Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-003526
First-tier Tribunal No: PA/01580/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

30th September 2026

Before

UPPER TRIBUNAL JUDGE O’BRIEN
DEPUTY UPPER TRIBUNAL JUDGE BIBI

Between

LAO
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Date of Hearing: 23 September 2026 (on the papers)

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
1. The appellant has been granted permission to appeal the decision of First-tier Tribunal dismissing his protection appeal following a hearing which took place on 25 February 2026.
Anonymity
2. We have continued the anonymity order made by the First-Tier Tribunal. We have considered the public interest in open justice but conclude that it is outweighed by the importance of facilitating the discharge of the United Kingdom’s obligations to those claiming international protection, because of the need for confidentiality.
Factual Background
3. The appellant is a Ghanian national, born in July 1989. He appeals against the respondent's decision of 18 March 2026 refusing his asylum and human rights claim.
4. The appellant entered the United Kingdom on 19 February 2022 holding a visit visa.
5. The appellant claimed asylum on 26 November 2023. He states that he fears persecution in Ghana for a Convention reason, namely his sexuality. The appellant is bisexual. He also claims to fear harm from a local businessman arising from an unpaid loan, which does not engage a Convention reason. The appellant entered into an arranged marriage in Ghana between 2018 and 2020.
6. The respondent refused the appellant’s protection claim on 18 March 2025, accepting his identity and nationality but rejecting his claimed bisexuality and asserted fear of a local businessman arising from an unpaid loan.
7. The respondent relied on inconsistencies in the appellant’s account, finding no real risk of persecution or serious harm on return to Ghana. It was also concluded that adequate state protection and internal relocation were available.
8. The respondent further relied on section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, noting the appellant’s delay in claiming asylum after arriving in the UK on 19 February 2022 and the inconsistent explanations provided for that delay.
9. The respondent concluded that the delay undermined the appellant’s credibility and that the claim was a fabricated attempt to remain in the UK rather than a genuine protection claim.
The decision of the First-tier Tribunal
10. At the hearing, the appellant confirmed that he no longer pursued his claim to be at risk from a local businessman arising from an unpaid loan. The respondent accepted that, if the appellant’s account were accepted, his claimed fear of persecution would be for a Convention reason, namely membership of a particular social group as an LGBTQI individual. The respondent further accepted that there would be neither a sufficiency of protection nor a reasonable internal relocation alternative in Ghana.
11. The issues in dispute were whether the appellant is bisexual as claimed, whether he genuinely fears persecution on account of his sexual orientation, and whether he would face a real risk of persecution on return to Ghana for that reason.
12. The judge found that the appellant had failed to establish that he is bisexual. In reaching that conclusion, the judge relied on a number of credibility concerns, including inconsistencies in his immigration history, discrepancies between his evidence and supporting documentation, his delay in claiming asylum, his late engagement with LGBTQI organisations, and his admission to posting false information on social media.
13. The judge also considered the appellant’s LGBTQI-related activities and social media presence in the UK but found no evidence that these had come, or were likely to come, to the attention of persons in Ghana. Applying HJ (Iran) v SSHD [2010] UKSC 31, the judge concluded that the appellant was neither genuinely bisexual nor likely to be perceived as such on return. The appeal was therefore dismissed on asylum and humanitarian protection grounds.
The Appeal to the Upper Tribunal
14. The grounds of appeal can be summarised as follows: -
15. Ground 1: the judge materially erred in her credibility assessment by placing adverse weight on i) the delay in claiming asylum; and ii) the delay in becoming involved in the UK LGBTQI plus community.
16. Ground 2: the grounds further contend that the judge erred by failing to engage with the evidence of the two witnesses and failed to make any findings on their evidence.
17. Ground 3: the judge materially erred by failing to separately assess the humanitarian protection claim using the appropriate lower standard of proof.
18. Permission to appeal was granted on all grounds by First-tier Tribunal Judge Seelhoff on 29 June 2026.
Documents
19. A bundle was submitted by the appellant containing, inter alia, the core documents in the appeal, including the appellant’s and respondent’s bundles before the First-tier Tribunal.
20. In the Rule 24 response, the respondent concedes that the decision of the First-tier Tribunal involved the making of a material error of law and should therefore be set aside.
21. The respondent is not persuaded by Ground 1, accepting that the judge adequately considered the appellant’s explanation for delay.
22. However, the respondent accepts Grounds 2 and 3. The judge failed to engage with the witness evidence, and although adverse credibility findings were made, material evidence could not be disregarded. Further, there was no clear application of the lower standard of proof to the humanitarian protection claim.
23. As these errors undermine the overall credibility assessment, the decision should be set aside in its entirety and the appeal remitted to the First-tier Tribunal.
24. The hearing was vacated by the agreement of both parties.
25. The respondent’s concession was properly made. We were satisfied that there was a material error of law in the decision of the First-tier Tribunal. Our reasons for that decision are set out below.
Decision
26. The principles and cautious approach to be applied by an appeal court to first instance findings of fact are well established and set out in Volpi v Volpi [2022] EWCA Civ 464 at [2]. We remind ourselves of the role of the First-tier Tribunal as an expert Tribunal and also bear in mind that a determination should not be ‘picked over’ or subjected to narrow textual analysis: HA (Iraq) v SSHD [2022] UKSC 22, 1 WLR 3784 at §72.
27. We are satisfied that the respondent’s concession in relation to Grounds 2 and 3 was properly made. Having concluded that those grounds establish material errors of law requiring the decision to be set aside, it is unnecessary for us to reach a concluded view on Ground 1.
Ground 2
28. We are satisfied that Ground 2 is made out. The appellant relied upon the evidence of EA and DM, both of whom provided witness statements and gave oral evidence in support of his claim. Their evidence was plainly material to the central issues in the appeal, namely the appellant’s sexuality and overall credibility.
29. Whilst a judge is not required to address every item of evidence, a determination must demonstrate that material evidence has been considered and evaluated. We accept the appellant’s submission that the judge failed adequately to engage with the evidence of either witness. The only reference to EA appears at paragraph 22, where the judge noted that the friendship was of recent origin. There is, however, no assessment of the credibility, reliability or weight of his evidence. Likewise, there is no meaningful engagement with DM’s evidence, including her account of the reaction of the appellant’s family in Ghana to his claimed sexual orientation.
30. Given that credibility lay at the heart of the appeal, the evidence of both witnesses was potentially significant. The absence of findings on that evidence renders the credibility assessment incomplete and undermines the safety of the judge’s conclusions.
31. We are satisfied that the judge failed to engage with material witness evidence. That omission constitutes a material error of law. Whilst the judge made otherwise cogent findings regarding the appellant’s credibility, material evidence could not properly be left out of account. Had the witness evidence been assessed and weighed in the round, it is reasonably possible that a different conclusion may have been reached.
32. We also note the respondent’s concession that there was no clear consideration of the witness evidence adduced at the hearing. In the circumstances, that concession was properly made. The error infects the credibility assessment as a whole and is material to the outcome of the appeal. Accordingly, Ground 2 succeeds.
Ground 3
33. We are satisfied that Ground 3 is established.
34. It is common ground that, at paragraph 13 of the decision, the judge correctly directed herself as to the applicable standard of proof in protection claims. However, the mere recitation of the correct legal test is not sufficient. The determinative question is whether that standard was properly applied in the assessment of the evidence and the conclusions reached.
35. We accept the appellant’s submission that the judge’s treatment of the humanitarian protection claim discloses no separate or discernible application of the lower standard of proof. At paragraph 31, having rejected the appellant’s account for the purposes of the Refugee Convention claim, the judge proceeded to dismiss the humanitarian protection claim on substantially the same basis and without any distinct analysis. The decision does not demonstrate that the evidence was reconsidered by reference to the question whether there was a real risk of the appellant suffering serious harm on return.
36. Whilst findings made in the context of a refugee claim may properly inform the assessment of an associated humanitarian protection claim, the decision must nonetheless reveal that the correct statutory test has been applied to the latter. In the present case, the reasoning discloses no separate engagement with the requirements of humanitarian protection and no assessment of whether the evidence, viewed in the round and applying the lower standard of proof, established a real risk of serious harm.
37. We are not persuaded that the self-direction at paragraph 13 was carried through into the substantive assessment of the humanitarian protection claim. Rather, the reasoning suggests that the claim was rejected by reference to the same adverse credibility findings reached in respect of the Refugee Convention claim, without a distinct consideration of the applicable legal test. Given that protection claims require an evaluation of future risk by reference to a standard falling significantly below the balance of probabilities, that omission is material.
38. We also take account of the respondent’s concession. In our judgment, the concession was properly made. The respondent accepts that the decision fails to demonstrate that the lower standard of proof was applied when determining the humanitarian protection claim. Having considered the decision, we agree.
39. Accordingly, we are satisfied that the judge materially erred in law in her approach to the humanitarian protection claim. That error was capable of affecting the outcome of the appeal. Ground 3 therefore succeeds.
Notice of Decision
40. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
41. We set aside the decision of the First-tier Tribunal and remit the case to the First-tier Tribunal to be heard by a different judge, with no findings of fact preserved.

T Bibi

T Bibi

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
25 September 2026