Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002574
First-tier Tribunal No: HU/56183/2024
LH/00693/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 17 August 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE BUTLER

Between

XZ
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Seerha, counsel, instructed by Kayders Solicitors Limited
For the Respondent: Ms Keethy, Senior Home Office Presenting Officer

Heard at Field House on 24 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 is a citizen of China. While the First-tier Tribunal case reference suggests that this is a human rights claim, that is incorrect; she has made a protection claim on the grounds that she claims to be a victim of trafficking for the purposes of sexual exploitation and owes money to loan sharks in China.
2. The Appellant’s appeal was heard by FTTJ Behan (‘the Judge’) on 23 September 2025 and dismissed in a determination promulgated on 14 October 2025. The Judge dismissed the claim on credibility grounds, concluding that “the extent of the appellant’s untruthfulness is such that I do not find any part of her claim is reasonably likely to be true”. Permission to appeal was granted by FTTJ Dieu on all grounds on 20 May 2026.
3. The Appellant attended the error of law hearing. The Appellant was represented by Ms Seerha and the Secretary of State by Ms Keerthy. I thank them both for their helpful and focused submissions.
Grounds of appeal
4. The Appellant appeals on two grounds, with permission. The first ground of appeal asserts that the Judge failed to apply the Joint Presidential Guidance Note No 2 of 2010: Child, vulnerable adult and sensitive appellant guidance (‘the Presidential Guidance’). The Appellant’s account was that she had been subjected to sexual exploitation and remained fearful and traumatised as a result of those experiences. The Appellant criticises the Judge for not considering or applying the guidance and for reaching adverse credibility findings without reference to the Presential guidance.
5. The second ground is described in the grounds of appeal as a ‘failure to engage properly with trafficking evidence’. The heart of this criticism was essentially that the Judge had failed to consider the Appellant’s credibility in line with the background evidence, including the CPIN regarding Chinese victims of trafficking.
6. Ms Keerthy’s response was, in summary, that the Judge had clearly considered the Appellant’s vulnerabilities and that the determination was in line with the Presidential Guidance. She complained that Ground 2 was not properly pleaded in the grounds, but submitted that the Judge did properly consider the evidence.
Discussion
7. Ground 1. The Presidential Guidance is important and authoritative guidance which is intended to ensure that proceedings are fair, in particular in the special circumstances that often arise in this jurisdiction, where appellants and witnesses can be particularly vulnerable. However, a failure to follow the guidance does not, by itself, amount to an error of law. As the Court of Appeal explained in its recent judgment in Khan v SSHD [2026] EWCA Civ 148, the Presidential Guidance “is not seeking to lay down free-standing legal obligations” (§38, see also §41). As explained by the Court in Khan at §48, “the question [is] whether the First-tier Tribunal has acted in a way which means that the appeal has not been fairly and justly dealt with or, to put it more simply, whether there has been procedural unfairness which materially affects the decision”. I therefore proceed on the basis that the question raised by Ground 1 is whether the proceedings in the First-tier Tribunal were fair, including as a result of any failure to apply the Presidential Guidance. I bear in mind the Court of Appeal’s earlier decision in AM (Afghanistan) v SSHD [2018] 4 WLR 78, which was considered in Khan. In AM Ryder LJ explained that a failure to follow the Presidential Guidance “will most likely be a material error of law” (§30). In that case, a claim brought by a child who had learning difficulties was dismissed in circumstances which the Court of Appeal found to be unfair, including because the Tribunal did not properly consider the impact of his age, vulnerability and learning difficulties (§§14-17).
8. I turn now to the Judge’s decision. No application to treat the Appellant as vulnerable was made by her representatives, either in their skeleton argument, or orally.1 There was no medical evidence filed on behalf of the Appellant. While the parties are expected to identify the principal controversial issues (Lata [2023] UKUT 00163 (IAC)), I accept the final responsibility to ensure that the proceedings are fair sits with the judge hearing an appeal.
9. It is clear that the Judge, despite the lack of assistance from the Appellant’s former representatives, did consider the issue of her vulnerability. I note that the Judge framed the assessment of credibility correctly, by reference to the following principles:
a. “When considering consistency, I take into account the passage of time and the inevitable effect this has on memory, even memories of important events. Memory is a malleable construct and as a result an individual’s memory of the same event may significantly change over time. Nevertheless, an individual’s memory of events and the quality of their memory should form part of the overall assessment of their reliability.” (§18);
b. “I take into account that the appellant has had to use interpreters and to provide evidence in inevitably stressful situations.” (§19)
c. “Where a witness is found to be giving unreliable, inaccurate or embellished evidence about one aspect of a case, this does not necessarily mean that all their evidence should be rejected or that the core of their account is untrue.” (§20)
d. “Although a story may appear to be inherently unlikely, this does not mean it is untrue, particularly when considering circumstances in societies and cultures of which I have little experience” (§21)
10. Importantly, at §22 the Judge noted the absence of any vulnerable witness application but nevertheless stated that: “if the appellant’s claim is true, she has been through very traumatic experiences and trauma can adversely memory [sic] and the ability to give a coherent account and therefore I have approach the assessment of the appellant’s credibility on the basis that she may be a vulnerable person”. I therefore find that the Judge did identify the possibility that the Appellant may be vulnerable and correctly self-directed that this should form part of the assessment of her credibility. I nevertheless accept that the crucial question is how the Judge analysed the Appellant’s evidence in light of that possible vulnerability. A central part of the Judge’s analysis was §25, which I will cite in full:
“By the time the hearing reached questions from me the discrepancies in her evidence were so numerous that I was concerned the appellant has some form of mental incapacity or illness that went beyond nerves and trauma. For that reason, I asked the appellant about her physical and mental health and about her educational and employment background in China. About her physical health the appellant said she has thyroid problems and swollen feet. About her mental health the appellant said that owing a lot of money is a lot of pressure and she cannot sleep very well. She told me she left school at 17 and that as a student she was, “ok”. In China she worked as a manager in a clothing firm and then ran her own clothing shop, but the business failed because of poor cash flow. The appellant appeared to be distressed and nervous at times, but her evidence about her background does lead me [sic] to conclude she has any illness or intellectual disability that would adversely affect her ability to give coherent evidence”
11. There is a preliminary point to note regarding this passage; the Judge states: “but her evidence […] does lead me to conclude she has any illness or intellectual disability”. I raised this point with the parties and it was agreed that this must be a typographical error. I accept that submission. The use of ‘but’ and ‘any’, as well as the surrounding analysis makes it clear that the Judge did not find the Appellant to have any illness or disability that would adversely affect her evidence. It is unclear how the Judge could have identified any illness or disability in the absence of any evidence on the point.
12. The Judge then went on to note the very large number of inconsistencies within the Appellant’s evidence. Having assessed the Appellant's evidence, the Judge concluded at §51 that:
“[…] I have stood back and considered if and to what extent the appellant’s difficulty in giving a coherent account was caused by nerves, trauma or other disability. I am afraid I do not consider her account has been affected by such matters to any material degree; I am satisfied the difficulties with her evidence are a result of having invented her claim. The extent of the appellant’s untruthfulness is such that I do not find any part of her claim is reasonably likely to be true.”
13. I am unable to accept that the Judge’s analysis discloses a failure to apply the Presidential Guidance such that the proceedings were unfair. Moreover, I consider that the Judge’s determination is a model of clear, careful, and fair analysis. Despite the dearth of evidence before the Judge and the lack of any vulnerable witness application, the determination:
a. Correctly sets out the principles which apply to the determination of credibility in a case such as this.
b. Proactively identifies the Appellant’s possible vulnerabilities and goes as far as it reasonably can in reaching a conclusion on their nature and extent (which was limited given the lack of any evidence or submissions on this point).
c. Carefully considers the impact of vulnerability both before and after reviewing the issues with the Appellant’s account.
d. Reaches even-handed findings, such as accepting that the reasons for the delay in the Appellant claiming asylum were plausible (§48).
14. I accept that the Judge does not explicitly refer to the Presidential Guidance in terms. However, it is clear that it has been complied with in substance and that there was no unfairness in the proceedings, which is the central question.
15. I consider that the Judge did everything possible in the circumstances to ensure the proceedings were fair. In reaching this conclusion, I bear keenly in mind the fact that the Appellant at interview and in her statement describes extremely traumatic events, including being beaten by loan sharks (alongside her family) as well as protracted sexual exploitation, which involved being sexually exploited seven to ten times per day, which led to “a lot of bleeding”. It is surprising in these circumstances that her representatives did not address any vulnerabilities in her evidence or in submissions, as this may have materially affected the Judge’s analysis. However, it was not for the Judge to fix any gaps in the Appellant’s evidence, but to consider the matter fairly on the evidence presented. I consider the Judge did so and do not find any error of law on Ground 1.
16. Ground 2. I start by addressing the pleading point taken by the Respondent. While the grounds (which were prepared by the Appellant’s former solicitors) are not as clear as they might be, I accept Ms Seerha’s submission that they sufficiently raise an allegation of a failure to grapple with the trafficking evidence. In any event, I consider that this matter was adequately ventilated at the hearing and Ms Keerthy had a fair opportunity to respond to what is a straightforward point.
17. The Appellant criticises the Judge for not considering the country background information as part of the credibility assessment. I accept that the Judge was required to give anxious scrutiny to all material which could tell in the Appellant’s favour when reaching a holistic decision on credibility.
18. The Appellant’s skeleton argument cited the 2021 CPIN,2 which included evidence that women are trafficked to the UK and forced into the sex trade here, including on the basis of debts. This was consistent with the Appellant’s account.
19. The Judge was required to apply anxious scrutiny to the material before the Tribunal. The principle of anxious scrutiny was described by Fordham J in Alnoor v SSHD [2025] EWHC 922 (Admin), §28 as follows:
“[The] practical consequence of this closer scrutiny is illustrated by the identification of a "need for decisions to show by their reasoning that every factor which tells in favour of the applicant has been properly taken into account". That was endorsed and applied to NRM decisions in MN at §242 and fn.32. It is derived from the asylum case of R (YH) v SSHD [2010] EWCA Civ 116 [2010] 4 All ER 448 per Carnwath LJ at §24. The language is "every factor" not "every obviously reasonable factor"; and "properly taken into account" not "taken into account". It was "important in particular to establish" (MN §244).”
20. I also bear in mind the decision of Cranston J in R (BG) v Secretary of State for the Home Department [2016] EWHC 786 (Admin) at §58:
"Carnwath LJ [in YH] refers to factors "properly" taken into account, in other words those legally relevant. It is not the law that a decision is flawed because every single factor in a party's favour, however trivial or incidental, has not been taken into account. Rather, what a competent authority must do in this type of case is to take into account relevant considerations expressly identified in the policies as well as those which, albeit not expressly identified, are obviously material to a person's case."
21. While I note that these judgments arise in the context of public law challenges involving rationality review of reasonable or conclusive grounds decisions by the Respondent, the principles apply with equal force when determining whether there was a material error in the Judge’s decision, given the application of anxious scrutiny in this context. I accept that the Judge did not refer to or expressly take into account the background country material or the fact that the Appellant’s account was consistent with it. I therefore must determine whether this was a “trivial or incidental” aspect of the Appellant’s case or whether it was “obviously material”, in particular given the Judge’s other findings about her credibility.
22. The country background evidence before the Tribunal was consistent with the Appellant’s account. In particular, it confirmed that “Highly organised criminal syndicates and local gangs subject [Chinese] women and girls to sex trafficking”. The China Background information CPIN3 explains that “forced labor [sic] and trafficking are also common […] Chinese nationals are similarly trafficked abroad”. While the Appellant’s skeleton argument referred to the China Modern Slavery CPIN, I do not accept the implicit submission that the Judge was required to take into account a CPIN which was both out of date and not filed by the Appellant’s representatives. In any event, I have reviewed both the 2021 and 2024 China trafficking CPINs and they provide similar evidence, which is broadly consistent with the Appellant’s account.
23. I do not consider that there was any error of law in the Judge’s failure to take this country background information into account. No country expert report was filed in this case. It does not appear that any specific submission was made on the generic country background information by the Appellant’s representatives, save that the skeleton argument refers to it as “corroborating”. I accept that the Judge did not specifically consider this potentially-corroborative material as part of the credibility assessment. However, I am not persuaded that the material was obviously material to the Appellant’s case as it goes no further than to confirm at a high level that sexual exploitation, including of women trafficked to third countries such as the UK, occurs in China and is perpetrated by Chinese criminal gangs, including by way of debt bondage.
24. Even if the failure to grapple with this material were an error, I am not persuaded that it is a material one. Any reasonable judge, presented with the very limited documentary material before the First-tier Tribunal in this appeal and having identified the very significant issues in the Appellant’s evidence, would have reached the same conclusion as the Judge, which could not be displaced by high-level generic country background evidence.

Notice of Decision
The appeal is dismissed.

Miranda Butler

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

31 July 2026