Tribunal decisions

The decision

IAC-AH- -V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2026-002885
First-tier Tribunal No: (PA/72939/2024)

THE IMMIGRATION ACTS

Decision & Reasons Issued:

14th September 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE HANBURY

Between

SS
(anonymity direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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.

Representation:

For the Appellant: Mr Eaton of counsel
For the Respondent: Ms Shobikshana Veerthy, a Home Office Presenting Officer

Heard at Field House on 2 September 2026

DECISION AND REASONS
Introduction
1. This is the appeal to the Upper Tribunal arising from the decision of First-tier Tribunal Judge Mill (the judge) promulgated on 1 April 2026 dismissing the appellant’s protection appeal and refusal of his asylum/ human rights claim.
2. Permission to appeal was granted on grounds 2 and 3 only. Those grounds principally concerned the judge’s treatment of photographic evidence and the approach to the assessment of the appellant’s claimed sexual orientation.
3. The First-tier Tribunal (FTT) rejected the appellant’s account concerning the “Microbes” gang and also rejected his claim to be a gay man. The judge found the appellant not to be a credible witness.
Background
4. This is set out by the FTT at paragraph 1 et seq and need not be repeated here. The appellant is a citizen of Côte d’Ivoire who applied for asylum on 12 July 2023. That application was refused on 27 September 2024. The basis of the application was that the appellant claimed to be a member of a particular social group (PSG) both as someone who feared the Microbes gang and secondly because of his sexuality as a gay man. Accordingly, he claimed that he could not be safely returned to Côte d’Ivoire.
5. The judge dismissed the appeal on all grounds.
Grounds of appeal
6. The grounds, which are dated 14th of April 2026, assert:
(i) That there was a procedural irregularity and material reliance on defective witness evidence-i.e. an earlier one where there are said to have been interpretative problems and failing to attach proper weight to the more recent and compliant statement (ground one on page 13);
(ii) That there was a mistake of fact by a failure to consider material evidence, that there were “no photographs of them (a reference to the appellant and his gay lover)”. This amount to a mistake of existing fact also (ground 2 on page 14). It is further asserted under this ground that little weight was attached two photographs of “the appellant’s scar”, which the judge described as relating “to an entirely unconnected matter” and being “self-serving” (see paragraphs 5 and 6 of the grounds of appeal) at page 15;
(iii) That there was a failure to consider cultural standards in assessing sexual orientation (ground 3 on page 16). This is a reference to the fact that the appellant apparently arrived in the UK at the age of 23 but did not identify himself as homosexual at that time, a fact that the judge considered “incredible”. The appellant had a devout Muslim upbringing and it was asserted that the judge’s finding here was based on his cultural misunderstanding.
7. Since the appellant was only given permission to appeal grounds 2 and 3 and the appellant has not renewed his application for permission to appeal on ground 1 (procedural irregularity arising out of having regard to an earlier witness statement), it is unnecessary to consider this ground further. However, I would observe that in refusing permission on this ground Judge McQuillan pointed out this that it would be necessary to articulate what occurred at the hearing which might involve obtaining a record of that hearing. As far as I am aware this has not been done.
8. As the other grounds, it is said that in relation to ground 2 there was a photograph in the bundle showing the appellant with his partner, contrary to what is said in the decision. It was said it is said that it was therefore a material error of law not to refer to this.
9. In relation to ground 3, the judge is criticised for stating that it was incredible the appellant, who arrived in the UK at the age of 23, would not have previously have self-identified as homosexual. The appellant had been raised in a devout Muslim household and the environment which he grew up in was not conducive to self-identification. Given the appellant’s background as a citizen of the Côte d’Ivoire, the expectation that he would be able to reveal his sexual orientation or realise his true sexual identity was unrealistic.
The hearing
10. At the hearing I heard submissions by both representatives.
11. Mr Eaton, on behalf of the appellant, submitted that there was a low bar for materiality and that failing to consider photographs taken of the appellant with his partner may be important in the context of this case.
12. He also said that the failure to come to terms with his sexuality was not material to the question of the legitimacy of his claim.
13. In relation to ground 2-the first ground on which permission had been given- (omission of reference to material evidence) he submitted that the failure to consider the relevant photograph may be important given that the appellant’s partner had given evidence and this corroborated their relationship. The photographs were part of a sequence taken on different days. It was wrong for the judge to say, at paragraph 38 of his decision, that the key photograph did not show the parties together. The partner’s evidence is referred to at paragraph 33 of the decision. There was evidence of cohabitation, which the judge ought to have considered. The suggestion that there had been a failure on the part of the appellant and his partner to live together was not the case.
14. Considering ground 2 (coming out as homosexual), I was referred to paragraph 33 of the decision which makes the point that the appellant realised his sexuality after coming to the UK but his evidence was more subtle than that. The appellant is said to have been “discovering himself” prior to leaving Côte d’Ivoire.
15. It was asserted that there was nothing “incredible” about the appellant’s failure to identify earlier as homosexual.
16. The judge had described the screening record as having not been produced, at paragraph 17 on page 6 of the bundle, but, since the screening interview had not been included in the bundle it is difficult to see how this formed the basis of the judge’s decision. The respondent’s own guidance in the form of its “Asylum Policy Instruction: Sexual identity issues in the asylum claims” is referred to paragraph 32 of the decision. According to that document, late disclosure of sexuality alone is not a sufficient basis for making adverse credibility finding against an applicant. As the judge himself acknowledged at that paragraph “feelings of shame and cultural implications are acknowledged to potentially have an impact”.
17. It was submitted that the judge had become confused over the appellant’s partners, referring to a “Francis” but it was submitted these matters should not alter the outcome.
18. The judge had found the Reverend Morgan to be a truthful witness and ought to have attributed greater weight to his knowledge and expertise as a member of the lesbian, gay, bisexual and transsexual “community”. There was a great deal of evidence, Mr Eaton said, of their burgeoning gay relationship in the evidence of the Reverend Morgan (see for example page 43).
19. The judge had rejected the appellant’s evidence of having taken part in a lesbian, gay, bisexual and transsexual organisation as there was no evidence beyond membership. His attendance at “Pride” events was no more than could be undertaken by any member of the public and the judge described the appellant’s evidence as “self-serving”.
20. It was noted that the rule 24 response acknowledged the error relation to the photograph but there was a dispute over materiality. The tribunal was invited to find that this was a material omission and remit the matter to the FTT.
21. The respondent on the other hand said that the photographic evidence provided part of the overall evidence considered by the judge. She referred to numerous passages including paragraph 38 on page 9 as well as paragraphs 35, 36 and 37. There were a number of inconsistencies in the claimant’s case and the judge was entitled to attach weight to these. That gave rise to a sustainable finding on the evidence. Ms Keerthy said that the appellant’s partner had not made a claim to protection based on his sexual orientation, there was no credible evidence of cohabitation which had been presented and no evidence of communication between them. There was an inconsistency as to the state at the interview in relation to how the behaviour with the partner began. The absence of the photographs or reference to them was only a small part of the case and I was particularly referred to pages 49 – 50. Page 50 said his partner is in the UK. They did not appear to be in any sort of relationship of sexual intimacy and therefore the claim had not been established on the evidence.
22. As to the cultural assumptions point (ground 3), this had been taken into account in paragraph 32, where the judge expressly acknowledged that there were sensitive matters to be borne in mind. Paragraph 32 and 34 needed to be read together. Also, paragraphs 16 or 17 on page 5 had to be considered. The grounds of appeal, as originally drafted before the FTT made reference to the screening interview so that the FTT could not be criticised for taking it into account. It was notable that the appellant had not sought to blame any deficiency in the record of the screening interview on his poor English but had made no mention of his sexual orientation. The appellant’s failure to mention his sexuality at the first opportunity was a matter the judge was entitled to consider. There was inconsistency in number of areas of his evidence.
23. In his reply Mr Eaton said that essentially the respondent’s case had been that she recognised that errors have occurred but they had to be seen in their context. It was submitted the decision was unjustified. I was referred to page paragraph 26 of the appellant’s witness statement on page 30. There, the appellant explained the onset of sexual orientation towards his own sex. It was submitted that the assertion that the appellant failed to mention his sexuality until the end of his first extensive interview was only partly correct and that had to be seen in its proper cultural context in the UK. The judge made a number of erroneous assumptions about lack of cohabitation and so forth. In the context the photographs are important
24. At the end of the hearing Ms Keerthy said that the case should be retained in the Upper Tribunal, if an error of law was found– sexual orientation being a distinct issue. There been no substantive appeal or no renewed application relating to the gang membership.
25. The judge should not have attached weight to a screening interview as it did not form part of the documents placed before him. The judge had failed to attach weight to potentially important documents, which corroborate his claim to being homosexual. The appellant’s case had been supported by a pastor of the church sensitive to LGBT issues. Focusing on the issue of materiality the rule 24 nevertheless acknowledged there were photographs.
26. The judge was also criticised and in relation to ground 3 for the assumptions he had made over when the appellant would “come out” in relation to his sexuality. A number of paragraphs referred to in the decision which suggested cultural norms would have had a part play

Discussion
27. The outcome of ground 2 turns on the extent to which the omission of any reference to the photographs was material to the outcome. The difficulty the tribunal has is in understanding whether consideration of that evidence may make a difference to the outcome which must in part be based on speculation. As I commented at the hearing, this is a difficult task for an appellate tribunal or court but Mr Eaton is surely correct to say and say that a low threshold ought to apply to the question of materiality.
28. Ground 3, relates to the adverse credibility findings and the extent to which the judge was entitled to draw adverse inferences from the appellant’s failure to “come out” as being gay earlier stage than he did. This is, of course, a sensitive issue as the judge recognised.
29. Care is needed when rejecting an asylum/ human rights/ protection claim on grounds of delay. There may be a number of reasons for this including language difficulties, fear and, in relation to homosexuality, an unwillingness to speak on these matters. However, it appears the judge was aware of these factors and set her decision within the correct framework, as set by HJ (Iran). She explained in her decision that she had given careful consideration to all the evidence (see paragraph 8). Although this included the screening interview, as Ms Keerthy explained this had been drawn to her attention by the appellant who expressly referred to it in his grounds of appeal to the FTT.
30. The judge demonstrated, at paragraph 32 of her decision, that she took full account of the sensitivities of the claim, citing there the guidance from the Home Office in relation to sexual identity issues. However, she was entitled to treat the lateness of the claim to being a homosexual as damaging the appellant’s credibility having regard to section 8 of the Asylum and Immigration (Treatment of Claimants) Act 2004. Even considering the sensitivities which existed, the delay in mentioning the appellant’s homosexuality from 2021 when he first came to the UK on a visit visa, to 2023, when he finally claimed asylum, was a relevant factor when judging the truthfulness of his claim.
31. Given the judge’s overarching rejection of this part of the claim and rejection of the appellant’s credibility generally, it seems unlikely that the photographs, which were wrongly not referred to or fully considered by the judge, would have made a difference to the outcome. The judge firmly rejected the appellant’s credibility at paragraph 15 referring to the appellant as being vague and internally inconsistent. As the respondent says in her rule 24 response, the judge was entitled to give weight to inconsistencies in the appellant’s account and a lack of detail. She specifically concluded that the appellant had come to the UK for economic reasons. Photographs of the appellant’s alleged partner attending gay pride events, which as the respondent has commented, are undated, could easily have been generated solely to support his case and were not necessarily indicative of any intimate relationship.
32. An appeal tribunal is always reluctant to revisit adverse credibility findings reached after consideration of the appellant’s evidence as well as that of his partner Francis. The judge was entitled to reject the partner’s evidence given he had not been granted asylum because of his homosexuality.
33. Whilst the judge accepted the Reverend Morgan had been a truthful witness the judge pointed out his knowledge of the sexual practices of the appellant and his “partner” must have been limited.
34. I find that the judge was fully aware of the need to treat carefully the appellant’s sexuality and the possibility that there may have been strong cultural reasons for not confronting it at an earlier date. Nevertheless, overall, this and her other conclusions were within her discretion.
Conclusions
35. The decision of the FTT does not contain a material error of law .

Notice of Decision
The appeal against the FTT’s decision is dismissed.

Signed Date 11th September 2026

Deputy Upper Tribunal Judge Hanbury