Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004657

First-tier Tribunal No: PA/00358/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 17th of September 2025

Before

UPPER TRIBUNAL JUDGE PINDER

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant in UT / Respondent in FtT
and

H A
(ANONYMITY ORDER MADE)

Respondent in UT / Appellant in FtT

Representation:
For the Appellant: Ms Simbi, Senior Presenting Officer.
For the Respondent: Ms E Rutherford, Counsel instructed by AB Legal Solicitors.

Heard at Birmingham Civil Justice Centre on 27 June 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. For ease of reference, I will refer to the parties as they appeared at first instance, namely the Secretary of State as the Respondent in the FtT and HA as the Appellant in the FtT.
2. This is the re-making of the decision in the Appellant’s appeal, following the setting aside of the decision of First Tier Tribunal Judge Reed, who had allowed the Appellant’s appeal on Article 3 ECHR grounds. The earlier decision of Upper Tribunal Judges Smith and Stamp setting aside Judge Reed’s decision was promulgated and sent to the parties on 21st January 2025.
3. I have maintained the Anonymity Order in favour of the Appellant HA. I consider that on the specific facts of this appeal the maintenance of the integrity of the United Kingdom’s immigration system and the potential risk of serious harm if the Appellant is identified are such that an Anonymity Order is a justified derogation from the principle of open justice.
Background
4. The Appellant is a 40 year old citizen of Iraq, of Kurdish ethnicity from Erbil, whose claim for international protection was refused by the Respondent on 5th December 2022. As referred to above, the Appellant’s appeal against that decision was allowed by Judge Reed. Upper Tribunal Judges Smith and Stamp set aside that decision and adjourned the appeal for re-making.
The appeal hearing in the Upper Tribunal
5. Following the making of a transfer order, this appeal was listed before me for re-making on 27th June 2025. The sole remaining issue to be determined is the feasibility of the Appellant’s removal from the UK and whether returning him to Iraq/the IKR would place him at risk of Article 3 ECHR ill-treatment as a result of a claimed lack of identity documentation.
6. The Appellant attended the hearing and was assisted by a Kurdish Sorani interpreter. The Appellant was tendered as a witness and was asked a few questions in examination-in-chief, following the confirmation and adoption of his two witness statements, the first dated 12th July 2022 and the second 16th May 2024. Ms Simbi confirmed at the outset of the hearing that she did not have any questions in cross-examination and following the Appellant’s examination-in-chief, Ms Simbi confirmed that that remained the case.
7. Following the Appellant’s brief oral evidence, I heard detailed oral submissions from both parties’ advocates as to how I should dispose of the Appellant’s appeal against the Respondent’s decision of 5th December 2022. At the end of the hearing, I reserved my decision, which I now give below with my reasons.
8. In addition to the Appellant’s written and oral evidence, I had the benefit of the parties’ consolidated bundle of evidence which ran to 145 pages (‘TB’). I confirm that I have taken all of the evidence before me and heard on 27th June 2025, together with the parties’ respective written and oral submissions, into consideration when reaching my findings set out below. I do not propose to rehearse the evidence and submissions here, but will consider and address these as part of my analysis set out below.
Analysis and conclusions
9. The issue of the feasibility of the Appellant’s return to the IKR and the Appellant’s Article 3 ECHR claim turns on what identity documents the Appellant may still have, what contact if any does he have with his family and the country guidance and relevant background information on the issue of identity documents in Iraq.
10. The Appellant’s written evidence on the issue of his identity documentation is that his family cannot assist with re-documenting him as he would need to travel to Erbil to obtain a new identity document (para 8 of his witness statement dated 16th May 2024, TB [22]). The Appellant also stated in an earlier statement dated 12th July 2022 that his passport was taken by the Greek authorities when he arrived there and claimed asylum in Greece. This passport was not returned to the Appellant (para 31) (TB [83]).
11. In the Appellant’s asylum interview conducted on 12th October 2022, the Appellant stated at Q14 that he had not spoken to any of his family, including his extended family, “for some years since (he) arrived in this country even (he has) not spoken to (his) mother for a long time”. The Appellant also stated at Q17 that only his mother knows where the Appellant is (namely the UK) (TB [92]). This information (the lack of contact generally and only his mother knowing where the Appellant is) was reiterated by the Appellant at Q25, who added that he had established contact with his mother twice after he arrived in the UK but that otherwise they have not been in contact since (TB [94-5]).
12. Also in the Appellant’s same asylum interview, the Appellant confirmed in response to the Immigration Officer’s questions that his passport was in Greece and his CSID and INID cards were taken by the agent in Turkey (Q42, TB [98]). When asked whether he could obtain a replacement on return to Iraq, the Appellant answered that he could obtain a replacement if he is “safe and protected” (Q43, TB [98-9]). At Q46 in the context of whether or not his family could assist him with obtaining replacement documents, the Appellant confirmed that he would need to attend himself and that the authorities had since brought in a “biometric document”, with the Appellant not having given his fingerprints and iris scan previously (TB [99]).
13. The Appellant was interviewed by the Respondent on a second occasion, on 8th November 2022 and confirmed at Q5 that he had a telephone number for his family but that he had “been blocked and that’s gone too” (TB [125]).
14. As part of his oral evidence, the Appellant confirmed that he had at present no contact with his family and that he had not had any contact with them since 2022. As referred to above, Ms Simbi elected not to cross-examine the Appellant.
15. Ms Rutherford submitted that the Respondent appears to accept that the Appellant is no longer in possession of his passport and identity documents. This certainly appears to be the case from the Respondent’s decision, where she stated that “(i)t is considered that you are able to contact your family, your mother and brother, to be redocumented, and therefore return to Iraq is feasible to you”. Ms Simbi did not suggest otherwise either and the Respondent has not sought to place in evidence any enquiries which may have been made of the Greek authorities.
16. Whilst there is mention of an INID card at Q42 of the Appellant’s first asylum interview, as summarised above at para 12, all other questions touching on the Appellant’s ability to re-document himself were answered by the Appellant with confirmations that he did not have a biometric document and had not previously enrolled his biometrics. This is also consistent with what the Appellant stated at para 8 of his first statement: “I have held a CSID card, a national ID only and a passport. I lost my CSID card and national ID after the agent took these from me in Turkey. These were never returned to me. My passport remained in Greece, it was taken from me by force by the Greek authorities.”
17. I also consider that this is consistent with the infancy that the INID registration procedure would have been in when the Appellant let Iraq in August 2018. The Upper Tribunal recorded in SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 00110 (IAC) (‘SMO2’) that the evidence available in those appeals at a hearing in the summer of 2019 showed that the digital INID system was rolling out at pace across Iraq, that this was a phased transition and that CSID cards were still being issued in some areas due to a shortage of INID cards – see [51]-[60]. The Respondent has not suggested either that the Appellant has ever had an INID card.
18. Ms Rutherford relied on the country guidance handed down by the Upper Tribunal in SMO2, and helpfully summarised at paras 26-29 of the head-note, to support her submission that the Appellant would not be able to travel internally in order to reach the IKR if returned to Baghdad without encountering treatment that would be contrary to Article 3 ECHR. This is because it has been established, and there is no evidence before me capable of displacing that there is a real risk of a person of Kurdish origin being detained at a checkpoint until such time as the security personnel are able to verify their identity.
19. Whilst the Respondent has not specified in her refusal decision where in Iraq or in the IKR she is intending to remove the Appellant, Ms Simbi focused her submissions on the likelihood of the Appellant being returned directly to Erbil, in the IKR. This therefore is the real issue in dispute between the parties: whether or not the Appellant would be able to benefit from the assistance of his family members if returned directly to Erbil, so as to ensure that his return is feasible and not in contravention of the UK’s obligations under Article 3 ECHR.
20. Ms Simbi submitted that the Appellant, in light of the adverse credibility findings previously made and which led to his protection claim raised under the Refugee Convention being dismissed by the FtT, could not be believed as to his claimed lack of contact with his family members since 2022. Further, Ms Simbi relied on the following passages of the Respondent’s CPIN ‘Iraq: Internal relocation, civil documentation and returns’ published in October 2023:
“5.1.2 Ethnic Kurds who pass residency requirements and are documented or can be redocumented upon or shortly after return are able to be returned to the KRI directly via Erbil or Sulaymaniyah airports (see Annex C).
5.1.3 The Inspection Report on Country of Origin information, Iraq and Myanmar (Burma) undertaken by the Independent Chief Inspector of Borders and Immigration (ICIBI), published June 2023 (ICIBI report June 2023), quoting Dr Rebwar Fateh, an expert witness on the Middle East, stated:
‘If a failed asylum seeker is returned to Iraq without an ID document, they will be detained at the airport.
a) The returnee will then be interviewed to give some indication of whether they are from their claimed governorate or region (through dialect, accent etc.). From the returnee’s Kurdish or Arabic dialect, the officer will be able to tell whether the returnee is from Iraq or not.
b) At this time, the returnee’s claimed name and address will also be cross referenced against suspect names in possession of the security services.
c) Next, the returnee will be asked to phone their immediate family to bring their ID.
d) If they claim to have no immediate family, the returnee will be asked to contact a paternal uncle or cousin for their ID.
e) If this is negative too, another relative will come to the airport with their own IDs to act as a guarantor for the returnee. This would allow the returnee a seven-day residency permit pending proof of identity.
f) During this period, the returnee needs to obtain their own ID or provide evidence that they are in the process of obtaining an ID – such as a letter from the nationality department to show that their ID is pending via the usual procedure.
g) If the returnee has no such luck, they must find a local Mukhtar [local chief or village elder] by the seventh day who can provide a letter in exchange for a small fee which states that the person is who they say that they are, that they are from the claimed neighbourhood, and that they are in the process of obtaining an ID.
h) If the Mukhtar cannot identify the returnee, they will need two witnesses to come forward who know them and can provide evidence on their identity.
i) The returnee then needs to apply in writing to the nationality department. Here, they will be interviewed by the chief and the witnesses will ned [sic] to give evidence under oath, stating how they know the returnee.
j) Once the chief has been convinced, the process of obtaining the ID will start. Once these steps have been completed, the returnee needs to communicate back to the security services at the airport, or their guarantor will face legal consequences.’”
21. Ms Simbi emphasised that even if the Appellant is to be believed and does not have contact with his family or cannot re-establish contact with them, the steps outlined at (e) involve circumstances in which the person being returned cannot rely on immediate family members but can call on a different relative. Ms Simbi also relied on the Appellant’s own account that he used to work in his father’s restaurant, subsequently opened his own restaurant and he also used to work as a police officer – see paras 7-8 of his first witness statement. These personal characteristics and circumstances, together with the fact that the Appellant has previously been issued with an Iraqi passport and a CSID, indicates that the Appellant would be identified or identifiable on return, or shortly thereafter. Ms Simbi submitted that the Appellant is likely to be able to secure assistance from a relative or a person who knows him personally, who can act as guarantors or assist him with being identified by the authorities with the view to securing temporary entry into the IKR at the very least. This will in turn, Ms Simbi submitted, permit the Appellant to undertaken the fuller re-documentation procedure without encountering difficulties in the interim.
22. Ms Rutherford in response submitted that the steps outlined in the Respondent’s CPIN does not explain how the Appellant would obtain new documentation once returned and how he would successfully travel to the office in which he needs to initiate the re-documentation process. This, she submitted, would crucially entail travelling through check-points, as was widely covered in the relevant country guidance cases and on which para 5.1.3 of the CPIN is silent on. Ms Rutherford emphasised that many of the checkpoints are likely to be manned by Peshmergas, who are untrained, not necessarily aligned with the government authorities and who are likely to only accept valid CSIDs or INIDs as proof of identity. Without such a document, even when awaiting re-documentation, the Appellant is likely to be detained and subject to treatment contrary to Article 3 ECHR. Ms Rutherford added that the information contained in the CPIN does not give any indication as to how long the re-documentation is likely to take.
23. Ms Rutherford also acknowledged that the Appellant has previously worked as a police officer but that was for a short time in 2005/2006, now over 20 years ago and it is well established that country conditions, as well as state structures, have been subject to much change since then.
24. I have considered the parties’ competing submissions on the new information contained in the CPIN, and cited above at para 20, but I am not satisfied that this is sufficient to depart from the country guidance, which is still in force in the form of the SMO2 decision. Ms Simbi’s reliance on the steps outlined by the Independent Chief Inspector of Borders and Immigration (‘ICIBI’) in his report and extracted at para 5.1.3 of the CPIN (also at para 20 above) effectively amounts to the Respondent inviting me to depart from the country guidance. In SMO2, the Upper Tribunal found that persons not in possession of either a CSID or INID on return, or shortly after return, to Iraq or the Iraqi Kurdistan Region (IKR), are at a real risk of serious harm sufficient to breach paragraphs 339C and 339CA(iii) of the Immigration Rules/Article 3 of the European Convention on Human Rights (ECHR) at security checkpoints when attempting to travel internally by land within Iraq or the KRI.
25. The Upper Tribunal’s observations in EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC) at [72] resonate here:
“72. (…) First, in individual appeals where there is fresh material not available at the time of the country guidance the Immigration Judge will be entitled to depart from the country guidance in the particular case on the basis that the guidance was either not directed to the particular issue in the subsequent appeals, or the factual assessment in the guidance case has now to be updated in the light of relevant cogent fresh information. Second, it is for the Tribunal to identify appeals as suitable for fresh country guidance where a fundamental review of all relevant material should be undertaken to see whether the situation has changed. The observations in TK were directed to the first class, rather than setting a test for departure from country guidance in all circumstances. We nevertheless recognise that where a previous assessment has resulted in the conclusion that the population generally or certain sections of it may be at risk, any assessment that the material circumstances have changed would need to demonstrate that such changes are well established evidentially and durable. That is the test that we will apply in our consideration of the material but not as a preliminary reason to decide whether we should revisit RN at all.”
26. The Respondent has placed relevant cogent fresh information before me concerning the re-documentation process for a returnee, who is without a CSID or INID card and who arrives directly in the IKR by air travel. Having considered this information, I accept that it is reliable information since it is contained in the CPIN and stems from an independent source namely the ICIBI and his office. With regards to each of the steps outline at para 5.1.3 of the CPIN, the Appellant has not placed any evidence in response or to displace the accuracy of that information.
27. In relation to the involvement of relatives or other persons who could assist to identify the Appellant on a temporary or short-term basis in order to permit him to initiate the re-documentation process once returned, I would also accept Ms Simbi’s submission that the Appellant is likely to be able to call one someone known to him. This is considering the number of relatives that the Appellant had remaining in Erbil, his Refugee Convention claim involving his family not being accepted, the Appellant’s personal characteristics with his employment history and connections more generally and the culture and importance of family support and networks that prevails in the IKR.
28. I do not consider however that this is sufficient to address the risks that were clearly found to still exist in SMO2 with regards to internal travel, which includes the IKR for those who lack CSID or INID cards. Ms Rutherford is correct to note that the further information in the CPIN does not give any indication as to the length of time that it may take for a person to secure their new identity documentation. During this time, however short or long it may take, it is reasonable to expect such a person to seek to access services and to travel internally. On the country guidance that remains in force, this is not possible without a CSID or INID card. The fresh information is also silent on whether the seven-day residency permit, which may be issued to a returnee following the necessary checks on arrival and pending proof of identity is likely to be accepted at check-points.
29. The communication from the UNHCR of March 2023 at p.66 of the CPIN confirms that Iraqi passports are likely to be accepted at checkpoints but the Appellant does not at present have one and as I understand the Respondent’s position, it is proposed that he be returned to the IKR without such a passport. As mentioned already, the Respondent has not seemingly pursued any enquiries with the Greek authorities as no evidence to this effect is before me. The communication from the UNHCR of August 2023 at p.67 also confirms the following in answer to questions from the Respondent:
“1. Can the 30 day temporary entry authorization "visa" be used to pass through checkpoints in absence of other ID such as INID/CSID/Passport?
In order to enter the KR-I or move within the KR-I the individual is required to hold valid identity documentation (i.e., CSID, UNID, nationality certificate or passport).
2. You mentioned previously about issues with using Passports at checkpoints due to series numbers; are the new electronic biometric passports more readily accepted? I guess the role out of this is still very recent but essentially what I am asking is if the new e Passport system will solve the need for having a INID or CSID to pass through checkpoints.
The Iraqi passport (including e-passports) is generally accepted at checkpoints, and if there are any suspicions, the individual's information is verified against security databases to determine whether they are wanted or not. Travelers with passport or e-passports might still be asked to present an additional valid document alongside their passport at certain checkpoints. The specific requirements and practices vary among different checkpoints and officers.
Please note that the UNID is a documentary requirement to apply for the e- Passport (as the biometric information for the passport will be taken from the UNID). So unless someone already holds a UNID, s/he cannot apply for the e- passport. Please also note that to date the implementation of e-passports in Iraq has been limited to specific regions, namely Baghdad, Basra, Najaf, Erbil, and Sulaymaniyah. Other areas are yet to be included in this system (as of July 2023).
3. Are biometrics checked at checkpoints- as in, are people at checkpoints asked to scan their fingerprints/ Irises to check against the database and their card? How easy would it be for someone to use someone else's INID card to pass through a checkpoint? I suspect the answer to this is it depends on the checkpoint, but what I'm wanting to know is if they have the technical capabilities to scan at checkpoints?
Not all checkpoints within Federal Iraq and the KR-I have the necessary technological capabilities to validate a person's identity through biometric records when presented with a UNID. Nevertheless, the process of issuing UNIDs is complicated, and instances of fraudulent activities are not common with the unified card.”
30. In light of the above, I am not satisfied that the Respondent has demonstrated that the Appellant would be able to travel and successfully cross check-points internally within the IKR, even if he is issued with a seven-day residency permit, pending proof of identity. The information to that effect has not been provided and the evidence relied upon by the Respondent, as summarised and extracted above, solely concentrates on the steps that the Appellant would be likely to take on return to secure temporary entry into the IKR. However, this does not address the issue of travelling internally and accessing services thereafter, while the Appellant’s re-documentation is pending or progressing. Similarly, no timescales for a returnee’s likely re-documentation procedures are given.
31. For these reasons, I do not consider that the fresh information contained in the Respondent’s CPIN is sufficient for me to depart from the decision of SMO2 that found that persons not in possession of either a CSID or INID on return, or shortly after return, to in this case the IKR, are at a real risk of serious harm sufficient to breach paragraphs 339C and 339CA(iii) of the Immigration Rules/Article 3 of the European Convention on Human Rights (ECHR) at security checkpoints when attempting to travel internally by land within the IKR.
32. Accordingly, I am satisfied that the Appellant has demonstrated that he is not in possession of either a CSID or INID and will not be in such possession on return. Further, that even if he is able to secure temporary entry into the IKR at Erbil airport, he is at a real risk of serious harm sufficient to breach paragraphs 339C and 339CA(iii) of the Immigration Rules/Article 3 of the European Convention on Human Rights (ECHR) at security checkpoints when reasonably attempting to travel internally by land within the IKR. At the very least, the Appellant will need to travel to the office where he is to seek re-documentation and it is also reasonable to expect him to travel for other purposes in order to re-settle himself once returned to Erbil.
33. In addition, with no likely or average timescales attached to the re-documentation procedures in any of the background evidence, and with the length of the Appellant’s absence from Iraq amounting to seven years, I do not consider that the Appellant’s lack of documentation once returned can be considered to be within such a short period that a real risk of Article 3 serious harm can be avoided.
34. Accordingly, I am satisfied that in the particular circumstances of this appeal and on the evidence that was presented to me by both parties, the Appellant’s appeal against the Respondent’s decision of 5th December 2022 falls to be allowed on Humanitarian Protection grounds under Article 3 ECHR.
Notice of Decision
35. The decision of the First-tier Tribunal involved the making of an error on a point of law and was set aside by decision of the Upper Tribunal dated 21st January 2025.
36. I remake the decision by allowing the appeal on Humanitarian Protection grounds under Article 3 ECHR.

Sarah Pinder

Judge of the Upper Tribunal
Immigration and Asylum Chamber

27.08.2025