Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000767
First-tier Tribunal No:
HU/64881/2023
LP/02035/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

7th September 2026

Before

UPPER TRIBUNAL JUDGE PINDER

Between

I O
(ANONYMITY ORDER MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Jaffer, instructed by Gordon and Thompson Solicitors.
For the Respondent: Mr Pugh, Senior Presenting Officer.

Heard at Field House 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
1. The Appellant appeals, with permission, the decision of the First-tier Tribunal (‘the FtT’/’the Judge’) dated 30th October 2025, in which the Judge dismissed his protection and human rights appeal.
2. An Anonymity Order was made at first instance and the reasons for this are set out at [2] of the decision. I have considered whether it is appropriate to maintain this order and for the same reasons as the FtT, I have concluded that it is. Neither party sought to suggest otherwise.
Factual and procedural background
3. The Appellant is a national of Nigeria, who entered the UK in either 2015 or 2016. He claimed asylum in 2019 and that claim was refused by the Respondent on 30th November 2023. His appeal against that decision was heard by the FtT on 20th October 2025.
4. The Appellant claimed asylum on the basis of his claimed sexual orientation as a gay man. The issues pursued by the Appellant at first instance were recorded at [6]-[9] of the decision and consisted of the following:
(a) The Appellant’s Article 3 (medical) claim was no longer being pursued;
(b) The Appellant’s humanitarian protection and Article 8 ‘Very Significant Obstacles’ claims were based on the same circumstances as the Appellant’s asylum claim;
(c) The Respondent accepted that there was a Convention reason (Particular Social Group / ‘PSG’) and that if the material facts of the Appellant’s claim were accepted, that there would not be sufficiency of protection from persecution in Nigeria. The Respondent also accepted, on that premise, that it would not be reasonable for the Appellant to internally relocate.
5. Since the Respondent disputed the Appellant’s claimed sexuality in her decision, the appeal turned on the Appellant being able to establish that fact.
The decision of the First-tier Tribunal
6. In so far as is relevant to these proceedings, the Judge recorded the following and reached the following findings and conclusions:
(a) At [21]-[24], the Judge considered the factors raised by the Respondent which she argued went against the credibility of the Appellant’s account under s.8 of the 2004 Act, which mainly concerned the delay in which the Appellant claimed asylum. The Judge found against the Appellant, with reasons, and concluded at [24] that the delay in claiming asylum damaged the credibility of the Appellant’s account. The Judge confirmed that it was one of the factors the Judge would take into account when deciding the Appellant’s appeal;
(b) At [25]-[39], the Judge set out the elements of the Appellant’s account that the Judge found to be unlikely or lacking in credibility. These included the following:
(i) The fact that the Appellant had claimed to be “exclusively gay” - the term used by the Judge at [29] when summarising the Appellant’s account – which was inconsistent with the fact that the Appellant had engaged in the UK in long-term and cohabiting relationships with two women. The Judge did not accept the Appellant’s explanations for those relationships – [26]-[29];
(ii) The Judge also considered the absence of any supporting evidence from the Appellant’s mother, which the Judge considered could have been reasonably obtained by the Appellant. This undermined the credibility of the Appellant’s account – [33]-[37];
(iii) The Appellant was “inconsistent on the age he first realised he was gay” – [38]-[39].
(c) At [40], the Judge concluded based on the above summarised findings that the Appellant was not credible;
(d) The Judge went onto consider at [41] the other aspect of the Appellant’s evidence, which included various documents, including a letter from the Appellant’s father, a witness statement from a former partner and friend and a medical report from Dr Bankele. The Judge gave reasons for not attaching any weight to this evidence and in respect of Dr Bankele’s report, the Judge stated as follows:
“(…) the medical evidence of Dr Bankele only confirmed post traumatic depression disorder from the car accident not from his sexuality”
7. I do not summarise the Judge’s reasons for attaching no weight to other items of documentary evidence as these are not the subject of the ground of appeal before this Tribunal.
8. The Judge went on to consider the Appellant’s humanitarian protection and human rights claims but I do not summarise those findings either, since the Appellant does not seek to challenge those in these proceedings. Accordingly, the Judge dismissed the Appellant’s appeal on all grounds.
The Appellant’s appeal to the Upper Tribunal
9. The Appellant was granted permission to appeal on a limited basis by a different judge of the FtT, who deemed the Appellant’s fourth ground to be the only arguable ground. This ground consists of submissions that the Judge erred in law in attaching no weight to the medical report relied upon by the Appellant at first instance. Other submissions address the Judge’s adverse credibility findings relating to the Appellant’s (in)ability to recall his age when he realised that he was gay.
10. The FtT Judge granting permission found that it was arguable that the Judge’s approach to the medical evidence submitted was flawed and constituted an error of law.
11. The Respondent did not file and serve a Rule 24 response.
12. I heard each parties’ oral submissions on the Appellant’s fourth ground of appeal and at the end of the hearing, I reserved my decision. I have addressed the Judge’s decision, and the parties’ respective evidence, where relevant, and submissions, in my ‘analysis and conclusions’ section below.
Analysis and conclusions
13. As summarised above, there are two submissions made under the single ground of appeal that the Appellant has been permitted to pursue. I first deal with the submissions relating to the Judge’s assessment of the Appellant’s ability to recall the age at which he realised that he was gay.
14. Counsel addressed me on the Judge’s finding at [39] of the decision, where the Judge expressly acknowledged Dr Bankele’s evidence that the Appellant suffered from poor memory following a car accident. Mr Jaffer submitted that the Judge then proceeded to make findings for which there was no supporting evidential basis. In particular, the Judge appeared to accept that the Appellant would be unable to remember some matters, namely a specific event or an exact date but, the Judge considered that the Appellant would nevertheless be able to recall “his exact age on such a fundamental matter”. The fundamental matter, as I have summarised already is when, on his account, he realised that he was gay. Mr Jaffer submitted that there was no expert, medical or other evidence before the Judge capable of supporting the distinction made by the Judge.
15. The accounts given by the Appellant concerning his age and when he realised that he was gay were recorded by the Judge at [38] as follows:
“38. Further the Appellant was inconsistent on the age he first realised he was gay. In the SCR [Q4.1] and his witness statement he stated when he was 11-12 years old [§5]. In AIR 1 [Q45] and AIR 2 [Q54] he said that it was 13-14 years old. When the discrepancy was put to the Appellant by Ms Irfan his evidence was that he has a declining memory and he was just giving a rough estimate. When asked if he could give the age at the hearing, he could not give a specific age.”
16. The medical evidence before the Judge concerning the Appellant’s memory loss included the following:
• Dr Bankele’s report which recorded that the Appellant presented to the hospital in Lagos in January 2008 with symptoms of low mood, insomnia, forgetfulness and mood and behavioural changes, with the symptoms beginning after experiencing the loss of someone close in a car accident some three years prior (TB [88]). Dr Bankele confirmed that he “was evaluated and managed as a case of post traumatic depression disorder” and was placed on anti-depressants;
• A medico-legal report prepared by Dr C Marshall, Counselling Psychologist, in which the Appellant also disclosed suffering from inter alia “memory problems – forgetting details of events and dates/time”, “experiences lapses in time (which he referred to as ‘lost time’) and “confusion ‘I can’t tell the difference in things’” (TB [220]). The psychologist’s own observations record that the Appellant was orientated in place and person but in terms of time, he was “somewhat disoriented. His memory was on the whole intact but did struggle at points”. The psychologist diagnosed the Appellant with Complex Post-Traumatic Stress Disorder (‘C-PTSD’) and depression.
17. In light of the medical evidence available documenting some cognitive/memory difficulties, I am satisfied that the Appellant’s fourth ground of appeal, in so far as the finding at [39] is concerned, is made out. There was no medical evidence to support the distinction made by the Judge at [39] and the Judge’s finding that the Appellant would be able to recall “his exact age on such a fundamental matter”. This amounts to an error of law and since this error concerns a core aspect of the Appellant’s account and its credibility, I am also satisfied that the error is material.
18. Mr Pugh submitted, on behalf of the Respondent, that the Judge was entitled to regard the ages given by the Appellant at different stages of his protection claim, as a significant discrepancy. Mr Pugh argued that there is a distinction between recalling a precise date, such as 18th May 2026, and recalling a person’s age, within the year, at which an important realisation occurred. The Judge – Mr Pugh submitted - was effectively recognising that a person with memory difficulties may struggle with the former whilst still being expected to recall the latter with reasonable consistency.
19. For the reasons above, I do not consider that there is any evidence to support even the distinction between approximate age and a precise date for an Appellant who maintains, with some independent medical evidence, that he has difficulty with his memory. I would also add that placing a person’s realisation of their sexuality may not always be linked to a specific age, even approximate.
20. I do consider that there is force in Mr Pugh’s submission that Dr Bankele's evidence was not sufficiently detailed to assist the Tribunal in assessing the nature or extent of the Appellant’s impairment but that is not what the Judge found about Dr Bankele’s evidence. Instead, the Judge attached no weight to the totality of the report because the Judge stated that this addressed symptoms arising from experiencing a car accident as opposed to the Appellant’s sexuality. Furthermore, there is no assessment of the Appellant’s own evidence on his memory, nor of the contents of Dr Marshall’s report where she also recorded the Appellant’s reporting of memory difficulties, as summarised above at para 16.
21. The other aspect of the ground of appeal pursued by the Appellant is the submission that the Judge’s treatment of the expert evidence was flawed. At [41], the Judge considered the documentary evidence – it is said - only after reaching adverse credibility findings at [40] where the Judge concluded “(o)n the lower standard of proof, I do not find the Appellant credible.” Mr Jaffer argued that this amounted to “putting the cart before the horse”, as the medical and psychological evidence was itself relevant to the assessment of credibility and should have informed the Judge’s evaluation of the Appellant’s evidence.
22. It is correct in my view that there is no rational basis for attaching “no weight” to Dr Bankele’s evidence for the reason given by the Judge at [41]. The fact that Dr Bankele addressed the circumstances and diagnosis experienced by the Appellant after a car accident and not as a result of his sexuality, is not a basis for attaching no weight to that evidence. As Mr Jaffer submitted and as I have addressed above, this evidence was nevertheless relevant to assessing the Appellant’s evidence, to understand the Appellant’s history and his abilities as a witness.
23. There is also no engagement by the Judge with the report of Dr Marshall. There is no mention of this report in the Judge’s decision and whilst the Judge noted in general terms, the medical evidence that supported the Judge’s treatment at [11] of the Appellant as a vulnerable witness, the only medical evidence that is addressed by the Judge is that of Dr Bankele. Considering the contents of the report of Dr Marshall, parts of which I have summarised above, and the issues in dispute, Dr Marshall’s report was relevant evidence. A failure to consider this and/or to address its contents and reach findings on it, is a material error of law.
24. I note that whilst the Judge has referred to QC (verification of documents; Mibanga duty) China [2021] UKUT 00033, I am also satisfied that they have misdirected themselves when stating that “(i)n light of QC (verification of documents; Mibanga duty) China [2021] UKUT 00033 (IAC) I have assessed the documentary evidence against the rest of the evidence.” This is because the Judge has at [40] already concluded, based on their analysis at [24]-[40], that the Appellant is not credible. As I have addressed above, the evidence considered at [41] included medical reports.
25. Pursuant to Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367 (17 March 2005), a judge has a duty to make his or her decision by reference to all the relevant evidence and needs to show in their decision that they have done so. Of course, a judge has to start somewhere and so issues of order or form would not ordinarily entail errors of law but what matters is whether the decision contains legally adequate reasons for the outcome.
26. It appears from the Judge’s conclusion at [40] that they have already formed a view on the Appellant’s subjective account of his sexuality and its credibility without having taken into consideration the medical and expert evidence available. This attested to the Appellant’s medical history and state of mind. That is sufficient in my view to amount to a material error of law. In any event, the Judge has also erred in law for the reasons that I have set out at para 22 when attaching no weight to Dr Bankele’s medical report and at para 23, when failing to either take into consideration or to address the report of Dr Marshall.
27. Mr Pugh also submitted that Dr Marshall’s report did not assist the Tribunal in assessing the Appellant’s memory in that no cognitive or memory testing had been undertaken. Whilst the latter is correct, the reporting by the Appellant of the symptoms and Dr Marshall’s own observations still hold evidential value and I am not prepared to anticipate what the Judge may have found on the report when this was not engaged with at all by the Judge in the decision.
28. Considering the above errors all relate to the credibility of the Appellant’s account concerning his sexuality, which is central to the Appellant’s protection claim and central to the outcome given the Respondent accepted that the Appellant would be at risk if his claimed sexuality was accepted, the errors are material and justify the setting aside of the Judge’s decision in its entirety.
29. Considering the central aspect of the Appellant’s appeal remains to be determined and will involve substantial fact-finding, it is appropriate in these circumstances to remit the appeal back to the FtT for re-making, before a different judge.
Notice of Decision
30. The decision of the First-tier Tribunal did involve the making of material error(s) of law and the decision is set aside.
31. The Appellant’s appeal to this Tribunal shall therefore be allowed and the appeal shall be remitted to the FtT for re-making, before a different judge.

Sarah Pinder

Judge of the Upper Tribunal
Immigration and Asylum Chamber

01.09.2026