Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001293

First-tier Tribunal No: PA/56139/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 12 March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

HM
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr W Khan, counsel, instructed by Fountain solicitors
For the Respondent: Mr A McVeety, Senior Home Office Presenting Officer

Heard at Field House on 3 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
1. I make an anonymity direction because this appeal arises from the appellant’s protection claim.
2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge G Wilson, dated 15/01/2024, which dismissed the Appellant’s appeal.

Background
3. The Appellant is an Iranian Kurd who was born on 18/03/1999. On 03/06/2021 he made an application for international protection on the basis of his political opinion. The respondent refused his application on 24/08/2023.

The Judge’s Decision
4. The Appellant appealed to the First-tier Tribunal. On 15/01/2024, First-tier Tribunal Judge G Wilson (“the Judge”) dismissed the appeal on all grounds.
5. The Appellant lodged grounds of appeal, and, on 24/07/2024 Upper Tribunal Judge O’Brien granted permission to appeal. He said
The Judge found that the appellant’s sur place activities (attendance at demonstrations and posting on Facebook) did not reflect his genuine political beliefs and would not have come to the attention of the Iranian authorities. However, it had been submitted in the ASA that the appellant could not on return be expected to lie. It is arguable that the Judge erred in law by failing to decide whether the appellant would be questioned on return, whether he would disclose in that questioning his sur place activities (albeit that they were insincere and opportunistic) and whether the appellant would thereby be at risk of persecution or serious harm. It is similarly arguable that the Judge erred in law in his application of HB (Kurds) Iran CG [2018] 00430 (IAC),
The remaining grounds appear less meritorious; however, taking the pragmatic approach recommended in para 48 of Joint Presidential Guidance 2019 No 1: Permission to appeal to UTIAC, I grant permission on all grounds.

The Hearing
6. For the appellant, Mr Khan moved the grounds of appeal. He went straight to [17] and [18] of the decision and told me that, there, the Judge made findings which favour the appellant. There, the Judge says that the appellant’s evidence (found in his asylum interview, his witness statements, and his oral evidence) was all broadly consistent. At [18] the Judge finds that the appellant’s account is consistent with the available objective materials.
7. From there, Mr Khan took me to [20] to [24] of the decision, where the Judge makes findings against the appellant. There, the Judge focuses on just where the appellant’s identity document is. The Judge finds that the appellant identifies two separate individuals who, he says (in different parts of his evidence), holds his identity document. The Judge finds that damages the appellant’s credibility.
8. Mr Khan told me that the Judge’s findings at [20] to [24] are unsustainable because they are inconsistent with findings at [17] and [18]. Mr Khan said that the Judge simply identified one minor inconsistency - which is not enough to dismiss the appeal.
9. Mr Khan emphasised that the appellant’s account is that he was a cross-border smuggler (a kolbar). At [24] the Judge dismisses that account because of what the appellant says about his earnings. The Judge finds that the appellant’s account of his income is inconsistent with the background materials, and that his earnings are stated to be so low that questions must be raised. Mr Khan took me to the appellant’s answer to question 100 of the asylum interview, and told me that the Judge had misinterpreted the appellant’s answer.
10. Mr Khan said that the Judge fell into material error of law at [24] of the decision because the Judge placed too much weight on an ambiguous answer given in asylum interview.
11. Mr Khan argued that the core findings of the Judge of clustered between [20] to [23] of the decision and, separately, [24] of the decision. From there (he said) the Judge jumps to [29] where the Judge doesn’t make clear which parts of evidence he accepts and which parts he does not accept.
12. The appellant’s claim about sur place activities are covered between [30] to [32] of the decision. Mr Khan said that the Judge’s findings of fact are inadequate, and that (between [30] & [32]) the Judge failed to properly address the guidance given in HB (Kurds) Iran CG [2018] UKUT 430. Mr Khan was critical of the judge’s treatment of the guidance given in XX (PJAK, sur place activities, Facebook) Iran (CG) [2022] UKUT 23 (IAC).
13. Mr Khan said that the undisputed facts are that the appellant is Kurdish and he has engaged in illegal activities as a Kolbar. Regardless of whether or not his activities in the UK are disingenuous, he has taken part in political protest against the Iranian regime publicly in the UK, and has posted antiregime sentiment on a Facebook page. The appellant left Iran illegally. Mr Khan told me that the Judge failed to consider that profile against the guidance given in HB (Kurds) Iran CG [2018] UKUT 430. He told me that the Judge’s consideration of risk on return was inadequate.
14. Mr Khan asked me to set the decision aside.
15. For the respondent Mr McVeety stridently defended the Judge’s decision. He was critical of Mr Khan’s interpretation of some caselaw, and suggested that there was reliance on sweeping statements. He said that the appellant’s sur place activities were cynical attempts to bolster a weak asylum claim. He reminded me that the appellant is illiterate, so somebody else must be making Facebook posts for him. The appellant will have no idea what has been posted because he can’t read it.
16. Mr McVeety told me that the Judge made adequate credibility findings. The Judge correctly identified inconsistencies in the appellant’s account. He took me to [20] to [24] of the decision, and told me that, there, the Judge does not identify an isolated, irrelevant, piece of evidence. He told me that in dealing with the documents, and finding inconsistency in the evidence, the Judge focuses directly on the central aspects of the appellant’s claim.
17. Mr McVeety reminded me that weight given to a strand of evidence is a matter for the First-tier Judge. He told me that the Judge’s core findings go to the heart of the appellant’s claim. He took me to [29] and told me that the criticisms made (for the appellant) of the content of [29] are misconceived, because there the Judge is simply summarising the findings made so far.
18. Mr McVeety concluded by characterising the grounds of appeal as simply a disagreement with adequately made findings of fact, reasons, and conclusions. He urged me to dismiss the appeal and allow the decision to stand.

Analysis
19. At [29] the Judge summarises his findings about the appellant’s credibility. After accepting that the appellant’s account has remained broadly consistent, he says that there are significant elements of the account which contain omissions and internally inconsistency, and which are externally inconsistent with objective evidence.
20. [25] to [28] of the decision dwell on the appellant’s journey to the UK and conclude by finding the appellant’s credibility is damaged by section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004.
21. It is between [19] and [24] that the Judge finds inconsistencies in the appellant’s account. The Judge explained why he finds inconsistencies. The inconsistencies are about the name of the person the appellant handed his identity documents to, and the appellant’s claimed level of earnings as a kolbar.
22. The only fact that the respondent accepted before the First-tier Tribunal is the appellant’s nationality. The respondent’s reasons for refusal letter is brief and poorly reasoned. The respondent says the appellant is inconsistent about his involvement with KDPI, inconsistent about who possesses his ID documents, and provides insufficient detail about his employment as a Kolbar.
23. The appellants overall claim is that he worked as a Kolbar. One of his childhood friends became a member of KDPI. He recruited the appellant to work as a courier for KDPI, and put him in touch with another mutual friend who would act a contact and supplier.
24. Between [17] and [24] the Judge considers the appellant’s account. At [17] he finds the appellant’s account to be internally consistent. At [18] he finds the appellant’s account to be consistent with background materials.
25. The Judge then considers the substance of the appellant’s account between [21] and [24]. [25] to [28] of the decision deal with section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004. At [29] the Judge summarises his credibility findings.
26. Having found that the appellant gives a consistent account in various strands of his evidence, and that his evidence is supported by background materials, the Judge finds discrepancy and inconsistency in one part of the appellant’s account between [19] and [24] of the decision. The Judge analyses different sources of the appellant’s account to find that the appellant gives an inconsistent account of who held his identity documents, and by implication how or if those identity documents have fallen into the hands of the Iranian authorities.
27. Throughout the decision, the Judge talks about discrepancy and inconsistency weighing against the credibility of the appellant’s claim. What the Judge does not do is explain how the discrepancy and inconsistency found between [19] and [24] outweigh the consistency found at [17] and [18]. There is a confusing tension between [17] & [18] and [19] to [24].
28. The Judge does not make a specific finding that the appellant was not a kolbar who acted as a courier for KDPI. The Judge’s conclusion (at [29]) is that the appellant is incredible and that the appellant “has failed to demonstrate that he is of interest to the Iranian authorities in the manner that he claims or at all”. The reasoning for those conclusions is incomplete.
29. The difficulty is that the Judge’s analysis of the evidence between [20] and [24]is prefaced by his finding at [17] that the appellant gives an internally consistent account which weighs in his favour. At [29] the Judge finds that although the appellant remains broadly consistent throughout the various strands of his evidence, but there are significant elements of his account that contain omissions and internal inconsistencies.
30. The Judge does not specify what the significant omissions are. The main internal inconsistency he is wrangling over is who had possession of the appellants identity documents when Hashem was arrested.
31. There are no findings either that the appellant is not aligned with KDPI, nor that no one who knows the appellant has been arrested.
32. The Judge finds that certain aspects of the claim weigh in the appellant’s favour, and others weigh against the appellant, but the Judge does not complete the fact-finding exercise because the Judge does not explain why the inconsistency in evidence identified between [20] and [23] tips the balance against the appellant.
33. At [30] the Judge accepts that the appellant has attended demonstrations outside the Iranian Embassy in London. The Judge takes guidance from XX (PJAK, sur place activities, Facebook) Iran (CG) [2022] UKUT 23 (IAC) and BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC). The Judge finds that the appellant does not genuinely hold a political belief and his actions are a disingenuous attempt to bolster his asylum claim.
34. At [29] the Judge refers to HB (Kurds) Iran CG [2018] UKUT 430, but he does not factor the “hair trigger “approach mentioned in headnote 10 of HB into his assessment of risk on return due to sur place activity.
35. The Judge rejects the appellant’s sur place activity because he does not believe the appellant has any genuine interest in politics. The Judge does not consider the guidance given in Danian v SSHD (2002) IMM AR 96 and YB (Eritrea) v SSHD 2008 EWCA Civ 360. The Judge does not consider the risk factors set out in the guidance given in HB. As a result, his consideration of risk on return is flawed.
36. The fact finding on the core elements of the appellant’s claim is incomplete and inadequate. The consideration of risk on return is incomplete. Both are material errors of law.
37. Because the decision is tainted by a material error of law it is set it aside.
38. A fresh hearing in the First-tier Tribunal is necessary.

Remittal to First-Tier Tribunal
39. Under Part 3 paragraph 7.2(b) of the Upper Tribunal Practice Statement of the 25th of September 2012 the case may be remitted to the First-tier Tribunal if the Upper Tribunal is satisfied that:
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party’s case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
40. The case should be remitted because a new fact-finding exercise is required. None of the findings of fact are to stand and a complete re hearing is necessary.
41. This case is remitted to the First-tier Tribunal sitting at Newport to be heard before any First-tier Judge other than Judge G Wilson. A Kurdish Sorani interpreter will be required.

Decision
The decision of the First-tier Tribunal errs materially in law.
The Judge’s decision dated 15 January 2024 is set aside.
The appeal is remitted to the First-tier Tribunal to be determined of new.

Signed Paul Doyle Date 6 March 2025
Deputy Upper Tribunal Judge Doyle