Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-003536
First-tier Tribunal No: PA/03852/2024
PA/61230/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 23rd of September 2026

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

MR
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr P Turner, counsel, Imperium Chambers
For the Respondent: Mr M Parvar, Senior Home Office Presenting Officer

Heard at Field House on 18 September 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
1. The appellant has been granted permission to appeal the decision of the First-tier Tribunal (“FtT”) promulgated on 1 June 2026, dismissing his protection appeal following a hearing which took place on 11 November 2025.
Anonymity
2. I have continued the anonymity order made by the FtT. I 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 and procedural background
3. The appellant is a national of Namibia now aged twenty-five. He entered the United Kingdom by air on 25 December 2021 and applied for asylum immediately. That claim was based on the appellant’s account of being a bisexual man who feared the wife of a former male partner as well as a gang who had discovered his sexuality.
4. In a letter dated 16 February 2024, the Secretary of State refused the appellant’s protection claim. In that letter, the appellant’s nationality, sexuality and the material facts of his claim, including that he was attacked by the wife of a former partner and targeted by a gang, were accepted. Confusingly, the letter also said that there were concerns with the credibility of the appellant’s claim, albeit no reasons were provided for this. The respondent considered that there was no risk of harm to the appellant as “LGB people “did not suffer persecution and could live freely in Namibia. At the same time, the decision indicated that the material facts had been rejected and that the appellant did not need to seek state protection. Alternatively, the respondent considered that the appellant could relocate to another area of Namibia, such as Swakopmund which had an LGBT community.
The decision of the First-tier Tribunal
5. At the hearing before the FtT which took place on 11 November 2025, the appellant did not appear and was not represented. The judge proceeded to hear the appeal in the appellant’s absence.
6. The appellant contacted the FtT on 18 November 2025, explaining that he had overlooked the notice of hearing among his emails, asking for the opportunity to upload evidence and for the hearing to be rescheduled. In response, on 19 November 2026, the judge made the following directions:
a. The following Directions are made:
b. The appellant to explain how and why he only heard about the hearing date on 19 November 2025, that explanation to be provided to the Tribunal by 4pm on 20 November 2025.
c. The respondent by 4pm on 20 November 2025 to make any written submissions concerning the appellant’s request.
d. The appeal will be considered on the papers again on 21 November 2025.
7. The appellant complied with those directions, in which he apologised profusely and asked once more that the hearing be rescheduled. He also included a series of links to background material addressing the issues in dispute.
8. There was no response from the Secretary of State to the directions, perhaps unsurprisingly given the short timescale permitted by the judge.
9. The appeal was, ultimately, dismissed, in a decision dated 1 June 2026, on the basis that the appellant would live discreetly on return to Namibia and that he had not established that he would not be able to obtain sufficient protection or that it would be unreasonable for him to relocate.
The appeal to the Upper Tribunal
10. The grounds of appeal can be summarised as follows:
a. Ground one – that there was procedural unfairness in the FtT proceeding with the appeal in the appellant’s absence
b. Ground two – that the FtT made a material misdirection in its application of the principles in HJ (Iran).
c. Ground three The FtT provide inadequate reasons in relation to its findings on sufficiency of protection and internal relocation.
11. Permission to appeal was granted on the basis sought, with the judge granting permission remarking on the six-month delay between the appellant contacting the FtT and the decision being promulgated.
12. The respondent filed a Rule 24 response dated 22 July 2026, in which the appeal was opposed.
The error of law hearing
13. The matter comes before the Upper Tribunal to determine whether the decision contains an error of law and, if it is so concluded, to either re-make the decision or remit the appeal to the First-tier Tribunal to do so. 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.
14. The hearing was attended by representatives for both parties as above. Mr Turner made succinct submissions and the conclusions below reflect those arguments and submissions where necessary. Mr Parvar, quite rightly, withdrew the respondent’s opposition to ground one in particular and he did not wish to speak to the remaining grounds.
15. At the end of the hearing, I announced that I was satisfied that the First-tier Tribunal had materially erred, that the decision was set aside and the appeal remitted to the FtT.
Analysis and Conclusions
16. 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]. I remind myself of the role of the FtT as an expert Tribunal and bear in mind that a determination should not be ‘picked over’ or subjected to narrow textual analysis: HA (Iraq) [2022] UKSC 22, at [72].
Ground one
17. I accept Mr Turner’s submission that the FtT materially erred in law by proceeding to determine the appellant’s appeal in circumstances which were procedurally unfair and contrary to both the overriding objective and the appellant’s right to a fair hearing. The issue is not merely that the appellant failed to attend the hearing, but whether the Tribunal properly exercised its discretion to proceed in his absence and to determine that appeal following that absence having regard to all the circumstances of the case, including the appellant’s explanation and request for the appeal to be rescheduled.
18. It is relevant that the appellant had previously been represented, but following the withdrawal of his representatives he had encountered difficulties accessing and engaging with proceedings through the MyHMCTS platform. The judge acknowledged that the appellant had contacted the Tribunal to raise those difficulties and that steps had been taken to remove the appeal from the online system. The appellant was therefore not a disengaged litigant which was further evidenced by his prompt reply to the judge’s directions of 19 November 2025.
19. That the judge issued post-hearing directions, shows some recognition that the appellant’s request that the hearing be rescheduled warranted further consideration. However, despite the respondent filing no submissions opposing the request, the judge failed to engage in any meaningful way with the appellant’s request for the appeal to be relisted. The judge makes reference to this request briefly at [12] of the decision where the judge simply states:
He asked for the hearing to be rescheduled. I had already heard the appeal at that stage.
20. What was said at [12] does not begin to address the fairness of the judge determining this appeal in the absence of the appellant’s evidence on the issues in dispute. This was particularly significant where the basis of the appellant’s claim had been accepted by the respondent and where the appeal turned on matters which required clarification from the appellant. Indeed, in the decision, the judge repeatedly relied upon the absence of evidence and the appellant’s failure to attend the hearing as reasons for rejecting material aspects of the protection claim.
21. Reading the determination as a whole, it is apparent that the appellant’s absence materially affected the judge’s assessment of risk, sufficiency of protection, and internal relocation. The appellant was denied a fair opportunity to address the perceived evidential deficiencies identified by the Tribunal. The resulting prejudice was substantial and the decision is therefore unsafe for this reason alone.
22. I will nonetheless, briefly address the second ground.
Ground two
23. It is further , rightly submitted that the Tribunal materially erred in law by failing to apply the correct legal framework to the appellant’s sexual orientation claim in accordance with HJ (Iran [2010] UKSC 31. At [31], the judge found that because the appellant had historically “pretended to be more straight than he is to hide the fact that he was gay” and had not disclosed his sexuality to employers, he would continue to live as he had done previously.
24. At [33], the judge concluded that there was no evidence to suggest that the appellant would not live discreetly on return. Given that the respondent had accepted that the appellant had been subjected to serious homophobic violence, stabbed by his former partner’s wife, and that an explicit video which exposed his sexuality had been circulated and had led to further hostility, including the arson attack on his aunt’s home, the question to be addressed was whether the appellant would live openly on return to Namibia and, if not, whether a material reason for any concealment would be a fear of persecution or serious harm. That question went unaddressed and in that the judge materially erred.
Disposal
25. Applying Majera [2025] EWCA Civ 1597, I carefully considered whether to depart from the normal course of retaining the matter for remaking in the Upper Tribunal, in line with the general principles set out in Statements 3 and 7 of the Senior President’s Practice Statements, specifically at 3.1, 7.2 and 7.3. I took into consideration the history of this case, the nature and extent of the findings to be made as well as the fact that the nature of the errors of law in this case meant that the appellant was deprived of an adequate consideration of his protection appeal. I further consider that it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process and therefore remit the appeal to the First-tier Tribunal.
Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
The decision of the First-tier Tribunal is set aside.
The appeal is remitted, de novo, to the First-tier Tribunal to be reheard by a different judge.

T Kamara

Judge of the Upper Tribunal
Immigration and Asylum Chamber

21 September 2026