Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001207; UI-2026-000927
First-tier Tribunal No: PA/56509/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
9th October 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE R FRANTZIS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SI
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms H Foot (Instructed by Equality Immigration Lawyers Ltd)
For the Respondent: Mr N Wain (Senior Home Office Presenting Officer)

Heard at Phoenix House (Bradford) on 18 September 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 or his family, likely to lead members of the public to identify them. Failure to comply with this Order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. I have decided to make an anonymity order in these proceedings. Such an order was made by the First-tier Tribunal as the underlying claim involves international protection issues. The Appellant claims to fear persecution or serious harm on return to Nigeria. 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 his identity.
2. The Secretary of State appeals with permission against the decision, dated 29th October 2025 (“the Decision”), of the First-tier Tribunal (“FtT”) to allow SI’s appeal on protection and human rights grounds. For ease, the Parties shall be referred to hereinafter in this decision as they were before the FtT.
Background
3. The Appellant is the subject of a deportation order made on 28th August 2014. The deportation order was made in consequence of a 6 year period of imprisonment for drug offences, imposed on 29th January 2013. The Appellant resists his deportation on protection and human rights grounds.
4. The issues before the FtT were as follows:
a. Section 72 Nationality Immigration and Asylum Act 2002 (“2002 Act”): the Appellant accepted that he had been convicted of a particularly serious crime. The question was whether he had rebutted the statutory presumption that he was a danger to the community. If he had not, the Appellant could not benefit from the protection from refoulement provisions in Article 33(2) of the Refugee Convention and the appeal had to be dismissed on protection grounds. If he had, the Tribunal must proceed to consider the Appellant’s appeal on protection grounds.
b. Asylum: whether the Appellant had demonstrated to a reasonable degree of likelihood that he is bisexual. If he had, it was accepted that he would be at risk on return to Nigeria on grounds of his sexual orientation.
c. Article 3 ECHR: whether there were substantial grounds for believing the Appellant would face a real risk of being exposed to a serious, rapid and irreversible decline in his mental health, resulting in intense suffering: AM (Zimbabwe) v SSHD [2020] UKSC 17;
d. Article 8 ECHR: whether there were very compelling circumstances such that deportation of the Appellant was not in the public interest, considering factors over and above and including those in the statutory exceptions contained in section 117C(4) and (5) of the 2002 Act, including whether the effect of deportation would be unduly harsh on the Appellant’s children: NA (Pakistan) v Secretary of State for the Home Department [2017] 1 WLR 207.
Appeal to the First-tier Tribunal
5. The Appellant appealed the Respondent’s refusal of his protection and human rights claims.
6. In allowing the appeal, the FtT made the following findings. I set them out in detail as they are relevant to the matters before the Upper Tribunal:
“(a) Section 72
24. Turning to the section 72 point first, I find that on balance the appellant has rebutted the statutory presumption. I came to this conclusion for the following reasons.
25. There is no dispute that the appellant has been convicted of a particularly serious crime as his conviction resulted in a term of imprisonment of 6 years.
26. However I was not satisfied that he is a danger to the community. There are three key reasons why I came to this conclusion.
27. Firstly, I have placed considerable weight on the evidence from the Probation Service. They are a specialist organisation with considerable experience in assessing the conduct of criminals and the risk of reoffending. Whilst not seeking to minimise the seriousness of the offending the evidence from the Probation Service about future risk has given me much pause for thought. The OASYs report assessed the appellant as low risk of reoffending. The subsequent evidence from the Probation Service continued to assess the appellant as being assessed as low risk [2 February 2018 letter]. This was a holistic conclusion reached based on the appellant’s conduct and his engagement with the Probation Service/licence management post offending. I have been mindful that when the appellant was initially released he was on licence and that is a slightly more artificial experience of being in the community. Put another way there is a risk hanging over the appellant of being recalled to prison were he to offend. Therefore it may well be that this provided an additional incentive not to reoffend. However that did not wholesale detract from the positive steps and engagement that the appellant made with attending appointments and engaging with the Probation Service. The positive engagement by the appellant along with the specialist experience of the Probation Service’s assessment are matters that weighed towards it being more likely than not that the appellant did not present a danger to the community.
28. Secondly, the appellant’s conduct in prison was indicative of someone who wished to address his offending. It is notable that the appellant attained category D status. The appellant possessed an enhanced prisoner status. He also undertook courses to address his behaviour. I recognise that there is a baseline expectation that people in prison will conduct themselves appropriately but many do not. The appellant’s conduct in prison is a factor that pulled towards someone taking responsibility for his offending behaviour.
29. Thirdly there has been a significant passage of time between the appellant being released on licence and any reoffending. Whilst of course recognising the expectation is that a person will obey the law it is an important feature of the evidence in my judgement to show that the appellant has addressed is (sic) offending. The purpose of prison is of course to punish and protect but also to rehabilitate. The fact that the appellant has not gone onto (sic) reoffend again is is (sic) a feature I have weighed in the appellant’s favour when assessing his likelihood of reoffending.
30. Drawing the strands of the evidence together on balance the appellant is not a danger to the community. He is has rebutted the presumption under section 72 of the 2002 Act.
(b) Is the appellant a bisexual man or would be perceived as one
31. I found that the evidence overwhelmingly points towards the appellant being a bisexual man. Before turning to the oral evidence presented to me and why I found it persuasive, the strength of the evidence was not only the impact of each individual piece of evidence, but the overall cumulative effect.
…
35. I asked the parties how I should treat the findings of that First-tier Tribunal particularly in relation to this appellant.. Neither advocated a direct application of TK (Consideration of Prior Determination – Directions) Georgia [2004] UKIAT 00149 but they urged me to attaching differing weight to the findings of the First-tier Judge about the evidence. On one hand Mr Emmerson said that I could attach little weight to the findings about the appellant he was only a witness and I should not take this as an implicit finding about the appellant’s sexuality. Ms Foot on the other hand urged me to attach considerable weight to the Judge’s findings. I have preferred Ms Foot’s submission. I agree with Mr Emmerson that I should be cautious in going as far as applying TK but the Judge made clear findings. She accepted N’s sexuality. In effect she found him credible. Similarly this appellant’s evidence was accepted n her making that finding. She was fully aware of the appellant’s criminality. She made clear findings that the appellant was at the time in a casual/sexual relationship with N which whilst not binding upon me is a finding that I have attached considerable weight to. Whilst there is no requirement for the appellant to have relationships with men to demonstrate his sexuality it was my judgment a relevant evidential point when considering the appellant’s sexuality.
…
42. Stepping back and considering all the evidence, I return to Ms Foot’s characterisation of the evidence as overwhelmingly supporting the appellant’s claim to be a bisexual man. I agree for the reasons set out above. The appellant has discharged the burden upon him to show that it is reasonably likely that he is a bisexual man or would be perceived as one.
…
43. It has not been necessary for me resolve other issues raised in the appeal given my findings on issues (a) and (b).”
Appeal to the Upper Tribunal
7. I summarise the Secretary of State’s grounds of appeal, upon which permission has been granted, as follows:
(i) the Appellant misled the Tribunal about his lack of reoffending and this constitutes an error of law [“Ground 1”]. The Secretary of State’s case in the Grounds of Appeal is that the Appellant represented to the FtT as follows:
“6.1. At paragraph 63 of his witness statement, the Appellant stated, “Since my release, I have lived peacefully in the community for over eleven years without reoffending” [emphasis added];
6.2. Likewise, at para 90, he stated, “I am not a danger to the public…My conviction was over a decade ago, and I have rebuilt my life since then.”, the clear implication being that he had not reoffended;
6.3. Similarly, his skeleton argument stated at para 29 that he has “Over 11 years without reoffending” (i.e. from the date of the 2013 offence to the date of the hearing); and
6.4. His chronology omitted any reference to subsequent offending.”
…
“However, the Secretary of State has now obtained a printout of the Appellant’s offending history from the Police National Computer (see attached). That records that:
8.1 In 2020 the Appellant was convicted of assault on a not guilty plea; and
8.2 On 25 October 2025, the Appellant was convicted, on a guilty plea, of stalking between 1 July and 23 October 2025.”
(ii) Further or in the alternative to Ground 1, the FtT erred in fact when finding that the Appellant had not reoffended since his release from prison on licence [“Ground 2”].
(iii) the FtT has fallen into error in its treatment of an earlier decision of the FtT in which proceedings the Appellant gave oral evidence [“Ground 3”].
8. Mr Wain confirmed that the Secretary of State did not assert that the Appellant’s current representatives had misled the FtT. He did, however, maintain that the Appellant himself had intentionally misled the FtT. Ms Foot stated that it was uncontroversial that the FtT had erred in fact as regards the existence of the conviction in 2020, however, the Appellant had not intentionally misled the FtT (he had inadvertently done so and she directed the Tribunal to paragraph [31] of his signed witness statement and dated 8th March 2024). Furthermore, the mistake was not material to the overall decision. Put another way, Ms Foot submitted that the fact of the conviction in 2020 could not have made any difference to the outcome of the appeal when considered in the context of the evidence overall. Ms Foot maintained that the Appellant’s conviction on 25th October 2025 for stalking between 1st July and 23rd October 2025 cannot be demonstrative of the Appellant misleading the FtT, nor give rise to an error of fact, because the Appellant had not been convicted of anything at the time of his appeal before the FtT on 22nd September 2025.
9. Both Parties gave notice that they sought to rely upon evidence not before the FtT pursuant to Rule 152A of the Tribunal Procedure (Upper Tribunal) Rules 2008. Their respective applications were not contested and the Upper Tribunal has a broad discretion when deciding whether to admit fresh evidence.
10. The Respondent sought to rely upon the Appellant’s PNC printout, filed and served with the Grounds of Appeal. I applied the principles in Ladd v Marshall [1954] 1 WLR and having regard to the considerations in Rule 15 (2A)(a)&(b), the Overriding Objective and the relevance of the evidence the subject of the application, I determined to admit the same on the specific and exceptional facts of this appeal. I took into account the fact that the Respondent could have, with reasonable diligence, obtained the PNC printout for use before the FtT on 22nd September 2025 and that it would have shown, incontrovertibly, that the Appellant received a conviction in 2020 for common assault. The Respondent’s failure is deeply unfortunate. In light of the influence the PNC printout could have had on the outcome of the decision of the FtT, however, and the fact that the Appellant did not object to its admission before me, I exercised my broad powers to admit the same.
11. The Appellant sought by his application to rely upon evidence in rebuttal to the Grounds of Appeal, specifically (i) to demonstrate that the Respondent knew of his conviction in 2020 at the time of the conviction itself and (ii) his good character. Applying the same Rules and guidance as above and in light of there being no objection to the same, I admitted this evidence.
12. I heard submissions from both advocates and reserved my decision which I now give with my reasons.
Discussion
Grounds 1 & 2
13. There is significant overlap between Grounds 1 & 2.
14. In determining that the Appellant had rebutted the presumption that he was a danger to the community, the FtT at [29] took into account that “there has been a significant passage of time between the appellant being released on licence and any reoffending.” This was “an important feature of the evidence…to show that the appellant has addressed is [sic] offending… The fact that the appellant has not gone onto [sic] reoffend again is is [sic] a feature I have weighed in the appellant’s favour when assessing likelihood of reoffending.”
15. It is an accepted fact that the Appellant had gone on to reoffend at the time of the hearing before the FtT because he was convicted of common assault and fined £180 on 7th January 2020. As I set out above, it was accepted by Ms Foot that the FtT had erred in fact in finding that the Appellant had not gone onto reoffend.
16. I record at this point, as it will become relevant later, Ms Foot’s contention that the fact the Appellant did not seek to intentionally mislead the FtT can be seen by reference to his witness statement before the FtT, signed and dated 8th March 2024, wherein the Appellant states at [31]:
“Since that offence I have not offended. The only thing I can think of is where there was an argument between me and another man. I was waiting for my boyfriend and I sat in a car, A man walked up to me and he told me to move my car from there , he said I was parked there the day before and he gave the reg of my friends car to the police over the phone, however the police told him that all was okay. He said because he saw me the next day, he decided to approach me. It was a public space and he blocked my car in. I drove off quickly as I felt he was going to make trouble with me, I did all my possible best to avoid trouble and he said he was apprehensive the way I left. I was fined £300 pounds.”
17. Ms Foot’s position is that here, the Appellant is volunteering the key components of the offence and sanction in 2020.
18. I take the view that the question of whether the Appellant intentionally mislead the FtT is not determinative of the question whether the FtT erred of law. I invited the advocates to address me on this point at the hearing and for the reasons I set out below, I find there is a material error of law regardless of whether the Appellant intentionally misled the FtT.
19. I turn to what I consider to be the crux of the appeal to this Tribunal. I direct myself in accordance with the authority of E & R v SSHD [2004] EWCA Civ, 49. At [63] Carnwath LJ, giving the judgment of the Court, concluded:
"63. In our view, the Criminal Injuries Compensation Board case [1999] 2 AC 330 points the way to a separate ground of review, based on the principle of fairness. It is true that Lord Slynn distinguished between "ignorance of fact" and "unfairness" as grounds of review. However, we doubt if there is a real distinction. The decision turned, not on issues of fault or lack of fault on either side; it was sufficient that "objectively" there was unfairness. On analysis, the "unfairness" arose from the combination of five factors: (i) an erroneous impression created by a mistake as to, or ignorance of, a relevant fact (the availability of reliable evidence to support her case); (ii) the fact was "established", in the sense that, if attention had been drawn to the point, the correct position could have been shown by objective and uncontentious evidence; (iii) the claimant could not fairly be held responsible for the error; (iv) although there was no duty on the Board itself, or the police, to do the claimant's work of proving her case, all the participants had a shared interest in co-operating to achieve the correct result; (v) the mistaken impression played a material part in the reasoning."
20. Carnwath LJ went on:
“66. In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Board case. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been “established”, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning.”
21. As to the question of whether fresh evidence could and should be admitted to establish that there had been a mistake of fact Carnwath LJ said that the nature of the mistake was relevant to deciding whether the material should be admitted, even though that material might have been available before the decision or hearing. Where the complaint was of ignorance of the evidence which was all along available, the issue overlapped with the question of fairness. Ladd v Marshall principles remained the starting point in public law cases, but there was a discretion to depart from them in exceptional circumstances and where the interests of jusrice required it [81, 82].
22. Carnwath LJ drew together the threads of his discussion:
“91. In summary, we have concluded in relation to the powers of this court: (i) an appeal to this court on a question of law is confined to reviewing a particular decision of the tribunal, and does not encompass a wider power to review the subsequent conduct of the Secretary of State; (ii) such an appeal may be made on the basis of unfairness resulting from "misunderstanding or ignorance of an established and relevant fact" (as explained by Lord Slynn in the Criminal Injuries Compensation Board [1992] 2 AC 330 and Alconbury cases [2003] 2 AC 295); (iii) the admission of new evidence on such an appeal is subject to Ladd v Marshall principles, which may be departed from in exceptional circumstances where the interests of justice require.”
23. It is clear that the interests of justice and fairness provide the foundation for the judgment of Carnwath LJ.
24. Turning back to the appeal before me. The FtT, when assessing whether the Appellant had rebutted the statutory presumption that he was a danger to the community, proceeded on the mistaken factual basis that the Appellant had not re-offended since his release on licence following his conviction in 2013. I remind myself of the factors set out at [66] of E & R which, as acknowledged at that time, do not amount to a “precise code”:
a. It is accepted that there was a mistake as to existing fact by the FtT, namely the existence of the Appellant’s conviction for common assault in 2020;
b. It is not in contention that the evidence of the Appellant’s conviction was available in the form of an objectively verifiable PNC printout;
c. The Respondent had the means available to provide the FtT with the Appellant’s PNC printout prior to, or even at, the hearing on 22nd September 2025. The fact of the conviction was known to the Respondent at the time of the conviction itself. It is also highly likely that the Appellant’s reference to not having “reoffended” (see paragraph 7(i) above) contributed to the mistake of the FtT and he (and/or his previous representatives) must also bear responsibility;
d. I disagree with Ms Foot that the mistake cannot be said to be material. It is clear that at [29] of the FtT’s reasoning on the question of whether the Appellant had rebutted the presumption that he was a danger to the community, the FtT placed significant weight on the (mistaken) fact that a “significant passage of time between the appellant being released on licence and any reoffending” (my emphasis). The FtT described this fact as one of three “key reasons” why it found the Appellant had rebutted the presumption that he was a danger to the community [26]. At [27] the FtT placed “considerable” weight on the OASYs report which had assessed the Appellant as at low risk of reoffending. The subsequent evidence the FtT refers to from the Probation Service continued to assess the Appellant as low risk (dated 2nd February 2018). Both the report and letter, however, pre-dated the offence in 2020. The fact that the Appellant had offended in 2020 on his own case in public (see [31] of his witness statement cited above), whilst not necessarily decisive, changed the landscape of factors and the evidence relevant to the FtT’s decision on section 72 of the 2002 Act.
25. Drawing all of the considerations above together and despite Ms Foot’s careful submissions, I am satisfied that the FtT erred in fact and that this error was material to the conclusion that the Appellant had rebutted the presumption that he was a danger to the community. For the avoidance of doubt, I have not found it necessary to consider, at this stage, the implications of the Appellant’s conviction for stalking between 1st July and 23rd October 2025.
26. For these reasons, I find that the Respondent succeeds on Ground 2, and that a material error of law has been established such that the Decision of the FtT cannot stand. I need not resolve Ground 1.
Ground 3
27. In the circumstances, I need not go further to resolve Ground 3.
Disposal
28. Having found an error of law material to the FtT’s decision on s72 of the 2002 Act, I turn to disposal upon which I invited both advocates to address me.
29. Ms Foot’s position is that if a material error of law is found in relation to Ground 1 or 2 alone, then the findings in relation to the Appellant’s sexuality should be preserved on remaking as they are unaffected by the error found. I record that the FtT found at [31] and [42] that the evidence “overwhelmingly” pointed towards the Appellant being a bisexual man. Mr Wain’s position is that this was an appeal which turned on the Appellant’s credibility and it cannot be said that a different conclusion in respect of whether the Appellant had rebutted the statutory presumption would have had no effect on the findings of the FtT in respect of his claimed sexuality. Furthermore, the FtT was deprived of the opportunity to hear evidence on the 2020 conviction.
30. Having closely considered the arguments of both advocates, I agree with Mr Wain. Had the FtT been aware of the Appellant’s conviction in 2020 for common assault, it would have heard evidence on the same and considered that evidence as relevant to the question of s72 of the 2002 Act. The findings of the FtT as to the credibility of the Appellant’s account of his sexuality were uninformed by a sustainable assessment of whether the Appellant had rebutted the presumption that, as a serious criminal, he posed a danger to the community of the United Kingdom. Furthermore, the fact of the 2020 conviction is at the very least relevant to the assessment of the Appellant’s credibility as a witness of fact in light of the Appellant’s position in his witness statement dated 1st September 2025 that:
“Since my release, I have lived peacefully in the community for over eleven years without reoffending” [63] [emphasis added];
“I am not a danger to the public…My conviction was over a decade ago, and I have rebuilt my life since then” [90]
As it stands, the FtT did not have the opportunity to hear any evidence on this point, or on the circumstances of the 2020 conviction. I do not accept, in those circumstances, that the conclusions of the FtT in respect of the Appellant’s sexuality (even taking account of the other evidence before it) would inevitably have been the same.
31. I am persuaded that in all of the circumstances, for the reasons that I set out above, none of the findings of fact can stand.
32. The Parties were not in agreement in respect of whether the appeal should be retained in the Upper Tribunal for full re-making should this point be reached. I direct myself in accordance with Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC). Having weighed all of the factors, including the required fact finding on the principal controversial issues and the loss of the two-tier decision making process (particularly on matters not yet adjudicated upon by the FtT relating to the Appellant’s appeal on Article 3 ECHR medical grounds and Article 8 grounds), I am in agreement with Ms Foot and I have determined that the appeal should be remitted to the FtT.
Notice of Decision
The Decision of the FtT involved a material error of law and is set aside with no findings of fact preserved. The appeal shall be remitted to the FtT for full re-hearing.

Roxanne Frantzis
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

8th October 2026