namibia which were said to be supportive of his claim ([15]-[18]).
• The judge expressed further concerns about the apparent inconsistency in the appellant’s father arranging for his younger brother to be killed because he was open about his sexuality when the appellant too had openly engaged in intimate relations with men ([19]-[20] & [24]-[25]).
• The main focus of the error of law proceedings is what was said by the judge at [21] of her decision:
In the corrections to his interview offered by his Legal Representative the Appellant claims that his father admitted to him that he had arranged for an individual whom he named, to kill his brother on account of his sexuality. In the same document he also claimed that he has a news clip of that person’s arrest which is available on You Tube. Despite this I am not provided with the clip. Nor am I provided with any news or media reports concerning the perpetrator. Whilst there is no requirement to provide corroboration and I keep in mind the lower standard that I must apply, given that the case was high profile enough to warrant a clip being posted to YouTube, it is reasonably likely that there will be available news or media reports of the incident. It harms the Appellant’s credibility in my view that evidence which is reasonably likely to be readily available has not been provided.
• The judge was concerned that the appellant had not produced any supporting evidence to show that his father was an influential figure in military or political groups. His account of his father’s power and influence was found to be inconsistent. [22]-[23]
• For all of these reasons, the appellant was not found to be at risk of persecution on return to Namibia ([26]).
• The judge in any event referred to objective country background information to conclude that the appellant could reasonably internally relocate to Windhoek ([27]-[29]).
• The judge rejected the proposition that the appellant would be risk from the wider community in Namibia ([30]-[36]).
Appeal to the Upper Tribunal
4. The appellant applied for permission to appeal in reliance on three grounds of appeal. Only the second ground attracted permission. I set out this ground of appeal in full:
GROUND TWO : The FTTJ failed to consider material evidence
At paragraph 21 the FTTJ says she has not been provided with the clip from YouTube.
The FTTJ failed to consider page 9 of the Appellant’s bundle; PDF page 31 of stitched bundle which is a letter from the Appellant’s representatives dated 30th October 2023 sent to the Respondent in response to further questions from the Respondent and this letter has a hyperlink to the YouTube clip.
The FTTJ had been provided with this evidence in the bundle. The FTTJ’s finding that this evidence has not been provided and therefore affects the credibility of the Appellant’s account cannot therefore be sustained and infects the rest of her findings.
5. At the error of law hearing, I heard oral submissions from both parties. I address any submissions of significance in the discussion section below.
Discussion
6. Although not framed by the appellant’s representatives under the heading of ‘mistake of fact’, I am satisfied that this is the kind of error of law which is asserted to vitiate the lawfulness of the judge’s decision. This type of error of law was considered in the leading authority of E & R v SSHD [2004] Q.B. 1044. At [66] of the judgment of Carnwath LJ (as he then was), the following considerations were held to be of importance in assessing whether a mistake of fact amounts to an error of law:  
[…] First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning.  
7. When I consider the above elements, I am satisfied that all are present in the judge’s handling of the availability of the YouTube clip at paragraph [21]. On the face of the judge’s analysis, it was erroneous to find, as she did at [21], that the YouTube clip was not provided. The judge appears to have broadly considered the corrections to the appellant’s interview (at page 36 of the error of law bundle) but did not appear to have noticed a link at the bottom of the page to the YouTube link. On clicking the link, it connects to a YouTube video of a news report about criminal proceedings in Namibia with footage of a hearing. It is demonstrably inaccurate to state that the clip was not made available, the footage could be played without any difficulty. To that extent, the mistake is established and objectively verifiable. Turning to the third consideration, I have sympathy with the judge for the error which was made. It was not difficult to miss the link to the clip, appearing as it does at the bottom of a document which might not ordinarily play a central role in the evidence to be considered. The appellant’s representatives could have made greater efforts to draw this to the judge’s attention by referring to the link in the skeleton argument and/or the appellant’s witness statement. In addition, arrangements might have been made to play the video during the hearing or to have at least expressly directed the judge to where she could click on the relevant link. All that being said, it seems to me that it would be going too far to suggest that the representatives were at fault for the mistake which was made. The footage was available to be viewed by clicking on a link on a document which the judge plainly considered. The oversight cannot be attributed to the representatives.
8. The final consideration relates to the materiality of the mistake. The judge’s findings on the failure to provide the YouTube footage was one of a range of findings which went against the appellant in the assessment of his credibility. However, the suggested killing of his younger brother, orchestrated by their father according to him, was undoubtedly a central feature of his case on being at risk from the same man. The footage may well have lent a different perspective to the assessment of the appellant’s credibility because at least one part of it was capable of being supported by independent evidence. This is not a case where it can be safely concluded that internal relocation would have remained a reasonable option because it simply cannot be known if, and it can be put no higher than that, the judge would have reached the same conclusion if she had been satisfied that the appellant’s father arranged for his brother to be murdered. The judge did not reach a settled conclusion on sufficiency of protection in the context of the appellant being broadly credible about the factual backdrop to his appeal.
9. Overall, I am bound to conclude (not without some sympathy for the judge who might been afforded greater assistance) that the decision was partly founded on a mistake of fact. The mistake was material. It follows that the mistake of fact amounts to a material error of law. I am minded to set aside the decision in full without preserving any findings of fact.
Disposal
10. Having set aside the decision as involving a material error of law, I must decide where the substantive decision should be taken afresh. The starting point is paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal which provides: 
7.2. The Upper Tribunal is likely on each such occasion to proceed to remake the decision, instead of remitting the case to the First-tier Tribunal, unless the Upper Tribunal is satisfied that:  
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party’s case to be put to and considered by the First-tier Tribunal; or  
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal. 
11. When I ask myself what fairness demands and bear in mind the guidance in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), I am satisfied that remitting the matter to the FtT is the correct course. The full range of fact-finding is still to be undertaken and the FtT is best placed to undertake such an exercise and hear the necessary evidence.

Notice of Decision
The decision of the FtT involved a material error of law. I set aside the decision without preserving any findings of fact. The appeal is remitted to the FtT to be heard de novo before a judge other than the judge who previously dismissed the appeal.

P Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

11 March 2026