Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005047

First-tier Tribunal No: PA/62324/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

30th April 2025

Before

UPPER TRIBUNAL JUDGE KEBEDE
DEPUTY UPPER TRIBUNAL JUDGE LEWIS

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

IT
(Anonymity Order made)
Respondent

Representation:
For the Appellant: Ms A Ahmed, Senior Home Office Presenting Officer
For the Respondent: Mr Aziz, of Lei Dat & Baig Solicitors

Heard at Manchester Civil Justice Centre on 22 April 2025

DECISION AND REASONS

1. This is an appeal by the Secretary of State for the Home Department against the decision of the First-tier Tribunal allowing IT’s appeal against the respondent’s decision to refuse her asylum and human rights claim.

2. For the purposes of this decision, we shall hereinafter refer to the Secretary of State as the respondent and IT as the appellant, reflecting their positions as they were in the appeal before the First-tier Tribunal.

3. The appellant is a citizen of Iraq born on 1 December 1978. She is an ethnic Arab and Sunni Muslim from Baghdad. She arrived in the UK on 5 September 2019 and claimed asylum the same day. She claims to be in fear of return to Iraq and at risk as a single woman with no male support.

4. The appellant claims to have first left Iraq in 2001 after completing a degree course at Baghdad University and to have gone to Jordan for six months and then to the United Arab Emirates (UAE) where she worked for 13 years, including employment as a legal secretary for an English law firm. She received word that she was likely to be made redundant and so returned to Iraq, in 2015. However she left Iraq and went back to her job in the UAE after her maternal uncle, her only male relative, was abusive to her and tried to get her to join an armed militia group and marry a militia leader. She had to leave the UAE when she became redundant and she went to live in the USA. She claimed asylum there and was granted residency in February 2018. She claims that that residency has since lapsed as she left the USA in February 2019 after escaping an abusive relationship and facing homelessness. She went to Jordan after the USA and lived with her mother there, but she could not find work and only had a one year residence permit. Also her maternal uncle and his three sons found her in Jordan and beat her and her mother until the neighbours intervened. She fled with the help of a friend who arranged an agent, and came to the UK. She did not remember if she came on her own passport or not and has since lost the passport she used to come here. She did not disclose that she had lived in the USA and had residency there as she feared being sent back. She claims to have no right to reside in Jordan or the UAE and that her residency in the USA will have been treated as abandoned. She fears being harmed by her maternal uncle and his sons if she returned to Iraq and does not believe that she could relocate to another part of the country as a single woman without any family support.

5. The appellant’s claim was refused on 14 November 2023. The respondent did not accept the appellant’s account and considered that it lacked credibility because she had lied about her residency in Jordan and the USA, by initially concealing that information. The respondent accepted that the appellant would not be able to seek a sufficiency of protection in Iraq, or internally relocate in that country, if the material facts of her claim were accepted, but that in any event it was reasonable for her to return to the USA to avail herself of the protection of the state authorities in that country as she had permanent residence status there. The respondent considered that, since the material facts of the appellant’s claim were not accepted as true, she could relocate to another part of Iraq where her uncle could not find her, and that she could obtain another passport. The respondent concluded that the appellant would be at no risk on return to Iraq and that her removal would not be in breach of her human rights.

6. The appellant appealed against that decision. Her appeal was heard by a First-tier Tribunal Judge on 3 September 2024 and was allowed in a decision promulgated on 9 September 2024. The judge considered that the appellant had substantially damaged her credibility by repeatedly failing to disclose her history in the USA and the fact that she had obtained legal permanent status there. The judge found, however, that the respondent’s other credibility concerns were not made out and she accepted the appellant’s account of her experiences at the hands of her maternal uncle in Iraq and Jordan. The judge accepted that the appellant had no meaningful status in Jordan and that her mother was living there without legal status. The judge also accepted that the appellant’s claim, that her status in the USA would have been treated as abandoned owing to her lengthy absence, was credible and was supported by the provisions from USA legislation which had been produced. The judge accepted that the appellant had lied about her status in the USA out of fear of being returned there and found that she had otherwise told the truth about her history and circumstances. The judge was satisfied that the appellant did not have the right to live in Jordan or the USA and that she had been attacked by her maternal uncle and came to the UK for protection. The judge did not find that the appellant’s lies about her time in the USA were sufficient to outweigh the strength and credibility of the rest of her account and was satisfied that the appellant remained at risk of honour based violence on return to Iraq. The judge concluded that the appellant was at risk as a member of a particular social group and was entitled to be recognised as a refugee.

7. The respondent sought permission to appeal the decision on the sole ground that the judge had erred by failing to resolve the issue of whether the appellant had current legal status in the USA, by ignoring the full content of the communication from the American authorities which the respondent had produced and by failing to contact the American authorities herself to prove her position, in line with the guidance in MA (Ethiopia) v Secretary of State for the Home Department [2009] EWCA Civ 289 and ST (Ethnic Eritrean - nationality - return) Ethiopia CG [2011] UKUT 252. The grounds assert that that issue was inextricably linked to any subsequent credibility assessment surrounding potential persecution in Iraq.

8. Permission was initially refused by the First-tier Tribunal but was subsequently granted in the Upper Tribunal on a renewed application, on the following basis:

“It is arguable that the judge erred, when considering this asylum appeal, in approach to the appellant’s entitlement to legal status in the USA and see [12], [15], [34] and [35] of the determination. It is arguable the judge erred in relation to the burden of proof and erred in failing to address properly relevant evidence when assessing the appellant’s current ‘permanent’ legal status in the USA and failed to properly consider/apply the principles in MA(Ethiopia) 2009 EWCA Civ 289 and ST (Ethnic Eritrean-Nationality-Return) Ethiopia CG [2011] UKUT 52. “

9. The matter came before us and we heard submissions from both parties.

10. Ms Ahmed relied on the grounds. She submitted that the judge had erred by focussing on the generic evidence in the USA legislation which provided a general position, rather than focussing on the evidence provided by the respondent in the form of the statement from Barbara Stubbs relaying information from the USA Department of Homeland Security about the appellant in particular and confirming that she “has” legal permanent resident status in the USA. In response to our enquiry as to the relevance of the appellant’s status in the USA if she was to be removed to Iraq, Ms Ahmed said that the refusal decision had also referred to it being reasonable for the appellant to seek protection in the USA. There was some discussion about the relevance of the guidance in SA (Removal destination, Iraq, Undertakings) Iraq [2022] UKUT 37 in that regard. Ms Ahmed submitted further that the grounds also challenged the overall credibility assessment made by the judge which was inextricably linked to the assessment of the appellant’s status in the USA, and that if the error was found to be made out, a fresh credibility assessment needed to be made in the case.

11. Mr Aziz submitted that the judge had made no error at all as she had provided a detailed account of why the appellant did not have the right to reside in the USA based upon the evidence before her. Mr Aziz pointed out that the evidence upon which the respondent relied was not direct confirmation from the USA Department of Homeland Security, but was simply a witness statement from the Home Office. He submitted that the appellant had provided sufficient evidence to show that she would be treated as having abandoned her USA residence status, as would be the case in the UK.

12. Ms Ahmed, in response, reiterated that the judge had found that the appellant had lied about her USA residence status and that there had been no challenge to that finding.

Analysis

13. We do not agree with the respondent that the judge failed to resolve the issue of the appellant’s status in the USA and neither do we agree with the respondent that she ignored the full content of the communication from the American authorities. The judge did not only refer to the statement from Barbara Stubbs at [12] of her decision, but she also fully addressed it at [33], acknowledging that the statement referred to the appellant as having permanent settled status in the USA. The judge considered, however, that the unchallenged evidence produced by the appellant citing USA legislation confirmed that that status would be treated as abandoned in the event of her several years of absence. As Mr Aziz pointed out in his submissions, the statement from Barbara Stubbs was not a direct confirmation from the USA Department of Homeland Security, but was a statement from a Home Office official following communications with the Department of Homeland Security. It did not directly address the issue of the appellant’s status following a lengthy absence and it did not confirm that she was entitled to return to the USA without more. The information from the US Citizenship and Immigration Services, albeit guidance rather than the actual legislation, made clear, however, that the appellant would most likely have lost her permanent resident status, as was the appellant’s own evidence, and as indeed would have been the case in the UK in similar circumstances. We find no reason to conclude that the judge erred in according the weight that she did to that evidence and in reaching the conclusion that she did.

14. The respondent relies upon the cases of MA (Ethiopia) and ST (Ethiopia) in asserting that the burden of proof lay upon the appellant to show that she was not entitled to US residence by taking all the necessary steps to prove her lack of entitlement, and that she had failed to discharge that burden. The appellant’s circumstances, however, are different, as those cases involved entitlement to nationality of a country whereas there is, in the appellant’s case, no question of any other nationality aside from Iraqi nationality. Furthermore the judge was entitled, in our view, to conclude that the evidence produced by the appellant from the US Citizenship and Immigration Services was sufficient for her to have discharged the evidential burden. We therefore find no merit in the grounds in that regard.

15. Even if we are wrong about that, however, we do not consider that that is a material factor which would lead to the judge’s decision having to be set aside. As we raised at the hearing, the refusal decision made it clear that the respondent was proposing to remove the appellant to Baghdad. Although the respondent referred earlier in the decision to it being considered reasonable for the appellant to seek the protection of the USA authorities, the proposed place of removal was nevertheless to Iraq and it was that which was considered by the judge. There was some discussion about the relevance of the decision in SA (Removal destination, Iraq, Undertakings) Iraq [2022] UKUT 37. In that case the Upper Tribunal held that ‘removal’ in section 84 of the Nationality, Immigration and Asylum Act 2002 referred to enforced removal, and discussed the implications of an ability to return voluntarily to another part of the country. However, as with MA, we consider the circumstances in that case to be different. In any event, there was no question of the respondent contemplating the removal of the appellant to the USA.

16. Having thus considered the place of removal to be Iraq, the judge gave detailed and cogent reasons as to why the appellant could not be removed to that country. None of those reasons were challenged in the grounds of appeal and neither was there any challenge to the judge’s conclusion on risk on return other than in relation to the issue of the appellant’s status in the USA. Ms Ahmed sought to argue before us that there was in fact a wider credibility challenge in the grounds, where it was asserted that the issue of whether the appellant had current legal status in the USA was inextricably linked to any subsequent assessment surrounding potential persecution in Iraq. However we do not consider that to amount to a general challenge by the respondent to the judge’s findings of fact. The judge accepted that the appellant had lied about her status in the USA and that was specifically factored into her credibility assessment, as can be seen at [34] and [35]. Accordingly even if she erred in her assessment of the appellant’s status in the USA (which we do not consider that she did), that in no way undermines her clear and comprehensive findings on the other aspects of the appellant’s claim, in relation to her past experiences and the risks she would face on return to Iraq.

17. For all of these reasons we find no merit in the grounds. The judge’s decision is a detailed and careful one, which followed a full analysis of the evidence and included cogently reasoned findings. The judge reached a decision which was properly open to her on the basis of the evidence before her. The grounds do not identify any material error of law in her decision.

18. Accordingly we dismiss the Secretary of State’s appeal and uphold the judge’s decision.

Notice of Decision

19. The making of the decision of the First-tier Tribunal did not involve a material error on a point of law requiring it to be set aside. The Secretary of State’s appeal is dismissed and the First-tier Tribunal’s decision to allow the appellant’s appeal stands.

Signed: S Kebede
Upper Tribunal Judge Kebede

Judge of the Upper Tribunal
Immigration and Asylum Chamber

23 April 2025