Tribunal decisions

The decision

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 23rd of September 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE ANZANI

Between

PM
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms J. Carrington-Wolf, Counsel instructed by Seren Legal Practice
For the Respondent: Ms K. Khan, Senior Home Office Presenting Officer

Heard at Field House on 08 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, likely to lead members of the public to identify the Appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. The Appellant appeals against the decision of the First-tier Tribunal, promulgated on 11 January 2026, dismissing her appeal on asylum and humanitarian protection grounds.
Background
2. The Appellant claims to be a national of the Democratic Republic of Congo (‘DRC’), born in Kinshasa on 26 May 1979. The Respondent’s case is that she is a national of the Republic of Congo.
3. The Appellant claims that she left the DRC in 2008 and travelled to South Africa, where she was recognised as a refugee. She obtained a South African refugee travel document and entered the United Kingdom using a visit visa issued in December 2017. She claimed asylum on 10 April 2018.
4. Her protection claim was advanced by reference to her claimed experiences in the DRC, including abduction and mistreatment by a rebel group, gender-based violence and political opinion. Her case before the First-tier Tribunal depended first upon establishing that she was a national of the DRC rather than the Republic of Congo.
Decision of the First-tier Tribunal
5. The appeal was heard before the First-tier Tribunal sitting in Birmingham on 22 December 2025. The Appellant attended, was represented and gave evidence with the assistance of a Lingala interpreter. The Judge dismissed the appeal for the reasons I shall now summarise.
6. At paragraph 18, the Judge considered a birth certificate dated 22 May 2017. The Judge recorded that the Appellant said that she had lost her original certificate and obtained a replacement from the ‘South African Embassy’ using her marriage certificate. The Judge found it highly unlikely that a South African embassy would issue a birth certificate to a person who was not a South African national and found the Appellant not credible.
7. At paragraph 19, the Judge attached little weight to the birth certificate. The Judge considered that it should have been provided to the South African authorities when the Appellant’s travel document was issued and that, had it been provided, her nationality would have been recorded as DRC rather than ‘COG’. The Judge also found that the Appellant had provided no reasonable explanation for obtaining the certificate approximately ten years after claiming asylum in South Africa.
8. At paragraph 20, the Judge considered that it would have been reasonable for the Appellant to produce evidence of her life in the DRC, such as her marriage certificate. The Judge also relied upon the fact that the Appellant had said at interview that she would look for the marriage certificate and later said that she had used it to obtain the replacement birth certificate.
9. At paragraph 21, the Judge stated that the Appellant’s South African ‘passport’ recorded her nationality as ‘COG’, which both parties had accepted referred to the Republic of Congo. The Judge described the document as a strong and significant indicator that the Appellant was a national of that country.
10. At paragraphs 22 to 24, the Judge attached no weight to the passports said to belong to the Appellant’s siblings, limited weight to the evidence of the father of her British child, and little weight to the generic descriptions ‘Congo’ and ‘Congolese’ because they could refer to either country.
11. At paragraph 25, the Judge relied upon discrepancies between the Appellant’s visa application and her asylum account concerning her occupation and whether she had children. The Judge also considered it inconsistent that she had referred at interview to her South African friend’s brother completing the visa application but referred in her 2019 witness statement to the brother of a woman she knew.
12. At paragraph 26, the Judge contrasted the relatively brief account of events in Goma given during the substantive asylum interview with the more detailed account in the Appellant’s statement dated 1 February 2025. At paragraph 27, the Judge attached no weight to the Appellant’s claimed education in the DRC.
13. At paragraph 28, the Judge found that the Appellant had not established, to the lower standard of proof, that she was a national of the DRC. At paragraph 29, the Judge found on the balance of probabilities that she was a national of the Republic of Congo.
14. The Appellant had advanced no case that she would be at risk in the Republic of Congo. The Judge therefore dismissed the appeal without making substantive findings on the protection claim as advanced by reference to the DRC.
Grounds of appeal
15. The Appellant sought permission to appeal on three grounds. Ground 1 alleged a series of material mistakes of fact. In summary, it was contended that the Judge:
(i) mistook the DRC Embassy in Pretoria for a South African embassy;
(ii) failed to consider the explanation that the 2017 birth certificate was a replacement for one which had been lost;
(iii) wrongly treated a marriage certificate obtained in South Africa as evidence which should have established the Appellant’s life in the DRC; and
(iv) wrongly recorded that the parties had agreed that ‘COG’ referred to the Republic of Congo.
16. Ground 2 challenged the findings at paragraphs 25 and 26. It was contended that the descriptions ‘my friend’s brother’ and ‘the brother of a woman I knew’ were not inconsistent and that the provision of further detail in a later statement was not, without more, an inconsistency.
17. Ground 3 alleged a failure to give adequate reasons for the nationality finding and a failure properly to consider the evidence supporting DRC nationality, including the visa application, the Appellant’s consistent account, the DRC birth certificate, the passports of her siblings, her son’s birth certificate and the evidence of her son’s father.
18. Permission was granted on all grounds by First-tier Tribunal Judge Iqbal on 13 April 2026. The permission Judge considered the complaint concerning the provenance of the birth certificate arguable but expressed the view that the remaining grounds disclosed no merit.
The hearing before the Upper Tribunal
19. The matter came before me at Field House on 8 September 2026. The Appellant was represented by Ms Carrington-Wolf and the Respondent by Ms Khan. I had before me a composite Upper Tribunal bundle comprising 423 pages. The Respondent had not filed a rule 24 response.
20. Ms Stephanie Alban, who had represented the Appellant before the First-tier Tribunal, also attended the error of law hearing prepared to give evidence concerning the submissions she had made at the earlier hearing. She had provided a signed witness statement dated 19 January 2026, contained at pages 11–12 of the composite bundle. Ms Khan confirmed that she did not wish to ask Ms Alban any questions. It was therefore unnecessary for Ms Alban to give oral evidence, and her account remained unchallenged.
21. At the outset, Ms Carrington-Wolf applied to amend the grounds to contend that the Judge had applied the wrong standard of proof when finding at paragraph 29 that the Appellant was a national of the Republic of Congo. She relied upon RM (Sierra Leone) v SSHD [2015] EWCA Civ 541, in particular paragraph 35. The Respondent opposed the application because the point had not been pleaded and had been raised at a late stage.
22. I refused the application to amend the grounds. It was made orally for the first time on the morning of the hearing. No amended ground had been reduced to writing or served, and the Respondent had received no prior notice of the application. The Respondent opposed the application on the basis that she had not had a fair opportunity to consider the precise formulation of the proposed ground, obtain instructions and prepare submissions in response. I was not satisfied that the resulting unfairness could properly be cured without adjourning the hearing.
23. I also considered whether the proposed ground disclosed a Robinson obvious point which required consideration notwithstanding those procedural deficiencies. It did not. At paragraph 28, the Judge expressly applied the lower standard of proof when deciding whether the Appellant had established that she was a national of the Democratic Republic of Congo. At paragraph 29, the Judge made a separate positive finding, on the balance of probabilities, that the Appellant was a national of the Republic of Congo, as alleged by the Respondent, and in reliance on Hamza [2002] UKIAT 05185. On its face, that distinction was not inconsistent with RM (Sierra Leone) v Secretary of State for the Home Department [2015] EWCA Civ 541 at [35], which confirms that the standard applicable to nationality depends upon the legal issue to which nationality is relevant. The proposed ground therefore did not identify an obvious error having a strong prospect of success. Having considered the lateness of the application, the absence of any written formulation, the lack of prior notice to the Respondent and the apparent merits of the point, I concluded that the overriding objective did not favour permitting the amendment.
24. Ms Carrington-Wolf therefore relied upon the original grounds. She submitted that the document at composite bundle page 168 was expressly headed ‘Embassy of the Democratic Republic of Congo in Pretoria’. The Judge had therefore misunderstood both the Appellant’s evidence and the document itself. That misunderstanding led directly to the adverse credibility finding at paragraph 18 and infected the weight attached to the birth certificate at paragraph 19.
25. She submitted that paragraph 19 also failed to engage with the Appellant’s explanation that she had lost the original birth certificate and obtained a replacement. The fact that the replacement was issued in 2017 was therefore not unexplained.
26. In relation to ‘COG’ appearing on the Appellant’s South African travel document, Ms Carrington-Wolf relied upon the signed witness statement of Ms Stephanie Alban, who represented the Appellant before the First-tier Tribunal. Ms Alban stated that she had not conceded that ‘COG’ meant the Republic of Congo and had submitted that the Respondent had produced no evidence establishing that meaning. Ms Carrington-Wolf submitted that the travel document was a refugee travel document rather than a national passport and that its printed nationality field described the Appellant as ‘Congolese (Refugee)’.
27. Ms Carrington-Wolf also submitted that the Judge failed to assess the nationality evidence in the round. The visa application recorded DRC nationality and Kinshasa as the place of birth, the same travel document had been disclosed in that application, and entry clearance had nevertheless been granted. The Appellant’s son’s birth certificate also recorded her place of birth as the DRC.
28. Ms Khan opposed the appeal on all grounds. It was submitted that the Judge had considered the evidence as a whole and had given several sustainable reasons for rejecting the Appellant’s claimed nationality. Those included the entries in the South African travel document, the failure to produce the marriage certificate, the discrepancies in the visa application, the absence of supporting educational documents and the limited weight properly attached to the evidence of the Appellant’s alleged siblings and former partner.
29. Ms Khan accepted that the birth certificate appeared to have been issued by the DRC Embassy in Pretoria and that the wording at paragraph 18 might reflect a misunderstanding. It was submitted, however, that the error was not material because the Judge had identified other reasons at paragraphs 18 and 19 for attaching little weight to the certificate.
30. Ms Khan was unable to confirm that the concession recorded at paragraph 21 had been made and did not seek to challenge Ms Alban’s statement. It was nevertheless submitted that any error was immaterial because paragraph 24 recognised that the term ‘Congolese’ was not determinative and because the official South African document contained the code ‘COG’.
31. The Respondent relied upon MN (Vietnam) v SSHD [2026] EWCA Civ 485 at paragraphs 35, 36 and 46 and submitted that the decision had to be read as a whole and without overly forensic scrutiny.
32. At the conclusion of the hearing, I reserved my decision.
Decision and reasons
33. I have considered the First-tier Tribunal’s decision, the evidence identified in the grounds and submissions, the grant of permission, the parties’ oral submissions and the documents contained in the composite bundle before reaching my decision.
34. The Supreme Court in HA (Iraq) v SSHD [2022] UKSC 22 reiterated that judicial caution and restraint are required when considering whether to set aside a decision of a specialist tribunal. In particular, judges of the specialist tribunal are best placed to make factual findings. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v SSHD [2007] UKHL 49 and KM v SSHD [2021] EWCA Civ 693. Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v SSHD [2010] UKSC 49. When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v FTT (SEC) [2013] UKSC 19.
35. A judge is not required to rehearse every item of evidence. The reasons must, however, identify and resolve the principal controversial issues and enable the parties to understand why they have won or lost: Budhathoki (reasons for decisions) [2014] UKUT 00341 (IAC) and MK (duty to give reasons) Pakistan [2013] UKUT 00641 (IAC).
36. I have kept these considerations in mind when coming to my decision.
Ground 1: Factual errors
Grounds 1.1 and 1.2: The birth certificate
37. The document at composite bundle page 168 is headed “Embassy of the Democratic Republic of Congo in Pretoria”. It certifies that the Appellant is a Congolese citizen born in Kinshasa in the DRC and was issued in Pretoria on 22 May 2017. It was therefore not a birth certificate issued by a South African embassy or by the South African authorities.
38. At paragraph 18, the Judge reasoned that it was highly unlikely that a South African embassy would issue a birth certificate to a person who was not a South African national. That proposition formed an express part of the finding that the Appellant was not credible. It proceeded upon a material misunderstanding of the provenance of the document. Whether the phrase “South African Embassy” reflected the precise words used in oral evidence or was intended as an abbreviated reference to an embassy situated in South Africa, the document itself placed the true position beyond doubt.
39. The error was not confined to an incidental description. It supplied the principal reason at paragraph 18 for finding the circumstances in which the document was obtained inherently unlikely. It also formed part of the circumstances relied upon at paragraph 19 when the Judge attached little weight to the birth certificate.
40. There is a further difficulty at paragraph 19. The Judge found that the Appellant had provided no reasonable explanation for obtaining the birth certificate approximately ten years after claiming asylum in South Africa. Paragraph 18 had, however, recorded her explanation that she had lost the original certificate and obtained a replacement. The Judge was entitled to reject that explanation but was required to explain why it was not accepted. The statement that no reasonable explanation had been provided did not engage with the explanation actually given.
41. The Judge identified other matters relevant to the weight of the document, including the absence of proof of payment, the fact that the Appellant had not approached the DRC Embassy in the United Kingdom and the apparent inconsistency between the birth certificate and the South African travel document. Those matters did not render the errors immaterial. The birth certificate was central evidence emanating, on its face, from the authorities of the country whose nationality the Appellant claimed. The Judge’s assessment of it was materially affected by the factual mistake and by the failure to address the explanation for its date.
Ground 1.3: The marriage certificate
42. The first part of paragraph 20 is also problematic. The Appellant’s evidence was that she met and married her husband in South Africa. A marriage certificate issued in respect of that marriage would not, without more, have constituted evidence of her life in the DRC.
43. There was nevertheless a separate and potentially legitimate point. The Appellant said during her asylum interview that she would look for the marriage certificate and later said that she had used it to obtain the replacement birth certificate. Subject to any explanation concerning its availability, the Judge was entitled to consider the failure to produce that document when assessing the account of how the birth certificate had been obtained. The error in the first part of paragraph 20 would not, standing alone, have required the decision to be set aside.
Ground 1.4: The travel document entry “COG”
44. At paragraph 21, the Judge stated that both parties had accepted that “COG” referred to the Republic of Congo. Ms Alban’s signed statement says expressly that no such concession was made. She states that she submitted that the entry might refer to “Congo” or “Congolese” and that there was no evidence before the Tribunal establishing that it referred specifically to the Republic of Congo. Ms Alban attended the error of law hearing, but the Respondent did not seek to ask her any questions or otherwise challenge her account.
45. I accept Ms Alban’s evidence and find that the concession recorded at paragraph 21 was not made. The permission Judge considered that paragraph 24 answered this ground because the Judge had there recognised that the term “Congolese” could refer to either country. Paragraphs 21 and 24 concerned different matters. Paragraph 24 addressed the generic words “Congo” and “Congolese”. Paragraph 21 concerned the specific three-letter entry “COG” and the Judge’s understanding that its meaning had been agreed.
46. The underlying document at composite bundle page 340 is a South African-issued refugee travel document. Its printed nationality field states “CONGOLESE (REFUGEE)”. The entry “COG” appears in the place-of-birth field and in the machine-readable information. At question 118 of the substantive interview, the Appellant had been asked about “COG” appearing as her place of birth and maintained that she was from the DRC. It is unnecessary for me to determine the correct technical meaning of every entry in the travel document. The material point is that its significance was disputed, whereas the Judge proceeded on the mistaken basis that the parties had agreed that it referred to the Republic of Congo.
47. The Judge described the travel document as a “strong and significant indicator” of Republic of Congo nationality and placed significant weight upon it again at paragraph 28. In those circumstances, the mistake concerning the concession was material to the assessment. Whatever conclusion might properly be reached after considering evidence about the code, the Upper Tribunal cannot substitute an evidential analysis which the First-tier Tribunal did not undertake.
48. Grounds 1.1, 1.2 and 1.4 are therefore made out. Ground 1.3 identifies an error in the first part of paragraph 20, although that error would not, standing alone, have been material.
Ground 2: Alleged inconsistencies
Ground 2.1: Completion of the visa application
49. I accept the challenge to one part of paragraph 25. There is no meaningful inconsistency between saying that a visa application was completed by ‘my South African friend’s brother’ and saying that it was completed by ‘the brother of a woman I knew’. The descriptions are capable of referring to the same person and the decision does not explain why they were treated as inconsistent.
50. The Judge was, however, entitled to consider the substantive discrepancies in the visa application concerning the Appellant’s occupation and whether she had children. The erroneous treatment of the two descriptions of the person completing the form would not have been material by itself, but it formed part of the cumulative credibility assessment.
Ground 2.2: Additional details concerning the Appellant’s abduction
51. I do not accept that paragraph 26 necessarily involved an error of law merely because the Judge used the word ‘inconsistency’. The Appellant’s later statement contained significant allegations, including sexual violence and forced labour, which had not been included in the earlier account. A material omission may properly be relevant to credibility even where the later evidence does not directly contradict the earlier evidence. The Appellant had been asked to explain briefly why she left the DRC and had referred to being taken hostage and threatened. It was for the Judge to assess whether the omission of the further matters was reasonably explained. Although the reasoning could have been more precise, I am not satisfied that this ground independently establishes an error of law.
52. Ground 2.1 is therefore made out, although the error identified would not have been material by itself. Ground 2.2 is not made out.
Ground 3: Failure to give adequately reasoned findings on nationality
53. The Judge was not required to refer expressly to every document relied upon. Paragraph 17 identified the principal evidence said to support DRC nationality, and paragraphs 18 to 27 addressed much of it. I therefore do not accept the broad proposition that the Judge simply overlooked the entirety of the supporting evidence.
54. The visa application and the Appellant’s son’s birth certificate were not necessarily determinative. Much of the information in those documents was supplied by the Appellant or by persons acting on her behalf. The grant of entry clearance did not amount to a binding determination of nationality. The Judge was also entitled to give limited weight to the passports of the alleged siblings and to the evidence of the father of the Appellant’s child for the reasons given at paragraphs 22 and 23.
55. The difficulty is nevertheless that the two principal items bearing directly upon the competing nationalities were not lawfully assessed. The DRC birth certificate was discounted on a fundamental misunderstanding of its provenance and without adequate consideration of the explanation for its date. The South African travel document was treated as establishing Republic of Congo nationality on the materially mistaken basis that the significance of ‘COG’ had been agreed. Those errors affected the evidential foundation of the findings at paragraphs 28 and 29.
56. Ground 3 is therefore made out to that extent.
Conclusion
57. The errors concerning the birth certificate and the entry “COG” were material. The Judge expressly relied upon both matters when finding at paragraph 28 that the Appellant had not established DRC nationality to the lower standard. The South African refugee travel document was then the central evidence relied upon for the positive finding of Republic of Congo nationality at paragraph 29.
58. I accept that the Judge identified other matters capable of weighing against the Appellant. The Upper Tribunal is not entitled, however, to reconstruct the holistic assessment by removing the legally defective reasons and deciding for itself what weight the First-tier Tribunal would have attached to the remaining evidence. I cannot be satisfied that the same conclusions on nationality would inevitably have been reached if the two central documents had been lawfully assessed.
59. The appeal was dismissed solely because the Appellant was found to be a national of the Republic of Congo and had advanced no risk case in relation to that country. The First-tier Tribunal did not determine the substance of the protection claim as advanced by reference to the DRC. Once the nationality findings cannot safely stand, the dismissal of the asylum and humanitarian protection appeals cannot stand either.
Disposal
60. The Appellant’s nationality, the credibility of her account of events in the DRC, and the associated assessment of future risk must be determined afresh. The nature and extent of the fact-finding required are such that, having regard to paragraph 7.2 of the Senior President’s Practice Statements and the guidance in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), the appropriate course is to remit the appeal to the First-tier Tribunal for a hearing de novo before a different judge of the First-tier Tribunal.
61. I do not consider it appropriate to preserve isolated findings. The nationality assessment was central to the decision and the remaining credibility findings were made as part of the same overall evaluation. Preserving selected findings would risk fragmenting the fresh assessment and constraining the fact-finder’s consideration of the evidence as a whole. The Respondent will remain entitled to rely upon all matters said to undermine the claim when the appeal is reheard.
Notice of Decision
The decision of the First-tier Tribunal involved the making of a material error of law.
The decision of the First-tier Tribunal is set aside in its entirety, with no findings preserved.
The appeal is remitted to the First-tier Tribunal to be heard de novo before a different judge.

S. Anzani

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

22 September 2026