Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000705
First-tier Tribunal No: PA/63489/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 15 June 2026

Before

UPPER TRIBUNAL JUDGE LODATO

Between

DB
(ANONYMITY ORDERED)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Ahmed, counsel
For the Respondent: Mr Tan, Senior Presenting Officer

Heard at Manchester Civil Justice Centre on 18 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
Introduction and Background
1. I have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal because the underlying claim involves international protection issues in that the appellant claims to fear persecution or serious harm on return to Kazakhstan. 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 her identity.
2. The appellant appeals with permission against the decision, dated 26 November 2025, of a judge of the First-tier Tribunal (‘the judge’) to dismiss the appeal on international protection and human rights grounds.
3. The appellant claimed to be entitled to refugee status because she would be at risk of persecution on return to Kazakhstan due to her membership of a particular social group as a lesbian woman.
Appeal to the Upper Tribunal
4. The appellant applied for permission to appeal in reliance on 6 grounds. At the error of law hearing, it was acknowledged that the lawfulness of the judge’s decision was likely to decisively turn on grounds 1 and 6:
i. Ground 1 – the judge failed to assess whether the appellant would choose not to live openly as a lesbian woman on return due to a well-founded fear of persecution.
ii. Ground 6 – the judge failed to engage with objective country background information on the risk to members of the LGBT community, in particular, the new “propaganda” law.
5. The remaining grounds challenged the lawfulness of the judge’s credibility findings, the likely consequences of the appellant’s sur place activity in the UK, sufficiency of protection and internal relocation.
6. In a decision dated 11 February 2026, a judge of the First-tier Tribunal granted permission for all grounds to be argued.
7. 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
8. At the error of law hearing, Ms Ahmed recognised the central and foundational importance of the issue of whether there was an objective risk of persecution for lesbian women in Kazakhstan. The reason this question was of such importance is that there was no issue between the parties that the appellant was a lesbian woman genuinely in fear of persecution (see [21]). It followed that I was asked to consider the sixth ground of appeal first because if the judge legally erred in her analysis of the objective information going to objective risk, the failure to ask herself why the appellant would live discreetly on return would become demonstrably material within the HJ (Iran) and HT (Cameroon) v SSHD [2010] UKSC 31 structured and sequential analytical framework for deciding such claims.
9. The approach to be applied in claims such as this was explained by Lord Rodger at [82]-[83] of his judgment in HJ (Iran):
When an applicant applies for asylum on the ground of a well-founded fear of persecution because he is gay, the tribunal must first ask itself whether it is satisfied on the evidence that he is gay, or that he would be treated as gay by potential persecutors in his country of nationality. If so, the tribunal must then ask itself whether it is satisfied on the available evidence that gay people who lived openly would be liable to persecution in the applicant's country of nationality. If so, the tribunal must go on to consider what the individual applicant would do if he were returned to that country. If the applicant would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well-founded fear of persecution—even if he could avoid the risk by living “discreetly”. If, on the other hand, the tribunal concludes that the applicant would in fact live discreetly and so avoid persecution, it must go on to ask itself why he would do so. If the tribunal concludes that the applicant would choose to live discreetly simply because that was how he himself would wish to live, or because of social pressures, e g, not wanting to distress his parents or embarrass his friends, then his application should be rejected. Social pressures of that kind do not amount to persecution and the Convention does not offer protection against them. Such a person has no well-founded fear of persecution because, for reasons that have nothing to do with any fear of persecution, he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay. If, on the other hand, the tribunal concludes that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then, other things being equal, his application should be accepted. Such a person has a well-founded fear of persecution. To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect—his right to live freely and openly as a gay man without fear of persecution. By admitting him to asylum and allowing him to live freely and openly as a gay man without fear of persecution, the receiving state gives effect to that right by affording the applicant a surrogate for the protection from persecution which his country of nationality should have afforded him.
The Secretary of State should, of course, apply the same approach when considering applications of this type. Although I have, for the most part, concentrated on the position of gay men, the Secretary of State and tribunals should approach applications concerning lesbian women in the same way.
[Underlining added]
10. It can be seen from the above extract from the Supreme Court’s judgment that judges must approach their decision-making task in an orderly and structured fashion. The repeated use of the precursor, “If so…”, makes it abundantly clear that if a claim falls at one of the stages in that sequential series of questions, the judge is not required to go further and consider the remaining questions. It takes only a moment of thought to see why this logical approach is required. If, on an objective assessment, there was no risk of persecution to lesbian women, the fact that an individual may not live discreetly out of fear of persecution could not succeed because her fear would not be well-founded and she could not qualify as a refugee to a reasonable degree of likelihood. Seen through this lens, it is clear why I was encouraged to assess ground six first. If the assessment of objective risk was legally flawed, then this may destabilise the foundation on which the judge stopped her analysis at the second HJ (Iran) consideration. Equally, if the judge’s consideration of this issue is legally safe and secure, there could be no legitimate complaint about the failure to engage with the appellant’s underlying reasons for being likely to lead a discreet life in Kazakhstan because the question could no longer materially arise for consideration.
11. I am not persuaded that the judge fell into legal error in how she assessed the objective material made available to her. This part of the evidential picture was principally addressed at [39]-[43] (but also see [28] and [30]) where the judge noted the appellant’s fears about the “propaganda” law, the position of concern adopted by the UNHCR in response to proposed legal changes and media articles relied upon by the appellant before observing that the feared legal changes had not yet become law. It was lawfully open to the judge to find, as she did, that the appellant’s fears of being persecuted on account of her sexuality were not objectively well-founded. Even if political discourse in Kazakhstan had shifted to become more unfavourable towards LGBT groups, the judge explained why the evidence supported only social disapproval and discrimination and fell well short of a reasonable likelihood of persecution. It would require a strained and unnatural reading of the judge’s reasons to come to the conclusion that she did not engage with the objective country background information and the prospect of what may flow from the proposed legal changes if they became law.
12. A difference of emphasis emerged during the error of law hearing where it was argued that the judge’s objective risk assessment should have been more informed by the accepted genuinely held subjective fear of persecution. There was an air of circularity to this submission because the judge evidently concluded that the appellant did not have a well-founded fear of persecution (at [45]). This is a formulation of the necessary threshold which self-evidently involves both the subjective and objective constituent parts of the overall assessment. In any event, paragraphs [37]-[38] appear to grapple with this nuance immediately prior to the consideration of the objective country information. Here, the judge discussed the initial reasons why the appellant travelled to the UK and found that she was not motivated by a fear of persecution. This, together with the rejected reasons for the delay in making her asylum claim, caused the judge to conclude that she did not flee Kazakhstan out of a fear of persecution. Even if the judge found that the appellant genuinely feared persecution on return, the finding that she did not flee for that reason appears to have weighed against the proposition that any subjective fears were sufficiently strong or consistent to materially sustain a finding that an objective risk existed.
13. Once it is appreciated that the judge decided against the appellant on the question of objective risk to lesbian women, it would have achieved nothing to continue to ask the remaining HJ (Iran) questions. It was accepted that the appellant was a lesbian woman and would live discreetly on return. Even if this were motivated by a genuine fear of persecution, this fear could not avail the appellant because it was not found to be an objectively well-founded fear according to the judge’s findings at [39]-[45]. Not only does this analysis resolve grounds 1 and 6, but it also resolves the remaining grounds of appeal. In short, the adverse credibility findings did not strike at the core of the claim because it was never in dispute that the appellant was a lesbian woman who feared persecution and would live discreetly on return. In any event, the weak range of arguments directed to specific judicial findings going to embellished aspects of the claim and reasons why her family probably knew that she was a lesbian woman struck me as collection of disagreements and weight challenges. The remaining grounds related to the sur place dimension of the claim, sufficiency of protection and internal relocation. All of these points were incapable of succeeding unless there was a judicial finding that the appellant would first be at an objectively well-founded risk of persecution. Without such a finding, these additional matters simply could not gain traction.
Notice of Decision
The decision did not involve errors of law. I dismiss the appeal against the decision which will stand undisturbed.

P Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

2 June 2026