Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000385
First-tier Tribunal No: PA/59501/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
27th May 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE STAMP

Between

EV
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEAPARTMENT
Respondent

Representation:
For the Appellant: Ms L Burnard, Counsel, instructed by Batley Law
For the Respondent: Mr D Simpson, Senior Presenting Officer

Heard at Field House on 6 May 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

Background

1. The appellant appeals, with permission, the decision of the judge dated 13 October 2025 on the basis that it contains an error of law. The judge dismissed the appeal against the respondent’s refusal to grant her protection claim.

2. The appellant is a 25-year-old Namibian national. The appellant alleged that on 9 September 2021 her stepfather raped, kicked, strangled and sexually assaulted her. She tried to report the incident to the police but received no help from them. Subsequently, the appellant attempted to move away from the family home initially to her grandmothers, but her mother and stepfather regularly visited and he continued to harass her. She then rented a room in Naraville but was found by her stepfather through her social media posts and she returned home once she had heard that her stepfather had left the house. Subsequently, her stepfather did return home and his continuing presence and fear of future abuse resulted in her attempting suicide on 8 July 2022.

3. On 23 December 2022 the appellant became pregnant with her son as a result of her stepfather’s abuse who threatened to kill her if she did not have an abortion. She left Namibia and arrived in the UK on 7 January 2023, where she claimed asylum.

4. The respondent refused the appellant’s asylum claim on 26 March 2024 on the basis that her account lacked credibility given the number of inconsistencies and discrepancies. In the alternative, if she returned to Namibia the respondent considered there would be sufficiency of protection from her stepfather’s abuse or that she was able to relocate away from her home area.

5. The judge dismissed the appeal on the grounds that the appellant’s narrative lacked credibility and highlighted a number of inconsistencies and concluded she had not discharged the burden of proof to demonstrate she had been attacked and raped by her stepfather or that she had sought protection from the police or attempted a genuine relocation away from her mother’s home. The judge, in the alternative, found that there was sufficiency of protection if the appellant returned to Namibia and that internal relocation was both safe and a reasonable alternative for the appellant.

6. The appellant appealed against the decision, and this was initially refused by the First-Tier Tribunal on 12 January 2026 on basis that the grounds amounted to a lengthy disagreement with findings of fact and disclosed no error of law. Permission was subsequently granted by Deputy Upper Tribunal Judge Welsh on 2 March 2026 on all grounds on the basis that it was arguable that the judge had erred in his credibility assessment and his subsequent treatment of sufficiency of protection and internal relocation.

Initial Matter

7. The commencement of the hearing was delayed as the respondent had not been served with the consolidated bundle. Additionally, Ms Burnand was working off the documents before the First-tier. After discussion, given that Mr Simpson had access to the First-tier evidence both representatives confirmed that they were happy to proceed. I requested that any references to specific evidence in submissions be by reference to the title of the document rather than a cross-reference to page numbers to avoid confusion and on that basis I commenced the hearing.

8. Batley Law are reminded of paragraph 7 of the Senior President of Tribunals Practice Direction dated 31 August 2023 that CE-File cannot be used to provide documents to another party. Documents which are required to be provided to another party must be sent or delivered to that party by another method permitted under rule 13 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Submissions

9. Ms Burnard relied on her renewed grounds of appeal dated 22 January 2026. Her first four grounds all related to the judge’s errors in his assessment of the appellant’s credibility. First that the judge had misunderstood the contents of the South West London & St George’s Mental Health Trust letter dated 2 November 2023 (the “Letter”) since she had incorrectly thought that the reference to an assault on 10 July 2021 when the appellant had been drugged while out drinking was a reference to her sexual assault by her stepfather when these were two entirely separate occasions. The judge had unfairly drawn adverse conclusions on the appellant’s credibility due to the perceived inconsistencies between the appellant’s version of events and those set out in that letter. The 10 July assault and the circumstances surrounding it were never part of the appeal.

10. The second ground relates to the judge unfairly treating the inconsistencies in the appellant’s evidence as to the date of the sexual assault by her stepfather which she had initially stated was 10 September before later correcting it to 9 September. The judge had held that the appellant had not given any explanation for this discrepancy but she had done so both in her interview that she became confused and in her witness statement that she had been traumatised and had mis-remembered the date. The judge also incorrectly suggested that the 9 September date was included in the Letter. The judge should have properly taken in to account the guidance set out in the Assessing credibility and refugee status in asylum claims lodged on or after 28 June 2022 (“Credibility Guidance”) recognising that victims of violence may have difficulties in recalling specific details.

11. The third ground is that judge unreasonably concluded that the appellant should have reported the assaults to hospital staff. First, the judge had referred to the appellant being in hospital for a week when it was 4 days. Again, the judge failed to have proper regard to the Credibility Guidance which highlights that victims of harm may find it difficult to recount traumatic events which may result in delay of disclosure. Ms Burnard also directed me to the hospital handwritten record of 9 July 2022 indicating EV felt unable to open up and the NHS West London letter of 20 December 2023 stating that the appellant had not previously been open to discussing her mental health or accessing support, both of which were consistent with her feeling unable to reach out to the hospital staff.

12. The fourth relates to the judge’s conclusion on inconsistencies in medical documents, given some were handwritten while others were formal documents. The appellant was not given the opportunity to explain the differences which arose from them being issued by two different hospitals. Additionally, the appellant had explained in her witness statement that medical notes were stamped “Katutura Hospital” and were in the form in which she received them.

13. In relation to sufficiency of protection, the judge had misapplied the CPIN which sets out clearly that the Namibian state is unable and sometimes unwilling to provide protection due to legislation and enforcement failings and there is a lack of meaningful protection available.

14. On internal relocation, again the judge failed to properly take into account the CPIN indicating that single parents may be ostracised or marginalised. Additionally, the appellant would be unable to lead a relatively normal life without facing undue hardship in accordance with Januzi and others v Secretary of State for the Home Department [2006] UKHL 5 given her evidence of her lack of money and skills to find work.

15. Mr Simpson relied on his Rule 24 response. On the first ground the judge could legitimately conclude that the reference in the Letter to the sexual assault was the one committed by the appellant’s stepfather as no other sexual assault was mentioned in that letter. On the discrepancy between the two dates that the assault occurred, the judge had taken into account the appellant’s situation, treating her as a vulnerable witness but referring to Dr Zafar’s medical report and the Letter concluded that the appellant was not confused or had memory issues. In relation to the failure to report the assault to hospital staff the judge was entitled to come to the conclusion she had after taking account of the appellant’s medical condition and the fact that her stepfather would have not be in attendance for the entirety of her hospital stay. Finally, the judge had made no procedural error on his consideration of the medical notes – these were submitted as part of the appellant’s evidence and it was to her to explain any inconsistency in their format or appearance.

16. In relation to the remaining two grounds, these only become relevant if an error of law is found in the judge’s treatment of credibility. In both the sufficiency of protection and relocation the judge was entitled to come to the conclusions she did and gave appropriate reasons for so doing. These grounds amount to nothing more than a disagreement with the judge’s decision.

Discussion and Decision

17. Given the first four grounds of appeal relate to matters of the judge’s assessment of the appellant’s credibility, my starting point is the observation made in R (Iran) v the Secretary of State for the Home Department [2005] EWCA Civ 982 at paragraph 8 that a tribunal would only “very rarely” be able to overturn a finding of fact based on oral evidence and the assessment of credibility. The judge would have had the benefit of hearing the appellant's evidence in person and had the ability to interact with her, whereas I have not.

18. It is also worth noting at the outset, that there were a number of grounds on which the judge found the appellant’s narrative lacked credibility of which four have been challenged. The judge also considered that the appellant’s lack of knowledge of her stepfather’s senior rank and role in the army (paragraph 31), the discrepancies in her account of whether the assault was reported to police (paragraph 32) and the lack of any genuine attempt to relocate (paragraph 34) each damaged her credibility and are not contested as part of the appeal. Accordingly, if I find merit in any one or more of the first four grounds, I will have to consider whether the error was material, in the sense that the judge could have come to a different outcome particularly in light of his uncontested findings on credibility concerns.

19. Turning to the first ground relating to the Letter, for the reasons given by Ms Burnard there was a clear misunderstanding by the judge that the reference in letter to 10 July assault referred to a separate incident rather than the sexual assault by the appellant’s stepfather. The judge, in paragraph 29, commented that given the account in the Letter was markedly different from that given by the appellant it “causes me concerns about the overall credibility of this appellant’s account.” However, that is not the end of the matter. E and R v Home Secretary [2004] EWCA Civ 49 sets out that for a mistake of fact to become an error of law, it was, amongst other things, a requirement that the appellant (or her advisers) not to have been responsible for the mistake. Accordingly, the issue for me is whether the judge unreasonably concluded that the reference in the letter could be read as a reference to the stepfather’s assault rather than an unrelated incident.

20. The second page of the Letter begins:

“History of presenting complaint

E is currently seeking asylum in the UK, fleeing her home country of Namibia in January 2023, where her life was threatened by her step-father, who is the father of [A]. E’s step-father consistently sexually abused E throughout her teens and [A] was conceived through rape. E’s mother is not aware, she felt she couldn’t tell her as he threatened her, he made comments that if she did not abort [A] or if she told anyone about his actions, he would kill her and leave her to be found in the desert.

Emily suffered sexual assault on July 10th 2021, she was out drinking and was drugged, she woke alone in an unknown location and was bruised all over, including her vagina. Emily received no support for this.”

21. Ms Burnand’s submission is that being set out in a separate paragraph and given the specified date it clearly referred to a separate incident unrelated to the actions of the stepfather given this assault was never part of the appeal. I do not accept this – the 10 July paragraph immediately followed the one setting out the background of her stepfather’s assault and it was not unreasonable for the judge to consider this was a particularisation of that assault. The date was different from that given in the appellant’s witness statement but the judge had already identified a number of inconsistencies with the appellant’s evidence and so that would not, in itself, indicate that this was an entirely separate incident. Nor is Ms Burnand’s submission consistent with her own contention that the 10 July incident was never part of the appeal given it was referred to in the evidence submitted on behalf of the appellant. Accordingly, it was incumbent on the appellant to make this clear that despite the reference to the 10 July assault it was unrelated to the appeal. I find no error of law by the judge on this point.

22. The second ground relates to the consideration by the judge of the differing dates that the appellant gave on which the sexual assault took place and whether the judge appropriately took into account the Credibility Guidance given that the judge accepted that the appellant was a vulnerable witness.

23. The Joint Presidential Guidance Note of No.2 of 2010 on the treatment of vulnerable witnesses (the “Guidance Note”) sets out principles which First-tier judges should take into account when considering the evidence of a vulnerable witness and the Court of Appeal in AM (Afghanistan) v SSHD [2017] EWCA Civ 1123 made it clear that failure to follow such guidance could result in an error of law and emphasised the importance in asylum decisions of procedural fairness.

24. The starting point is paragraph 3 of the Guidance Note which provides that it is for the judge to determine the relationship between the vulnerability and the evidence adduced:

“The consequences of such vulnerability differ according to the degree to which an individual is affected. It is a matter for you to determine the extent of an identified vulnerability, the effect on the quality of the evidence and the weight to be placed on such vulnerability in assessing the evidence before you, taking into account the evidence as a whole.”

25. The judge in paragraph 28 did exactly that. She considered the medical report of Dr Zafar noting the appellant presented with symptoms of PTSD as well as a depressive episode and general adjustment disorder but noted “the appellant’s good cognitive skills and insight into her condition”. The report also stated that traumatic events in the past caused these conditions which the judge expressly acknowledged and took into account. The judge noted that since November 2023 the appellant was under the supervision of the Mental Health Trust which noted she was not confused, had no memory problems and was oriented in time, place and person. The judge’s conclusions on the degree of the appellant's vulnerability could not have been clearer:

“Notwithstanding the vulnerability of this appellant at the time of these diagnoses, there is nothing in the medical evidence which indicates that she has ever been in any way prevented from giving a full and coherent account as a result of mental ill health. Whilst the medical evidence does, I find, support the contention that she has suffered traumatic events in the past, it does not provide any explanation for the numerous discrepancies and vagaries in her account which I find taken as whole, go to the heart of her claim.”

26. Ms Burnand’s submission is essentially that she does not agree with the assessment of the judge’s analysis on the extent of the appellant’s vulnerability. The judge’s comment that no explanation had been given on why a different date had been given on four separate occasions can be fairly read as credible explanations in light of his findings in paragraph 28. The Credibility Guidance, which Ms Burnand submits was not properly considered, is consistent with the approach set out in the Guidance Note. On page 46 under the heading “The effect of trauma on memory and disclosure” it emphasises the importance of the consideration of all the medical evidence in coming to any conclusion on credibility. All the paragraphs of the Credibility Guidance quoted by Ms Burnand include the word “may” or “may not” as the impact of trauma on credibility is expressed to be ultimately a matter for the decision maker taking into account all the evidence. This is the approach taken by the judge and I find no error of law.

27. The third ground that is that the judge had irrationally concluded that the appellant had failed to report her stepfather's sexual assault to hospital staff. In light of the judge’s finding on the extent of the appellant’s vulnerability, she was able to conclude that it was reasonable to expect the appellant to disclose the assault to hospital staff. The judge was also able to take in to account the appellant’s evidence that she had reported the incident to the police which indicated a willingness to disclose the assault to third persons. Whilst the judge may have incorrectly considered the appellant to have been in hospital for 3 days longer than she actually was, I do not consider this to be a material factor in the judge’s determination of the issue given, even in that timeframe, there would have been opportunity to report the assault given the judge’s legitimate rejection of the appellant’s explanation that her stepfather was present for the entirety of her stay.

28. The fourth ground relates to the judge’s treatment of the inconsistency in form and substance of the medical reports. The report relating to her possible appendectomy was on headed medical record paper and was typed. The judge noted that this was “in stark contrast” to the handwritten note written on A4 lined paper which did not identify the hospital or the author in relation to the stepfather’s assault and found that such discrepancy, together with the given date of 9 September “causes me considerable doubts with regard to the overall credibility of her account”. The judge was entitled to consider the appellant’s explanation in her witness statement as insufficient to discharge the burden of proof. Ms Burnand’s submission was that the judge fell into procedural error by failing to put these discrepancies to the appellant who would have explained that the discrepancies by explaining that the documents were produced by two different hospitals. Again, I find no error of law – it is the responsibility of the appellant to provide the necessary evidence to discharge the burden of proof. If that evidence is equivocal in some manner, it is not the responsibility of the judge to identify the equivocation and ask the appellant to address it, this would be inconsistent with the burden of proof being on the appellant and turn the judge into an investigator rather than decision maker. Accordingly, it was the responsibility of the appellant to put into evidence any matter that she wished the judge to consider when reviewing her medical evidence and, in failing to do so, the judge was able to conclude on the basis of the evidence as was presented to him.

29. Given that I have no error of law on the first four grounds I do not need to consider the other two grounds on sufficiency of protection and relocation given they are predicated on the basis that the appellant would be persecuted for a Convention reason on return to her home country which the judge legitimately found she would not be.

Notice of Decision

For the reasons set above, there are no errors of law in the decision of the First-tier Tribunal and I decline to set it aside

Mark Stamp

Judge of the Upper Tribunal
Immigration and Asylum Chamber

11 May, 2026