Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004947

First-tier Tribunal No: PA/66597/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 09 April 2025

Before

UPPER TRIBUNAL JUDGE LODATO

Between

RAA
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Brakaj, Iris Law
For the Respondent: Mr Diwnwyz, Senior Presenting Officer

Heard at Phoenix House (Bradford) on 26 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. I have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal because the underlying claim involves international protection issues in that the appellant claims to fear persecution or serious harm on return to Iraq. In reaching this decision, I am mindful of the fundamental principle of open justice, but I am satisfied, taking the appellant’s case at its highest for these purposes, that the potential grave risks outweigh the rights of the public to know of his identity.

2. This decision follows the resumed hearing for this appeal, heard on 26 March 2025. In my error of law decision dated 28 January 2025, I allowed the appellant’s appeal against the decision of the First-tier Tribunal (‘FTT’) to dismiss his international protection and human rights grounds of appeal. No findings of fact were preserved which means that the appeal falls to be decided entirely anew.

Legal Framework

3. Article 1A(2) of the Refugee Convention 1951 defines a refugee as an individual who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

4. The appellant bears the burden of substantiating the primary facts of a protection claim. The standard is a reasonable degree of likelihood (sometimes referred to as a realistic possibility).

5. I have considered SMO, KSP & IM (Article 15(c); identity documents) Iraq CG [2019] UKUT 00400 (IAC) and SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 00110 (IAC) [‘SMO2’].

Background

6. The appellant’s immigration history is not in dispute between the parties, and it is unnecessary to summarise these events in this decision. He claims to be at risk of persecution on return to the IKR because of an outburst in a tea shop during which he loudly decried the excesses of the ruling political parties. This, in turn, resulted in two politically connected men, for whom he worked, taking offence. One of the men discharged a firearm next to his head before the appellant fled and quickly decided to leave the country.

Appeal to the Upper Tribunal

7. At the outset of the remaking hearing, I was asked to treat the appellant as a vulnerable witness and to allow him to have breaks as and when necessary. Mr Diwnwyz raised no objection. Based on his mental health issues as disclosed on the papers, I was minded to accede to the application and made him aware that he should ask for a break if he felt the need. I checked with him throughout the hearing if he would like to take a few moments.

8. I asked the representatives to assist me with the issues to be determined in the appeal. Ms Brakaj confirmed that the Article 3 health claim addressed in the reasons for refusal letter would not be pursued. Turning to the international protection ground of appeal, Mr Diwnwyz initially indicated that internal relocation was in issue until I pointed out that this matter had not been taken in the reasons for refusal letter, or since. He acknowledged this and retracted this position. Instead, he confirmed that the only meaningful issue to be resolved was whether the appellant was credible to a reasonable degree of likelihood about the sequence of events he claimed had unfolded before he left Iraq. The question of whether the appellant would encounter treatment or conditions which would breach Article 3 due to documentation would only arise if the appellant were not found to be credible about the core factual narrative which underpinned his claim.

9. I heard evidence from the appellant assisted by a Kurdish (Sorani) interpreter and oral submissions from both parties. I address any evidence and submissions of significance in the discussion section below.

10. At the conclusion of the hearing, I indicated that I would be allowing the appeal on international protection grounds and would give my reasons in a reserved decision.

Discussion

11. As indicated above, a decisive factual question to be resolved in this appeal is whether the appellant has provided truthful evidence, to a reasonable degree of likelihood, about the events which preceded his departure from Iraq. There are a number of compelling factors which point to the account being truthful.

12. Firstly, by the conclusion of the hearing, and after his evidence had been fully tested under cross-examination, Mr Diwnwyz characterised the account he gave about his outburst at the tea shop as bearing the “ring of truth”. I agree. The answers given under questioning betrayed a level of detail which appeared to cohere with this being a recalled event which had transpired in the real world. He was able to confidently describe the physical layout of the tea shop, and where he was situated within it. He instinctively and naturally named the two friends he was with and discussed how he felt overcome with emotion about the oppressive treatment of his fellow Kurds, particularly teachers, by the main political parties. The response of other patrons was telling in that he said that the tea shop simply fell silent. This naturalistic recounting of this event added to an overall tenor of plausibility that the appellant simply felt unable to contain the sense of grievance he felt, in his own words, in his chest. The recognition that this part of the narrative had the ring of truth is of importance because it functioned as the catalyst for all that followed.

13. The only issue taken by the respondent about the outburst in the tea shop was that the evidence of it being recorded by another customer was tenuous. The appellant did not claim to have seen anyone recording him and acknowledged that he had not provided the footage in support of his case. However, this does not damage the credibility of his claim. The appellant had never claimed to have seen the video nor to have had it even constructively available to him to rely upon. There is no sensible reason to be doubtful that the recording was not made surreptitiously, and neither is there anything to suggest that the video was ever made public. I accept Ms Brakaj’s submission that it is far more plausible that such a video would have been kept within the ranks of the security services to identify the perpetrator and ensure that he did not act in similar fashion in the future.

14. There were other features of the appellant’s evidence which strongly resonated with it being truthful. The respondent was unable to point to a single inconsistency over the course of his various narrative accounts. I found the appellant to be an impressive witness who answered the questions asked of him in an instinctive and straightforward way. His evidence was supported by photographic evidence provided by his family showing the men he feared to be closely connected to the military and security services in Iraq and he provided translated evidence of a threatening voice message he had received on Facebook Messenger from one of the men. None of this supporting evidence was meaningfully challenged as being unreliable during the hearing. The only line of questioning which came close to such a challenge was when the appellant was asked how sure he was that the voice recorded belonged to one of the men he feared. The response was confident in that he maintained that he was able to recognise the voice as the man with whom he had spent a considerable period of time as his employee. I had no reason to doubt that he did not accurately identify the man who was threatening him.

15. By the time oral submissions were advanced, the respondent’s case against the appellant coalesced around whether the man who had fired the gun next to head truly intended to do him any harm as opposed to merely scaring him. It was suggested that if he had wanted to kill him, he could have done so without any difficulty right there and then. This kind of fine-margins analysis about the motivation and firing accuracy of an actor of persecution does not belong in any sensible assessment of whether a fear of persecution is objectively well-founded. The appellant’s evidence was that both men appeared to be under the influence of alcohol which may have played a part in how the gun was discharged. In any event, it would be difficult to characterise an incident such as this as anything other than a past episode of persecution. The law is well-established that where such a backdrop exists, this is to be treated as a serious indication that an objective risk exists in the future. This, together with the unchallenged evidence that the authorities came looking for the appellant at his family home in the immediate aftermath of this incident, and the apparent continuing interests shown by the threatening message left for the appellant after his arrival in the UK, lead me to the inexorable conclusion that his fears of persecution are objectively well founded.

16. For all of the above reasons, and considering the evidence in its totality, I find the appellant to be credible about the events which preceded his departure from Iraq. In accordance with the agreed principal controversial issues, I therefore allow the appeal.

Notice of Decision

I allow the appeal on Refugee Convention grounds.

Paul Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

2 April 2025