Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2022-006555

First-tier Tribunal No: PA/50925/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

27th May 2025

Before

UPPER TRIBUNAL JUDGE HANSON

Between

IYY
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Holmes, instructed by Fisher Stone Solicitors.
For the Respondent: Mr Diwnycz, a Senior Home Office Presenting Officer.

Heard at Phoenix House (Bradford) on 2 May 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. The Appellant is a citizen of Iraq born on the 21 March 1976 who appealed the decision of the Secretary of State, served on the 28 February 2022, refusing to recognise him as a refugee, a person entitled to grant of humanitarian protection, and/or leave to remain based upon his private and family life.
2. The Appellant is subject to an order for his deportation which he sought to resist on the basis he remained entitled to international protection as a refugee, that there is a real risk he will suffer conditions which will breach Article 3 ECHR, and/or that there are very compelling circumstances which outweigh the public interest in his removal.
3. The deportation order was made following the Appellant’s conviction and sentence at Bradford Crown Court on 22 May 2009 to a term of eight years imprisonment after trial for importing 5 kg of opium to the UK. In his sentencing remarks His Honour Judge Rose stated
[…] I start with the view that your ability to speak English is much better than you are letting on.
You are now to be sentenced for involvement in a serious scheme to import opium into this country. It was a scheme that required a deal of organisation both in Turkey and here. But what it required from you here was to find an innocent dupe, and you found such a dupe in Cheryl Page(?). You abused her affection for you. You softened her up by arranging for an innocent parcel to be sent to her home. You opened it to show her that it contained clothing and innocent goods. It follows from that that this involved pre-planning on your part.
You then arranged with her to allow for this further parcel to be delivered to her address. She was an innocent dupe, but you made sure that it had her name on the parcel in an attempt, I am satisfied, to ensure that if you were found out the guilt would fall on her and not on you. She stood in that dock with you some months ago, and had it not been for the decision of the Crown, there was every risk that she too would be on her way to prison now.
Fortunately, the Crown saw where the truth was and chose not to proceed against her. I am satisfied that she has told the truth to this Jury, and the Jury are satisfied as well.
I cannot give you any credit for a plea of guilty, because you have shown no remorse whatsoever. Indeed, I am of the view that the evidence given by Allah Younis(‘?) was deliberately altered by him in order to try and persuade this Jury to acquit you, but no offences are alleged as a result of that, and I deal with you only for involvement in the present offence.
This was a sophisticated scheme to import just under five kilograms of opium into the United Kingdom. Had it succeeded, thousands of doses of a serious and dangerous Class A drug would have been available for use in this country. Those who involve themselves in such sophisticated schemes to import death into the United Kingdom can expect only long sentences of imprisonment. It is my view that your continued presence in the United Kingdom is an affront to the citizens of this country and is likely to cause further criminal offending, and it is not desirable that you remain here.
You will go to prison for eight years, and on your release, which will be at the halfway stage of that sentence, I recommend that you are deported from the United Kingdom.
4. The deportation order was signed in July 2013, against which the Appellant appealed on the basis of his Article 8 right to family life. That appeal was dismissed by a panel of the First-tier Tribunal in a decision promulgated on 4 October 2013.
5. Another judge of the First-tier Tribunal dismissed the Appellants appeal against the 28 February 2022 decision, finding the Appellant had not rebutted the presumption which operated against him depriving him of the protection of the UK, pursuant to section 72 Nationality, Immigration Asylum Act 2002, and that it followed that the question of whether there was a Convention reason relevant to whether the Appellant would be at risk due to his perceived westernisation did not arise for consideration.
6. At the error of law hearing on the 16 August 2023 Mr Holmes submitted that while the section 72 certificate might prevent the Appellant from succeeding in his protection claim on Refugee Convention grounds, it did not prevent him from succeeding on Article 3 ECHR grounds, and that the evidence provided in relation to the issue of ‘westernisation’ remained relevant to the Article 3 ECHR aspect of the appeal.
7. It was accepted on behalf of the Secretary of State at that hearing that the First-tier Tribunal Judge had erred in law in relation to the first ground of challenge to the determination as per Mr Holmes’ submissions. Consequently, the second ground was not pursued.
8. The First-tier determination was set aside, with preserved findings, and directions made for the Appellant to file an updated bundle, no later than 4 PM 27 October 2023, with an anticipated substantive hearing date to enable the Upper Tribunal to substitute a decision to either allow or dismiss the appeal to occur on the first available date after 10 November 2023. That intention was frustrated on a number of occasions resulting in considerable delay between the error of law finding and the hearing before me on 2 May 2025.
9. I accept that the delay was as a result of matters beyond the control of either the Appellant or the Secretary of State. It arose as the Appellant’s representative wished to seek a further report from their chosen country expert, Sheri Laizer. They did, and that report was filed dated 9 November 2023, requiring an extension of the directions made at the error of law hearing.
10. Mr Diwnycz, having received a copy of the report, indicated that he wished to cross-examine the expert. However, it transpired that Sheri Laizer was now living in France, which required the Appellant’s representatives to try to facilitate her giving her evidence remotely from France to the Tribunal sitting in Bradford, as she did not intent to travel to give her evidence in person. After making the parties aware of the initial frustration in not being able to facilitate the same, Mr Diwncyz was asked to confirm whether he still wished to cross- examine the expert on her report, which he stated he did.
11. If a party instructs a witness, it is important that they ensure that if questions are likely to arise on the basis of their evidence by way of cross-examination, the witness is able to either attend the hearing in person or remotely if this is the only option. The interests of justice require a party to proceedings to be able to test the evidence of an opposing party to ensure a court or tribunal has the best evidence available to it in relation to the decision that needs to be made. If it is known such is not possible, or reasonably achievable, that may make it inappropriate to instruct that witness.
12. As the French authorities have not granted a general consent to evidence being given by a witness from its territory, as proposed, it was necessary for the representatives to pursue the matter through the appropriate channel setup by the Ministry of Justice which they did. It became clear, however, that what was required would have been an application to the relevant Ministry in France with little prospect of either a guarantee that it will be granted or whether it would be even considered within a reasonable period of time.
13. Accordingly, without wishing to deny any party the opportunity to put questions to the expert, and in accordance with the interests of justice and the overriding objective, directions were given for written questions to be put to the expert and for her to file her replies within a specified period.
14. A number of agreed questions were put to the expert who filed a response to those questions in a document dated 29 January 2025.
15. The issue in this appeal remains whether there will be a breach of Article 3 ECHR if the Appellant is returned to Iraq, in light of the period of time he has been in the United Kingdom and whether he will be perceived as being ‘westernised’, sufficient to create a real risk on return.
16. Article 3 ECHR prohibits, in absolute terms, torture, inhumane or degrading treatment or punishment, irrespective of the victims conduct. This means it is an absolute rights that cannot be derogated from and is not subject to the test of proportionality similar to that one finds in Article 8 ECHR. In simple terms, that means that if the Appellant shows he faces a real risk of ill-treatment sufficient to engage Article 3 he will defeat the deportation order notwithstanding his conviction and the damage caused to society by drug-related offences. That is the effect of the law as it currently stands.
The updated witness statements
17. In his latest witness statement dated 4 December 2023 the Appellant states he entered the United Kingdom on 25 December 2002 and has lived outside Iraq for 21 years. He is the father of two children aged 16 and 7 and had previously been granted indefinite leave to remain although that was revoked by the Secretary of State.
18. The Appellant states he does not have any documents to confirm his Iraqi identity as they were left in Iraq when he fled over 20 years ago, and that the situation in relation to the nature of the documents and need for the same has substantially changed.
19. The Appellant states he had family in Iraq, a brother who he claims he has not been able to contact, although he is in contact with his mother to whom he speaks every two weeks who he claims is in Turkey. The Appellant states that he has not spoken to his brother for several years and that his sister is with his mother.
20. The Appellant’s partner, CB, is responsible for looking after their two children in the UK but is said to have physical and mental health needs herself. Her only income is state benefits meaning she would not be able to provide him with any financial support in Iraq and that her parents do not have any money.
21. The Appellant is concerned about the effect of his removal upon the children and ability to maintain contact with them if he is removed to Iraq, especially as his youngest son has known him as his main carer all his life.
22. The Appellant expresses concern that if returned to Iraq after the length of time he has been in the UK it will be extremely difficult for him to find employment or any other way of meeting his basic needs in the absence of specialist support, that family networks are very important for securing employment and finding somewhere to live, and that the Appellant will be viewed with suspicion or there be an expectation that he is wealthy due to the length of time he has been in the West, which he states will create difficulties for him.
23. The Appellant considers himself to be a Muslim but states he does not attend the Mosque.
24. In her statement dated 23 November 2023, CB refers to the Appellant as her ex-partner. She states they met in 2005 and separated in 2020, although remain very close and see each other every day and that they share two children who are both British citizens.
25. CB states she suffers with anxiety and depression and often cannot leave the house by herself and is prescribed regular medication. CB’s problems are related to anxiety and she has undergone and is waiting for various surgical procedures.
26. CB states she is able to leave the house when it’s necessary with the Appellant but he needs to stay with her until she gets home, especially since the support worker that she recently had who would accompany her, had been withdrawn.
27. CB states the Appellant sees the children every day and does nearly all the childcare, looks after their youngest child including taking him to football every Sunday which CB can attend provided the Appellant is with them. The Appellant is at her home most of the time, bathes the child, gets him up and gives him his breakfast and takes him to school, collects him from school most days as part of her anxiety is that she finds it very difficult to leave the child. If CB has hospital appointments, she can only leave him with the Appellant.
28. CB states she knows some of the Appellant’s friends, some of whom are Kurdish, whom he always speaks to in English when she is present. CB states she has never seen the Appellant wearing traditional Iraqi or Kurdish clothing out of the house, that he celebrates Christmas with them, and that he and her family are very close.
29. CB states the Appellant is Muslim although as far as she is aware does not attend the mosque. She is Roman Catholic as are the children. CB expresses fear of how the young child’s life would change without his father here as it will be restricted as she does not think she would be able to take him to school when she is having a bad day, which is frequent. CB describes the Appellant as being “a lovely family man so long as they do not have to talk about his immigration status, as when they have to do so he gets very angry and upset as this is a topic that is very difficult for him to cope with”.
30. CB states if the Appellant is returned to Iraq she could not travel there. CB states “my family are originally from Jamaica and I am black”. CB does not think the children could ever travel to Iraq as she fears that they would not be safe there because of their mixed heritage.
The expert evidence and replies to questions.
31. The Supreme Court in its judgement in TUI UK Ltd v Griffiths [2023] UKUT 48 considered the principal question raised in that appeal of what was the scope of the relevant rule, based on fairness, that a party should challenge my cross examination evidence that it wishes to impugn rather than in submissions at the end of the trial, together with two further issues.
32. The Supreme Court found a party is not able to sit back and reserve criticism of an expert’s evidence in closing submissions as that would, in effect, deny the expert the opportunity to respond.
33. It was therefore appropriate for Mr Diwncyz, in accordance with the principle of fairness, to be given the opportunity to put his questions and for the expert to be given the chance to address any challenge to her evidence which, in this appeal, could only be achieved by way of the written questions and the response.
34. It was also important that the opportunity to cross-examine the expert, eventually by the provisions of questions, was facilitated as the Supreme Court confirmed that a judge is generally bound to accept the evidence of an expert if it is not controverted by other expert or factual evidence and the opposing party could have cross-examined the expert on the point, but chose not to do so.
35. Reference was made by Mr Diwnycz to the decision of HA (expert evidence; mental health) Sri Lanka [2022] UKUT 111 (IAC) and to headnotes 6 and 7, which reflect the findings of the Tribunal in the body of the determination, and which read as follows (with his emphasis in bold:
“(6) In all cases in which expert evidence is adduced, the Tribunal should be scrupulous in ensuring that the expert has not merely recited their obligations, at the beginning or end of their report, but has actually complied with them in substance. Where there has been significant non-compliance, the Tribunal should say so in terms, in its decision. Furthermore, those giving expert evidence should be aware that the Tribunal is likely to pursue the matter with the relevant regulatory body, in the absence of a satisfactory explanation for the failure.
(7) Leaving aside the possibility of the parties jointly instructing an expert witness, the filing of an expert report by the appellant in good time before a hearing means that the Secretary of State will be expected to decide, in each case, whether the contents of the report are agreed. This will require the respondent to examine the report in detail, making any investigation that she may think necessary concerning the author of the report, such as by interrogating the GMC’s website for matters pertaining to registration.”
36. Mr Diwnycz in his skeleton argument also referred to the decision of the Upper Tribunal in SD (expert evidence) Lebanon [2008] UKAIT 00078 which found that where an expert refers the Tribunal to cases in which his or her expertise has been accepted or acknowledged or in which he has received praise, he or she must at the same time refer the Tribunal to any cases of which he or she is aware of and which may detract from what is said about him or her in the cases he has referred to. Failure to place before the Tribunal such material in an even-handed way may reflect on the weight to be given to the evidence which is the subject matter of the expert’s report.
37. Reference is made to a comment by the expert in her report in the following terms:
xvi. I have provided numerous expert reports in recent appeals and fresh claims concerning Iraqi, Iranian, Turkish, Syrian, Lebanese, Jordanian, Palestinian and Kurdish Nationals. I am not aware of any recent criticism of my reports by the Tribunal.
38. Mr Diwnycz asserts that the disclaimer in the final sentence of that paragraph is disingenuous and unhelpful in dealing with the issues in this appeal as the expert was criticised by the Tribunal in SM and Others (Kurds – Protection - Relocation) Iraq CG [2005] UKIAT 00111, at [252] and [253] in which it is written (with Mr Diwnycz’ emphasis):
252. We turn to the evidence of Ms Laizer. Mr Kovats made a number of points as a consequence of which he invited us in effect to ignore her evidence. We consider that a number of the points he made are well taken. We do have a concern at her reference to the government in the European human rights cases in relation to which she has advised as being 'the aggressor' as indicative of a partisan attitude. The criticism of the UK/Danish and Dutch Reports on the basis that they had not been to Iraq is not made out. That again is at best careless and at worst indicative of partisanship, or at least an element of unwarranted contempt for the processes by which the reports were written. We were also concerned by the fact that she criticised the independent observers referred to in the 2003 State Department Report and yet she did not know who they were. We also would have expected her to have some idea of the number of Kurds outside Kurdistan. The criticism of the April 2000 Dutch report for failing to contain comment on matters that had occurred after that report was written was again a matter that flawed her evidence. There is, we agree, an element of inconsistency in criticising the 2000 Dutch report for lacking weight and being based on out of date information when it was the case that the same was true of a number of elements of her evidence. We did not find persuasive her explanation that she deals with the roots of the social and political structures and has known these people for years. She appeared to be drawing an unwarranted distinction between her techniques and those employed by the writers of the reports. We agree also with the point made by Mr Kovats that she demonstrated a degree of a lack of objectivity in her response to the questions about political influence on the judiciary using the example of assassination of a judge in this regard and did not find her response when it was put to her in cross-examination to be satisfactory.
253. We bear in mind of course the points made by Ms Braganza concerning Ms Laizer's experience and the degree of first hand information and the nature of the sources which she uses to inform her evidence. It is of course the case that a good deal of what she says is uncontentious. We do not consider it appropriate to go as far as Mr Kovats invited us to do in disregarding her evidence in its entirety, but we consider that it must properly be regarded with a significant degree of caution given the specific flaws in her evidence which we have identified above.
39. This Tribunal was invited to cast a critical eye over the two reports that have been provided as it is the Secretary of State’s submission that the opinion of the expert is not supported by background evidence to suggest that the type and style of clothing and fashion is prevalent in the KRI and federal Iraq, or the putative reception and treatment of the Appellant, are as simple and/or polarised as seems to be made out in the report.
40. The clothing issue was, to a greater extent, resolved during the course of the hearing as a result of an answer given by the Appellant to a question put to him in cross-examination.
41. The Appellant was asked about the clothing that he wore when he was in Iraq, which he confirmed was normal clothing a Kurdish man wore in his home area. When he was asked what clothing he would wear if he was returned, he confirmed that he would wear similar clothing. It was not therefore made out on the evidence that the Appellant’s outward appearance, having reverted to wearing the normal acceptable form of local clothing, would give rise to any real risk on return as it would not enable a person who did not interact with the Appellant to take him as anything other than a person conforming to the normal social norms in terms of dress.
42. Mr Holmes in his submissions referred to the fact the decision in SM had been handed down nearly 20 years ago with no further examples of the expert being criticised by the Tribunal.
43. There are a number of reported and unreported determinations on the Upper Tribunal website involving reports prepared by Sheri Laizer. In relation to reported determinations, in GB and Others (credibility, cross-examination) [2004] UKAIT 143, a Turkish case, the Tribunal refers to this expert at [17] where they write:
17. The grounds go on to argue that the Adjudicator should have given more weight to the expert evidence in the report from Sheri Laizer and that she failed to review the background evidence in general. Sheri Laizer’s reports, which appear at A71-80 and 163-173, were commented on by the Adjudicator in paragraph 103 of her determination. The Adjudicator made the point that Sheri Laizer’s opinion was based on an account which the Adjudicator found to be unreliable. The Adjudicator came to the view that in the light of her findings the appellants would not be seen as separatists by the Turkish authorities. The expert evidence was based on an assumption that the accounts given by the appellants were true. The expert evidence may show, as in this case, that the accounts were plausible. However, it is for the Adjudicator to assess whether the accounts are true in accordance with the relatively low standard of proof.
44. This is not a criticism of the work of Sheri Laizer, as her report was based upon an account that she took at face value from the appellant but which the Adjudicator found, having considered the evidence as a whole, was unreliable. It was not the role of the expert to consider credibility which was a matter for the Tribunal.
45. In AG (GBTS, “Tab” and other records) [2004] UKIAT 168, a Turkish case, there is some criticism of a report written by Shari Laizer at [29] as follows:
29. Much of Ms Laizer’s report is devoted to an article in a Turkish newspaper which “attracted wide public attention and provoked incense (sic) when exposing the Turkish military’s (secret) plans to gather and maintain its own intelligence database on significant sectors of the public including socially and politically prominent individuals, artists, actors, opposition writers, thinkers, television companies and radio stations, persons from ethnic minority groups about whose activities, economic sources, local leaders and programmes information was to be gathered, groups whose aims were not clear, meditation groups, cults, sects, high society groups, rich kids’ groups etc.”. The significance of this is, however, in the present context minimal. The plans of the Turkish military appear to be just that, rather than an already functioning system. Furthermore, there is no reason why the Appellant should fall into any of the categories mentioned.
46. At [32] the Tribunal referred to the existence of reports from Sheri Laizer and Mr Kanat a Turkish lawyer, and having considered the same write at [33] – [34]:
33. Mr Kanat has this to say:
“However, in some cases we are aware, depending on the nature of the offence/crime, even if details are erased from the system the security forces will have separate record/files. In daily language this is known as “a tab record” “Fis Kaydi” (informal records kept by the security forces and anti-terror branch). These records do not cause a problem for the individual as such, however should the individual be taken into custody for another offence, the security forces will refer to this record and prepare a file in respect of previous incidents to file with the judiciary”.
34. It appears from this that Mr Kanat is more circumspect that Ms Laizer as to what might be kept on a “tab record”. It would appear likely that only details of offences or crimes appear on the tab records. However, even if one assumes that at a gendarmerie station in southeast Turkey a tab record will still exist in respect of the Appellant (whether personally or by reference to his father, or both), the evidence before the Tribunal simply does not show a reasonable likelihood that this information will be accessible by the immigration authorities at the airport.
47. It is not unusual for experts to have differing opinions provided their views are supported by adequate reasons. In cases where this occurs it is for the judge to decide, having undertaken a holistic assessment of all the evidence, which view they feel able to place more weight upon.
48. Moving to decisions which postdate SM, the Tribunal in SI (expert evidence, Kurd, SM confirmed) [2028] UKAIT 94, an Iraqi case, referred to the expert evidence before them at [8] in the following terms:
8. The materials before us included the reports that were before the Tribunal in SM (from Dr Rebwah Fatah, Ms Sheri Laizer and Mr Joffe), the Tribunal’s summary of the oral evidence of Dr Fatah and Ms Laizer as given in SM, together with reports from Dr George and Dr Fatah written post-SM. In this determination we propose to elaborate only on the further expert evidence which has been produced post-SM.
49. Thereafter the Tribunal referred to updated evidence from Dr George and Dr Fatah as this was the only updated evidence made available to them. The Tribunal at [57] noted that in SM the Tribunal found Dr Fatah’s evidence to be reliable on the whole albeit lacking in objectivity in places and was more critical of Ms Laizer, although could not make a specific finding themselves in relation to her evidence as no further material had been provided by her in that appeal.
50. In SA and IA (Undocumented Kurds) [2009] UKAIT 6, a Syrian case, it is recorded at [16] that the Appellant sought to rely on a report of Sheri Laizer dated 1 July 2005 and submitted she should be accepted as an expert entitled to comment on the risk of harm to returnees in Syria in light of her CV and that her expert opinion should be accepted – [16-19].
51. There was also in this appeal a report from Dr George. At [50] – [51] the Tribunal wrote:
50. Dr George maintains that Syria has a very repressive regime which always has been and remains ruthless in its suppression of real and perceived opposition. The position may fluctuate from time to time dependant on events but the fluctuation is from a high base. The lightening of the political atmosphere under the new President from his succession in 2000 has been overtaken by the events of 2004 and subsequently and the regime’s response to it. In his report of 5 November 2008 he identifies for example 1500 political arrests; fatal shootings of Kurds at Nevroz celebrations on 20 March 2008; further demonstrations and arrests in November 2008 in the course of protests against new laws.
51. His assessment is reinforced by Ms Sheri Laizer in her report of 1 July 2005 (which has not been updated for us) and by material from Amnesty International and the SHRC. Freedom House on 30 October 2008 observed that the Syrian authorities may charge opponents with “spreading false information”. Human Rights Watch on the same date drew attention to the conviction of 12 political activists on vague charges, and in October 2007 reported that the Syrian security services frequently arrested activists on their return from overseas trips in punishment for discussion of human rights issues when abroad.
52. At [84] when referring to the objective evidence the Panel wrote:
84. We have set out above the main objective evidence before us which describes the range of opinions offered. There is more that is essentially older or repetitive of opinions expressed elsewhere (including the 2005 report of Ms Laizer) and we have taken it all into account. What then do we make of it?
53. A criticism of Sheri Lazier’s report is to be found at [87] in which is written:
87. In broad terms the objective evidence reveals disagreement with Dr George’s opinion from two directions. First, there are sources, such as Amnesty International, SHRC and Ms Laizer (though there are others also) who consider that all failed asylum seekers are at risk as such. We do not accept this view. There is no doubt that there are examples of some returnees being severely ill-treated but a reading of the evidence as a whole suggests that overwhelmingly they are perceived to be anti-regime activists with specific profiles as such, rather than simply failed asylum seekers. We consider that the sources maintaining the above viewpoint do not address or properly factor into their assessment the evidence of a more complex and evolving situation.
54. In the event, the Tribunal dismissed the protection appeal on asylum, humanitarian protection and human rights grounds in relation to SA but allowed IA’s appeal on asylum and Article 3 ECHR grounds.
55. The specific endorsement in current report is that Sheri Lazier is unaware of any criticism of her work. That is a subjective comment although due to the extent of the research she refers to having made in her reports, it is highly unlikely she would have not been aware of the criticism in SM. In any event, the Tribunal in that case did not find her evidence should be disregarded but that the weight given to it and how it should be treated should be with approached with caution.
56. I do not find it appropriate to completely disregard Sheri Laizer’s reports in this appeal as no basis for doing so is made out and shall consider the same with the required degree of anxious scrutiny applicable to all the evidence.
57. The first report is dated 9 November 2023. The first section of the report is taken up with setting out the her CV, reference to material considered, and other administrative tasks before considering the first question asked by the Appellant’s representatives, to comment on the issues arising from the Appellant returning now to his home area of Faida or relocating elsewhere in Iraq after being in the UK since before regime change in January 2003. The second question related to the issue of documentation.
58. Sheri Lazier’s conclusions set out at page 13 of the report are as follows:
Conclusions
1. Return to Iraq from the UK or US is currently highly dangerous owing to the conflict between Hamas and Israel. The Iraqi government and Shi’a militias support Hamas. The UK has advised against all travel there including to Kurdistan.
2. IYY comes from the boundary area of the disputed territories. Faida lies on the disputed Green Line and was the location of a major transit checkpoint in the past. Tensions are ongoing between the Kurdish region and Baghdad inside Faida. There is no coordinated security in the disputed territories and the locals feel very vulnerable.
3. IYY would have to obtain an INID card at first hand for his biometric data to be obtained. He asserts that he has lost contact with any family back in Iraq. They could do nothing to get him an INID anyway, as in the updated Home Office CPIN, October 2023 covering civil documentation and return.
4. Waves of displacement during the various armed conflicts makes it plausible that IYY has lost contact with family members. His wife is foreign-born.
5. IYY has no historic relations with the KDP or PUK in Kurdistan to help him there. He is not connected with the Shi’a Arab parties and militias that run the rest of the country. He is also of Sunni origin.
6. IYY has been away from Iraq for two decades and will highly likely appear to be Westernised, even in his body language. This is a risk factor in many parts of Iraq, including from ISIS remnants.
59. The regime change in March 2003 is a reference to the U.S.-led invasion of Iraq aimed at removing Saddam Hussein from power and establishing a democratic government. The overthrow of Saddam Hussein marked the opening of a new phase for Iraq, the appointment of an Interim Governing Council, drafting of the Transitional Administrative Law, and the creation of a transitional sovereign government and subsequent, including the rise of ISIL in 2011 and their defeat in 2017.
60. The Appellant would not have lived in the country during this period or have experience of any changes that have been made since he left. I comment upon the presence of family in Iraq below.
61. The second report containing questions asked of Sher Laizer and her replies is dated 29 January 2025. The schedule of agreed questions is dated 21 January 2025.
62. In his submissions Mr Diwnycz referred to the Secretary of State having concerns based on the replies to the joint questions, submitting that particularly in relation to the traditional clothing issue most of the concerns of Sheri Laizer fell away based upon the Appellant’s own evidence.
63. He submitted that any interaction the Appellant may have with others in Iraq will not create a real risk. As the way the Appellant will behave will be up to him and he could resume the habits he had in the past, for example dressing in the way he had previously in Kurdistan.
64. On behalf the Appellant, Mr Holmes submitted that what was under consideration was the ‘westernisation’ question, namely that if the Appellant was present having been returned to Iraq would he be identifiable as having been ‘westernised’.
65. Mr Holmes submitted that as the Appellant had been in the UK for over 20 years he would have been influenced by such in relation to the patterns of behaviour and social norms expected in the UK.
66. Mr Holmes submitted that the Appellant might not be accepted as being an insider in the way he may act, is relevant.
67. It was submitted that even if the Appellant changed his clothes to local dress, he will be perceived as being ‘westernised’ giving rise to a real risk on the basis of the expert evidence on which it was submitted that proper weight may be placed.
Discussion and analysis
68. The expert report and submissions made are all based on a real risk to the Appellant if he is perceived to be ‘westernised’.
69. The lead case on this issue in the Upper Tribunal is that of YMKA and others (‘westernisation’) Iraq [2022] UKUT 00016 (IAC), he headnote of which reads:
The Refugee Convention does not offer protection from social conservatism per se. There is no protected right to enjoy a socially liberal lifestyle.
The Convention may however be engaged where
(a) a ‘westernised’ lifestyle reflects a protected characteristic such as political opinion or religious belief; or
(b) where there is a real risk that the individual concerned would be unable to mask his westernisation, and where actors of persecution would therefore impute such protected characteristics to him.
70. The family in YMKA had left Baghdad in 2006 and spent a number of years living in Jordan before coming to the UK. An issue arose in that appeal, which is not present in this appeal, in relation to religious beliefs, as IYY identifies himself as a Muslim even though he does not attend the mosque or it is claimed undertake other religious activities such as fasting through Ramadan, in the UK.
71. However, there is insufficient evidence before me to show that unless a person is active in their faith in Iraq they will face a real risk on return. It is not made out all Iraqis are devoted to their faith and attend the Mosque regularly, even if they identify as followers of Islam.
72. It is also the case that the Appellant has demonstrated an ability and willingness to adapt. It can be seen from the report of Sheri Laizer that a lot of the emphasis was upon how the Appellant will be perceived on return by reference to his outward appearance. The Appellant’s answers under cross-examination clearly showed that is not a live issue.
73. The Appellant lived in Iraq for a number of years and would be well aware of the social norms and what was expected of him, for although there have been substantial changes in the government of Iraq since he left in 2003 there is insufficient evidence to show that the day-to-day pattern of life has materially changed. The Appellant’s willingness to change his clothing to conform is a strong indication that he will do so in respect of all other aspects of daily life.
74. It is not made out the Appellant does not speak Kurdish. Although he has a very good command of English after the time he has been in the UK, he gave his evidence with the assistance of a Kurdish (Sorani) interpreter whom he confirmed he understood. It is also the case that the Appellant stated he communicates regularly with his mother in Turkey where his sister lives, with no evidence that such communication is in English. It is reasonable to assume that it will be in their native language, the same the Appellant will have spoken with her during the time they were together in Iraq.
75. I also note the comment of the Sentencing Judge: “I start with the view that your ability to speak English is much better than you are letting on” indicating a lack of candour by the Appellant in relation to his claims, which I shall return to below.
76. An ‘outside’ is a person who does not belong to a particular group or community. Whilst the Appellant may require time to adapt if returned to Iraq after such a long time in the UK, that is not the question. Looking at the reality of the Appellant’s daily life if returned, including what steps he could take to mitigate any fear he has, his flexibility and willingness to conform shows he is not only aware of the risk but also what is required to mitigate the same. I also find the Appellant has not established he has no family support in Iraq.
77. The case of Kamara v Secretary of State for the Home Department [2016] EWCA Civ 813 concerned Article 8 of the ECHR and paragraph 276 ADE (1) (iv) of the Immigration Rules. This is, not an Article 8 appeal but I have considered the same together with the recent judgement of the Court of Appeal in NC v Secretary of State for the Home Department [2023] EWCA Civ 1379, in which it was found the relevant test as to whether there were insurmountable obstacles to a person’s reintegration into their home state was not subjective, in the sense of being limited to an appellant’s own perception of obstacles to integration, but extended to all aspects of their likely situation on return, including objective evidence, and required consideration of any reasonable steps that could be taken to avoid or mitigate the obstacles.
78. The question to be considered in such cases is whether there is anything evidentially beyond an Appellant’s subjective fear and, in particular, whether there was anything to rebut the Appellant’s subjective fear, such as objective evidence, availability of protection or ability to internally relocate.
79. Length of time in the UK is not, per se, sufficient on its own. In Parveen v Secretary of State for the Home Department [2018] EWCA Civ 932 a period of 18 years in the United Kingdom was not found to necessarily present very significant obstacles to reintegration elsewhere.
80. I do not find the Appellant has established that he does not have contact or the support of his brother in Iraq. The claims he makes in this regard were considered by the First-tier Tribunal judge who found:
The appellant’s credibility is a matter of real importance in the assessment of his claim to be at real risk of conditions that would breach Article 3 of the ECHR on account of his inability to secure the necessary documentation on return to Iraq. Notwithstanding Mr Holmes’ submissions that this issue does not turn on his credibility as a witness, it remains essential that I reach findings of fact before I am able to judge whether the appellant’s particular circumstances expose him to such a risk. His case is that he left Iraq many years ago and left his documents behind at home in Mosul, an area which has since been decimated by a sequence of intense and brutal conflicts. The family he left behind in Iraq were said to have fled themselves, died or disappeared without trace. Were I to accept these facts, there would be a foundation for human rights arguments founded on an inability to access the necessary documentation. However, I have the most serious grounds for doubting the appellant’s credibility as a witness. Dishonesty is a thread running through his various brushes with the justice system. It is to be recalled that a jury convicted him of the most serious criminality which involved deceiving a person he had befriended. The jury must have disbelieved, to the high criminal standard, his case that he was an innocent party. The judge noted in his sentencing remarks that there was at least a suspicion that he had orchestrated the false evidence of a witness. Further findings of dishonesty were reached by Judges Chambers and Getlevog when it was found that he was not genuinely pursuing a relationship with CB but was instead doing the groundwork to support his claim to resist deportation.
In the proceedings before me, the appellant’s oral evidence that he had not been in contact with his brother, who was last known to be in Iraq, for approximately 10 years was wholly at odds with that of his son. Kyron described speaking to his uncle in Iraq relatively recently and perhaps twice in the last year. It was clear that this child witness was giving honest and frank evidence. It was faintly suggested by Mr Holmes that his recollection might be regarded as unreliable. I am unable to conceive of how this witness might have been mistaken about speaking to his uncle in Iraq. I have no hesitation in accepting his evidence which exposes the lies told by his father that he had not been in touch with this Iraqi-based brother for approximately 10 years. The result of this pattern of dishonesty in judicial proceedings is that I am bound to approach his evidence with the greatest of caution. More than the word of this wholly incredible witness is needed before it could be accepted that the appellant lost his documents in Mosul and is without the means and family connections to gather the papers he would need to travel and function in Iraq. He has not proven the facts necessary to underpin his case that he would encounter conditions contrary to Article 3 of the ECHR on return to Iraq.
…
I reject the proposition that the appellant’s family life outweighs the powerful public interest in his deportation as a foreign criminal. The sentence of 8 years underlines the grave nature of his offending in seeking to import the most dangerous drugs into the UK. The appellant has been in the UK for a very long time but I reject his case that he no longer has family contacts in Iraq, a country in which he has spent most of life, has worked and speaks a commonly spoke language. It was suggested that he would be perceived as a westernised outsider on return to a country where mixed-race relationships and children are unheard of. This, together with his conviction for a serious drugs offence would operate to exclude him from Iraqi society. These are not matters which he would be inclined to advertise and it is difficult to see how these matters would become common knowledge without his consent. I have no doubt that there would inevitably be a process of adjustment but this factor does not weigh sufficiently heavily in his favour.
81. The claims in relation to lack of contact with his brother, which were rejected in the earlier stages of this appeal, are being repeated again by the Appellant. I find this disingenuous as there is insufficient fresh evidence to warrant going behind the finding that such a claim lacks credibility. I find the Appellant has family in Iraq who he has not shown will be unable or unwilling to assist him in his reintegration.
82. I do not find the Appellant has established that he faces a real risk of harm on return to Iraq as a result of being perceived to be westernised or for any reason advanced on his behalf. The report of Sheri Laizer does not factor in all the elements necessary for the relevant holistic assessment and is based upon speculation that those the Appellant will come into contact with will perceive him as not being “one of them” or a person of adverse interest, either as a result of a perception as to his economic wealth or for any other reason. It is not disputed that in the appropriate circumstances the risk identified by the expert might exist, but it is not made out on the specific facts of this appeal that the necessary factual matrix has been established.
83. The Appellant is subject to an order for his deportation from the United Kingdom following his being sentenced to 8 years imprisonment for very serious drug-related offences.
84. The First-tier Tribunal dismissed his appeal against other attempts by him to avoid deportation under the Refugee Convention and Article 8 ECHR and dismissed his claims in relation to an inability to redocument himself.
85. The matter before me is limited to Article 3 ECHR and I find the Appellant has not discharged the burden of proof upon him to show that he is entitled to a grant of leave to remain on this basis, or that there is anything to warrant going behind the earlier findings in relation to his ability to redocument himself on return to Iraq. As the First-tier Tribunal judge found: “More than the word of this wholly incredible witness is needed before it could be accepted that the appellant lost his documents in Mosul and is without the means and family connections to gather the papers he would need to travel and function in Iraq”. That remains the situation.
86. It is not made out (i) the Appellant would not be able to get a Lassiez Passer to enable him to travel to an airport within Iraq, (ii) could not be met by his family who must have the relevant documents, and (iii) that he would not be able to make an appointment at the relevant CSA office to enable him to provide his biometrics and obtain an INID.
87. I also note there is a pilot being run at the Iraqi Embassy in the UK to enable individuals to apply for identity documents in the UK which is a matter the Secretary of State could discuss with the authorities and which may be of assistance to the Appellant in obtaining an INID.
88. I do not find it made out on the evidence that this is a case in which the Appellant will be unable to mask his westernisation, to the extent that may exist, resulting in actors of persecution imputing an adverse characteristic to him sufficient to give rise to a real risk on return to Iraq.
Notice of Decision
89. For the above reasons the appeal is dismissed.

C J Hanson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

15 May 2025