Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002174

First-tier Tribunal Nos: PA/60278/2023 & IA/00154/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 20 March 2025

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

O M
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr McTernaghan, instructed by JMS Solicitors
For the Respondent: Ms E Blackburn, Senior Home Office Presenting Officer

Heard at Belfast RCJ on 13 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. The appellant appeals with permission against the decision of First-tier Tribunal Judge S Gillespie, promulgated on 15 April 2024, dismissing his appeal against the decision of the Secretary of State made on 24 October 2023 to reject his asylum and human rights claim.
2. The appellant’s case is that he is at risk on return to Iraq as he had been compelled by the PKK to assist them by providing fruit, tea and cigarettes as well as other items, which he took to them in the mountains where he tended his sheep. It was as a result of these activities that he came to the adverse attention of the authorities in Iraq.
3. The Secretary of State accepted that the appellant is Kurdish and from Iraq but did not accept the remainder of his claims.
4. The First-tier Tribunal heard evidence from the appellant. It also had before it a bundle of relevant material. The following issues were identified:-
(1) Whether the appellant faces adverse attention from the authorities and the PKK in Iraq if returned.
(2) The credibility of his account.
(3) The identification [sic] and feasibility of return.
5. The judge did not find the appellant to be a credible witness and in particular did not accept the account of being compelled to assist the PKK or that he came to the adverse attention of the authorities. He did not accept the explanation as to why the appellant had obtained a national passport concluding that his passport could have been renewed at a consular office in the United Kingdom and that he could obtain his CSID from family, with whom he maintains contact in Iraq and thus could be returned.
6. The appellant sought permission to appeal on the grounds that the judge had erred:
(i) in making irrational and contradictory findings when concluding that the appellant had not provided a rational basis as to why he would agree to the PKK’s demands;
(ii) in stating [34] that the appellant’s representative had stated that 120 miles was not a far distance from the appellant’s village on the border to the mountains where the PKK were based;
(iii) in indicating prejudice in using the phrase [42] “That in my judgement calls into doubt his social background”, the appellant being entitled to an interpreter as a right.
7. On 24 May 2024, Deputy Upper Tribunal Judge Zucker granted permission.
8. I heard submissions from Mr McTernaghan and Ms Blackburn.
9. Mr McTernaghan submitted that the judge failed to engage with the fact the PKK are proscribed in Iraq and in particular failed to engage with the appellant’s witness statement. He submitted further that the judge’s reference to the appellant’s “story” rather than “account” indicated disbelief and an unfair approach indicating bias. He submitted further that he was instructed by Mr McStravick, who had represented the appellant in the First-tier, that he had produced a map indicating where the appellant’s village was in connection with the mountains where the PKK were based. He submitted further that, contrary to the self-direction at [32] the judge had not applied the law properly and had applied too high a threshold and in particular, reliant on ground 4, that this was indicative of bias.
10. Ms Blackburn relied on the Rule 24 response submitting that the judge had clearly at [33] referred to the witness statement and thus it could not be said that he had not taken into account the explanations given. It was simply that the judge had not been persuaded too, it was a matter for him. She submitted that absent any real indication that a map had been produced to the First-tier Tribunal, it could not be said that the judge had erred in this respect nor could it be said properly considering the decision that there were indictors of bias.
11. I reserved my decision.
12. In approaching the decision of the First-tier Tribunal, I bear in mind Ullah v SSHD [2024] EWCA Civ 201 at [26]. I also bear in mind what was said in Volpi v Volpi [2022] EWCA Civ 464 at [2] and n HA (Iraq) [2022] UKSC 22 at [72], and that the decision must be read sensibly and holistically. Justice requires that the reasons enable it to be apparent to the parties why one has won and the other has lost: English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409 at [16]. When reading the decision, I am entitled to assume that the reader is familiar with the issues involved and arguments advanced. Reasons for judgment will always be capable of having been better expressed and an appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.
13. At paragraph 33 the judge wrote this:
I am not persuaded the appellant’s core claim is a reliable one. He disavows any support for the PPK and claims PKK men opportunistically compelled him as a shepherd to buy tinned goods, tea and cigarettes, but mainly cigarettes, and to bring these items to them on up to 10 occasions. He has failed to provide any rational basis for why he would submit to such a demand when it was open to him to immediately tell the authorities and his father. From a position of safety in his home village there is no reason why he would have continued to support them in the way he claims. His explanations for his behaviour are vague and his claimed activities are to be contrasted with what he says about the shepherd who allegedly betrayed him immediately on first sighting him. I cannot see any logical reason why they would have any hold over him given that their organisation is proscribed in both Turkey and Iraq.
14. In his witness statement, the appellant said this:-
“I have never been part of any organisation but I was forced by the PKK to help them providing them with some goods such as food, cigarettes, processed meat, confectionaries etc. And they said that if I failed to provide them with these items I would be killed and they said that if I told anyone in our community I would be killed. This was because at the time there was a war between the PKK and the government.”
15. The appellant also refers to them giving him money to provide the evidence and that he was scared to refuse them since he thought that they would kill him. He said also he complied due to the threats to kill.
16. There is no sufficient support for the submission that, despite what the judge had said, he had not taken into account the appellant’s witness statement. It is sufficiently clear from the decision that he had had regard to the decision in the bundle provided to him. It was open to the judge who heard all of the evidence to conclude that the appellant’s explanation was not sufficient. In doing so, it was open to him to note that the shepherd, who betrayed the appellant on first sighting him, and was in similar circumstances to the appellant, to reject the appellant’s explanation for complying with the PKK, given the actions of the fellow shepherd.
17. Whilst I accept Mr McTernaghan’s instructions are that a map showing the location of the appellant’s village in relation to mountain areas was produced, there is simply insufficient material before me to conclude that this is what occurred. There is no witness statement to that effect; there is no indication in the decision of any map being provided; and, that is not what is pleaded in the grounds. What is pleaded in the grounds is that the judge misrecorded what was Mr McStravick had said. Accordingly, I am not satisfied that there was any factual error made by the judge on this issue.
18. An allegation of bias against the judge is a serious matter. It needs to be properly pleaded and supported by evidence. I do not consider that referring to the appellant’s “story” as opposed to “account” is a sufficient basis to indicate bias either on its own or taken cumulatively with the other points pleaded.
19. There is no proper basis for the submission that the judge did not approach the case, applying the correct standard of proof, having so directed himself. Nor, for that matter, can it be said that he failed properly to apply Hesham Ali (Iraq) v SSHD [2016] UKSC 60. It was open to the judge to note that the appellant did appear to speak English well given that that he was able to be interviewed in English and to conclude from that in light of the other conclusions, that he had not been told the truth about the appellant’s background whereby he claimed to have been educated only to a lower level and that he had not told the truth about his social background. That is not an indicator of bias. It is sufficiently clear what is meant by social background here is the appellant’s claim to be from a relatively poor background and had worked as a shepherd.
20. Contrary to what is submitted, there is no indication that the judge was criticising the appellant for using an interpreter. The judge simply concluded that the fact that the appellant speaks English was an indicator that he had not told the truth about his social status and position or for that matter education in Iraq. That was a finding open to the judge and for which he gave adequate and sustainable reasons.
21. Taking all of these factors into account, I am not satisfied that any of the grounds are made out and I conclude that the decision of the First-tier Tribunal did not involve the making of an error of law and I uphold it.
Notice of Decision
(1) The decision did not involve the making of an error of law and I uphold it.
Signed Date: 14 March 2025
Jeremy K H Rintoul
Judge of the Upper Tribunal