Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case Nos: UI-2026-002075
UI-2026-002076
First-tier Tribunal Nos: PA/64283/2024
PA/64285/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 16th of September 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE SYMES

Between

TZ and DT
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Themselves
For the Respondent: Mr E Tufan, Senior Presenting Officer

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.

Heard at Field House on 30 June 2026

DECISION AND REASONS
1. These are the appeals of a mother TZ (born 12 April 1985) and her adult son DT (born 23 January 2006), both citizens of Georgia, against the decision of Judge Beg of February 2025 dismissing their appeals, those appeals themselves brought against the Respondent’s decisions of 26 April 2024 refusing their asylum and human rights claims (made on 8 November 2021, a date of particular significance on this appeal).
2. The primary asylum claim is that of TZ, who (it is not disputed) was the victim of a forced marriage at her father’s behest at the age of seventeen. Her then husband, NT, did not wish her to study or work. She had been able to complete her pharmacy degree only with immense difficulty and under constant threat and had contacted the police several times. Her ex-husband’s influence prevented any action being taken against him. She stated that even after their divorce, the authorities were unwilling to assist her due to his connections. She divorced him in 2014, notwithstanding serious threats from her immediate family including her father who was very aggressive towards her, even following her when she fled to Tbilisi. Her husband and father continued to threaten her until the day she left Georgia. She arrived in the UK in November 2021.
3. She had two children from the relationship with NT, her co-Appellant DT and another adult son who lived in Germany with his family.
4. As TZ’s claim progressed through the system she advanced another element, that she was bisexual. A further witness statement (undated though uploaded on HMCTs on 5 February 2026; and translated for the Appellant by her son DT, who is of course neither a professional interpreter nor an independent person) related that she had not mentioned her sexuality at interview as she was never asked the root cause of her domestic abuse; it was another reason why she felt the police would not have protected her. She had been in a relationship with a woman, IV, for around eight years.
5. Supporting evidence included a short statement from IV, TZ’s alleged former partner, stating that she had had a loving relationship with TZ for some years leading to confrontations with TZ's male relatives; following death threats TZ had been forced to leave the country. An expert report of 10 February 2026 from Dr Lorusso gave her opinion that the regressive laws, state practices, and societal attitudes (reinforced by political rhetoric, cultural narratives, and misinformation) meant that LGBTQ+ persons in Georgia faced a cumulative and systemic risk of discrimination, violence, and repression, against which the state failed to provide effective protection, creating an environment in which LGBTQ+ individuals cannot safely express their identity or exercise fundamental rights; those at risk would have no reliable internal protection or relocation option available to them.
6. Thus it was that the First-tier Tribunal was faced with TZ’s appeal on international protection grounds based on having suffered domestic abuse and being bisexual, and her son DT's appeal predicated on the impact on his private and family life of return to Georgia given he was currently studying in the UK and would face severe disruption to his education and social integration here if required to return to Georgia, an environment in which he had previously been abused.
7. The First-tier Tribunal directed itself that, as per the modern refugee definition regime established by the Nationality and Borders Act 2022 (“NBA 2022”), the questions of Convention reason and subjective fear fell to be determined on balance of probabilities and that matters of risk fell to be assessed to the Sivakumaran standard. Answering the former questions, the Judge found that the Appellant's fears arose due to her membership of a particular social group due to her sexual orientation and that she did in fact fear such persecution.
8. Judge Beg, whilst accepting the Appellant to have experienced domestic abuse, rejected her account of now being in danger of more of the same, on the basis that there was no credible evidence that she had reported the matter to the police, particularly given that she had not been in contact with her ex-husband since their divorce in 2012 and that her claims to have received death threats from him, or threats from her own father and older brother, were implausible. Further she had destroyed her documents and failed to claim asylum in safe third countries en route to the UK without a good explanation. There was no credible evidence of her assertion that he held an influential position.
9. As to the Appellant's claim to be bisexual, this too was disbelieved as it had not been raised at any of the three Home Office interviews, and given that IV’s letter was essentially self-serving and contained no detail of the asserted lengthy relationship. Judge Beg did not consider IV was anything more than a friend of the Appellant, bearing in mind that IV remained in Georgia without any apparent problems arising from her own sexuality.
10. Very discursive grounds of appeal allege that the First-tier Tribunal erred in law because the factual findings were speculative, failed to take a holistic approach to the evidence, and relied on inconsistencies without explaining why they were central to the claim, applying a standard of proof higher than that of the real risk, failing to take account of relevant country evidence, and failing to consider supporting documents in the round.
11. On 22 April 2026 Judge Byrne granted permission to appeal, not on the basis of the pleaded grounds but noting that the date of the asylum claim meant that the NBA 2022 regime did not apply to it.
12. The Secretary of State’s response of 30 April 2026 contends that any misdirection on the standard of proof was not material given that the refusal letter had accepted the critical facts of forced marriage and domestic abuse. Mr Tufan made submissions consistent with that position.
Discussion
13. It is understandable that the Judge granting permission identified a point not clearly articulated in the grounds of appeal. Doubtless the Judge was right to do so applying the Robinson principle that the Tribunal itself, in order to ensue the UK’s compliance with international obligations, should identify any clear errors of law when applying international protection law. That is the only legal ground that is necessary for me to consider.
14. The general understanding amongst immigration judges in the First-tier Tribunal as to the impact of s32 NBA 2022 is that questions of credibility fall within the purview of “subjective fear” such that an evaluation of the asserted historical facts underlying an asylum claim falls to be conducted on the balance of probabilities. The Upper Tribunal decision of JCK (Botswana) [2024] UKUT 100 (IAC) at §16 might be read otherwise, in that it suggests that the balance of probabilities enquiry is limited to the “subjective fear” question which is separate to that of credibility and the determination of the facts underlying the claim. Although at §17 JCK states that “the acceptance or rejection of historical facts presented by a claimant will inform the decision on whether or not he is "in fact afraid".”
15. Whatever the true meaning of s32 NBA 2022, it did not govern the factual determination required in this appeal. There is no suggestion in the appealed decision that the subtleties of JCK were in the Judge’s mind. It seems to me that she assessed all factual issues on the balance of probabilities and that she therefore rejected aspects of the Appellant's claim, such as her sexuality, and her claims that she had received ongoing threats from TD and that his influence was such that the authorities would not protect her, applying that standard.
16. Errors as to the standard of proof are likely to be fundamental to the Tribunal's jurisdiction. The standard of proof represents the lens via which the evidence is to be assessed. If the wrong standard has been applied, one cannot tell what the Judge’s findings would have been applying the correct lens. So the misdirection in this appeal is likely to be fatal to the decision’s safety.
17. The Respondent’s answer to this proposition is that any error as the standard of proof for the assessment of historical facts is not relevant as all relevant facts were accepted. However as I have just pointed out, whatever elements of the claim were accepted by the Respondent, the First-tier Tribunal did not accept the totality of the Appellant’s asserted history. The error of law was thus a material one.
18. There is also another concern in the decision in that this phrase appears:
“The matter has to be determined objectively by reference to the circumstances prevailing there. I look at the matter as of now. I have applied this approach in the context of Karanakaran [2000] 3 All ER 449, relating to non-state agents in general.”
19. Karanakaran is generally taken to be a decision relevant to the standard of proof for assessing historical facts under the pre-NBA 2022 legal regime and to the proper approach to be taken to internal relocation when determining a Refugee Convention claim. So one might imagine that its citation would be at least a straw in the wind suggesting that the correct standard of proof had actually been applied. But that is not the reason for its deployment by the First-tier Tribunal here, which relies on its perceived relevance for assessing asylum claims involving fears from non-state agents. However Karanakaran is not a decision which has much to say about state protection and non-state agents (see eg §106 therein). This further casts doubt on whether the Judge below was focussed on the correct legal tests for determining an asylum appeal.
20. I therefore conclude that the First-tier Tribunal materially erred in law and that the appeal must be reheard. Given that full factual findings will be required, I remit the appeal to the First-tier Tribunal to do so. I would strongly recommend that the Appellants secure legal representation for any future hearings of their appeals. Even with the benefit of legal representation below, significant aspects of the case remained very unclear, and it is very difficult to be confident as to the chronology of TZ’s narrative.
Notice of Decision:
The decision of the First-tier Tribunal involved the making of a material error on a point of law; its decision cannot stand. The appellant’s appeal is allowed to the extent it is remitted for re-hearing in the First-tier Tribunal.

15 September 2026

Upper Tribunal Judge Symes

Judge of the Upper Tribunal
Immigration and Asylum Chamber