Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001127

First-tier Tribunal Nos: PA/55823/2022
LP/02760/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 24 July 2025

Before

UPPER TRIBUNAL JUDGE PINDER

Between

MAS
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms E Rutherford, Counsel, instructed by Rodman Pearce Solicitors Ltd.
For the Respondent: Ms A Arif, Senior Presenting Officer

Heard at Birmingham, Priory Court on 23 June 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. The Appellant appeals against the decision of First-tier Tribunal Judge Row (‘the FtT/the Judge’) promulgated on 3rd February 2024. The Judge dismissed the Appellant’s appeal against the Respondent’s decision of 13th November 2022, in which the Respondent refused the Appellant’s protection and human rights claim.
2. I have maintained the anonymity order in favour of the Appellant. I consider that the specific facts of this appeal, the maintenance of the integrity of the United Kingdom’s immigration system and the Appellant having raised a claim to international protection, are such that an anonymity order is a justified derogation from the principle of open justice.
Factual and Procedural Background
3. The Appellant is a national of Iran born in 2004. He entered the UK on 9th November 2021 and claimed asylum. The Appellant’s protection claim is grounded in his account that he is wanted by the Iranian authorities for his perceived political views arising from the assistance he provided in Iran after Peshmergas who were members of the Komala party of Kurdistan of Iran requested him to help deliver political materials. The Appellant also states that he has been engaging in sur place political activities, here in the UK, which would put him at risk from the Iranian authorities on return. The Appellant appealed to the FtT against the Respondent’s refusal of his protection and human rights and his appeal was heard by the Judge on 1st February 2024.
Decision of the First-tier Tribunal
4. At [35] to [47], the Judge made a number of findings in relation to the Appellant’s account and its credibility, considering the concerns raised in the refusal decision by the Respondent and finding in favour of the Appellant. This included that the Appellant had made a genuine effort to substantiate his asylum claim and had cooperated with the appeal process, that he had applied at the earliest opportunity, and that the Appellant’s account did not run counter to the general information relevant to this case. The Judge also found that the Respondent’s concerns that the Appellant did not know much about the Komala Party were explained by the fact that he was 16 or 17 years old when these events are said to have occurred. The Judge was also satisfied that the Appellant’s young age, as well as other explanations provided by the Appellant to the Respondent, amounted to reasonable explanations for several other matters raised by the Respondent against the Appellant.
5. At [49]-[50], the Judge stated as follows:
“49. The appellant’s account is that members of the Peshmerga, who were strangers to him, approached him. After a brief discussion they told him their identity. They asked him to deliver sensitive documents to a secret base. They told him where the base was. Two other men gave him these documents. Then further sensitive materials were given to him at the secret base and the identity of Ahmed given.
50. It is not plausible that so many people would put themselves and their colleagues at risk by disclosing secret information to a 16-year-old they had never met before. He might have immediately informed the authorities. I do not find the appellant’s account to be credible.”
6. At [51] to [55], the Judge went on to consider the factors listed in s.8 Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 noting that the Respondent had not taken issue with any of those factors against the Appellant. This was because the Appellant’s age during his journey was a reasonable explanation for him to follow the instructions of other adults and for him not to claim asylum in one of the other countries he travelled through. At [51], the Judge expressly accepted that this did not damage the Appellant’s credibility for the same reasons.
7. However, at [52] to [55], the Judge considered that the Appellant’s apparent failure to claim asylum in other safe countries on the journey from Iran to the UK “makes sense” if the Appellant was coming to the UK for economic reasons. This was because the Judge did not find it plausible that the Appellant’s father and uncle, with poor financial and economic circumstances, would incur the high cost of financing the Appellant’s journey to the UK and would send the Appellant on such a dangerous journey, if fleeing harm in Iran.
8. At [53]-[54], the Judge concluded as follows:
“53. I do not find it plausible that his father and uncle would incur such expense, and put the appellant to such danger, to enable the appellant to be sent to the United Kingdom. Safety could have been obtained far closer to home and with far less physical danger than would be incurred in the long overland and overseas journey to the United Kingdom.
54. On the other hand if the appellant was coming to the United Kingdom for economic reasons the decision makes sense.”
9. In respect of the Appellant’s claim to have assisted the Peshmergas and the Komala Party, the Judge considered at [56]-[57] that it would have been reasonable for the Appellant to attempt to obtain a letter in support of his claim to have provided such assistance, concluding at [58] that the Appellant had not met all of the requirements of para 339L of the Immigration Rules. The Judge’s findings on the evidence, that the Appellant could have attempted further evidence, followed the Judge’s consideration at [56] of background evidence contained in the CPIN. The Judge assessed this as the “Komala party will give letters of recommendation to people who have assisted it. The CPIN Iran: Kurds and Kurdish political groups Version 4.0 May 2022 paragraph 12.3 confirms this.” (emphasis original).
10. The Judge’s conclusions on the Appellant’s pre-flight claim are at [59]-[61] and effectively set out that the Judge found that the Appellant’s account was fabricated, and reiterating the matters that the Judge found to be implausible as summarised above.
11. The Judge went on to consider the Appellant’s claim as far as it relates to his sur place activities, noting the evidence produced in support of his claim to have attended demonstrations in front of the Iranian Embassy and to have published posts on Facebook. At [66], the Judge recorded that the Judge had found the Appellant to have been an unreliable witness as to fact (in the context of his pre-flight claim) but reminded himself that this did not necessarily mean that the Appellant was telling lies about his political interests in the UK.
12. At [67]-[68], the Judge noted that the Appellant was not a member of a political party and that there was no other independent corroboration of his political interest. The Judge concluded that the Appellant’s political interest in the UK had been feigned for the purpose of his asylum application. The Judge then confirmed that in the absence of any prior interest in the Appellant from the Iranian authorities, the Appellant’s attendance at demonstrations or his Facebook entries would not put him at a real risk of persecution/serious harm from the Iranian authorities.
13. There did not appear to be any Article 8 claim before the Judge to determine and so accordingly, the Judge went on to dismiss the Appellant’s appeal on protection and human rights grounds under the Refugee Convention, and Articles 2 and 3 ECHR.
The Appellant’s Appeal to the Upper Tribunal
14. The Appellant applied for permission to appeal raising four grounds of appeal against the Judge’s decision and findings, three of which effectively go to the Judge’s approach to the Appellant’s subjective account, including its credibility under s.8 of the 2004 Act and whether there should have been supporting documents from the Komala Party. The fourth ground seeks to challenge the Judge’s findings on the Appellant’s sur place claim.
15. The Appellant first argues that at [49]-[50], the Judge materially erred in law by rejecting the Appellant’s account on plausibility grounds and the Appellant relies on the well-established judgment of the Court of Appeal in SSHD v HK [2006] EWCA Civ 1037. The Appellant also makes additional and alternative submissions that the Judge, in any event, had made mistakes as to the evidence given by the Appellant concerning the information given to him by the Peshmergas. The Appellant challenges the Judge’s record at [49] that “(a)fter a brief discussion (the Peshmergas) told him their identity” and disclosed the location of their “secret base”. This is, the Appellant argues, not supported by the Appellant’s evidence before the Judge at the time of the appeal hearing.
16. The Appellant argues in his second ground of appeal that there was procedural unfairness in the Judge considering a factor under s.8 of the 2004 Act and holding this against the Appellant, when this had not been raised against him by the Respondent. The Appellant argues that this had not been raised with him at the appeal hearing either, whether by the Respondent or the Judge themselves. The Appellant also argues that the Judge’s reasoning when considering the applicability of s.8 is irrational. He submits that it is unclear why the Judge concluded that a person would be more likely to undertake a very dangerous and costly journey to the United Kingdom for economic purposes compared to someone who was fleeing persecution.
17. In his third ground of appeal, the Appellant submits that the Judge’s consideration of the CPIN and what letters might be issued by the Komala Party in respect of those that assist the party was erroneous. The Appellant also raises that this was not a matter raised by the Respondent in the refusal decision nor at the hearing, thereby causing procedural unfairness again.
18. Lastly with regards to the Appellant’s fourth ground of appeal, this was largely premised as flowing from the Judge’s erroneous adverse credibility findings reached in the context of the Appellant’s pre-flight claim that were carried forward in the Judge’s assessment of credibility in his sur place claim. To this extent, the Appellant’s fourth ground is largely dependent on the other first three grounds of appeal pursued. The Appellant does also make separate submissions seeking to challenge the Judge’s conclusions on the sur place claim at para 3(i).
19. In granting permission to appeal, the Upper Tribunal noted that the Judge has arguably given insufficient reasons for finding that the Appellant’s account of delivering documents was not credible, and that the Judge has based his findings on the plausibility of his account without a full consideration of the Appellant’s evidence on this point. The Upper Tribunal also observed that the Judge’s consideration under Section 8 was arguably flawed and that the Judge had arguably erred in his consideration of a lack of evidence from the Komala party at [60]. For completeness, the Upper Tribunal noted that the grounds in respect of the Appellant’s sur place claim were also arguable.
20. In response, the Respondent did not file and serve a reply under Rule 24 of the Procedure Rules.
21. At the hearing, both parties’ advocates made further submissions on each of the grounds of appeal pursued and Ms Arif, on behalf of the Respondent, defended the Judge’s decision. At the end of the hearing, I was able to indicate to both parties, and provided brief reasons orally, that I was satisfied that the first three grounds of appeal were made out. I have addressed the Appellant’s written pleadings and the parties’ respective oral submissions in the section below when setting out my analysis and conclusions in full for my decision.
Analysis and Conclusions
The Appellant’s first ground of appeal
22. I am satisfied that the Judge has fallen foul of the well-established guidance contained in HK cautioning against findings grounded in plausibility. In HK, Neuberger LJ made the following well-known remarks:
“27. The difficulty of the fact-finding exercise is particularly acute in asylum cases, as has been said on more than one occasion in this court - see for instance Gheisari –v- Secretary of State [2004] EWCA Civ 1854 at paragraphs 10 and 12 per Sedley LJ and at paragraphs 20 and 21 per Pill LJ. The standard of proof to be applied for the purpose of assessing the appellant's fear of persecution is low. The choice is not normally which of two parties to believe, but whether or not to believe the appellant. Relatively unusually for an English Judge, an Immigration Judge has an almost inquisitorial function, although he has none of the evidence-gathering or other investigatory powers of an inquisitorial Judge. That is a particularly acute problem in cases where the evidence is pretty unsatisfactory in extent, quality and presentation, which is particularly true of asylum cases. That is normally through nobody's fault: it is the nature of the beast.
28. Further, in many asylum cases, some, even most, of the appellant's story may seem inherently unlikely but that does not mean that it is untrue. The ingredients of the story, and the story as a whole, have to be considered against the available country evidence and reliable expert evidence, and other familiar factors, such as consistency with what the appellant has said before, and with other factual evidence (where there is any).
29. Inherent probability, which may be helpful in many domestic cases, can be a dangerous, even a wholly inappropriate, factor to rely on in some asylum cases. Much of the evidence will be referable to societies with customs and circumstances which are very different from those of which the members of the fact-finding tribunal have any (even second-hand) experience. Indeed, it is likely that the country which an asylum-seeker has left will be suffering from the sort of problems and dislocations with which the overwhelming majority of residents of this country will be wholly unfamiliar. The point is well made in Hathaway on Law of Refugee Status (1991) at page 81:
“In assessing the general human rights information, decision-makers must constantly be on guard to avoid implicitly recharacterizing the nature of the risk based on their own perceptions of reasonability.”
30. Inherent improbability in the context of asylum cases was discussed at some length by Lord Brodie in Awala –v- Secretary of State [2005] CSOH 73. At paragraph 22, he pointed out that it was "not proper to reject an applicant's account merely on the basis that it is not credible or not plausible. To say that an applicant's account is not credible is to state a conclusion" (emphasis added). At paragraph 24, he said that rejection of a story on grounds of implausibility must be done "on reasonably drawn inferences and not simply on conjecture or speculation". He went on to emphasise, as did Pill LJ in Ghaisari, the entitlement of the fact-finder to rely "on his common sense and his ability, as a practical and informed person, to identify what is or is not plausible". However, he accepted that "there will be cases where actions which may appear implausible if judged by…Scottish standards, might be plausible when considered within the context of the applicant's social and cultural background".
23. In KB & AH (credibility-structured approach : Pakistan) [2017] UKUT 491 (IAC), the Upper Tribunal held that plausibility is a valid indicator of credibility, but requires a certain degree of caution in its approach.
24. The Judge’s errors are particularly so given the Judge found in favour of the Appellant at [35]-[47] on many aspects of the Appellant’s subjective account. There are no other reasons given by the Judge at [49]-[50] relating to the Appellant’s subjective account and the reasons given there by the Judge only relate to issues of plausibility. There is no consideration of the guidance extracted above either.
25. I am also satisfied that the matters raised by Counsel at para 3(c) of the grounds of appeal to this Tribunal, further confirm the dangers of assessing a claim against what the Judge considers to be plausible. Ms Rutherford helpfully took me to the evidence that was before the Judge in respect of his encounters with the Peshmergas. He stated at para 10 of his witness statement relied upon at first instance as follows:
“One day, as usual, I took the animals for grazing. This was about a month before I fled. During the day, I was making tea and five Peshmergas came to me and they told me that they were from the Komala party of Kurdistan of Iran. They sat down to have tea with me when I agreed for them to sit with me. I have never met these five Peshmergas before. When they asked me if they could join me for tea, I accepted because in our culture, if someone asks to have tea with you, you accept and welcome them.”
26. The Appellant continues at para 12 of the same statement providing further details:
“They told me that I will take these materials to the mountain base of Ghocha. They told me that there is a hill there called Rasha-Harme. They told me that when I get there, two Peshmergas will give me materials and then I will continue on my way back to the village and before I arrive there is a woodshed where a man called Ahmed will meet me to collect it.”
27. It is clear from the above-cited extracts that the Appellant never claimed to have been privy to the Peshmergas’ identities, nor of the location or any other secret information concerning their base. Whilst Ms Arif submitted that those findings were open to the Judge, she did not seek to highlight any aspect of the evidence at first instance which was capable of supporting the Judge’s record of these issues at [49]-[50]. For these reasons and those above, I am satisfied that the Judge has materially erred in rejecting the Applicant’s account on grounds of plausibility at [49]-[50].
The Appellant’s second ground of appeal
28. I am also entirely satisfied that there was procedural unfairness in the Judge holding against the Appellant under s.8 of the 2004 Act at [51]-[54] of the decision. This is because this was expressly considered by the Respondent and expressly not held against the Appellant by her. The procedural unfairness was further compounded by the fact that this issue was simply not raised with the Appellant at the appeal hearing nor by the Respondent or by the Judge himself.
29. Whilst Ms Arif is correct to submit that factors contained in s.8 are to be considered, Ms Arif did not dispute the fact that this had not been raised with the Appellant at the appeal hearing. This was necessary since the Appellant had otherwise understood this not to be an issue between the parties before the Judge.
30. There is also considerable force in Ms Rutherford’s submission that it is difficult to understand on what basis the Judge concluded that a person who is coming to the UK for economic reasons, the terms used by the Judge at [54], would be more willing to undertake a more than difficult and dangerous journey to the UK versus someone who is seeking safety and fleeing harm in Iran. For the above reasons, I am also satisfied that this ground is made out.
The Appellant’s third ground of appeal
31. I have considered the parties’ competing submissions on this ground very carefully and in particular, Ms Arif’s submission that the Judge is merely considering at [57] that it would have been reasonable for the Appellant to have tried to obtain supporting evidence from the Komala Party. Had this been raised by the Respondent or had the Appellant been otherwise aware that this was an issue, or likely to be, I may not have been satisfied that this ground was made out. However, it appears that this was not an issue that was put to the Appellant during the hearing and had this been raised, I consider it relevant that the Appellant may have been able to address this. There is thus procedural unfairness here too.
32. Even if I am wrong on the above, I am satisfied that the Judge has fallen into error here since at [56] he records very clearly that the “Komala Party will give letters of recommendation to people who have assisted it”, referring to para 12.3 of the relevant CPIN. However, following a helpful analysis provided by Ms Rutherford of the CPIN itself, I am satisfied that the Judge’s finding at [56] is in fact incorrect. The Judge has throughout their decision referred to the political party in question as the “Komala Party” when there are in fact several parties using the name “Komala”.
33. The party that the Appellant has raised in his claim is the Komala Party of Kurdistan of Iran, with regards to which the CPIN states at 12.4.6 that this party issues letters to verify membership. As is clear from para 12.4.3-4 and 12.4.7, other parties issue letters to “sympathisers” also. In light of this background information, I am entirely satisfied that the Judge was mistaken in recording that the Party “will give letters” to those who assisted it and that this led him to incorrectly consider that the Appellant had evidence available to him which he had not attempted to obtain. Thus, the Judge’s considerations at [57] are unsafe.
34. I also pause to note that the Judge stated at [58] that the Appellant had not “met all the requirements of paragraph 339L”. This appears to be the Judge’s conclusion in respect of their assessment of the credibility of the Appellant’s account. It appears to me that the Judge has structured their credibility assessment entirely around the requirements of paragraph 339L, thereby appearing to misunderstand the task that was incumbent on them in the appeal determination. At [58], the Judge does not draw together all of the factors considered earlier in their determination to reach conclusions on the credibility of the account. The sole conclusion in that paragraph is that the Appellant has not met all of the requirements of paragraph 339L.
35. This is not a permissible approach to credibility. The Upper Tribunal stated at [32] of KB & AH (credibility-structured approach) Pakistan [2017] UKUT 00491 (IAC) that ““Credibility Indicators” have to be understood as just that: a mere set of indicators, factors or indiciae. They are far from being a set of necessary conditions or requirements. To seek to apply them as if they were determinative would be unduly prescriptive as well as fatal to the need to ensure a full examination of the individual circumstances.”
The Appellant’s fourth grounds of appeal
36. I turn briefly to the Appellant’s fourth ground of appeal relating to the Appellant’s sur place claim. As I have set out above, I am entirely satisfied that the Judge has committed errors of law as argued in the Appellant’s first three grounds of appeal and that these errors are material since they concerned the overall credibility of the Appellant’s claim. I am satisfied that this will have influenced the Judge’s assessment of credibility in so far as it relates to his sur place activities as argued by the Appellant in his fourth ground of appeal.
37. It is not necessary therefore for me to assess any further the Appellant’s specific submissions on how the Judge approached the evidence of the sur place activities.
38. For the reasons above, I am satisfied that the material errors of law made by the Judge as pursued by the Appellant in his first three grounds of appeal in particular, are made out. I am satisfied that the First-tier Tribunal’s decision to dismiss the appeal should be set aside pursuant to Section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 with no findings of fact preserved.
39. I have considered and applied the guidance in paragraph 7 of the Senior President’s Practice Statement as well as the guidance in AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (remaking or remittal) [2023] UKUT 46 IAC. The parties were agreed that following my indication that the first three grounds of appeal were made out, it would be appropriate for the matter to be heard afresh in the First-tier Tribunal before a different judge and that no findings of fact should be preserved. Having considered the guidance referred to above, I am satisfied that such a disposal is appropriate.
Notice of Decision
40. The decision of the First-tier Tribunal dated 13th May 2024 contained material errors of law and is set aside.
41. The appeal is to be remitted back to the First-tier Tribunal for remaking afresh before a different judge.

Sarah Pinder

Judge of the Upper Tribunal
Immigration and Asylum Chamber

11.07.2025