Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002887
First-tier Tribunal No: PA/69672/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

7th September 2026

Before

UPPER TRIBUNAL JUDGE LODATO

Between

FMN
(ANONYMITY ORDERED)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Abadoo
For the Respondent: Ms Everett, Senior Presenting Officer

Heard at Field House on 18 August 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
Introduction and Background
1. I have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal (‘the FtT’) because the underlying claim involves international protection issues in that the appellant claims to fear persecution or serious harm on return to Kenya. In reaching this decision, I am mindful of the fundamental principle of open justice, but I am satisfied, taking the appellant’s case at its highest for these purposes, that the potential grave risks outweigh the rights of the public to know of her identity.
2. The appellant appeals with permission against the decision, dated 18 June 2025 of a judge of the FtT (‘the judge’) to dismiss the appeal on international protection and human rights grounds.
3. The appeal arose in the context of the appellant’s accepted background of being trafficked for the purposes of sexual exploitation. Her primary case was that she would be at risk of again falling into the hands of traffickers if returned to Kenya. She further argued that she was at risk of female genital mutilation on return.
Appeal to the Upper Tribunal
4. The appellant applied for permission to appeal in reliance on the following grounds:
i. Ground 1: Misdirection in the assessment of sufficiency of protection and internal relocation.
ii. Ground 2: Failure to address the risk of re-trafficking through a trafficking-sensitive analysis.
iii. Ground 3: Inadequate reasons in relation to the FGM and family-based risk.
iv. Ground 4: Misdirection as to the asylum appeal and procedural unfairness.
v. Ground 5: Inadequate Article 8 assessment and lack of anxious scrutiny.
5. In a decision dated 16 June 2026, a judge of the Upper Tribunal granted permission for all grounds to be argued. The respondent was invited to carefully consider the merits of the grounds and, in particular, grounds 1-3. In a rule 24 notice provided in advance of the hearing, the respondent conceded that the decision involved material errors of law, in particular the errors referred to at grounds 1-3.
6. At the error of law hearing, I heard oral submissions from both parties. I indicated that I was minded to allow the appeal and would reflect on the appropriate disposal.
Discussion
7. In MN (Vietnam) v Secretary of State for the Home Department [2026] EWCA Civ 485, the Court of Appeal set out the principles which should guide the analysis of whether judicial reasons are lawfully adequate. Between [34] and [36], Dove LJ drew together the leading authorities:
[34] […] The question which then arises is by what standard those reasons are to be judged in order to determine whether or not they are legally adequate. Whilst given in a different public law context, the observations of Lord Brown of Eaton under Heywood in South Bucks County Council v Porter (No 2) [2004] UKHL 33; [2004] 1 WLR 1953 at paragraph 36 provide an important statement of principle applicable in the current context:
“36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in dispute, not to every material consideration…Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”
[35] Accompanying these principles, it is also necessary to observe that the decision, in this case the FtTIAC determination, must be read as a whole and in context. Part of that context is that examining the determination’s reasons should be approached and undertaken purposefully, with the object of obtaining an understanding of the decision and its basis. It should not be read or construed in a manner more appropriate to a contract or statute. It requires what Lord Bingham MR described as a “straightforward down to earth reading” of the determination which seeks to identify whether there is “room for genuine as opposed to forensic doubt” as to what has been decided and why (see Clarke Homes Limited v Secretary of State for the Environment and East Staffordshire District Council [1993] 66 P&CR 263).
[36] This approach to the standard of reasons required as a matter of law can be set in the general understanding of approaches to appeals in respect of tribunals within the Immigration and Asylum Chamber provided by Lord Hamblen at paragraph 72 of HA (Iraq) v SSHD [2022] 1 WLR 3784; [2022] UKSC 22:
“72. It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. In particular:
(i) They alone are the judges of the facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. It is probable that in understanding and applying the law in their specialised field the tribunal will have got it right. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v Secretary of State for the Home Department [2008] AC 678 per Baroness Hale of Richmond at para 30.
(ii) Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v Secretary of State for the Home Department [2011] 2 All ER 65, para 45 per Sir John Dyson JSC.
(iii) When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] 2 AC 48, para 25 per Lord Hope of Craighead DPSC.”
8. In addition to the above statements of principle, the Upper Tribunal’s jurisdiction to decide whether an FTT decision involved a material error of law was recently considered by the Court of Appeal in Ullah v SSHD [2024] EWCA Civ 201; [2024] 1 W.L.R. 4055. At [26], Green LJ summarised the applicable principles (I have not reproduced those principles which are reflected above in MN (Vietnam) to similar effect):  
[26] Sections 11 and 12 of the TCEA 2007 restrict the UT's jurisdiction to errors of law. It is settled that:  
[…]
(iv)  The issues for decision and the basis upon which the FTT reaches its decision on those issues may be set out directly or by inference: see UT (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1095 at [27];  
(v)  Judges sitting in the FTT are to be taken to be aware of the relevant authorities and to be seeking to apply them. There is no need for them to be referred to specifically, unless it was clear from their language that they had failed to do so: see AA (Nigeria) v Secretary of State for the Home Department [2020] 4 WLR 145 at para 34;  
(vi)  It is of the nature of assessment that different tribunals, without illegality or irrationality, may reach different conclusions on the same case. The mere fact that one tribunal has reached what might appear to be an unusually generous view of the facts does not mean that it has made an error of law: see R (MM (Lebanon)) v Secretary of State for the Home Department [2017] 1 WLR 771 at para 107.  
9. After summarising the procedural background, the hearing, the appellant’s evidence and general country background information about conditions in Kenya, the judge decided the protection grounds of appeal in reliance on the following findings, at [18]-[19]:
I accept that A was trafficked into the UK. It s [sic] unclear whether those responsible have a presence in Kenya or how powerful they might be there. In any event even if A did have a well-founded fear of traffickers in Kenya it is clear from the above general country information that that she would receive a sufficiency of protection and or be able to relocate. She has family in Kenya and a history of employment as a photographer there.
In relation to her claimed fear of FGM from her father, there is little reliable evidence that her father has the intention or ability to have her circumcised. In any event even if A did have a well-founded fear of FGM in Kenya it is clear from the above general country information that that she would receive a sufficiency of protection and or be able to relocate.
10. I was assisted by the respondent’s rule 24 notice in which the following points were made in support of the decision not to resist the appeal:
The respondent accepts that the First-tier Tribunal has materially erred on a point of law, such that its determination should be set aside.
Speciﬁcally, grounds 1-3 are accepted. The respondent agrees that the extent of error is such that the entire determination ought to be set aside with no ﬁndings preserved.
Brieﬂy, the Respondent accepts that there seems to be an absence of proper consideration as to whether a lone woman with an accepted traﬃcking history would be able to integrate upon return. Insuﬃcient consideration has been given as to any fact-speciﬁc risks this appellant may face due to a history of having been traﬃcked.
Additionally, the exploration as to what contact or support she may have from family in the context of the asylum claim is extremely limited and not supported by proper fact-ﬁnding or reasons. The ﬁndings section at [18-19] is concerningly brief and fails to deal with all the material issues within the appeal on its facts. The Respondent accepts that this does not amount to adequate reasoning. Proper, reasoned ﬁndings as to the Appellant’s family connections are necessary to assess risk both through the lens of re-traﬃcking, and separately on the FGM point.
11. I find myself to be in broad agreement with all of the points made under grounds 1-3 by both the appellant’s representatives and the respondent in her rule 24 notice. The judge’s reasons are undeveloped and do not begin to engage with the appellant’s claimed fear, and objective risk, of being subjected to further trafficking on return. Her case was not limited to the risk of being re-trafficked by those who had tricked her into sexual exploitation in the past. There is no meaningful analysis of her personal circumstances as a former victim of modern slavery and how this background might make her vulnerable to being trafficked in future. The judge’s reasoning hinged on the suggested lack of clarity about the reach and influence of those who had trafficked her in the past. This did not grapple with the essential question of whether she would be at risk of becoming a victim of trafficking again in future by the same actors or others. Equally, while objective and general country information about the protection available to potential victims of trafficking is material to the consideration of this issue, it must be considered in tandem with the appellant’s personal circumstances. There is nothing to indicate that this necessary analysis was undertaken. I agree that the decision involves material errors of law in the resolution of the international protection grounds of appeal. This element of the decision cannot be separated from the analysis under human rights principles which means that the entire decision falls to be set aside without preserving any findings of fact.
Disposal
12. The starting point is paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal which provides: 
7.2. The Upper Tribunal is likely on each such occasion to proceed to remake the decision, instead of remitting the case to the First-tier Tribunal, unless the Upper Tribunal is satisfied that:  
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party’s case to be put to and considered by the First-tier Tribunal; or  
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal. 
13. I bear in mind the guidance in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC). I am satisfied that the appropriate procedural course is to remit this matter to the FtT to be decided de novo. As I have indicated above, no findings of fact are preserved. The need for a full fact-finding process weighs in favour of the matter being decided afresh in the FtT and thereby preserving the second tier of appeal.

Notice of Decision
The decision involved material errors of law. I set aside the decision and do not preserve any findings of fact. The matter is remitted to a different judge of the FtT to decide the appeal de novo.

P Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

3 September 2026