Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003780

First-tier Tribunal No: PA/57595/2023
LP/00914/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 13 March 2025

Before

UPPER TRIBUNAL JUDGE LODATO
DEPUTY UPPER TRIBUNAL JUDGE SILLS

Between

HRQ
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Lee, counsel instructed by Braitch Solicitors
For the Respondent: Mr Thompson, Senior Presenting Officer

Heard at Phoenix House (Bradford) on 28 February 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

Introduction

1. We have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal because the underlying claim involves international protection issues in that the appellant claims to fear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, we are mindful of the fundamental principle of open justice, but we are 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. This remaking decision should be read in conjunction with the error of law decision, dated 27 January 2025, in which I set aside the dismissal of the underlying appeal upon finding a material error of law in the First-tier Tribunal.

Background

3. The appellant appeals against the refusal, dated 29 September 2023, of his international protection and human rights claim. In summary, his broad factual case is that he was directly targeted by the PMF he was suspected of collaborating with ISIS. He further claims that he aroused suspicion because his father was a member of the Ba’ath Party. The procedural and immigration history to the appeal is not in dispute between the parties.

Legal Framework

4. To succeed in an appeal on asylum grounds, an appellant must show a well-founded fear of persecution for a Convention reason (race, religion, nationality, membership of a particular social group, political opinion). The burden of proof is upon the appellant. As per the decision in Karanakaran v SSHD [2000] 3 All ER 449 the single standard of proof is a reasonable degree of likelihood. We must determine whether it is reasonably likely that:

(a) Taking the claim at its highest, there is a Convention reason;

(b) Considering the credibility of the account, the appellant fears persecution for that Convention reason;

(c) The appellant would be persecuted for that Convention reason;

(d) There would not be sufficient protection available; and

(e) The appellant could not internally relocate.

5. To succeed on an appeal on humanitarian protection grounds, the appellant must not be a refugee; they must show substantial grounds for believing that they would face a real risk of suffering serious harm in their country of origin. The burden of proof rests on the appellant.

Hearing and Issues in Dispute

Preliminary Issues

6. At the outset of the hearing, Mr Lee invited us to admit additional evidence provided outside of the time limits specified in the directions I gave in the error of law decision. The new evidence consisted of a further witness statement from the appellant dated 24 February 2025, supporting photographic evidence which purported to show historic family connections with a senior figure in the Ba’ath Party and material going to asserted sur place political activity in the UK. Mr Thompson did not object to this new evidence being admitted if he was given an opportunity to consider it before the hearing began in earnest. We were satisfied that the respondent would suffer no prejudice from the late admission of this evidence. We admitted the evidence in the interests of fairness and justice and stood the matter down to give Mr Thompson an opportunity to digest the documents.

7. We further raised with the parties that the material going to sur place activity in the UK appeared to constitute a ‘new matter’ because it manifestly amounted to an entirely fresh and discrete basis of claim on which the appeal could potentially succeed. This political activity in the UK had not been the subject of any previous consideration by the respondent in the reasons for refusal letter or any subsequent review. The parties were agreed that the sur place dimension of the appellant’s case was a ‘new matter’ and could only feature in the proceedings if the respondent consented. Initially, and after taking instructions, Mr Thompson declined to consent and suggested that it could form the basis of a fresh claim if the appellant wished to pursue it if this appeal were dismissed. Mr Lee relied on Home Office guidance which suggested that Mr Thompson had adopted an approach which was contrary to settled policy. The matter was again stood down to allow Mr Thompson an opportunity to reflect and take further instructions. Upon the matter being called back on, Mr Thompson reversed his previous position, gave consent for the ‘new matter’ to feature in the proceedings and invited us to proceed.

Issues in Dispute

8. Mr Lee did not pursue any appeal on humanitarian protection grounds on the basis of a lack of documentation because the appellant’s evidence had always been that his original CSID card remained in the possession of his mother in Iraq and he continued to be in contact with her and therefore had constructive access to this essential document.

9. For his part, Mr Thompson maintained the position adopted in the reasons for refusal letter and respondent’s review that the only real issue to be decided is whether the appellant has provided a credible account, to a reasonable degree of likelihood, about the events which preceded his departure from Iraq. If this overall narrative is found to be reasonably likely to be true, the appeal must succeed on Refugee Convention grounds. It was not suggested that he would not be at risk of persecution even if found to be credible. Neither was it suggested that he could turn to the Iraqi authorities for protection or reasonably relocate to obviate any risk he might face. It follows that following issues fall to be decided in this appeal:

I. Is the appellant’s narrative account of the events preceding his departure from Iraq reasonably likely to be true?

II. If the first issue is resolved against the appellant, would he be at risk of persecution or serious harm on return to Iraq on account of sur place activity in the UK?

III. If the appellant’s protection claim is dismissed, would he encounter very significant obstacles to integration such that his appeal should succeed on Article 8 human rights grounds in the alternative?

The evidence and submissions

10. We heard oral evidence from the appellant, assisted by a Kurdish (Sorani) interpreter. The parties made oral submissions at the conclusion of the hearing. We refer to any relevant evidence or submissions in the findings of fact and reasons section below.

Findings of fact and reasons

11. As alluded to above, the decisive question to be resolved in this appeal is whether the appellant has provided a credible account of the events which he claimed had unfolded before he left Iraq in 2020. Mr Thompson recognised that if this narrative was found to be reasonably likely to be true, then the appeal must be allowed on Refugee Convention grounds given the background of claimed persecution founded on the convention reason of imputed political opinion. The respondent’s challenges to the appellant’s credibility were focussed on a lack of detail and implausibility.

12. In the reasons for refusal letter, the credibility assessment begins with an analysis of the appellant’s various accounts including the answers he gave in his substantive interview. It was pointed out that he was unable to satisfactorily explain why his Kurdish father would be minded to work with the Ba’ath Party, a regime engaged in the systematic persecution of Kurdish people. It was further doubted why he had not pressed his mother, or other relatives, to explain this affiliation. We found these observations to be lacking in substance. In response to questions 21-31 of the substantive interview, the appellant attempted to answer this line of questioning. At question 22, he simply answered that he did not know why his father had chosen to align himself with the Ba’ath party. He went on to refer to information provided by his mother about difficulties the family had faced in the Kurdish region of Iraq as a potential explanation for his father’s decision to work with the Ba’athists. The appellant pointed to his young age at the time when these events happened and how he simply could not independently recall these events which had taken place so long ago. He further said that his family had not been forthcoming in explaining these associations and he had not pressed the point with them. We saw nothing concerning in these explanations. This was not a lack of detail about matters for which the appellant had direct knowledge. His case has always been that he was entirely reliant on the snippets of information he had been given by older family members. The gaps in the information provided by these family members does not operate to undermine the appellant’s credibility nor does it cause us to doubt his honesty that he did not press the point with them.

13. We were equally unimpressed by the suggestion that the appellant’s narrative account was tainted by manifest implausibility in that he was targeted for his perceived family connection to the Ba’ath Party when his uncles, who directly worked with the former regime, were not. The appellant and his representative referred to points of distinction between him and his uncles which reasonably accounted for any difference in treatment. The appellant expressed the belief that the simple reason why his uncles were not targeted was because they had aligned themselves to the current regime and had shown a willingness to assist the authorities and the militias by engaging in duplicitous and immoral activities that the appellant was not prepared to countenance. Mr Lee made the point in his submissions that the appellant may have drawn adverse attention because he was a young man of fighting age. Under questioning, the appellant talked of the stated reasons for his being targeted were, in any event, merely “pretexts” to abuse power and that there might have been any number of reasons why he was targeted. We found this to be instructive. The inherent weakness in the respondent’s challenges about why the PMF may have acted in the way claimed is that it rests on the assumption that this collection of militia groups operates in a coherent manner such that they would target people consistently. There is nothing to support such a coherent modus operandi. It is an exercise in speculation to attempt to rationalise why the appellant might have been targeted when his uncles were not. A similar point is to be made in relation to the submission that the PMF would be hardly likely to wait approximately three years, between 2017 and 2020, before escalating their persecutory interest in the appellant after he and his mother returned to Mosul from the IKR. This is to attribute a unified, coherent and consistent motivation to a militia group which the background material suggests is made up of disparate factions. We remind ourselves of the well-understood dangers of assessing plausibility by attempting to look into the mind, or collective mind, of actors of persecution. Assessed fairly, we were unpersuaded that the appellant’s narrative account was undermined by a lack of plausibility.

14. The central challenges levelled against the appellant’s credibility fell away upon analysis.

15. In focussing on the level of detail and plausibility, there is a danger of losing sight of important factors which weigh in favour of the appellant’s credibility. We were struck by how the appellant had maintained a broad level of consistency over the course of his screening interview, asylum questionnaire, substantive interview, three witness statements and oral evidence tested by cross-examination. The sequence of events which he had claimed unfolded before he left Iraq was not straightforward. He described his father’s historic association with the Ba’ath Party, the wider family connection to the former regime and his movements from Mosul to the IKR in 2014, before returning in 2017. The period between 2017 and 2020 was also recounted which involved a course of escalating persecutory conduct. This was not an account which lent itself to easy retelling over time. The respondent was unable to point to a single inconsistency. The coherence and consistency of the central narrative tended to support the proposition that he was recalling these events from lived experiences.

16. A further dimension of the appellant’s case which supported the truthfulness of his account was the extent to which he relied on supporting documents. He provided a copy of his own CSID card which meant that he was unable to advance a case that he would face Article 3 condition on return to Iraq solely due to a lack of documentation. This was difficult to reconcile with the notion that he had cynically fabricated a claim built on past persecution. Mr Thompson was correct to point out during his closing submissions that merely being forthcoming about one aspect of a claim does not necessarily mean that he is telling the truth about other aspects. However, assessing his case to a reasonable degree of likelihood, this is a factor which tends to support his broad credibility when assessed in the round.

17. The appellant also relied on a translated copy of an identification card which included a photograph of a man, in military uniform, he claimed was his father. The respondent rejected the reliability of this document in the reasons for refusal letter because its authenticity was not verified and the means by which it came to be in the appellant’s possession was less than clear. However, the card was dated 2001, a point in time the Ba’ath Party were in power, and the man depicted is wearing a military uniform. The appellant also provided a picture of a man stood with a young boy in a family photograph. This image is not the best quality, but each person bears a resemblance to the appellant’s image as a younger man in his CSID card and the man in military uniform in the identification card. In advance of the remaking hearing, the appellant provided additional evidence he claimed to show a connection between his grandfather and a senior Ba’ath Party official who was assigned the King of Clubs ‘most wanted’ designation by the US authorities during the Iraqi conflict. While there was no evidence beyond the appellant’s account to support that this man was in fact the appellant’s grandfather, we were struck by the efforts taken by the appellant to support the background which he claimed to underpin his case. We were also struck by the lack of any challenge to the reliability of any of these documents during the cross-examination of the appellant. Seen in the round, and mindful that it is for the appellant to establish the reliability of documents he advances in support of his case, we are minded to attach some weight to this supporting evidence and the attempt to gather material which might support the bare narrative.

18. Overall, when we stand back and look to the overall evidential picture, there is little to meaningfully undermine the appellant’s evidence and much to indicate that it is truthful. Assessing the evidence in the round, we find that the appellant has discharged his burden to establish that his narrative evidence is credible to a reasonable degree of likelihood. In accordance with the articulated and agreed principal controversial issues, the result is that the appeal must be allowed on Refugee Convention grounds. The sur place dimension of the case necessarily falls away as academic. The Article 8 human rights claim falls to be allowed because it stands or falls with the protection claim and there are very significant obstacles to integration in circumstances where the appellant is to be treated as a refugee.

Notice of Decision

We allow the appeal on Refugee Convention grounds. We allow the appeal on Article 8 human rights grounds.

As we have allowed the appeal, we have considered whether or not to make a fee award. We have decided to make a fee award of any fee which has been paid or is payable because the appeal has been allowed to a large degree on the strength of the evidence which before the respondent when the claim was initially refused.

Paul Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

6 March 2025