Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000187
First-tier Tribunal No: PA/04520/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
12th June 2026

Before

DEPUTY CHAMBER PRESIDENT PLIMMER

Between

JC
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Bundock, Counsel
For the Respondent: Mr Wain, Senior Home Office Presenting Officer

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.

Heard at Cardiff Civil and Family Justice Centre on 10 June 2026

DECISION AND REASONS
Introduction
1. The appellant is a citizen of Mexico. He has appealed with permission against a First-tier Tribunal (‘FTT’) decision dated 10 November 2025, dismissing his appeal on asylum grounds.
2. I have continued the anonymity order made by the FTT, as the requirements under the Refugee Convention in this particular case outweigh the demands of open justice. No party sought to argue otherwise.
Background
3. The appellant’s asylum claim can be summarised as follows: whilst with a work colleague, he witnessed a cartel kidnapping; this was followed by threats and being accused of stealing; his colleague was abducted and killed, after which he fled Mexico and applied for asylum in the United Kingdom (‘UK’) on 1 February 2024, leaving behind his wife and children; after his departure, his wife was assaulted at their home and knocked off her motorbike; the wife and children left Mexico after this and the family were reunited in the UK on 8 October 2024.
4. The respondent refused the appellant’s asylum claim in a decision dated 11 November 2024 for reasons mostly relating to concerns regarding the credibility of the account provided.
5. Having heard evidence from both the appellant and his wife, the FTT identified inconsistencies and disbelieved aspects of their account. The FTT explicitly accepted the appellant’s friendship with the colleague who died and that he left his wife and children in Mexico. The FTT also accepted that the wife may have been punched and that she was the victim in a motorbike accident. However, the FTT did not accept that these incidents were caused in the manner claimed by the appellant and his wife i.e. perpetrated by the cartel.
Appeal to the Upper Tribunal
6. The appellant has relied upon three grounds of appeal. Ground 1 addresses the approach to s.32 of the Nationality, Asylum and Borders Act. Ground 2 contends that the FTT failed to treat the wife as a vulnerable witness. Ground 3 challenges the approach to the medical evidence. Mr Bundock relied upon a helpful skeleton argument and Mr Wain relied on his own helpful skeleton argument. Mr Bundock also sought permission to amend the grounds of appeal to add a ground 4, challenging the FTT’s alternative findings on internal relocation, as well as permission to rely upon a witness statement prepared by Counsel representing the appellant before the FTT.
7. When granting permission to appeal the FTT identified ground 2 to be the strongest. Mr Bundock agreed with this, and the parties’ submissions focussed mostly on ground 2 . I therefore begin with ground 2. The parties accepted that there would be no need to address the application to rely upon the recently pleaded ground 4, unless I identified an error of law in the FTT’s approach to credibility. I address the application for permission to amend the grounds and rely upon additional evidence later on in the decision.
Ground 2 – vulnerable witness
8. Ground 2 contends that the FTT ‘s decision contains no reasoning demonstrating how the wife’s accepted vulnerability was taken into account when assessing her memory and / or the inconsistencies in her evidence.
9. In Ferdous Khan v SSHD [2026] EWCA Civ 148 Lewis LJ reached the following conclusion at [37] regarding the Joint Presidential Guidance Note No 2 of 2010: Child, vulnerable adult and sensitive appellant guidance (‘the Guidance Note’):
“The fact that a tribunal has not taken the steps set out in the Guidance Note does not necessarily mean that the tribunal has erred in law, still less that its decision on an appeal is legally flawed. The issue will ultimately be whether the proceedings were procedurally fair so that there was a proper opportunity to give evidence and have that evidence properly and fairly assessed.”
10. As observed by Lewis LJ at [38] “the whole tenor of the Guidance Note, therefore, is directed towards ensuring that the proceedings before First-tier Tribunals enable individuals to participate effectively so that their evidence is properly understood and properly assessed” and at [41], the Guidance Note does not set out mandatory specific steps a tribunal must take. At [48] Lewis LJ said this:
“A failure to take one of the steps set out in the Guidance Note does not necessarily mean that the First-tier Tribunal has erred in law and does not, of itself, mean that the decision is legally flawed. Rather, the question will be whether the First-tier Tribunal has acted in a way which means that the appeal has not been fairly and justly dealt with or, to put it more simply, whether there has been procedural unfairness which materially affects the decision.”
11. It is important to note right from the beginning that it is most regrettable that the skeleton argument prepared for the FTT by the appellant’s then solicitors, the Migrant Legal Project, contains no reference whatsoever to the wife’s vulnerability or the recommended approach the FTT should adopt in order to ensure a fair hearing. Nevertheless, Mr Wain does not dispute that the appellant’s Counsel before the FTT (not Mr Bundock) made an application for the wife to be treated as a vulnerable witness at the beginning of the hearing, and this was accepted by the FTT.
12. I accept Mr Bundock’s submission that the FTT paid no regard to the wife’s vulnerability. The FTT decision does not acknowledge the wife to be a vulnerable witness at all (in breach of [15] of the Guidance Note], albeit there is a general reference to the Guidance Note at [20]. Whilst the FTT referred to medical evidence at [46] and [47], there was no reference to the part of the medical report concerning the wife’s vulnerability and its likely impact on her ability to give a full, consistent and coherent account, and other matters relevant to credibility.
13. I acknowledge that the Guidance Note does not impose a set of free-standing, mandatory legal obligations on the FTT, and failure to take one or more of the steps set out within it will not necessarily mean that the FTT has erred in law: Ferdous Khan at [37-41]. The issue on this appeal is whether the FTT proceedings were fair, and whether the wife’s evidence fairly assessed.
14. In Ferdous Khan, there was “no evidence to suggest that any vulnerability on the part of the appellant affected his ability to give evidence or on the First-tier Tribunal's assessment of it”; his vulnerability was relevant only to whether he would access appropriate healthcare on return and whether there would be very significant obstacles to integration on return. By contrast, in the instant case the detailed Medico-Legal Report prepared by Dr Tania Longman, a GP with training and experience in psychiatry and psychological assessment, and working as an independent doctor / assessor with Medical Justice, concluded that the wife met the diagnostic criteria for Major Depressive Disorder (moderately severe) and PTSD, and further explained as follows:
“MEMORY AND RECALL
133. The medical and psychological research on human memory and trauma, and on accounts of trauma in asylum seekers and refugees, is relevant when considering [the wife’s] account.
134. In my opinion the above factors are relevant to [the wife’s] accounts. She described a highly traumatic experience including an attempt at her life. She has a clinical picture of PTSD and depression. She reports that she sleeps poorly and is likely to be sleep deprived.
135. With these conditions and according to the medical research on memory (see Appendix 4), gaps in [the wife’s] memory would not be surprising clinically.
...
ABILITY TO GIVE EVIDENCE
149. I am concerned about [the wife’s] ability to handle legal proceedings such as further immigration interviews or court hearings. [...] Even in the relatively relaxed setting of a medical consultation, [the wife] showed great difficulty speaking of events in Mexico and the prospect of removal from the UK. She became visibly agitated and emotionally labile when the subjects arose during my assessment.
150. This leads me to her ability to cope psychologically during legal proceedings. In the setting of a court, [the wife] might become so distressed that she might well be unable to focus on the proceedings or to answer questions accurately.”
15. I am satisfied that there has been unfairness in that the FTT failed to acknowledge and then make adjustments for the wife’s vulnerability, when making adverse credibility findings, and this resulted in unfairness. The Guidance Note makes it explicit that “Some forms of disability cause or result in impaired memory” [10.3(ii)], and; “Comprehension of questioning may have been impaired” [10.3(iv)], and; recommends “allowing for possible different degrees of understanding by witnesses and appellants compared to those are not vulnerable... Where there were clear discrepancies in the oral evidence, consider the extent to which the age, vulnerability or sensitivity of the witness was an element of that discrepancy or lack of clarity”.
16. In my judgment there has been unfairness. I accept two of the examples provided by Mr Bundock. First, the FTT failed to consider the wife’s vulnerability might explain any mistakes she made regarding the dates referred to at [43-45] of the FTT decision. Mr Wain noted that the FTT did not identify any internal inconsistencies in the wife’s evidence, but I accept Mr Bundock’s submission that this caution applies to inconsistencies with external evidence or mistakes in recollection. The FTT appears to have given no attention to Dr Longman’s evidence about the likely or possible impact of the wife’s diagnoses and vulnerability on her memory and recall, and her ability to give a clear and consistent account.
17. Second, at [46] the FTT appears to have drawn adverse inferences from the wife’s lack of detail regarding her injuries as a result of the assault at home incident, without considering whether this might be explained by her diagnoses and their impact upon her. Mr Wain submitted that the FTT considered the absence of any supporting medical evidence, which the FTT noted at [47] should have been “readily available”. However, this is difficult to reconcile with the FTT’s earlier acknowledgment in [46] that “the medical report says that the scars on her face were highly consistent with being punched in the face as she described to the doctor”. There was therefore medical evidence supporting the wife’s claim that she was punched in the face. It is difficult to understand what possible objective indicator was readily available or could “reasonably have been obtained” (to use the language at [86] of MAH (Egypt) v SSHD [2023] EWCA Civ 216, as drawn to my attention by Mr Wain) to establish that the appellant was punched for the reason she claimed, as opposed to some other reason, such as theft.
18. At no stage did the FTT consider whether the wife’s vulnerability and Dr Longman’s evidence explained perceived difficulties which had arisen in the evidence, and / or were relevant to the adverse weight which should be attributed to them.
19. In my judgment, these failures gave rise to unfairness which fatally undermine the FTT’s assessment of the account provided by the wife, and by extension the linked evidence of the appellant. It is not possible to say that the credibility assessment would inevitably have been the same, but for these errors.
20. However, it is important to note that the FTT appears to have concluded at [53-56] that in the event it was wrong about credibility, the family could safely internally relocate to another part of Mexico. If that is correct, then the error of law concerning the credibility assessment would be immaterial. I therefore turn to consider the appellant’s belated application to challenge that alternative finding as contained in ground 4.
Ground 4 – internal relocation
21. The Appellant has sought permission to rely upon a new ground 4 namely: the FTT’s finding that the family could safely internally relocate in Mexico was unreasoned and did not address any of the relevant country background evidence. Permission is also sought to rely upon a witness statement by the different Counsel appearing before the FTT to the effect that an application that the wife be treated as a vulnerable witness was made to and accepted by the FTT and the FTT was directed to relevant evidence on internal relocation. Mr Wain clarified that having considered this evidence, he did not seek to go behind those assertions.
22. For the reasons outlined in Mr Bundock’s additional note on the procedure for amendment of the grounds dated 10 June 2026, I am satisfied that the UT has the power to permit an amendment of the grounds and grant permission in relation to the amended ground. This was not disputed by Mr Wain and I therefore need not address the procedural issue in any further detail. I turn to the substantive merits of the application.
23. The application to rely upon ground 4 is significantly out of time. The failure to comply with the time limit is serious and there is no good reason for the delay. The appellant's previous representatives did not identify the point but his very recently instructed representatives acted quickly and without delay following their instruction.
24. I am satisfied that in all the circumstances it is just to permit the amendment, grant permission and consider the narrow issue raised. Ground 4 has been pleaded to address the materiality of the FTT’s approach to the credibility assessment. It only becomes obvious if one properly considers the impact of any error on the overall result. This is a matter that could and should have been raised in a Rule 24 notice, but one has not been filed by the respondent. It has quite properly been identified by the appellant’s new representatives.
25. Ground 4 remains “Robinson obvious” in the sense explained in AL v SSHD [2026] EWCA Civ 370 at [66-69] and [91]. Mr Wain submitted that the case was not pursued under the Refugee Convention in the absence of a Convention Reason. Whilst the skeleton argument before the FTT did not particularise a Convention Reason, it appears that the appeal proceeded on the basis that the Refugee Convention was said to be engaged, hence the FTT’s decision on the claimed Convention Reason at [52] and its dismissal of the appeal on asylum grounds. Even assuming this is not a case brought under the Refugee Convention, it raises fundamental human rights, namely the risk of killing or serious harm contrary to Article 3, ECHR in Mexico. Mr Wain accepted that he had sufficient time to engage with the point, which engages a straightforward legal issue I regard to be strongly arguable, and made out, for the reasons I outline below.
26. The country background evidence before the FTT (pages 124-154 of the consolidated bundle) clearly indicates that the appellant’s home area was dominated and controlled by the Jalisco New Generation Cartel (‘the JNG cartel’). This is a heavily militarised transnational criminal organisation, which engages among other things in fentanyl and methamphetamine trafficking, extortion, human trafficking, migrant smuggling, unlawful mineral extraction, theft and weapons trafficking. It is described as one of the most powerful criminal forces in the world, is designated as a terrorist organisation by the US government, and is said to exemplify the “profound, violent evolution” of transnational criminality in Latin America. The evidence suggests that the JNG cartel has expanded rapidly and now maintains a presence in nearly every part of Mexico and has gained an integral territorial dominance from southern to northern Mexico; has lookouts at ports of entry (including airports and land borders), who report back to the JNG cartel, and; has what it needs “to reach whoever they want, wherever they want” in Mexico. Even if that evidence was not accepted, it needed to be addressed.
27. I am satisfied that against that background, the FTT’s conclusion that the appellant could safely internally relocate if his claim to fear the JNG cartel was accepted, was unreasoned and failed to engage with the country evidence available. The appellant has therefore made out grounds 2 and 4.
Final points
28. Having found in the appellant’s favour on grounds 2 and 4 it is unnecessary for me to address grounds 1 and 3. The FTT decision is fatally flawed and must be determined de novo. Given the unfairness I have identified above and the extent of the fact finding necessary, this appeal is remitted to the FTT.
Decision
29. The FTT decision contains a material error of law and is set aside. It is remitted to the FTT with no findings preserved.

DCP Plimmer
Deputy Chamber President Plimmer

11 June 2026