Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003782

First-tier Tribunal No: PA/50208/2023

LP/01760/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
19th June 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE BURNETT

Between

S.M.
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department (SSHD)
Respondent

Representation:
For the Appellant: Mr G Lee, Counsel
For the Respondent: Mr Terell, Senior Presenting Officer.

Heard at Field House on 17 March 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and any member of his family 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 any member of his family. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. This is the appellant’s appeal against a decision of the First-tier Tribunal Judge L Shand KC (“the judge”) dated 6 January 2024.
Background
2. The appellant is a national of Iran. He made a protection claim which was rejected by the respondent in a letter dated 23 December 2022.
First-tier Tribunal’s decision
3. The judge identified that the respondent accepted that the appellant is of Kurdish ethnicity, that he worked as a kolbar and had left Iran illegally [3]. The judge did not accept that the appellant’s activities as a kolbar had come to the attention of the authorities [32] to [37].
4. The judge found that the appellant’s activities in the United Kingdom were not genuine [38] to [49]. The judge considered the risk to the appellant in light of the findings made [52] to [57]. The judge rejected the argument that the appellant’s Facebook posts had already come to the attention of the authorities and concluded that the appellant could delete his account. The judge considered the appellant’s role within the demonstrations in the UK but concluded that no risk would arise to the appellant.
5. At [70] the judge stated that there was not strong evidence supported by cogent evidence adduced to cause the judge to depart from the country Guidance cases referred to. This comes within a section where the judge considered the risk to the appellant as a Kurdish failed asylum seeker who worked as a kolbar, at [58] onwards.
6. The judge considered that the appellant would not face prison conditions in Iran such that there would be a breach of article 3 [71] to [72]. The judge found that it would not satisfy the definition of persecution rather than prosecution. In respect of Military service, the judge found that the appellant had not shown he would be required to carry out acts contrary to the basic rules of human conduct [79]. The judge also found that the appellant could return to Iran and complete his military service [83]. The judge concluded that any penalty imposed on the appellant on account of his failure to report for military service, would not breach his article 3 rights [87}.
7. The judge also dismissed the appellant’s appeal on the basis of his article 8 rights.
Grounds of appeal.
8. The grounds of appeal are broken down into four areas. These are in respect of (1) the Facebook activity of the appellant, (2) coming to the attention of the Iranian authorities, (3) Military service and (4) prison conditions. I have summarised the arguments and points raised in the grounds below.
9. In respect of the “Facebook ground” this is further broken down into a number of discrete points. Firstly it is stated that the judge made no mention of the expert’s evidence that he had viewed the appellant’s activity and concluded that the appellant would be at risk. Secondly that an argument was advanced that there was cogent evidence to depart from the case of (XX (PJAK- sur place activities- Facebook) Iran CG [2022] UKUT 00023 (IAC)- referred to as XX). Thirdly that the finding that the appellant’s political activity was not genuine was made without taking into account material evidence and failing to attribute weight or applying anxious scrutiny to the appellant’s claims.
10. The “attention of the authorities” ground was broken down into a number of further points. It is stated that the judge failed to take into account the appellant’s age and the expert report. Also that the judge made a finding as to the enquiries the appellant’s boss Rebaz would make without taking into account material matters and the judge made a speculative finding.
11. The military service ground is further broken down into parts. The first part regarding draft evasion and the second part in respect of the appellant needing to perform acts contrary to basic human conduct.
12. The “draft evasion” ground was broken down into a number of further points. It is stated that the judge failed to take into account that all males are called up automatically at age 18 and in respect of the alternative finding that the appellant would not be sentenced to imprisonment. The grounds state that the judge was wrong to take into account that there was no country guidance upon this stating
“it is inconceivable that if there was a risk on that basis it would not have been identified by Tribunal or the country guidance experts in these cases”
13. In respect of the requirement of the appellant to undertake acts contrary to basic human conduct, it was asserted that the judge had failed to take proper account of the expert evidence in reaching the conclusion that the appellant would not end up in a role which would require him to perform acts contrary to basic human conduct.
14. In respect of prison conditions it is stated that the judge did not have regard to the expert evidence in forming the conclusions about prison conditions in Iran.
Permission to appeal
15. Permission to appeal was granted by Upper Tribunal Judge Kebede. It was stated:
“Whilst the decision of Judge Shand is a detailed and comprehensive one which appears to have taken account of all the evidence, there is some arguable merit in the assertions in the grounds that the judge did not fully address the extent of the risk factors raised by the expert, in particular in relation to the level of monitoring and surveillance conducted by the Iranian regime. It may, upon further argument, be concluded that the very lengthy and detailed grounds are essentially no more than an attempt to re-argue the appellant’s case, and that the judge properly followed the existing country guidance, but it seems to me that this is a case where permission should nevertheless be granted for the grounds to be clearly articulated and considered. I do not exclude any of the grounds and all grounds may therefore be argued.”
The Hearing and Submissions
16. The hearing was held as an in person hearing at Field house. Mr Lee appeared for the appellant and Mr Terell appeared for the respondent.
17. I heard submissions from the parties which are contained within the record of proceedings. The following is only a brief summary of those submissions and sets out the salient points which were put forward.
18. Mr Lee referred to the appeal skeleton argument (ASA) that was before the judge and submitted that the Presidential Guidance regarding vulnerable witnesses was set out in the ASA. He stated that the judge did not set this Guidance out in the decision. He submitted that age was not taken into account and this was a material factor. He submitted that this was an overreaching factor and this infected each aspect of the decision. He also submitted that the judge had not referred to the expert report regarding surveillance and the use of informers (Jash). The findings had been made without taking these matters into account and these might make a difference and rendered the decision unsafe.
19. Mr Terell invited the Tribunal to read paragraphs 35 and 36 together. He submitted that it was unlikely that one of his fellows kolbars had reported him, he had an enemy in the village or someone had targeted him. The judge had made an assessment of the appellant’s own narrative. Mr Terell stated that the appellant described a group of kolbars from the same village. The appellant’s home had been raided but the reaction of the other group members was not of concern for themselves. He submitted that it was surprising that they would not be concerned for their own family. This was a rationale point. In respect of the expert stating that the Iranian authority used sophisticated means and relied upon spies, he responded by stating that it would be surprising that the other Kolbars expressed no concern. He submitted that this was a sensible and careful point made by the judge. Mr Terell also stated that this was one point of a number of points that was raised. He stated that the judge had not ignored the expert report.
20. In respect of the age of the appellant, Mr Terell submitted that the judge had stated the appellant’s age. It was inconceivable that the judge had forgotten that the appellant was 16 or 17 years old when the incidents happened. Mr Terell referred to Volpi and Volpi and that a Tribunal should be slow to infer that the judge had not had regard to everything when making the decision. In respect of the Presidential Guidance, he stated that the grounds of appeal do not state that the judge had failed to apply the Presidential Guidance regarding vulnerable appellants. Although the Guidance was raised in the ASA, the grounds do not specifically state that the judge erred in not applying it. He stated he had not prepared the appeal on this basis. He stated that there had been no formal application to amend the grounds and the Tribunal should not consider it. He accepted that there was no reference to age at [32] to [37] but submitted that there was no compelling reasons to think that the judge had forgotten this. He stated that one additional sentence referencing the age was not unreasonable in the context that the appellant was 17.
Analysis and Conclusions
21. The decision of the judge is a careful and long decision. The grounds of appeal are extremely lengthy and detailed.
22. The judge set out at the start that the appellant had made his claim when only 17 years and 8 months old. In the ASA at [9] it drew attention to the appellant being a vulnerable person and that the claim was made by a child. This is not referred to at all by the judge or whether the judge accepted that the appellant is a vulnerable individual. The ASA also reminded the judge that it was important that the Tribunal stated what the effect of the vulnerability had in assessing the evidence before it.
23. I have considered AM Afghanistan v Secretary of State for the Home Department and the Lord Chancellor [2017] EWCA Civ 1123. (AM Afghanistan). The judgment provides Guidance to the Tribunal about the treatment of vulnerable individuals. The failure to follow and apply the Presidential Guidance for vulnerable appellants is a potential material error of law. Although Mr Terell states that this is not how the grounds have been pleaded, I am satisfied that the material fact of the appellant’s age raises the implications which follow from that and that the appellant is a potential vulnerable appellant.
24. I have not considered this aspect in isolation but together with the ground regarding the evidence of the expert who also gave oral evidence before judge. The judge did not reject the expert evidence regarding the surveillance by the Iranian authorities and did not reject the evidence that there are informers within the village (jash). There is simply no reference to this aspect of the expert report in the decision of the judge. This part of the expert report was referred to in the ASA at paragraph 12. The judge provided no reasons to address the suggestion put forward by the appellant, as to why the appellant had come to the attention of the Iranian authorities. The points made by the judge to reject the appellant’s evidence; that the appellant had no enemies in the village, there was no concern expressed by others, and that the other kolbars would not report him, does not address the use of surveillance and informers, as explained in the expert report. This evidence was capable of supporting the appellant’s account.
25. It is clear the judge did have regard to the expert report and it is referred to in a number of places in the decision eg [44], [45], [65], [67], and [70]. However much of this part of the decision rests upon the finding already made by the judge, that the appellant has not come to the attention of the authorities.
26. It is an error of law to reject an asylum claim on adverse credibility grounds before considering the background country evidence (contrary to the well established principle that credibility should be made on the basis of a holistic assessment): it is an error of approach to come to a negative assessment of credibility and then ask whether that assessment is displaced by other material, Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367, [2005] INLR 377 at [24] to [25].
27. I also have in mind the Court of Appeal’s dicta in Volpi v Volpi [2022] EWCA Civ 464 that it is not the role of an appellate court to come to its own conclusions on the evidence before the Judge. It is essential that there is appropriate judicial restraint before interfering with the decision of the expert first instance judge.
28. However, I conclude that the judge did not properly apply or engage with the expert report and engage with the Presidential Guidance for vulnerable individuals before coming to the conclusion that the appellant had not come to the attention of the Iranian authorities. This is material and I conclude infects the entire decision in the appeal.
29. The appellant has now provided further expert evidence regarding his vulnerabilities. This was not produced before the judge and no application was made to adduce this before the Upper Tribunal. I have not taken this material into account when making my assessment.
Other grounds
30. I should just note, as full submissions were made regarding ground 1, my conclusions. Mr Terell submitted that the appellant had not properly identified the evidence to support an argument that the country guidance case of XX should be departed from (see SSHD v PG [2025] EWCA Civ 133 [54][58]). Mr Terell identified the evidence now set out to support the argument advanced by the appellant. He identified that all the evidence had been previously considered apart from the material identified in paragraph 25(iv) of the grounds.
31. Mr Gee made no reply to this detailed analysis and stated that the expert had given oral evidence and there were no findings made.
32. I am not persuaded that the judge failed in this regard as it was not properly advanced to the judge. However this will be a matter for the appellant as to the arguments advanced at the remitted hearing.
33. In respect of the other grounds of appeal, these relate to the judge’s risk analysis and was based upon the findings made and the credibility assessment. Having found an error of law with respect of ground 2, the judge’s assessments of risk cannot stand.
Conclusions
34. I have concluded that the decision of the First-tier Tribunal involved the making of a material error of law. I have considered whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statement and AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), and in taking into account the representatives submissions. The hearing will need to be heard afresh. In all the circumstances, the proper course is to remit rather than to remake the decision on the appeal in this Tribunal.
Notice of Decision
35. The appeal to the Upper Tribunal is allowed.
36. The decision of the First-tier Tribunal involved the making of a material error of law and is set aside with no findings of fact preserved.
37. The appeal is remitted to the First-tier Tribunal to be considered afresh with no findings preserved by a judge other than FtTJ Shand KC.
Anonymity
38. The Anonymity Order made by the First-tier Tribunal is maintained.

Iain Burnett

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

30 April 2025