Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004602; UI-2024-004608

First-tier Tribunal No: PA/00813/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 4 February 2025

Before

UPPER TRIBUNAL JUDGE SMITH

Between

N A
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

DECISION AND REASONS
[MADE WITHOUT A HEARING PURSUANT TO
RULE 34 OF THE TRIBUNAL PROCEDURE (UPPER TRIBUNAL) RULES 2008]

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant (NA) 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.

1. There is in this case an appeal by the Appellant, NA, and a cross-appeal by the Respondent. For ease of reference, I refer to the parties as they were in the First-tier Tribunal. Both parties appeal against the decision of Designated First-tier Tribunal Judge Shaerf promulgated on 29 April 2024 (“the Decision”) dismissing on protection and humanitarian grounds the Appellant’s appeal against the Respondent’s decision dated 4 July 2023 refusing his protection claim but allowing the Appellant’s appeal on Article 3 ECHR grounds on the basis that the Appellant cannot be returned to Iraq.

2. In a detailed Decision, the Judge found not credible the Appellant’s claim to be at risk from the PUK and found that he would not be at risk on account of his social media posts. He found however that the Appellant could not be returned to Baghdad consistently with Article 3 ECHR although he did accept that the Appellant could be returned to KRI were that to be an available option for the Respondent.

3. The Appellant challenges the Decision on three grounds as follows:

Ground 1: The Judge erred by relying on two mistakes of fact when assessing the credibility of the Appellant’s claim to fear the PUK.
Ground 2: The Judge erred by failing to have regard to relevant evidence and/or failing to give adequate reasons in relation to the plausibility of the Appellant’s account.
Ground 3: The Judge erred by failing to determine whether the Appellant’s claim based on his sur place activities would place him at risk on return to Iraq.

4. The Respondent challenges the Decision on one ground namely that the Judge failed to consider whether the Appellant could obtain his identity document from family members still living in Iraq in order to facilitate his travel from Baghdad to KRI.

5. Permission to appeal was granted on both applications by First-tier Tribunal Judge Parkes on 1 October 2024 in the following terms so far as relevant:

“..3. Although the Judge addressed the danger to the Appellant arising from Facebook activity it does not appear that he addressed the issue arising from attendance at demonstrations in the UK. In regard to the Appellant’s return he noted the evidence that the Appellant could be forcibly returned to the IKR where he would not be in danger, the return to Baghdad would be an alternative but not necessary if the IKR option were taken and accordingly it would be an error to allow on that basis. Appeal to both sets of grounds is granted and all grounds may be argued.
4. The grounds disclose arguable errors of law and permission to appeal is granted.”

6. By a Rule 24 Reply dated 25 October 2024, the Respondent replied to the Appellant’s appeal in the following terms so far as relevant:

“..2. The respondent does not oppose the appellant’s application for permission to appeal and invites the Tribunal to set the decision of the First Tier Tribunal aside.
3. It appears to the respondent that the FtT erred in its interpretation of the evidence about who was responsible for the alleged raid on the appellant’s house. There does not appear to be any basis in the evidence for finding that the appellant was mistaken that the PUK security forces raided his home.
4. There does not appear to be any assessment of the claimed risk arising from his attendance at demonstrations in the UK.”

7. By directions issued on 31 October 2024, Upper Tribunal Judge Keith sought the parties’ comments on a proposal to decide the Appellant’s appeal on the papers pursuant to rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“Rule 34”).

8. By a Rule 24 Reply dated 5 November 2024, the Appellant responded to those directions as follows:

“..2. The respondent has already conceded that the Judge of the First-tier Tribunal has made a material error of law in the Determination and does not oppose the Appellant’s appeal [s12(1) of the 2007 Act]. In light of this, an Upper Tribunal Judge has issued a direction confirming that in so far as concerns the Appellant’s appeal this can be decided on the papers pursuant to Rule 34. The Appellant does not oppose this.
3. In light of the respondent’s concession that the learned First-tier Judge did not make relevant findings of fact in respect various aspects of the Appellant’s asylum claim and in light of the Appellant’s grounds of appeal drawing attention to various misunderstandings [errors of fact] in the First-tier Tribunal’s determination, both amounting to material errors of law, it is submitted that the determination of the First-tier Tribunal should be set aside.
4. In light of the extent of the judicial fact finding which is necessary in order for the decision in the appeal to be re-made, and having regard to the overriding objective in rule 2, it is submitted that it is appropriate to remit the case a newly constituted First-tier Tribunal with no findings of fact preserved [s12(2)(b)(i) of the 2007 Act, para 7.2.(b) of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal 2018].
5. As regards the Secretary of State’s appeal, the Appellant agrees with the respondent that there is an error of law for the reasons set out in her grounds of appeal dated 01/05/2024. Further, we note that the First-tier Judge did not make any findings on where in Iraq the respondent proposed to return the Appellant and if so, how his relatives (assuming the Appellant to be able to contact them) would be able to assist him obtain the relevant documentation.
6. For the reasons stated in relation to the Appellant’s appeal it is submitted that the Upper Tribunal can dispose of the appeal on paper, pursuant to rule 34, and that for the same reasons and given the clear errors of law and failure to make relevant findings of fact, the appeal should be remitted to the First-tier Tribunal for re-determination before a differently constituted Tribunal, with no findings of fact preserved.”

9. Rule 34 provides as follows so far as relevant:

“34.—(1) Subject to paragraphs (2) and (3), the Upper Tribunal may make any decision without a hearing.
(2) The Upper Tribunal must have regard to any view expressed by a party when deciding whether to hold a hearing to consider any matter, and the form of any such hearing.
…”

10. I have regard to the Appellant’s view that no hearing is required in relation to error of law. The Respondent has not objected to the proposals put forward by the Appellant and has not responded to the directions suggesting that Rule 34 might be adopted.

11. Notwithstanding the detailed consideration of the appeal by Designated First-tier Tribunal Judge Shaerf in the Decision, I am satisfied that the concessions made by both parties are appropriately made. I am satisfied that, in light of the concessions made, it is appropriate to set aside the Decision in full as the conceded errors infect the assessment of credibility and returnability as a whole. As the appeal will be a full de novo hearing and having regard to the extent of the factual findings which need to be made, I am also satisfied, having regard to the Tribunals’ Practice Statement that it is appropriate for the appeal to be remitted to the First-tier Tribunal.

12. In accordance with the parties’ concessions, I therefore find there to be errors of law in the Decision, I set that aside in its entirety and remit the appeal to the First-tier Tribunal (Taylor House) for re-hearing before any First-tier Tribunal Judge other than Designated Judge Shaerf

NOTICE OF DECISION
The Decision of Designated First-tier Tribunal Judge Shaerf promulgated on 29 April 2024 involved the making of errors of law. I therefore set aside that Decision in its entirety. I remit the appeal to the First-tier Tribunal (Taylor House) for re-hearing before any First-tier Tribunal Judge other than Designated Judge Shaerf

L K Smith
Judge of the Upper Tribunal
Immigration and Asylum Chamber
29 January 2025