Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002554
First-tier Tribunal No: PA/54426/2024
LP/03539/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

6th August 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE WALSH

Between

JC
(ANONYMITY ORDER MADE)
Appellant
and

SECRETRARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms. J Norman, Counsel instructed by Virgo Solicitors Ltd
For the Respondent: Ms. J Isherwood, Senior Home Office Presenting Officer

Heard at Field House on 22 July 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and her child are granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant or her child, likely to lead members of the public to identify the appellant and her child. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The appellant appeals with permission the decision of the First-tier Tribunal promulgated on 12 March 2026 dismissing her appeal against the decision of the respondent to refuse her protection claim.
2. For the reasons set out at [23] to [38] this appeal is allowed.
Anonymity Order
3. The First-tier Tribunal made an anonymity order in this appeal because the appellant has made a claim for international protection. No party asked for this to be set aside and I consider it appropriate for that order to continue because the public interest in the UK’s compliance with its international obligations and in the confidentiality of the asylum system outweigh the public interest in open justice in this case
Background
4. The appellant is an Albanian national.
5. In 2021 the appellant claimed asylum in Germany but returned to Albania before the determination of her claim.
6. There are two limbs of the appellant’s current protection claim in the UK. Firstly, she fears domestic abuse from her brother and her ex-husband as a result of a relationship she started with a man called Kobra who arranged for her and her son to travel to the UK on 19 August 2022.
7. Upon discovering the relationship, her brother, who lives in Greece, contacted her over Facebook and threatened that they were “going to meet together”. This she took as a threat to cause her harm. Her ex-husband, from whom she said she had previously suffered abuse, discovered via their son that she was in the UK with her boyfriend and threatened to take revenge and punish her.
8. On arrival in the UK the appellant and her son were detained by the authorities and taken to a hotel. They were collected by Kobra on their release and taken to his house where they remained for two weeks until Kobra told her that he wanted her to undertake illegal work, including prostitution. The appellant then fled with her son.
9. The appellant claims to have been a victim of trafficking by Kobra and fears that she would be at risk of being re-trafficked if returned to Albania. This is the second basis of her protection claim.
10. The appellant was referred to the National Referral Mechanism but the initial determination dated 25 May 2023 was negative. The appellant challenged the decision and requested reconsideration by the NRM which was accepted on 26 February 2026. The decision was pending at the time of the FtT hearing, however Ms. Norman and Ms. Isherwood advised me that a positive determination was made on 26 March 2026.
First-tier Decision
11. At [1] to [13] the FtTJ referred to the background and positions of the parties.
12. In addressing the respondent’s case the FtTJ states at [11]:
As she was not a victim of trafficking, the risk factors set out at TD and AD (Trafficked Women) CG [2016] UKUT 92 (IAC) did not apply.
13. The FtTJ assessed the documentary and oral evidence presented at the hearing at [15] to [26]. The FtTJ recorded at [19] that there was no evidence of actual threats from the appellant’s brother or her ex-husband. The FtTJ found that the appellant’s explanation, that the phone containing the threats had been broken and lost, was “entirely lacking in credibility.”
14. At [23] the FtTJ stated that the appellant confirmed she had not been threatened by her ex-husband whilst in Albania and found the appellant’s evidence unclear as to when the threats started and how they were communicated. The FtTJ stated at [24] that it was unclear how her brother would carry out the threats, observing that he had been living in Greece for 30 years.
15. The appellant had relied on a text message from her mother warning her not to return to Albania as her ex-husband would find her. The FtTJ found at [20] that this text message was “entirely self-serving and to embellish a weak asylum claim” having noted the provenance of the message was unclear.
16. In respect of her previous travel to and asylum claim in Germany, at [21] the FtTJ recorded that the appellant’s evidence was that she could not remember why she went to Germany, the reasons for her claim or why she left. He found this evidence to be “implausible.” He found that these factors went to her credibility under Section 8 of the Asylum and Immigration (Treatment of Claimants) Act 2008.
17. As to the status of the NRM decision, the FtTJ said at [22]:
Counsel for the appellant made lengthy submissions on the status of the NRM's negative decision of 25 May 2023. She challenged the outcome under (b) and (c) of that letter, but it seems to me that I should treat that negative decision letter as a neutral factor as the matter is to be reconsidered by the NRM in any event.
18. The FtTJ refers at [26] to the psychiatric assessment of the appellant by Dr. Olusola Olowookere diagnosing the appellant with adjustment disorder with mixed anxiety and depressive mood. The FtTJ found there was no evidence that the appellant would not be able to source medical treatment on her return to Albania.
19. The FtTJ stated at that he found the appellant’s account to be “lacking credibility, lacking detail and as [sic] inconsistent.” He did not therefore place any weight on the country expert report relied on by the appellant which assumed the credibility of the appellant’s account. He accordingly refused the appeal [27].
Grounds of Appeal
20. The three grounds of appeal are summarised as follows:
a. Failure to make a finding on the central issue in the case, that is, whether the appellant was a victim of trafficking
b. Failure to apply the relevant case law, (TD and AD)
c. Errors in the credibility assessment:
i. The FtTJ erred by placing weight on the fact that the appellant had lived safely in Albania between 2018 and 2022. That reasoning failed to engage with the appellant’s evidence that the threats arose only after she entered into a relationship with Kobra.
ii. The FtTJ erred by making adverse findings on matters that were not in dispute before the Tribunal. The respondent accepted that the brother’s statement that he and the appellant were “going to meet together” constituted a threat, and did not challenge the authenticity of the text message from the appellant’s mother.
iii. The FtTJ erred in going behind the respondent’s refusal letter and review in raising Section 8 of the Asylum and Immigration (Treatment of Claimants) Act 2008 which had not been raised by the respondent.
iv. The FtTJ erred in failing to give himself a Lucas direction or explain the relevance of the appellant’s claim in Germany
The Hearing
21. I had before me a bundle consisting of 1176 pages. Ms. Norman and Ms. Isherwood confirmed that there were no applications for the admission of additional evidence under Rule 15 (2A) nor a respondent’s response under Rule 24.
22. I heard submissions from Ms. Norman and Ms. Isherwood. I have taken their submissions into account in making my decision, but I do not rehearse them at length here. I will refer in the discussion below to the aspects of those submissions I consider to be material.
Discussion and Findings
23. Ms. Norman relied on and amplified the grounds of appeal. The appellant’s primary challenge was to the FtTJ’s failure to determine whether the appellant was a victim of trafficking. She took me to [22] of the decision where FtTJ referred to the “lengthy submissions regarding the status of the NRM decision.” Those submissions, Ms. Norman told me, were based on the Supreme Court’s ruling MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9 that the First-tier Tribunal is not bound by the decision of the NRM and it is for the Tribunal to determine itself whether the appellant was a victim of trafficking.
24. The decision of the FtTJ at [22] to treat the NRM decision as neutral was therefore, Ms. Norman submitted, contrary to the ruling in MS.
25. Ms Norman submitted that this failure was linked to the second challenge, namely the FtTJ’s failure to apply the country guidance in TD & AD. As set out in the grounds, the only reference to TD & AD appears at [11], where the FtTJ records that, because the appellant was not a victim of trafficking, the factors identified in that case did not apply. However, that was not the respondent’s position, as the refusal letter addressed each of those factors in turn.
26. In relation to the FtTJ’s credibility assessment, Ms Norman’s submissions echoed the grounds of appeal, arguing that the FtTJ had erred in its treatment of the appellant’s evidence concerning the threats made by her former husband and brother as summarised above.
27. Ms. Norman submitted that the FtTJ was wrong to apply of Section 8 of the Asylum and Immigration (Treatment of Claimants) Act 2008 as it had not been relied on by the respondent in the refusal letter, the respondent’s review or in cross-examination. Nor did the FtTJ raise this during the hearing. Ms. Norman argued that the appellant was therefore not given the opportunity to address a point taken against her in the assessment of her credibility, contrary to the principles articulated in Abdi v Secretary of State for the Home Department [2023] EWCA civ 1455.
28. Ms. Norman argued that the FtTJ further erred in his treatment of the appellant’s evidence regarding her time in Germany and asylum claim there. Ms. Norman submitted that the FtTJ had “entered into the arena” asking questions which were more than clarificatory. Ms. Norman submitted that the FtTJ erroneously failed to give himself a Lucas direction, noting that there can be very good reasons for a person not wishing to discuss in court an issue which had not been previously raised.
29. Ms. Norman invited me to allow the appeal and remit it to the First-tier for a fresh hearing.
30. Ms. Isherwood conceded that the FtTJ had materially erred in failing to determine whether appellant was a victim of trafficking and failing to apply TD & AD . Ms. Isherwood submitted, however, that the FtTJ made significant findings open to the FtTJ which should be preserved. She submitted, therefore that the Upper Tribunal should retain jurisdiction and remake the decision with preserved findings.
31. Ms. Isherwood argued that the FtTJ was entitled to find that the appellant was not at risk from her brother and/or her ex-husband having taking relevant circumstances into account. She relied, in particular, on the fact that the appellant’s brother lived in Greece, with no clear evidence as to how he could carry out any threat against her.
32. Ms Isherwood submitted that the FtTJ was entitled to take into account that the appellant had lived in Albania after her divorce without any threats or violence from her former husband. The absence of clear evidence regarding the alleged threats was a further factor the FtTJ was entitled to weigh in the balance.
33. Further Ms. Isherwood submitted it was open to the FtTJ to treat the text message the appellant claims to be from her mother as he did at [19], that is as “self-serving” and to embellish a weak claim.” She noted that the message was undated and that its provenance and the sender’s identity were unclear.
34. Ms. Isherwood did not know what questions had been asked of the appellant by the FtTJ. She accepted that applying Section 8 where it had not been raised by the respondent or the FttJ in the hearing would be contrary to Abdi.
35. In my judgment, Ms Isherwood was correct to concede that the FtTJ materially erred by failing to determine for himself whether the appellant was a victim of trafficking and failing to apply the guidance in TD & AD. The Supreme Court in MS, at [11], states the position in unequivocal terms. I note that the appellant’s skeleton argument before the FtT set out the relevant passages of MS, yet the decision contains no reference to that authority.
36. I find therefore the FtTJ’s decision involves a material error of law.
37. I have considered with care Ms. Isherwood’s submissions as to findings which should be preserved. In my judgment, however, the FtTJ’s application of Section 8 to the credibility assessment of the appellant is fatal to that argument.
38. Ms. Isherwood did not seek to challenge Ms. Norman’s account of the hearing which was fully set out in the grounds of appeal and to which there was no respondent’s response. In these circumstances I accept the submissions on behalf of the appellant and find that the Section 8 point was not put by the FtTJ to the appellant.
39. Credibility was a if not the determinative factor in the FtTJ’s dismissal of the appellant’s appeal. In my judgment, the failure of the FtTJ to put to the appellant the Section 8 point taken against her was procedurally unfair as per Abdi, rendering any findings of the FtTJ unsustainable.
40. For the above reasons I allow the appeal and remit the appellant’s appeal to the First-tier Tribunal for a fresh hearing.
Notice of Decision
41. The appeal is allowed. The decision of the First-tier Tribunal is set aside.
42. Having considered the submissions on behalf of the appellant and respondent and applying the principles set out in the Practice Direction, according to the guidance given in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC) I consider it appropriate to remit the Decision to the First-tier Tribunal given the nature and the extent of the findings to be made.
M Walsh

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

29 July 2026