Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000896
First-tier Tribunal No: PA/52755/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

31st July 2026

Before

UPPER TRIBUNAL JUDGE BRUCE
DEPUTY UPPER TRIBUNAL JUDGE NEILSON

Between

KA
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Haddow, Counsel, Gray & Co, Solicitors
For the Respondent: Ms Arif, Senior Home Office Presenting Officer

Heard at Edinburgh on 24 June 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 & Background
1. The appellant is a citizen of Nigeria. The appellant made a protection claim by further submissions on 9 November 2024. The basis of his claim was that as a bi-sexual man he feared persecution on return to Nigeria. His application was refused by the respondent on 16 January 2025.
2. The appellant appealed to the First Tier Tribunal (“FtT”) against the decision of the respondent to refuse his application. The appellant appealed on asylum grounds, humanitarian protection grounds and human rights grounds. By a decision dated 22 November 2025 the FtT dismissed the appellant’s appeal (“the FtT Decision”). The appeal by the appellant was dismissed on credibility grounds on the basis that the FtT did not accept that the appellant was a bi-sexual man.
3. On 25 February 2026, the appellant was granted leave to appeal against the FtT Decision to the Upper Tribunal. The appellant appealed on the ground that the FtT had made an error in law in failing to consider the alternative ground put forward by the appellant – that he would face persecution upon return to Nigeria on the ground that he was perceived to be gay whether or not in fact he was gay.
4. The respondent did not oppose the appeal to the Upper Tribunal. By a decision on the papers by Judge Mandalia dated 20 April 2026 (see Appendix A) the appeal was allowed and the decision of the FtT was set aside. The appeal was retained before the Upper Tribunal for re-making.
5. We, as a differently constituted Panel of the Upper Tribunal, now remake the Asylum appeal pursuant to the decision of Judge Mandalia.
Remaking the Decision
Preliminary matters
6. Mr Haddow for the appellant made a Rule 15(2)(a) application for us to accept, although lodged late, additional evidence, consisting of a short supplementary witness statement from the appellant, some photographs and some country background evidence consisting of excerpts from the Country Information and Policy Note - Country Policy and Information Note– Nigeria: Sexual orientation, gender identity and expression, and sex characteristics (v4.0 June 2025) (“the CPIN”). There was no opposition to this from Ms Arif and we accordingly allowed the application.
7. We raised with both parties the issue of what facts, if any, from the FtT Decision had been preserved by Judge Mandalia. In the decision by Judge Mandalia there was no express reference to the preservation of any facts. Both Ms Arif and Mr Haddow agreed that all of the facts found by the FtT in the FtT Decision should be treated as preserved. We consider that that is the correct interpretation of the decision by Judge Mandalia. The FtT Decision was overturned purely on the issue of the failure to consider the alternative ground. Judge Mandalia makes specific reference to the appellant not challenging the finding that he was not a bi-sexual man (paragraph 5) and in considering the disposal of the appeal he comments that the remaining issue is a narrow one (paragraph 11). We conclude that it is implicit within the decision from Judge Mandalia that all findings in fact from the FtT Decision are preserved for the purposes of this re-making.
Issues and the Law
8. We consider that the only issue for us to consider is whether it was reasonably likely that the appellant would be persecuted in Nigeria because he was either perceived as being gay or because he was an active supporter of LGBT groups. This was the narrow issue referred to by Judge Mandalia. Mr Haddow categorised these as either membership of a particular social group (perception of being gay) or political opinion (advocating for LGBT groups). We accept that on either ground if the risk of persecution is established then a Convention reason exists and the asylum claim would be made out.
9. The respondent accepted that if we were satisfied on the issue that persecution was reasonably likely then that was determinative of the asylum claim.
Evidence & Submissions
10. We heard evidence from the appellant who adopted his supplementary witness statement of 9 June 2027 and reaffirmed his witness statement of 15 July 2025. The appellant was cross examined by Ms Arif.
11. We heard submissions from Ms Arif and from Mr Haddow.
12. We were referred to the CPIN by Mr Haddow for country background evidence.
Established Facts
13. The key finding in fact in the FtT decision which is germane to our consideration of the issue here is that found at paragraph 23 of the FtT Decision –
“The appellant relies upon a letter from Kit Sebastian Renard, the Group Leader of Rainbow Dudes who speaks of the appellant’s membership of the group, attendance at its events and contribution to its activities. I find that this letter and other documents and photographs concerning LGBT+ events demonstrate the appellant’s interest in and support for the LGBT+ community but do not establish that he is bisexual as he claims. The appellant is a member of many groups which he lists as concerning refugees, the local community, volunteers, artist workshops, inter faith and samba. He is clearly a person with many interests. I attach no weight to the documentation from the Rainbow Dudes, nor other documentation regarding his involvement in the local community, as independent evidence supporting the claim as to his sexuality.”
14. In addition, we found based upon the oral evidence of the appellant that he continues to be involved with Rainbow Dudes.
15. We also accepted the oral evidence of the appellant that if he was returned to Nigeria that he would not express his support of LGBT groups but would “go into hiding.”
Discussion and Decision
16. Our decision must be framed in light of what is said in HJ (Iran) -v- Secretary of State for the Home Department [2011] 1 AC 596 at paragraph 82:
“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.”
17. Although the Appellant has not been accepted to be bisexual, we accept the submission made by Mr Haddow that the approach set out in HJ (Iran) at paragraph 82 should apply to all Convention reasons - RT(Zimbabwe) v SSHD[2013] 1 AC 152.
18. In addressing the tests set out in HJ (Iran) we consider first whether the Appellant does in fact hold a genuine political belief which he is compelled by his conscience to express openly. The preserved finding of fact by the First-tier Tribunal is that the Appellant is involved in pro-LGBT activism in the UK, and we have no basis upon which to conclude that this work is motivated by anything other than a sincerely held political belief. Having had regard to the evidence as a whole we agree with the FtT’s observation that the Appellant, who describes himself as an artist and activist, does appear to be interested in a number of human rights issues. We find that his involvement with the LGBT community is a continuing one. Whilst we accept that there was an adverse credibility finding against the appellant by the FtT on the issue of his own sexuality, we bear in mind that an adverse credibility finding on one matter does not necessarily mean that credibility on all matters is in doubt. We also take into consideration that there was no direct challenge to the appellant under cross examination that his support was genuine. On such a critical issue we do consider that the point should have been directly put to give the appellant an opportunity to respond – (see the Court of Appeal in Abdi and others v Entry Clearance Officer [2023] EWCA Civ 1455, at 33 – “The recent decision of the Supreme Court in TUI UK Ltd v Griffiths [2023] UKSC 48 re-emphasises the principle that fairness generally requires that if the evidence of a witness is to be rejected, it should be challenged at the hearing so as to give them an opportunity to address the challenge; and that that is a matter of fairness to the witness as well as fairness to the parties, and necessary for the integrity of the court process in enabling the tribunal to reach a sound conclusion”). We conclude, in the absence of any evidence to the contrary, that the appellant’s support for the LGBT community is motivated by a genuinely held political belief.
19. Next, we must consider whether the country evidence demonstrates that someone who is either perceived to be gay, or actively supports the LGBT community in Nigeria, would be at risk of persecution.
20. Mr Hadow referred us to a number of excerpts from the CPIN (at paragraphs 8.3.1; 8.5.3; 12.5.1; 13.1.7; 13.3 and 13.4.3) which in his submission established that there was a real risk of persecution for anyone who promoted or supported LGBT groups in Nigeria. Ms Arif did not dispute the country background information as set out in the CPIN, and accepted that if the appellant was perceived by the Nigerian authorities to be an active supporter of the LGBT community then he would be at risk. It was also not disputed that if the appellant was perceived to be gay then he would be at risk of persecution if he returned to Nigeria.
21. Turning to the third question posed in HJ: how will the appellant behave if he is returned to Nigeria? The answer to this is straightforward. On his own evidence, he will not continue this activism in Nigeria. The appellant was asked on a number of occasions in his evidence what he would do regarding the expression of his support for the LGBT community upon return to Nigeria. The appellant accepted that he had not advocated for the LGBT community whilst living in Nigeria but that he had since coming to the UK found the freedom to express his beliefs and his desire was to continue to be able to express his belief and support for the LGBT community. He said that he would not shrink from who he is and would persist in his beliefs but ultimately accepted that if sent back to Nigeria he would go into hiding as he would come under attack. We take that to mean he would suppress his beliefs.
22. That evidence leads to the final consideration. We must now consider why he would change his behaviour upon return to Nigeria. If the appellant would live discreetly either because of social pressure or that is how he would prefer to live, then his asylum claim fails. If, however, a material reason for him to live discreetly is the fear of persecution then his claim should succeed.
23. We are satisfied on the evidence that was before us that the reason the appellant would suppress his beliefs and support for the LGBT community would be through his fear of persecution. He said so quite clearly in his evidence, and his fear is amply borne out by the country background evidence which records serious violations, by both state and society, against those who openly advocate for the rights of those who are, or are perceived to be, in the LGBT community.
24. We accordingly find that his asylum claim is established either on the basis of the expression of his political beliefs in supporting the LGBT community or on the basis that through that support he would be perceived as gay and thus subject to persecution.
25. We allow the appeal against the decision of the respondent dated 1 November 2024.

Notice of Decision
The appeal on asylum grounds is allowed.
Anonymity
This appeal concerns a claim for international protection. 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.
Fee Award.
As we have allowed the appeal we have considered whether or not to make a fee award. We have decided to make a fee award for any fee which has been paid or is payable because there is no reason for the fee award not to follow the outcome of the appeal

S NEILSON
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
21.07.26

Annex A: Error of law Decision

DECISION AND REASONS
ANONYMITY
1. This appeal concerns a claim for international protection. 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.
INTRODUCTION
2. The appellant is a national of Nigeria. His appeal against the decision of the respondent to refuse his protection claim on 16 January 2025 was dismissed by First tier Tribunal (“FtT”) Rea (“the judge”) for reasons set out in a decision dated 22 November 2025.
3. At paragraph [5] of the decision the judge recorded that the respondent conceded that if the appellant’s claim that he is a bisexual man is found to be credible, there would be a risk on return and there would not be sufficiency of protection. The judge recorded, at [6], that the parties agree that the principal issue is the appellant’s credibility.
4. Having considered the evidence, the judge was not satisfied that the appellant has established that he is a bisexual man and found that his claim to be such is not credible.
THE GROUNDS OF APPEAL
5. The appellant does not challenge the finding that the appellant has not established that he is a bisexual man.
6. However, the appellant claims that his claim was also put on an alternative basis. In the appellant’s skeleton argument, it was said that the appellant is in any event publicly vocal and outspoken in his support for LGBT rights and issues. The judge referred to the evidence before the Tribunal to support that claim at paragraph [23] of the decision. The judge found that the letter and other documents and photographs relied upon concerning LGBT+ events demonstrate the appellant’s interest in and support for the LGBT+ community. The judge found the appellant is clearly a person with many interests. In the appellant’s skeleton argument it was submitted on behalf of the appellant that if his sexuality is not accepted, the appellant “...should still be considered as a person who has offered support to the LGBTQ community. This would, in all likelihood, lead him to being seen as a member of the LGBTQ community in any event and place him at risk of persecution on the same factual matrix.”. The appellant referred to the decision of the Supreme Court in HJ (Iran) b SSHD [2010] UKSC 31 and claims the appellant would be treated as gay in Nigeria placing him at risk on return. The appellant claims the judge does not address this alternative claim in the decision.
7. Permission to appeal to the Upper Tribunal was granted by First-tier Tribunal Judge Hollings-Tennant on 25 February 2026. Judge Hollings-Tennant said:
“2. The grounds argue that the Judge erred in law by failing to consider the impact of the Appellant’s public support for the LGBTQ community and a submission that this would give rise to risk on return because he will be perceived to be gay and targeted as a result. There is some merit in this assertion. The point is raised in the Appellant’s skeleton argument (at paragraph 3(b)) and whilst the Judge does not accept the Appellant’s claim to be bisexual, it was accepted he has an interest in and shows support for the LGBTQ community. Having accepted this aspect, and noting the Respondent accepted those who are gay fae treatment amounting to persecution, it is at least arguable it was incumbent upon the Judge to consider whether the Appellant would be at risk if treated as being gay by potential persecutors (see HJ(Iran) v SSHD [2010] UKSC 31) and give reasons for rejecting submissions made this regard.
3. As such, I consider the grounds have identified what is at least an arguable material error of law. Permission to appeal is therefore granted. However, I note there is no specific challenge to the Judge’s credibility findings that the Appellant is not bisexual as claimed.”
THE ERROR OF LAW
8. The respondent has filed a Rule 24 response dated 3 March 2026. The respondent states the appeal is not opposed. The respondent concedes the judge failed to consider a material matter and/or failed to follow the approach set out in HJ (Iran) as set out in the grant of permission to appeal. As the respondent concedes the error of law, I can deal with the error of law in short form.
9. I consider the respondent’s concession to have been properly made. I am satisfied that the judge failed to consider the alternative claim advanced before the FtT that the appellant would nevertheless be at risk on return because, in all likelihood, he would be seen as a member of the LGBTQ community in any event. I say nothing as to the merits of that claim. It was a claim advanced before the FtT that the judge simply does not engage with. The decision of the FtT judge must therefore be set aside.
DISPOSAL
10. As to disposal, there is a presumption that in the event that the Tribunal decides that the decision of the FtT is to be set aside as erroneous in law, the re-making of the decision will take place at the same hearing. I have determined the ‘error of law’ without a hearing because the error pleaded and upon which permission has been granted, is conceded by the respondent. I have therefore considered whether the appropriate course is to remit the appeal to the FtT for rehearing or to retain the appeal in the Upper Tribunal for the decision to be remade in the Upper Tribunal.
11. In considering how to exercise that discretion, I have carefully considered paragraphs 7.1 to 7.3 of the Senior President’s Practice Statement for the Immigration and Asylum Chambers, and the guidance in AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 [2023] 4 WLR 12, and Begum (Remaking or Remittal) Bangladesh [2023] UKUT 46 (IAC). This is not a case where the effect of the error made by the judge has deprived a party of a fair hearing or any other opportunity for that party’s case to be put forward and considered below. The remaining issue is a narrow one.
12. In the circumstances, I exercise the discretion under section 12(2)(b) of the 2007 Act to retain the appeal at the Upper Tribunal in order to re-make the decision.
NOTICE OF DECISION
13. The appeal to the Upper Tribunal is allowed.
14. The decision of First-tier Tribunal Rea is set aside.
15. The appeal will be listed for a resumed hearing at the Upper Tribunal sitting in Edinburgh for a face-to-face hearing, with a time estimate of 2 hours. No interpreter is required.
16. No later than 14 days before the date of the hearing, the appellant must provide to the Upper Tribunal and the respondent a composite electronic bundle which complies with the President’s Guidance on the Format of Electronic Bundles in the Upper Tribunal (IAC). The composite bundle must contain the following documents and must be structured in the following way:
Part A
The decision of the FtT which is under appeal
The grounds of appeal upon which permission was granted
The decision of the FtT or Upper Tribunal granting permission
Any other FtT decision or direction which is relevant to the appeal
The response under rule 24
This error of law decision
Any decision, direction, or order of the Upper Tribunal in the appeal

Part B
Any rule 15(2A) application to rely on evidence not before the FtT
Any evidence to which the application under rule 15(2A) relates

Part C
All documentary evidence relied upon by the appellant in the FtT

Part D
All documentary evidence relied upon by the respondent in the FtT
17. The appellant shall file any skeleton argument as to the re-making of the decision in the appeal no later than 5 working days before the resumed hearing.

V. Mandalia

Upper Tribunal Judge Mandalia
Principal Resident Judge of the Upper Tribunal
Immigration and Asylum Chamber

20 April 2026