Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-003611

First-tier Tribunal No: PA/62350/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

5th October 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE BURGHER

Between

AZ
(Anonymity direction made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In person
For the Respondent: Mr E Tufan, Senior Presenting Officer

Heard at Field House by CVP on 24 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 them. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. The Appellant appeared without legal representation and was assisted by a Russian interpreter, Ms McCafferty. At the beginning of the hearing, it was confirmed that the Appellant and the interpreter could hear and understand each other.
Background
2. The Appellant is a citizen of Kyrgyzstan, born on 29 May 1993. She appeals against the decision of First-tier Tribunal Judge Chana (“the Judge”), promulgated on 11 May 2026, dismissing her appeal against the Respondent’s refusal of her asylum and humanitarian protection claim.
3. The Appellant entered the United Kingdom on 11 September 2022 with entry clearance as a seasonal worker and claimed asylum on 5 February 2023. Her asylum and humanitarian protection claim arose from her account that she had been sexually assaulted in Kyrgyzstan by a man referred to in the evidence as Chingiz (Chingus). She claimed that her parents subsequently placed pressure upon her to marry him and maintained that she would be at risk from Chingiz and members of her own family if returned to Kyrgyzstan. The Respondent accepted that the Appellant had been sexually assaulted by Chingiz. The Respondent also accepted that the Appellant had received threats or pressure from her parents concerning a proposed marriage to him. The Judge recorded those accepted matters at paragraph 4 of the decision.
4. The Judge rejected the Appellant’s claim that she remained at risk and concluded that there was sufficient state protection and a reasonable internal relocation alternative. The appeal was dismissed.
Grounds of appeal
5. Permission to appeal was granted by First-tier Tribunal Judge Turner on 7 July 2026. The permitted grounds concerned the following matters:
5.1 whether the Judge engaged in speculation about how the Appellant, Chingiz and members of the Appellant’s family would behave;
5.2 whether the Judge relied upon her own understanding of Kyrgyz culture without reference to objective evidence;
5.3 whether the Judge adequately examined the evidence concerning the alleged influence and connections of Chingiz;
5.4 whether the Judge properly considered the Claimant’s explanations for non-disclosure and non-reporting;
5.5 whether the conclusions on sufficiency of protection were generalised and failed to engage with the individual circumstances of the Appellant and Chingiz; and
5.6 whether the assessment of internal relocation adequately addressed the characteristics of the Appellant, the reach of those she feared and the practical reasonableness of relocation.

Upper Tribunal Hearing
Appellant’s submissions
6. The Appellant relied upon her written grounds and rule 25 response and written skeleton argument. She submitted that the First-tier Tribunal’s route to its findings was flawed. The Appellant argued that the Judge had made unsupported assumptions about how Chingiz and members of her family would behave. She disputed the Judge’s conclusion that her marriage brought any risk to an end.
7. The Appellant submitted that the Judge improperly used her failure to report the sexual assault adversely without properly considering her evidence of shame, fear, embarrassment, anticipated family reaction and psychological trauma.
8. The Appellant also challenged the findings concerning sufficiency of protection and internal relocation. She maintained that the Kyrgyz authorities would not protect her and that Chingiz and members of her family would be able to trace her elsewhere in the country.
Respondent’s submissions
9. Mr Tufan relied upon the Respondent’s response under rule 24. He submitted that the Judge had considered the evidence as a whole and had made findings which were properly open to her.
10. Mr Tufan nevertheless helpfully drew our attention to a material discrepancy between the evidence and the Judge’s finding at paragraph 18 which states:
“The evidence about Chingus’s wealth and power within the authorities is not consistent with the appellant’s claim that Chingus worked in a restaurant with the appellant. If Chingus had the influence, power and wealth that the appellant claims he has, he would have no need to work at a restaurant.”
11. Mr Tufan referred me to documents FB 93 and FB 118. Those documents did not record that Chingiz worked at the restaurant. At FB 93 the Appellant’s account was Chingiz is known her a customer in the restaurant. At FB 118, in response to question 51 of the asylum interview, the Appellant described Chingiz and his friends dining in the restaurant where she worked. Her account was that Chingiz was a customer, not a fellow employee.
12. The Appellant’s witness statement was consistent with that account. At paragraph 3, she stated that she was working as a waitress in a café when Chingiz attended. She did not state that Chingiz worked at the restaurant.
13. Whilst Mr Tufan accepted that the Judge had made a factual mistake he submitted, that the mistake was not material because the decision contained other sustainable reasons for rejecting the Appellant’s account.
Legal principles
14. I have reminded myself of the need for appropriate appellate restraint. A decision of the First-tier Tribunal must be read fairly, sensibly and as a whole. The Upper Tribunal must not interfere merely because another judge might have reached a different conclusion.
15. Findings of fact and evaluations of evidence are primarily matters for the First-tier Tribunal. The Upper Tribunal must not subject a decision to an unduly narrow textual analysis or search for immaterial infelicities of expression.
16. A material error of law may nevertheless arise where a tribunal proceeds upon a material mistake of fact, bases a central finding upon speculation rather than evidence, fails to consider material evidence, applies the wrong legal test or fails to give adequate reasons for a material conclusion. In E v SSHD [2004] EWCA Civ 49, the Court of Appeal recognised that a mistake of fact may constitute an error of law. Carnwath LJ stated at paragraph 66:
In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of CICB. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning.
17. In relation to speculation in HK v SSHD [2006] EWCA Civ 1037, Neuberger LJ held at paragraph 29
Inherent probability, which may be helpful in many domestic cases, can be a dangerous, even a wholly inappropriate, factor to rely on in some asylum cases. Much of the evidence will be referable to societies with customs and circumstances which are very different from those of which the members of the fact-finding tribunal have any (even second-hand) experience. Indeed, it is likely that the country which an asylum-seeker has left will be suffering from the sort of problems and dislocations with which the overwhelming majority of residents of this country will be wholly unfamiliar. The point is well made in Hathaway on Law of Refugee Status (1991) at page 81:
“In assessing the general human rights information, decision-makers must constantly be on guard to avoid implicitly recharacterizing the nature of the risk based on their own perceptions of reasonability.”
18. Therefore, when assessing credibility, a tribunal must avoid substituting assumptions about expected or normal behaviour for findings properly rooted in the evidence.
19. The evidence must also be considered in the round. The tribunal must not reach an adverse credibility conclusion without evaluating evidence which is capable of supporting or explaining the account See Mibanga v SSHD [2005] EWCA Civ 367 per Wilson LJ at paragraph 24.
Analysis and Conclusions
Grounds 1 – 3: Speculation and unsupported credibility findings
20. These grounds concern whether the Judge reached material findings through speculation or unsupported assumptions. At paragraph 17, the Judge does not find it to be credible evidence that Chingiz, the rapist, would want to marry the Appellant after a very long time and then want to kill her if she refuses.
21. I consider that it was open to the Judge to consider whether the evidence, including the passage of time, established continuing interest on the part of Chingiz. The difficulty is that the Judge did not identify an evidential basis for the proposition that the passage of time made the claimed conduct inherently implausible. The Judge was required to assess the passage of time alongside the evidence of the later marriage proposal, the alleged renewed contact and the asserted recent family pressure.
22. The most significant issue arises from paragraph 18 which indicates that the Judge’s reasoning proceeded upon the factual premise that Chingiz worked in the restaurant with the Appellant. That premise was wrong. The contemporaneous record and the Appellant’s witness statement consistently described Chingiz as a customer.
23. This mistake concerned an existing and objectively verifiable fact. The Appellant was not responsible for the mistake. The mistake played a material part in the reasoning because the Judge used it to reject the evidence that Chingiz came from a wealthy or influential family and had connections within the authorities. I consider that this factual error. provided an express reason for rejecting an important part of the Appellant’s case and was therefore not confined to an inaccurate summary of the evidence.
24. I consider that the Judge’s reasoning at paragraphs 19 to 22 disclose further material shortcomings. At paragraph 19, the Judge stated there was no credible reason why the Appellant parents would continue to insist she marries Chingiz when she is already married, especially given the culture from which the Appellant comes, that she cannot marry another man when she is already married. At paragraph 21, the Judge stated that in the Appellant’s culture, a woman cannot marry again under any circumstances, other than divorce. The Judge also found that the Appellant’s parents had demonstrated an “open mentality” because they allowed her to travel to the United Kingdom.
25. The Judge did not identify the evidential basis for the general propositions about the Appellant’s culture and no relevant country evidence or expert evidence was identified.
26. More fundamentally, the issue was not limited to whether the Appellant could lawfully or culturally enter another marriage. The Appellant’s case included allegations of coercion, family retaliation and violence arising from her refusal to comply with the wishes of her family. The fact of her existing marriage did not address those allegations.
27. Further, permission to travel abroad for temporary seasonal employment did not necessarily establish that the family would accept the Appellant’s independent choice of husband or would not seek to exercise control over her marital decisions.
28. At paragraph 22, the Judge reasoned that the family would not harm the Appellant because they had allowed her to come to the United Kingdom. That conclusion evidently depended upon an assumption as to how the family would behave rather than an examination of the particular evidence concerning the family’s alleged reaction to the Appellant’s marriage.
29. The Judge was entitled to provide a reasoned, evidential basis to reject the Appellant’s account. However, she was not entitled to fill evidential gaps through assumptions about the cultural consequences of marriage or the likely conduct of the Appellant’s family.
30. The erroneous finding at paragraph 18 materially reinforces the substance of these grounds. I am satisfied that the central credibility assessment was affected by a material factual mistake and unsupported assumptions. There is therefore a material error of law in this regard.
Ground 4: Trauma, disclosure and non-reporting
31. This ground concerns the treatment of the Appellant’s failure to report the sexual assault and her failure to disclose it to members of her family. The appropriate starting point was that the Respondent had accepted that the sexual assault occurred. The Judge was therefore assessing the later conduct of a person who had, on the accepted facts, experienced serious sexual violence.
32. The Appellant’s evidence was that she did not report the sexual assault because of shame, embarrassment, cultural stigma, fear of her family’s response and fear arising from what she believed to be the influence and connections of Chingiz. The Appellant also relied upon evidence of psychological symptoms, depression, anxiety and continuing trauma. However, the Judge stated at paragraph 19 that there is no credible reason for why the Appellant could not tell her parents about the sexual assault from the United Kingdom. The Appellant did provide reasons. The question was whether those reasons were accepted but the decision did not explain why the reasons actually advanced were rejected or why they individually and cumulatively were found to be not credible.
33. Further, at paragraph 23, the Judge did not find it credible that the fact that Chingiz may have assaulted other women would deter the Appellant from reporting a serial rapist if that is what she believed. The Judge was entitled to consider the apparent logic of the Appellant’s explanation. However, the reasoning was expressed in terms of how a person subjected to sexual violence ought rationally to respond. The Appellant’s evidence was not simply that she declined to report the matter because she believed there were other victims. Her evidence included fear of disclosure, shame, anticipated family consequences and the belief that members of Chingiz’s family had connections within the police.
34. The Judge did not adequately explain why those matters when considered cumulatively were not credible. Nor did the decision demonstrate that the non-reporting evidence was assessed against the accepted fact of sexual violence and the evidence of psychological trauma. Finally, the decision in this regard is undermined by the unsustainable finding regarding the status of Chingiz’s power and wealth recorded at paragraph 18.
35. The Judge was required to evaluate the Claimant’s explanation from a correct factual premise before concluding that asserted conduct was not credible. The Judge did not do so. There is therefore a material error of law in this regard.
Grounds 5 and 6: Sufficiency of protection and internal relocation.
36. At paragraph 24, the Judge decided that sufficiency of protection is available to the Appellant in Kyrgyzstan, and that she can also relocate internally, because the persons she fears are non-state actors. The relevant question is whether the state operates a system of criminal law and protection which, in practice, provides a reasonable level of protection to the particular applicant.
37. At paragraph 25, the Judge decided that the Kyrgyzstan police are generally willing and able to provide protection in circumstances such as the Appellant’s and there is a protocol as to how to report crimes of female violence.
38. The Judge’s decision did not identify the particular country evidence relied upon for that conclusion. The decision did not engage with the material relied upon by the Appellant concerning violence against women, failures in enforcement, reluctance to report and the treatment of complaints involving family or gender-based violence.
39. The Appellant’s case was that Chingiz comes from a wealthy and influential family and had relatives or connections in law enforcement. As discussed above, the Judge wrongly rejected that claim at paragraph 18. This material factual error is directly relevant to the assessment of one of the Appellant’s principal reasons for claiming that the police would not protect her.
40. There is also an evidential relationship between the Judge’s treatment of non-reporting and the protection finding. The Judge relied upon the absence of a police report without adequately assessing the Appellant’s explanations for not reporting.
41. At paragraph 24, the Judge linked the availability of internal relocation to the fact that the feared persons were non-state actors. The non-state nature of the feared actors did not establish that relocation would be safe. The assessment required findings about their continuing interest, reach, influence and ability to locate the Appellant.
42. At paragraph 26, the Judge decided that there is no evidence before the Tribunal that Chingiz continues to have the will or the ability to locate her because he knows that the appellant is married.
43. I do not conclude that the country evidence compelled the Judge to find that sufficient protection was unavailable. The material error is that the assessment undertaken was materially dependent upon the mistake factual finding and the flawed credibility findings that did not adequately address the evidence relied upon by the Appellant.
44. In respect of internal relocation, the decision did not identify a proposed place of relocation. It did not analyse how the Appellant would avoid being traced by Chingiz or her family in that location. It did not adequately address her mental health, treatment needs, asserted absence of safe family support or the practical arrangements for accommodation and subsistence.
45. Considered cumulatively, the errors render the adverse findings on continuing risk, protection and relocation unsafe. The general statement at paragraph 27 that the Judge had considered the evidence in its entirety could not cure the specific defects in the reasoning.
46. I therefore conclude that there is a material error of law in this regard.
Disposal
47. I have considered section 12 of the Tribunals, Courts and Enforcement Act 2007, paragraph 7 of the Senior President’s Practice Statements and Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC). The general position is that the Upper Tribunal will retain an appeal for remaking. Paragraph 7.2 provides exceptions where the effect of the error deprived a party of a fair hearing or where the nature or extent of the necessary fact-finding makes remittal appropriate. Remaking remains the normal approach even if some further fact-finding is required.
48. Having regard to the overriding objective and the importance of preserving a fair two-tier decision-making process, I am satisfied that the appeal should be remitted to the First-tier Tribunal for a fresh hearing.
49. The rehearing must take place before a judge other than First-tier Tribunal Judge Chana.
Preserved findings
50. The Respondent accepted before the First-tier Tribunal that the Appellant had been sexually assaulted by Chingiz. That matter was recorded at paragraph 4 and was not challenged before me.
51. I preserve the finding that the Appellant was sexually assaulted by Chingiz.
52. Although the Respondent had accepted that the Appellant had received threats or pressure from her parents concerning a proposed marriage, the nature, extent, duration and present significance of that conduct are bound up with the disputed evidence concerning continuing risk and the Appellant’s marriage.
53. The First-tier Tribunal must therefore consider those matters afresh upon the totality of the evidence. I therefore do not preserve any more detailed finding concerning the nature or continuing effect of the family pressure.
54. No other findings are preserved.
Notice of Decision
The making of the decision of the First-tier Tribunal involved the making of material errors on points of law.
The decision of the First-tier Tribunal is set aside.
The finding that the Appellant was sexually assaulted by Chingiz is preserved.
The appeal is remitted to the First-tier Tribunal for a fresh hearing before a judge other than First-tier Tribunal Judge Chana.
The anonymity order continues.

Benjimin Burgher

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

30 September 2026