Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-000476

First-tier Tribunal No: PA/52261/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 09 April 2025

Before

UPPER TRIBUNAL JUDGE LODATO

Between

AHA
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Johnrose, counsel instructed by Broudie Canter Jackson
For the Respondent: Mr McVeety, Senior Presenting Officer

Heard at Manchester Civil Justice Centre on 24 March 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
Introduction
1. I have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal because the underlying claim involves international protection issues in that the appellant claims to fear persecution or serious harm on return to Iraq. In reaching this decision, I am mindful of the fundamental principle of open justice, but I am satisfied, taking the appellant’s case at its highest for these purposes, that the potential grave risks outweigh the rights of the public to know of his identity.
2. This decision follows the resumed hearing for this appeal, heard on 24 March 2025. In her error of law decision dated 28 June 2024, Upper Tribunal Judge Kamara allowed the appellant’s appeal against the decision of the First-tier Tribunal (‘FTT’) to dismiss his international protection and human rights grounds of appeal. The error of law which was found was narrow in the sense that it only applied to the analysis which went to whether appellant would face conditions contrary to Article 3 of the ECHR due to his claim to be unable to effectively redocument on return to Iraq. The original findings of fact, which roundly rejected the primary protection claim founded on the risk of honour-based violence, were preserved.
Legal Framework
3. Article 3 of the ECHR provides:
Article 3
Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
4. I have considered SMO, KSP & IM (Article 15(c); identity documents) Iraq CG [2019] UKUT 00400 (IAC) and SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 00110 (IAC) [‘SMO2’]. SMO2 provided the following guidance (from [11] of the headnote, where relevant) in relation to the process of acquiring the necessary civil identification documents and the implications of not being able to secure these critical documents:
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.

[…]
Appeal to the First-tier Tribunal
5. The appellant appealed against the refusal of his protection and human rights claim dated 30 May 2022. The appeal was heard by the FTT judge on 5 January 2023 before dismissing the appeal on all grounds in a decision promulgated on 17 January 2023. For the purposes of the present proceedings, in which findings of fact have been preserved, the following key matters emerge from the decision:
• It was noted that the appellant travelled from Iraq by plane to Turkey on 13 August 2019. From there, he travelled to Greece and then by lorry through unknown countries until he arrived in the UK on 19 January 2020 and claimed asylum the following day. [5]

• The appellant was found to have fabricated his core claim that he was at risk of honour killing because he entered into a relationship with a woman who had been married to a senior Peshmerga fighter to settle a blood feud. [7]-[9]

• It was implausible that the appellant or his claimed partner would choose to expose themselves to such danger given the unrealistic prospect that a divorce would ever be sanctioned from such a high-ranking and powerful man. [9b & e-g]

• It was further found to be implausible that the couple could have maintained the telephone contact claimed. [9c]

• The circumstances surrounding claimed visits in the middle of the night were rejected as implausible. [9d]

• It was found to be implausible that the appellant would have risked informing a friend of his situation nor that his friend was willing to help in the circumstances. [9h]

• The circumstances in which the appellant’s partner’s husband discovered the affair was regarded as implausible given the danger which would be caused by the disclosure. [9j]

• The attempted collection of the appellant’s partner from the refuge where she was staying was implausible once it had become known that her husband knew of the affair. [9k]

• In view of the importance which paragraph [9l] took on during the remaking hearing, I set out this preserved finding in full:

The appellant claims the woman’s refuge then refused to hand over Chiman as he was not part of her immediate family. He claims, again with the help of his friend Redwan, he then went into hiding. I do not find it reasonably likely that Redwan would have again assisted the appellant in leaving the country - more so as by now the appellant claims MAT was aware of the claimed relationship with Chiman and had made threats to kill. If MAT is as powerful as the appellant claims, this would have placed Rewan at risk of serious harm. I also find the appellant, in leaving the country with his own passport with visa for Turkey, a matter of days after he claims MAT threatened him, that this has all the hallmarks of a pre-planned trip and not one made in haste to save his life, as there is no reasonable explanation as to why the appellant would have been carrying his passport when he claims he went to Erbil to take Chiman to the women‘s refuge - other than it was always his intention to leave the country for reasons other than protection. He would not have needed his passport at checkpoints in the IKR as a valid Iraqi passport is not recognised as acceptable proof of identity for internal travel. Further if MAT what [sic] looking for the appellant and is as powerful/ dangerous as the appellant claims, there is no reasonable explanation as to how the appellant was able to leave the country safely through an airport using his own passport without being apprehended. This too causes me to find the appellant did not have a relationship with Chiman, nor is he at risk from MAT because of it.

• In addressing the feasibility of return, the FTT judge rejected the appellant’s case that he had lost contact with his friends and family who remained living in the same place where they had previously resided in the IKR. It was found that there was nothing to indicate that the appellant would not be accommodated and supported on return. [13]

• The appellant was disbelieved that he had made all reasonable efforts to contact his former partner, friends and family from the UK. [14]

• The judge concluded that the appellant’s claims not to be able to make use of Facebook to contact friends and family was an “attempt to thwart his removal”. [15]

• Paragraphs [16]-[17] rejected the appellant’s case that he could not access the civil documentation he would need to avoid Article 3 conditions. The reliance on the rejection of credibility in the round and the failure to directly engage with SMO2 were the principal reasons why these findings were found to involve errors of law and were set aside.
Appeal to the Upper Tribunal
6. The proceedings in the Upper Tribunal have been somewhat involved and lengthy. In a decision dated 28 August 2023, Deputy Upper Tribunal Judge Saffer dismissed the error of law appeal on all grounds. Upon review after an application was lodged for permission to appeal to the Court of Appeal against that decision, Upper Tribunal Judge Blundell set aside DUTJ Saffer’s decision under rule 45 of the procedure rules. This resulted in the error of law hearing being heard de novo by Upper Tribunal Judge Kamara on 28 June 2024. In finding that the FTT judge erred in her assessment of the documentation issue, UTJ Kamara gave the following reasons at [13]-[15]:
In an otherwise careful and detailed decision, the judge made no clear findings regarding whether the appellant was in possession of his CSID and passport. The judge’s conclusion that the appellant would ‘have’ the required documents is based only upon the judge’s rejection of his core claim to fear the husband of a claimed lover. There was no separate consideration of the documentation aspect of the appellant’s claim and the judge did not engage with or assess the appellant’s evidence that his passport and CSID was taken by the agent, albeit she refers to it at [7], in passing.

The error made is material, given the guidance in SMO, KSP & IM (Article 15(c); identity documents) CG Iraq [2019] UKUT 400 (IAC) (20 December 2019) (SMO 1 ), because had the judge considered the appellant’s evidence regarding documentation favourably she would then have needed to consider whether the appellant would be able to return without a CSID in his possession. The evidence at the time was that a returnee would not be able to obtain an CSID on arrival in Iraq and that the family of a returnee would not be able to assist with this.

The content of [16] suggests that the judge is contemplating that documents can be sent to appellant in the United Kingdom for redocumentation purposes. There is no basis for that finding in the Country Guidance case law and indeed the judge does not refer to SMO in making these comments.
7. At the error of law hearing, I heard oral submissions from both parties. I address any submissions of significance in the discussion section below.
Discussion
8. Mr McVeety invited me to depart from the guidance in SMO2 on the strength of the respondent’s CPIN of October 2023 at 5.1.1-3 which offers the following assessment of the redocumentation process:
5.1.1 Iraqi Nationals can be returned to any airport in Federal Iraq or to Erbil and Sulaymaniyah international airports in the IKR (see Annex C). Relocation of non ethnic Kurds to the IKR is commented on in Entry and residency requirements in the Iraqi Kurdish Region (IKR)
5.1.2 Ethnic Kurds who pass residency requirements and are documented or can be redocumented upon or shortly after return are able to be returned to the KRI directly via Erbil or Sulaymaniyah airports (see Annex C).
5.1.3 The Inspection Report on Country of Origin information, Iraq and Myanmar (Burma) undertaken by the Independent Chief Inspector of Borders and Immigration (ICIBI), published June 2023 (ICIBI report June 2023), quoting Dr Rebwar Fateh, an expert witness on the Middle East, stated:
‘If a failed asylum seeker is returned to Iraq without an ID document, they will be detained at the airport.
a) The returnee will then be interviewed to give some indication of whether they are from their claimed governorate or region (through dialect, accent etc.). From the returnee’s Kurdish or Arabic dialect, the officer will be able to tell whether the returnee is from Iraq or not.
b) At this time, the returnee’s claimed name and address will also be cross referenced against suspect names in possession of the security services.
c) Next, the returnee will be asked to phone their immediate family to bring their ID.
d) If they claim to have no immediate family, the returnee will be asked to contact a paternal uncle or cousin for their ID.
e) If this is negative too, another relative will come to the airport with their own IDs to act as a guarantor for the returnee. This would allow the returnee a seven-day residency permit pending proof of identity.
f) During this period, the returnee needs to obtain their own ID or provide evidence that they are in the process of obtaining an ID – such as a letter from the nationality department to show that their ID is pending via the usual procedure.
g) If the returnee has no such luck, they must find a local Mukhtar [local chief or village elder] by the seventh day who can provide a letter in exchange for a small fee which states that the person is who they say that they are, that they are from the claimed neighbourhood, and that they are in the process of obtaining an ID.
h) If the Mukhtar cannot identify the returnee, they will need two witnesses to come forward who know them and can provide evidence on their identity.
i) The returnee then needs to apply in writing to the nationality department. Here, they will be interviewed by the chief and the witnesses will ned [sic] to give evidence under oath, stating how they know the returnee.
j) Once the chief has been convinced, the process of obtaining the ID will start. Once these steps have been completed, the returnee needs to communicate back to the security services at the airport, or their guarantor will face legal consequences.’
9. The above extract appears to be taken from the Inspection Report on Home Office country of origin information Iraq and Myanmar Burma January 2023. At page 40 of that report, the procedure outlined in the CPIN is drawn almost word for word from information obtained by distinguished country expert, Dr Rebwar Fatah. Importantly, the expert appears to be passing on information from an Iraqi Government official in the Erbil nationality department from June 2020. The first point to note is that the information manifestly pre-dates, by almost a year and a half, the hearings before the panel which decided SMO2. Dr Fatah was the key expert witness who provided much of the opinion evidence relied upon to formulate the ultimate guidance. It is difficult to see how information the expert received long before the proceedings in SMO2 could function to unpick the country guidance which binds this tribunal. Secondly, the report itself notes important matters which require clarification such as whether the 7-day residency permit or a local Mukhtar’s letter could be used to move across internal checkpoints. Thirdly, there is little to indicate what Dr Fatah made of the information he received from the official when seen in the wider context of what he knows about the difficulties which flow from not having a CSID or INID card and the considerable administrative hurdles of securing replacement documents. This only serves to illustrate the dangers of seeking to pluck snippets of information from dialogue with an expert instead of relying on a rounded expert opinion based on full and proper instructions going to an issue to be decided on appeal. The panel in SMO2 were on considerably firmer ground in reaching informed judicial conclusions about conditions in Iraq drawn from appropriately directed and tested expert evidence. I am entirely satisfied that this part of the CPIN does not come close to representing the kind of substantial and durable change which could justify departing from binding country guidance.
10. At the outset of the hearing, Mr McVeety accepted that if I rejected (as I now have) his invitation to depart from SMO2, the appeal should be allowed on Article 3 grounds if I found the appellant to be credible about the circumstances in which he claimed to have lost both his passport and CSID card.
11. The first point to note is that the starting point for my assessment of the appellant’s credibility on the controversial factual issue of the whereabouts of his Iraqi passport and CSID card must be the emphatic and wide-ranging findings that he had invented his primary claim to be at risk of honour-based violence. This necessarily colours the impression I form of his account when taking it at face value. However, it is well-established that credibility is not a seamless robe, and a witness may lie about some matters, even matters of real significance, and yet tell the truth about other matters. Importantly, UTJ Kamara found the FTT judge analysis of this very issue to be flawed partly because she over-relied on broad credibility findings to find against the appellant on the discrete issue of whether he continued to have access to necessary documentation.
12. I am satisfied that there are cogent reasons to conclude, notwithstanding the lies told by the appellant about his primary asylum claim, that he did indeed relinquish his passport and CSID to an agent during his journey to UK.
13. Firstly, the findings of fact reached by the FTT judge at [9l] are preserved. The initial leg of the journey out of Iraq was characterised as a “pre-planned” trip during which the appellant was able to use his passport to pass through the airport. It was further noted that a passport would not be needed to cross internal checkpoints, but we know from SMO2 that a CSID would be needed for such passage. I accept Ms Johnrose’s argument that this all tends to firmly suggest that the appellant was found to have made a conventional journey to the airport which strongly indicates that he had his CSID card with him at this time. There was nothing to support Mr McVeety’s submission that the appellant’s family may have accompanied him to the airport and taken his CSID card with them when they parted company. The appellant was not cross-examined during the remaking hearing so it cannot now be known what the appellant may have said in response to such a proposition.
14. During the remaking hearing, I was directed to page 245 of the documents provided to the appellant’s representatives following a subject access request. This comprised of a record of the circumstances in which the appellant first came to the attention of the UK immigration authorities. He was one of a group of seven people found concealed in the back of a lorry near Peterborough. It was noted that the only property he had with him was 30 euros. The respondent did not seek to challenge the accuracy of this record.
15. When I consider the preserved findings of fact about the beginning of the appellant’s journey and the unchallenged records going to the circumstances in which he ended his journey in the UK, I am bound to conclude that the appellant had a CSID card at the start of his pre-planned conventional trip to the airport, but no longer had it by the time he emerged from the back of a lorry. The circumstances in which he was encountered in the UK lead to the inexorable conclusion that he was transported to the UK by an agent which lends some credence to his case that the agent took the unremarkable decision to deprive him of any Iraqi documentation in an effort to make removal more difficult.
16. When I ask myself whether the appellant is lying about what he said happened to his CSID card, I am bound to look to what he said about other documents. The FTT judge noted the appellant’s evidence that he understood his family to have retained possession of his Iraqi national certificate and ration form. It struck me as odd that an appellant would volunteer that he may have constructive access to any official Iraqi documentation if he were simultaneously mounting a false claim that he would be at risk of Article 3 conditions or treatment because he could not access the required and necessary civil status documentation. I was also struck by how the respondent was unable to point to any inconsistencies about this dimension of his narrative case. In broad terms, the appellant has never wavered from his account that he handed his CSID card to the agent who was assisting him to reach the UK. Again, the appellant was not cross-examined during the remaking hearing geared towards deciding this very point.
17. Overall, I am satisfied upon consideration of the evidence in the round that the appellant relinquished his CSID card to an agent during his journey from Iraq to the UK. Having found that SMO2 continues to apply to cases such as this, and the respondent’s recognition that this combination of factual and legal findings should result in the appeal being allowed on Article 3 grounds, I allow the appeal.
Notice of Decision
The appeal is allowed on Article 3 human rights grounds.

Paul Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

2 April 2025