Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004902

First-tier Tribunal Nos: PA/65959/2023
LP/03714/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 31st of January 2025

Before

UPPER TRIBUNAL JUDGE LOUGHRAN

Between

SR
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr Sadeghi, Counsel, NLS Solicitors
For the Respondent: Ms Ahmed, Home Office Presenting Officer

Heard at Field House on 3 January 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 with permission of First-tier Tribunal Judge Cox against the decision of First-tier Tribunal Judge Alis, (‘the judge’), dated 9 August 2024.
Anonymity
2. I maintain the anonymity order that was granted by the First-tier Tribunal because the appellant continues to rely upon his international protection claim. The importance of facilitating the discharge of the obligations of the United Kingdom under the Refugee Convention and European Convention on Human Rights (the ECHR) outweighs the principle of open justice in this case.
Background
3. The appellant is an Iraqi national born on 22 January 1999. He is a Sunni Muslim. He is from the Ninewa Province of Northern Iraq. The appellant claims that before his mother’s death in 2021 he had not experienced any specific issues with anyone in Iraq. He was working as a labourer in Iraq.
4. After his mother died, the appellant continued to live in the family home, but his neighbours, who were Arabs, stole items from his home. The appellant and his uncle discussed the situation and agreed it would be best to sell the house. His uncle did not sell the house solely for the purpose of him leaving Iraq as the house was sold approximately two to three months before he left and was sold for around $7,000. The appellant believes that even though the house had been sold and the belongings taken, ISIS and the Arabs would still be interested in him because they are angry that he sold his inheritance as they wanted all the sale proceeds.
5. The appellant claimed to further fear the Arabs because they were known to kidnap Kurdish people and demand a large amount of money for them or else they could be killed and their kidneys sold.
6. The appellant also claimed to fear the ‘B’ tribe because his uncle had an affair with the leader’s daughter (‘KS’) and the tribe found out. Although KS died in 2014, his brother continued to make threats towards the appellant’s family and threatened to kill his uncle and anyone associated with him.
7. The appellant left Iraq on 27 October 2021 at the same time as his uncle and his uncle’s wife. The appellant’s uncle used money from the sale of the appellant’s parents’ house to pay for their journey. The appellant gave his CSID document to the agent after they crossed the border as he was told to do so. The appellant was separated from his uncle and his uncle’s wife and and he has not had any contact with them since his arrival in the UK.
8. The appellant entered the UK on 16 November 2021 whereupon he claimed asylum. Since his arrival in the UK, the appellant has taken part in political activities. He has attended demonstrations and posted political content on Facebook.
9. The appellant’s protection and human rights claim was refused by the respondent on 7 December 2023.
The appeal to the First tier Tribunal
10. The appellant appealed against that decision and the appeal came before the judge on 2 August 2024. The judge identified the issues he was required to determine at paragraph 4 of the decision:
“i. Does the Appellant fear either ISIS or Arabs due to what happened in Iraq?
ii. Does the Appellant fear B tribe due to his uncle’s affair and their influence in Iraq?
iii. Would his sur place activity in this country place him at risk of persecution in Iraq?
iv. Does the Appellant either have his identity documents or would he able to obtain them within a reasonable period of time?”
11. The appellant gave oral evidence at the hearing through an interpreter. In a decision dated 9 August 2024 the judge dismissed the appellant’s appeal.
12. The judge found that the appellant’s claim to fear ISIS and Arabs would not engage the Refugee Convention and given that there were no other personal factors in the appellant’s case he would not face a risk which would be contrary to either Article 3 or Article 15(c).
13. In respect of the appellant’s claim to fear the B tribe the judge found that it did not engage a Refugee Convention or Article 3 or Article 15 (c).
14. In respect of his sur place activity the judge considered the country guidance cases in Iran and concluded:
“65. Having found the Appellant had no previous history which would bring him to the attention of the authorities and having found the Appellant’s sur place activities were not genuinely held but were carried out to bolster his claim I have applied the latest guidance issued by the Tribunal.
66. The Appellant could delete his account and whilst accounts may not be deleted altogether for 30 days there are no additional risk factors, over and above what I have identified above, which would lead to the authorities searching for him or trawling for information about him. If he did not have an account when spoken to by the Iranian authorities then for the reasons given above he would not have to disclose the fact had operated one and his reasons for operating one.
67. Following the guidance in XX I do not accept the authorities have the capacity or ability to access deleted accounts or posts, he has since deleted, I find that as he would only be returned as a failed asylum seeker with a profile which would not interest the authorities.”
15. There is no consideration of or findings made in respect of whether the appellant either has his identity documents or would be able to obtain them within a reasonable period of time?
The appeal to the Upper Tribunal
16. The appellant applied for permission to appeal. The appellant submitted that the judge had failed to make a finding on a matter in issue i.e. whether the appellant was in possession of his Iraqi documentation and if not whether he would be able to redocument himself. The appellant also argued that the judge failed to have regard to the appellant’s membership of an ethnic group when conducting the “sliding scale” assessment in respect of Article 15(c) of the Qualification Directive.
17. Permission was partially granted by First-tier Tribunal Judge Cox who stated:
“2. Contrary to the assertion in the grounds, the judge had regard to the ‘sliding scale’ factors (45).
3. However, it is arguable that the judge failed to have regard to and, or, decide an identified issue, namely: “does the Appellant either have his identity documents or would he be able to obtain them within a reasonable period of time” (see paragraph 4(iv)).”
18. The respondent did not provide response under rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
19. At the outset of the hearing, Ms Ahmed rightly conceded that the judge had not addressed the issue of redocumentation and accepted that this was a material error of law and that the matter should be reheard on that issue only.
20. I explained to the parties that I was concerned that the judge had erred by applying Iranian country guidance cases to the appellant’s case, a citizen of Iraq. Ms Ahmed submitted that the Iranian country guidance cases referred to were of general application. She also submitted that the appellant had not raised before the First-tier Tribunal that the Iranian country guidance cases did not apply to his case. Mr Sadeghi submitted that the judge had erred by applying Iranian country guidance cases to the appellant’s case.
21. At the end of the hearing, I indicated that the matter would be reheard in respect of the redocumentation issue.
22. I reserved my decision in respect of whether the judge had materially erred by applying Iranian country guidance cases to the appellant’s case, which I now give.
Discussion
23. The appellant has not argued that the judge materially erred by applying Iranian country guidance cases to the appellant, an Iraqi national.
24. In R v Secretary of State for the Home Department, ex parte Robinson [1997] EWCA Civ 3090 the Court of Appeal found that a point, if not been taken, had to be obvious. They stated:
“If there is readily discernible an obvious point of Convention law which favours the applicant although he has not taken it, then the special adjudicator should apply it in his favour, but he should feel under no obligation to prolong the hearing by asking the parties for submissions on points which they have not taken but which could be properly categorised as merely ‘arguable’ as opposed to ‘obvious’.“
25. I am satisfied that applying an Iranian country guidance case to an appellant from Iraq falls squarely within the remit of a Robinson obvious point.
26. I am also satisfied that Ms Ahmed was able to address me on this point notwithstanding the fact that it had not been previously raised. I have therefore have considered it. I note that at paragraph 58 of the determination, the judge states the following, having referred to Iranian country guidance cases:
“58. Ms Ferrin did not argue that the Iraqi authorities were more technically advanced than the Iranian authorities and the Tribunal in XX made clear that the Iranian authorities did not have the ability to identify all demonstrators. There was evidence that a person of interest in Iran was more likely to be identified at a protest in the United Kingdom whereas a person with no profile in Iran was less likely to be identified. The same would therefore apply to someone from Iraq given the Iraqi authorities are no more technically advanced than their Iranian neighbours.”
This would seem to indicate that the judge was clearly aware that the appellant was from Iraq and was merely considering the Iranian country guidance cases as general guidance.
27. However, I note that at paragraph 65 the judge states having found the appellant has no previous history that would bring him to the attention of the authorities and having found his sur place activities were carried out solely to bolster his claim he has “applied the latest guidance issued by the Tribunal.” However, there is no such guidance issued by the Tribunal in respect of Iraq.
28. At paragraph 66 the judge states:
“66. The Appellant could delete his account and whilst accounts may not be deleted altogether for 30 days there are no additional risk factors, over and above what I have identified above, which would lead to the authorities searching for him or trawling for information about him. If he did not have an account when spoken to by the Iranian authorities then for the reasons given above he would not have to disclose the fact had operated one and his reasons for operating one.”
The judge is clearly referring to the Iranian authorities here when the Appellant will obviously be dealing with the Iraqi authorities.
29. At paragraph 67, the judge states that:
“67. Following the guidance in XX I do not accept the authorities have the capacity or ability to access deleted accounts or posts, he has since deleted, I find that as he would only be returned as a failed asylum seeker with a profile which would not interest the authorities.”
The Upper Tribunal in XX gave guidance in respect of the capacity and ability of the Iranian authorities, not the Iraqi authorities.
30. I am satisfied that the application of the Iranian country guidance cases was not limited to the general guidance on social media or sur place activities, but that the judge applied the guidance on the capability and behaviour of the Iranian authorities to the appellant, an Iraqi national. I am therefore satisfied that the judge materially erred in law by applying Iranian country guidance cases to the appellant’s case.
31. I am satisfied that this error is material. The appellant relied on clearly relevant evidence on United Nations High Commissioner for Refugees (UNHCR), International Protection Considerations with Regards to People Fleeing Iraq - Update I, 30 January 2024, which included the following evidence addressing the behaviour of the Iraqi authorities:
“According to reports, individuals are also singled out solely on account of their political views expressed on social media.
[…]
The authorities have also targeted for harassment, arrest and prosecution individuals who have posted criticism of the local or regional authorities on social media.
[…]
Authorities in Federal Iraq and in the KR-I have used vague legal provisions relating to public integrity and decency to arrest and prosecute social media users who were deemed to have posted indecent or immoral content.”
32. I find that the material errors of law identified infect the entire decision, and that the decision should be set aside in its entirety.
33. I have decided that this case should be remitted to the First tier Tribunal, having applied the guidance in paragraph 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).
34. I am satisfied that the nature and extent of the judicial fact finding which is necessary for this appeal to be re-made means that it is appropriate to remit the case to the First-tier Tribunal.
Notice of Decision
35. The First-tier Tribunal decision involved the making of an error of law.
36. I set aside the decision of the First-tier Tribunal and remit the case to the First-tier Tribunal to be heard by a different judge with no findings of fact preserved.

G. Loughran

Judge of the Upper Tribunal
Immigration and Asylum Chamber

28 January 2024