Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003709

First-tier Tribunal No: PA/58737/2023
LP/04545/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 10th of September 2025

Before

UPPER TRIBUNAL JUDGE NEVILLE

Between

H M A
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms K Wass, counsel, on 2 December 2024
Mr A Eaton, counsel, on 24 February and 18 June 2025
For the Respondent: Ms J Isherwood, Senior Presenting Officer, on 2 December 2024
Ms A Nolan, Senior Presenting Officer, on 24 February 2025
Mr K Ojo, Senior Presenting Officer, on 18 June 2025

Heard at Field House on 2 December 2024, 24 February and 18 June 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 (and/or other person). Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. The appellant is a 21 year old Iraqi national of Kurdish ethnicity. On 13 October 2021 he entered the United Kingdom and claimed asylum, claiming to fear violence at the hands of the family of a woman with whom he had an illicit relationship. By the time he was interviewed on 15 September 2023, he also claimed to be at risk from the Kurdistan Regional Government (KRG) in retaliation for his political beliefs and expression, and to be unable to live or travel safely in Iraq due to having no identification documents.
2. The respondent rejected the appellant’s account in a decision dated 9 October 2023, and refused the claim. The appeal against that decision was heard on 5 July 2024, and dismissed in a decision dated 13 July 2024. The First-tier Tribunal Judge gave detailed reasons for disbelieving that there had been any illicit relationship, and rejected that the appellant would be at risk due to his political views. She found that the appellant was in touch with his family and that they could meet him on return with a CSID document that would enable him to live and travel safely.
3. The appellant sought permission to appeal to the Upper Tribunal, which was granted by a different judge of the FtT on a single ground: while the Judge had found that the appellant would be able to obtain his CSID card, so would not face the risk on return described, she had failed to address his evidence that a CSID card was no longer considered valid for internal travel and access to state assistance. The appellant was refused permission on two other grounds that challenging the Judge’s findings of fact, and no renewed application for permission was made to the Upper Tribunal. The Upper Tribunal is therefore only concerned with the issue of documentation, and the Judge’s other conclusions are unaffected.
Error of Law
4. At the hearing on 2 December 2024 I heard submissions from Ms Wass and Ms Isherwood, and record these below where necessary to explain my conclusions.
CSIDs – Current country guidance
5. Paragraph 9.2 of the Practice Direction for First-tier Tribunal (Immigration & Asylum Chamber) of 13 May 2022, in force at the time of the Judge’s decision, provides as follows:
9.2 A reported decision of the Upper Tribunal, the AIT, or IAT, bearing the letters “CG” shall be treated as an authoritative finding on the country guidance issue identified in the decision, based upon the evidence before the members of the Upper Tribunal, the AIT, and the IAT that decided the appeal. As a result, unless it has been expressly superseded or replaced by any later “CG” decision, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:
(a) relates to the country guidance issue in question; and
(b) depends upon the same or similar evidence.
That Practice Direction has now been superseded, but so far as relevant its replacement is in identical terms.
6. In SG (Iraq) v Secretary of State for the Home Department [2012] EWCA Civ 940, the Court of Appeal held that:
46. The system of Country Guidance determinations enables appropriate resources, in terms of the representations of the parties to the Country Guidance appeal, expert and factual evidence and the personnel and time of the Tribunal, to be applied to the determination of conditions in, and therefore the risks of return for persons such as the appellants in the Country Guidance appeal to, the country in question. The procedure is aimed at arriving at a reliable (in the sense of accurate) determination.
47. It is for these reasons, as well as the desirability of consistency, that decision makers and tribunal judges are required to take Country Guidance determinations into account, and to follow them unless very strong grounds supported by cogent evidence, are adduced justifying their not doing so.
7. “Very strong grounds supported by cogent evidence” has therefore emerged as the test for departure from country guidance when considering the same issue.
8. In this case, the relevant country guidance is found in SMO and KSP (Civil status documentation, article 15) (CG)) Iraq [2022] UKUT 110 (IAC) (“SMO2”). So far as is relevant, the guidance is as follows:
C. CIVIL STATUS IDENTITY DOCUMENTATION
11. The CSID is being replaced with a new biometric Iraqi National Identity Card - the INID. As a general matter, it is necessary for an individual to have one of these two documents in order to live and travel within Iraq without encountering treatment or conditions which are contrary to Article 3 ECHR. Many of the checkpoints in the country are manned by Shia militia who are not controlled by the GOI and are unlikely to permit an individual without a CSID or an INID to pass.
12. In order to obtain an INID, an individual must personally attend the Civil Status Affairs ("CSA") office at which they are registered to enrol their biometrics, including fingerprints and iris scans. The CSA offices in which INID terminals have been installed are unlikely - as a result of the phased replacement of the CSID system - to issue a CSID, whether to an individual in person or to a proxy. The reducing number of CSA offices in which INID terminals have not been installed will continue to issue CSIDs to individuals and their proxies upon production of the necessary information.
9. The relevant facts in the appellant’s case are as found by the Judge:
27. [...] Accordingly, the Appellant has no fear of his own father and family, and his family have his CSID as first stated in his screening interview it was left with his own family. Therefore, I find that the Appellant can return and his family can meet him at the local airport with his CSID, and there would be no difficulties in the Appellant passing through checkpoints.
10. If the country guidance in SMO2 continues to be correct then the Judge was plainly right to find that the appellant, as someone with a CSID, would not be at risk.
11. Ms Isherwood also referred me to paragraph 3.7.5 of the Home Office’s Country policy and information note: internal relocation, civil documentation and returns, Iraq, October 2023:
3.7.5 Whilst the INID replaces the CSID, it can still be used for passing through checkpoints and accessing services such as financial assistance, employment, education, housing and medical treatment. It is also still a gateway to obtaining other documents including the initial issuance of an INID […]
12. I further note the following:
6.8.5 The ICIBI report June 2023, quoting Dr Rebwar Fateh, stated:
‘In September 2022, the Director General of Citizenship in Erbil informed me that the issuing of CSIDs in the IKR has stopped. However, the document remains valid for all legal and administrative purposes while individuals are waiting to receive their INID. Moreover, an individual working for the Iraqi Independent Election Commission confirmed that no CSA office is [sic] Iraq is issuing the CSID or INC. They are all now issuing the INID. However, the long waiting time, due to the shortage of cards, means that the INC and CSID continue to be valid.’ [footnote 38]
fn 38. ICIBI, ‘Inspection report on Country of Origin Information, Iraq…’, July 2023
The new evidence before the Judge
13. In the bundle of evidence before the Judge was an article entitled ‘Iraq to stop using old IDa from March 2024’ dated 28 December 2023. The copy in the bundle has sliced off the last character or two of each line, but contrary to Ms Isherwood’s concerns the missing content can easily be inferred. The article can therefore be read:
Shafaq News/ The Iraqi Ministry of Interior on Wednesday announced that it will stop using old identification documents starting from March 2024.
The ministry said that the only valid identification document will be the new national ID card.
Minister of Interior Abdul Amir al-Shammari said that the ministry has set March 1, 2024 as the deadline for the implementation of the decision. He urged the concerned departments to prepare for the large numbers of people expected to apply for the national ID card.
The Iraqi government launched the national ID card project in 2015 as a replacement for the old identification documents that were used under the previous regime of Saddam Hussein.
The old documents are: the civil status card, the citizenship certificate, the residence card, and the food card.
The project aims to create a central database of all Iraqis and to issue them with unified national ID cards that will be used in all official transactions with state institutions.
The project has been delayed at times due to technical problems and a shortage of raw materials caused by delays in payment of financial dues to the company contracted with the Iraqi Ministry of Interior. However, the problems have been resolved recently and the process is now running smoothly in civil status departments, according to officials.
14. The article is plainly printed from a website, as it goes on to list links to other sections of the site and exhorts the reader to download the Shafaq News app. There is no evidence as to the nature of that organisation however, or as to what weight can be attached to its reporting.
The parties’ arguments
15. Ms Wass argued that this stood as evidence that SMO2 and the CPIN are now out of date. They each suggest that continued acceptance of CSIDs was a temporary situation until the full introduction of INIDs and the article simply shows that, as might be expected, that temporary situation had eventually ended. The Judge had erred by failing to consider material evidence.
16. Ms Isherwood had two arguments in response: first, that the article was not capable of providing strong grounds supported by cogent evidence that could justify departure from SMO2; and second, that while the article was in the evidence placed before the Judge, it was far from clear that the present argument had ever actually been made. On that latter point, Ms Wass (who was not instructed below) acknowledged that the article could have been more clearly signposted but that, as noted in the grounds of appeal to the Upper Tribunal, the appellant’s witness statement adopted before the Judge had included the following:
26. In response to ‘feasibility of return’ paragraph of the RFRL, I can confirm that I do not have my CSID card. I left this behind in Iraq and my family will no longer be able to provide this to me as I have not had any contact with them or anyone else in Iraq.
27. It has been announced by the Iraqi Ministry of Interior that from 1st March 2024, they will stop using the old ID cards. The old documents are: the civil status card, the citizenship certificate, the residence card, and the food card.
28. I can confirm that I do not have any ID with me in the UK. I would face a real risk of harm without an ID card. Furthermore, I would now need to attend in person to obtain a new INID card and a proxy will not be able to attend on my behalf. I cannot return to Iraq without my ID card as I will be subject to serious harm.
Consideration
17. Risk arising on return to Iraq from lack of documentation has been a complex issue for many years. SMO2 is a (necessarily) lengthy decision, and the CPIN is some 75 pages long. I am therefore grateful to the representatives for providing such focused arguments rather than requesting that I traverse the various permutations of risk that the Judge could have considered. This was sensible, because the focus at this stage is the appeal is what the Judge did consider. If a material error of law is established, then the appellant’s exact circumstances and risk on return will then be examined.
18. It was confirmed in Lata (FtT: principal controversial issues) India [2023] UKUT 163 (IAC) that “a judge is not required to trawl though the papers to identify what issues are to be addressed”. This undoubtedly includes the potential significance of individual pieces of country evidence in the bundle: the Judge can expect to be told. Nonetheless, any Judge in this jurisdiction considering SMO2 and the CPIN will be aware that the situation concerning documentation is a changing one. The content of the witness statement at paragraph 27 is clear and, taken together with the somewhat more tangential reference to the necessity for an INID in the Appeal Skeleton Argument, was sufficient to put the Judge on notice of the article and the argument being made. An obligation then arose to decide whether there were very strong grounds supported by cogent evidence to depart from the country guidance in SMO2 that a CSID would be sufficient. The lack of any such consideration stands as an error of law.
19. Was that error material? It is certainly unlikely that the article by itself would have persuaded the Judge that the appellant could not safely be returned, but I cannot say that the same conclusion would be inevitable. The guidance in SMO2 and the CPIN can be fairly read as predicting that the CSID will only be accepted until the INID has fully taken over, and the article was evidence that this had come to pass, as expected. The context, and therefore the test in SG (Iraq), may demand less evidence than a situation where an entirely new event in a country disturbs a status quo that was thought to be settled.
20. For those reasons, I consider that the Judge’s decision contains a material error of law and should be set aside.
21. Given that the decision has been set aside on a very narrow issue, applying the relevant Practice Direction and the principles set out in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC) it should be re-made in the Upper Tribunal. All the Judge’s findings of fact ought to be preserved, including that the appellant will have access to his CSID on arrival in Iraq. The only issue to be considered when the decision is re-made is whether possession of that CSID will be sufficient to avoid the risk arising from lack of documentation set out in SMO2.
Re-making the decision
22. The above reasons were sent to the parties on 8 January 2025, the Tribunal setting down a hearing on 24 February 2024 at which the decision would be re-made and making directions to the parties on how they should prepare. Those directions included that the parties must provide any further evidence upon which they relied no later than 7 days before the hearing and must provide skeleton arguments no later than 3 days before the hearing. Three working days before the hearing, the respondent made an adjournment application because the issue set out in paragraph 21 above was to form part of the country guidance to be issued in a case presently being convened by the Upper Tribunal. I refused the application due to the delay this would cause.
Hearing of 24 February 2025
23. The respondent provided a skeleton argument late on the working day before the hearing. In support of the arguments it put forward, the document hyperlinked three articles by the Iraqi Embassy in London relating to whether INIDs could be issued there. The provision of evidence in that way, and at that time, plainly ambushed the appellant, who by then was represented by Mr Eaton. As he observed at the hearing, the possibility of obtaining an INID in the UK was an entirely new issue that the appellant had been given no opportunity to address. I held that it would be unfair to permit the respondent to rely on the three articles if the hearing went ahead on that day, and if the respondent still sought to rely on them then an adjournment must be sought. Even after the possibility was raised that the costs incurred by an adjournment might, subject to the parties’ representations, be met by the respondent, this was still the respondent’s preferred course. I granted the respondent’s application for an adjournment, as at that stage the importance of correctly determining the appellant’s protection status outweighed the further delay and public expense incurred.
24. When granting the adjournment, I made directions that specified the dates by which each party must provide any further evidence and skeleton arguments, and which determined the issues to be decided as:
a. Whether the appellant can pass checkpoints in Iraq using a CSID, or whether an INID is now required;
b. Whether the appellant can obtain an INID prior to (or immediately upon) return.
Hearing of 18 June 2025
25. The appellant complied with the above directions, providing a witness statement setting out his evidence of having visited the Iraqi Embassy to be documented and what transpired, as well as photographs he taken while doing it. Mr Eaton provided a helpful skeleton argument. The respondent did not comply with the directions. No further evidence was provided, nor any skeleton argument. I am no position to attribute blame to any individual for these continued defaults, nor is it necessary to do so; this is a corporate failing by the Home Office to meet the duty of assistance and cooperation imposed by rule 2.
26. At the hearing Mr Ojo, now representing the respondent, confirmed that no further evidence apart from the three articles was relied upon. He made no application for any further adjournment. The appellant gave evidence through a Kurdish Sorani interpreter and was cross-examined on the seriousness of his claimed attempt to be redocumented at the embassy, following which the representatives made submissions and my decision was reserved.
27. No one has sought to argue in this appeal that I should depart from the country guidance in SMO2 that, on return, possession of an identity document permitting the individual to live and travel within Iraq is necessary to avoid treatment or conditions contrary to Article 3. If a CSID can still be used for those purposes, or if the appellant can now obtain an INID in the UK, then the appeal must be dismissed. If not, then return would be contrary to Article 3 ECHR, the appellant is eligible for a grant of humanitarian protection, and the appeal will be allowed. It is also common ground that the appellant cannot now be protected by the Refugee Convention.
Can a CSID still be used to pass checkpoints in Iraq, or is an INID required?
28. The test for departure from country guidance, requiring strong grounds supported by cogent evidence, is contextual. The country guidance in SMO2 is that CSIDs remain valid, but the guidance also makes clear that they “are being replaced” with INIDs.
29. Without setting out all the relevant extracts from the current CPIN and SMO2 to which Mr Eaton referred in support, I agree that the context for the CSID’s replacement is that an INID is more secure and can be checked against an individual’s enrolled biometric data. The CPIN confirms that another identity document vulnerable to fraud, the “S” series passport produced until 2006, is likewise no longer accepted as valid proof of identity by the Iraqi authorities. I agree that it can be logically inferred from the country guidance in SMO2 that CSIDs would eventually cease to be accepted as valid identity documents. The question is whether the evidence justifies a finding that this day has finally come to pass.
30. Mr Ojo argued that while the Shafaq News article stated that CSIDs would no longer be accepted from March 2024, no updating evidence had been provided. This is a valid observation, but the article still carries modest weight in support of a planned date when CSIDs would cease to be valid. Insofar as I was asked to infer that the change did not come into effect, I decline to do so. The respondent is best placed to make the necessary enquiries (such as those that appear in the various annexes to the CPIN), and despite the appellant having relied upon the article since July last year the respondent has declined to provide any evidence at all in response.
31. I stand back and decide the facts, according to the relevant standard, with regard to the evidence as a whole. Considering SMO2, the CPIN, and applying the expertise of this Tribunal, and the submissions made, I find there to be a reasonable likelihood that a CSID can no longer be used to live and travel within Iraq. Indeed given that the relevant evidence considered in SMO2 is almost four years old, and that at least two years have passed since CSIDs stopped being issued at all, I find it highly probable.
Can the appellant obtain an INID prior to (or immediately upon) return?
32. The respondent makes no argument that an INID could be obtained upon return if a CSID is no longer valid for internal travel. This is in accordance with SMO2, in which it was found that an individual can only obtain an INID in their home area. The only argument made before me was that the appellant can obtain an INID from the Iraqi Embassy in London.
33. The respondent relies on the three articles from the Iraqi Embassy in London. The relevant content of each is as follows:
a. ‘The Embassy of the Republic of Iraq in the United Kingdom issues the first National Card outside Iraq’, 15 October 2024
In a first-of-its-kind stride outside Iraq, under the supervision of the Prime Minister, Mr. Mohammad Shia Al-Sudani, and in joint coordination between the Iraqi Ministries of Foreign Affairs and the Interior, and with the efforts of the staff of the Embassy of the Republic of Iraq and a number of delegates of the Ministry of Interior sent to London for this purpose, the Embassy of the Republic of Iraq in the United Kingdom issued the first National Card outside Iraq.
The Embassy of the Republic of Iraq to the United Kingdom in London is pleased to announce to the members of the Iraqi community residing in the United Kingdom, the opening of the National Card System in the consular section of the embassy (on a trial basis), and details of how to apply and book appointments will be announced later.
b. ‘Announcement: Issuance of the National Card’, 17 October 2024
The Embassy of the Republic of Iraq in the United Kingdom in London is pleased to announce to the Iraqi community residing in the UK that appointments are now available for applying for the National Card (in a trial phase), starting from Monday, October 21, 2024.
Required Documents:
• Completion of the National Card application form.
• Iraqi nationality certificate in the applicant’s name, or presentation of an Iraqi nationality certificate or National Card supporting document (father, mother, brother, sister, paternal grandfather, uncle).
• Civil status identity card.
• Iraqi passport.
• Proof of identity (if no document is provided in the applicant’s name).
• Proof of address.
• Additionally, please fill out the online form for the National Card by visiting the official website of the National Card Affairs Directorate at the following link: https://www.nid-moi.gov.iq/
• Or access the link here: https://www.nid-moi.gov.iq/?page=5
To schedule an appointment for the issuance of the National Card or for inquiries, please contact the number below during working days from 9:00 AM to 3:00 PM: [number omitted]
c. ‘Announcement / Portable National ID Issuance System’, 11 November 2024
The Embassy of the Republic of Iraq in the United Kingdom, London, is pleased to announce to the esteemed members of the Iraqi community residing in the UK, the procedures for using the portable system for issuing the National ID card, in accordance with the guidelines approved by the Iraqi Ministry of Interior. The details are as follows:
Portable System (VIP): This system may be used upon a personal request made by the citizen or their legal representative to the Ambassador, Consul, or their designated representative. The purpose of the portable system is to visit the applicant’s residence to input personal information, take a photo, and capture biometric data (iris scan and ten fingerprints). A family member or an authorized person must be designated to follow up on the remaining procedures and receive the National ID once printed. The fee for using this portable service is 250,000 Iraqi dinars, in addition to the National ID issuance fee of 6,000 Iraqi dinars.
Portable System (NPK): This service is for citizens who are hospitalized due to serious health conditions or to those who submit a personal request supported by medical reports indicating that the applicant suffers from an illness that prevents or makes it difficult for them to visit the Embassy or Consulate to register in the civil registry system for the issuance of the National ID. The usage of this portable service is free of charge, but the National ID issuance fee of 6,000 Iraqi dinars still applies. A family member or an authorized person must also be designated to follow up on the remaining procedures and receive the National ID once printed.
34. I agree with Mr Eaton that the respondent does ask for departure from SMO2 in a more formal sense. While SMO2 can be seen to anticipate the non-acceptance of CSIDs, it contains no hint that INIDs might eventually be issued outside Iraq. The same was true when the CPIN was issued in October 2023; see 3.7.9. Routine issuing of INIDs in a foreign embassy is an entirely new proposition that requires cogent evidence before it can defeat an otherwise well-founded protection claim.
35. The first two articles give no hint of the nature of the trial being conducted, nor its wider objective. Is the trial part of a stated plan to routinely issue INIDs in the UK, or a limited-period proof of concept to inform future strategy? Did the trial continue? Were the numbers limited? Did everyone qualify? Was it successful? How many INIDs have been issued?
36. None of those questions are answered by the respondent’s evidence, yet in my view are highly relevant. The absence of any such evidence is surprising. Again, not only is the respondent best placed to obtain such information but, by reference to the many Iraqi nationals in the UK for whom the lack of a valid identity document is the only barrier to return, and the agreed inclusion of the issue in the forthcoming country guidance case, it would be expected that she would have done so.
37. Those shortcomings in the evidence are not remedied by the third article. At its highest it confirms that INIDs could still be issued a month or so after the trial began. It does not answer any of the questions posed above.
38. The evidence provided by the respondent falls well short of that which would justify departure from the country guidance in SMO2 that an INID cannot be obtained outside Iraq. I find that the appellant cannot obtain an INID in the UK. In making that finding, I should make clear that I have placed no significance whatsoever on the appellant’s account of trying and failing to do so. There is no corroborating evidence of what he said at his appointment at the embassy, and the adverse credibility findings already made by the FtT mean that his evidence cannot be accepted at face value.
Conclusion on protection claim
39. The appellant’s CSID will no longer be accepted in Iraq as a valid identity document and he cannot obtain an INID. As recognised by the respondent in the CPIN at 3.6.7, returning the appellant to Iraq in those circumstances is contrary to Article 3 of the European Convention on Human Rights, and the requirements for a grant of humanitarian protection at paragraphs 339C and 339CA(iii) of the Immigration Rules are satisfied.
40. It is appropriate to make an anonymity order. The need to maintain the integrity of the United Kingdom’s system for granting protection justifies derogation from the principle of open justice.
Costs
Principles
41. I am concerned with costs said to arise from unreasonable conduct rather than wasted costs against a representative. The Upper Tribunal’s Procedure Rules relevantly provide as follows:
10.—Orders for Costs
(3) In other proceedings, the Upper Tribunal may not make an order in respect of costs or expenses except —
[…]
(d) if the Upper Tribunal considers that a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings
42. In Willow Court Management Company Limited v Alexander [2016] UKUT 290 (LC), concerning analogous rules in the Property Chamber of the FtT, a three-stage process was suggested:
28. At the first stage the question is whether a person has acted unreasonably. A decision that the conduct of a party has been unreasonable does not involve an exercise of discretion but rather the application of an objective standard of conduct to the facts of the case. If there is no reasonable explanation for the conduct complained of, the behaviour will properly be adjudged to be unreasonable, and the threshold for the making of an order will have been crossed. A discretionary power is then engaged and the decision maker moves to a second stage of the inquiry. At that second stage it is essential for the tribunal to consider whether, in the light of the unreasonable conduct it has found to have been demonstrated, it ought to make an order for costs or not; it is only if it decides that it should make an order that a third stage is reached when the question is what the terms of that order should be.
43. That test of “a reasonable explanation” at stage one is derived from Ridehalgh v Horsefield [1994] Ch 205, CA, in which the word “unreasonable” was described as follows:
“Unreasonable” also means what it has been understood to mean in this context for at least half a century. The expression aptly describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case, and it makes no difference that the conduct is the product of excessive zeal and not improper motive. But conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting on a practitioner’s judgment, but it is not unreasonable.
44. I also note the Court of Appeal’s judgment in Distinctive Care Ltd v Revenue and Customs [2019] EWCA Civ 1010 at [19], holding that “bringing, defending or conducting the proceedings” is “an inclusive phrase designed to capture cases in which an appellant has unreasonably brought an appeal which he should know could not succeed, a respondent has unreasonably resisted an obviously meritorious appeal, or either party has acted unreasonably in the course of the proceedings, for example by persistently failing to comply with the rules or directions to the prejudice of the other side.”
45. Finally, in Cancino (costs – First-tier Tribunal – new powers) [2015] UKFTT 59 it was anticipated that “orders for costs … will be very much the exception, rather than the rule, and will be reserved to the clearest of cases”. This authority was (implicitly at least) approved in Awuah (Wasted Costs Orders - HOPOs – Tribunal Powers) [2017] UKFTT 555 (IAC).
Consideration
46. I need not set out the appellant’s application in detail. He seeks the costs thrown away by the adjournment of the hearing on 24 February 2025 and refers to the chronology I have already set out at [22] above as establishing unreasonable conduct of the proceedings.
47. In my judgment, the following matters are of relevance:
a. In her adjournment application, made 3 days before the hearing, the respondent referred to an issue in the forthcoming country guidance case being “the extent to which, since 1 March 2024, CSIDs continue to be accepted as valid documentation in Iraq”. That was stated to be “the only live issue” to be decided in this appeal.
b. The respondent’s skeleton argument was served on the appellant’s solicitors at 3:21pm on Friday 21 February (the working day before the hearing) so did not reach Mr Eaton by the time of the hearing. This was in breach of the directions.
c. Contrary to what had been stated in the adjournment application made just two days before, the skeleton argument introduced an entirely new issue: whether the appellant could obtain an INID while in the UK. The skeleton argument further sought to adduce evidence in support of the respondent’s case by hyperlinking to three online articles. The parties had been required to provide any such evidence 7 days before the hearing.
d. The late introduction of a new issue and new evidence so late before the hearing was always likely to cause an adjournment. The appellant could not be expected to fairly respond to that evidence in the time available.
e. At the hearing, on behalf of the respondent, Ms Nolan acknowledged that fairness required the appellant to have an opportunity to respond to the new issue and the new evidence. I observed that it was open to the respondent to withdraw her reliance on the new issue so that no adjournment would be necessary, but that otherwise the respondent risked (subject to an application and the parties’ submissions) liability for the appellant’s resulting costs. In the face of that warning, the respondent still chose to maintain her reliance on the new issue.
48. In her representations, the respondent observes that no schedule of costs accompanied the application, as required by rule 10(5). At the hearing on 18 June 2025 I gave an oral direction under rule 7(2) granting relief from sanction in relation to that default, permitting an extension of time to file the schedule; in the circumstances, it would be disproportionate to disallow substantive consideration of the application due to an inadvertent failure to include the schedule.
49. The chronology I have set out plainly calls for a reasonable explanation, so in accordance with the authorities I turn to that issue. The respondent’s representations can be summarised as follows:
a. The respondent made her adjournment application at just gone 4pm on 19 February and sent “a chaser email” to the Tribunal at 9:47am on 21 February. Notification that the application had been refused was notified to the respondent at 15:21 on 21 February, so “it was considered appropriate to provide a skeleton argument as per the directions of 8 January 2025”. The respondent “made the best efforts to assist the Tribunal and further the overriding objective by providing a skeleton argument information all parties” of her position.
b. The appellant did not comply with the requirement to provide a skeleton argument, so the respondent cannot be criticised for failing to do so. Moreover, the respondent did not know the case that she had to meet.
c. No adjournment was necessary for the appellant to fairly address the new issue; instead, the Tribunal could have permitted further written submissions.
d. The hearing was not “wasted” as it “was effectively turned into a case management hearing”.
50. I reject each of those arguments. Taking each in turn:
a. It is trite that an outstanding adjournment application does not excuse a party from complying with directions. The importance of compliance with directions has been reiterated in numerous authorities: see, for example, those rehearsed in relation to a different issue in Maleci (Non-admission of late evidence) [2024] UKUT 28 (IAC) at [38]-[40]. Here, the respondent claims credit for still providing a late skeleton argument once the adjournment application was refused, as if this was an indulgence rather than an obligation.
b. It is correct that the appellant also failed to comply, but his default was of lesser gravity. The directions had stated that:
“The only matter to be considered when the decision is re-made is whether possession of that CSID will be sufficient to avoid the risk arising from lack of documentation set out in SMO2.”
The appellant intended to rely on the same evidence and argument as had been deployed in the FtT and set out in detail in the error of law decision. While this should have been confirmed in a brief skeleton argument or note, the respondent knew exactly the case she had to meet. It was the last-minute reliance on a wholly new issue, and the attempted circumventing of the requirement to provide new evidence 7 days in advance, that required the hearing to be adjourned.
c. I reject that the appellant could have fairly responded to the new issue in written submissions, which in any event would have still put the appellant to cost. Moreover, this is a suggestion that ought to have been made at the hearing on 24 February; the respondent instead accepted that an adjournment was necessary.
d. Case management was only necessary because of the new issue. Regardless of the directions made, such reliance on a new issue should have been promptly notified to the Tribunal and to the appellant even before the error of law decision: see, for example, Devani v SSHD [2020] EWCA Civ 612 at [34]. Doing so would likely have avoided any need for an adjournment.
51. Considering all the above, the respondent’s conduct of the proceedings was unreasonable. No explanation has been provided for the failure to promptly give notice of the new issue. Nor has any explanation been provided for the respondent’s failure to comply with the Tribunal’s directions, nor, worryingly, does the respondent even seem to appreciate that she was under any such obligation. It was also open to the respondent, having brought the issue of UK-issued INIDs to the table so late, to remove it. She declined to do so even in the face of the inevitability that this would result in an adjournment, that this would put the appellant to financial expense that could have been avoided, and a clear warning as to potential liability for costs. The unreasonableness of the conduct is aggravated by the wider context of a pressing need in this jurisdiction for procedural rigour, clear identification of issues, and compliance with the duty of cooperation: see Lata (FtT: principal controversial issues) India [2023] UKUT 163 (IAC); TC (PS compliance - "issues based" reasoning) Zimbabwe [2023] UKUT 164 (IAC); Maleci.
52. Having found unreasonable conduct, I consider it appropriate to exercise my discretion to order costs. Cancino provides no basis on which rule 10 should be glossed with a discrete requirement for exceptionality, and the reference to costs orders being the exception was predictive rather than prescriptive. There is no reason why the appellant should be liable for the costs of responding to the respondent’s unreasonable conduct, and failure to mark that conduct in this appeal with a costs order would undermine the wider interests of justice, as described in the authorities I have cited.
53. As to the terms of the order, I consider it appropriate to summarily assess the costs claimed by the applicant, on the standard basis. While not directly applicable in this Tribunal, CPR 44.4 nonetheless provides a useful list of factors relevant to that exercise. All work done on behalf of the appellant was by a Grade C fee earner at a rate that accords with the guideline hourly rates, and is reasonable. Counsel’s hourly rate is also reasonable. Insufficient detail has been provided in relation to each such that I can be confident that the time spent represents only those costs thrown away by the adjournment; given how little changed, some of the time spent in preparation was unlikely to require repeating for the subsequent effective hearing. Taking a broad-brush approach, it was reasonable for the appellant’s solicitors to incur 6 hours’ work and for counsel to incur 8 hours’ work. This leads to a grand total of £4,424, which I consider to be proportionate to the complexity and importance of the matters in issue.
Notice of Decision

(i) The decision of the First-tier Tribunal involved the making of an error of law and is set aside.

(ii) The Upper Tribunal re-makes the decision by allowing the HMA’s appeal on human rights and humanitarian protection grounds.

(iii) By 26 September 2025 the respondent do pay the appellant’s costs thrown away by the adjournment of the hearing on 24 February 2025, summarily assessed in the sum of £4,424.

J Neville
Judge of the Upper Tribunal
Immigration and Asylum Chamber

28 August 2025