Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002623
First-tier Tribunal No: PA/64965/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

6th August 2026

Before

UPPER TRIBUNAL JUDGE McWILLIAM

Between

JB
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Sultan, Templeton Legal Services
For the Respondent: Mr Terrell, Senior Presenting Officer

Heard at Field House on 23 July 2026

DECISION AND REASONS
1. The appellant is a citizen of Kenya. Her date of birth is 31 December 1963.
2. The appellant has been granted permission by the First-tier Tribunal (F-tT) to appeal against the decision of the F-tT (Judge Hussain) to dismiss her appeal against the decision of the Secretary of State for the Home Department (SSHD) on 3rd May 2024 to refuse her asylum claim.
The grounds of appeal
3. There are five grounds of appeal. They overlap to a certain extent. I found that ground one is made out. It is not necessary for me to determine the remaining grounds. Ground one is expressed as a failure to engage with the appellant's evidence and failure to make lawful findings
The appellant’s case
4. The appellant says that she fears return to Kenya because she is perceived to be a witch in the eyes of her family and community. It was accepted by the respondent that the appellant had fled her home in Kenya owing to an abusive marriage and that her husband and children made her leave the marital home.
5. The Appellant came to the UK in 2014. She claimed asylum in 2023. Her evidence is that since coming to the UK she has not been contacted by her ex-husband or her family.
The decision of the FtT
6. The salient parts of the decision are as follows:
22. I have to confess that despite my best endeavours, I have not found it easy to form a coherent picture of the circumstances that led to her leaving her country and why it is that she delayed making her asylum claim. Given the absence of a clear picture as to the appellant’s background circumstance in Kenya and the absence of a reasoned explanation for the delay in her claim, I am led to the impression that the claim is an opportunistic one made to frustrate removal.
23. My best understanding is that the appellant claimed to be in an unhappy household where she was a polygamous partner. It was absolutely unclear as to whether she was her partner's first wife or the other woman was. I use the word 'wife', being aware that she claimed that she was in a customary relationship with him. She spoke about assuming the care of three children of her partner from the other woman and one child she had with him. It is difficult to understand why they would all turn against her or why her partner turned against her. In some parts, she gives the impression that she was expected to tolerate being in a polygamous relationship which she was not prepared to. That clearly was a choice for her to make, but it does not follow that this would have necessarily resulted in her being ill-treated.
24. I have read the appellant's interview notes from beginning to end and I note that it was the interviewer who frequently suggested that she was threatened by her partner—at one stage, even suggested that she was attacked. Her answers do not reveal that this was the case. Yet, when the appellant put her thoughts in writing, she now claims that she reported her partner to the police without particularising what it is that she reported about him. She also claims that the partner was soon able to establish that she had made a report which eventually caused her to leave home. Her interview suggests that she left voluntarily.
25. Nowhere in the appellant's interview was there any suggestion by her that she was accused of being a witch. This is something she introduced in her written statement without any explanation. I tried to understand why she got accused of being a witch; one should not expect to be accused of being one simply because the other woman died, as did the other woman's daughter-in-law. I tried to understand whether there was anything particular in her character or background that may have resulted in suspicion. The appellant was not able to offer any. The impression I got was that this is a new idea she has introduced to bolster her otherwise hopeless claim.
26.By the appellant's own admission, having left home 2010, she was not chased either by her partner or any of her children. She offers no clue as to why she thinks she will be of adverse interest to them. The appellant said that her partner is currently seventy-five years old. I am not prepared to readily assume that a man of this age will have the physical or mental strength to pursue his former partner. Surely, he would have other priorities, not least his health, given his age.
27. On the assumption that the appellant's account as I have understood it, is true, she has not explained why she could not relocate internally. I appreciate her claim is that she has no one to support her. However, she said that she has a 42 years old son. She has offered no explanation as to why he would not be able to look after his biological mother. The appellant's claim that wherever she goes the stigma would travel with her is not easy to make sense of, given that she is in fact not a witch, nor has she been found to be one. In addition, it is difficult to understand why, having been away from her country now for over ten years, anyone would remember the appellant's background or identify her.
28. For all the reasons given above, I conclude that the appellant has not shown that she has a well-founded fear of being persecuted or otherwise treated in a manner contrary to Article 3 of the Human Rights Convention. Insofar as the appellant's human rights claim is concerned, in my judgement, the respondent has dealt with that adequately. I find that it has no prospect of success.
Error of Law
Ground one
7. I heard submissions from the representatives. I asked the parties to focus initially on grounds one and four. There is overlap between the two grounds. I focussed the parties on the judge’s finding at [25] that the appellant had not mentioned that she was accused of being a witch in her interview (this is accepted) and that she introduced it into her evidence “without any explanation”. The grounds say that the appellant gave an explanation and that this was not considered by the judge.
8. The first of the appellant's witness statement of 18 October 2024 is difficult to understand. It is surprising that it has been taken by a professional representative. It is reasonable to expect professional representatives to be able to properly draft a witness statement. However, one can discern from it the appellant’s reference to being a witch and that she was not able to explain herself fully in her asylum interview because she was ashamed of talking about the event and that she continues to suffer trauma.
9. There is a second statement of 17th October 2025 which is a response to the respondent's decision. This statement is an improvement on the first. The appellant says in it about the failure to mention matters in her asylum interview that “the shame and trauma I experienced made it extremely difficult for me to specify that I was accused of witchcraft”. In this statement she explains that during the asylum interview she could not explain herself properly when asked about reporting the situation to the authorities as a result of her “nerves”. She also says that it would not be possible to relocate because of the neighbourhood watch system, Nyumba Kumi.
10. The judge was wrong to say that the appellant had not given an explanation for failing to raise that she was perceived as a witch. Even in the appellant's first witness statement there was an attempt to explain why she had not disclosed this during the interview. In the second witness statement a more coherent explanation is given. Mr Terrell took me to [13] of the decision where the judge records the appellant’s oral evidence which was that she did not mention the matter in her interview because she was so nervous. However, the judge at [25] finds that the appellant had not mentioned it in her witness statements, and this informed his conclusion that it was a new idea which she had introduced to bolster her claim. The judge made an error because he failed to engage with the evidence.
11. I have taken on board Mr Terrell’s submission that the judge’s primary reason for rejecting the appellant’s account is that he could not understand why she was accused of being a witch (see [25]) to support that the error is not material. It is not possible for me to speculate that the judge would have reached the same conclusion but for the error. The comment by the judge at [12] that he had not been able to make any sense of the appellant’s written evidence supports that he had not seen the second witness statement. Moreover, in this statement the appellant refers to Nyumba Kumi, with which the judge does not engage. The judge appears at [25] to be expecting a rational reason to explain why the appellant was perceived to be a witch. The appellant in her evidence about her background gave a narrative of domestic abuse which had been accepted by the respondent. There was some context to her evidence.
12. I also take on board that the judge was entitled to appraoch the appellant’s evidence with scepticism bearing in mind that she has not mentioned the core of her account in the asylum interview. However, this does not support that he did not need to engage with the appellant’s evidence. I also accept that the judge does not need to mention each piece of evidence. However, in this case the judge made an adverse credibility finding without taking into account the appellant’s evidence.
13. I am hesitant to interfere with a decision of the F-tT. I have taken into account MN (Vietnam) v SSHD [2026] EWCA Civ 485. However, the judge has failed to take into account evidence which may have made a difference to the outcome
14. The error goes to the heart of the assessment of credibility and therefore is material. It is such that the decision must be set aside.
15. There needs to be a de novo hearing. Bearing in mind the nature of the error and having considered AEB v SSHD [2022] EWCA Civ 1512. I remit the case to the FtT for a de novo hearing.

Joanna McWilliam

Judge of the Upper Tribunal
Immigration and Asylum Chamber
23 July 2026