Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003281

First-tier Tribunal No: PA/51188/2020

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 24 March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE R FRANTZIS

Between

H.J.M
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr McGarvey (Counsel instructed by Crowley & Company)
For the Respondent: Mr Thompson (Senior Home Office Presenting Officer)

Heard at Cardiff Civil Justice Centre on 7 March 2025 by CVP

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

Introduction

1. I have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal (“FtT”) because the underlying claim involves international protection issues in that the Appellant claims to fear persecution or serious harm on return to Iraq. In reaching this decision, I am mindful of the fundamental principle of open justice but I am satisfied, taking the Appellant’s case at its highest for these purposes, that the potential grave risks outweigh the rights of the public to know of his identity.

2. The Appellant appeals with permission against the decision, dated 13th May 2024 (“the Decision”), of the FtT to dismiss his appeal on all grounds.

Background

3. The broad factual background to the appeal is not in dispute between the Parties. The Appellant asserts that he would be at risk on return to Iraq because of a family blood feud with a man (TG) who is politically powerful in that he is linked to, protected by and also assisted by influential associates within the PUK party. The Appellant also points to his Facebook activity and attendance at demonstrations since leaving Iraq as further matters placing him at risk upon return because he has expressed views critical of both the PUK and KDP. In addition the Appellant claims that he is unable to obtain the documentation required to ensure his safe return to Iraq. On 12th June 2020 the Respondent refused the Appellant’s claim.

Appeal to the First-tier Tribunal

4. The Appellant appealed against the Respondent’s refusal. Both Parties were represented at the appeal hearing. In the Decision the FtT stated that:

(i) The Appellant gave contradictory accounts as to his encounters with TG including the trigger event leading to his departure to seek international protection [19]
(ii) Concerning the complaint made by the Appellant to a human rights organisation called Ashti:
a. The Appellant had given directly contradictory accounts about who made the report [22]
b. The Appellant had failed to provide credible or adequate reasons for failing to mention in his substantive interview that he has made a complaint to Ashti [23]
c. The report from Ashti does not correctly identify the Appellant by name [29].
(iii) Concerning the report by Dr Sheri Laizer:
a. Dr Laizer’s expertise in political analysis of Kurdistan is clear and not challenged. Her evidence concludes that the Ashti document shows that the Appellant has been involved in a blood feud as claimed [30]
b. Her evidence is helpful in establishing that Ashti is a genuine organisation and that the form of the document before the FtT is consistent with her knowledge of that organisation. However her expertise does not resolve the issue arising from the apparent failure of the document to have the Appellant’s correct name upon it. [31]
c. Ashti is a genuine organisation but the FtT was not persuaded that the letter before the FtT related to this Appellant. It gives a different name, the Appellant was inconsistent as to the circumstances of his complaint to Ashti and failed to mention such complaint in his asylum interview. [32]
(iv) Concerning the Appellant’s Facebook activity:
a. “I do not find that the Facebook contents before me provide an adequate source of evidence upon which to conclude that any online activity by this man could bring him to the adverse interest of any individuals or organisations within Iraq.” [41]
b. “I am not satisfied that it is the appellant who is the operator and poster of the information that is before me given the incomplete disclosure of his Facebook account, in any event he has not demonstrated any good reason that would prevent him from closing any such account in the event of a return.” [42]
c. Whilst the Appellant has attended demonstrations in the United Kingdom, his activity is not associated with any online footprint and the Appellant has not established any role other than attendance.[43]
(v) As to the Appellant’s identity documents (CSID and passport): “I find that he knew just how important such a document was hence he took it with him. I am not persuaded that the document has been lost as claimed, I simply do not find that the appellant has given credible evidence to that effect.” [45]
(vi) Finally, “When asked why the appellant had not sought protection in France or Greece, he said that in Europe there were threats to his life. I note that no such threats were dealt with in significant detail by the appellant during his substantive interviews. I find such lack of detail to be undermining of his reliability as a witness on this issue. I do not find that the appellant has properly explained his failure to seek protection in either state, that is a matter that further undermines his reliability as a witness of fact in my judgment.” [47]

Appeal to the Upper Tribunal

5. The Appellant contends that the FtT has erred in law in the following ways:

a. In failing to consider all of the evidence, including his witness statement and that of Dr Laizer;
b. In failing to consider caselaw relevant to the issue of the “feasibility” of the Appellant’s return to Iraq.

6. In a decision dated 25th June 2024 the FtT refused to grant permission to appeal.

7. In a decision stamped on 5th September 2024, the Upper Tribunal granted permission. That permission was not limited although clear observations were made in respect of the strength of certain of the Grounds of Appeal.

8. At the error of law hearing, Mr McGarvey relied, and expanded, upon the Grounds of Appeal.

9. Mr Thompson in response submitted that the Decision must be read as a whole and that the FtT had come to reasoned and sustainable findings, demonstrably informed by all of the evidence.

Discussion

Ground 1
10. This Ground of Appeal has more than one element; I shall take each in turn. The argument at [19] of the Grounds of Appeal is that the FtT does not refer to the Appellant’s evidence within his witness statement at any point in the Decision. This point is taken specifically in respect of the Appellant recounting the facts surrounding how the Ashti document came to have his name recorded as H and not M: the Appellant stated that he gave his name as recorded on his CSID and that the name H is a shortened version of M. There is no merit in this argument for the following reasons:

a. The Court of Appeal confirmed in Volpi v Volpi [2022] EWCA Civ 464 that an appeal court is bound, unless there is compelling evidence to the contrary, to assume that the trial judge (in this case the FtT) has taken into consideration the whole of the evidence before them. The fact that a specific piece of evidence is not mentioned does not mean that it has been overlooked;
b. Far from there being compelling evidence to the contrary, the FtT confirms at [13] they have read in full all of the documentation submitted by the Appellant;
c. Furthermore, the FtT refers to the Appellant’s evidence on this specific point at [24]. The FtT then records the fact that the Respondent’s representative explored the Appellant’s account that his name was in fact H not M in cross examination and for sustainable reasons finds that account not credible, that the Appellant has never sought to correct his name from M to H despite his lengthy dealings with the Respondent and FtT [28] and therefor that the Ashti report has not been shown to correctly identify the Appellant by name [29].

11. There is similarly no merit in the assertion in the Grounds of Appeal at [20] that the FtTJ has mistaken a letter from Ashti for the full report and thereby failed to address the full report. That is plainly not the case. On any full reading of the Decision, the FtT clearly had regard to the substantive evidence from the Ashti organisation and considers the same in the round, including by reference to the report of Dr Laizer [20-23, 29 31, 32]. Furthermore, the FtT refers to the letter to the Appellant’s solicitors dated 02/03/2021 [20] and the complaint made to the Ashti organisation [20] and the report [29]. As to the assertion at [21] of the Grounds of Appeal that the FtT placed too much weight on inconsistencies in the Appellant’s evidence as to who made the report to Ashti, this amounts to no more than a disagreement with the reasoned findings of the FtT.

12. Mr McGarvey’s submissions before me focussed upon the argument in the Grounds of Appeal [26 & 27] that that when assessing the documents from Ashti, the FtT did not take into account the fact that the document from that organisation dated 17/05/2018 contained a photograph which is said to be of the Appellant which appears on the electronic copy to have a stamp over it. This general practice was referred to by Dr Laizer in her report. For the following reasons I do not find that the FtT erred in law:

a. Firstly, for the reasons that I set out above and bring forward, I am satisfied that the FtT considered all of the documentation from Ashti;
b. Secondly, the FtT makes express findings in respect of the evidence of Dr Laizer including as a general matter that “I have given her report the close attention that her expertise merits” [31] and on the specific point of the Ashti documentation “Her evidence concludes that the Ashti document showed that the appellant had been involved in a blood feud as claimed” [30] and “I recognise her helpful evidence establishing that the Ashti organisation is genuine and that the form of document before me is consistent with her knowledge of that organisation.” [31] The reference to the “form of the document” must be taken to include the fact of a photograph with a stamp on it (see paragraph f)ii. of Dr Laizer’s report at page 61 of the Consolidated Bundle);
c. Thirdly, as Mr Thompson pointed out, the FtT made a number of findings adverse to the credibility of the Appellant’s account in respect of the reporting of the blood feud to Ashti [20-23] including “the appellant has given directly contradictory account about who made the report” [22]. There is no sustainable basis to impugn this finding of fact by the FtT and it goes directly to the paragraph of Dr Laizer’s report relied upon by Mr McGarvey in the Grounds of Appeal [27] because that paragraph relies upon the photograph being of the person who registered the complaint – a fact about which the Appellant had been inconsistent;
d. Fourthly, it was incumbent upon the FtT to consider the evidence before them as a whole, an exercise which they have demonstrably carried out. The FtT weighs the evidence in favour of the Appellant [34] but finds that they cannot be satisfied as to his factual assertions (for reasons set out herein above at paragraph 4) including that the Ashti report related to the Appellant.

13. At [31] the Grounds of Appeal make an assertion that the FtT erred in law by failing to take into account Dr Laizer’s evidence in relation to the Appellant’s sur place activities. The point is not elucidated further. Mr McGarvey submitted that the FtT has erred in failing to take into account Dr Laizer’s conclusions regarding the Appellant’s online activity. This Ground is not made out:

a. First of all, it is clear that the FtT has considered the report of Dr Laizer as it is referred to expressly in the Decision [30, 31];
b. Second, in a detailed section of the Decision [35-42] the FtT sets out why, on the evidence, “I do not find that the Facebook contents before me provide an adequate source of evidence upon which to conclude that any online activity by this man could bring him to the adverse interest of any individuals or organisations within Iraq” [41]. In particular, the FtT finds that (i) the Appellant has not provided full download information, directs themselves in accordance with XX (PJAK – sur place activities - facebook) Iran CG UKUT 23 and concludes that this significantly undermined the weight to be attached to the information that was provided [36, 42] (ii) it was not credible that someone using a pseudonym to protect themselves during online activity would, if they genuinely feared adverse interest, simply change the name of their account at the request of a representative [40] and (iii) the Facebook account, even after correction, did not contain the name M or H [39]. As such, the FtT was not satisfied that it is the Appellant who is the operator of the account and poster of the information [42];
c. Third, the opinions of Dr Laizer are premised upon the evidence of the Facebook postings being reliable (Mr McGarvey relied in particular upon sub paragraph v. of Dr Laizer’s report at page 71 of the Consolidated Bundle where reference is made to “his Facebook postings” emphasis added ). As set out above, that is not a finding that the FtT has made.

Ground 2
14. Mr McGarvey confirmed before me that he relied upon the Grounds of Appeal on this point “as far as they go”. Therein it is argued that:

a. The FtT has failed to have any regard to the authority of SA (Removal destination; Iraq; undertakings) Iraq [2022] UKUT 00037 and that the Appellant’s enforced return would be to Baghdad;
b. The FtT had erred in finding that the Appellant’s family would be able to assist him in redocumenting himself.

15. The difficulty for Mr McGarvey with this argument, and in fairness to him he did not press the point, is that there is an unchallenged finding of fact that the Appellant has not satisfied the FtT that he is not in possession of his CSID document [45]. As such, whether or not the Appellant is returned to Baghdad or the IKR and whether or not he has family support, he has not shown that he would be returning to Iraq without the very document the loss of which this plank of his claim to international protection was based.

16. There is no merit in the Ground of Appeal.

Conclusion

17. For the reasons set out above, there is no error of law in the Decision of the FtT.

Notice of Decision

The Decision of the FtT does not involve a material error of law and shall stand.

Roxanne Frantzis

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

21st March 2025