Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004587

First-tier Tribunal No: PA/66012/2023
LP/03322/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 16 January 2026

Before

UPPER TRIBUNAL JUDGE O’BRIEN

Between

KA
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms V Easty of Counsel, instructed by Barnes, Harrild and Dyer
For the Respondent: Ms S Rushforth, Senior Home Office Presenting Officer

Heard at Cardiff Civil Justice Centre on 20 October 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

1. The appellant appeals against the respondent’s decision dated 13 December 2023 to refuse his protection and human rights claim made on 31 December 2021. The appellant had claimed to be politically active protesting against the government of the IKR and to have been arrested, beaten and released on condition that he participated in no further political activities against the government. The appellant had left Iraq shortly afterwards and had been active on line (and later in person at demonstrations) criticising the government of the IKR. The respondent did not accept the appellant's account of events in the IKR and did not accept that he was a genuine opponent of the government. The respondent did not accept that the appellant would be at risk on return in any event, even if his account were true.

2. The appellant’s appeal was dismissed by the First-tier Tribunal in a decision and reasons dated 29 August 2024. The First-tier Tribunal Judge (the judge) accepted that the appellant had been arrested at a demonstration in the IKR and had been released after 24 hours having undertaken not to participate in further anti-government political activities. The judge accepted the appellant’s claimed activities in the United Kingdom and that he would continue to be politically active on return. However, the judge found that the appellant would be considered a low-level activist in whom the authorities would have no interest, and so he would not be at risk.

3. That decision was set aside by the Upper Tribunal in a decision and reasons dated 14 April 2025 (annexed below). The Tribunal found that the judge had failed to make findings on whether the appellant had been beaten while in detention, as claimed, had failed to give proper consideration to the conditions of his release. It concluded that the judge had failed properly to consider whether he had been the victim of prior persecution and so failed to consider whether that was a good indicator of a risk of future persecution.

4. The Upper Tribunal preserved the following findings:

a. The appellant attended demonstrations in the KRI and in 2021 was arrested and detained.
b. The appellant was released from detention on the condition that he not engage in demonstrations or any political activities.
c. The appellant has been politically active whilst in the United Kingdom.
d. The appellant would resume his political activities in the KRI if returned.

5. In addition to the evidence before the judge, I had the benefit of additional evidence provided by the appellant (in accordance with permission given in the Upper Tribunal’s decision). The appellant gave evidence on the basis of his original and supplementary witness statements, and was cross-examined by Ms Rushforth. The representatives each made oral submissions. Whilst I mention below only that necessary to understand my decision, I took the evidence and submissions into account in their entirety.

6. The appellant’s supplementary witness statement went into detail about the treatment he received while detained in the IKR. He describes the following. The appellant was struck with a stick on arrest and again in detention when he asked why he was being detained. He was interrogated and asked to sign a declaration that he was aware of being forbidden from participating in future protests, which he did. He nevertheless continued to be held during which he was periodically beaten with sticks, causing bleeding but no lasting scars. He was released the following day

7. The appellant’s account of having been beaten, whilst not dealt with in his statement before the judge, had been raised in his asylum questionnaire dated 2 August 2023 and repeated in his asylum interview on 7 November 2023. As Ms Rushforth correctly submits, the beatings are not mentioned in the appellant’s screening interview but again, neither was his political activities and consequential arrest, detention and conditional release; however, these were both accepted by the judge and are preserved facts. Moreover, the appellant’s failure to mention the beatings in his screening interview was not challenged in his asylum interview nor given as an express reason for refusal in the decision letter.

8. All in all, I accept the appellant’s account of being beaten in custody. Moreover, I accept that that the mistreatment he suffered in detention reached the Article 3 threshold, and also that it was politically motivated. Consequentially, I accept that the appellant suffered past persecution for a Refugee Convention reason.

9. I agree that that the appellant’s activities in the IKR were of a relatively low level; however, they clearly resulted in his arrest, detention and beating, followed by conditional bail. It is not inherently implausible that police would follow up with visits to the appellant’s address and, having accepted the other key aspects of the appellant’s account, see no reason to find that this element is not reasonably likely to be true.

10. In any event, whilst the appellant’s activities in UK are also at a low level, demonstrating mere participation rather than any organising role, they were recorded online. These were genuine activities and so it is not reasonable to expect the appellant to delete his Facebook account or the posts in which these activities are evidenced.

11. There will be a record of the appellant’s arrest and release on conditional bail. Moreover, the appellant is visually distinct because of his Albinism. There is a real risk that he will be asked about his activities in UK on return. The appellant cannot be expected to deny his genuine activities, and certainly not in order to avoid consequential persecution.

12. Given the terms of the appellant’s release, there is a real risk that he would be arrested and detained again. Past mistreatment is a good indicator of repeat mistreatment. In any event, the background evidence makes clear that the IKR government not very tolerant of opposition. In short, given the appellant’s prior Article 3 mistreatment, the terms on which he was released, the appellant’s sur place activities and likelihood that the latter would be discovered on hi8s return, there a real risk of repeat Article 3 mistreatment, amounting to persecution on the grounds of actual or perceived political opinion.

13. For these reasons, the appeal succeeds on asylum grounds.

Notice of Decision

1. The decision of the First-tier Tribunal involved the making of an error of law and is set aside.
2. The decision is remade and the appeal is allowed on asylum grounds.

Sean O’Brien

Judge of the Upper Tribunal
Immigration and Asylum Chamber

12 January 2026

Annex

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004587

First-tier Tribunal No:
PA/66012/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

29/04/2025

Before

UPPER TRIBUNAL JUDGE SHERIDAN
DEPUTY UPPER TRIBUNAL JUDGE WALSH

Between

KA
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms. Easty, counsel, instructed by Barnes Harrild & Dyer
For the Respondent: Mr. Wain, Senior Home Office Presenting Officer

Heard at Field House on 7 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

1. This is an appeal against a decision of the First-tier Tribunal Judge Wilson (“the judge”) dated 29 August 2024.

2. The appellant is an Iraqi national of Kurdish ethnicity from the Kurdish Region in Iraq (KRI). He is albino and partially-sighted.

3. The appellant appealed against the respondent’s decision dated 13 December 2023 to refuse his protection claim made on 31 December 2021. The appellant had also made a claim under Article 8. In a respondent’s review dated 13 May 2024 the respondent continued to rely on the reasons for refusal letter.

4. The basis of the appellant’s protection claim was that he would be at risk on return due to his previous political activities in the KRI and his sur place social media activities. The particulars of the claim were that the appellant had engaged in a number of demonstrations against the Kurdish Regional Government (KRG) and was arrested, detained and beaten with a stick for attending one such demonstration in August 2021. A condition of his release was that he was not to participate in further demonstrations or any political activity. The appellant fled the region following his release, arriving in the United Kingdom in December 2021. The appellant continued his political activism in the United Kingdom via Facebook and attending some demonstrations. No issue arose with respect to the appellant’s CSID document which he had been able to access.

The First-tier Tribunal Decision
5. The judge made the following findings:
a. The appellant attended demonstrations within the IKR
b. The appellant was arrested after one such demonstration along with 150 others and released shortly thereafter on condition that he did not demonstrate again [21]
c. The appellant being released shortly after detention is indicative that he was not of interest to the IKR authorities [24]
d. The appellant will be identified by IKR authorities as a low level protester because their records will show the Appellant being detained with 150 other protesters and released within 24 hours [23].
e. The appellant’s political activities and arrest would become apparent to the IKR authorities at the point he sought entry to the IKR [23].
f. Due to his status as a low level protester, the appellant would not be of interest to the IKR authorities when they encounter him at the border [23, 24].
g. The appellant attended a limited number of demonstrations in the UK and engaged in online political activity [27].
h. The appellant would not come to the adverse attention or be of interest to the IKR authorities on return as a result of his attendance at demonstrations in the UK [25]
i. The appellant would not be at risk on return due to his online sur place activities [25, 26].
j. There is a reasonable degree of likelihood that the appellant will engage in political activities on return [28]
k. The appellant would not be anything other than a low level protester should he engage in political activities on return [28].
l. The appellant does not have a well-founded fear of persecution nor is there a real risk of serious harm on account of the appellant being politically active on return to the IKR because he will continue to be a low level protester and as such will not be of interest to the IKR authorities [28].

Grounds of Appeal

6. The appellant raised three grounds of appeal which are summarised as follows:
Ground 1: The judge failed to properly assess the appellant’s risk on return in particular by failing to take into account material facts in that:
a. the judge failed to make a finding as to whether the appellant was subjected to past persecution, i.e. whether his treatment in detention amounted to ill treatment or Article 3 prohibited treatment and therefore failed to apply 339K of the Immigration Rules.
b. the judge failed to consider the risk to the appellant on return given the condition of his release not to engage in political activities and his accepted evidence that he would continue to do so if returned.
c. the judge failed to engage properly with HJ (Iran) [2010 UKSC 31]1 as to it being unreasonable to expect the appellant to lie about his activities in the UK or intended activities at the security screening on return.
d. the judge failed to consider the appellant’s sur place activities in the context of those activities constituting a breach of the appellant’s condition of release

Ground 2: the judge erred in failing to consider objective evidence concerning the appellant’s sur place activities, namely paragraph 7.1.7 of the July 2023 Country Policy Information Note on Iraq: Opposition to the government in the Kurdistan Region of Iraq, regarding KRI law on communications in relation to the appellant’s accepted Facebook activities.

Ground 3: the judge erred in finding that the appellant’s low level activity does not amount to a higher profile and create/increase risk as paragraph 3.1.3 of the July 2023 CPIN identifies groups of people who may be at higher risk to include “individuals with high profiles” defined as those “who have a prominent public presence, who are actively involved in or have previous history of organising or participating in protests and demonstrations” which is argued matches the appellant’s profile in addition to which is the element of his condition of release prohibiting this activity.

7. The judge’s findings in respect of the Appellant’s claim under Article 8 were not the subject of challenge.

8. Permission to appeal was granted in respect of all grounds by First-tier Tribunal Judge Mulready, though the part of Ground 1 relating to the judge’s failure to engage properly with 339K of the Immigration Rules was identified as having particular force.

The Hearing
9. We had before us a composite bundle (CB) consisting of 317 pages.

10. This was a hybrid hearing with Mr. Wain appearing in person and Ms. Easty attending remotely via CVP.

11. Ms. Easty focused her submissions on the judge’s assessment of the likelihood that the appellant would come to the adverse attention of the authorities, addressing us principally on Grounds 1 and 3 together. She argued that the judge erred in finding the appellant to be a low level protester by relying on the description of the appellant’s activities as low level in the Reasons for Refusal letter [26 CB] rather than engaging with the objective evidence in paragraph 3.1.3 of CPIN itself. Given the appellant’s background, Ms. Easty submitted the appellant can be seen to fall within the “higher profile individual” category at 3.1.3 of the CPIN which would elevate the risk of the appellant coming to the adverse attention of the authorities. Ms. Easty also placed reliance on Section 14 of the CPIN (Treatment of opponents to the KRI authorities) and in particular 14.1.14 which cites an article in January 2021 by the Gulf Centre for Human Rights on the arrest and detention of “activists” and it is that word which Ms. Easty emphasises. Ms. Easty also drew attention to the appellant’s albinism which would have made him more visible amongst those previously detained.

12. Ms. Easty further submitted that the judge failed to engage with 339K as he failed to make an explicit finding as to whether the appellant was beaten in detention and failed to take into account whether the appellant’s beating in detention and/or the conditions of his release would place him in a higher category of risk. Ms. Easty submitted that the judge’s failure to take these facts into account and his failure to specifically address 339K are material errors given the relevance to the assessment of risk on return.

13. Mr. Wain reminded us firstly that 339K does not automatically establish a well- founded fear of persecution or real risk of serious harm as there may be good reasons to consider that the persecution or serious harm . Here, Mr. Wain argued, the judge’s regard to 339K was implicit given his overall risk assessment which is a subjective exercise. Also implicit in the judge’s consideration is the appellant’s evidence of being beaten in detention as it is specifically mentioned by appellant in his asylum questionnaire [90 CB] and at paragraph 3 in the Appellant’s skeleton argument [33 CB] which were before the judge in the stitched bundle. Mr. Wain submitted that the facts, such as the appellant’s release after only 24 hours, as well as the objective evidence as per the CPIN at 3.1.2 support the Judge’s finding of the appellant to be low level protester. Therefore, the judge’s assessment that the appellant is unlikely to be of interest the KRI authorities either at the point of entry or if he resumed his activities, is rational. As the judge’s risk assessment is correct, the failure to mention 339K or the fact of beating was not material. With respect to the import of the condition of release, Mr. Wain effectively argued that the judge could not be criticised for failing to address this as it was not raised as an argument in the appellant’s skeleton argument as a separate significant trigger of risk.

14. In response, Ms. Easty did not accept that the judge’s consideration of 339K was implicit. She emphasised the failure to consider the breach of the condition of release by the appellant’s sur place activities and his future political activities in which the judge accepted he would engage. These factors, Ms. Easty argued, would place the appellant in a higher category of risk.

Discussion

Ground 1: whether the judge erred in failing to take into account material facts in his assessment of the appellant’s risk on return.

15. As a starting point in our analysis we remind ourselves of the following principles:

a. The FTT is a specialist fact-finding tribunal. The UT should not rush to find an error of law simply because it might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49 [2008] 1 AC 678 at paragraph [30] as summarised in Ullah [2024] EWCA 201

b. where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account, MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 at [45]

16. The central issue in this appeal is whether the appellant would come to the adverse attention of the KRI authorities on return with the consequential risk of persecution or serious harm. As the judge’s assessment of risk on return turned on his finding that the appellant was a low level protester, considerable attention was given to whether the characterisation of the appellant as a low level protester was correct. Mr. Wain and Ms. Easty relied on different paragraphs of the CPIN to advance their arguments, Mr. Wain relying on 3.1.2 and Ms. Easty on 3.1.3.

17. We do note that the appellant accepts in his witness statement [41/2] that he was not a high level protester.

18. However, we find that, rather than the appellant’s level of involvement in the actual demonstrations, the key material facts are related to his treatment by the authorities as a consequence thereof.

19. Paragraph 339K provides as follows:

The fact that a person has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, will be regarded as a serious indication of the person’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.

20. Paragraph 339K demands careful analysis of past mistreatment alleged by an appellant in order to inform the assessment of future risk. Whilst the judge did consider the appellant’s detention, his focus was on the brevity thereof which contributed to his finding that the appellant was a low level protester. We note, however, that the CPIN is silent as to the length of a person’s detention as an indicator of their risk profile.

21. It is clear to us that the judge did not engage with 339K. Had he done so, he would have had to have made a specific finding as to whether or not the appellant was beaten with a stick. He also would have had to give explicit consideration to the fact and implications of the condition on which the appellant was released.

22. The failure to take account of the conditions of release is particularly stark when considered alongside the accepted evidence of the appellant’s sur place activities and his intention to continue his activism on return, both of which would breach those conditions. We find it was this error and the failure to apply 339K generally that infected the judge’s assessment of IKR authorities’ interest in the appellant at the point of entry (the accepted evidence being that they would be aware of his previous activities) rather than any failure to apply or potential misapplication of HJ Iran.

23. We find, therefore, a material error of law in the judge’s assessment of the risk to the appellant on return. Whilst our finding is made under Ground 1, Ground 1 effectively encompasses Grounds 2 and 3 and thus we make no separate findings in relation to those Grounds.

24. Having informed Ms. Easty and Mr. Wain that we had found an error or law with respect to the judge’s assessment of risk to the appellant on return, we invited their views on whether the case should be remitted to the First-tier or retained and remade in the Upper Tribunal. Initially both representatives were of the view that the matter should be remitted. However, after we raised the potential benefit to the appellant of preserving findings, Ms. Easty changed her position and asked for the decision to be remade in the Upper Tribunal. Mr. Wain did not dissent. The facts to be preserved set out below were agreed on behalf of both parties. It was agreed that as there was no specific finding as to whether the appellant was beaten in detention, this should be determined at the remaking.

Notice of Decision

25. The decision of the First-tier involved the making of an error of law and is set aside.

26. The decision will be remade at a resumed hearing in the Upper Tribunal.

27. The following findings are preserved:
a. The appellant attended demonstrations in the KRI and in 2021 was arrested and detained
b. The appellant was released from detention on the condition that he not engage in demonstrations or any political activities
c. The appellant has been politically active whilst in the United Kingdom
d. The appellant would resume his political activities in the KRI if returned

Directions
28. Parties have permission to rely on further evidence that was not before the First-tier Tribunal. Any such evidence must be filed and served at least fourteen days before the resumed hearing.

29. Parties have permission to file and serve skeleton arguments 7 days in advance of the resumed hearing, if so advised.

Martha Walsh

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

14 April 2025