Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-004935

First-tier Tribunal No: PA/55661/2022
LP/00761/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 22nd of April 2025

Before

UPPER TRIBUNAL JUDGE LANDES

Between

Akam Mohamed Abdalkarim
(no anonymity order made)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr Mohzam (Counsel instructed by CB Solicitors)
For the Respondent: Mr Parvar (Senior Home Office Presenting Officer)

Heard at Field House (hybrid hearing) on 17 January 2025

DECISION AND REASONS
1. This is the remaking, under section 12 (2) (b) (ii) of the Tribunals, Courts and Enforcement Act 2007 of the decision of the First-Tier Tribunal promulgated on 31 October 2023 allowing the appellant’s appeal on human rights grounds only against the Secretary of State’s decision of 22 November 2022 to refuse the appellant’s further submissions of August 2021. This remaking follows my setting aside of that part of the First-Tier Tribunal’s decision allowing the appeal on human rights grounds for material error of law in a decision and reasons issued on 8 March 2023 (see annex below).
2. In the error of law decision, I indicated that as the international protection claim was dismissed, I would consider at the remaking hearing the question of whether to continue the anonymity order. Neither representative had anything to raise when I drew this to their attention. As the appeal now only concerns issues under Article 8 ECHR, I see no reason to continue the anonymity order bearing in mind the general public interest in open justice.
The hearing
3. The hearing was a hybrid one. I and Mr Parvar were present in the hearing room, other parties appeared over the CVP platform.
4. The documents available to me and on which I have relied were contained in the respondent’s error of law bundle which included all the documents which had been before the First-Tier Tribunal. In addition there was a witness statement from the appellant’s wife which although dated September 2023, is likely to have been signed in September 2024 given there was no witness statement from the appellant’s wife before the First-Tier Tribunal Judge and given it refers to the wife’s mother having an operation in September 2024.
5. The appellant gave evidence through a Kurdish Sorani interpreter and his wife gave evidence through a Farsi interpreter. They both confirmed the truth of their witness statements, were cross-examined, the appellant was briefly re-examined, and I asked both some questions.
6. At the conclusion of the evidence, the representatives made submissions which I summarise below.
7. Mr Parvar adopted the points in the refusal letter and the review. He said it was a case of considering whether there were exceptional circumstances which meant that refusal of leave to remain was a breach of the appellant or his family’s rights under Article 8 ECHR. He submitted that the appellant had not put forward any evidence to suggest that there were legal barriers to the family residing permanently in Iraq. The statement from the appellant’s wife was quite brief and did not raise issues other than her family being in the UK and the existence of their daughter; it made no sense that she had not conducted research into how the family would be able to live in Iraq. There was no barrier to the individuals living together as a couple and their daughter was very young and would be with her parents whether they were living in the UK or Iraq. Neither had voiced real concerns about the system in Iraq or their living in Iraq with the appellant’s mother. There was also the potential for a move to Iran. There was no evidence that the wife’s presence in the UK was necessary for her to look after her parents. There was a lack of evidence about any medical issues the wife’s parents were suffering from, but the father was a British citizen and would have support. It was staggering that there was a lack of support from the wife’s parents, there was no reason they would not be stepping forward to help the appellant as best they could. It was astonishing, Mr Parvar submitted, that the claim that the appellant’s wife was pregnant was raised for the first time in evidence and he invited me not to accept it. He submitted that it would be easy to produce such evidence if it were actually true and he invited me to find that it was fabricated and raised at the last minute to help the case; he commented that the appellant had put forward unreliable claims for asylum in the past. He said that the appellant’s failure to give truthful evidence placed weight on the public interest in removal. He had entered illegally and been found to be not credible. It might be the appellant’s wife’s preference for the family to remain in the UK, but the decision was proportionate, he submitted.
8. Mr Mohzam submitted that the appellant came to the UK in 2016, and the respondent had not taken steps to remove him. His previous appeal had been dismissed in July 2017, so he had remained in the UK for a significant period and there was no evidence of the steps which had been taken to remove him and safeguard immigration controls, that needed to be taken into account in his favour. Because the appellant was not removed, he entered into a relationship and consideration needed to be given to his wife and her circumstances. The appellant’s wife had been in the UK since 2016, and she and her daughter had status. The appellant would be likely to have difficulties finding employment in Iraq bearing in mind what was said at [33] of SMO (2). The appellant’s wife was not a national of Iraq and there might be barriers to her living in Iraq but what was most critical was the situation here. Even if it was proportionate for wife and husband to be separated, he submitted it would be disproportionate for father and child to be separated. It would be in the best interests of the child to remain in the UK with both her parents. I should accept that the appellant’s wife was pregnant, they had both been consistent about the pregnancy and because of the pregnancy, the appellant’s wife would need the support of the appellant. In summary given the length of time both the appellant and his wife had lived in the UK, the lack of removal, the status of the appellant’s wife and daughter who was now 5 ½ years old and the real life situation that the appellant’s wife would not accompany him to Iraq and the impact the separation would have on the daughter he submitted that it would be disproportionate to remove the appellant.
Findings and reasons
The legal test
9. It has not been suggested that the appellant can meet the immigration rules relating to Article 8 ECHR. The appeal concerns Article 8 ECHR “outside the immigration rules”.
10. The test I need to apply was explained by the Supreme Court in Agyarko v Secretary of State for the Home Department [2017] UKSC 11. The Supreme Court explained that the European Court had said that in cases concerned with precarious family life, it was likely only to be in exceptional circumstances that the removal of the non-national family member would constitute a violation of Article 8 ECHR [54]. That statement (i.e. “exceptional circumstances”) reflected the strength of the claim which would normally be required, if the contracting state’s interest in immigration control was to be outweighed [55]. Ultimately, a court had to decide whether the refusal was proportionate in the particular case before it, balancing the strength of the public interest in the removal of the person in question against the impact on private and family life [57]. The critical issue would generally be whether, giving due weight to the strength of the public interest in the removal of the person in the case before it, the article 8 claim was sufficiently strong to outweigh it, and in general in cases concerned with precarious family life, a very strong or compelling claim was required to outweigh the public interest in immigration control [57]. “Exceptional circumstances” simply involved the application of the test of proportionality to the circumstances of the individual case, it did not mean looking for something “unusual” or “unique”; the ultimate question was how a fair balance should be struck between the competing public and individual interests involved, applying a proportionality test [60].
11. Where a child is involved, their best interests are a primary consideration. In GM (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1630 the Court of Appeal summarised the position in case law at [42], explaining that the question was what was reasonable for the child and that case law indicated that where one parent had no right to remain, but the other did, that was the background against which the assessment must be conducted.
12. I must also have regard to the considerations listed in section 117B of the Nationality, Immigration and Asylum Act 2002. Those are:
“(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English –
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons –
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to –
(a) a private life, or
(b) a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person’s immigration status was precarious.
(6) In the case of a person not liable to deportation, the public interest does not require the person’s removal where-
(a) the person has a genuine and subsisting relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.”
Factual findings
13. It is not contentious that the appellant is from the IKR (from Said Sadiq in Sulaymaniyah Governate) and of Kurdish ethnicity. He left Iraq at the age of 15 and claimed asylum in Slovenia. Having informed the Slovenian authorities that he had a brother in the UK, he was flown to the UK only a month after his 16th birthday. He was still 16 at the date of his asylum appeal hearing in June 2017. He made no applications between the refusal of his asylum claim and his further submissions of August 2021. It has not been suggested that the Home Office tried to remove him before the making of the further submissions. It was not suggested in the refusal letter that he had absconded or had otherwise not complied with any requirements imposed on him.
14. The appellant married his wife in an Islamic marriage held at her parents’ home in August 2019 and (taking into account the preserved findings of the First-Tier Tribunal) they have lived together since then. The appellant’s daughter was born in the UK on 20 August 2019 and so is now 5 ½. She is at school in the UK (in year 1), and she speaks English, Farsi and Kurdish.
15. The appellant’s wife had earlier in the proceedings produced an old residence card which showed that she had limited leave to remain. She explained in evidence that her father was a British citizen and that she and her mother had come to join him in 2016 when she was about 17. She said she had another 2 years to go before she was eligible for indefinite leave to remain, and her daughter was a dependent on her leave. The appellant’s wife’s immigration status was not challenged (obviously the respondent would have been in a position to evidence the precise leave she held) and I am satisfied that the appellant’s wife and daughter although holding limited leave to remain, hold leave on a path to settlement.
16. Mr Parvar challenged the evidence that the appellant’s wife was pregnant and the nature of the relationship with her parents, in essence due to the lack of supporting evidence which could easily have been obtained and the fact that the appellant had been found not to be credible in his asylum claim.
17. The lack of supporting evidence of the appellant’s family life has been a feature of this case. It was commented on by the First-Tier Tribunal Judge, who found that the appellant had not been particularly well-advised or guided before the hearing and was genuinely unaware of the extent of the evidence he could have provided [22]. The appellant, despite the error of law hearing, still appeared unaware of the evidence he could have provided. For example, when asked whether he knew why there was no medical evidence to prove his wife’s pregnancy he said that no-one had asked for medical evidence, and he wanted to know if he could provide the documents now. He said he had asked his solicitor if he could do anything about the pregnancy and they had told him that nothing could be done until the child was born. When asked about why his wife’s parents had not provided witness statements, he said that if “they” had asked for any proof he would have provided it, and if it had been requested he could have brought them as he had brought his wife. I bear in mind that the appellant’s personal advisor from children’s social care had described him as having a lack of retaining information and memory loss which affected every area of his life. In that context and in the context of the First-Tier Tribunal judge’s findings, I find, despite the appellant being the subject of some adverse credibility findings, that he was genuinely unaware that there was an expectation that he should proactively provide evidence that would support his case, rather than waiting until someone official asked him for it.
18. I also find that the appellant’s wife had not appreciated that she was expected to produce documents. She said that she had all the documents from the midwives, and she had mentioned that she was pregnant to her husband’s solicitors but they said that she could mention it in the court. She said she had not known she was required to provide documents from her parents.
19. I am satisfied that the appellant’s wife is expecting another baby, due in July. I am satisfied of this because the appellant and his wife were consistent in the details they provided about the pregnancy.
20. I am also satisfied that what the appellant and his wife say about the appellant’s wife’s parents is correct. I am satisfied of this because again what they said was consistent and the appellant’s wife did not appear to exaggerate, for example she acknowledged that although her parents had medical problems they could look after themselves.
21. I am therefore satisfied that the appellant and his family are close to his wife’s parents and they see them about two or three times a week; they live in the same area about twenty minutes away by bus. Although the wife’s parents have some medical problems, they can both look after themselves. The appellant’s wife is the only one of her parents’ children who is living in the UK; she has siblings who live in Iraq.
22. The appellant’s wife said that she knew that the appellant did not have any leave to remain in the UK. She explained that she knew he could be removed from the UK, but I find it credible that as she said, she did not think there was a possibility that he would have to go back. I find this credible because of the length of time the appellant had been living in the UK without any action being taken against him. Whilst this does not mean that their relationship was not precarious, it is understandable that the way a person’s mind works is that the longer no action is taken the less a person thinks it is likely to be taken.
23. I am also satisfied that the appellant’s wife and daughter would not go with him if he were removed to Iraq. The appellant’s wife said in her witness statement that she could not relocate her life to Iraq, her daughter had been born in the UK and only known life in the UK, and she could not separate her daughter from her parents or leave her parents on their own in the UK; she repeated that she did not want to go to Iraq and she had not carried out any investigations as to how she might live there because she did not want to go there and she would not feel safe there. Iraq is a country to which the appellant’s wife has never been, she does not speak the language, there is a different culture, it is plausible that whatever the reality she would not feel safe there, and I consider it is understandable and credible that despite her relationship with her husband she would not move there with her daughter to be with her husband even if he were removed.
24. I am not satisfied that the appellant no longer has a CSID in Iraq. The appellant’s bundle contains a copy of his CSID and his Iraqi nationality certificate. The appellant said in evidence that the original documents were taken from him in Turkey. He was not sure how he had obtained a photocopy, he said he did not know because he thought someone, probably his uncle, would have sent the documents by post to his older brother. He said he had not been told much because he was a child. He said he was guessing that the photographs had been taken before his documents had been taken. I am not satisfied that the appellant is telling the truth about the documents being taken from him in Turkey. I am not satisfied of this because of the findings about the appellant’s general lack of credibility so far as his asylum claim is concerned. The appellant would have a CSID therefore that could be sent to him before return or could be given to him by his family on arrival in Iraq.
25. It would be difficult for the appellant to return to Iraq as he has lived in the UK for 8 ½ years, since the age of 16. However, he has a mother and extended family to whom he could return and there is nothing to indicate that he has lost touch with his heritage. I bear in mind the employment difficulties to which Mr Mohzam referred me and there is nothing to suggest that the appellant has any skills, but SMO 2 indicates that as a returnee with family connections to the region he would have a significant advantage. Given that the appellant has not been found to be at risk in Iraq and that he lived there until he was 16 and he has family in Iraq, I consider there would be no very significant obstacles to his integration into Iraq.
26. I am not satisfied that there would be any insurmountable obstacles to the appellant’s wife living with him in Iraq. Of course it would be very difficult for her, to live in a different culture where a language was spoken she did not understand, but I have no evidence that she would not be able to live legally in Iraq or that she would face specific difficulties as an Iranian national in the IKR who was not of Kurdish ethnicity, bearing in mind that she would be married to an Iraqi resident of the IKR. It would also be particularly difficult for her as she would either have to be separated from her husband at a time when she was due to give birth or give birth in a country which was completely alien to her and of whose customs she was unaware. I appreciate that she would be unlikely to have Iraqi identity documents on arrival, but on behalf of the appellant I was not pointed to any evidence to suggest, and I am not satisfied that anything in country guidance indicates, that she would be at risk travelling from Sulaymaniyah airport to the appellant’s family home in Sulaymaniyah governate with a visa or similar and with her husband who of course would have the appropriate Iraqi documents and could vouch for her. I consider below whether it would be reasonable to expect the appellant’s daughter to live with her father in Iraq, but I do not consider there would be any insurmountable obstacles to the family as a whole living together in the IKR; the appellant’s daughter would be living with her parents and would be able to be educated there. This is not to minimise the family’s difficulties or the difficulties the appellant’s wife and daughter would have being separated from her parents/grandparents but I do not consider even taken together the difficulties could be said to be at the level of insurmountable obstacles.
27. I consider that there would be insurmountable obstacles to the appellant and his family living together in Iran. The CPIN on Kurds and Kurdish political groups indicates that Kurds in Iran face systematic discrimination and barriers which affect their access to basic services. If the appellant lived in the part of Iran which is referred to as Eastern Kurdistan by ethnic Kurds, then it would be in an environment alien to his wife and away from the support of her extended family. If they lived in his wife’s home area then he would be living in an environment where he faced systemic discrimination, he was not a national and although he speaks Farsi, it is not fluent. He would have real difficulties making a life for himself and his family in circumstances where he would be unlikely to obtain work and it would be difficult for his wife to assist, she not having lived in Iran as an adult herself and being heavily pregnant or about to give birth. That his wife has not lived in Iran as an adult, has lived in the UK herself for more than 8 years and would be leaving her parents behind in the UK would also create difficulties.
28. The best interests of the appellant’s child are a primary consideration. Her best interests are to remain in the UK, where she was born, is at school, has a close relationship with her grandparents, and where she and her mother are on a route to settlement. It is also in her best interests for her father to remain in the UK with her, because otherwise they will be separated as I have found that she will remain in the UK with her mother, as her mother will, understandably as I have explained, not leave the UK for Iraq. When considering the hypothetical question of whether it would be reasonable for the appellant’s daughter to relocate to Iraq to be with her father, I bear in mind that I have found there to be no insurmountable obstacles to her living there with both her parents, and of course if she lived there she would have the opportunity of getting to know her paternal grandmother and extended Iraqi family. Nevertheless, I also bear in mind that as the summary of the case-law in GM (Sri Lanka) explains at [42] the background against which the assessment of her best interests is to be conducted is that one of her parents has a right to remain. Although it is expected to be in the best interests of a child to be with her parents wherever they are, one of her parents has a right to remain in the UK, as does she. In circumstances where the appellant’s mother would not be leaving the UK and has a right to remain, I find that it would not be reasonable to expect the appellant’s daughter to leave with the appellant, to leave her mother and to give up the prospect of obtaining settlement and citizenship in the UK.
29. I have considered the weight I should give to the appellant’s family life with his wife in the UK. The appellant’s wife is not a qualifying partner because she is not yet settled in the UK. I bear in mind that statute prescribes that I should consider giving little weight even to a relationship with a qualifying partner which is established at a time when a person is in the UK unlawfully. However I do give the relationship some weight. I give the relationship some weight because the appellant came to the UK as an unaccompanied asylum seeking child who was looked after by the local authority and was naturally in that context assisted to integrate into the UK; in that context it is not surprising that he would form friendships and relationships in the UK.
30. Although the appellant has lived in the UK unlawfully, I do give some weight to his private life. I have given consideration to giving little weight to his private life, but I note that although he entered the UK unlawfully, he came as an unaccompanied asylum-seeking child brought to the UK because his brother was in the UK. Although given the findings of previous judges he must have been an economic migrant, being a child who left Iraq at the age of 15 it is reasonable to infer that the decision to leave for better opportunities elsewhere must have been one taken for him by the adults in his life. Again, as with my findings about family life, the appellant was in the UK initially being looked after by the local authority and would have been rightly encouraged to form friendships and to begin to integrate into the UK; he has been in the UK for 8 ½ years.
31. I do not however consider, contrary to Mr Mohzam’s submissions, that I can take into account in favour of the appellant that the respondent has not actively sought to remove him or that such feature lessens the public interest in his removal. There has been no delay in the decision-making process and persons who have not succeeded in their applications are expected to leave the UK themselves.
Application of the facts to the proportionality balance
32. On the appellant’s side of the balance are the following:
(i) My findings about his daughter’s best interests as set out above;
(ii) The appellant’s family life in the UK with his wife to which I have given some weight as explained above. Although I have found that there would be no insurmountable obstacles to family life continuing in Iraq (as opposed to Iran) there would still be significant difficulties as set out above;
(iii) The appellant’s private life in the UK over 8 ½ years in the UK begun when he was a child, to which I have given some weight as also explained above.
33. When considering what if anything to add to the public interest in the maintenance of effective immigration controls, I take into account the section 117B factors. The appellant speaks some English so that is a neutral factor. The appellant is not financially independent at the moment so that adds to the public interest, but as someone capable of work, and expressing a desire to work to support his family, if given leave to remain he should be able to find employment and therefore not need to be reliant on public funds.
34. It does add to the public interest in his removal that the appellant is an overstayer, but I consider it significant when evaluating the strength of such additional factor that the appellant initially came to the UK as a child and as set out above it would have been the choice of adults to send him away from Iraq. He remained in the UK after he became adult but that must be seen in the light of his continuing on a path for which he was not initially responsible. I do not consider that it adds to the public interest that the appellant has not always given fully truthful evidence (as Mr Parvar submits). The appellant has not been charged with any criminal offences; necessarily for his case to have been dismissed he did not give completely truthful evidence, but I repeat, he has continued on a path set for him by others.
35. When taking the proportionality balance, I take fully into account the public interest in the maintenance of effective immigration control. In that context the scheme of immigration rules under which there is no provision for family life to be continued in the UK with a non-settled partner or a non-settled child who has not lived in the UK for at least 7 years is significant. It is expected that only those with that level of connection to the UK should be able to continue family life in the UK. In addition, I consider that there is some additional interest in the appellant’s removal because he is an overstayer albeit it is not the strongest additional interest in the circumstances I have explained, and some additional interest because he is not yet financially independent.
36. Nevertheless, taking together all the matters set out above I find that there is overall a strong article 8 claim, or exceptional circumstances which outweigh the public interest in removal and mean that the decision is disproportionate. The appellant’s daughter’s best interests are a primary consideration, as the decision would separate a father from his daughter born in the UK who is approaching the end of her route to settlement. In addition to the daughter’s best interests are his family life with his wife and his private life to which I give some weight bearing in mind as I have said that the appellant came to the UK as an unaccompanied child and has lived in the UK for 8 ½ years since the age of 16.
37. On remaking, I allow the appeal on human rights grounds.

Notice of Decision
I allow the appellant’s appeal on human rights grounds.

A-R Landes

Judge of the Upper Tribunal
Immigration and Asylum Chamber

9 April 2025

Annex (error of law decision)

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-004935

First-tier Tribunal No: PA/55661/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE LANDES

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

A A
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr Mohzam (Counsel, instructed by CB Solicitors)
For the Respondent: Ms Simbi, Senior Home Office Presenting Officer

Heard at Field House (by CVP) on 9 August 2024

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. Although the Secretary of State has brought this appeal, for ease of reference I refer to the appellant and respondent as they were before the First-Tier Tribunal.
Background
2. The appellant is a national of Iraq. He first came to the UK and claimed asylum on 22 September 2016 when he was 16 years’ old. His claim was refused and his appeal against that decision dismissed in July 2017. He made further submissions in August 2021 which were accepted as a fresh claim but refused by decision of 22 November 2022. His appeal against that decision was heard by Judge O’Rourke. In a decision promulgated on 31 October 2023, the judge dismissed the appellant’s international protection claims but allowed the appellant’s human rights claim on the basis of the appellant and his partner (they are married in a religious marriage) and child’s rights under Article 8 ECHR.
The appeal to the Upper Tribunal
3. The Secretary of State has appealed against the allowing of the appellant’s human rights’ claim with permission granted in the First-Tier Tribunal by Judge Aziz.
4. As a preliminary point, Ms Simbi agreed that ground 2 was the main ground and ground 1 was only pursued insofar as it was linked to ground 2. As Judge Aziz commented when granting permission and saying that there was an arguable material error of law with regard to ground 2 “the failure of the judge to consider the appellant’s ability to redocument and internally relocate to another part of the country (with his family) may have been a material consideration that should have been factored into the[Article 8] assessment”. Clearly the Secretary of State had succeeded as far as the international protection claims of the appellant were concerned and so they could not challenge the dismissal of the appeal. There was no cross-appeal and so the dismissal of the appellant’s international protection claim was unchallenged.
5. Ground 2 naturally splits into two parts – the first part, paragraphs 11 to 15, attacking the judge’s findings of a genuine and subsisting relationship between the appellant and his partner and child for inadequacy of reasons, and the second part, paragraphs 16 to 19, attacking the judge’s findings about his partner and child’s inability to live in Iraq with him and the unlikelihood of the appellant returning to the IKR for inadequacy of reasons. Also challenged at this stage is the judge’s performance of the Article 8 ECHR balancing exercise.
Genuine and subsisting relationship
6. I raised with Ms Simbi my preliminary view that the judge had given detailed reasons at [22] for finding that the appellant had a genuine and subsisting relationship with his partner and child. She realistically accepted that the judge was entitled not to draw an adverse inference from the failure of the appellant’s partner to attend the hearing, but submitted that there had been an opportunity for the appellant’s partner to put evidence before the tribunal. She said the appellant must have seen his representatives as a witness statement had been produced from him, and as he had access to solicitors there was no reason documentary evidence and a witness statement from his partner could not have been put forward or discussed.
7. The submission in the grounds was that there was insufficient evidence of continued cohabitation between the appellant and his partner and child and there was no credible explanation for the absence of “key evidential submissions” (presumably a witness statement/documentary evidence).
8. The judge heard from the appellant, who was a vulnerable witness. His representatives had clearly been trying to obtain a medical report on his condition [22] describing him as having “some kind of mental instability”. It was evident they had difficulties obtaining instructions. His personal advisor from Social Services said that he struggled with his memory and retaining information [15]. The judge accepted, giving reasons, that the appellant was genuinely unaware of the extent of evidence he could have provided in respect of the relationship with his partner and child, and that the appellant had not thought, or been advised, or co-operated in updating the evidence of his relationship since early 2021. In other words, the judge found that there was a credible explanation for the absence of further documentary evidence/witness statements.
9. Furthermore, the judge gave cogent reasons for placing weight on the letter of March 2023 from the social services’ advisor which described the appellant as wanting the best for his family. The judge explained why that phrase could only refer to the appellant’s family in the UK and it was reference to them as a “family” from someone who would know of their existence. There was therefore some relatively recent independent evidence of the family relationship.
10. In addition, as Mr Mohzam pointed out in his submissions, the Home Office had the opportunity to cross-examine the appellant and test his evidence about family life.
11. I conclude that the judge gave adequate reasons for his finding of the genuine relationships and made no error of law in this respect. The averments in the grounds amount in effect to an allegation of perversity, but the findings are clearly not perverse bearing in mind the judge heard from the appellant and also had a letter from the social services advisor, and of course there was further, albeit old, documentary evidence.
The Article 8 balancing exercise
12. As far as the Article 8 balancing exercise is concerned, Ms Simbi submitted in summary that the judge had generalised from the CPIN and there was nothing to indicate the extract quoted about the Iranian intelligence services’ activities in Iraq meant that no Iranian would be able to live in the IKR. The judge had made findings that there was a relative unlikelihood of the appellant’s forced or voluntary return to the IKR, but he had not considered the feasibility of the appellant’s return to the IKR in the light of whether documents could be obtained, and he had not considered country guidance in this respect.
13. Mr Mohzam submitted in summary that the judge had first looked at the best interests of the child. At the time of the decision, the mother and child would have section 3C leave and they were on the route to settlement so GM (Sri Lanka) [2019] EWCA Civ 1630 was relevant. The judge was looking at the realistic and practical circumstances – the judge had to take into account that as the appellant’s partner was Iranian would she be able to obtain any documentation, how would she be able to travel from the airport, would it be feasible. Bearing in mind the discrimination Kurdish people suffered in Iran it seemed inherently unlikely and unfeasible to expect the appellant’s partner and child to join him in Iraq. The judge had looked at all considerations and the best interests of the child and made a proper finding open to him on the evidence. I asked Mr Mohzam if he wanted to say anything about the documents point. He said that feasibility might be one part but obtaining documents would be another thing. The appellant himself might be able to get a document but what about the appellant’s partner and child. It would be difficult for them to live given the tensions; the judge had looked at matters in the round.
14. I consider that the judge’s findings are inadequately reasoned in the two respects pointed to in the second part of ground 2. The judge does not give adequate reasons for his consideration that it would be inherently unlikely and unfeasible to expect the appellant’s partner and child to join him in Iraq. The extract from the CPIN at 28 [v] does not indicate that an Iranian woman and child, married to an IKR resident, would not be able to enter the IKR or would not be welcome or safe there. As the judge noted, he had no direct evidence on the point. I do not consider it can be inferred as Mr Mohzam submits that an Iranian woman would not be able to live in the IKR because Kurdish people suffer discrimination in Iran. Whilst Mr Mohzam’s point about whether the appellant’s partner and child would be able to obtain documents may well be one that needs consideration, this is not something the judge took into account. I was not directed to any material which was before the judge which would indicate that it would not be possible for a non-Iraqi woman married to an Iraqi man to obtain relevant documentation. As indicated in the paragraph below, the judge did not consider the question of documentation at all.
15. The judge considered at 29 (i) that the public interest was reduced because of the relative unlikelihood of the appellant’s forced or voluntary return to the IKR but the judge did not explain why he considered the appellant’s return to the IKR to be unlikely. As was pointed out at ground 1, a copy of the appellant’s CSID card was in the appellant’s bundle, and it had been found that the appellant was in contact with family members in Iraq. Those facts indicate that the appellant could be redocumented to enable him to return or to be returned. The judge’s reasoning is inadequate in this respect as well. He did not mention or consider the documentation issue.
16. Mr Mohzam makes points which would be valid in a fresh consideration of the Article 8 balancing exercise about the appellant’s partner and child being on a route to settlement, and as I have said a point which needs further exploration about whether the partner and child could obtain the necessary documents, but those are not points which the judge specifically considered and cannot make inadequate reasoning adequate.
Conclusion
17. Because there are errors of law in the judge’s reasoning as to whether the appellant’s partner and child could live with him in the IKR and that the appellant’s forced or voluntary return to the IKR is unlikely, I set aside the judge’s decision allowing the appeal on human rights grounds. I preserve the judge’s findings which are free from error, namely that as at the date of hearing in October 2023 there was a genuine and subsisting relationship between the appellant and his partner and the appellant and his child. The judge’s dismissal of the appeal on asylum and humanitarian protection grounds stands.
18. The parties agreed that if I found there to be no error of law in the judge’s findings about the genuine and subsisting relationship then the remaking should be retained in the Upper Tribunal as there would not need to be extensive contentious fact finding. I have considered the terms of Part 3 of the Practice Directions of 2018 and Part 7 of the Practice Statement of 2012 and consider that this is a case which should be retained for remaking in the Upper Tribunal as it has not been suggested that a party has been deprived of a fair hearing and the effect of the error has not been to deprive a party of an opportunity for their case to be considered by the First-Tier Tribunal. Any fact finding is likely to be limited.
19. Judge O’Rourke retained the anonymity order in his decision despite dismissing the international protection claim. I did not ask the parties for submissions on whether it was appropriate to continue an anonymity order so it is continued for now; the parties are on notice that at the remaking hearing the question of whether to continue the anonymity order further will be considered.
Notice of Decision
The judge’s decision allowing the appeal on human rights’ grounds (Article 8) contains errors of law and is set aside. The judge’s findings at [22] and [23] that the appellant had a genuine and subsisting relationship with his partner and child at the date of the hearing before him are preserved.
The judge’s decision dismissing the appeal on asylum and humanitarian protection grounds stands.
Remaking of the Article 8 decision is retained in the Upper Tribunal.
Directions
1) The resumed hearing will be listed at Field House on the first available date with a time estimate of 2 hours.
2) The hearing will take place by CVP unless the appellant’s representatives indicate within 14 days that it is not practical for the appellant/any other witnesses who will be called to give evidence over a CVP link.
3) The appellant’s representatives are to tell the Tribunal at least 14 days before the resumed hearing whether an interpreter is required and if so to specify the language and dialect.
4) Either party is at liberty to file and serve further evidence at least 14 days before the resumed hearing relevant to the appellant and his partner and child’s current circumstances, the partner and child’s leave in the UK, whether the partner and child could live in the IKR and the appellant’s own ability to obtain relevant documentation. It would be helpful to have evidence from the appellant’s partner.
5) Any evidence filed and served by the appellant must be in a consolidated electronic bundle properly indexed and bookmarked containing all evidence relied upon.
6) Any further evidence on which the respondent wishes to rely must be contained in an indexed and bookmarked electronic bundle.

A-R Landes

Judge of the Upper Tribunal
Immigration and Asylum Chamber

23 August 2024