Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2022-006721

First-tier Tribunal No: PA/56002/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 4th of March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE L MURRAY

Between

MSA
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr Ahmed, Counsel
For the Respondent: Ms Rushforth, Senior Home Office Presenting Officer

Heard at Cardiff Civil Justice Centre on 14 February 2025

DECISION AND REASONS

Introduction
1. The Secretary of State is the Appellant in this appeal but for ease of reference I refer to the names of the parties as they were before the First-tier Tribunal.
2. The Appellant is a national of Iraq. His previous asylum appeal was dismissed on 6 January 2019. He made further submissions on 8 September 2021 which were refused by the Respondent. His appeal came before Judge Suffield-Thompson on 27 July 2022 and was allowed in a decision promulgated on 31 July 2022. The basis of his further submissions was that he was at risk from the Kurdish leadership as he had exposed their corrupt practices and behaviour. He claimed that he campaigned against the Kurdish leadership in the UK and was involved in sur place activities and expressed his views on Facebook such that he would be at risk of persecution on return as a result.
3. Permission to appeal was granted on all grounds by First-tier Tribunal Judge O’Garro on 30 September 2022.
4. The matter came before me to determine whether the First-tier Tribunal (FTT) had erred in law, and if so whether any such error was material such that the decision should be set aside.
Error of Law – Grounds of Appeal
5. The Respondent’s grounds of appeal assert that the FTTJ had materially erred by relying on the factual findings of Country Guidance decisions that did not relate to the country situation in Iraq and instead either related to Turkey or Iran. It is submitted that the findings of fact in relation to risk on return are based on country guidance that is not applicable to Iraq. It is submitted that the FTTJ’s findings on the ability of the Iraqi authorities to monitor the Appellant’s social media posts and ability to identify the Appellant on return are based on the FTTJ’s assessment of the country situation in Iran instead of Iraq. It is further submitted that the FTTJ’s findings as to the risk to the Appellant on return are based both on the ability of Iranian and Turkish authorities to identify political opponents on return instead of the ability of the Iraqi authorities. It is contended therefore that the appeal has been allowed on an erroneous basis.
The hearing
6. There was no Rule 24 Response but Mr Ahmed confirmed that he was opposing the Respondent’s appeal.
7. Miss Rushforth expanded on the grounds and added that the guidance in BA (Iran) (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC) had general applicability with regard to the assessment of risk for sur place activities but otherwise applied to Iran and did not establish what paragraph 33 of the FTTJ’s decision referred to with regard to Iraq. Although XX (PJAK) (sur place activities, Facebook) CG [2022] UKUT 00001) was also of general applicability, the evidence identified by the FTTJ related to Iran. The Appellant had no protected right to have a Facebook account and the FTTJ had materially erred in the application of country guidance and failed to say why he would be at risk on return.
8. Mr Ahmed submitted that there was no material error of law. The FTTJ noted at paragraph 24 and 25 that the Appellant was Iraqi and made findings in relation to his sur place activities that he was genuine, had been threatened on Facebook and, although the cases that were cited by the FTTJ were not directly applicable, the objective evidence was also referred to. The findings of fact were not challenged by the Respondent. It was open to the FTTJ to make the findings she did and she did not apply the cases she cited as country guidance.
9. I asked Mr Ahmed if he could refer me to any country evidence before the FTTJ in relation to Iraq to support the FTTJ’s findings at paragraph 33 in relation to the Iraqi authorities’ ability to monitor the activities of their nationals abroad. He candidly admitted that he had been unable to do so. He also agreed that he could not find any background evidence to support the FTTJ’s findings at paragraph 40 that the Iraqi authorities have a digital database of citizens, that they have relied on facial recognition software since as far back as 2011 and have the systems to trace and bug users of individual mobile phones and laptops.
10. I reserved my decision and asked the representatives for their views on whether, if an error of law were found, the decision should be remade in the Upper Tribunal or remitted to the First-tier Tribunal. Ms Rushforth submitted that the evaluation of risk was flawed and the appeal should be remitted. Mr Ahmed argued that it was plain that the Respondent had not challenged the factual findings and consequently the decision should be re-made in the Upper Tribunal.
Conclusions – Error of Law
11. The impugned findings are paragraphs 33 and 41 of the decision of the FFTJ:
“33. I am assisted by the case of BA (demonstrators in Britain – risk on return) [2011]. It is clear on both case law and objective background information that the Iraqi authorities have developed various sophisticated means to keep check on the activities of demonstrators, Facebook Users and Bloggers abroad. They have a biometric system which I find will be readily available to identify the Appellant on return.”
12. And 41:
“As a failed asylum seeker, the Appellant will be interviewed by the authorities on return and he will be asked to disclose his computer details and his Facebook posts will be found. The Appellant’s Facebook posts are public so he will be readily identified as the person making those anti-government posts (XX (PJAK) (sur place activities, Facebook) CG [2022] UKUT 00001)). He will also have to disclose that he has been living in the UK (IK (returnees-records-IFA) Turkey CG [2004]. He is not expected to lie about his political views and beliefs due to fear of persecution (HJ Iran [2010] UKSC 31 (IAC). “
13. Although paragraph 4 of the headnote of BA (Iran) is applicable to the assessment of risk on return having regard to sur place activities, paragraphs 1 to 3 are country guidance in relation to Iran. There would clearly be no error of law had the FTTJ applied the factors in paragraph 4 of the headnote of BA (Iran) to the Appellant’s sur place activities. It is unclear whether the FTTJ mistakenly thought that BA (Iran) was in fact Iraqi country guidance case law. The case reference is incorrectly cited by her in paragraph 33 of the decision and omits the word “Iran”. However, and in any event, there is neither case law in relation to Iraq nor, as confirmed by the Mr Ahmed in submissions, was there any background evidence before her to support the findings in relation to the “various sophisticated means” of the Iraqi authorities to monitor activities of demonstrators and social media users abroad.
14. Equally, in relation to paragraph 41 of the decision, paragraphs 5 and 6 of the headnote of XX (PJAK) are guidance on Facebook and social media generally, but paragraphs 1 to 4 are guidance on the Iranian state’s surveillance capabilities. Paragraphs 1 to 4 of the headnote refer to the Iranian state’s ability to access Facebook material and the likelihood of internet searches being carried out prior to return. BA (Iran) (paragraph 2 (a) of the headnote) states that Iranians returned to Iran are screened on arrival. Mr Ahmed was unable to refer me to any case law or background evidence in the Appellant’s bundle which supported the FTTJ’s finding that he would be interviewed on return and asked to disclose his computer details, or that he would have to disclose that he had been living in the UK.
15. It is also unclear why the FTTJ believed the case of IK (Returnees, Records,IFA) Turkey CG [2004] UKIAT 312 had any bearing on the Appellant’s case as it is Turkish country guidance and is not authority for the proposition that the Appellant would have to disclose that he was living in the UK.
16. In the circumstances, I conclude that the FTTJ’s assessment of the risk on return to the Appellant due to his sur place activities was based on country guidance that did not relate to Iraq. This error was clearly material because the assessment of risk on the basis of this evidence led to the conclusion that the Appellant had placed himself at substantial risk due to those activities (paragraph 48).
17. I have considered whether the decision should be re-made in the Upper Tribunal with regard to the recent decisions of Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) and AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512. I find that the FTTJ’s assessment of the risk to the Appellant cannot be separated from the credibility findings as they are not made in isolation to each other. The FTTJ concludes at paragraph 43 that she does not accept the Respondent’s conclusion in the refusal letter that the Appellant is a “low level” supporter as she finds it is not born out by the “objective evidence”. I am satisfied therefore that the extent of fact finding which is necessary for the decision in the appeal to be re-made is such that it is appropriate to remit the case to the First-tier Tribunal with no findings preserved.

Notice of Decision

The making of the decision of the First-tier Tribunal did involve the making of a material error of law.

The decision of the First-tier Tribunal is set aside.

The appeal is remitted to the First-tier Tribunal with no findings preserved.

L Murray

Deputy Upper Tribunal Judge
Immigration and Asylum Chamber

27 February 2025