Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003728
First-tier Tribunal No: PA/00228/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 18th of March 2025

Before

UPPER TRIBUNAL JUDGE LANE

Between

TWANA HUSSEIN
(NO ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department Respondent

Representation:

For the Appellant: Mr Karnik
For the Respondent: Mr McVeety, Senior Presenting Officer

Heard at Birmingham Civil Justice Centre on 22 November 2024

DECISION AND REASONS
1. The First-tier Tribunal’s decision summarises the background of the appellant’s appeal at [1-3]:
The Appellant is an Iraqi national born on 1st January 1987 and of Kurdish ethnicity. He left Iraq in May or June 2018 and travelled to Turkey then on to Bulgaria. After two months, he was deported back to Iraq. The Appellant left Iraq again in May 2019 and travelled to Turkey using his own passport. He stayed in Turkey for about three and a half months then travelled to Italy by boat, staying there for three nights and then went to France by train. He stayed in France for three months before travelling to the UK by lorry, arriving clandestinely on 25 December 2019 and claimed asylum the same day His claim was refused by the Home Office on 21 April 2021. He lodged an appeal against the refusal decision, which was subsequently dismissed by a First-Tier Immigration Tribunal promulgated 01 March 2022. The Appellant became appeal rights exhausted on 16 March 2022. He lodged further submissions on the 13 October 2022 which were refused by a decision dated 1 February 2023. The Appellant appeals against this decision and it is on this basis the appeal comes before me.
The First-tier Tribunal dismissed the appellant’s appeal. He now appeals to the Upper Tribunal.
2. Ground 1 relatively short and I set it out below in full:
Reference Par. 18 & 19 of the Determination and Par. 36. The Appellant first claimed asylum in December 2019. His asylum claim was refused and the appeal was dismissed. He made further submissions in October 2022. The IJ said the further submission fell under NABA 2022 for consideration (Par. 18).(a) It is contended that the Further Submission was not a new claim that is independent of the initial claim and should not be considered under NABA 2022 as a new claim but rather as a fresh claim arising from the initial claim. If it was new claim, the whole asylum process would have been applied which would include screening and substantive interview. (b) According to Paragraph 353, the submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. It is therefore contended that the criteria of NABA 2022 should not have been applied. (c) Par. 36 of the Determination applied the Devaseelan principles [Devaseelan (Second Appeal, ECHR, Extra-Territorial Effect) [2002] UKIAT 702 .] If the Appellant's Further Submission is treated as a New Claim to which NABA 2022 applies, there will be no decision to which the Devaseelan principles apply. It is therefore contended that this amounts to a material error of law.
3. Ground 1 is without merit. It consists for the most part of a series of assertions wholly unsupported by authority or cogent legal reasoning. The appellant appears to argue two opposing positions in the same paragraph of Ground 1; that his fresh submissions were not subject to the Nationality and Borders Act 2022 because the submissions are not ‘independent of the initial claim’ and should not be affected by law enacted after that first claim was made and, at the same time, that Devaseelan should not apply in the instant appeal because ‘Appellant's Further Submissions are treated as a New Claim to which NABA 2022 applies, there will be no decision to which the Devaseelan principles apply.’
4. First, it is unclear why the 2022 Act should not apply. Section 30(5) of that act provides that ‘Subsections (1) and (2), and sections 31 to 36, apply only in relation to a determination relating to a claim for asylum where the claim was made on or after the day on which this section comes into force.’ The appellant had become appeals rights exhausted in respect of his first claim for international protection so it is clear that the fresh submissions were made after the Act came into force. Secondly, it is not all clear from the grounds what material difference the application of the provisions of the 2022 Act (in particular, section 31-35) to the appellant’s claim would have made. Thirdly, there is no suggestion that counsel who appeared for the appellant at the First-tier Tribunal hearing advanced the argument regarding the 2022 Act now advanced in the grounds of appeal; understandably, perhaps, he was quite content for the judge to apply the provisions of the Act. Fourthly, the appellant’s assertion that ‘the Appellant's Further Submission is treated as a New Claim to which NABA 2022 applies, there will be no decision to which the Devaseelan principles apply’ is precisely that – an assertion. There is no obvious reason why a judicial determination of an asylum claim involving the same appellant should not engage the principles of Devaseelan and the appellant has made no attempt to supply any reason.
5. The remaining grounds of appeal may be dealt with briefly. Even assuming the Ground 2 concerning has any merit, the judge comprehensively rejected the appellant’s credibility as a witness; the judge simply did not accept that the appellant had been a victim of honour-based violence. Ground 3 contends that ‘the Appellant was unfairly expected to know and to explain the procedure of his return to Iraq by the Turkish Authorities. The ability of the Turkish Authority to deport the appellant to Iraq cannot be made the responsibility of the Appellant to know and to explain.’ The judge did not require to explain the deportation procedures of the Turkish authorities; he simply did not accept that the appellant’s account of his deportation was credible. Ground 4 is nothing more than a disagreement with the findings of the judge available to him on the evidence. The assertion in Ground 5 that the judge’s finding that the appellant is based on ‘assumptions’ is without merit. The judge’s conclusion at [59] (‘I find that the Appellant has a family support network remaining in Iraq and I do not accept his claims he has lost contact with them. I find the Appellant has not been truthful in his account and I do not accept his claims that he cannot obtain access to his CSID or his national identity card. I find in fact the Appellant does have documentation required to enter and live in Iraq. In light of these reasons I must dismiss the appeal’) is an entirely rational consequence of the judge’s findings at [43-44] that the appellant had not been deported from Turkey but had plainly travelled to and from that country using a valid CSID to which he still has access. Given that the judge did not find the appellant to be a witness of truth, it was open to him not to accept that the he would not have access to family support or valid travel and identity documents on return to Iraq.
6. In the circumstances, the appeal is dismissed.
Notice of Decision
This appeal is dismissed.

C. N. Lane

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 22 February 2025