Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004168

First-tier Tribunal No: PA/58993/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 12 March 2025

Before

UPPER TRIBUNAL JUDGE HANSON
DEPUTY UPPER TRIBUNAL JUDGE MOXON

Between

SO
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Cosgrove, Latta and Co Solicitors
For the Respondent: Mr Diwnyzc, Senior Home Office Presenting Officer

Heard at Phoenix House (Bradford) via CVP on 3 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

Introduction

1. The Appellant appeals, with permission, the decision, dated 17th July 2024, of a judge sitting in the First-tier Tribunal (“the Judge”) who upheld the Respondent’s decision to refuse the Appellant’s claim for asylum.

Background

2. The Appellant is an Iraqi Kurd from the Independent Region of Iraq (“IKR”).

3. He claimed asylum on 25th November 2021. In summary, he claims that in 2020 he started to talk to a female, HD, on Tik Took. The contact lasted 18 months, during which they met in person on three occasions. On the third occasion they were seen by HD’s family. Thereafter, the Appellant’s family asked HD’s family for permission to marry. This was refused, as were two further efforts, the last eliciting a threat from HD’s family that any further requests would result in the Appellant being killed. A few days later, the Appellant was approached by HD’s cousins who threatened to kill him.

4. The application was refused by the Respondent on 9th October 2023. The Appellant’s narrative account was rejected on account of inconsistencies.

5. His appeal against the Refusal was heard by the Judge at an attended hearing on 26th June 2024. The Appellant relied upon country background evidence, including the Home Office CPIN, ‘Iraq: ‘Honour Crimes’, dated 31st March 2021 (“the CPIN”).

6. The appeal was dismissed by the Judge in a determination dated 17th July 2024. In relation to the background information, he found, at paragraph 19:

“There is material in the papers about honour-based crimes. I appreciate that these occur. However they generally relate to more significant events, such as resisting marriage and running away with someone. I appreciate there are dangers in trying to make findings of what might happen in a different country. However, given that on his account they were only seen together once it seems incredible that her family would threaten to kill him. His family were not on his account so intimidated that it put them off approaching the other family with repeated proposals of marriage.”

7. Within grounds of appeal, the Appellant submits that the Judge acknowledged the background evidence but did not refer to it and failed to give clear reasoning for the conclusion that the account was “incredible”.

8. Permission to appeal was granted by another judge of the First-tier Tribunal on 30th August 2024, on the following basis:

“3. The Judge does not find it credible that the appellant, having been seen once with the female he had a secret relationship, would receive in threats to kill [§19].

4. It is at least arguable the Judge has not explained why they formed that conclusion in light of the background information and Country Policy Information Note as quoted within the grounds and contained within the hearing bundle.”

9. Within a rule 24 response, dated 10th September 2024, the Respondent submitted that the Judge had expressly stated that he had read all of the papers. His findings must be read holistically. The challenge to his determination is “…no more than an argument with the fact finding or an argument for more weight to be given to evidence that supports the claim…”.

The hearing

10. We had regard to the electronic Upper Tribunal bundle, which contained 315 papers, together with submissions from the advocates.

11. Ms Cosgrove adopted the grounds of appeal and noted that the Judge’s finding that the Appellant’s account was “incredible” is inconsistent with the evidence within the CPIN, particularly paragraph 2.4.3, which states

“'Honour' crimes may be committed or ordered by a husband, a father, a brother or another relative as a punishment to a family member because they have gone against social or cultural norms and are perceived to have damaged the family's reputation by their actions. Such 'offences' include (but are not limited to) friendships or pre-marital relationships with a member of the opposite sex; refusing to marry a man chosen by the family; marriages that are against the family's wishes; seeking a divorce; committing adultery; being a victim of rape or kidnapping; and defying gender roles”

12. Mr Diwnycz relied upon the rule 24 response.

Discussion and analysis

13. Throughout our consideration of the appeal, we have had regard to the guidance provided by the Court of Appeal in Volpi v Volpi [2022] EWCA Civ 462 at paragraph 2:

"[i] The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled:

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

[iii] 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.

[iv] 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.

[v] 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.

[vi] 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.

[vii] 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."

14. Permission to appeal was granted on account of the Judge’s analysis at paragraph 19 of his determination that the Appellant’s account was “incredible”.

15. The Court of Appeal has encouraged caution when making findings of incredibility or implausibility, as detailed in HK (Sierra Leone) [2006] EWCA Civ 1037:

“28. … in many asylum cases, some, even most, of the appellant's story may seem inherently unlikely but that does not mean that it is untrue. The ingredients of the story, and the story as a whole, have to be considered against the available country evidence and reliable expert evidence, and other familiar factors, such as consistency with what the appellant has said before, and with other factual evidence (where there is any).

29. Inherent probability, which may be helpful in many domestic cases, can be a dangerous, even a wholly inappropriate, factor to rely on in some asylum cases. Much of the evidence will be referable to societies with customs and circumstances which are very different from those of which the members of the fact-finding tribunal have any (even second-hand) experience. Indeed, it is likely that the country which an asylum-seeker has left will be suffering from the sort of problems and dislocations with which the overwhelming majority of residents of this country will be wholly unfamiliar….”

16. Whilst the Judge acknowledged the background evidence, and whilst it must be assumed that the evidence was considered, he fell into error by failing to support his conclusion of incredibility with reference to that country evidence. Further, he reached a finding of incredibility that is contrary to the background evidence, particularly paragraph 2.4.3 of the CPIN, which had been brought to his attention within the Respondent Review, dated 3rd February 2024. His approach was therefore contrary to the guidance in HK (Sierra Leone) and resulted in him reaching a conclusion about the credibility of the Appellant’s account having failed to give the evidence a balanced consideration, resulting in him reaching a conclusion that was rationally insupportable (Volpi, paragraph 2(v)) or at the very least, unsupported.

17. The finding of incredibility, absent an adequate analysis of the background evidence, is an error of law, particularly given that the background evidence does not support, but contradicts, the finding.

18. To necessitate the decision being set aside, the identified error of law must be material, in that it must have made a material difference to the outcome of the appeal before the Judge. The error of law identified would not be a material error of law if there was, notwithstanding the identified flaw, a sound adverse credibility assessment that would be sufficient to dismiss the Appellant’s account regardless of its inherent credibility / incredibility.

19. In addition to the principles within Volpi, we also reminded ourselves of the merits of concise decision writing, as outlined within the ‘Practice Direction from the Senior President of Tribunals: Reasons for decisions’, dated 4th July 2024:

“Providing adequate reasons does not usually require the First-tier Tribunal to identify all of the evidence relied upon in reaching its findings of fact, to elaborate at length its conclusions on any issue of law, or to express every step of its reasoning. The reasons provided for any decision should be proportionate, not only to the resources of the Tribunal, but to the significance and complexity of the issues that have to be decided. Reasons need refer only to the main issues and evidence in dispute, and explain how those issues essential to the Tribunal’s conclusion have been resolved.

Stating reasons at any greater length than is necessary in the particular case is not in the interests of justice. To do so is an inefficient use of judicial time, does not assist either the parties or an appellate court or tribunal, and is therefore inconsistent with the overriding objective. Providing concise reasons is to be encouraged. Adequate reasons for a substantive decision may often be short. In some cases a few succinct paragraphs will suffice. For a procedural decision the reasons required will usually be shorter.”

20. The Judge summarised the Respondent’s submissions relating to credibility at paragraphs 3-12 of the determination but did not make findings whether those submissions were accepted or dismissed. The Judge’s findings are limited to six paragraphs under the heading of ‘Consideration’:

“16. A credibility assessment is highly fact sensitive. The detail of the claim is to be considered. Its internal consistency and its plausibility are relevant. It would be wrong to reject a claim because of minor discrepancies. However, a fabricated claim can be consistent on its central aspects whereas peripheral matters may not be so easy to replicate. Furthermore, a claimant may tell lies on parts of his claim, but this should not necessarily lead to the conclusion that the core of the claim is untrue. The converse can also apply. It is important to consider the evidence in the round before reaching a conclusion rather than reaching a conclusion on part of the evidence and then treating other aspects are simply add-ons. Finally, it must be borne in mind that credibility assessment is only part of the evidential assessment.

17. He was seen initially for screening on 5 December 2021. He said he left Iraq in October 2021 and travelled to Turkey and then by the ship on to France. His claim is he did not know to claim earlier because he was following the directions of the agent. His substantive interview was 5 February 2023. He said he proposed marriage twice.

18. In his statement he refers to HD being from the Shairani tribe, and he claims that tribe have connections with the government and are spread throughout the country. He claims the Iraqi authorities will not intervene on the basis the dispute is a tribal matter. He has provided two media extracts said to relate to the Shameran tribe. There is a photograph of someone described as the head of the security police in a town who is a member of the tribe. I do not see how this material advances matters. Undoubtedly members of various tribes are involved in the security forces.

19. There is material in the papers about honour-based crimes. I appreciate that these occur. However they generally relate to more significant events, such as resisting marriage and running away with someone. I appreciate there are dangers in trying to make findings of what might happen in a different country. However, given that on his account they were only seen together once it seems incredible that her family would threaten to kill him. His family were not on his account so intimidated that it put them off approaching the other family with repeated proposals of marriage.

20. I am not satisfied that the claim is true. The appellant talks about an online relationship going on for several years. This is inconsistent with the account of a strict and controlling family. He is provided no evidence of this online activity. I appreciate there is no requirement for corroboration but that is not to say that if something can be easily obtained its absence raises questions.

21. I find this a fabricated claim and that the appellant is not credible. For the same reason I do not accept he has no documentation or that his family cannot assist him. As indicated by his representative no claim is being pursued in respect of his health. The same reason I am not gone on to consider the question of sufficiency of protection or relocation.”

21. Paragraph 16 is limited to outlining the principles of credibility assessments.

22. Paragraph 17 touches upon the Appellant not claiming asylum in France before entering the United Kingdom. The Judge did not conclude whether the Appellant had good reason for not claiming asylum in France or whether not doing so damaged his credibility.

23. Paragraph 18 does not contain any credibility findings but finds that a piece of evidence relied upon by the Appellant did not “..advance matters”.

24. In addition to the impugned refence to the account being incredible, paragraph 19 also notes that the Appellant’s “…family were not on his account so intimidated that it put them off approaching the other family with repeated proposals of marriage”. However, the Judge did not acknowledge in that analysis that the Appellant’s account is that it was only after the third proposal that he started to receive threats. There is no reference within the determination that there was any evidence that the Appellant or his family were intimidated prior to the threats.

25. Paragraph 20 makes what, on the face of it, is a reasonable finding about the unlikelihood of HD being able to have electronic contact with the Appellant for “several years”, but that demonstrated a misunderstanding of the evidence as the Appellant’s account was that the contact was for less than two years. When finding that the lack of evidence of the electronic contact undermines the Appellant’s case, the Judge failed to acknowledge, or make a finding in relation to, the Appellant’s explanation that this was due to having lost his mobile telephone.

26. We are therefore satisfied that the identified error of law is material as there are not otherwise sufficient and cogent credibility findings made with reference to the available evidence. Further, it would appear reasonable to conclude that the Judge’s assessment of the narrative account being incredible then infected his consideration of the Appellant’s general credibility.

27. For those reasons we are satisfied that the Judge’s decision contained a material error of law. The decision is therefore set aside.

Disposal

28. The Tribunals, Courts and Enforcement Act 2007, 12(2), provides that the Upper Tribunal, upon setting aside the decision of the First-tier Tribunal, may (i) remit the case to the First-tier Tribunal with directions for its reconsideration, or (ii) re-make the decision.

29. When deciding whether to remit the appeal or to retain it for a the decision to be re-made, we have given careful consideration to the Joint Practice Statement of the First-tier Tribunal and Upper Tribunal concerning the disposal of appeals in this Tribunal:

"[7.2] The Upper Tribunal is likely on each such occasion to proceed to re-make the decision, instead of remitting the case to the First-tier Tribunal, unless the Upper Tribunal is satisfied that:-
a. the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or
b. the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal."

30. The panel took note of paragraph 7.3 which provides:

“Remaking rather than remitting will nevertheless constitute the normal approach to determining appeals where an error of law is found, even if some further fact finding is necessary.”

31. Having considered the practice statement recited and the decision of the Court of Appeal in AEB v SSHD [2022] EWCA Civ 1512 and that of the Upper Tribunal in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46, and in the light of the overriding objective, we are satisfied that the appeal falls within paragraph 7.2(b) as it will be necessary to undertake an assessment of all the factual evidence, oral and documentary, when reaching a decision.

32. The matter shall therefore be remitted to the First-tier Tribunal, sitting in Glasgow, for a fresh hearing. None of the findings of the Judge are presented. The re-hearing shall be before a different judge.

Notice of Decision:

The decision of the First-tier Tribunal involved the making of an error on a point of law and is set aside and remitted to the First-tier Tribunal.

DUTJ Moxon
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

4th March 2025