Brenda Efurhievwe’s bisexual client succeeded in his error of law appeal to the Upper Tribunal. The unreported decision in MA v Secretary of State for the Home Department UI-2025-000713 can be accessed here.
The client, a young bisexual Pakistani man initially had his asylum claim refused on the basis of credibility. In the subsequent asylum appeal, the First-Tier Tribunal Judge (“FTTJ”) found the Appellant’s detailed and internally consistent account implausible, and placed no weight on corroborating evidence provided by the Appellant.
Brenda successfully argued that the Judge materially erred in his assessment of the appellant’s credibility. Her submissions related to the appropriate approach to assessing credibility in asylum appeals, as well as the appropriate standard of proof applicable to a claim made in 2021. The Upper Tribunal Judge (“UTJ”) accepted that, despite referring to the lower standard of proof, the FTTJ applied a higher standard of proof while assessing core aspects of the Appellant’s claim.
Brenda’s submissions also demonstrated that the FTTJ dismissed the Appellant’s appeal primarily on plausibility grounds. Relying on MAH (Egypt) [2023] EWCA Civ 216, she stressed that “the tribunal of fact should be cautious before finding an account inherently incredible”, as there is considerable risk of being influenced by one’s own views of what is and is not plausible. Brenda stressed that the FTTJ should have considered the Appellant’s account in context of Pakistani society, and what was plausible for a very young, bisexual Pakistani man to do in the Appellant’s circumstances, instead of applying western standards to the plausibility assessment. The UTJ accepted that the “the judge looked through his own prism of what was reasonable without considering what a bisexual man from Pakistan might reasonably do”.
Addressing the FTTJ’s repeated references to an alleged lack of evidence in the case, Brenda argued that it was not mandatory for an asylum seeker to provide corroborating evidence and its absence should not undermine a consistent account. The FTTJ’s decision indicated that “there was no evidence from any independent source to suggest that that the appellant had attended any LGBT events or functions at all”. In her submissions Brenda criticised the implicit assumption that, in order to have one’s sexual orientation accepted, one must “attend LGBT events or functions”. She also brought the UTJ’s attention to photographic and witness evidence actually provided by the Appellant.
In her submissions, Brenda set out how the FTTJ’s decision also implied a requirement for the corroborating evidence of the Appellant’s friend to be itself corroborated by additional evidence. The FTTJ effectively disregarded the evidence of this witness, as his evidence was seen as “almost totally dependent upon what the appellant told him.” Brenda was able to challenge this assertion, on the basis that the witness’ own observations could not be characterised as hearsay and the lower standard of proof applicable in this case did not require the “corroboration of corroborating evidence”.
The UTJ was satisfied that the FTTJ’s repeated requirement of corroborative evidence amounted to a material error of law. The FTT decision was set aside in its entirety, as Upper Tribunal found that no findings of fact could be preserved. The appeal was remitted to the FTT for a fresh hearing to be heard by a different Judge. Brenda was instructed by Buckingham Legal Associates.
Brenda specialises in complex Asylum appeals. Following years of pro-LGBTQ+ activism, Brenda is particularly sensitive to the needs of members of this community. She accepts instructions in all aspects of Immigration and Public Law, as well as related Civil Law matters.
Related barristers: Brenda Efurhievwe (Efu-rie-ve)
Related practice areas: Immigration and Public Law
