Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001265
First-tier Tribunal No: PA/62915/2023
LP/03611/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

7th July 2026

UPPER TRIBUNAL JUDGE NEVILLE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ZS
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms A Ahmed, Senior Presenting Officer
For the Respondent: The respondent in person

Heard at Field House on 21 May 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the respondent (referred to as ZS) and her two children are granted anonymity. No-one shall publish or reveal any information 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
1. This is the Secretary of State’s appeal against the decision of the First-tier Tribunal (“FtT”) to allow ZS’s appeal against the refusal of her protection claim. Given that the appeal concerns a claim for protection, and with reference to ZS’s reasons for making it, an anonymity order in respect of ZS and her two children is appropriate.
2. ZS is a national of South Africa who claimed to face a real risk on return arising from a former partner involved in criminal activity, and at whose hands she suffered rape and sexual abuse. The Secretary of State rejected that claim, maintaining that ZS is not at risk, that there is in any event sufficient protection available, and that she could reasonably relocate within South Africa.
3. The First-tier Tribunal accepted ZS’s account as credible and consistent, found that she would be at risk on return, and concluded that she could not avoid that risk by accessing a sufficiency of state protection, nor by internal relocation. The appeal was allowed on protection grounds.
4. The FtT granted the Secretary of State permission to appeal on three grounds: (1) alleged failures in the treatment of inconsistencies and omissions in ZS’s account; (2) a challenge to the lawfulness of the FtT’s conclusions on risk; and (3) a challenge to the assessment of the reasonableness of internal relocation. ZS provided a useful and focused rule 24 Response, setting out her opposition to all three grounds.
Ground 1 – Findings of Fact
5. The Secretary of State contends that the FtT erred in accepting ZS’s account as credible and consistent because it failed to engage with two material ‘inconsistencies’ between her evidence at the hearing and her earlier accounts.
6. The first claimed inconsistency concerns ZS’s account of her journey to the UK. At the hearing, she stated that she stayed in the Republic of Ireland with “someone from South Africa” who then “sent” her to the United Kingdom. This, it is said, is inconsistent with her screening and asylum interview evidence, in which she stated that she travelled to the United Kingdom using a visit visa issued by the Irish authorities, with no mention of any such individual or assistance.
7. The second claimed inconsistency concerns ZS’s account of her time in the UK before claiming asylum, arguing it to be inconsistent with her having had an encounter with the UK immigration authorities in 2018 when she gave a false name.
8. ZS gave evidence before the FtT, which records that she “was detailed in her answers to […] extensive cross-examination, expanding upon her account in interview”. Ms Ahmed was unable to confirm whether that cross-examination had included the two points now taken above, nor whether the presenting officer had argued them as undermining credibility when making closing submissions.
9. In my judgment this is a paradigm example of the ground of appeal criticised in Lata (FTT: principal controversial issues) [2023] UKUT 163. The guidance given in that authority was recently described in AL v Secretary of State for the Home Department [2026] EWCA Civ 370, as follows
80. The Secretary of State's appeal was based on a misconception that if a party is silent about, or does not expressly concede a point, a judge was under a duty to consider all the points which might favour her, 'even if not expressly relied on'. It required the judge to search for a point and to consider a point which, while obvious, was 'not so obvious that it was raised by a party at the hearing'. The purpose of the new appeal procedure was to ensure that judges were not required to 'trawl through the papers' in order to work out which issues they had to consider. Their job is to 'deal with the issues that the parties have identified. It is trite that the hearing before the FtT is not a lap in the warm-up for a subsequent appeal in which a party's case can be differently articulated. Parties are expected to advance their cases to their best advantage, permitting a judge to decide between two competing sets of submissions that identify the full extent of the parties' positions' (paragraph 31).
81. The procedures in the F-tT gave ample opportunities for the parties to clarify their cases: the filing of the ASA, the Secretary of State's review, a case management review hearing, the start of the hearing, when the judge asks what the issues are, and closing submissions. If by the end of the hearing a party has not identified an issue, a judge is entitled to assume that he or she does not need to decide it. The judge will know about the duty of anxious scrutiny in a protection case, particularly when an appellant is not represented. The duty of anxious scrutiny is not 'an excuse for the failure of a party to identify …the principal controversial issues in the case'. On the contrary, it was the duty of the parties to identify all such issues. On an appeal to the UT 'it should be rare indeed for there to be a point requiring anxious scrutiny (which is not Robinson obvious in the case of an appellant)' to have escaped the notice of the F-tT under the new procedures. Proceedings in the Asylum and Immigration Chamber ('IAC') are not 'some form of rolling reconsideration by either party of its position' (paragraph 33).
82. The parties must 'identify relevant issues of their own motion. There is no place for hiding a jewel of a submission in the hope it will purchase favour on an appeal. A party that fails to identify an issue before the FtT that it subsequently asserts to have been essential for a judge to consider is unlikely to have a good ground of appeal before' the UT. That was not to say that the judge in the F-tT should not be curious, and not ask questions if he or she needed more help. 'Where, as here, a point has not been identified by the parties, and nor is it one which independently drawn the attention of the judge, it is not an issue which can be appropriately raised for the first time' on an appeal (paragraph 34).
10. The Court approved that approach to the ‘principal controversial issues’ in the appeal, further holding that:
89. It is clear from Lata that it is an appellant's responsibility to put all her arguments before the FtT. It is her duty to identify the points which the FtT is required to resolve in order to decide the appeal. The UT in Lata described those as 'the principal controversial issues'. That formula is often used in public law to define the duty of a tribunal or other decision-maker to give reasons (see, for example, South Bucks District Council v Porter (No 2) [2004] UKHL 33; [2004] 1WLR 1953). There is therefore a deliberate symmetry, on the reasoning in Lata, between the parties' duty to identify the main issues for the FtT, and the FtT's duty to explain what it has made of those issues. The FtT must decide those issues, and give reasons for its decision on them. But the FtT can only decide them, and is only obliged to decide them, if the parties expressly identify them.
90. Nor is the FtT obliged to decide every single issue which the parties have identified; only those which, in its view, will enable it to decide the appeal fairly. Nor is a tribunal required to comb through the documents and the evidence in search of potential points for either party, whether the appellant or the Secretary of State. I reject AL's submission that the FtT was obliged to read Dr Heke's reports with a view to detecting the three points: the potential force of this argument is attenuated by the fact that the FtT rejected the assumptions on which the crucial parts of Dr Heke's reports were based. The FtT's function is not inquisitorial.
11. Those principles carry particular force in the present appeal, where (i) the points said to have been missed by the FtT are not issues posed expressly by the applicable legal regime, but rather forensic evidential points, and (ii) the Secretary of State cannot claim to have ever raised them before the present appeal to the UT.
12. I accept that if the presenting officer at the FtT had put these matters in cross-examination and then relied upon them as central to her case on credibility, then the FtT may have erred if it subsequently failed to address them in its reasons. Even that would depend on the FtT’s treatment of the evidential matters it did find relevant.
13. I do not criticise Ms Ahmed, who was not the author of the grounds, but it is concerning that it was considered appropriate for the author to comb through evidence looking for evidential points that might have been missed the first time around. Such an approach would have received short shrift even before the decision in Lata. “The trial is not a dress rehearsal: it is the first and last night of the show”: Fage UK Limited v Chobani UK Limited [2014] EWCA Civ 5.
14. Lest it be thought that ZS has benefited from a windfall by having an incredible account believed, I should record that the claim of inconsistencies is without merit in any event. It first relies on an exchange in the screening interview, noted as follows by the Immigration Officer:
3.3 Please outline your journey to the UK I last (sic) ZAF in December 2013 by air travelled to Ireland arrived on the next day (journey took more than 12 hours).
I left Ireland 1/01/2014 by ferry using my own
passport and the visa was issued at airport -
Ireland by immigration on my arrival to Ireland.
Given me 2- 3 days Visit visa. I used that visa to
entered the UK on 2/01/2014.
Have you made any further application in the
UK? No
15. Second, within the substantive asylum interview, noted as follows: (‘IO’ refers to interjections by the Immigration Officer)
18. Question (required)
Well the republic of Ireland isn't a part of the UK so where in Ireland did you live?
18. Response (required)
I didn't live there, I just travelled through there. [IO How long did you spend in Ireland roughly?] I think 4 days if I am not mistaken.
19. Question (required)
And what were you doing in lreland?
19. Response (required)
Tryna find my way this side [IO Do you know which area of lreland you stayed in?]
Goodness I cant even remember [IO Do you remember any names?] Wow.
[applicant thinking] [IO Dont worry if you cant remember, you weren't there long so I get it]
16. It is said to be ‘inconsistent’ for ZS not to have mentioned in the above answers that while in Ireland she was accommodated for a few days by someone from South Africa, as later came out in cross-examination. While it would be for the FtT to decide by reference to the overall evidence whether those answers damaged credibility, it is difficult to see how they could do so to any meaningful degree.
17. I move on to the second point. This not only fails to identify an ‘inconsistency’ but does not even assert that ZS omitted a relevant detail. In the screening interview she confirmed that she had been encountered and fingerprinted in the UK previously and had given a false name. The point that the Secretary of State tries to make in the grounds of appeal, as helpfully clarified by Ms Ahmed, is that the FtT did not mention the previous use of a false name as a matter that potentially damages credibility. Not only do I proceed on the basis that this was never argued, much less put to ZS in cross-examination for comment, the FtT conducted a detailed credibility assessment that rejected multiple criticisms of ZS’s evidence and found her account to be detailed and consistent. The FtT did refer to the delay in claiming asylum and the explanation for it given by the appellant, finding that any concerns were outweighed by the positive indicators of credibility elsewhere. No error of law is disclosed in its analysis.
Grounds 2 and 3 – Risk on return and internal relocation
18. Under this ground, the Secretary of State criticises the FtT’s finding that ZS would be at risk in both her home area and elsewhere in South Africa. The FtT records at [32] that the Secretary of State accepted that ZS would be at risk in her home area if her account was established. If this was a mistake by FtT then it was incumbent on the Secretary of State to plead as much in her grounds, and to provide some sort of confirmation that such a concession had not been made. I strongly doubt that there was any mistake, not least because the FtT’s understanding is consistent with the contents of the prior Respondent’s Review, but it is sufficient to record that it is not open to the Secretary of State to go behind the concession recorded by the Judge and nor has she made any positive argument in that respect. Current risk is established.
19. The finding that ZS would be at risk from her former partner is criticised as not being reasonably supported by the evidence, or falling outside the range of findings reasonably open to the FtT. These are two of the ways in which appellate interference in first-instance findings of fact may be ‘plainly wrong’, as set out by Carr LJ (as she then was) in Clin v Walter Lilly & Co. Ltd [2021] EWCA Civ 136, at [83]-[87]. The caution that must be exercised when approaching challenges to findings of fact was reiterated, a point made in similarly emphatic terms in Volpi v Volpi [2022] EWCA Civ 464 at [2]:
i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.
20. In this appeal, similar principles are provided by the Senior President’s Practice Direction: Reasons for decisions.
21. Ms Ahmed addressed me on how the passage of time and the size of South Africa, together with other aspects of the evidence, made it vanishingly unlikely that ZS’s former partner could harm her wherever she might reasonably be expected to live. If the same arguments had been so persuasively made to the FtT on this topic, then the Secretary of State might have prevailed. As it is, the matter was essentially re-argued. The only discrete matter not mentioned by the FtT was the passage of time since ZS’s abuse at the hands of her former partner, but again there is no indication that diminution of risk over time was put forward in the Secretary of State’s closing submissions as relevant to risk. It can be tempting on appeal to see a point as carrying potential relevance, and too easy to assume that the failure to mention it bespeaks legal error. The danger is that the FtT might have had good reason not to mention it, for example oral evidence that justified the presenting officer declining to take the point in submissions. The FtT is repeatedly exhorted to address in its reasons only those matters that were argued, rather than ones which were not.
22. As it is, the FtT gave several reasons for finding that ZS would be at risk elsewhere in South Africa, such as in Cape Town as had been argued by the respondent as a potential destination, including by detailed reference to the relevant Country Policy & Information Note, the evidence and the parties’ submissions. As well as risk, it took into account ZS’s circumstances and characteristics, including her vulnerability arising from the abuse she received, her status as a single mother of a young child, and country evidence of provision of accommodation such as shelters. The FtT’s conclusion is adequately reasoned and cannot be properly characterised as perverse.
23. The above analysis also answers the arguments made under Ground 3. The Secretary of State first takes issue with the FtT’s description of ZS’s daughter as “British born”, arguing that the FtT mistakenly thought her to be a British citizen. While the term is somewhat clumsy, when the decision is fairly read as a whole it is clear that the FtT meant nothing more than she was born in the UK. Nowhere else does it refer to her as being British or to any principle that would be engaged if she were, for example as contained at section 117B(6) of the Nationality, Immigration & Asylum Act 2002.
24. Second, the Secretary of State takes issue with the FtT’s findings on ZS’s children. ZS’s son was dealt with as a dependent child throughout the refusal decision, but by the time of the hearing was an adult. The Secretary of State now takes issue with lack of any finding that he could assist ZS in internal relocation. Again, Ms Ahmed was unable to point me towards any corresponding submissions on that point. I note in that respect that there was a Respondent’s Review as well as a previous case management hearing where various matters were canvassed as now engaged; this was not one of them. While this point causes me slightly more hesitation, as this is an issue where the FtT could have usefully set out the relevant circumstances and the extent they were argued as being relevant, I nonetheless conclude that on proper analysis this is another issue that ought to have been raised before the FtT during the hearing rather than on appeal. A lack of rigour in this respect risks giving licence to appeal proceedings becoming, as it was put in AL, a form of rolling review.
25. Error in relation to Article 8 ECHR would be immaterial in any event, given the conclusions reached above on protection.
Conclusion
26. None of the grounds argued by the Secretary of State disclose an error of law in the FtT’s decision.

Notice of Decision
(i) The Secretary of State’s appeal to the Upper Tribunal is dismissed.
(ii) The decision of the First-tier Tribunal to allow the appellant’s appeal on protection and human rights grounds stands.

J Neville
Judge of the Upper Tribunal
Immigration and Asylum Chamber

30 June 2026