Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002604

First-tier Tribunal No: PA/55350/2023
IA/00086/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 19 March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE BUTLER

Between

R.W.
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms K. Dingwall, Latta & Co
For the Respondent: Mr A. Mullen, Home Office Presenting Officer

Heard at Field House on 12 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 is a citizen of Iraq currently aged 40. He is a Sunni Kurd and states that he formerly resided in the Nineveh Governate in Iraq. He arrived in the UK on 4 March 2020 and claimed asylum. His claim was refused on 3 August 2023.

2. The Appellant’s claim is based both on his race and religion, and the risks he states he faces from Shia militia and / or the Iraqi authorities and his lack of a CSID, meaning that he would be at risk of treatment contrary to Article 3 ECHR if returned.

FTT’s Determination and procedural history
3. The Appellant’s appeal against the refusal of his asylum and human rights claims was heard by FTTJ Prudham (‘the Judge’) on 18 March 2024. He issued a decision on 9 April 2024 dismissing the Appellant’s appeal (‘the Determination’). His reasons were as follows:
a. He found the Appellant’s account vague and, when asked to provide further details, he became implausible (§22 of the Determination);
b. It was “entirely implausible” that the Appellant would not attempt to assist his mother given his concerns about ISIS’s treatment of women. It was implausible that he made no arrangements to keep his mother safe, to meet her, or to remain in contact (§23).
c. The Appellant’s account of having $1,000 in his possession at the time he fled Iraq lacked credibility; he had not mentioned it earlier and it was strange that he would not do so. It was also strange he had so much money on him but not his CSID (§24).
d. It was implausible that the Appellant would not encounter checkpoints or other issues in his long journey to the Turkish border (§25).
e. It was not credible that the Appellant would not try to trace his mother until July 2022 (§26).
f. Even if he were a former resident of the Nineveh Governate, he would not be at risk because he did not have any of the characteristics identified in SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 00110 (IAC).
g. There was no objective evidence to support the Appellant’s claim to be at risk from Hasd al-Shaabi and the Iraqi federal government on the grounds of his ethnicity and religion (§29).
h. He could travel to Iraq on a laissez passer and had failed to establish that he or his family could not access his CSID (§30).

4. The Appellant sought permission to appeal in time, which was refused by FTTJ Pickering on 20 May 2024. He renewed his application, which was granted by DUTJ Lewis on 10 August 2024 on all grounds for the following reasons:
“[…] it is arguable that the First-tier Tribunal fell into error of law in evaluating the Appellant’s conduct in not seeking out his mother at a time of an ISIS incursion. In characterising the Appellant’s conduct as ‘entirely implausible and incredible’ […] it is arguable that the First-tier Tribunal Judge has erred in measuring such conduct against some notion of expected conduct, and / or it is unclear to what extent the Judge has disregarded the practicalities of reaching any particular location at a time of apparent conflict/territorial incursion.
It is similarly arguable that the Judge’s apparent expectation that the Appellant would likely have had to pass through a checkpoint on his journey through Iraq towards Turkey […] was in disregard of the circumstance that the authorities had been displaced by the ISIS incursion and/ or is otherwise without evidential foundation”.

Grounds of appeal
5. By his grounds of appeal dated 3 June 2024, the Appellant advances two arguments; (i) that the Judge fell into speculation and / or failed to consider objective evidence (‘Ground 1’) and (ii) the Determination was unfair as the Appellant was not questioned on his reasons for not travelling to his mother’s location during the hearing, nor was this a point the Respondent took at any stage (‘Ground 2’). A number of separate points are made under Ground 1, as follows:
a. The Judge “relies only on their own view” of what the Appellant ought to have done, without reference to the background evidence.
b. The Judge’s findings that the Appellant would have encountered checkpoints en route to Turkey is not supported by the background evidence.
c. The Judge failed to engage with the background evidence regarding the risks to Sunni Kurds from Shia militias.
Hearing
6. At the hearing in this matter, I heard from Ms Dingwall and Mr Mullen. I thank them both for their focused and clear submissions.

7. Ms Dingwall’s submissions essentially followed the grounds of appeal, arguing that the Judge fell into speculation and failed to consider the Appellant’s evidence about his not returning to assist his mother and about the existence of checkpoints on the route from Nineveh to Turkey, contrary to AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC), which held that Ninevah was at the time a ‘contested area’, in a state of internal armed conflict. She also argued that the Judge failed to consider objective evidence in relation to the treatment of Sunni Kurds in Iraq at the hands of the PMF. She submitted that Sunni Kurds are religious minorities which the PMF target. Finally, she contended that the FTT’s determination is tainted by procedural error, as the point about the Appellant returning to assist his mother was not raised either by the Respondent at any point or by the Judge at the hearing.

8. Mr Mullen contended that the Appellant’s grounds were merely disagreement with the Judge’s decision, “dressed up” in the language of error of law. The Judge’s inference about the Appellant returning to assist his mother was fair. As to the issue of checkpoints, there was no evidence to suggest that this was the case throughout the whole country. Mr Mullen argued that the Appellant had stated that he had a CSID, INID and passport and that documentation could be issued to him in the UK via the Home Office. He invited me to find that the Judge’s findings were open to her to make.

9. Ms Dingwall responded, reiterating that the Appellant was never at any point asked why he didn’t go to assist his mother given the threat from ISIS. She disputed Mr Mullen’s suggestion that the Appellant had documents other than a CSID, stating that the Appellant had never suggested this. She also submitted that the Respondent’s own policy confirmed that it is not possible to obtain a CSID from the UK or the Iraqi government directly, but rather that the only way to redocument is to travel in person to a CSA office, which is impossible without a CSID.

Disposal
10. I accept that the Determination contains material errors of law.

11. Ground 1: Returning to the Appellant’s mother. The Judge found that it was “entirely implausible” that the Appellant would not attempt to assist his mother given his concerns about ISIS’s treatment of women. The authorities are clear about the dangers of relying on inherent plausibility, especially in cases such as these which involve cultures and situations with which the Tribunal is wholly unfamiliar. In particular, I note the guidance given by Neuberger LJ (as he then was) in HK v SSHD [2006] EWCA Civ 1037 at §§28-30 and by Keene LJ in Y v SSHD [2006] EWCA Civ 1223 at §25.

12. I consider that there was no sufficient basis for the Judge to treat as implausible the Appellant’s actions in not going to assist his mother. The reaction of individuals facing the recognised extreme violence and threat posed by ISIS is unlikely to be monolithic or predictable. Even if an individual was keen to protect a family member from ISIS, going to an area under attack by ISIS would involve a significant and immediate risk to life. There is nothing in that fact pattern which supports the Judge’s finding that it is simply implausible that an individual would not go and assist their mother. The Judge also at §23 treated it as implausible and incredible that the Appellant made no arrangements for his mother’s safety or to meet up with her or otherwise contact her. There was no evidential basis justifying such a conclusion and in any event this analysis failed to have regard to the Appellant’s evidence that his mother did not have a phone. I therefore conclude that the Judge’s findings on these issues are unreasonable and / or fail to have regard to relevant matters.

13. Ground 1: Checkpoints. The Judge found at §25 that the Appellant’s account was implausible because he reported “no issues, for example at checkpoints, on the journey to the Turkish border”. Ms Dingwall submitted, and I accept, that this conclusion was made without regard to the Country Guidance case of AA which considered the situation in Iraq around the period the Appellant fled and found that the area in question was in a state of internal armed conflict. While I accept that the lack of reported issues in the Appellant’s departure from Iraq in these circumstances is perhaps somewhat surprising, it falls far short of the high threshold of inherent improbability. I do not consider that there was any evidential basis for the Judge’s apparent conclusion that there would have been checkpoints in place in 2014, which I consider to be contradicted by AA.

14. Even if I am wrong in my analysis in the foregoing paragraphs, I nevertheless conclude that the Judge’s conclusions at §§23 and 25 were vitiated by procedural unfairness for the reasons given below regarding Ground 2.

15. As the Judge’s conclusions on credibility determined her treatment of the Appellant’s Article 3 claim based on the lack of a CSID, this was a material error of law. I note that Mr Mullen suggested in his oral submissions that the Appellant had been in possession of a CSID, INID and passport (which is what the Appellant stated in his substantive asylum interview). However, there is no suggestion in the Determination or otherwise that the Appellant still has any of those documents in his possession, nor was this material to the Judge’s conclusion. Mr Mullen also submitted that the Appellant could be redocumented in the UK either by the Home Office or Iraqi authorities. I can find no support for such a submission in the Home Office’s Country Policy and Information Note on Internal relocation, civil documentation and returns, nor in SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 110 (IAC). The point was not advanced below and the Respondent has not applied to adduce further evidence at this stage. In any event, as the submission appears to lack foundation, I am not persuaded that it makes the error of law immaterial.

16. Ground 1: risk due to ethnicity and religion. The Appellant criticises the Judge’s conclusions at §29, where she rejected the Appellant’s account of being at risk as a Sunni Kurd from PMF and / or the Iraqi Federal Government. The Judge stated that there was “nothing in the objective evidence that indicated this would place the appellant at an increased risk on return to Ninevah”. The Appellant contends that this amounted to an error of law because Sunni Kurds would be a religious and ethnic minority in an area controlled by a Shia militia (such as Ninevah).

17. I accept that this also constituted a material error of law. The Judge is correct that the background evidence largely refers to other minority groups such as Christians and Yezidis, SMO refers to risks arising for members of “a national, ethnic or religious group which is either in the minority in the area in question, or not in de facto control of that area”. I also note that the Internal relocation CPIN defines “minority groups” as “people of Iraqi nationality but not of the dominant Arab ethnicity and Sunni/Shia religion”. I consider that, as part of the ‘careful assessment’ required by SMO, the Judge was required to consider whether the Appellant fell within groups not in control in the Nineveh area, and factor that into her assessment per the guidance in SMO. The reasons given do not engage with that important and material point.

18. Ground 2: procedural fairness. Ms Dingwall submitted that the first two issues raised within Ground 1 were not put to the Appellant by the Judge at the hearing. While I have not been provided with the transcript of the proceedings below, Ms Dingwall represented the Appellant in the First-tier Tribunal and her submission was not contradicted by Mr Mullen; I accept that she is correct. Neither issue was raised in the underlying refusal letter nor the Respondent’s Review. It is trite that the standards of fairness are at their highest in protection claims such as this. It was incumbent upon the Judge to raise these issues and allow the Appellant an opportunity to respond to them prior to finding against him on these points. They were both points on which the Appellant could evidently have given evidence but he was denied the opportunity of doing so.

19. I therefore conclude that the judgment was vitiated by procedural irregularities.

Notice of Decision
The making of the decision of the First-tier Tribunal involved a material error of a point of law.

The decision of the First-tier Tribunal is set aside.

The appeal shall be remitted to the First-tier Tribunal for a fresh hearing on all issues, to be reheard by any judge except First-tier Tribunal Judge Prudham.

Miranda Butler

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

13 March 2025