Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-000504

First-tier Tribunal No: PA/54616/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 12 March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE DAYKIN

Between

SAM
[ANONYMITY ORDER MADE]
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Georget (instructed by UK and EU Immigration Law Services)
For the Respondent: Mr A Mullen (Senior Home Office Presenting Officer)

Heard at Field House on 18 February 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and his family members are 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 and his family members. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. This is an appeal brought with permission, by the appellant against the decision of the First-tier Tribunal dated 19th December 2023 in which the appellant’s protection and human rights appeal was dismissed.
2. In summary the appellant’s case is that he is an Iraqi national of Kurdish ethnicity. Whilst working at an oil garage he discovered an illegal oil smuggling operation being run by leaders of the PMF and PUK. He reported it to Bahar Mahmood, a former member of parliament but she was unable to protect the appellant from these groups, whom he fears will kill him upon return to Iraq.
3. First-tier Tribunal Judge Lester (“the Judge”) did not find the appellant to be credible on the core of his claim, and it is those conclusions at paragraphs [18]-[31] that are challenged in this appeal before the Upper Tribunal.
4. The appeal proceeded by way of CVP. The parties confirmed that the 321-page composite bundle contained all the relevant documentation. There was one point during the course of the hearing that Mr Mullen lost connection. The hearing was immediately paused and only resumed once Mr Mullen had reconnected.
Summary of grounds and submissions
5. Mr Georget for the appellant relied upon three grounds of appeal. There was no rule 24 response, but it was confirmed by Mr Mullen that the respondent resisted the appeal. We heard submissions on behalf of both parties in respect of all grounds of appeal.
6. Firstly, the appellant contends that the Judge erred in placing no weight on the evidence from Bahar Mahmood. The evidence consists of a screenshot of a Facebook profile of Bahar Mahmood, a screenshot of a handwritten document signed by Bahar Mahmood sent via Messenger by the Bahar Mahmood profile. The Judge placed no weight on this evidence because there is “no evidence to be able to confirm that this profile is of the actual Bahar Mahmood, and no evidence has been provided to prove that this social media profile is of the actual politician” [25] and [30]. The appellant contends that it is incorrect to say that there is no evidence to link the profile to Bahar Mahmood because the Facebook profile page was in the name of Bahar Mahmood, she is described as one of the “Former Members of Parliament at Parlaman Kurdistan” and the profile has 4200 friends. The question was whether in light of that evidence, the Judge accepted it as reasonably likely to be true.
7. Mr Georget emphasised in his submissions that the evidence demonstrated a chain of custody of the handwritten letter, the source of it was the Bahar Mahmood Facebook profile. The alternative being that the appellant or someone else had created a fake profile, obtained thousands of friends and manufactured the evidence. The Judge had provided inadequate reasons for rejecting the evidence.
8. Mr Mullen on behalf of the respondent accepted that the first ground was correct up to a point because there was evidence but what the Judge meant was that there was no independent evidence to demonstrate this evidence was from the politician. The 4.2k friends could in fact be fewer and from multiple accounts. The Judge applied the correct test.
9. Secondly, the appellant contends that Judge mischaracterised his evidence at [23] when finding that the appellant was unaware of the importance of the CSID card. The appellant did not know his Family Book number and was unaware of the importance of that, rather than the CSID card itself. Mr Georget confirmed that this was an issue going to the appellant’s credibility and not an ID card point as such, since the appellant had provided a copy of his CSID card and accepted that the original was at home with his mother.
10. Mr Mullen submitted that it was understandable that the appellant does not understand the significance of the Family Book entry but the appellant had said he had obtained work without showing the CSID card which was at odd with the objective material. There was no material error of law in relation to the substance of the appellant’s claim.
11. Thirdly, the appellant contends that the Judge erred in the consideration of section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 at [19] for providing inadequate reasons for finding the provision applied in his case. The Judge recorded the appellant’s evidence about his journey to the United Kingdom and then concluded that the appellant’s assertion was rejected due to his answers. This is a reasons challenge because the Judge failed to explain which assertion was rejected and why.
12. Mr Georget submitted that any of these errors would be material of the overall decision. In answer to my question about whether the Article 15 (c), identity documentation and Article 8 findings at [32] – [61] were impacted by the contended errors, Mr Georget submitted that all the protection issues were impacted by the credibility findings, but the article 8 findings could possibly be preserved.
13. Mr Mullen submitted that there was no reason why the appellant could not claim asylum in the other signatory states that he passed through. This was adverse to the appellant overall but does not go to the core of the claim and therefore there is no material error in any event. In conclusion, the Judge was entitled to look at the evidence in the round, the documents did not prove themselves and there were aspects of the evidence that justify an adverse credibility finding. Mr Mullen submitted that the article 15 (c) and article 8 findings could be preserved.
14. Both parties agreed that if an error of law was found the appeal should be remitted to the First-tier Tribunal because it would require an extensive rehearsal of the evidence.
15. I reserved my decision.
Conclusions
16. In reaching my conclusions I have taken account of the general principles regarding the restricted jurisdiction of the Upper Tribunal to errors of law set out in Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 at §26.
17. I find that there are material errors of law identified in grounds of appeal for the following reasons.
Ground 1
18. Mr Mullen fairly accepted that there was some evidence in relation to the Bahar Mahmood Facebook profile but despite his best efforts to fill the gaps in the Judge’s reasoning, the fact is, the Judge did not deal with what was on the face of the evidence, that potentially supported a conclusion that the letter came from Bahar Mahmood, the politician. The Judge had before them a Facebook profile in the name of Bahar Mahmood, identified as a former MP of Kurdistan with a substantial number of friend connections. It would be inappropriate for me to second guess what the Judge meant or might have concluded if those factors had been addressed. There is a failure to take relevant evidence into account on a material issue or inadequate reasons given for rejecting the evidence. On either view, the evidence from Bahar Mahmood goes to the core of the appellant’s claim and as such this ground alone is material to the credibility assessment.

Ground 2
19. There is less force in this ground, but I accept that the Judge has conflated the appellant’s evidence as to the importance of the Family Book entry with the importance of the CSID overall at [23]. However, I also accept Mr Mullen’s point that the Judge further identified that the appellant’s evidence of having obtained employment at the restaurant and the oil company without having to provide his CSID was at odds with the objective material, which is not challenged. However, the Judge proceeded on the basis that even if the appellant’s account of having obtained employment without showing the CSID was accepted, it was his unawareness of the importance of the CSID which led the Judge to conclude it damaged his credibility. Therefore, I find that there is a material error in the Judge’s adverse credibility finding in this regard.
Ground 3
20. Similarly to Ground 1, it would be inappropriate for me to fill in the gaps in the Judge’s reasoning. I accept as Mr Mullen contended that the appellant’s immigration history may well lead to a conclusion that section 8 applies notwithstanding the appellant’s assertion that he was under the control of an agent and unable to make a claim for asylum enroute. However, I cannot identify from the Judge’s decision why the appellant’s evidence was rejected on this point, which leads me to conclude that the reasoning is inadequate.
Error of law conclusions
21. Each of the three grounds identify an error in relation to the credibility conclusions. They form the building blocks of the overall credibility assessment and once those are taken away, there is not much that remains standing. As such, the errors identified above are material errors of law impacting the sustainability of the findings on the protection claim.
22. I have considered whether the findings on article 15 (c) humanitarian protection and article 3 human rights based on identity documentation can be preserved. I have decided that they cannot because the Judge relied on the adverse credibility findings at [36] and [46], which contain material errors to make conclusions on those issues.
23. I do not consider that the article 8 findings are impacted by the errors of law and those findings can be preserved.
Notice of Decision
24. The appeal is allowed. The decision of the First-tier Tribunal involved the making of material errors of law and is set aside with the article 8 findings at paragraphs [47] – [61] preserved.
25. The appeal will be remitted back to the First-tier Tribunal for remaking to be heard by a different judge.

E Daykin

Judge of the Upper Tribunal
Immigration and Asylum Chamber

10 March 2025