Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002518
First-tier Tribunal No: PA/56662/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

4th September 2026

Before

UPPER TRIBUNAL JUDGE LOUGHRAN

Between

CG
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Muzenda of Longfellow & Co Solicitors
For the Respondent: Mr Tufan, Senior Home Officer Presenting Officer

Heard at Field House on 29 July 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
1. The appellant appeals with the limited grant of permission of First-tier Tribunal Judge Turner against the decision of First-tier Tribunal Judge Shergill (“the Judge”), dated 2 February 2026.
Background
2. The appellant, a citizen of Botswana, arrived in the UK on 16 April 2022 on a tourist visa. On 9 December 2022 she claimed asylum on the basis that she feared FGM on return to Botswana. In an undated decision the respondent refused the appellant’s protection and human rights claim.
Appeal to the First-tier Tribunal
3. The appellant appealed against the refusal of her protection and human rights claim and the appeal came before the Judge on 8 January 2026.
4. The appeal was heard in the virtual region, meaning that it was heard remotely via cloud video platform, not face to face and in person. The appellant was represented and gave her evidence in English.
5. In a decision dated 2 February 2026 the Judge dismissed the appellant’s appeal. The Judge did not find the appellant’s claim to be credible. The Judge was also satisfied that taking the appellant’s claim at its highest the appellant could access state protection and/or safely and reasonably relocate.
Appeal to the Upper Tribunal
6. The appellant applied for permission to appeal to the Upper Tribunal.
7. In a decision dated 18 May 2026 the First-tier Tribunal granted the appellant permission to appeal on three of her five grounds. The First-tier Tribunal refused the appellant permission to appeal on her two other grounds. The appellant did not make an application to renew those grounds to the Upper Tribunal.
8. The parties agree that the grounds the appellant has permission to pursue are the following:
Ground 1: the Judge materially misdirected herself in law by concluding that women in Botswana do not constitute a particular social group.
Ground 3: the Judge conducted a legally flawed credibility assessment.
Ground 4: the Judge failed to adequately consider whether protection would be available to the appellant.
9. The respondent provided a response under Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 opposing the appellant’s appeal.
10. At the hearing I heard submissions from Mr Muzenda on behalf of the appellant and Mr Tufan on behalf of the Secretary of State for the Home Department.
Discussion
Ground 1
11. The Judge addressed whether women in Botswana formed a particular social group at paragraph 10, stating:
“The CPIN states that women do not form a particular social group (PSG) in Botswana under the Refugee Convention because they do not share in a characteristic that cannot be changed and do not have a distinct identity. I note that women have the same civil, legal and political rights as men, albeit they may face discrimination in customary law etc. The limited evidence from the appellant and arguments in the document she relies on does not show anything reliable to conclude otherwise. I am satisfied FGM is a form of gender-based violence. I am satisfied that this is a case that does not engage the Refugee Convention.”
12. The CPIN, is the respondent’s Country Policy and Information Note Boswana: Women fearing gender-based violence, Version 2, January 2025. This CPIN has been withdrawn and is no longer available on the governments website. Mr Tufan was not able to provide me with a copy. However, the Upper Tribunal’s Legal and Unit Research provided me with a copy after the hearing. The Judge records the contents of the CPIN accurately. It appears in the ‘Assessment’ section of the CPIN, which sets out the respondent’s policy and provides guidance to caseworkers. It was not binding on the Judge.
13. The Judge simply adopted the respondent’s policy position as to whether women in Botswana constituted a particular social group and then effectively found that the appellant had not rebutted it. The Judge did not explain why she considered the respondent’s policy position to be correct.
14. I note that in the ‘Assessment’ section of the same CPIN it states “individual women may experience discrimination and violence, particularly from intimate partners….’spousal rape is not a crime and customary laws discriminate against women in relation to marriage inheritance and property rights.” I also note that the ‘Country Information’ section of the CPIN quotes the United Nations Development Programme as having recorded that “key informants highlighted that GBV (gender based violence) is a serious issue in Botswana that is not getting the necessary attention from the responsible authorities.”
15. In those circumstances, I am satisfied that the Judge failed to give adequate reasons to support her conclusion that women in Botswana did not form a particular social group.
Ground 3
16. The appellant relied on a letter from a specialist FGM counsellor at Imperial College Healthcare, the Sunflower Clinic, Gynaecology Outpatient’s Department, Queen Charlotte and Chelsea Hospital, dated 15 March 2024. The FGM counsellor stated that she had been seeing the appellant for one-to-one sessions since 1 March 2024 and describes the appellant as “very distressed.”
17. I am satisfied that in the circumstances where there was evidence that the appellant had received counselling since her arrival in the UK and that evidence described the appellant as “very distressed” the Judge was obliged to consider whether the Joint Presidential Guidance Note No 2 of 2010 Child, Vulnerable Adult and Sensitive Appellant Guidance (the Guidance Note) applied and determine whether the appellant should be treated as a vulnerable witness.
18. The only reference in the Judge’s decision to the appellant having received counselling is in the Judge’s consideration of the appellant’s Article 8 claim.
19. The Judge described the appellant’s account as "vague" at [13] and as "not having the ring of truth" at [13]. The Judge describes herself as pressing the appellant and seeking clarification but considers that her evidence was “simply being made up on the spot in response to questions”.
20. I am satisfied that the Judge’s failure to consider whether Guidance Note applied impacted on her assessment of the appellant’s credibility and as such she materially erred in law
Ground 4
21. I am also satisfied that the Judge erred in her assessment of whether the appellant could access sufficiency of protection.
22. At [17], the Judge records that “the CPIN indicates that women are likely to obtain protection.” However, the Judge does not go on to give reasons why she considers the respondent’s policy position to be correct.
23. At [20] the Judge states:
“The appellant’s failure to pursue domestic remedies both in terms of pursuing the police complaints she may have made (if true) and any complaints process / civil law remedies means that she cannot rely on surrogate international protection. Her own state has denied her protection and domestic remedies are the first port of call given a state is willing and able to intervene and offer some level of protection as per the CPIN.”
24. This is not correct. An individual is not obliged to pursue domestic remedies prior to seeking international protection. A decision maker is obliged to determine whether sufficient protection would be available to them on return. Whether an individual sought protection prior to their departure may be factor that may be relevant to that consideration, but it is not decisive.
25. I am therefore satisfied that the Judge failed to give adequate reasons why she considered the appellant could access sufficiency of protection.
Materiality
26. I am not persuaded by Mr Tufan’s submission that because permission had been refused on the appellant’s ground that the Judge had failed to undertake a proper assessment as to whether it would be unduly harsh for her to relocate any other error was immaterial.
27. I am satisfied that the errors I have identified are material. The appellant’s vulnerability is plainly relevant to the assessment of whether she could internally relocate.
28. I am satisfied that the errors I have identified mean that the whole decision has been infected and needs to be set aside and that no findings of fact can be preserved.
Disposal
29. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) I have considered whether to retain the matter for re-making in the Upper Tribunal in line with the general principles set out in Statement 7 of the Senior President’s Practice Statement. I am satisfied that it should be remitted to the First-tier Tribunal because credibility is in issue and significant findings of fact will be re-made.

Notice of Decision
30. The decision of the First-tier Tribunal contains material errors of law. Accordingly, it is set aside in its entirety with no findings of fact preserved.
31. The appeal is remitted to the First-tier Tribunal for a fresh hearing to be heard by a different judge.

G. Loughran

Judge of the Upper Tribunal
Immigration and Asylum Chamber

1 September 2026