Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001015
First-tier Tribunal No: PA/57947/2024
LP/02138/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 2nd of September 2026

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

SW
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Harvey, of Counsel, instructed by Shawstone Associates
For the Respondent: Ms S Keerthy, Senior Home Office Presenting Officer

Heard at Field House on 25 August 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 is a citizen of Dominica born in April 1986. She came to the UK on 19th April 2022 as a visitor and claimed asylum on 25th October 2022. The appellant has a son, DW born in the UK on 23rd December 2022, who is a dependent on her claim. His father is K, a British citizen who lives in Guadeloupe, and thus DW is a British citizen. The appellant made her protection and human rights claim on the basis of a fear of her ex-partner OL who is the father of her eldest child, KL, born in 2004 in Dominica. She also has a child EE born in 2011 in Dominica who has a different father. The appellant’s appeal against the decision of the respondent refusing her protection and human rights claim dated 8th March 2024 was dismissed by a First-tier Tribunal Judge after a hearing on the 28th October 2025.
2. Permission to appeal was granted by a Judge of the First-tier Tribunal on 5th March 2026 and I found that the First-tier Tribunal had erred in law in the determination of the Article 8 ECHR appeal for the reasons set out in the decision appended as Annex A to this decision but I found no material error of law in the dismissal of the protection appeal so upheld that decision.
3. The matter now comes back to me to remake the Article 8 ECHR appeal, as indicated in the error of law decision errors were found in relation to the appellant’s subjective fear of return to Dominica and with respect to the assessment of Article 8 ECHR by failure to consider s.117B(6) of the 2002 Act so these are the matters on which this remaking hearing focuses. In the error of law hearing it was accepted by the Secretary of State that there was a history of domestic violence to the appellant from her former partner OL in 2010 and this is a preserved finding of fact from the First-tier Tribunal decision. It is also accepted by the respondent that DW is a British citizen, and thus a qualifying child, and the appellant has a genuine and subsisting parental relationship with him.
4. In light of the appellant’s diagnosis of PTSD with severe depression and anxiety I treated her as a vulnerable witness in accordance with the Joint Presidential Guidance Note No 2 of 2010: Child, vulnerable adult and sensitive appellant guidance.
Evidence & Submissions – Remaking
5. The pertinent summarised evidence of the appellant is, from her five witness statements and oral evidence, as follows. In 2004 she entered a relationship with OL, father of her eldest child, KL, who behaved in a physically abusive, controlling and verbally threatening way to her. She became aware of his violent lifestyle and drug use and dealing, and reported his criminal activities to the police. She ended the relationship after an incident on 6th March 2010 in which he abducted her in a car and beat and threatened her so she was terrified for her life and had to attend hospital for her injuries. She took out a restraining order against him following this incident on 10th March 2010. OL breached this restraining order by entering her home on 13th March 2010 and attacking her, causing her to jump five feet out of a window in her house and run and swim in the sea to safety, which resulted in her attending hospital again due to a broken bone in her ankle. OL was found not guilty in the court case that followed from this incident. OL has a number of convictions between 2004 and 2011 which are corroborated by documentary evidence. As a result of her reporting him to the authorities she believes that he wants revenge on her because she caused him financial and reputational loss.
6. The appellant went to live with her sister, NW, after the second domestic violence incident and hid from OL. Her understanding is that he continued to be in and out of prison. When he was released from prison in 2012 she took a job on a cruise ship until 2014. OL threatened her middle child’s father so the appellant moved to gated housing and avoided family and family events, and worked from home or did work which required travel abroad as a purchasing manager for a construction company. She says she felt like a prisoner during this period of time. In 2015 the appellant understands OL was sentenced to serve 7 years in prison in Guadeloupe for attempted murder and firearms possession, and for a while she felt safer again. He was released from prison in December 2022. She found out this from KL, their daughter, and she feared he would act on the threats he had been making via a cell phone he had in prison to kill her. She was, and is, afraid that he has connections with the police in Dominica which allow him to continue his drug dealing business and that she could not be safe in Dominica.
7. The appellant left Dominica in April 2022 via Guadeloupe to visit a cousin SP and her family in the UK to take a break from everything in the context of OL’s impending release from prison. She did not intend to remain in the UK when she came on her visit and was still employed. The appellant decided to make her protection and human rights claim to remain in the UK when she discovered she was pregnant with her third child, DW, which was in June/July 2022, as she feared she could not keep herself and her baby safe. She acted on the advice of the Brent Front Door and Asian Women’s Resource Centre in making this claim.
8. Further, she says that OL appeared outside her sister’s home sitting in a car in December 2022 very shortly after being released from prison. By this point she was not together with DW’s father, K, because she had problems with OL and had left Dominica. Dominica is a small island and it is possible to cover it by car in about 5 hours, and communities are close, and she has a large extended family, and people know each other so she concluded that she could not be safe there as OL would be able to establish her place of residence. The only relative with whom she actively shares information is her sister NW but things become known. The appellant points out that she held down the same good job for five years in Dominica which she would not have given up if it were not for her fear of OL and her predicament of caring for her baby DW. The appellant’s younger daughter, EE, went to live with her father when she left Dominica in April 2022 and has now gone to live in the USA with him. The appellant cannot get a statement from her older daughter she has with OL, KL, because KL is in regular contact with OL, and has passed on threats from him and has a bond with OL and does not want to take sides, although she has said to the appellant that she should “just avoid my father”.
9. The appellant understands that OL is currently in Guadeloupe from KL, but says he could be in either Dominica or Guadeloupe as they are neighbouring islands and many people travel between the two for shopping and there is a shared culture, and it only takes about one hour 45 minutes by boat, and he has smuggled himself between the two island countries in the past. OL does not have her current phone number as she changed her number when she left Dominica in 2022.
10. DW is a British citizen through his father K. He is three years old and attends St Matthews pre-school in the nursery provision. In January 2026 DW received a formal diagnosis of autism and global developmental delay, and he is now referred to the LEAP early intervention programme in the UK, and is awaiting an assessment for an EHCP and speech therapy assessment. She hopes that this programme will address DW’s profound communication difficulties. He is currently unable to speak and she struggles to understand him. He needs consistent therapy, routines and specialist support that he would not get in Dominica, and she knows that he found their move from London to Redhill in 2024 difficult as this caused him to regress in his behaviour. From her research she has found out that there is only one specialist centre for those with autism and other learning difficulties in Dominica, the Alpha Centre, and speech therapy is not consistently available. She believes moving DW to Dominica would result in his regressing even if she accessed services for him as they would have to start from scratch with the assessment process and he would have to wait to be given help, and in any case it would be very hard for her to support him with any help offered due to her being in hiding from OL and because she would not have family support there, despite having a lot of family members, because the threat from OL means that she would avoid contact to reduce the risk to her and them.
11. The appellant states that due to her problems with OL she has a difficult relationships with her extended family in Dominica whom she has largely kept away from, and that this contrasts with the support she has in the UK with cousins, aunts, uncles in Bradford and a nephew in London, and her church community. Her family and community support in the UK is very important in supporting her in bringing him up DW, in the context of his disabilities and the fact that she suffers from severe depression, anxiety and PTSD. Her PTSD manifests itself in hypervigilance, sleep disturbance, panic attacks, anxiety and problems trusting others. She is currently having 12 sessions of CBT therapy once a week provided by the NHS, and although these are coming to an end a review means they may continue. She also has chronic back pain caused by the difficult child birth with DW and a bus accident. The appellant feels that she would not be able to hold down a stable job and care for DW in Dominica if she is constantly hiding from OL in a traumatised state. In the UK she is reliant on asylum support money as she is not currently allowed to work, although DW’s dad and her family in Bradford do also help out financially from time to time with his needs. She accepts that despite her traumatic experiences she managed to hold down a series of jobs in Dominica and cared for her older children, and that she has a degree in business administration management.
12. In a witness statement from NW, who resides in Wallhouse Dominica, the appellant’s sister confirms that they have a large extended family, and that the appellant was a victim of domestic abuse from OL, who is a drugs dealer who travels between Dominica, Guadeloupe and Martinique. She recalls, in detail, the attack on the appellant on 10th March 2010 by OL and the fact that she had to go to hospital, and the subsequent restraining order and the appellant coming to stay with her, and the appellant’s return to her own home and the appellant having to escape from OL again, this time injuring her ankle, being hospitalised and returning to stay with her. It is her evidence that OL served a prison sentence in Dominica in 2011/2012, and it was at that time the appellant conceived her second daughter, EE. The appellant then worked on cruise ships between 2012 and 2014, trying to spend time out of the country. The appellant tried to keep away from family, with her daughters spending time with family rather than her to keep everyone safe. OL was acquitted of the second attack on the appellant on 13th March 2010 despite evidence supporting her, and there was a lot of talk about him and the danger he posed, so she and the appellant moved to Loubiere together, and she left her house in Newtown, and then the appellant moved to Canefield and she to nearby Wallhouse.
13. When OL was given a long prison sentence in Guadeloupe the appellant allowed his mother to give him her phone number so OL could keep in touch with their daughter KL, and it was because of this the appellant knew of his threat against her to “finish what he started” after he was released from prison in 2022. When the appellant left for the UK for a break in April 2022 her older daughter, KL. was 18 years and remained in the appellant’s home, and her younger daughter EE went to live with her dad. In December 2022 she saw OL in a car outside her home in Wallhouse, he asked about his daughter and so she called KL who came to see him and thus OL became aware of where the appellant lived. She is very afraid for the appellant’s life if she returns to Dominica, and believes she should be allowed to remain in the UK with her son DW who needs support for his autism, and in the context of the appellant having PTSD, and getting therapeutic help to move away from the scared broken person she had become.
14. Ms Keerthy made oral submissions and submits that the appeal should be dismissed for the following reasons. It is argued in the reasons for refusal letter that the appellant is not a credible witness as her explanation for claiming asylum is not consistently given in interview as at one point the appellant says she was not going back to Dominica because she was pregnant and at another she is not going back out of fear of OL. It is also argued that the history of whether OL was imprisoned is not consistent, and there is insufficient documentary evidence supporting the history of his domestic abuse and criminality. It is argued that it would be reasonable to expect DW to relocate to Dominica, as there are hospitals and healthcare in Dominica which could assist the appellant with her PTSD and DW with his autism, and she has skills and a sister who would enable her to re-integrate into life there, and DW is at a young and adaptable age whose family life in the UK consists solely of the appellant.
15. Ms Keerthy argues that it would not be unreasonable to expect DW to leave the UK despite his being a British citizen because the appellant has no right to remain so the ordinary course is that he should go with her. This is additionally the case as DW is under 4 years old; he has not started any formal schooling; there is no expert evidence he would suffer irreversible harm if he were to leave the UK; there is no evidence to support the view that he needs to maintain his current routine and instead the expert evidence from the psychologist states that he needs a high level of adult support to ensure his safety and to understand his communications; there is no expert evidence the he could not adjust to a programme of support provided for in Dominica and there is a known provider of such support in that country; the appellant has extended family in Dominica including a supportive sister; whilst the appellant has PTSD, depression and anxiety she has managed in the past to work and bring up children with these conditions and so she could function to care for DW and work if she were to go back now; and DW’s best interests are simply to be with the appellant. If looked at more broadly the Article 8 ECHR proportionality assessment comes down in the favour of removal because little weight can be given to the appellant’s private life ties with the UK as they have all been formed whilst she has been here precariously and because weight must be given to the public interest in immigration control.
16. In a skeleton argument and in oral submissions from Ms Harvey it is argued, in short summary, as follows.
17. It is argued that the appellant has a genuine subjective fear of return to Dominica even if she failed to provide evidence that supported that fear being objectively well founded. The appellant is a credible witness given the detail she has provided about her history, and the supporting evidence of a newspaper article from The Sun newspaper in Dominica, a copy of OL’s criminal record, country information, letters from her therapist in the UK, and the corroborating and very detailed statement of her sister NW. It is argued that it is credible that the appellant would not feel able to return to Dominica with a young baby once she found out she was pregnant and so would make a protection claim, despite having had to live with on-going threats from OL previously. She has clearly and repeatedly stressed her fear for DW if returned to Dominica, and given a detailed account of her past escapes from OL and recent threats as recounted by her daughter KL. She believes OL gets an element of police protection in Dominica, and her second daughter EE is now living in the US with her father so she is safe. It is argued that it is entirely credible that the appellant subjectively believes she is at real risk of serious harm from OL particularly give that Dominica is a very small country, the size of the New Forest, and has a small population, equivalent to St Albans, and given the contact OL has with their daughter KL which will mean he is able to find her. The appellant would therefore conduct herself on the basis of this fear if she were to return to Dominica, and thus as a person who is tantamount to a prisoner or someone on the run, and be in a permanent state of hyper-vigilance. This would not be compatible with being the primary carer for DW who needs a calm, collected and undistracted carer given he has very extensive needs, and no language, which in turn means the appellant must constantly make great effort to attempt to understand his non-linguistic communications and keep him safe at all times from hazards, as he has no understanding of danger.
18. It is argued by Ms Harvey that it is not reasonable to expect DW to leave the UK because he is a British citizen with British family members in the UK who is now receiving essential specialised early years educational services due to his developmental delay and autism through the LEAP programme. He needs a high level of adult support due to his lack of attention and awareness of danger, and is disabled by his lack of functional language skills and limited non-verbal communication. This results in a need for consistency and clear routines, as identified by the psychologist who wrote the report in the evidence bundle. It is only with expert adult support that he will be in a position to develop to his maximum capacity and fulfil his life potential. In the UK he is entitled to the local early autism programme (LEAP) which will support and maximise the development of his social communication and emotional regulation. If he were to leave the UK he would leave behind his familiar environment, trusted carers and familiar routines which would be very challenging and cause regression. As a survivor of domestic violence suffering from serious mental health problems, including PTSD, the appellant would struggle to provide for this transition, as return to Dominica would be re-triggering of her past traumas. She is the key person in DW’s life, and his only day in day out care-giver. The appellant would not access help from her extended family in Dominica due to fears of the on-going risk of OL locating her or targeting them, whereas she can turn to her UK family and community as she has no fear of him in this country. It is argued that it is not reasonable for DW to have to leave the UK given that he currently has access to a programme which will allow him to build communication skills and make greater sense of the world, and which therefore not only makes his current life better but will enhance his life chances in the future, to instead be placed in a situation of change with a primary carer who will be living in a state of terror and who will not therefore in a position to provide for his very extensive needs effectively.
19. It is argued that the public interest in the removal of the appellant is additionally reduced by the fact she is a professional woman of good character, who speaks English and is capable of earning a living having been a purchasing manager for a construction company, in the context of it is not being reasonable to expect her son DW, a qualifying child, to leave the UK.
Conclusions – Remaking
20. I will determine this Article 8 ECHR appeal firstly by reference to s.117B(6) of the Nationality, Immigration and Asylum Act 2002. If the requirements of this provision are made out it will not be necessary to continue to a full proportionality assessment as there will be no public interest in the removal of the appellant. It is accepted DW is a qualifying child and that the appellant, his mother, has a genuine and subsisting parental relationship with him. The remaining question is whether or not it is reasonable to expect DW to leave the UK. As Ms Keerthy has submitted the Supreme Court in KO (Nigeria) v SSHD [2018] UKSC 53 held that where a parent has no leave to remain it would “normally be reasonable” to expect a qualifying child to accompany the parent to their country of nationality. This is therefore the starting point, but I must conduct a consideration of the particular evidence relating to DW to determine whether it would be reasonable to expect him to leave in all of his circumstances, including the appellant’s lack of leave to remain. DW’s interests will be a primary consideration in this decision-making.
21. I find that it is essential first to consider whether the appellant has a genuine subjective fear of return to Dominica as the appellant is DW’s only active parental figure bringing him up as a single parent, and he is a totally dependent three year old child. His world therefore revolve around her, and her ability to act in his best interests. It is rightly accepted by the respondent, on the basis of medical reports, that the appellant suffers from PTSD, severe depression and anxiety. It is also accepted by the respondent that the appellant was the victim of domestic violence from her former partner and father of her oldest child, OL in 2010, as a result of supporting evidence going this these matters. There were two separate incidents of domestic violence the first involved her being abducted in a car and beaten so badly she needed to attend hospital, the second happened after she had taken out a restraining order against OL and involved him entering her home in contravention of the restraining order and her being so afraid of him she jumped out of a window breaking a bone in her ankle, but managing to run and swimming to safety to escape him. The court proceedings against him as a result of this second incident did not result in his being convicted of any offence which, I find, may have created, amongst other matters, a sense of his having impunity from the law in the appellant’s mind.
22. The preserved findings from the First-tier Tribunal decision are that the appellant did not provide sufficient documentary evidence, which could reasonably expected to be available to support the events she contends happened thereafter, including that OL being sentenced to a long term of imprisonment in Guadeloupe which concluded in 2022 and his being a dangerous drugs criminal who wants revenge on her.
23. I do not go behind this preserved finding but I do now note that the appellant’s sister, NW, clearly also believes that OL has an animus towards the appellant and recounts in detail the moves of her address and employment, and the arrangements made for the appellant’s two daughters that she made so as to keep herself and them safe from OL. Ms Keerthy did not suggest that weight could not be given to this statement, and although NW did not give oral evidence in support of her statement, as she lives in Dominica, I give some weight to it given it’s detail, and plausibility as a statement which is consistency with the appellant’s evidence but clearly written from a different perspective. As Ms Harvey has submitted the appellant has also provided very detailed and compelling statements herself about her fears of OL, and I find that her answers to her interview questions when considered together clearly amount to a statement that she was motivated to claim asylum after she entered the UK because she felt she could not keep herself and the baby she was expecting safe from OL if she returned to Dominica. I find that it is also entirely reasonable and credible that she suspects OL of being able to find her through their daughter, KL, who has a good relationship with her father and is a young adult, and in the context of Dominica being a small country with a small population. I find on the basis of the medical evidence, the preserved findings with respect to OL’s terrifying domestic violence in 2010, and the detail with which the appellant and her sister NW recount the steps that were taken to keep the appellant safe from OL that the fear that the appellant has of OL is genuine and subsisting, and that she, her sister NW and indeed her daughter KL genuinely believe that he is a man set on causing her serious harm.
24. It follows that I find that on return to Dominica that the appellant will be in a state of heightened hyper-vigilance, anxiety and fear; and as she has said will avoid contact with her very extensive family there, bar NW, so as not to provide OL with information relating to her whereabouts. I find she will also find it difficult to keep regular appointments with services for herself, such as the CBT therapy she currently receives from the NHS, and DW because she will be afraid this might lead to OL identifying her whereabouts, and will, in a state of fear and reignited trauma, be attempting to provide for DW very largely without family or community assistance.
25. As accepted by the respondent, and evidenced by the papers from the mental health and educational services DW suffers from global developmental delay and autism. He is non-verbal, and makes efforts to communicate which the appellant and others must try to interpret. He has been accepted onto the Local Early Autism Programme (LEAP) which is a partnership programme between parents and early years practitioners, which means his social and communication needs have been identified as complex (see Leap referral criteria page 24 of the supplementary bundle). The report written by an educational psychologist with the Surrey County Council confirms the involvement of early years services with DW since September 2025 when he started at St Matthew’s Preschool, which he has attended three mornings a week since that time. He is reliant on non-verbal communication and cannot express his basic needs as he has no functional language skills and limited non-verbal communication, and needs close supervision to monitor his safety. He needs a high level of targeted adult support and an individually tailored learning programme. In this report (at page 267 of the supplementary bundle) it is stated that “DW needs consistency and clear routine.” and that “Currently DW struggles to make sense of the nursery routine, although familiarity is important to him.”
26. In Dominica the appellant has identified that there is one centre for children such as DW and that there is some availability for speech therapy . No doubt as an intelligent, caring and committed mother she would do her utmost to apply for DW to have access to these services were she returned to Dominica. However it is to be expected that there would be a process of waiting and assessment, as there always is for such services in the UK, and that he would not instantly be able to be provided with the help he is now obtaining in the UK. In this respect it is to be noted that it has taken a whole year for DW to be placed on the LEAP programme in the UK, with this work being set to commence in September 2026, and I find that it is to be expected a similar period of many months would be taken for services to commence in Dominica even if there is capacity to take him on as a client. Further I find that for a non-verbal autistic child with global developmental delay struggling to make sense of the world, for whom consistency, routines and familiarity are essential, the change to living in an entirely different country in terms of sensory input, a different dialect/ accent in English, physical structures and personnel would be very challenging and alarming notwithstanding the fact that the appellant would remain present as his primary carer. I accept the appellant’s evidence that DW found even the move from London to Redhill challenging and caused regression in his behaviour. I find that it would not be in DW’s best interests to leave his current educational psychology programme even if a similar service might eventually be replicated in Dominica. Indeed, it would be profoundly upsetting given his need for continuity and familiarity, and he would lose a period of at least many months in which he would not have the benefit of professional people working with him to enhance his understanding of the world and ability to communicate. This change would be made all the more upsetting and detrimental for DW because his mother would, I find, be in a state of acute anxiety due to her fear of OL which would be particularly palpable to DW as her three year old son in the context of the appellant being a single parent and may cause her to miss important appointments for him.
27. On consideration of all of the evidence I find that it would not be reasonable to expect DW to leave the UK despite his mother having no right to remain in this country. DW is a British citizen, and he is himself entitled to remain in the UK and access services in this country. He has extended family/ community here who support his mother, and she is able to address her PTSD, anxiety and depression through therapy in this country, whereas in Dominica, even if she accessed similar therapy, she would subject to additional on-going anxiety and trauma with respect to her genuine subjective fear of OL which originates in two terrifying acts of domestic violence, and she would be isolated as she would generally avoid family so as to do what she believes to be necessary to hide from OL. DW is a very vulnerable child who struggles to understand the world, and lacks the adaptability of a normally developing three year old. He has autism and global developmental delay and no functional language. He has just accessed a particularly good system of support to facilitate his development in terms of understanding and social communication, the LEAP programme, and he has been settled in his nursery for a year and there are routines which are familiar to him even if he cannot understand them. I find that removal to Dominica would set back his development due to the upset of the change, noting that even a move from London to nearby Redhill was upsetting and that this move would be a totally different environment, and due to the inevitable delay of many months in re-establishing suitable professional support. The move would be all the more alarming and therefore damaging to DW’s developement due to the enhanced level of fear and anxiety the appellant, his mother, would experience due to her fear of OL which will add to the generally greater stress in the appellant’s life of having to remake all her life arrangements, including finding a place to live, work in Dominica, as well as dealing with the bureaucracy which will inevitably be necessary so that the institutions who can offer DW help do this and she is able to have therapy for her own mental health conditions.
28. As I find that it would not be reasonable to expect DW to leave the UK it follows that the requirements of s.117B(6) of the Nationality, Immigration and Asylum Act 2002 are met, and that there is no public interest requiring the appellant to leave the UK, and that therefore to remove her would constitute a disproportionate interference with her right to respect for her Article 8 ECHR private life in the UK.

Decision:
1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
2. I set aside the decision of the First-tier Tribunal dismissing the Article 8 ECHR human rights appeal but uphold the decision dismissing the asylum and protection appeal.
3. I remake the human rights appeal by allowing it on Article 8 ECHR grounds.

Fiona Lindsley

Judge of the Upper Tribunal
Immigration and Asylum Chamber

26th August 2026

Annex A: Error of Law Decision

DECISION AND REASONS
Introduction
1. The appellant is a citizen of Dominica born in April 1986. She came to the UK on 19th April 2022 as a visitor and claimed asylum on 25th October 2022. The appellant has a son, DW born in the UK on 23rd December 2022 who is a dependent on her claim. His father is K, a British citizen who lives in Guadeloupe, and thus DW is a British citizen. The appellant makes her claim on the basis of a fear of her ex-partner OL who is the father of her eldest child, KL, born in 2004 in Dominica. She also has a child ME born in 2011 in Dominica. The appellant’s appeal against the decision of the respondent refusing her protection and human rights claim dated 8th March 2024 was dismissed by a First-tier Tribunal Judge after a hearing on the 28th October 2025.
2. Permission to appeal was granted by a Judge of the First-tier Tribunal on 5th March 2026 on the basis that it was arguable that the First-tier judge had erred in law firstly by failing to recognise that DW is a qualifying child and so there should have been consideration as to whether it was reasonable for him to have to leave the UK. The fourth ground, contending that there was a failure to consider the medical assessment when considering the appeal is also found to be explicitly arguable. Permission is granted on all grounds.
3. The matter now comes before me to determine whether the First-tier Tribunal had erred in law, and if so whether any such error was material and whether the decision of the First-tier Tribunal should be set aside.
4. At the start of the hearing Mr Terrell informed the Upper Tribunal that the respondent agreed that there was an error of law on the basis of the first ground of appeal. I informed the parties that given that there was an accepted error with respect to the determination of the Article 8 ECHR decision I found that it would be necessary to consider whether there were errors in relation to the issue of subjective fear as this was pertinent to the determination of the Article 8 ECHR appeal. Ms Harvey said that she continued to argue that there were errors in the appeal with respect to a real risk of serious harm and the protection appeal and so we proceeded to consider whether there were errors of law with respect to the decision of the First-tier Tribunal in relation to the finding that the appellant was at real risk of serious harm on return for the appellant. If any such error had been found we would have gone on to consider the grounds relating to social group, internal relocation and sufficiency of protection but in the event this was not necessary.
Submissions – Error of Law
5. In the grounds of appeal, a Rule 25 reply and in oral submissions from Ms Harvey it is argued with respect to risk on return, in short summary, that the First-tier Tribunal erred in law as follows.
6. In the fourth ground, it is argued, that there was a failure to consider the medical evidence in the round, as per Mibanga, when considering the credibility of the appellant’s subjective fear of return. The evidence from the NHS Merton therapist was that the appellant suffered from severe depression, anxiety and PTSD. The First-tier Tribunal Judge accepted this evidence but did not consider it when considering if she had a genuine subjective fear. The evidence was considered in the Article 8 ECHR claim but not in respect to the credibility of her fear. In the fifth ground it is argued that there are contradictory findings, both accepting at paragraph 12 and disbelieving at paragraph 19 that the appellant’s former partner OL was prosecuted for abusing her. The negative finding is material as it is highly relevant to the finding that the First-tier Tribunal does not accept that the appellant left Dominica out of fear of her ex-partner. In the sixth ground it is argued that there is a material error of fact in finding that the appellant had changed her account as to why she could not return to Dominica, and failing to give reasons for this finding. It is argued that the evidence of the appellant in the screening interview is consistent: she said she could not return due to fear of her ex-partner, OL, and she decided she could not return when she found she was pregnant because she was afraid her ex-partner would harm her child.
7. Ms Harvey’s overarching submissions were that the First-tier Tribunal had mischaracterised the risk the appellant faced on return to Dominica as one based on domestic violence, when in fact it was based on revenge and retribution for her having pursued legal proceedings against her ex-partner OL. He had been in and out of prison in Dominica since the point in time when it was accepted there had been attacks on her by him as evidence by the medical report mentioning court proceedings and the hospital notes and the record of convictions between 2004 and 2011, and then in 2017 he had been sentenced to 7 years imprisonment in Guadeloupe and so he was still in prison when the appellant travelled to the UK. It was argued that the appellant had found safety whilst she was in Dominica by hiding by working on cruise ships, and her youngest daughter had gone to the USA with her father to seek safety. She had claimed asylum because she knew could not hide from her former partner once she found she was pregnant, and there was no issue of any inconsistency in her screening interview between the answers to questions at 3.4 and 4.1. It was argued that Dominica was not unwilling to protect her but simply that they were unable to do so given OL’S determination for revenge. Ms Harvey accepted that she did not challenge the findings at paragraph 18 of the decision that the evidence of the Guadeloupe criminality and conviction was unreliable.
8. In the Rule 24 notice and in submissions from Mr Terrell it is argued, in short summary as follows. In relation to ground four it is argued that the First-tier Tribunal clearly states that the case is looked at in the round at paragraph 11, and further the medical evidence is brief and makes no reference to domestic abuse or things that took place in Dominica. With respect to the fifth ground, it is argued that there is no inconsistency, but even if there is one there are many adverse findings with respect to the appellant’s credibility due to inconsistencies and so this is not important. In regard to the sixth and seventh grounds these are said to be simple disagreements with the findings of the First-tier Tribunal and that ultimately the Judge found that the appellant would not be at risk as a result of an incident which happened 15 years ago.
9. Mr Terrell argued that the First-tier Tribunal accepts the history of domestic violence that took place in 2010 but does not accept the contended events thereafter or that there continues to be a real risk of serious harm from the appellant’s ex-partner OL. The First-tier Tribunal identifies a number of reasons supporting this finding: there is no evidence of the contended threats from prison from him; the appellant only worked on a cruise ship for one year according to her own statement so this was not a way in which she was “hiding” from OL for any significant period of time; there are no police reports or court reports; and ultimately no reliable evidence he got a longer prison sentence in Guadeloupe. As such the First-tier Tribunal properly finds that there is no real risk of serious harm in a reasoned decision dealing with all material evidence in a fair way.
10. At the end of these submissions I informed the parties that I found that the First-tier Tribunal had erred, as agreed in the Article 8 ECHR assessment by failing to consider s.117B(6) of the 2002 Act and in the assessment of the appellant’s subjective fear and that these matters would have to be remade. I did not find however that the First-tier Tribunal had erred in the assessment of the objective fear of return/ real risk of serious harm, and so the decision with respect to the protection/ asylum claim would be upheld. It was agreed that the remaking would take place in the Upper Tribunal, with a time estimate of three hours, with no interpreter, and with any relevant new evidence being filed 10 days prior to the remaking hearing date.
Conclusions – Error of Law
11. It was agreed by the parties that the First-tier Tribunal erred by failing to take into account that DW is a qualifying child as a British citizen and that therefore had failed to assessed whether it would be reasonable to expect him to leave the UK applying s.117B(6) of the 2002 Act. This error is material as DW was undergoing investigations as there were signs of developmental delay at the time of hearing (and in fact in January 2026 DW received a formal diagnosis of autism and is seeking assistance from specialist early education services) and there was evidence the appellant is suffering from depression, anxiety and PTSD due to her past domestic violence. It might therefore have been concluded that it would not be reasonable to expect DW to leave the UK in the context of his mother’s mental health and his special needs.
12. I also find that there are errors made out in the assessment of the appellant’s subjective fear. There is a failure to consider her on-going mental health problems (depression, anxiety and PTSD) evidenced in the bundle, and the accepted findings that she had had to jump from a window to escape her ex-partner OL following a background of domestic violence and had filed a police case against him in 2010, as found at paragraphs 12 and 13 of the decision. It is also wrongly found that there was an inconsistency in her answers in her screening interview: when properly read the appellant consistently states that she made her claim after finding she was pregnant because she was afraid of what OL might do to her and her child. It is entirely reasonable that the appellant could be more afraid of OL, even if such fears were not objectively well founded, with a baby that without one, so this matter should not, without more, have been held against the honesty of her claim to be subjectively afraid of return to Dominica.
13. However, I do not find that the conclusion that the appellant had not evidence an on-going real risk of serious harm from OL to the lower civil standard is undermined by any error of law. The conclusions that there was no evidence of the threats, or reliable evidence OL was in prison after 2010, and that police reports and court reports relating to the action the appellant took against him had also not been filed when they were evidence that would be reasonably easily obtained were conclusions open to the First-tier Tribunal given the history, and are adequately explained in the decision findings. The appellant was only on a cruise ship between 2013 and 2014, on her own evidence, so there is no evidence that she was “hiding” from OL up until 2022, when she left Dominica, in this way and thus there is no explanation as to how she was able to escape his intended revenge on her for this substantial period of time.
Decision:
1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
2. I set aside the decision of the First-tier Tribunal dismissing the Article 8 ECHR human rights appeal but uphold the decision dismissing the asylum and protection appeal.
3. I adjourn the remaking of the appeal.
Directions
1. The remaking hearing will be listed at the first available date for a period of 3 hours.
2. No interpreter is required.
3. The appellant will file with the Upper Tribunal via CE file and serve on the respondent a bundle of any updating evidence 10 days prior to the remaking hearing.

Fiona Lindsley

Judge of the Upper Tribunal
Immigration and Asylum Chamber

6th May 2026