Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2024-005124
UI-2024-005386

First-tier Tribunal No: PA/01687/2024

THE IMMIGRATION ACTS

Decision and Reasons Issued:
On the 07 April 2025

Before

UPPER TRIBUNAL JUDGE PERKINS
DEPUTY UPPER TRIBUNAL JUDGE KIRK

Between

RA
(ANONYMITY ORDER IN FORCE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Gajjar, Counsel, instructed by Mamoon Solicitors
For the Respondent: Ms A Everett, Senior Home Office Presenting Officer

Heard at Field House on 13 February 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.
We make this order because the appellant seeks international protection and publicity might endanger his safety.

DECISION AND REASONS
1. This is an appeal by a citizen of Iraq against a decision of the First-tier Tribunal dismissing his appeal against a decision of the respondent on 15 March 2024 refusing him international protection.
2. The appellant has previously been refused international protection and appealed unsuccessfully against that decision. That appeal was determined by First-tier Tribunal Judge Jarvis in a decision dated 5 May 2022.
3. It is a major element of the appellant’s case that the First-tier Tribunal did not apply properly the rule in Devaseelan v SSHD [2002] UKIAT 702 and we therefore find it necessary to consider at least in outline Judge Jarvis’s Decision and Reasons. Judge Jarvis, correctly, identified the appellant as a national of Iraq born in 1993 who based his claim on his being a member of the PUK and his father being a military commander in the civil war in 1995 who was accused of killing a relative of a prominent KDP official. It was the appellant’s case that his father was arrested, mutilated and killed by the KDP. The appellant said that he was at risk of a revenge attack. Judge Jarvis did not believe the appellant’s story. One of the reasons for not believing the appellant was a change in his account and evasive answers. Another reason was his failure to mention any concerns about the KDP at his screening interview and there being no medical evidence to confirm his claim that a finger had been paralysed, an occurrence that the appellant advanced as a reason for giving unsatisfactory answers in his asylum interview. Judge Jarvis also found the appellant untruthful in his account of his leaving Iraq because he had changed his account in several ways.
4. Permission to appeal was given by the First-tier Tribunal on limited grounds and then, effectively, on all grounds by the Upper Tribunal. It is because there was an application for permission to appeal on all grounds to the Upper Tribunal that the appeal has attracted two case numbers. There is only one appeal before us. Although both parties offered us considerable assistance we are particularly grateful to Mr Gajjar for his mastery of a bundle of about 884 pages. His ability to locate items in the bundle and help us find them did much to make for a smooth hearing.
5. Although we have of course considered the written grounds, both those upon which the First-tier Tribunal gave permission and the essentially similar grounds on which the Upper Tribunal gave permission on all points, Mr Gajjar said there were essentially three points to his appeal. First, the hearing was unfair because of inadequate translation, second the judge did not have proper regard to supporting evidence from an organisation known as Dakok and third the judge did not have proper regard to the evidence of a Dr Razia Hussain who is a consultant psychiatrist in the employment of a National Health Service Trust and who prepared a report dated 28 June 2024. Clearly this report was not before Judge Jarvis.
6. We deal first with the contention that there was a procedural irregularity because of misinterpretation. This point is not made out. The appellant gave evidence before the First-tier Tribunal in the Kurdish language which was translated into English by a Tribunal appointed interpreter. The quality of the translation was criticised in a signed statement from a “paralegal” in the employment of the appellant’s solicitors who attended the hearing in the First-tier Tribunal as part of his training. He said that he is fluent in English and Kurdish and then said:
“… I noticed that on several occasions, the interpreter made significant errors in translation that could have adversely affected the Appellant’s understanding of the proceedings.
5. Specifically, at on [sic] the topic where the uncle and aunt of the Appellant was mentioned the interpreter translated several incidents of interactions incorrectly. This was not an accurate representation of what was said; this led to confusion among those present, including the Appellant and the judge.
6. I observed that the interpreter seemed flustered and did not ask for clarification when it was clear that the translations were not being understood. This could potentially impact the fairness of the trial, as accurate communication is essential for all parties involved”.
7. When the First-tier Tribunal refused permission to appeal on one of the grounds relied upon the judge refusing permission said:
“The Appellant also argues that there was an issue with the interpreter which was highlighted to the IJ during the appeal hearing. There is no reference in the determination to any issues arising. A paralegal employed by the Appellant’s solicitors who speaks Kurdish Sorani, was present and provides a witness statement regarding this. Without further detail regarding how and when this was raised with the IJ during the appeal hearing, I do not find that there is sufficient to indicate that this is an arguable point”.
8. As far as we can ascertain the point never was taken in the hearing before the First-tier Tribunal. The contrary suggestion is, we find, simply a mistake by the judge considering the permission application and is not a reflection of any bad faith on anyone’s part. However, we agree with the First-tier Tribunal’s observations that the criticism lacks detail. The problem is not that it was not raised at the hearing although it is perfectly appropriate and even desirable where there is a serious objection to a translation to take the point at the first possible opportunity, but to the vague way in which it is described.
9. We understand the person making the statement was then extremely inexperienced and was on one of his very first visits to a hearing. We understand that he may not have known how or have had the confidence to tell the appellant’s representative there was a problem with interpreting but we find nothing in the criticism that actually explains the alleged problem. It is opinion evidence not supported by detail. The difficulty is that we cannot look at that statement and work out what is said to have gone wrong. It is not said, for example, that the appellant said one thing and the translator wrongly reported him saying something else. There is nothing in the decision that confirms the suggestion that there were difficulties at the hearing and although we take very seriously suggestions that a translator for whatever reason did not perform satisfactorily we cannot make anything of this point except to notice that the criticism was made in a statement. The criticism is not sufficiently detailed to be checked in any way and we have a high expectation of the judge recording in his Record of Proceedings or Decision and Reasons the fact that the evidence was becoming incongruous or there were other signs of confusion with the translator. We do not suggest that the appellant’s solicitors’ “paralegal” is being dishonest or deliberately unhelpful but he has made a proposition that cannot be tested and the position was not improved when permission was sought on further grounds. This point is manifestly not made out. The contention that there is any error of law arising from mistranslation is not supported by the evidence.
10. We consider now the evidence relating to the Dakok letter. The letter is dated 9 August 2024 and so clearly was not before Judge Jarvis. The letter explains that Dakok grew out of the Kurdish Activists Council in UK and sees its role as generally promoting the cause of Kurdish people and being concerned particularly with human rights abuses in Iraq and Kurdistan. Membership is open to “all members of the Kurdish community hailing from Iraq, Iran, Turkey, and Syria who align with our aims and objectives and are committed to voluntary participation in our initiatives and activities”.
11. The letter confirms that the appellant is “an active member of the organisation and has been participating in more than 9 activities of the Kurdish community in Manchester, and three in London, protesting against human rights abuses in Iraqi Kurdistan and against corruption of the ruling parties, PUK and KDP”.
12. It continues that:
“… we are certain that [the appellant] or any of our members in the UK will face persecution and harmed (sic) if ever be returned to Iraq or KRG due to their activities”.
13. The First-tier Tribunal was not impressed with this letter. The judge considered the Dakok letter particularly from around paragraph 22 of the Decision and Reasons and noted the evidence that the appellant had attended a number of demonstrations but concluded that the appellant had not shown that he was a political activist or that he had a high profile. The judge said that the support from Dakok did not:
“… persuade me that the appellant is a genuine opponent of the IKR government or would be perceived as such on return.”
14. We see no reason why the judge could not reach this conclusion.
15. The judge clearly looked at the evidence rather carefully and found that the appellant had not shown that he had played any kind of prominent role or that he had increased his activities since the case was heard by Judge Jarvis. The judge found no evidence that the appellant had changed his beliefs in a way that would make him more active in the event of his return.
16. The judge relied on material in the CIPIN Iraq dated July 2023 that indicated that there was no evidence that low level supporters generally risked ill-treatment in the event of return. We find that this represents a balancing of evidence where the clear but not explained opinion in the Dakok letter is weighed against the more measured position in the documents leading to the CIPU Note. We do not agree there is an error of law here.
17. This leaves the report of Dr Hussain. Mr Gajjar, appropriately, drew our attention to parts of the report that were favourable to the appellant. Dr Hussain listed the “presenting complaints”. The appellant said that he had been suffering from anxiety and depression since his trouble started in Iraq. He complained of low mood and being anxious and he “reported feelings of hopelessness and stated that he has lost interest in pleasurable activities (anhedonia)”.
18. Under the heading “Mental State Examination” Dr Hussain said that the appellant’s symptoms:
“… fulfil the criteria of Mixed Anxiety and Depressive Disorder, due to his social and personal circumstances. MAD is classified as F41.2 under the ICD-10 classification of Mental and Behavioural Disorder. The ICD-10 is a manual of standardised diagnostic psychiatry, behavioural and personality criteria used by British and European Psychiatrists to categorise mental illness and psychiatric syndromes”.
19. It then goes on to explain something about depression. It recommended that the appellant receive antidepressants and treatment such as Cognitive Behavioural Therapy. What we are not able to do is to look at that report and see any diagnosis that would support there being a medical explanation for the appellant’s unsatisfactory answers in his interview and dealings with the authorities that were considered by Judge Jarvis. The report is clearly not as helpful to the appellant as the appellant and his advisors might have hoped.
20. The difficulty is that as far as we can see the report has not been considered at all. The First-tier Tribunal Judge went to the trouble of listing the new material that was before him and did not identify this report. This is clearly undesirable and may even be an error of law in itself although not necessarily a material one. Mr Gajjar argued that the problems that are identified (to the extent that they were – the medical report refers to problems reported by the appellant but does not clearly endorse them) should be used to consider if the conclusions made to Judge Jarvis without any knowledge of these problems could still be said confidently to be sound.
21. Mr Gajjar did not, as we understand it, argue that the case was necessarily strong but it did require proper evaluation of the evidence and that had just not taken place. Ms Everett recognised that the failure to consider material evidence on the face of it seems like an error of law but repeated that it had not been shown to be a material error if it were an error at all. With respect, she is right.
22. This is a very, very narrowly balanced case but after reflection we cannot say with confidence that proper consideration of the medical evidence could not have led to a judge finding a different light had been cast on the matters that led to Judge Jarvis’s adverse findings. We are hesitant but we are not allowed the luxury of indecision and we are just persuaded that this amounts to a material error. The error cannot be remedied without a further hearing because credibility, at least usually, has to be evaluated “in the round”.
23. We find the First-tier Tribunal erred by not considering the evidence that was before it. We set aside the decision and direct that the case be redetermined before another judge in the First-tier Tribunal. No findings of any kind have been preserved.
Notice of Decision
24. The First-tier Tribunal erred. We set aside its decision and direct that the case be heard again in the First-tier Tribunal.

Jonathan Perkins

Judge of the Upper Tribunal
Immigration and Asylum Chamber

3 April 2025