Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003372

First-tier Tribunal No: PA/57565/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 24th of April 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE COLE

Between

KA
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr K Wood, IAS
For the Respondent: Ms Z Young, Senior Home Office Presenting Officer

Heard at Phoenix House (Bradford) on 28 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 Iran. He arrived in the UK on 3 March 2021 and claimed asylum. His protection claim was refused, and he appealed to the First-tier Tribunal. His appeal was dismissed in a decision promulgated 25 April 2024. The appellant now appeals to the Upper Tribunal.

Background

2. The appellant is an Iranian citizen of Kurdish ethnicity. He claimed that he was at risk in Iran due to being identified whilst distributing leaflets for the KDPI. He also claimed to be at risk on return due to his sur place activities, which included attending demonstrations and posting on Facebook against the Iranian regime.

3. The respondent refused the protection claim on the basis that it was not accepted that the appellant had given a credible account of events in Iran. The respondent did not accept that the appellant’s sur place activities were demonstrative of a genuine political opinion or that they would place the appellant at real risk on return.

4. The appellant appealed to the First-tier Tribunal. The appeal was heard by Judge Fisher on 12 April 2024.

5. The judge did not find the appellant’s account to be credible. The judge accepted that the appellant had attended eight demonstrations in the UK, and that he had a limited Facebook profile. However, the judge did not accept that the appellant had a genuine political opinion and did not find the appellant to be at risk on return.

6. Judge Fisher dismissed the appellant’s appeal.

7. The appellant submitted grounds of challenge. These were rejected by the First-tier Tribunal. However, on renewal to the Upper Tribunal, by decision dated 17 January 2025 Judge Meah granted permission on the following terms:

It is at least arguable that the FtTJ’s approach to assessing the appellant’s claim to have attended demonstrations outside the Iranian Embassy in London, confined to one paragraph at [17], is inadequate and arguably fails to properly engage with the guidance in BA Iran. It is also arguable that the FtTJ’s approach to the assessment of the supporting letter from the KDPI was flawed in that weight was not placed on this where the FtTJ says at [15] that “Given my conclusions on his credibility therefore, I am not prepared to attach any significant weight to the letter”. The FtTJ’s approach in not considering this evidence independently from the previous adverse credibility findings, and in the round, was arguably erroneous– (See Mibanga [2005] EWCA Civ 367, AJ (Cameroon) v SSHD [2007] EWCA Civ 373, AM(Afghanistan) v SSHD [2017] EWCA Civ 1123), R (MN) v SSHD & Others [2021] 1 W.L.R. 1956. and QC (Verification of Documents: Mibanga Duty: China) [2021] UKUT 00033.

8. Thus, the matter came before me to determine whether Judge Fisher’s decision involved the making of an error on a point of law.

The Hearing

9. Mr Wood relied on his grounds of appeal and expanded on them.

10. He submitted that the judge had failed to apply the substance of BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC). There was no engagement with the risk factors identified in BA (Iran). It was incumbent for the judge to give anxious scrutiny to the relevant factors.

11. Mr Wood submitted that, even if the appellant’s activity were disingenuous, then he would be interrogated on return, and he will answer that he was involved in politics in the UK. This was a matter that the judge should have considered.

12. Mr Wood submitted that the judge had failed to consider the KDPI letter in the round. The letter was only considered after credibility. This is an error. Mr Wood highlighted that the respondent’s Country Policy and Information Note, Iran: Kurds and Kurdish political groups, Version 4.0, 11 May 2022 (CPIN) dealt with KDPI support letters, and the judge had failed to engage with this.

13. Finally, Mr Wood submitted that the judge should have accepted that the appellant stored political materials at home as some people are prepared to run the risk of doing dangerous actions to support a cause. It was accepted that the appellant was someone who could be interested in the KDPI and so this matter should have been accepted.

14. Ms Young relied upon the Rule 24 prepared by the respondent.

15. She submitted that there was no material error of law in the judge’s decision. The judge had succinctly engaged with BA (Iran). The factors were not detailed, but this did not mean that the judge had not engaged with all the factors. The finding that the appellant was a low-level participant has not been challenged, and the judge accepted the appellant has attended eight demonstrations. It is not clear what it is suggested that the judge overlooked.

16. Ms Young submitted that the judge had considered the KDPI letter in the round with all the other documents. She submitted that the judge’s conclusions regarding the KDPI letter were open to him. The judge confirmed that he had read all the documents and so can assume that he considered the CPIN as it was in the Hearing Bundle.

17. Ms Young submitted that the overall conclusion of the judge was that the appellant was not credible. There is no legal error in his decision.

18. Mr Wood briefly responded. He highlighted the lack of reference to the CPIN which detailed how information for KDPI support letters was checked. He submitted that the judge’s conclusions were not consistent with the risk factors identified in BA (Iran).

19. After hearing the submissions, I reserved my decision.

Discussion and Analysis

20. When considering whether the judge made a material error in law in dismissing the appellant’s appeal, I have remined myself of the following principles.

21. It is not permissible for the Upper Tribunal to simply disagree with the result or the way in which it was reached. As held in South Bucks County Council v Porter [2004] UKHL 33, reasons must:

36. [...] enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision.

22. I take note of the narrow circumstances in which an appellate Tribunal may interfere with findings of fact and credibility by the fact-finding Tribunal. In Volpi v Volpi [2022] EWCA Civ 464, the Court of Appeal stated:

i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.

ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.

iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.

iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.

v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.

vi) Reasons for judgment will always be capable of having been better expressed. 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.

23. I also remind myself that the Upper Tribunal is required to exercise judicial restraint in its oversight of the First-tier Tribunal's reasoning, as detailed by the Court of Appeal in Ullah v SSHD [2024] EWCA Civ 20

Sections 11 and 12 TCEA 2007 Act restricts the UT's jurisdiction to errors of law. It is settled that:

(i) the FTT is a specialist fact-finding tribunal. The UT should not rush to find an error of law simply because it might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49 [2008] 1 AC 678 at paragraph [30];

(ii) where a relevant point was not expressly mentioned by the FTT, the UT should be slow to infer that it had not been taken into account: e.g. MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 at paragraph [45];

(iii) when it comes to the reasons given by the FTT, the UT should exercise judicial restraint and not assume that the FTT misdirected itself just because not every step in its reasoning was fully set out: see R (Jones) v First Tier Tribunal and Criminal Injuries Compensation Authority [2013] UKSC 19 at paragraph [25];

(iv) the issues for decision and the basis upon which the FTT reaches its decision on those issues may be set out directly or by inference: see UT (Sri Lanka) v The Secretary of State for the Home Department [2019] EWCA Civ 1095 at paragraph [27];

(v) judges sitting in the FTT are to be taken to be aware of the relevant authorities and to be seeking to apply them. There is no need for them to be referred to specifically, unless it was clear from their language that they had failed to do so: see AA (Nigeria) v Secretary of State for the Home Department [2020] EWCA Civ 1296 at paragraph [34];

(vi) it is of the nature of assessment that different tribunals, without illegality or irrationality, may reach different conclusions on the same case. The mere fact that one tribunal has reached what might appear to be an unusually generous view of the facts does not mean that it has made an error of law: see MM (Lebanon) v Secretary of State for the Home Department [2017] UKSC 10 at paragraph [107].

24. The appellant asserts that the judge’s reasoning in paragraph 17 of his decision is insufficient as he failed to adequately engage with the guidance issued in BA (Iran).

25. Although the judge has expressed himself briefly on this matter, I do not accept that there is a material error of law in his consideration of BA (Iran).

26. The judge detailed that he had regard to the factors identified in BA (Iran). He confirmed that the appellant had attended eight demonstrations in the UK where at least 150 people were present. The judge records that the appellant, on his own account, was nothing more than a low-level participant.

27. In my assessment, although his reasons are expressed succinctly, the judge has given sufficient reasons for his conclusions regarding the risk to the appellant due to his attendance at demonstrations in the UK. The judge specifically stated that he considered the relevant factors in BA (Iran), and I find that there is no reason to doubt that he actively took those matters into account when reaching his conclusions.

28. There is no material error of law in the judge’s consideration of BA (Iran).

29. There was an additional issue mooted by the appellant in the grounds. This related to the consequences of the interrogation of the appellant on return to Iran, even if his core claim were rejected. Mr Wood submitted that it was incumbent on the judge to consider the consequences for the appellant providing truthful answers about attending eight anti-regime demonstrations in the UK during questioning on return.

30. Mr Wood acknowledged that this matter was not argued before the judge. I note that at paragraph 2 of the decision it is stated that “Both were in agreement that the appeal turned on the credibility of the Appellant’s account…”

31. However, Mr Wood submitted that it was incumbent on the judge to consider this matter. I reject that submission. It is not a judge’s role to search for issues in the papers that have not been specifically raised. The principal controversial issues are agreed in the Appeal Skeleton Argument and the Review and then confirmed at the start of the hearing. It is not an error of law for a judge to not consider an issue that was not raised before them.

32. I find that the judge dealt with the issues as agreed and there is no basis for impugning his decision for not considering an issue that was not raised before him. There is no error of law disclosed in this regard.

33. The appellant asserts that the judge erred in his assessment of the supporting letter from the KDPI. The appellant refers to the guidance offered in Mibanga v SSHD [2005] EWCA Civ 367 and QC (Verification of Documents: Mibanga Duty: China) [2021] UKUT 00033.

34. The judge confirms that documentary evidence must be considered in the round. Thus, it can be assumed that this is precisely what he did.

35. The judge is correct to state that the KDPI letter fails to explain how the author and the party are aware that the appellant was forced to leave Iran due to the oppression to which he was subjected by the state. It is asserted that this fails to take into account information in the respondent’s CPIN which indicates that “Regarding letters of recommendation, KDPI's representative in Paris informed the delegation that when the representation in Paris is requested to verify whether a person is a party member or sympathizer, it will ask the party's headquarters in Khoysanjak Camp in KRI to investigate the case.”

36. The relevant CPIN was in the bundle that was before the judge and thus there is no reason to suggest that he did not consider this evidence when reaching his decision.

37. In any event, the fact that the CPIN indicates that there may be some form of investigation before letters of recommendation are issued does not provide insight into precisely what investigation is undertaken and how details on a specific person are obtained. I find that the CPIN adds no real detail to the issue the judge was deciding, and so it is hardly surprising that it was not mentioned specifically.

38. Further, it is of note that the quote in the CPIN concludes “Upon receiving the answer from Khoysanjak, the representation in Paris will issue a letter of recommendation.” In this case there is no evidence that the request for confirmation went to the KDPI representative in Paris or that the representation in Paris issued the letter. The letter has an address in Iraq, a telephone number in Iraq and, rather oddly, a fax number in the UK. There is no obvious link to the representative in Paris.

39. I accept that the judge could have expressed himself better when he stated he was not prepared to attach any significant weight to the letter given his conclusions regarding the appellant’s credibility. However, I find that the judge did consider all the evidence in the round before reaching his final conclusions on credibility.

40. In my judgment, when the decision is viewed in totality, I find the judge’s assessment of the support letter from the KDPI is sufficiently well-reasoned to be sustainable. The judge confirms that he has considered the documents in the round, and I find that, despite some unfortunate phraseology, this is what he has done. I do not accept that the judge’s consideration of the KDPI letter breached the Mibanga duty.

41. There is no material error of law regarding the assessment of the KDPI letter.

42. Finally, the appellant asserted that the judge erred in law in his assessment of the credibility of the appellant’s account of storing KDPI leaflets at his home. This challenge has no merit.

43. The judge carefully assessed all the appellant’s evidence, giving him credit for some issues (see paragraphs 8 and 9), before highlighting numerous negative credibility issues across paragraphs 10 to 14.

44. The appellant seeks to impugn the judge’s finding on one single issue, without considering the many other issues that the judge detailed as undermining the appellant’s credibility. The judge carefully considered all the evidence in the round and gave numerous sufficiently detailed reasons for finding that the appellant had not proven his account to the lower standard of proof.

45. The judge has considered all relevant matters and reached a detailed and well-reasoned conclusion for finding that the appellant was not a credible witness.

46. There is no error of law in the judge’s rejection of the appellant’s account.

47. Thus, in conclusion, for the reasons above, I find the judge has not made material errors of law in his decision and reasons.

Notice of Decision

The First-tier Tribunal has not been shown to have made an error of law material to the decision to dismiss the appeal. The determination shall stand.

C R Cole
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

11 April 2025