Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002520; UI-2024-003001

First-tier Tribunal No: PA/50322/2023
LP/00334/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

27th February 2025

Before

UPPER TRIBUNAL JUDGE REEDS

Between

BSO
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Hingora, Counsel instructed on behalf of the appellant

For the Respondent : Mr Diwnycz, Senior Presenting Officer

Heard at (IAC) on 4 December 2024

DECISION AND REASONS
1. The appellant appeals, with permission, against the determination of the First-tier Tribunal promulgated on 26 April 2024. By its decision, the Tribunal dismissed the appellant’s appeal on asylum and on human rights grounds against the Secretary of State’s decision dated 6 January 2023 to refuse his protection and human rights claim.
2. The FtTJ did make an anonymity order, and no grounds were submitted during the hearing for such an order to be discharged. Anonymity is granted because the facts of the appeal involve a protection claim and that his rights protected under Article 8 outweigh the right of the public to know his identity as a party to these proceedings, the latter being protected by Article 10 of the ECHR. The anonymity order is detailed below.
3. 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.
The background:
4. The factual background can be summarised as follows. The appellant is a national of Iraq of Kurdish ethnicity. He entered the United Kingdom on 26 February 2016 and claimed asylum on the 27 February 2016. The respondent refused the protection, and human rights claim in a decision taken on 6 January 2023. There was a lengthy delay explained by the removal of the appellant to Bulgaria under the Dublin treaties on 20 January 2017. He re-entered the UK unlawfully on 13 September 2018 with the result that he could not be returned since the Dublin Treaties ceased to have legal effect following the UK’s withdrawal from the EU.
5. The appellant appealed the decision. It originally was heard by a FtTJ and dismissed but upon appeal the parties agreed that the decision lacked reasoning on material matters and was therefore set aside.
6. The appeal came before the FtT at a hearing on 22 April 2024. The FtTJ heard oral evidence from the appellant with the assistance of an interpreter, and his account was the subject of cross-examination, and each party provided their closing submissions on the relevant issues. In his decision promulgated on 26 April 2024, the FtTJ dismissed the appeal.
The appeal before the Upper Tribunal:
7. Following the decision, the appellant sought permission to appeal on 3 grounds; and permission was granted on 12 February 2024 by FtTJ Hollings-Tennent .Permission to appeal was only granted on Grounds 2 and 3 of the grounds. The grant of permission was therefore a limited grant of permission on Grounds 2 and 3 as follows:
Ground [2] asserts that the Judge erred in law by failing to consider relevant country evidence relied up or follow guidance in SMO & KSP when assessing risk on return to Tuz Khurmatu. At paragraph [26], he specifically refers to guidance in SMO & KSP and has regard to factors that may give rise to risk on the sliding scale analysis. However, it is unclear whether he considered relevant country evidence presented on the risks arising solely on account of the Appellant’s Kurdish ethnicity following forced displacement of Kurds from the area because there is no specific reference to such evidence in his decision.
Ground [3] asserts that the Judge failed to consider whether there were very significant obstacles to integration in the context of the Appellant’s private life under Article 8 of the ECHR. There is perhaps some merit in this ground. At paragraph [8(vii)], the Judge records this was an issue to be decided but later refers to the Appellant’s representative recognising the private life essentially issue stood or fell with the protection claim. Having considered Mr Gulamhussein’s witness statement and note of proceedings, it is arguable there may have been some misunderstanding as to any concession on this point and that the matter therefore needed to be addressed substantively as a discreet ground of appeal. As such, the grounds have identified what is at least an arguable error of law and it is appropriate to grant permission to appeal.
Permission is granted on Grounds [2] and [3].”
8. An application was made for reconsideration of those grounds of permission by way of a renewal application before the Upper Tribunal.
9. It was considered by UTJ Rastogi who granted permission on the remaining ground (ground 1) on 18 July 2024 for the following reasons:
“The error of law partial grant hearing is listed on 26 July 2016 under case number UI-2024- 002520. In the present application, the appellant’s representatives asked for the permission application to be considered at that hearing. However, I decided it was more efficient to decide the application in advance as if permission was granted, fairness would require the respondent time to consider and respond to the grant of permission on what is really the substance of this case. Therefore an earlier decision on permission clarifies the issues for the Tribunal, avoids unnecessary preparation and hearings and furthers the overriding objective.
The renewed ground of appeal relate to the judge’s assessment of the appellant’s credibility, in particular his treatment of factors said to engage section 8 of the Asylum and Immigration (Treatment of Claimant’s etc) Act 2004 and other matters going, it is said, to the periphery rather than the core of the appellant’s claim. The grounds assert that the judge misdirected himself in law by failing to consider alternative explanations for any alleged inconsistencies or untruths, failing to have regard to other matters dispelling the credibility concerns and by failing to address the appellant’s submission that credibility findings on periphery matters should be delineated from those at the core of the claim particularly as the judge accepted that appellant’s account about the core of his claim was plausible, sufficiently detailed and free from material inconsistency.
I remind myself that Upper Tribunal should be slow to interfere in assessments of credibility. The judge considered expressly the appellant’s explanation for why he did not claim asylum in Bulgaria and rejected it [23] as he did for every other element of the appellant’s account which he rejected. He was aware of the appellant’s explanation for each of them and assessed the account in the round. The judge found the appellant to have lied about these matters and that he did so in order to lay the foundations for a document-based protection claim. At the end, having found the appellant to be dishonest, and as the only evidence before him as to the core of the appellant’s claim relied on the appellant’s account, he did not find that to be sufficiently reliable even to accept the core of the claim as reasonably likely to be true [24].
However, it is arguable that the judge failed to specifically address evidence and/or submissions put forward by the appellant which went to the credibility concerns ultimately relied on to underpin the complete rejection of the protection claim.
It is also arguable that the judge failed to direct himself to the possibility that the core elements of the appellant’s case could remain credible despite adverse findings in respect of what might be considered peripheral matters.
I find the renewed grounds to disclose an arguable error of law on a material matter.
It is of course for the appellant to make out the alleged errors of law, but also to demonstrate that they might have made a material difference to the outcome of the appeal before the judge.”
10. At the hearing before the Upper Tribunal Mr Hingora appeared on behalf of the appellant and Mr Diwnycz, Senior Presenting Officer appeared on behalf of the Secretary of State. On 24 September 2024 directions were issued by the Upper Tribunal directing that the respondent shall make an appointment with the relevant First-tier Tribunal hearing centre on a date to be fixed to listen to the relevant sections of the tape recording of the earlier proceedings identified in the grounds and witness statements filed. The respondent was also directed to file and serve on the Upper Tribunal and the other party a Rule 24 response addressing the issues raised in the grounds 1-3, to include the evidence filed on behalf of the appellant in relation to the hearing before the FtT. It was be filed and served 10 days before the hearing (see p107 CEF).
11. Despite the Upper Tribunal having issued those directions, the respondent had not complied with them. Mr Diwnycz provided an explanation that the advocate previously dealing with the appeal had changed and that the directions had been missed. It also appeared that Mr Diwnycz did not have the correct bundle of documents. The bundle of documents was helpfully sent to him by Mr Hingora. Mr Diwnycz did not seek an adjournment. In the circumstances time was given for him to access the bundle and to provide a Rule 24 response in writing to set out the position of the respondent for the assistance of the Tribunal and the other party. As no steps had been taken to hear the audio tape as directed, he was content to proceed on the basis that the transcript provided was an accurate transcript of the tape recording.
12. The appeal commenced upon Mr Diwnycz confirming that he was ready to proceed. He provided a typed copy of his Rule 24 response.
13. Mr Hingora relied upon the grounds and renewed grounds. In addition he made the following oral submissions.
14. Dealing with ground 1, Mr Hingora referred to the grant of permission by UTJ Rastogi and that the issues related to the FtTJ’s assessment of the appellant’s credibility, in particular his treatment of factors said to engage Section 8 of the 2004 Act and other matters going to the periphery rather than the core of the appellant’s claim. Further that the FtTJ misdirected himself in law by failing to consider alternative explanations for any alleged inconsistencies or untruths, and failed to have regard to other matters dispelling the credibility concerns and failing to address the submission that credibility findings on peripheral matters should be delineated from those at the core of the claim in the light of the acceptance that the appellant’s account about the account of the claim as plausible, sufficiently detailed and free from material inconsistency.
15. In relation to the peripheral matters, Mr Hingora identified those which were addressed at paragraph 18 of the FtTJ’s decision. In that paragraph the FtTJ took issue with the sums of money of $7500 - $8000 paid to the agent. As set out in the grounds, the FtTJ said that the appellant was clear that he personally paid an agent the sum (relying on question 3.3 of SI) which the FtTJ found was” manifestly not the same account gave later” in his interview. However the screening interview stated that he paid an agent in US and euros which was about $7500 and “my family help me pay for it”. The ground submitted that it did not exclude the possibility that another person handed over the money especially as the appellant had said his family helped him pay and are set out in his witness statement paragraph 38, and Q109 in the interview. In the light of the interview having been conducted 7 years after he had left Iraq, and the consequences of making an adverse credibility finding on what was ambiguous evidence was unsafe finding. Mr Hingora submitted it was not of sufficient importance on its own and was peripheral to the claim. In this regard he submitted that the FtTJ had accepted core elements of his account at paragraphs 14 – 16 of his decision.
16. Mr Hingora turned to the adverse credibility findings at paragraph 19 – 20 which concerned the use of documentation. He submitted that the appellant had explained that the passport was false in his witness statement, and this was not a brand-new account in cross examination although the judge thought that he had invented this at the hearing (see witness statement p169 and paragraphs 46 – 48).
17. Mr Hingora submitted in relation to the section 8 credibility issues that concerned Bulgaria, the FtTJ had failed to consider the country evidence provided in support of the plausibility of his account that he was mistreated in Bulgaria and thus did not feel safe remaining there. Mr Hingora referred the tribunal to section E of the bundle (p262) and the three reports that were set out. He also referred to the skeleton argument prepared for the hearing (p149) and that this issue was expressly dealt with at paragraph 9 (p156) highlighting the relevant elements of the reports. The FtTJ did have this evidence before him which should have been considered but had not been. Mr Hingora submitted that this went to the point that he had reasons to leave Bulgaria that were not inconsistent with his claim for refugee status.
18. Mr Hingora was asked to assist the Tribunal with paragraph 25 of the decision in the light of the submissions made that the FtTJ had accepted his core account. In this respect Mr Hingora submitted that despite the core elements being accepted between paragraphs 14 – 16 of his decision, the FtTJ had become distracted by the peripheral issues which had led to the finding at paragraph 25.
19. Mr Hingora referred to the Rule 24 response prepared by Mr Diwnycz in which it was said at paragraph 3 that the respondent relied upon the “ gloss” given to the first ground by FtTJ Hollings-Tennant and that the FtTJ did not err in his findings. Mr Hingora submitted that the grant of permission by UTJ Rastogi was the operative decision granting permission on this ground and was the one which was reasoned and therefore more weight should be attached to her grant of permission than that of FtTJ Hollings-Tennant. Mr Hingora referred to paragraph 5 of the rule 24 response were the respondent accepted that analysis and that there was agreement with the reasoning given by UTJ Rastogi therefore the appellant’s submissions on this issue should be followed rather than paragraph 3 of the rule 24 response.
20. Dealing with grounds 2 and 3, Mr Hingora submitted that the Rule 24 response accepted that there were errors of law in grounds 2 and 3 and were material. When asked if he wished to address the tribunal any points of law, Mr Hingora stated that he relied upon the grounds.
21. As to ground 2, he submitted there was a failure to consider the relevant country evidence and to follow the country guidance decision of SMO when assessing risk on return to Tuz Khurmatu. As set out in the grant of permission, it was unclear whether the FtTJ considered relevant country evidence presented on the risks arising solely on account of the appellant’s Kurdish ethnicity following forced displacement of Kurds from the area because there was no specific reference to such evidence of his decision. Mr Hingora referred to the grounds at paragraphs 9 and 10 which quoted paragraphs144 of SMO (2) and paragraph 300 of SMO (1) and the skeleton argument which had referred to the CG decision in this regard were one of the appellant’s was from Tuz and might be at risk there based on his Kurdish ethnicity alone. This was an issue as the appellant ethnicity was a point that had been raised in the skeleton argument that they were a minority in that area ( also see p227 for Washington article). Mr Hingora submitted that the respondent had accepted the ground 2 was made out in the circumstances was a material error of law.
22. Dealing with ground 3, Mr Hingora submitted that this was a distinct point based on the transcript that had subsequently been provided. At paragraph 29 the FtTJ had referred to the submissions made by the advocate representing the appellant at the hearing and that it appeared to be recognised by him that the article 8 claim based on the existence of very significant obstacles could not be meaningfully separated from the other issues in the appeal. The FtTJ therefore did not consider this issue under article 8. As the grounds had set out, this was not consistent with the recollection of the advocate who had provided a witness statement, or his skeleton argument and this was supported by the transcript. Mr Hingora also submitted that in any event the test as to whether there were very significant obstacles to integration was a different test (applying the decisions in Kamara and Parveen) and having failed to consider the appellant’s circumstances in Tuz Khurmatu it has a material impact on consideration of whether there were very significant obstacles in the relevant test. He submitted there was a lack of findings as to where the family is located in Iraq and therefore the error in ground 3 is material. Further submitted that this was conceded on behalf of the respondent as a material error of law.
23. Mr Diwnycz relied upon the rule 24 response that he had provided. In relation to ground 1, the Rule 24 response sets out that the respondent preferred the gloss given to the first ground by FtTJ Hollings-Tennant (who refused permission on ground 1) and submits that the FtTJ did not err in the findings made ( see paragraph 3 of the Rule 24 response).
24. In relation to the other grounds, it was submitted by the respondent that the FtTJ may have erred on the issues raised in particular the amounts of money referred to in paragraphs 18 – 20 of the decision. The respondent accepted that the exact amount is a “moot point”, but the order of magnitude does not seem to differ greatly from interview to hearing regarding answers given. However the exact amount whichever sum is taken to be correct is not in the respondent’s opinion amount to material error in of itself ( see paragraph 4).
25. In conclusion the rule 24 response states that paragraphs 5 to 7 of the UTJ’s grant of permission succinctly encapsulates the errors and that the respondent does not oppose the grounds as lodged other than as at the 1st paragraph.
26. In his oral submissions, he clarified that the position on behalf the respondent was the grounds 2 and 3 were conceded but ground 1 was not as set on the basis of paragraph 25 above. When asked if he wanted to provide any further submissions, he did not do so.
Discussion:
27. The Supreme Court in HA (Iraq) v SSHD [2022] UKSC 22 reiterated that judicial caution and restraint is required when considering whether to set aside a decision of a specialist tribunal. In particular, judges of the specialist tribunal are best placed to make factual findings. Appellate courts should not rush to find misdirection’s simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v SSHD [2007] UKHL 49 and KM v SSHD [2021] EWCA Civ 693. Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v SSHD [2020] UKSC 49. When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v FTT (SEC) [2013] UKSC 19. I have kept these principles in mind.
28. The parties are in agreement that the FtTJ erred in law based on the grounds advanced in grounds 2 and 3 as set out in the original grounds and upon which permission was granted. Dealing with ground 2, it is argued on behalf the appellant that the FtTJ failed to consider country materials relevant to the appellant’s home area in Tuz Khurmatu set out in the bundle but also set out in the country guidance decisions of SMO (1) and SMO (2). In this respect, Mr Hingora has referred to paragraph 300 of SMO (1) which concerns the issue of enhanced risk on return (Article 15(c)) and when considering such a risk it is necessary to evaluate such a submission with particular care, with reference to the composition of the area in question, the local balance of power and the extent of ISIL acting in the area in question. In SMO (2) at paragraph 144, the personal characteristics relevant to the assessment are listed which include opposition to or criticism of the GOI, KRG or local security actors and also membership of a national ethnicity or religious group which is either in the minority in the area in question or not in de facto control of that area. The ASA did set out those references to SMO and also articles were provided as set out in the index referring to the position of Kurds in that area. However the assessment at paragraph 26 noting that the home area was Tuz Khurmatu ( and a former contested area) the FtTJ whilst accepting he was of Kurdish ethnicity there was no assessment of whether that ethnicity and that this particular characteristic when seen in the light of the material in the bundle and in SMO was sufficient in the appellant’s case to establish on the sliding scale analysis whether he would be at risk in his home area. The FtTJ properly took into account that there was little evidence to support appellant’s claimed westernisation but on the issue of ethnicity the finding was not made against the backdrop of the country materials. It may have been open to reject that provided reasoning was given by reference to that material. Consequently both parties agree ground 2 is made out and was material to the outcome.
29. The additional risk factor as to whether he might be perceived to be in opposition to or a critic of the GOI or KRG and local security actors was rejected based on the adverse credibility findings made. This is the subject of ground 1 to which I will return.
30. Turning to ground 3, the parties are also in agreement that the FtTJ erred in the way ground 3 sets out. This relates to the argument advanced relying on article 8 in the assessment of very significant obstacles to integration. The FtTJ set out at paragraph 29 that in view of the findings of fact made as to documentation that the legal representative recognised that article 8 founded on the existence of very significant obstacles could not be meaningfully separated from the other issues. As a result the FtTJ did not consider the issue further. At the grounds set out there is a lack of clarity as to whether that was in fact the position taken at the hearing given that there was express reference at paragraph 8 (vii) of that being a relevant issue to be considered on the basis that if his protection claim did not succeed would the appellant account of very significant obstacles to integration on return? The decision itself does not set out how the concession, if there was one, had been made. The advocate has provided a witness statement of his recollection and provided advocacy notes. He did not recall saying this at paragraph 29 and the ASA did advance a separate argument (see paragraph 13), which relates to lack of the appellant’s language and based on his ethnicity. References made in the notes to “VSO as an issue” ( p37) and there is a transcript which confirmed paragraph 8 (vii) and there is a reference to the submission made about the situation in Tuz Khurmatu. Whilst the transcript does not identify who is speaking, it is accepted that there appears to be a misunderstanding as to whether such a concession was so made. Mr Diwnycz agreed with the grounds of challenge and that the grounds in respect of ground 3 were established.
31. As to ground 1, this has not been a straightforward matter to assess. In this respect I remind myself that where there are challenges to findings of primary fact, the FtTJ has a far greater evidential picture and that the reasons for any judgment will almost always be capable of having been better expressed. Nonetheless notwithstanding the evident care taken in assessing the claim, and not all of the points raised are made out ground 1 in substance is established.
32. The core of the appellant’s claim that he feared the group JRTN and had been targeted by them. The FtTJ noted at paragraph 14 that the respondent challenged the narrative on various grounds of implausibility, lack of detail and inconsistency. Between paragraphs 14-16 the FtTJ set out the evidence of the appellant and his explanation as to why he did not seek assistance from the authorities. The FtTJ and that he was “struck by the appellant’s account that his father was not proud of his conduct during Saddam Hussein’s rule” ( see paragraph 15). At paragraph 16, the FtTJ considered the position taken by the respondent as to the lack of detail but for the reasons he gave was not impressed with those matters and did not find that they were matters of substance. However the FtTJ went on to find that the appellant had fabricated important parts of his claim (see paragraph 24). The FtTJ referred to having identified part of the narrative to reveal dishonesty and concluded that he was unable to rely on the appellant’s evidence to establish that the underlying core of his narrative was reasonably likely to be true.
33. The reference made in the credibility assessment to “engaging in behaviour” appears to be a reference to the appellant having failed to pursue his protection claim in Bulgaria ( see paragraph 23). There is no dispute that this was a relevant issue which engaged Section 8 of the 2004 Act. The appellant’s immigration history had been accurately recorded as to having returned to Bulgaria but having left for a second time. The appellant had given an explanation of his witness statement ( see paragraphs 46 and also between paragraphs 50 – 62). The FtTJ considered the issue at paragraph 23 of his decision. He stated that even if he were to accept the appellant’s claim that he was merely following the instructions of the agent on the first journey, this could not have been the reason for the second journey as the arrangement with the agent had been fulfilled. The FtTJ referred to the claim made that he been mistreated in Bulgaria and that he feared that its claim would not be fairly evaluated. The issue raised in the grounds relates to the material that had been presented on behalf of the appellant in support of this part of the claim, but which had not been taken into account. In particular that there had been country materials provided in support of the claim set out in section E of the bundle and also set out in the ASA at paragraph 9. Whilst the FtTJ consider the explanation related to the agent, which had been referred to in the ASA there was no consideration of the reports highlighted in the ASA as relevant to Bulgaria, in support of the appellant’s claim. It is right to observe that the FtTJ did refer to the statistics that had been referred to in the ASA which the FtTJ found to be an argument that was “profoundly unattractive”. That was an argument which had been advanced before the FtTJ as reflected in the ASA, but it is also clear that the reports were also relied upon referring to mistreatment. In reaching the findings at paragraph 23 the FtTJ did not take into account that evidence relevant to the Section 8 issue. The legal decisions set out in the grounds make it plain that section 8 factors are part of the holistic assessment of credibility. The weight to be given to section 8 matters is a matter for the factfinder however where there is evidence provided in support of the appellant’s explanation that is relevant to the assessment of his credibility. In essence there was material evidence which was raised as relevant to the assessment of the appellant’s credibility on this issue. Whilst the FtTJ stated that he did not consider any finding made on this issue to be determinative he did find that it materially undermined his credibility ( see paragraph 23), and this led to the finding at paragraph 24 that he had engaged in behaviour which was exceptionally difficult to reconcile with a person genuinely seeking protection. In those circumstances those paragraphs of the grounds are made out.
34. Returning to the decision of the FtTJ, he concluded that the account was tainted by inconsistencies on matters of importance that revealed dishonesty ( see paragraph 24). I accept the submission made by Mr Hingora that they were not matters relevant to the core of the factual claim but related to other issues which when seen in context may be viewed as peripheral. Not all his findings fall into this category, but paragraph 18 does. This is the only paragraph of the findings that that Mr Diwnycz has referred to in his submissions. The FtTJ concluded that the appellant had not given a consistent account about the money paid for his journey based on the screening interview and the asylum interview. The screening interview recorded that he said that he pay the agent in US and Euros which was about £7500, and that “my family helped me pay for it”. In the AI he was asked different questions as to whether anyone had helped him leave Iraq and he said that his father had passed him over to someone and that that person had helped him to leave (Q108). When asked if he knew how much the agent cost the appellant stated, “to be honest I do not know but the night my father was passing me over they were talking in dollar, and he was asking for 7500 and 8000 dollar that what he said”. The advocacy notes demonstrate that the appellant was asked about this in cross examination, and it is recorded that he did not say that he personally paid it. Taking those responses together, the SI does not emphasise personal payment by the appellant to exclude the possibility of another family member handing over the money when the appellant did say in the screening interview that his family helped him pay for it. There was no recognition that the interview was undertaken many years previously. I agree with the grounds that the evidence on this is ambiguous and can be read both ways. Furthermore in the circumstances it was a peripheral matter in the assessment of credibility.
35. A general challenge has been made to the assessment of credibility and that whilst the FtTJ appeared to find that the core account was plausible, his finding that the appellant had fabricated important parts of his claim in relation to the mechanisms of its journey and the availability of documents that the FtTJ concluded that he could not rely on the appellant’s evidence to establish his underlying core narrative. The grounds submit that the FtTJ did not consider alternative explanations for the alleged inconsistencies and thus was a misdirection. In particular it is submitted that the FtTJ made no finding on the appellant’s submissions that even if the appellant had been untruthful on those matters, it was necessary to consider whether he done so out of fear of return.
36. As the ground set out, it is right to observe that the FtTJ did place reliance on the appellant’s evidence as to his journey from Iraq and the availability of documents (see paragraph 22). The FtTJ did address the submissions made by the appellant’s legal representative that a judge should not lose sight of the credibility of the core narrative. This is set out at paragraph 22. The reference to the “matters fell at the margins of the asylum claim” refers to the submission made that the core of the claim was important rather than relying on matters on the periphery of the claim. However the FtTJ did refer to the appellant being dishonest and not telling the truth and that this had a material bearing on the overall credibility because it showed an unwillingness to be dishonest (also see paragraph 22).
37. In this context it is not apparent that the FtTJ directed himself in line with the decision in R v Lucas [1981 QB 720 and as referred to in the context of asylum claims in Uddin v SSHD [2020] EWCA Civ 338. I also have regard to the guidance given by Lord Glennie in TF (Iran) v SSHD [2018] CSIH 58 about assessing credibility where an appellant’s account may contain lies and in particular paragraph 46; “ any court or tribunal must be very careful not to dismiss an appeal just because the appellant has told lies. For the reasons we have already set out the judge should not jump too readily to the conclusion that because the appellant has told lies about some matters that his credibility on all matters is fatally undermined.” I am mindful of judges sitting in the FtT are to be taken to be aware of relevant authorities and to be seeking to apply them without needing to refer to the specifically. However whilst those findings as they stood may been open to the FtTJ, on balance the grounds between paragraphs 4 and 6 are made out because the FtTJ did not address those issues and thus the credibility findings are flawed.
38. When the matters raised concerning the assessment of credibility are considered together, they are sufficient to demonstrate that there were errors of approach which make the overall assessment credibility to be unsafe and therefore shall be set aside. Any findings to be made will necessarily affect the other issues raised in respect of grounds 2 and 3 where the parties have agreed that there is a material error of law.. For those reasons the grounds are made out and the decision is set aside.
39. Both parties agreed that in view of the fact finding necessary and the issues in the appeal that it should be remitted for a hearing before the FtT. Having considered the practice statement recited and the decision of the Court of Appeal in AEB v SSHD [2022] EWCA Civ 1512 and that of the Upper Tribunal in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46, and in the light of the overriding objective I am satisfied that the appeal falls within paragraph 7.2 (b) as it will be necessary to undertake an assessment of all the factual evidence, oral and documentary, when reaching a decision.
40. Whilst Mr Hingora submitted that the findings made between paragraphs 14 – 16 should be preserved, I do not accept the submission made. The grounds challenge the credibility findings as a whole and the grounds went to the core of the whole credibility assessment. The FtTJ’s finding at paragraph 25 is in direct contradiction to paragraphs 14 to 16 which Mr Hingora seeks to preserve and as such in my view the credibility assessment will be required to be made on all matters and the FtT should not be fettered by the preservation of some findings and not others and thus should consider all issues together (see AB (preserved FtT findings: Wisniewski [2020] UKUT 268).
Notice of Decision:
41. Therefore the decision of the FtTJ involved the making of a material error of law and the decision to dismiss the appeal shall be set aside. It shall be remitted to the FtT for a hearing with no findings preserved and a Kurdish Sorani interpreter will be required for the hearing.

Upper Tribunal Judge Reeds
Upper Tribunal Judge Reeds

11 February 2025