Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002247

First-tier Tribunal No: PA/53825/2023
LP/00781/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 16th of May 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE WALSH

Between

FA
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTEMENT
Respondent

Representation:
For the Appellant: Mrs. JohnRose, of counsel, instructed by Broudie Jackson Carter
For the Respondent: Ms. S. Kunah, Senior Home Office Presenting Officer

Heard at Field House on 17 April 2025

DECISION AND REASONS

1. This is an appeal against a decision of First-tier Tribunal Judge Austin (“the judge”) dated 4th April 2024. By that decision the judge refused the appellant’s appeal against the respondent’s decision dated 13 June 2023 to refuse his protection claim made on 10 December 2019.

2. The appellant is an Iraqi national of Kurdish ethnicity from Kirkuk Province, Iraq.

3. There are three planks to the appellant’s protection claim. Firstly, the appellant says that if returned he would come to the adverse attention of the PMF and face persecution /real risk of serious harm from Hashti-Al-Shaabi (PMF) as a result of an incident on 7 August 2019 in his hometown during which his friend was killed as were members of Hashti-Al Shaabi. The appellant fled Iraq and entered the UK by lorry on 9 December 2019 and made his claim for asylum the following day. Secondly, the appellant would be at risk as he is undocumented as his CSID card was taken from him by the agent who facilitated his travel. He is not able to access a replacement as he has not been able to contact his family. Thirdly, the appellant stated that without a CSID card he is not able to internally relocate.

First-tier decision

4. The judge rejected as unreliable the appellant’s account of his reasons for leaving Iraq [11]. Having found the factual basis of the claim to be unreliable, referring to inconsistencies in the appellant’s account, the judge found the appellant was not at risk from the PMF. The judge also set out (in his view) what action the PMF would likely have taken if the appellant’s claim was correct [12].

5. The judge also rejected the appellant’s explanation as to why he was not in possession of his CSID card. At [13] the judge did not consider it credible that a person in the position of the appellant would surrender his identity documentation.

6. The judge did not accept that the appellant had lost contact with has family and found that their assistance was available to him in the UK and on return to Iraq. He rejected as lacking in plausibility the appellant’s account as to the unsuccessful efforts he made to contact his family.

7. The judge found that that there was no reason the appellant could not return voluntarily to Kirkuk without transiting through Baghdad stating that the country guidance indicates return to Kirkuk is feasible and if returned to another regional airport such as Erbil he could make his way home where the judge found he would not be at risk [18].

8. On the basis of those findings the judge rejected the appellant’s asylum and humanitarian protection claims and found there was no evidence to meet the threshold of a claim under Article 3 or Article 8 of the European Convention on Human Rights [20,22,23] .

Grounds of Appeal

9. The grounds of challenge can be summarised as follows:

a. The judge failed to give any/any adequate reasons with respect to adverse credibility findings and the appellant’s claim under Article 3
b. The judge’s findings with respect to the actions of the PMF at [12] and the judge’s treatment of the appellant’s account of surrendering his CSID card [13] were irrational
c. The judge failed to take account of material evidence, in particular the appellant’s written and oral evidence and the country guidance

10. Permission to appeal was refused by First-tier Tribunal Judge Saffer on 1 May 2024. Permission granted by Upper Tribunal Judge Neville on 15 January 2025.

The Hearing

11. Both parties attended remotely by CVP.

12. I had before me a bundle consisting of 408 pages.

13. No Rule 15A notice nor Respondent’s notice had been lodged.

14. Mrs. JohnRose relied on the grounds of appeal and renewed grounds on which permission to appeal to the Upper Tribunal was granted. In submissions she highlighted the decision contains no summary of the facts or written and oral evidence; instead it proceeds straight into adverse credibility findings at [11]. She submitted that there is no assessment at all of the appellant’s written or oral evidence in the decision which fails to set out the basis for finding the appellant has been inconsistent in his account. As an example, Mrs. JohnRose pointed to the judge’s failure to acknowledge or refer to the respondent’s acceptance of the appellant’s account of Al-Shaabi stealing cigarettes which is consistent with the Country Policy Information Notes and the unchallenged oral evidence that the appellant was searched on arrival and no CSID card was found.

15. Mrs. JohnRose submitted the judge’s finding at [12] that PMF “would have taken matters into their own hands and not left it to the authorities” is irrational as the PMF are the authorities and there is no evidential basis for the judge’s assertion. A further material error was made by the judge, Mrs. JohnRose argued, in failing to take into account the appellant’s explanation in his witness statement with respect to his confusion over whether the document referred to in his interview was a passport or a CSID card before finding the appellant’s account not credible. Mrs. JohnRose submitted that the judge erred in the treatment of the appellant’s account of surrendering his CSID card to the agent by asking the rhetorical question “why would a person surrender such a document?” She argued that judicial notice should be taken of the fact that claimants often arrive without identity documentation as recognised in the UNHCR Handbook and the Country Guidance in SMO & KSP [2022] UKUT 00110 (IAC). The judge’s finding, she submits, is therefore irrational.

16. In finding at [16] that the appellant’s family could assist the appellant in obtaining a new CSID card, Mrs. JohnRose averred that the judge failed to take into account the appellant’s evidence that his family fled the region shortly after he did.

17. Mrs. JohnRose submitted that the judge erred in failing to apply the country guidance in finding the appellant could return directly to Kirkuk. The judge’s finding, she argued, is contrary to the clear statement in the CPIN that are no direct flights to Kirkuk and as Kirkuk is a contested area any return would be to Baghdad but without any evidence based assessment as to how the appellant would be able to travel from Baghdad to Kirkuk with out a CSID card. Finally it was submitted that the judge erred in failing to provide any reasons for his negative finding in respect of the appellant’s Article 3 claim.

18. Ms. Kunah began by submitting that paragraphs [11] and [12] of the decision, when read together, establish the basis for the judge’s adverse credibility findings. However, when asked to deal with the judge’s assertion at [12] about the PMF’s presumed actions, Ms. Kunah, accepted on reflection, that in fact the judge had not provided adequate reasons in respect of that finding. Ms. Kunah also agreed that the judge should have stated whether or not he found the appellant’s oral evidence to be credible. Ms. Kunah conceded that the judge had made material errors of law which infected the overall findings in the decision.

19. Mrs. JohnRose and Ms. Kunah agreed that the case should be remitted to the First-tier to be heard by a judge other than FTTJ Austin.

20. Given that the errors infect credibility findings, it was agreed by both Mrs. JohnRose and Ms. Kunah that it was not appropriate for any findings to be preserved.

21. Ms. Kunah made no concessions with respect to the claim itself, save that she agreed that the most recent CPIN dated December 2024 makes clear that there are no direct flights to Kirkuk. She said that it was not clear at [18], where the judge finds that there are “no reasons why the Appellant could not make arrangements for voluntary return directly to Kirkuk without needing to transit via Baghdad”, whether the judge referred to flying directly to Kirkuk airport or envisaged some other means of travel. Ms. Kunah accepted the lack of clarity was a further example of the inadequacy of reasons in the decision.

Error of Law

22. I will deal with the issues raised in the grounds of appeal collectively as there is a degree of overlap.

23. I begin by reminding myself that The Practice Direction of the Senior President of Tribunals: Reasons for Decisions dated 4 June 2024 states as follows:

[5] Where reasons are given, they must always be adequate, clear, appropriately concise, and focused upon the principal controversial issues on which the outcome of the case has turned. To be adequate, the reasons for a judicial decision must explain to the parties why they have won and lost. The reasons must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the main issues in dispute. They must always enable an appellate body to understand why the decision was reached, so that it is able to assess whether the decision involved the making of an error on a point of law. These fundamental principles apply to the tribunals as well as to the courts.

[6] Providing adequate reasons does not usually require the First-tier Tribunal to identify all of the evidence relied upon in reaching its findings of fact, to elaborate at length its conclusions on any issue of law, or to express every step of its reasoning. The reasons provided for any decision should be proportionate, not only to the resources of the Tribunal, but to the significance and complexity of the issues that have to be decided. Reasons need refer only to the main issues and evidence in dispute, and explain how those issues essential to the Tribunal’s conclusion have been resolved.

24. The judge’s findings on the appellant’s protection claim are dealt with in three paragraphs as follows:

11. I find as to the appellant’s factual claim for the reasons that he left Iraq that it is not reliable and I reject it. I find that he is not at risk from the PMF because I find that he has not given a consistent account of the incident and it is reasonable to expect that he would be able to give a consistent account of such a set of events which if they happened would be memorable. The appellant was not directly involved in the incident that he describes, and he has not been consistent as to the persons or number of persons injured or killed. He has not been consistent as t how the incident arose and ended, and I do not find it a reliable account.

12. I also consider that if the PMF had taken against the appellant for the events he describes, if they are beyond the control of the authorities they would have taken the matter into their own hands and not left it to the authorities to persecute him. The appellant has shown further inconsistency as to his documentation, stating at one point that his passport was taken from him on his journey to the UK and then saying that it was his CSID. I agree that the responses in the full interview to questions about the CSID were vague, unclear as to whether the appellant knew what a CSID card was and as to whether he left it at home with his father before leaving. I consider that this lack of reliability as to documentation undermines the appellant’s claim under Article 3 as dealt with below but also affects the general credibility of his claim.

13. I also reject the appellant’s claim that he was in possession of a CSID card in his own name and that he kept it safely until he was about to travel to the UK, when he was told that he should discard it as it would not assist him in claiming asylum in the UK. I do not consider it credible that a person who claims to have left a situation of danger would abandon the means to prove their identity, both positively as an Iraqi Kurd and to avoid the risk of being mistaken for a national of a country which would not afford him the basis of a claim for asylum. Why would a person surrender such a document? The explanation given is weak, namely that the agent said he should do so, and I do not accept it.IT is my view that the appellant either retains his CSID or has access to it, and so his return would not be hampered by a lack of documentation.

25. I was unable to understand how the judge reached the adverse credibility findings he did at [11], [12], and [13]. The basis on which the judge determined that the appellant was inconsistent in his accounts is wholly unclear to me as he does not specify which of the appellant’s accounts are inconsistent, that is, as between the accounts in his initial contact and asylum registration questionnaire dated 10 December 2019; the solicitors correspondence letter dated 14 October 2020; the appellant’s statement of Evidence Form Asylum Interview on 12 December 2022; his witness statement, and/or oral evidence.

26. The appellant addressed in his detailed witness statement the inconsistency points raised by the respondent in her refusal letter, such as the confusion over whether it was a CSID or passport the appellant referred to in interview.

27. The judge asserts at [16] that the appellant does not appear to have followed up with the Red Cross in tracing his family. However, in the appellant’s witness statement at [CB27/32] the appellant states that he had recently contacted the Red Cross by email and completed an application for family tracing over the telephone.

28. Similarly, the judge fails to make any reference to the appellant’s evidence in his witness statement [CB22-23/15] that his family fled Iraq shortly after the appellant in finding at [16-17] that the appellant’s family would be able to assist him in obtaining a new CSID card.

29. As the judge failed to address the material evidence I reference in [25, 26, and 27] above, it is apparent to me that the judge did not properly, if at all, take into account the appellant’s witness statement. I find the judge’s failure to do so is a material error of law.

30. I find irrational the assertion at [12] that the PMF “would have taken the matter into their own hands and not left it to the authorities to persecute him”. The finding demonstrates the judge failed to engage with or understand the appellant’s account and the country information material in the bundle from which it is clear that the PMF (al-Hashd Al-Shaabi) as a state sponsored militia, are part of the authorities.

31. I find irrational the basis of the judge’s adverse credibility finding at [13] as to the appellant’s account of surrendering his CSID card to the agent. The finding is without evidential basis and entirely speculative. It is surprising that the judge seems unaware that it not unusual for claimants to allege they had to surrender identity documents to the agents who transported them. The difficulty this can present for protection claimants is reflected within the ambit of Article 31(1) of the Refugee Convention and as a potential defence under Section 2 of the Asylum and Immigration (Treatment of Claimants) Act 2004.

32. The judge’s finding at [22] that “there is no meaningful evidence that might meet the threshold in respect of Article 3” is devoid of any analysis or reasoning and as such constitutes a material error of law.

33. Whilst the errors I have found in relation to the judge’s findings in respect of the appellant’s CSID card infect his findings on the ‘returnability’ of the appellant, I also find the judge erred in failing to take account of and/or apply the Country Guidance in SMO. That guidance is clear that the situation in Kirkuk, as a formerly contested area, is complex and consideration of a return to Kirkuk must entail a fact-sensitive assessment on a sliding scale basis of the factors identified in [5] and [6] of SMO. It is evident that no such as assessment was undertaken by the judge. I find the failure to take account of and apply the Country Guidance is a material error of law.

34. As I have found that the judge has made material errors of law, I find that the concession on behalf of the respondent was properly made.

Disposal

35. The decision of the First-tier Tribunal contains material errors of law and is set aside pursuant to section 12 of the Tribunals, Courts and Enforcement Act 2007.

36. I considered whether any findings of fact should be preserved, bearing in mind the principles set out in AB (preserved FtT findings; Wisniewski principles) Iraq [2020] UKUT 268 (IAC). However, I determined that the nature of the error of law was so significant that it infected the judge’s approach to the evidence and therefore preserve no findings.

37. Applying the principles set out in the Practice Direction, according to the guidance given in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC), as I have not preserved any findings of fact, I am satisfied remittal to the First-tier Tribunal is the appropriate disposal.

Notice of Decision

38. The decision of the First-tier Tribunal contains material errors of law. The case is remitted with no preserved findings to the First-tier to a judge other than First-tier Tribunal Judge Austin.

Martha Walsh

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

7 May 2025