JR-2024-LON-002778
- Case title:
- Appellant name:
- Status of case: Unreported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country:
- Judges:
The decision
JR-2024-LON-002778
In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review
In the matter of an application for Judicial Review
The King on the application of
Serwan Jamal Mohammad
Applicant
and
Secretary of State for the Home Department
Respondent
FINAL ORDER
BEFORE Upper Tribunal Judge Norton-Taylor
HAVING considered all documents lodged and having heard Mr D Jones and Ms G Rea of counsel, instructed by Bhatt Murphy Solicitors, for the applicant and Mr T Tabori of counsel, instructed by GLD, for the respondent at a hearing on 27 February 2026
IT IS ORDERED THAT:
(1) The application for judicial review is granted.
(2) The respondent’s decision of 9 March 2023 in respect to the applicant is quashed and must be reconsidered.
(3) Within 3 weeks of this order, the applicant shall send the respondent any further submissions and information on which they wish to rely including in relation to the application to him of AH, AK and AJ (Identity documentation; returns to the KRI) Iraq CG [2026] UKUT 00150 (IAC). Within 3 months of receipt of those submissions, the respondent shall issue the applicant with a reconsidered decision on whether the applicant would be at risk of Article 3 ECHR ill-treatment by virtue of being forcibly returned to Iraq.
(4) The respondent shall pay 90% of the applicant’s reasonable costs, subject to detailed assessment if not agreed.
(5) There shall be detailed assessment of the applicant’s publicly funded costs.
(6) No application for permission to appeal having been made, such permission is nonetheless refused.
Signed: H. Norton-Taylor
Upper Tribunal Judge Norton-Taylor
Dated: 15 May 2026
The date on which this order was sent is given below
For completion by the Upper Tribunal Immigration and Asylum Chamber
Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 28/05/2026
Solicitors:
Ref No.
Home Office Ref:
Notification of appeal rights
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).
Case No: JR-2024-LON-002778
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
15 May 2026
Before:
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
- - - - - - - - - - - - - - - - - - - -
Between:
THE KING
on the application of
SERWAN JAMAL MOHAMMAD
Applicant
- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- - - - - - - - - - - - - - - - - - - -
Mr D Jones
Ms G Rea
(instructed by Bhatt Murphy Solicitors), for the applicant
Mr T Tabori
(instructed by the Government Legal Department) for the respondent
Hearing date: 27 February 2026
- - - - - - - - - - - - - - - - - - - -
O P E N J U D G M E N T
- - - - - - - - - - - - - - - - - - - -
Judge Norton-Taylor:
Introduction
1. This the open judgment in this case. Given the sensitive nature of evidence relied on by the respondent, I have concluded that it is appropriate to provide both open and closed judgments. The ordinary principle of open justice is, on the very particular facts of this case, outweighed by the need for confidential evidence to be adduced and considered by the Upper Tribunal.
2. This application for judicial review concerns a challenge to two decisions of the respondent, dated 9 March 2023 (“Decision 1”) and 6 June 2023 (“Decision 2”), rejecting further submissions made by the applicant on the basis that they did not constitute a fresh claim under paragraph 353 of the Immigration Rules (“the Rules”).
3. Decision 1 relates to (a) the applicant’s contention that he would be at risk of Article 3 ECHR ill-treatment by virtue of being forcibly returned as an undocumented individual to Baghdad, from where he would be expected to travel up to the Kurdish Region of Iraq (“KRI” - previously referred to as the Iraqi Kurdish Region or IKR) and (b) his contention that he would be at risk of an “honour crime” as result of his relationship with and subsequent marriage to a former resident of KRI, SH, against the wishes of her family.
4. Decision 2 supplements Decision 1 in respect of (b), above.
Factual background
5. There is a particularly lengthy immigration history in this case, running to no less than six pages. I have attempted to distil this down to the most salient events relating specifically to the applicant’s movements and interactions with the respondent.
6. The applicant was born in 1986 in Halabja, Sulaymaniyah, in KRI. He first came to the United Kingdom in November 2006 and claimed asylum using a false identity and claiming to be Iranian. Between 2006 and June 2015, the applicant accrued seven convictions for a variety of offences including sexual assault, driving whilst uninsured and disqualified, threatening behaviour, and supplying Class A drugs. The last conviction resulted in a sentence of four years’ imprisonment.
7. During this period, the applicant revealed his true identity and nationality to the respondent. In late 2014/early 2015, deportation action was instigated, with a deportation order signed on 19 February 2015. On 9 June 2015, the applicant voluntarily returned to Erbil in KRI. He then left and made his way back to the United Kingdom, arriving on 10 March 2016. In October of that year, he claimed asylum on the basis that he was at risk because of his father’s death. That claim was refused and the subsequent appeal dismissed in 2017. During that year two sets of further submissions were put to the respondent, both being rejected.
8. On 14 September 2017, the applicant again voluntarily returned to Erbil. Again he left and eventually got to France in 2019. In 2020, the applicant returned for a third time to KRI.
9. In September 2021, the applicant and SH left KRI and went to Turkey, where they married. They both travelled across Europe, but at some point became separated. On 17 June 2022, the applicant arrived in this country for the third and final time. He purported to claim asylum on arrival. This was in fact treated as the provision of further submissions and considered under paragraph 353 of the Rules. These were rejected by virtue of Decision 1. Later in March 2023, SH, who remained in mainland Europe, gave birth to the couple’s son. SH and their son remain abroad.
10. The respondent sought confirmation of the applicant’s identity and prior residence from the KRI authorities. This was established in April 2023, after Decision 1 was made.
11. On 3 May 2023, this application for judicial review was made in the Administrative Court, challenging Decision 1 as well as the lawfulness of the applicant’s immigration detention. Less than a month later, the applicant made further submissions based on his relationship with SH. Decision 2 followed. The applicant was released from immigration detention on 23 June 2023.
12. On 17 April 2024, permission was granted by Mr Richard Clayton, KC, sitting as a Deputy High Court Judge. He agreed to the establishment of a confidentiality ring in light of sensitive materials been relied on by the respondent. He also agreed that the appropriate forum for the substantive hearing was the Upper Tribunal and a transfer was ordered.
13. The case was then case managed by the Upper Tribunal’s Lawyers and a substantive hearing date fixed for 28 October 2025. That hearing had to be adjourned for entirely appropriate reasons which need not be set out here.
14. And so the case eventually came before me.
The law on fresh claims
15. Paragraph 353 of the Rules provides as follows:
353. When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. This paragraph does not apply to claims made overseas.
16. There are numerous authorities on the application of paragraph 353. For the purposes of this judgment, I need only refer to three. The leading case remains WN (DRC) v SSHD [2006] EWCA Civ 1495; [2007] Imm AR 337, in which at [7], Buxton LJ stated that:
“7. The rule only imposes a somewhat modest test that the application has to meet before it becomes a fresh claim. First, the question is whether there is a realistic prospect of success in an application before an adjudicator, but no more than that. Second, as Mr Nichol QC pertinently pointed out, the adjudicator himself does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return.”
17. The second is ZT (Kosovo) v SSHD [2009] 1 WLR 348. At [20], Lord Phillips stated his view as to the relationship between certification under section 94 of the Nationality, Immigration and Asylum Act 2002 (where a claim is deemed to be “clearly unfounded” or “bound to fail”) and paragraph 353 of the Rules (the “realistic prospect of success” threshold):
“It is possible that the Secretary of State does not treat “no realistic prospect of success” as constituting a test that is quite so extreme as “clearly unfounded”, so that her decision-takers are applying a somewhat less generous approach to a claimant when considering further submissions if the claimant has no in-country appeal pending because such appeal has been rejected or never pursued that the approach that they apply where the claimant’s original claim has been certified under section 94. If so, I considered this difference of approach to be unjustified and undesirable. If further submissions advance a sufficiently strong case to justify an in-country right of appeal in the one case I cannot see why they should not do so in the other. In short, I consider that the Secretary of State should apply the rule 353 procedure in respect of cases that have been certified under section 94 and should, in all cases, treat a claim as having a realistic prospect of success unless it is clearly unfounded.”
18. The third case is AK (Sri Lanka) v SSHD [2010] 1 WLR 855, in which at [34] and having considered ZT (Kosovo), Laws LJ concluded that there was a difference, albeit negligible, between certification and paragraph 353:
“34. I do not consider, with great deference, that the reasoning in ZT’s case is of great assistance in setting the bar, as it were, for the impact of the “realistic prospect of success” test in rule 353. For what it is worth I should have thought that there is a difference, but a very narrow one, between the two tests: so narrow that its practical significance is invisible. A case which is clearly unfounded is one with no prospect of success. A case which has no realistic prospect of success is not quite in that category; it is a case with no more than a fanciful prospect of success. “Realistic prospect of success” means only more than a fanciful such prospect. Miss Giovanetti accepted this interpretation.”
19. Beyond the appropriate threshold to be met, I have also directed myself to the following principles. Paragraph 353 cases do not involve precedent fact. I am not reaching my own conclusion on whether the applicant’s further submissions stood a realistic prospect of success before a hypothetical First-tier Tribunal Judge. Rather, I am concerned with whether the respondent’s conclusion that they did not was rationally open to her.
The parties’ submissions
20. My consideration of the issues has subsumed the respective arguments put forward by Mr Jones, Ms Rea and Mr Tabori.
21. By way of outline, the submissions were as follows. Mr Jones argued that Decision 1 was irrational because it had not addressed the important issue of the proposed route of return. None of the evidence now relied on by the respondent had been put forward as part of that decision. The respondent’s case depended on ex post facto justification.
22. Ms Rea submitted that Decisions 1 and 2 were irrational because the respondent had failed to properly consider the applicant’s assertion that he would be at risk as a target of an “honour crime”, having regard to what he had said and the country information.
23. Mr Tabori submitted that the evidence now relied on was strong and sufficient to have justified a departure from the extant country guidance decisions on Iraq. He submitted that the applicant would have been removed directly to KRI, thereby obviating any risk of Article 3 ill-treatment which might otherwise arise if he had to travel to that territory via Baghdad.
Issue 1: The destination of return
24. The first issue involved a good deal of material and detailed submissions made thereon. I have taken all of this into account before reaching my conclusions.
25. It is undoubtedly the case that in Iraqi protection claims the proposed destination of return is a highly relevant consideration when assessing whether an individual will be at risk of Article 3 ill-treatment. That is essentially because of what is commonly referred to as the documentation issue and the part it plays in an individual’s ability to obtain entry into KRI without being exposed to a real risk of coming to harm of one sort or another.
26. At the time of Decision 1 and Decision 2, the extant country guidance decision dealing with these matters was SMO and KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 00110 (IAC), which replaced all existing country guidance on Iraq. The following passages from the judicial headnote (which contains the guidance set out in the body of the decision) are relevant to the present case:
“B. DOCUMENTATION AND FEASIBILITY OF RETURN (EXCLUDING IKR)
7. Return of former residents of the Iraqi Kurdish Region (IKR) will be to the IKR and all other Iraqis will be to Baghdad. The Iraqi authorities will allow an Iraqi national (P) in the United Kingdom to enter Iraq only if P is in possession of a current or expired Iraqi passport relating to P, or a Laissez Passer.
…
C. CIVIL STATUS IDENTITY DOCUMENTATION
11. The CSID is being replaced with a new biometric Iraqi National Identity Card – the INID. As a general matter, it is necessary for an individual to have one of these two documents in order to live and travel within Iraq without encountering treatment or conditions which are contrary to Article 3 ECHR. Many of the checkpoints in the country are manned by Shia militia who are not controlled by the GOI and are unlikely to permit an individual without a CSID or an INID to pass.
12. In order to obtain an INID, an individual must personally attend the Civil Status Affairs (“CSA”) office at which they are registered to enrol their biometrics, including fingerprints and iris scans. The CSA offices in which INID terminals have been installed are unlikely – as a result of the phased replacement of the CSID system – to issue a CSID, whether to an individual in person or to a proxy. The reducing number of CSA offices in which INID terminals have not been installed will continue to issue CSIDs to individuals and their proxies upon production of the necessary information.
13. Notwithstanding the phased transition to the INID within Iraq, replacement CSIDs remain available through Iraqi Consular facilities but only for those Iraqi nationals who are registered at a CSA office which has not transferred to the digital INID system. Where an appellant is able to provide the Secretary of State with the details of the specific CSA office at which he is registered, the Secretary of State is prepared to make enquiries with the Iraqi authorities in order to ascertain whether the CSA office in question has transferred to the INID system.
14. Whether an individual will be able to obtain a replacement CSID whilst in the UK also depends on the documents available and, critically, the availability of the volume and page reference of the entry in the Family Book in Iraq, which system continues to underpin the Civil Status Identity process. Given the importance of that information, some Iraqi citizens are likely to recall it. Others are not. Whether an individual is likely to recall that information is a question of fact, to be considered against the factual matrix of the individual case and taking account of the background evidence. The Family Book details may also be obtained from family members, although it is necessary to consider whether such relatives are on the father’s or the mother’s side because the registration system is patrilineal.
15. Once in Iraq, it remains the case that an individual is expected to attend their local CSA office in order to obtain a replacement document. All CSA offices have now re-opened, although the extent to which records have been destroyed by the conflict with ISIL is unclear, and is likely to vary significantly depending on the extent and intensity of the conflict in the area in question.
16. An individual returnee who is not from Baghdad is not likely to be able to obtain a replacement document there, and certainly not within a reasonable time. Neither the Central Archive nor the assistance facilities for IDPs are likely to render documentation assistance to an undocumented returnee.
17. A valid Iraqi passport is not recognised as acceptable proof of identity for internal travel by land.
18. Laissez Passers are confiscated on arrival and will not, for that reason, assist a returnee who seeks to travel from Baghdad to the IKR by air without a passport, INID or CSID. The Laissez Passer is not a recognised identity document for the purpose of internal travel by land.
19. There is insufficient evidence to demonstrate the existence or utility of the ‘certification letter’ or ‘supporting letter’ which is said to be issued to undocumented returnees by the authorities at Baghdad International Airport.
….
D. INTERNAL RELOCATION WITHIN GOI-CONTROLLED IRAQ
23. Where internal relocation is raised in the Iraqi context, it is necessary to consider not only the safety and reasonableness of relocation but also the feasibility of that course, in light of sponsorship and residency requirements in operation in various parts of the country. Individuals who seek to relocate within the country may not be admitted to a potential safe haven or may not be permitted to remain there.
…
E. IRAQI KURDISH REGION
26. There are regular direct flights from the UK to the Iraqi Kurdish Region and returns might be to Baghdad or to that region. It is for the respondent to state whether she intends to remove to Baghdad, Erbil or Sulaymaniyah.
Kurds
27. For an Iraqi national returnee (P) of Kurdish origin in possession of a valid CSID or Iraqi National Identity Card (INID), the journey from Baghdad to the IKR by land is affordable and practical and can be made without a real risk of P suffering persecution, serious harm, or Article 3 ill treatment nor would any difficulties on the journey make relocation unduly harsh.
28. P is unable to board a domestic flight between Baghdad and the IKR without either a CSID, an INID or a valid passport. If P has one of those documents, the journey from Baghdad to the IKR by air is affordable and practical and can be made without a real risk of P suffering persecution, serious harm, or Article 3 ill treatment nor would any difficulties on the journey make relocation unduly harsh.
29. P will face considerable difficulty in making the journey between Baghdad and the IKR by land without a CSID or an INID. There are numerous checkpoints en route, including two checkpoints in the immediate vicinity of the airport. If P has neither a CSID nor an INID there is a real risk of P being detained at a checkpoint until such time as the security personnel are able to verify P’s identity. It is not reasonable to require P to travel between Baghdad and IKR by land absent the ability of P to verify his identity at a checkpoint. This normally requires the attendance of a male family member and production of P’s identity documents but may also be achieved by calling upon “connections” higher up in the chain of command.
30. Once at the IKR border (land or air) P would normally be granted entry to the territory. Subject to security screening, and registering presence with the local mukhtar, P would be permitted to enter and reside in the IKR with no further legal impediments or requirements. There are no sponsorship requirements for entry or residence in any of the three IKR Governorates for Kurds.
31. Whether P would be at particular risk of ill-treatment during the security screening process must be assessed on a case-by-case basis. Additional factors that may increase risk include: (i) coming from a family with a known association with ISIL, (ii) coming from an area associated with ISIL and (iii) being a single male of fighting age. P is likely to be able to evidence the fact of recent arrival from the UK, which would dispel any suggestion of having arrived directly from ISIL
territory.”
27. Three points arise from the guidance in SMO. The first relates to the question of whether the applicant had, or could have obtained, the relevant civil documentation. The applicant had asserted in his further submissions that he was undocumented. For reasons set out at [22(a)-(d)] of Decision 1, the respondent concluded that the appellant was able to obtain his original CSID, or to have obtained replacement documentation in United Kingdom or Iraq.
28. For the following reasons, the respondent’s assessment of documentation did not form the basis of a rational conclusion that there was no realistic prospect of the First-tier Tribunal reaching a contrary view.
29. First, the applicant would have faced obstacles in establishing that he was in fact undocumented and also unable to become re-documented. The respondent was rationally entitled to conclude that the applicant had probably had relevant documentation whilst last in KRI in 2021. Having said that, it could not rationally be said that it was close to inevitable that the First-tier Tribunal would have regarded such obstacles as insuperable.
30. Second, the evidence contained in the relevant CPIN indicated that, by the date of Decision 1, KRI and begun issuing Iraqi National Identity Cards (“INIDs”) instead of CSIDs. The applicant left KRI prior to the start of this process and so would not have been issued with an INID. This point was not considered by the respondent and it undermines the rationality of the conclusion on documentation.
31. Third, on the respondent’s own evidence, the applicant would not have been able to secure replacement documentation in the United Kingdom. That is because an individual can only obtain an INID by presenting themselves in person at a relevant office in their home area in order to register biometric information. The rationality of the respondent’s conclusion that the applicant would have been able to obtain replacement documentation is undermined.
32. Fourth, on the applicant’s case he married SH subsequent to his departure from KRI. Evidence contained in the respondent’s CPIN indicated that the change in civil status would have required the applicant to obtain a new (or amended) document, whether that was a CSID or an INID. Again, this point was not addressed by the respondent and it undermines the rationality of the respondent’s conclusion on documentation.
33. Fifth, Decision 1 does not suggest that the applicant could seek to obtain relevant documentation in Baghdad. In any event, that would not have been feasible, in light of the INID system and what I have said previously.
34. The second point relates to [26] of the judicial headnote of SMO and whether in light of the guidance alone the applicant could have been removed on a direct flight to KRI. That aspect of the guidance was seemingly based on the acknowledged basis that at the time KRI only accepted voluntary returns directly to its territory. This position was at least tacitly accepted by the respondent in SMO (see [47]). It was then expressly confirmed in SA (removal destination; Iraq; undertakings) Iraq [2022] UKUT 00037 (IAC), at [38]-[40]. Thus, the respondent could not rationally have concluded that there was no realistic prospect of the First-tier Tribunal concluding that an enforced removal direct to KRI was not feasible.
35. The third point relates to the proposed route of return. Under the heading “Removal”, [64] of Decision 1 states that the applicant was “liable to enforced removal to Iraq (Abril [Ebril], Baghdad, Basra, Najaf, Sulaimaniyah).” I agree with the applicant’s submission that this ‘menu’ of possible points of return is problematic. The decision in SA makes it clear that in Iraqi protection cases, specifying the route of an enforced return was not simply a “technical obstacle”, but an important element in the assessment of risk: [39]. That is because of the importance of documentation for the safety of travelling from Baghdad to KRI (that route then being the only feasible option for enforced returns). SA goes on to reject the efficacy of undertakings given by the respondent as to future possibilities: [52]. In the present case, Decision 1 failed to specify a route of return, instead relying on various possibilities. It is of note that one of these included Baghdad. The failure to have approached the applicant’s further submissions in accordance with relevant authorities on this particular issue, combined with the substance of the country guidance at the time, goes to undermine the rationality of the conclusion that there was no realistic prospect of the First-tier Tribunal approaching a hypothetical appeal on the basis that removal would have been to Baghdad.
36. Mr Tabori sought to counter this point by suggesting that the applicant could have “called the respondent’s bluff” by urging her to set removal directions, thereby pinning her colours to the mast as it were, and challenging those directions if they specified route which was said to be unlawful. I briefly saw that as an argument with some merit to it. However, I agree with Mr Jones that it is in fact really quite unattractive. It amounted to something akin to acquiescence with potentially unlawful removal action, with any challenge left to the very last minute. I conclude that this submission does not assist the respondent.
37. I turn to the issue which, as I said at the hearing, gives this case an air of unreality. Put shortly, the respondent’s defence to the applicant’s challenge is based entirely on evidence and/or a position which was either in existence at the time of Decision 1 or Decision 2 but was not alluded to in any way, or post-dates those decisions. In my judgment, this presents difficulties for the respondent.
38. Not least of these difficulties is the overarching sense that the respondent is in effect asserting that, whatever was and was not said in the decisions, there was other undisclosed evidence which was fatal to the realistic prospects of the applicant succeeding in a hypothetical appeal. To my mind, that is not indicative of rational decision-making.
39. Decision 1 makes no reference to a stated intention to return the applicant directly to KRI, such that there was no question of him having to get to that territory via Baghdad. As I have already said, the proposed route of return was at the time a relevant aspect of Iraqi protection claims.
40. Decision 1 does not begin to suggest that there was evidence on routes of return which would have been sufficient for a hypothetical First-tier Tribunal Judge to depart from the extant country guidance, such that there was no realistic prospect of the appellant’s further submissions succeeding on appeal in light of that guidance. The evidential threshold for such a departure is high (very strong reasons based on cogent evidence) and the realistic prospect of success threshold is low (more than a fanciful prospect of success). In fact, SMO is referred to in the decision without any indication that the country evidence changed to a significant extent.
41. Decision 1 makes no reference to any other evidence or returns guidance relating to routes of return.
42. Decision 2 adds nothing to the issue of the route of return.
43. Insofar as the respondent’s case rests on evidence which was in existence at the time of the decisions, but was not alluded to in any respect, it is difficult to conclude that the challenged decisions were themselves rational: they do not appear to have been founded on the evidence now relied on.
44. As regards the respondent’s reliance on the contents of her 6 April 2023 response to the applicant’s pre-action protocol letter, I treat this with caution in that it relies on matters not referred to in either of the decisions.
45. In respect of the evidence post-dating the decisions, it self-evidently suffers from the problem that it seeks to justify the challenged decisions after the event.
46. The respondent did not produce a further supplementary decision specifically addressing the route of return issue.
47. What then would the hypothetical First-tier Tribunal Judge have made of all of this? In the first place, the realistic prospect of success test relates to the further submissions put forward by an individual. Second, the subjective element of those submissions (i.e. the applicant’s assertions) would have been assessed against country evidence and, importantly, country guidance decisions. Third, the judge would not have been aware of the evidence now relied on by the respondent and it is difficult to see how the latter can rationally say that an appeal would be almost bound to fail as result of the unknown material. During the course of submissions, Mr Tabori suggested that relevant materials could have been disclosed in confidence during the appellate proceedings. Perhaps that is so, but it is in my view a weak argument. It is tantamount to the respondent in effect saying, ‘ignore what we have said in our decisions rejecting the applicant’s further submissions and look instead at this other evidence which we now adduce’. The argument overlooks the fact that fresh claim cases, much like certification cases, are (a) time-fixed to the date of decision(s) and (b) relate to the material being considered by the decision-maker, who themselves must have regard to what the hypothetical First-tier Tribunal Judge would make of it.
48. One can foresee the respondent’s objection if the same argument was adopted by the applicant. It would not be good enough for him to simply say ‘here are my bare assertions which constitute a fresh claim and I will provide further and better evidence in the run-up to my appeal’.
49. Both parties relied on unreported decisions of the Upper Tribunal in respect of appeals concerning Iraqi nationals originating from KRI. Permission was granted for such reliance. These decisions do not offer any real support for the respondent’s case. Being unreported, they could not have had any significant impact on the outcome of a hypothetical appeal to the First-tier Tribunal. Beyond that, I agree with Mr Jones to the extent that they represented a ‘mixed bag’: some support the respondent’s contention that individuals could be forcibly returned directly to KRI, others do not. In some, the respondent had taken the express position that removal would be direct to KRI and nowhere else. In one (AHA), the judge was not satisfied that evidence contained in a CPIN from October 2023 came close to justifying a departure from SMO. If anything, the unreported cases are indicative of a realistic prospect of arguments relied on by the applicant succeeding on appeal.
50. Bringing all of the above together, I find that the respondent’s conclusion set out in Decision 1 in respect of Issue 1 is irrational. It was irrational for her to conclude that there was no realistic prospect of a First-tier Tribunal Judge deciding that the applicant would have been removed via Baghdad as an undocumented returnee and therefore at risk of Article 3 ill-treatment.
51. On that basis, it follows that the applicant’s challenge succeeds.
Section 31(2) of the Senior Courts Act 1981
52. Section 31(2A) of the Senior Courts Act 1981 provides as follows:
The High Court –
(a) must refuse to grant relief on an application for judicial review…
if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.
53. This is given effect in relation to the Upper Tribunal’s judicial review work by virtue of section 15(5)-(5A) of the Tribunals, Courts and Enforcement Act 2007.
54. Relief in judicial review cases is of course discretionary, even if a claim succeeds.
55. I am, if appropriate, entitled to consider section 31(2A) of my own volition.
56. For the following reasons, I conclude that I should not apply this provision in the present case.
57. First, I should exercise real caution before applying this provision: see, for example, the recent analysis of authorities in R(Hippolyte) v SSHD [2025] EWCA Civ 1493, [70]-[74].
58. Second, the respondent has not relied on it.
59. Third, there is no evidence before me as to why the challenged decisions failed to expressly state that the applicant would be removed directly to KRI, as opposed to setting out a range of possible destinations. I reiterate the absence of any supplementary decision addressing the route of return issue.
60. Fourth, there is the additional failing in the challenged decisions to address whether any evidence which might have been relied on by the respondent could have satisfied the demanding test for departing from extant country guidance.
61. Fifth, having regard to the evidence now relied on by the respondent and its implications, together with the detailed submissions from Mr Jones and Mr Tabori, I am not satisfied that it is highly likely that the outcome would have been substantially the same. Whilst this I am prepared to accept that the applicant might in principle have fallen within the ambit of the core evidence now relied on by the respondent, the forensic analysis provided by Mr Jones highlights respectable arguments to the contrary, or at least in respect of the effect of that evidence as at the time of the challenged decisions.
62. Sixth, on 15 April 2026 the Upper Tribunal published the latest country guidance case on Iraq: AH, AK and AJ (Identity documentation; returns to the KRI) Iraq CG [2026] UKUT 00150 (IAC). It replaced all existing country guidance cases on Iraq. This decision is not relevant to my consideration of section 31(2A) because the provision is backward-looking. In other words, its application is based on the evidence in existence at the time of the impugned decision(s). Clearly, AH considered up-to-date evidence and its conclusions are based on the situation now. Having said that, I note that AH re-confirms that it is for the respondent to state the proposed destination: [B7] of the judicial headnote.
63. For the avoidance of doubt, I see nothing in AH which undermines my conclusions on the rationality of the respondent’s decisions as regards Issue 1.
Issue 2: Honour killing
64. I can deal with Issue 2 a good deal more briefly than Issue 1. For the reasons set out below, the respondent’s conclusion on this aspect of the applicant’s further submissions was rational and fair.
65. First, the respondent was clearly entitled to rely on the well-known Devaseelan guidelines. Indeed, the hypothetical First-tier Tribunal Judge would have been obliged to take these into account when assessing an appeal. In so doing, the respondent was rationally entitled to take account of the adverse credibility findings made by the First-tier Tribunal in 2017. There is nothing in Decision 1 to indicate that the previous findings acted as a straitjacket in respect of the respondent’s decision-making nor in relation to the assessment of what the First-tier Tribunal would have considered. In fact, [21(d)] expressly states that those previous findings were not the basis in and of themselves for rejecting this aspect of the applicant’s further submissions. They were, however, a rational basis for the respondent to have approached further submissions “with a reasonable degree of circumspection.” The First-tier Tribunal would itself have had regard to the adverse findings, albeit they could not have been determinative of either credibility or risk.
66. Second, the fact that the applicant was not represented in the 2017 appeal and was in detention at that time does not of itself render the respondent’s consideration of the adverse findings irrational.
67. Third, in Decision 2 the respondent was rationally entitled to note the absence of any substantive evidence in relation to SH and their child: [9]. Having done so, she adopted the sensible and lawful approach of “putting all that to one side, and taking this new evidence purely at face value”.
68. Fourth, in Decision 2 the respondent was rationally entitled to rely on the self-evidently poor evidence put forward by the applicant. The respondent was rationally entitled to conclude that the case put forward failed to provide explanations as to why the appellant would be at risk from SH’s family. In effect, the applicant simply put forward bare assertions.
69. Fifth, the respondent referred to country information on “honour” crimes which clearly indicated that the vast majority of victims were female, albeit that “occasionally males are also the victims of such violence.” The other references to the relevant CPIN relied on by the applicant are in truth of little assistance: 2.4.3 and 2.4.5 say nothing about men being victims, whilst 5.1.3 simply reflects what was said in Decision 1 about the possibility of male victims.
70. Sixth, the expert report of Alison Pargeter post-dates the decisions and, in any event, adds little of substance to the evidence considered by the respondent; [8.2] of the report simply states that men who transgress social norms “can be at risk”.
71. Seventh, I acknowledge that at 2.7.1 of the CPIN it is said that certification under section 94 2002 Act would usually be inappropriate. The applicant relies on this as an indication that the realistic prospect of success test is met. There is some merit in that, but I refer back to the authorities on fresh claims: a certified claim has no prospect of success, whilst paragraph 353 is predicated on there being no “realistic” prospect of success. There is a difference, albeit very narrow.
72. Eighth, the respondent’s decision-making process was not procedurally unfair. The applicant had ample opportunity to provide relevant evidence, notwithstanding the fact that he was initially placed into the asylum process usually reserved for those making an initial claim, as opposed to those relying on further submissions. The applicant had been released from immigration detention in June 2022 and was at liberty until early January 2023, when he was re-detained: this was an obvious opportunity to obtain evidence whilst he was not in detention. Beyond that, the applicant was legally represented and there was nonetheless sufficient opportunity to provide further and better evidence than that which was in fact put forward to the respondent.
Summary of conclusions
73. For the reasons set out in this judgment, the applicant succeeds in respect of Issue 1 (the route of return), but fails in respect of Issue 2 (“honour crime”).
74. The parties are invited to draft an agreed order reflecting the terms of this judgment.
Observation
75. I make a brief observation. A great deal of time and effort has gone into these proceedings. At the conclusion of my part in them, I am left wondering why at some point the respondent did not seek to issue a new decision (whether in addition to those already made, or as a complete substitute) in which a direct removal to KRI was stated, together with up-to-date supporting evidence.
76. Be that as it may, the effect of my judgment is that the respondent will need to make a fresh decision. In so doing, she will no doubt have regard to the guidance set out in AH, in addition to any other update evidence relating to direct removals to KRI.
~~~~0~~~~
In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review
In the matter of an application for Judicial Review
The King on the application of
Serwan Jamal Mohammad
Applicant
and
Secretary of State for the Home Department
Respondent
FINAL ORDER
BEFORE Upper Tribunal Judge Norton-Taylor
HAVING considered all documents lodged and having heard Mr D Jones and Ms G Rea of counsel, instructed by Bhatt Murphy Solicitors, for the applicant and Mr T Tabori of counsel, instructed by GLD, for the respondent at a hearing on 27 February 2026
IT IS ORDERED THAT:
(1) The application for judicial review is granted.
(2) The respondent’s decision of 9 March 2023 in respect to the applicant is quashed and must be reconsidered.
(3) Within 3 weeks of this order, the applicant shall send the respondent any further submissions and information on which they wish to rely including in relation to the application to him of AH, AK and AJ (Identity documentation; returns to the KRI) Iraq CG [2026] UKUT 00150 (IAC). Within 3 months of receipt of those submissions, the respondent shall issue the applicant with a reconsidered decision on whether the applicant would be at risk of Article 3 ECHR ill-treatment by virtue of being forcibly returned to Iraq.
(4) The respondent shall pay 90% of the applicant’s reasonable costs, subject to detailed assessment if not agreed.
(5) There shall be detailed assessment of the applicant’s publicly funded costs.
(6) No application for permission to appeal having been made, such permission is nonetheless refused.
Signed: H. Norton-Taylor
Upper Tribunal Judge Norton-Taylor
Dated: 15 May 2026
The date on which this order was sent is given below
For completion by the Upper Tribunal Immigration and Asylum Chamber
Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 28/05/2026
Solicitors:
Ref No.
Home Office Ref:
Notification of appeal rights
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).
Case No: JR-2024-LON-002778
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
15 May 2026
Before:
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
- - - - - - - - - - - - - - - - - - - -
Between:
THE KING
on the application of
SERWAN JAMAL MOHAMMAD
Applicant
- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- - - - - - - - - - - - - - - - - - - -
Mr D Jones
Ms G Rea
(instructed by Bhatt Murphy Solicitors), for the applicant
Mr T Tabori
(instructed by the Government Legal Department) for the respondent
Hearing date: 27 February 2026
- - - - - - - - - - - - - - - - - - - -
O P E N J U D G M E N T
- - - - - - - - - - - - - - - - - - - -
Judge Norton-Taylor:
Introduction
1. This the open judgment in this case. Given the sensitive nature of evidence relied on by the respondent, I have concluded that it is appropriate to provide both open and closed judgments. The ordinary principle of open justice is, on the very particular facts of this case, outweighed by the need for confidential evidence to be adduced and considered by the Upper Tribunal.
2. This application for judicial review concerns a challenge to two decisions of the respondent, dated 9 March 2023 (“Decision 1”) and 6 June 2023 (“Decision 2”), rejecting further submissions made by the applicant on the basis that they did not constitute a fresh claim under paragraph 353 of the Immigration Rules (“the Rules”).
3. Decision 1 relates to (a) the applicant’s contention that he would be at risk of Article 3 ECHR ill-treatment by virtue of being forcibly returned as an undocumented individual to Baghdad, from where he would be expected to travel up to the Kurdish Region of Iraq (“KRI” - previously referred to as the Iraqi Kurdish Region or IKR) and (b) his contention that he would be at risk of an “honour crime” as result of his relationship with and subsequent marriage to a former resident of KRI, SH, against the wishes of her family.
4. Decision 2 supplements Decision 1 in respect of (b), above.
Factual background
5. There is a particularly lengthy immigration history in this case, running to no less than six pages. I have attempted to distil this down to the most salient events relating specifically to the applicant’s movements and interactions with the respondent.
6. The applicant was born in 1986 in Halabja, Sulaymaniyah, in KRI. He first came to the United Kingdom in November 2006 and claimed asylum using a false identity and claiming to be Iranian. Between 2006 and June 2015, the applicant accrued seven convictions for a variety of offences including sexual assault, driving whilst uninsured and disqualified, threatening behaviour, and supplying Class A drugs. The last conviction resulted in a sentence of four years’ imprisonment.
7. During this period, the applicant revealed his true identity and nationality to the respondent. In late 2014/early 2015, deportation action was instigated, with a deportation order signed on 19 February 2015. On 9 June 2015, the applicant voluntarily returned to Erbil in KRI. He then left and made his way back to the United Kingdom, arriving on 10 March 2016. In October of that year, he claimed asylum on the basis that he was at risk because of his father’s death. That claim was refused and the subsequent appeal dismissed in 2017. During that year two sets of further submissions were put to the respondent, both being rejected.
8. On 14 September 2017, the applicant again voluntarily returned to Erbil. Again he left and eventually got to France in 2019. In 2020, the applicant returned for a third time to KRI.
9. In September 2021, the applicant and SH left KRI and went to Turkey, where they married. They both travelled across Europe, but at some point became separated. On 17 June 2022, the applicant arrived in this country for the third and final time. He purported to claim asylum on arrival. This was in fact treated as the provision of further submissions and considered under paragraph 353 of the Rules. These were rejected by virtue of Decision 1. Later in March 2023, SH, who remained in mainland Europe, gave birth to the couple’s son. SH and their son remain abroad.
10. The respondent sought confirmation of the applicant’s identity and prior residence from the KRI authorities. This was established in April 2023, after Decision 1 was made.
11. On 3 May 2023, this application for judicial review was made in the Administrative Court, challenging Decision 1 as well as the lawfulness of the applicant’s immigration detention. Less than a month later, the applicant made further submissions based on his relationship with SH. Decision 2 followed. The applicant was released from immigration detention on 23 June 2023.
12. On 17 April 2024, permission was granted by Mr Richard Clayton, KC, sitting as a Deputy High Court Judge. He agreed to the establishment of a confidentiality ring in light of sensitive materials been relied on by the respondent. He also agreed that the appropriate forum for the substantive hearing was the Upper Tribunal and a transfer was ordered.
13. The case was then case managed by the Upper Tribunal’s Lawyers and a substantive hearing date fixed for 28 October 2025. That hearing had to be adjourned for entirely appropriate reasons which need not be set out here.
14. And so the case eventually came before me.
The law on fresh claims
15. Paragraph 353 of the Rules provides as follows:
353. When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. This paragraph does not apply to claims made overseas.
16. There are numerous authorities on the application of paragraph 353. For the purposes of this judgment, I need only refer to three. The leading case remains WN (DRC) v SSHD [2006] EWCA Civ 1495; [2007] Imm AR 337, in which at [7], Buxton LJ stated that:
“7. The rule only imposes a somewhat modest test that the application has to meet before it becomes a fresh claim. First, the question is whether there is a realistic prospect of success in an application before an adjudicator, but no more than that. Second, as Mr Nichol QC pertinently pointed out, the adjudicator himself does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return.”
17. The second is ZT (Kosovo) v SSHD [2009] 1 WLR 348. At [20], Lord Phillips stated his view as to the relationship between certification under section 94 of the Nationality, Immigration and Asylum Act 2002 (where a claim is deemed to be “clearly unfounded” or “bound to fail”) and paragraph 353 of the Rules (the “realistic prospect of success” threshold):
“It is possible that the Secretary of State does not treat “no realistic prospect of success” as constituting a test that is quite so extreme as “clearly unfounded”, so that her decision-takers are applying a somewhat less generous approach to a claimant when considering further submissions if the claimant has no in-country appeal pending because such appeal has been rejected or never pursued that the approach that they apply where the claimant’s original claim has been certified under section 94. If so, I considered this difference of approach to be unjustified and undesirable. If further submissions advance a sufficiently strong case to justify an in-country right of appeal in the one case I cannot see why they should not do so in the other. In short, I consider that the Secretary of State should apply the rule 353 procedure in respect of cases that have been certified under section 94 and should, in all cases, treat a claim as having a realistic prospect of success unless it is clearly unfounded.”
18. The third case is AK (Sri Lanka) v SSHD [2010] 1 WLR 855, in which at [34] and having considered ZT (Kosovo), Laws LJ concluded that there was a difference, albeit negligible, between certification and paragraph 353:
“34. I do not consider, with great deference, that the reasoning in ZT’s case is of great assistance in setting the bar, as it were, for the impact of the “realistic prospect of success” test in rule 353. For what it is worth I should have thought that there is a difference, but a very narrow one, between the two tests: so narrow that its practical significance is invisible. A case which is clearly unfounded is one with no prospect of success. A case which has no realistic prospect of success is not quite in that category; it is a case with no more than a fanciful prospect of success. “Realistic prospect of success” means only more than a fanciful such prospect. Miss Giovanetti accepted this interpretation.”
19. Beyond the appropriate threshold to be met, I have also directed myself to the following principles. Paragraph 353 cases do not involve precedent fact. I am not reaching my own conclusion on whether the applicant’s further submissions stood a realistic prospect of success before a hypothetical First-tier Tribunal Judge. Rather, I am concerned with whether the respondent’s conclusion that they did not was rationally open to her.
The parties’ submissions
20. My consideration of the issues has subsumed the respective arguments put forward by Mr Jones, Ms Rea and Mr Tabori.
21. By way of outline, the submissions were as follows. Mr Jones argued that Decision 1 was irrational because it had not addressed the important issue of the proposed route of return. None of the evidence now relied on by the respondent had been put forward as part of that decision. The respondent’s case depended on ex post facto justification.
22. Ms Rea submitted that Decisions 1 and 2 were irrational because the respondent had failed to properly consider the applicant’s assertion that he would be at risk as a target of an “honour crime”, having regard to what he had said and the country information.
23. Mr Tabori submitted that the evidence now relied on was strong and sufficient to have justified a departure from the extant country guidance decisions on Iraq. He submitted that the applicant would have been removed directly to KRI, thereby obviating any risk of Article 3 ill-treatment which might otherwise arise if he had to travel to that territory via Baghdad.
Issue 1: The destination of return
24. The first issue involved a good deal of material and detailed submissions made thereon. I have taken all of this into account before reaching my conclusions.
25. It is undoubtedly the case that in Iraqi protection claims the proposed destination of return is a highly relevant consideration when assessing whether an individual will be at risk of Article 3 ill-treatment. That is essentially because of what is commonly referred to as the documentation issue and the part it plays in an individual’s ability to obtain entry into KRI without being exposed to a real risk of coming to harm of one sort or another.
26. At the time of Decision 1 and Decision 2, the extant country guidance decision dealing with these matters was SMO and KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 00110 (IAC), which replaced all existing country guidance on Iraq. The following passages from the judicial headnote (which contains the guidance set out in the body of the decision) are relevant to the present case:
“B. DOCUMENTATION AND FEASIBILITY OF RETURN (EXCLUDING IKR)
7. Return of former residents of the Iraqi Kurdish Region (IKR) will be to the IKR and all other Iraqis will be to Baghdad. The Iraqi authorities will allow an Iraqi national (P) in the United Kingdom to enter Iraq only if P is in possession of a current or expired Iraqi passport relating to P, or a Laissez Passer.
…
C. CIVIL STATUS IDENTITY DOCUMENTATION
11. The CSID is being replaced with a new biometric Iraqi National Identity Card – the INID. As a general matter, it is necessary for an individual to have one of these two documents in order to live and travel within Iraq without encountering treatment or conditions which are contrary to Article 3 ECHR. Many of the checkpoints in the country are manned by Shia militia who are not controlled by the GOI and are unlikely to permit an individual without a CSID or an INID to pass.
12. In order to obtain an INID, an individual must personally attend the Civil Status Affairs (“CSA”) office at which they are registered to enrol their biometrics, including fingerprints and iris scans. The CSA offices in which INID terminals have been installed are unlikely – as a result of the phased replacement of the CSID system – to issue a CSID, whether to an individual in person or to a proxy. The reducing number of CSA offices in which INID terminals have not been installed will continue to issue CSIDs to individuals and their proxies upon production of the necessary information.
13. Notwithstanding the phased transition to the INID within Iraq, replacement CSIDs remain available through Iraqi Consular facilities but only for those Iraqi nationals who are registered at a CSA office which has not transferred to the digital INID system. Where an appellant is able to provide the Secretary of State with the details of the specific CSA office at which he is registered, the Secretary of State is prepared to make enquiries with the Iraqi authorities in order to ascertain whether the CSA office in question has transferred to the INID system.
14. Whether an individual will be able to obtain a replacement CSID whilst in the UK also depends on the documents available and, critically, the availability of the volume and page reference of the entry in the Family Book in Iraq, which system continues to underpin the Civil Status Identity process. Given the importance of that information, some Iraqi citizens are likely to recall it. Others are not. Whether an individual is likely to recall that information is a question of fact, to be considered against the factual matrix of the individual case and taking account of the background evidence. The Family Book details may also be obtained from family members, although it is necessary to consider whether such relatives are on the father’s or the mother’s side because the registration system is patrilineal.
15. Once in Iraq, it remains the case that an individual is expected to attend their local CSA office in order to obtain a replacement document. All CSA offices have now re-opened, although the extent to which records have been destroyed by the conflict with ISIL is unclear, and is likely to vary significantly depending on the extent and intensity of the conflict in the area in question.
16. An individual returnee who is not from Baghdad is not likely to be able to obtain a replacement document there, and certainly not within a reasonable time. Neither the Central Archive nor the assistance facilities for IDPs are likely to render documentation assistance to an undocumented returnee.
17. A valid Iraqi passport is not recognised as acceptable proof of identity for internal travel by land.
18. Laissez Passers are confiscated on arrival and will not, for that reason, assist a returnee who seeks to travel from Baghdad to the IKR by air without a passport, INID or CSID. The Laissez Passer is not a recognised identity document for the purpose of internal travel by land.
19. There is insufficient evidence to demonstrate the existence or utility of the ‘certification letter’ or ‘supporting letter’ which is said to be issued to undocumented returnees by the authorities at Baghdad International Airport.
….
D. INTERNAL RELOCATION WITHIN GOI-CONTROLLED IRAQ
23. Where internal relocation is raised in the Iraqi context, it is necessary to consider not only the safety and reasonableness of relocation but also the feasibility of that course, in light of sponsorship and residency requirements in operation in various parts of the country. Individuals who seek to relocate within the country may not be admitted to a potential safe haven or may not be permitted to remain there.
…
E. IRAQI KURDISH REGION
26. There are regular direct flights from the UK to the Iraqi Kurdish Region and returns might be to Baghdad or to that region. It is for the respondent to state whether she intends to remove to Baghdad, Erbil or Sulaymaniyah.
Kurds
27. For an Iraqi national returnee (P) of Kurdish origin in possession of a valid CSID or Iraqi National Identity Card (INID), the journey from Baghdad to the IKR by land is affordable and practical and can be made without a real risk of P suffering persecution, serious harm, or Article 3 ill treatment nor would any difficulties on the journey make relocation unduly harsh.
28. P is unable to board a domestic flight between Baghdad and the IKR without either a CSID, an INID or a valid passport. If P has one of those documents, the journey from Baghdad to the IKR by air is affordable and practical and can be made without a real risk of P suffering persecution, serious harm, or Article 3 ill treatment nor would any difficulties on the journey make relocation unduly harsh.
29. P will face considerable difficulty in making the journey between Baghdad and the IKR by land without a CSID or an INID. There are numerous checkpoints en route, including two checkpoints in the immediate vicinity of the airport. If P has neither a CSID nor an INID there is a real risk of P being detained at a checkpoint until such time as the security personnel are able to verify P’s identity. It is not reasonable to require P to travel between Baghdad and IKR by land absent the ability of P to verify his identity at a checkpoint. This normally requires the attendance of a male family member and production of P’s identity documents but may also be achieved by calling upon “connections” higher up in the chain of command.
30. Once at the IKR border (land or air) P would normally be granted entry to the territory. Subject to security screening, and registering presence with the local mukhtar, P would be permitted to enter and reside in the IKR with no further legal impediments or requirements. There are no sponsorship requirements for entry or residence in any of the three IKR Governorates for Kurds.
31. Whether P would be at particular risk of ill-treatment during the security screening process must be assessed on a case-by-case basis. Additional factors that may increase risk include: (i) coming from a family with a known association with ISIL, (ii) coming from an area associated with ISIL and (iii) being a single male of fighting age. P is likely to be able to evidence the fact of recent arrival from the UK, which would dispel any suggestion of having arrived directly from ISIL
territory.”
27. Three points arise from the guidance in SMO. The first relates to the question of whether the applicant had, or could have obtained, the relevant civil documentation. The applicant had asserted in his further submissions that he was undocumented. For reasons set out at [22(a)-(d)] of Decision 1, the respondent concluded that the appellant was able to obtain his original CSID, or to have obtained replacement documentation in United Kingdom or Iraq.
28. For the following reasons, the respondent’s assessment of documentation did not form the basis of a rational conclusion that there was no realistic prospect of the First-tier Tribunal reaching a contrary view.
29. First, the applicant would have faced obstacles in establishing that he was in fact undocumented and also unable to become re-documented. The respondent was rationally entitled to conclude that the applicant had probably had relevant documentation whilst last in KRI in 2021. Having said that, it could not rationally be said that it was close to inevitable that the First-tier Tribunal would have regarded such obstacles as insuperable.
30. Second, the evidence contained in the relevant CPIN indicated that, by the date of Decision 1, KRI and begun issuing Iraqi National Identity Cards (“INIDs”) instead of CSIDs. The applicant left KRI prior to the start of this process and so would not have been issued with an INID. This point was not considered by the respondent and it undermines the rationality of the conclusion on documentation.
31. Third, on the respondent’s own evidence, the applicant would not have been able to secure replacement documentation in the United Kingdom. That is because an individual can only obtain an INID by presenting themselves in person at a relevant office in their home area in order to register biometric information. The rationality of the respondent’s conclusion that the applicant would have been able to obtain replacement documentation is undermined.
32. Fourth, on the applicant’s case he married SH subsequent to his departure from KRI. Evidence contained in the respondent’s CPIN indicated that the change in civil status would have required the applicant to obtain a new (or amended) document, whether that was a CSID or an INID. Again, this point was not addressed by the respondent and it undermines the rationality of the respondent’s conclusion on documentation.
33. Fifth, Decision 1 does not suggest that the applicant could seek to obtain relevant documentation in Baghdad. In any event, that would not have been feasible, in light of the INID system and what I have said previously.
34. The second point relates to [26] of the judicial headnote of SMO and whether in light of the guidance alone the applicant could have been removed on a direct flight to KRI. That aspect of the guidance was seemingly based on the acknowledged basis that at the time KRI only accepted voluntary returns directly to its territory. This position was at least tacitly accepted by the respondent in SMO (see [47]). It was then expressly confirmed in SA (removal destination; Iraq; undertakings) Iraq [2022] UKUT 00037 (IAC), at [38]-[40]. Thus, the respondent could not rationally have concluded that there was no realistic prospect of the First-tier Tribunal concluding that an enforced removal direct to KRI was not feasible.
35. The third point relates to the proposed route of return. Under the heading “Removal”, [64] of Decision 1 states that the applicant was “liable to enforced removal to Iraq (Abril [Ebril], Baghdad, Basra, Najaf, Sulaimaniyah).” I agree with the applicant’s submission that this ‘menu’ of possible points of return is problematic. The decision in SA makes it clear that in Iraqi protection cases, specifying the route of an enforced return was not simply a “technical obstacle”, but an important element in the assessment of risk: [39]. That is because of the importance of documentation for the safety of travelling from Baghdad to KRI (that route then being the only feasible option for enforced returns). SA goes on to reject the efficacy of undertakings given by the respondent as to future possibilities: [52]. In the present case, Decision 1 failed to specify a route of return, instead relying on various possibilities. It is of note that one of these included Baghdad. The failure to have approached the applicant’s further submissions in accordance with relevant authorities on this particular issue, combined with the substance of the country guidance at the time, goes to undermine the rationality of the conclusion that there was no realistic prospect of the First-tier Tribunal approaching a hypothetical appeal on the basis that removal would have been to Baghdad.
36. Mr Tabori sought to counter this point by suggesting that the applicant could have “called the respondent’s bluff” by urging her to set removal directions, thereby pinning her colours to the mast as it were, and challenging those directions if they specified route which was said to be unlawful. I briefly saw that as an argument with some merit to it. However, I agree with Mr Jones that it is in fact really quite unattractive. It amounted to something akin to acquiescence with potentially unlawful removal action, with any challenge left to the very last minute. I conclude that this submission does not assist the respondent.
37. I turn to the issue which, as I said at the hearing, gives this case an air of unreality. Put shortly, the respondent’s defence to the applicant’s challenge is based entirely on evidence and/or a position which was either in existence at the time of Decision 1 or Decision 2 but was not alluded to in any way, or post-dates those decisions. In my judgment, this presents difficulties for the respondent.
38. Not least of these difficulties is the overarching sense that the respondent is in effect asserting that, whatever was and was not said in the decisions, there was other undisclosed evidence which was fatal to the realistic prospects of the applicant succeeding in a hypothetical appeal. To my mind, that is not indicative of rational decision-making.
39. Decision 1 makes no reference to a stated intention to return the applicant directly to KRI, such that there was no question of him having to get to that territory via Baghdad. As I have already said, the proposed route of return was at the time a relevant aspect of Iraqi protection claims.
40. Decision 1 does not begin to suggest that there was evidence on routes of return which would have been sufficient for a hypothetical First-tier Tribunal Judge to depart from the extant country guidance, such that there was no realistic prospect of the appellant’s further submissions succeeding on appeal in light of that guidance. The evidential threshold for such a departure is high (very strong reasons based on cogent evidence) and the realistic prospect of success threshold is low (more than a fanciful prospect of success). In fact, SMO is referred to in the decision without any indication that the country evidence changed to a significant extent.
41. Decision 1 makes no reference to any other evidence or returns guidance relating to routes of return.
42. Decision 2 adds nothing to the issue of the route of return.
43. Insofar as the respondent’s case rests on evidence which was in existence at the time of the decisions, but was not alluded to in any respect, it is difficult to conclude that the challenged decisions were themselves rational: they do not appear to have been founded on the evidence now relied on.
44. As regards the respondent’s reliance on the contents of her 6 April 2023 response to the applicant’s pre-action protocol letter, I treat this with caution in that it relies on matters not referred to in either of the decisions.
45. In respect of the evidence post-dating the decisions, it self-evidently suffers from the problem that it seeks to justify the challenged decisions after the event.
46. The respondent did not produce a further supplementary decision specifically addressing the route of return issue.
47. What then would the hypothetical First-tier Tribunal Judge have made of all of this? In the first place, the realistic prospect of success test relates to the further submissions put forward by an individual. Second, the subjective element of those submissions (i.e. the applicant’s assertions) would have been assessed against country evidence and, importantly, country guidance decisions. Third, the judge would not have been aware of the evidence now relied on by the respondent and it is difficult to see how the latter can rationally say that an appeal would be almost bound to fail as result of the unknown material. During the course of submissions, Mr Tabori suggested that relevant materials could have been disclosed in confidence during the appellate proceedings. Perhaps that is so, but it is in my view a weak argument. It is tantamount to the respondent in effect saying, ‘ignore what we have said in our decisions rejecting the applicant’s further submissions and look instead at this other evidence which we now adduce’. The argument overlooks the fact that fresh claim cases, much like certification cases, are (a) time-fixed to the date of decision(s) and (b) relate to the material being considered by the decision-maker, who themselves must have regard to what the hypothetical First-tier Tribunal Judge would make of it.
48. One can foresee the respondent’s objection if the same argument was adopted by the applicant. It would not be good enough for him to simply say ‘here are my bare assertions which constitute a fresh claim and I will provide further and better evidence in the run-up to my appeal’.
49. Both parties relied on unreported decisions of the Upper Tribunal in respect of appeals concerning Iraqi nationals originating from KRI. Permission was granted for such reliance. These decisions do not offer any real support for the respondent’s case. Being unreported, they could not have had any significant impact on the outcome of a hypothetical appeal to the First-tier Tribunal. Beyond that, I agree with Mr Jones to the extent that they represented a ‘mixed bag’: some support the respondent’s contention that individuals could be forcibly returned directly to KRI, others do not. In some, the respondent had taken the express position that removal would be direct to KRI and nowhere else. In one (AHA), the judge was not satisfied that evidence contained in a CPIN from October 2023 came close to justifying a departure from SMO. If anything, the unreported cases are indicative of a realistic prospect of arguments relied on by the applicant succeeding on appeal.
50. Bringing all of the above together, I find that the respondent’s conclusion set out in Decision 1 in respect of Issue 1 is irrational. It was irrational for her to conclude that there was no realistic prospect of a First-tier Tribunal Judge deciding that the applicant would have been removed via Baghdad as an undocumented returnee and therefore at risk of Article 3 ill-treatment.
51. On that basis, it follows that the applicant’s challenge succeeds.
Section 31(2) of the Senior Courts Act 1981
52. Section 31(2A) of the Senior Courts Act 1981 provides as follows:
The High Court –
(a) must refuse to grant relief on an application for judicial review…
if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.
53. This is given effect in relation to the Upper Tribunal’s judicial review work by virtue of section 15(5)-(5A) of the Tribunals, Courts and Enforcement Act 2007.
54. Relief in judicial review cases is of course discretionary, even if a claim succeeds.
55. I am, if appropriate, entitled to consider section 31(2A) of my own volition.
56. For the following reasons, I conclude that I should not apply this provision in the present case.
57. First, I should exercise real caution before applying this provision: see, for example, the recent analysis of authorities in R(Hippolyte) v SSHD [2025] EWCA Civ 1493, [70]-[74].
58. Second, the respondent has not relied on it.
59. Third, there is no evidence before me as to why the challenged decisions failed to expressly state that the applicant would be removed directly to KRI, as opposed to setting out a range of possible destinations. I reiterate the absence of any supplementary decision addressing the route of return issue.
60. Fourth, there is the additional failing in the challenged decisions to address whether any evidence which might have been relied on by the respondent could have satisfied the demanding test for departing from extant country guidance.
61. Fifth, having regard to the evidence now relied on by the respondent and its implications, together with the detailed submissions from Mr Jones and Mr Tabori, I am not satisfied that it is highly likely that the outcome would have been substantially the same. Whilst this I am prepared to accept that the applicant might in principle have fallen within the ambit of the core evidence now relied on by the respondent, the forensic analysis provided by Mr Jones highlights respectable arguments to the contrary, or at least in respect of the effect of that evidence as at the time of the challenged decisions.
62. Sixth, on 15 April 2026 the Upper Tribunal published the latest country guidance case on Iraq: AH, AK and AJ (Identity documentation; returns to the KRI) Iraq CG [2026] UKUT 00150 (IAC). It replaced all existing country guidance cases on Iraq. This decision is not relevant to my consideration of section 31(2A) because the provision is backward-looking. In other words, its application is based on the evidence in existence at the time of the impugned decision(s). Clearly, AH considered up-to-date evidence and its conclusions are based on the situation now. Having said that, I note that AH re-confirms that it is for the respondent to state the proposed destination: [B7] of the judicial headnote.
63. For the avoidance of doubt, I see nothing in AH which undermines my conclusions on the rationality of the respondent’s decisions as regards Issue 1.
Issue 2: Honour killing
64. I can deal with Issue 2 a good deal more briefly than Issue 1. For the reasons set out below, the respondent’s conclusion on this aspect of the applicant’s further submissions was rational and fair.
65. First, the respondent was clearly entitled to rely on the well-known Devaseelan guidelines. Indeed, the hypothetical First-tier Tribunal Judge would have been obliged to take these into account when assessing an appeal. In so doing, the respondent was rationally entitled to take account of the adverse credibility findings made by the First-tier Tribunal in 2017. There is nothing in Decision 1 to indicate that the previous findings acted as a straitjacket in respect of the respondent’s decision-making nor in relation to the assessment of what the First-tier Tribunal would have considered. In fact, [21(d)] expressly states that those previous findings were not the basis in and of themselves for rejecting this aspect of the applicant’s further submissions. They were, however, a rational basis for the respondent to have approached further submissions “with a reasonable degree of circumspection.” The First-tier Tribunal would itself have had regard to the adverse findings, albeit they could not have been determinative of either credibility or risk.
66. Second, the fact that the applicant was not represented in the 2017 appeal and was in detention at that time does not of itself render the respondent’s consideration of the adverse findings irrational.
67. Third, in Decision 2 the respondent was rationally entitled to note the absence of any substantive evidence in relation to SH and their child: [9]. Having done so, she adopted the sensible and lawful approach of “putting all that to one side, and taking this new evidence purely at face value”.
68. Fourth, in Decision 2 the respondent was rationally entitled to rely on the self-evidently poor evidence put forward by the applicant. The respondent was rationally entitled to conclude that the case put forward failed to provide explanations as to why the appellant would be at risk from SH’s family. In effect, the applicant simply put forward bare assertions.
69. Fifth, the respondent referred to country information on “honour” crimes which clearly indicated that the vast majority of victims were female, albeit that “occasionally males are also the victims of such violence.” The other references to the relevant CPIN relied on by the applicant are in truth of little assistance: 2.4.3 and 2.4.5 say nothing about men being victims, whilst 5.1.3 simply reflects what was said in Decision 1 about the possibility of male victims.
70. Sixth, the expert report of Alison Pargeter post-dates the decisions and, in any event, adds little of substance to the evidence considered by the respondent; [8.2] of the report simply states that men who transgress social norms “can be at risk”.
71. Seventh, I acknowledge that at 2.7.1 of the CPIN it is said that certification under section 94 2002 Act would usually be inappropriate. The applicant relies on this as an indication that the realistic prospect of success test is met. There is some merit in that, but I refer back to the authorities on fresh claims: a certified claim has no prospect of success, whilst paragraph 353 is predicated on there being no “realistic” prospect of success. There is a difference, albeit very narrow.
72. Eighth, the respondent’s decision-making process was not procedurally unfair. The applicant had ample opportunity to provide relevant evidence, notwithstanding the fact that he was initially placed into the asylum process usually reserved for those making an initial claim, as opposed to those relying on further submissions. The applicant had been released from immigration detention in June 2022 and was at liberty until early January 2023, when he was re-detained: this was an obvious opportunity to obtain evidence whilst he was not in detention. Beyond that, the applicant was legally represented and there was nonetheless sufficient opportunity to provide further and better evidence than that which was in fact put forward to the respondent.
Summary of conclusions
73. For the reasons set out in this judgment, the applicant succeeds in respect of Issue 1 (the route of return), but fails in respect of Issue 2 (“honour crime”).
74. The parties are invited to draft an agreed order reflecting the terms of this judgment.
Observation
75. I make a brief observation. A great deal of time and effort has gone into these proceedings. At the conclusion of my part in them, I am left wondering why at some point the respondent did not seek to issue a new decision (whether in addition to those already made, or as a complete substitute) in which a direct removal to KRI was stated, together with up-to-date supporting evidence.
76. Be that as it may, the effect of my judgment is that the respondent will need to make a fresh decision. In so doing, she will no doubt have regard to the guidance set out in AH, in addition to any other update evidence relating to direct removals to KRI.
~~~~0~~~~