The decision


Case No: UI-2022-004014

First-tier Tribunal No: PA/54243/2021


Decision & Reasons Issued:
On 28 April 2023





(Anonymity direction made)

For the Appellant: Mr Diwnycz, Senior Presenting Officer
For the Respondent: Ms Chaudhry, Counsel instructed on behalf of the respondent.

Heard at Phoenix House (Bradford) on 22 March 2023

1. The Secretary of State appeals, with permission, against the decision of the First-tier Tribunal (Judge Atkinson “the FtTJ”) who, in a determination promulgated on the 15 March 2022 allowed the appeal of the respondent on asylum and human rights grounds.
2. Whilst the appellant in these proceedings is the Secretary of State , for the sake of convenience I intend to refer to the parties as they were before the First-tier Tribunal.
3. The FtTJ did make an anonymity order and no grounds were submitted during the hearing for such an order to be discharged. Anonymity is granted because the facts of the appeal involve a protection claim.
4. 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.
The background:
5. The factual background to the appeal is set out in the decision of the FtTJ, the decision letter and the papers in the parties’ respective bundles. At the hearing the FtTJ heard oral evidence from the appellant given through a Kurdish Sorani interpreter and he also adopted as his evidence in chief his witness statements dated 24 January 2019 and 26 September 2021. The FtTJ set out a summary of the salient facts as follows. The appellant is a national of Iraq of Kurdish ethnicity from the IKR. He grew up with his parents and siblings and attend a local school from class 7 to 11. In 2016 the appellant met a fellow female student, Z, with whom he developed a relationship. The relationship came to the attention of Z’s brother who made threats against the appellant. The appellant told his father of the relationship, and his father was supportive. The appellant decided to continue to see Z.
6. The appellant stated that Z’s brother made further threats against him which became increasingly abusive and several months after the start of their relationship, the appellant was attacked by A and 2 of Z’s other brothers. The appellant was fearful of reporting matters to the police, and he was taken to hospital by his father.
7. In or about November 2017 Z rang the appellant and told that she was alone in the family house. He visited and they began an intimate relationship. In or about February 2018 Z discovered that she was pregnant and called the appellant to tell him and that her own family were threatening her and intended to harm the appellant and that she had sought help from the police.
8. The appellant informed his parents in the circumstances ,and it was decided that he should leave Iraq. The appellant’s parents made arrangements the appellant to stay with a relative who lived on the border of Iran, and he was provided with money to fund his journey to Turkey.
9. The appellant left Iraq on or about 20 March 2018 thereafter arrived in the United Kingdom on 9 October 2018.
10. Following the appellant’s arrival in the United Kingdom he did not have contact with his parents.
11. The respondent refused the appellant’s claim in a decision taken on 13 August 2021. Full reasons are set out in that document. In that decision, the respondent accepted that the claim was made on the basis of his membership of a particular social group, namely a victim or potential victim of “honour” crime in Iraq and that he fell within a particular social group for the purposes of the Refugee Convention. However beyond accepting his nationality and ethnicity, the respondent rejected his factual claim to have a relationship with Z or that he received subsequent threats from her family and did not accept that he would be of any adverse attention from the authorities in Iraq. It was concluded that it was not reasonably likely that he was in a relationship with Z and that he received subsequent threats from her family because the account was vague, lacking in significant detail, speculative, internally and externally inconsistent. Furthermore, it was not accepted that it was reasonably likely that the authorities in Iraq would be looking for the appellant or that an arrest warrant had been issued in his name.
12. After the respondent refused the application, the appellant contacted his father who sent the appellant the warrant for his arrest dated 7 February 2019 issued by a court in X, based on a complaint brought by Z’s family.
13. The appeal came before the FtTJ where he heard oral evidence from the appellant and considered the bundles of documentary evidence provided by each of the parties. In his decision promulgated on 15 March 2022, the FtTJ set out the country materials at paragraphs 20 – 21 of his decision and between paragraphs 23 – 25 summarised the submissions made on behalf of the respondent. This was followed at paragraphs 26 – 27 by the submissions made on behalf of the appellant. There was a skeleton argument also provided on behalf of the appellant (“ASA”).
14. The FtTJ set out his findings of fact and assessment of the evidence between paragraphs 28-44. The FtTJ’s concluded that having considered the evidence as a whole, the appellant provided a relatively detailed, consistent and plausible narrative of events, when taking into account his age, maturity and experience. The FtTJ placed weight and reliance on the appellant’s evidence for the reasons that he had given in the earlier part of his decision and that the appellant to discharged the burden of proof of having a well-founded fear of persecution for a Convention reason, namely based on his membership of a particular social group, and that for the reasons set out at paragraph 43, it would be unduly harsh for the appellant to relocate to an area outside his home region.
15. The FtTJ therefore allowed the appeal on asylum and human rights grounds (Articles 2 and 3).
The appeal before the Upper Tribunal:
16. Permission to appeal was sought on behalf of the respondent which was granted by FtTJ Robinson on 6 September 2022 stating:
“The grounds assert that the decision is inadequately reasoned. It is arguable that the Judge did not provide adequate reasons for his decision in particular with regard to the Appellant’s credibility”.
17. At the hearing, Mr Diwnycz, Senior Presenting Officer appeared on behalf of the respondent and Ms Chaudhry appeared on behalf of the appellant. Mr Diwnycz indicated that he relied upon the written grounds of challenge and did not seek to further expand on those written grounds.
18. The written grounds are summarised as follows. It is submitted that the decision of the First Tier Tribunal is inadequately reasoned and failed to resolve key conflicts.
19. Ground 1 submits that the FtTJ’s findings at paragraph 31 fail to address the respondent’s arguments at paragraph 40 of the refusal letter regarding the implausibility of being able to meet Z at her home, and evidently misunderstands that it is the actions of Z’s family, not the appellant that is inconsistent with the background evidence. The FtTJ finds that the appellant acted with the immaturity of youth which fails to address the respondent’s submissions on this point.
20. Ground 2 submits that at paragraph 35 the FtTJ rejects the respondent’s submissions regarding the alleged supporting documents, but fails to provide any reasons for so doing, other than to say the contents of the documents are consistent with his claim. At paragraphs 47-50 of the refusal letter the respondent raised several criticisms, relating to the content and the appearance of the documents, and their suspicious timings. The FtTJ makes no findings on any of those issues raised. The FtTJ simply states that there are a range of plausible explanations, but then fails to provide a single example of what it considers to be a plausible explanation.
21. Ground 3 submits that at paragraph 43 of the decision the FtTJ finds the appellant would be unable to internally relocate as he could be easily tracked down. It is submitted that the FtTJ has failed to provide a single reason as to how it concludes that the family of the would be able to track down the appellant in a different part of Iraq, taking into account the fact he left the country with no issues, and it would appear, despite the fact the appellant has allegedly offended the honour of a high ranking Peshmerga, nothing appears to have happened to his family back in Iraq.
22. Ground 4 submits that at paragraph 37 the FtTJ states that there were several grounds taken against the appellant but that they need not be repeated, and they are rejected, with again no reasons given. In the grounds, the respondent accepts that the FtTJ is not required to make a finding on each and every point raised in the refusal, but it is respectfully submitted that many of these points raised go to the core of the Appellants account. The FtTJ was not entitled to ignore those points and simply state they are rejected. The respondent relies on the decision of the Upper Tier Tribunal in Budhathoki (2014) UKUT 00341 (IAC) and that it is submitted that in this case the respondent does not understand why she has lost and for that reason the decision of the FtTJ is materially flawed.
23. Ms Chaudhry on behalf of the appellant confirmed that there was no rule 24 response but made oral submissions. She submitted that in respect of ground 1 and by reference to paragraph 31 of the FtTJ’s decision, that the appellant could not be expected to give evidence as to the actions of Z’s family members. She submitted that Counsel at the hearing had argued that the submissions made by the respondent were speculative, and this included the issue raised in ground 1.
24. As to ground 2 which referred paragraph 35 of the decision, she submitted that the FtTJ did consider the arrest warrant, which was assessed in the context of the totality of the evidence and that the FtTJ set out his finding on the document that the arrest warrant was consistent with the appellant’s narrative account of the events that had taken place. Consequently the FtTJ did give reasons for his assessment. Ms Chaudhry referred the tribunal to paragraph 7 of the FtTJ’s decision in which he referred to have taken into account “the various documents before me” fact that the FtTJ did not make reference to other documents did not mean that he did not take them into account. She submitted that the arrest warrant was properly considered by the FtTJ as it was central to the facts of the appeal and that if the arrest warrant was credible it would show that the appellant was at risk of harm on return to Iraq.
25. Ms Chaudhry submitted that when assessing paragraph 43, the FtTJ gave adequate reasons and explained why the appellant could not relocate to another area of the IKR. As the judge had set out in his decision, any attempt to relocate would give rise to a real risk of discovery by Z’s family therefore be at risk of harm on relocation. She submitted that the evidence had been considered by the FtTJ at paragraph 43.
26. As regards the challenge brought against paragraph 37, Ms Chaudhry submitted that the FtTJ referred to the issues raised by the respondent and in particular dealt with the section 8 issue at paragraph 37 of his decision. She submitted that it was clear that the FtTJ had considered the overall credibility of the appellant and made findings on the key points. His assessment of the evidence was open to him. As to specific matters raised in the decision letter, Ms Chaudhry referred to paragraph 43 suggesting that the appellant’s account had been vague and lacked detail. However, the FtTJ referred to the later evidence produced on behalf of the appellant including his witness statements where the appellant gave further details that referred to the attacks made upon him by Z’s brother and set out further evidence addressing the alleged vagueness set out in the decision letter. Ms Chaudhry referred to the witness statement dated 24/1/19 and paragraph 17 to 18. She submitted that overall the FtTJ had given adequate reasons for his decision to allow the appeal and that the grounds did not demonstrate any material error of law in that decision.
27. The written grounds are based on the adequacy of the reasoning of the FtTJ. In this respect there should be an acknowledgement of the need for appropriate restraint before interfering with a decision of the First-tier Tribunal, bearing in mind its task as primary fact-finder on the evidence before it, allocator of weight to relevant factors, and overall evaluator within the applicable legal framework. Decisions are to be read sensibly and holistically, perfection might be an aspiration, but is clearly not a necessity, and there is no requirement for reasons for reasons.
28. The grounds cite the decision in Budhathoki [2014] UKUT 341. The following was said at paragraph 14:
“14. We are not for a moment suggesting that judgments have to set out the entire interstices of the evidence presented or analyse every nuance between the parties. Far from it. Indeed, we should make it clear that it is generally unnecessary, unhelpful and unhealthy for First-tier Tribunal judgments to seek to rehearse every detail or issue raised in the case. This leads to judgments becoming overly long and confused. Further, it is not a proportionate approach to deciding cases. It is, however, necessary for First-tier Tribunal judges to identify and resolve the key conflicts in the evidence and explaining clear and brief terms their reasons for preferring one case to the other so that the parties can understand why they have won or lost.”
29. Having considered the grounds of challenge and applying the above propositions, for the reasons set out below, the grounds do not demonstrate that the FtTJ failed to give adequate reasons for his decision or failed to resolve key conflicts in his decision.
30. The factual basis of the appellant’s claim was that he was at risk of serious harm or persecution as a potential victim of an honour crime in Iraq which had arisen as a result of his relationship with the young, unmarried woman in Iraq and that it became known to her family and that he had been threatened by her brothers as had Z and he had left Iraq in fear of further harm arising from this. Z’s father was described as a high-ranking member of the Peshmerga and that an arrest warrant had been filed against the appellant referring to him having kidnapped and groomed Z.
31. When undertaking an assessment of the credibility of the appellant’s claim, the FtTJ set out a brief overview and summary of the background evidence between paragraphs 20 – 22. At paragraph 22 the FtTJ specifically dealt with the prevalence of honour crimes in the IKR where “such acts are common” but importantly that it was not confined to women but also men could be victims, that male offenders would be at risk and that the appellant’s home area reportedly showed that offenders of family honour would be “at high risk of being killed”. The grounds do not seek to challenge that summary or overview taken from the reports that were before the FtTJ including the expert report provided on behalf of the appellant.
32. The key issue that the FtTJ was required to resolve related to the credibility of the appellant’s account taking into account the evidence including the oral evidence that was before tribunal and to make findings of fact and his analysis of that evidence. Following this, the FtTJ was required to consider the issue of risk in the appellant’s home area and if at risk, whether it would be unduly harsh or unreasonable for him to relocate to another area of Iraq.
33. Contrary to the written grounds, a careful reading of the decision demonstrates that the FtTJ did resolve those key issues in his decision. In addressing the issue of general credibility, it was not in dispute that at the time of the events in Iraq the appellant was a minor and the FtTJ was entitled to take that into account when assessing the credibility of his account. The FtTJ stated at paragraph 28; “in the circumstances, I have paid particular attention to the issue of the appellant’s age and its potential bearing on the account of events that occurred at that time, given his lack of maturity and lack of experience.”
34. Whilst the grounds seek to challenge paragraph 37, the FtTJ did address in his decision the issues of credibility raised by the respondent set out in the decision letter. At paragraph 30, the FtTJ expressly referred to the challenge made to the appellant’s account as one “being vague” in a number of respects, such as events at school and threats he received. This was set out in the decision letter at paragraphs 30 and 31. However the FtTJ expressly considered that submission and gave reasons at paragraph 29 of his decision. The FtTJ found from the evidence that following his interview the appellant had provided additional evidence on these issues and also had given oral evidence. The FtTJ concluded at paragraph 29 that the further evidence given amounted to a “sufficiently detailed account of the matters. I do not find that the appellant’s credibility is undermined by the level of detail that he provided when looking at the evidence as a whole.” As Ms Chaudhry submitted, it was open to the FtTJ to find that the appellant had given a sufficiently clear and detailed account both in the written evidence which detailed the relationship with Z at school and the threats received. The FtTJ also had the advantage of hearing the appellant gave oral evidence, which the judge referred to and for that to be the subject of cross-examination during the hearing. I note that the respondent’s review completed for the hearing noted that matters of credibility were to be addressed in cross examination. The grounds do not seek to identify any responses from the oral evidence and cross-examination which could be said to undermine the factual finding of the FtTJ that the appellant had given a sufficiently detailed account of his relationship with Z, how it was conducted and the threats that were made to him by family members. In fact the decision letter at paragraph 28 accepted that the appellant’s account as to how we met Z and how the relationship started was considered “reasonably detailed considering you were a minor”.
35. The appellant’s evidence concerning the threats made was also consistent with the FtTJ’s summary of the background evidence at paragraph 22 and taken from paragraph 29 of the expert report where it recorded that honour-based violence had been carried out by uncles, fathers, brothers, husbands and other males and it was plausible that the appellant was threatened by Z’s brother (and see submissions by Counsel for the appellant recorded at paragraph 27).
36. The grounds do not challenge paragraph 30 of the FtTJ’s decision where he addressed a further issue raised by the respondent as to the credibility of the appellant’s account set out in the decision letter at paragraph 34 – 36. This referred to the lack of action taken by the appellant’s father. The FtTJ expressly considered that and gave reasons for rejecting the submission and did so by reference the background material. The FtTJ concluded that the material “set out a variety of ways in which disputes may be resolved but also that such disputes may not be satisfactorily resolved”. The FtTJ was entitled to accept the appellant’s evidence that his father had not sought to negotiate with the family of Z and to reject this as a matter which undermined the credibility of his account.
37. Whilst the grounds challenge paragraph 31, the FtTJ gave adequate reasons as to why he rejected the submission that it was not reasonably likely that Z would be at home alone when he visited. The appellant’s evidence contained in the witness statement which the FtTJ had earlier found to be a detailed account, set out that the family “would never have imagined I would have come to the house, so were not worried she was alone”. It was open to the FtTJ to accept that evidence. Furthermore, I accept the submission made by Ms Chaudhry that the appellant could not be expected to give any further evidence of the actions of Z’s family members and that such evidence would be of a speculative nature. This was a submission made on behalf of the appellant at the hearing as recorded at paragraph 27.
38. The FtTJ also gave reasons as to why he found the appellant’s account to be credible by assessing the acceptable level of risk through the lens of the appellant’s age and characteristics. The FtTJ referred to the appellant as “immature” and was entitled to make his assessment on the evidence “that in these circumstances, I find it reasonably likely that the appellant, as a teenager with limited worldly life experience and potential tendency to engage in risky behaviour, would not appreciate the true extent of the risk involved in such behaviour and, to the extent that he perceived that there was some degree of risk, that he would be willing to face such risk.” That was a finding entirely open to the FtTJ who had the advantage of seeing and hearing the evidence given by the appellant which had been challenged in cross-examination.
39. The grounds seek to challenge paragraph 35 where the FtTJ considered the arrest warrant provided. The respondent’s grounds assert that the FtTJ rejected the respondent’s submission and made no findings on the issues raised.
40. The challenge in this respect needs to be viewed in the light of not only paragraph 35 but also paragraphs 32 and 34 and the chronology of the case. Firstly the FtTJ addressed the submission made in the decision letter at paragraph 52. In his decision at paragraph 32, the FtTJ rejected the respondent’s submission that the appellant’s ability to leave Iraq on his passport showed that he was not adverse interest to the authorities. The FtTJ set out his reasoning in 2 parts; firstly, the respondent did not identify the evidence upon which such a submission could be founded and there was no evidence before the tribunal to show the extent to which the authorities would be likely to intervene. Secondly at paragraph 33, the judge found that the evidence before him was that the authorities did not formally register an interest in the appellant until the arrest warrant was issued in February 2019 which was after he had left Iraq.
41. Whilst the written grounds referred to the FtTJ rejecting the respondent’s submission regarding the “alleged supporting documents”, the FtTJ was addressing the key evidence of the arrest warrant. At paragraph 7 of his decision the FtTJ recorded that he had taken into account the various documents in arriving at his decision. He was not required to set out every piece of evidence, and the key document was the arrest warrant. In addressing that evidence the FtTJ set out the respondent’s submissions on this point at paragraph 34, that the document undermined the credibility of the account because it was not obtained until after the decision and because it was obtained from his family with whom he claimed he had no other contact since being in United Kingdom. Having identified the issues of contact with his family and the timing of the arrest warrant, the judge went on to address those submissions are paragraph 35. The FtTJ made a finding of fact that the appellant had put forward a satisfactory explanation for not contacting his family- that he did not wish, as far as possible to put his family at risk. And secondly, having considered the credibility of the warrant to be assessed within the context of the totality of the evidence, he found that the issues relating to the warrant were consistent with the appellant’s narrative account of events. The FtTJ at paragraph 35 was stating that the assessment of the arrest warrant should be viewed in the context of all of the evidence and that the contents of the document, which referred to the appellant being sought for “kidnapping and grooming” was consistent with the appellant’s account of events.
42. The FtTJ addressed the 2nd issue raised on behalf the respondent but found on the evidence that he should “attach little significant to the passage of time between the events giving rise to the warrant and the issue of the warrant. That is because there is a range of plausible explanations for such matters, the details of which may reasonably be beyond the knowledge of the appellant.” Consequently the FtTJ did address the key document in issue which was the arrest warrant issued. As Ms Chaudhry submitted, this was the central document relied upon by the appellant to demonstrate risk on return rather than the newspaper online articles and there is no error of law demonstrated in the way the FtTJ addressed this key document.
43. Consequently the FT TJ gave adequate and sustainable evidence-based reasons for accepting the appellant’s account of events in Iraq which he stated that he had found to be “detailed, consistent and plausible narrative of events” when taking into account the appellant’s age, maturity and experience (see paragraph 38). Those were findings of fact which were open to the FtTJ to make having had the advantage of hearing all of the evidence presented.
44. Having made those findings of fact, the FtTJ addressed risk on return at paragraph 42 where he considered that in light of the factual matrix and in the light of the background evidence set out in the expert report which he found to be in broad terms restated much of what was set out in the background reports, that the appellant faced a real risk of serious harm on the basis that he had committed an honour crime in Iraq and that he would not therefore be able to return to his home area. Whilst that assessment of risk is not challenged (other than the factual account which is set out above), the grounds seek to challenge paragraph 43 where the FtTJ set out his analysis of internal relocation. It is submitted that the FtTJ failed to provide any reason as to how Z’s family could track the appellant to another area in Iraq.
45. There is no merit in that ground. The FtTJ gave a number evidence-based reasons as to why it would be unduly harsh or unreasonable for the appellant to relocate to another part of Iraq. The FtTJ properly considered the issue in the light of the personal characteristics and circumstances of the appellant as a single young man who had recently achieved his majority and that given the circumstances in the IKR and the cultural norms that prevailed, he could not reasonably be expected to live independently without the support of his family. It was open to the FtTJ to consider the appellant as a single young man with no family support or sponsor, with no knowledge of the area and with no significant employment history and that in such circumstances relocation would be unduly harsh. On the factual account accepted by the FtTJ, the profile of Z’s father was a high-ranking member of the peshmerga. In interview reference was made by the appellant to the online newspaper report which the interpreter provided an interpretation as “Ra’ed” which means “Major” (see question 159). The FtTJ also accepted that weight and reliance could be placed on the arrest warrant issued noting its contents of charges of kidnapping and grooming based on the claims made by Z’s family. Against that background, it was open to find that any attempt to relocate with the assistance of his family would give rise to a real risk of discovery which would place him at risk of harm.
46. In conclusion and when properly analysed, the grounds of challenge are not made out and amount to no more than a disagreement with the decision. When addressing the issue of adequacy of reasons, in MD (Turkey) v SSHD [2017] EWCA Civ 1958 the Court of Appeal confirmed that adequacy meant no more nor less than that. It was not a counsel of perfection. Still less should it provide an opportunity to undertake a qualitative assessment of the reasons to see if they are wanting, perhaps even surprising, on their merits. The purpose of the duty to give reasons, is in part, to enable the losing party to know why he or she has lost, and it is also to enable an appellate court or tribunal to see what the reasons for the decision are so that they can be examined in case there has been an error of approach. Having considered the decision reached, the FtTJ was required to consider the evidence that was before the First-tier Tribunal as a whole, and he plainly did so, giving adequate reasons for his decision. The findings and conclusions reached by the FtTJ are neither irrational nor unreasonable.
47. The constraints to which appellate tribunals and courts are subject in relation to appeals against findings of fact were recently (re)summarised by the Court of Appeal in Volpi v Volpi [2022] EWCA Civ 464 in these terms, per Lewison LJ:
"2. The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled:
i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
ii) The adverb 'plainly' does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract."
48. With those propositions in mind, the decision reached by the FtTJ was one that was reasonably open to him on the evidence before him and he gave adequate and sustainable evidence-based reasons for his decision. Consequently the respondent has not established that the FtTJ’s decision involved the making of an error on a point of law, therefore the decision shall stand.
Notice of Decision:
The decision of the First-tier Tribunal did not involve the making of an error on a point of law; the decision shall stand.

Upper Tribunal Judge Reeds

Upper Tribunal Judge Reeds

23 March 2023