Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005442

First-tier Tribunal No: PA/00080/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 19th of June 2025

Before

UPPER TRIBUNAL JUDGE O’BRIEN
DEPUTY UPPER TRIBUNAL JUDGE NAIK KC

Between

RF
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Berry, one of His Majesty’s Counsel.
For the Respondent: Mr E Tufan, Senior Presenting Officer

Heard at Field House on 3 April 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. I confirmed with the parties whether there were any objections to Ms Naik KC hearing this appeal as part of the panel. There were none.
2. The appellant appeals against the decision of the First-tier Tribunal dismissing his appeal against the respondent’s refusal of his protection and human rights claim. The appellant’s claim in a nutshell was that he had been discovered in a sexual relationship with the wife (‘Shirin’) of a powerful figure in the IKR (‘Khalid’). It was accepted by the respondent that, if the appellant’s account were true, he would not have sufficiency of protection or be able to relocate internally. However, the respondent did not accept the truth of the account. Whilst finding some of the account plausible and credible, the First-tier Tribunal Judge (‘the Judge’) found others not to be, and for the latter to have fatally damaged the credibility of the account overall. The Judge also rejected the appellant’s claim to be at risk on return because of a lack of identity documents.
The Issues
3. The grounds of appeal assert in summary that the Judge: failed to give adequate reasons why the appellant would be able to redocument himself, in light of evidence showing that CSIDs were no longer valid and the need to bear one to pass through checkpoints; and reached credibility findings unsupported by the evidence and/or not rationally relevant to the issue of credibility and/or without giving the appellant the opportunity to address them.
4. Whilst not limiting the grounds on which she gave permission, Upper Tribunal Judge Rastogi specifically identified the Judge’s rejection of the appellant’s account of obtaining an agent as arguable. She also considered the appellant’s challenge to the Judge’s findings on redocumentation to be dependent on an error being found in the Judge’s assessment of credibility.
5. Mr Berry produced a helpful skeleton argument which he supplemented orally. In short, he accepted our observation that his procedural unfairness argument was in some difficulty given that the appellant had not asked for a recording or transcript of the hearing. However, he submitted that the Judge had not clearly explained whether the claimed sexual advances had been accepted. He further submitted that the matters found by the Judge to be implausible and damaging to the appellant’s credibility constituted nothing more than the Judge’s own view reached without any evidential basis. He submitted that the redocumentation ground was capable of standing alone; the Judge had given inadequate reasons for concluding that the appellant could redocument himself even with the help of his family.
6. Mr Tufan argued in short that the judge’s findings were all rational and reasonably open to him. In particular, the Judge was entitled to find that some of what the appellant claimed was so improbable as to be unbelievable. As for redocumentation, there was no evidence that the appellant would need identification to travel between the airport to which he would be returned and his local Civil Status Affairs Office.
Consideration
7. Having directed himself that the appellant need not be believed in every aspect of his claim in order to be believed, applying the lower standard of proof, the Judge said the following at [27]:
“27. The Appellant was only given that [sic] a short substantive asylum interview, running to 55 questions and answers. He is dependent upon a significant number of factors being found to be credible. These include that:

a) Khalid’s wife would behave as she is said to have done knowing how her actions would be viewed in terms of “honour”;
b) he was shot at but not hit;
c) he was not followed to his friend’s house;
d) the friend was able to obtain the Appellant’s passport from his family home;
e) he (or his father) was also able to find and presumably pay for an agent within a few hours so that he could leave within the day;
f) his phone was lost en route;
g) his passport was taken from him;
h) he could leave unhindered; and
i) he cannot contact his parents.”
8. At [28], the Judge noted that the respondent appeared to accept that Khalid was head of his tribe and had ‘some power and influence’. At [29], the Judge then set out his headline conclusions on the factors above:
“29. I bear this in mind when considering the nine factors I have set out above. Examining each of the factors set out above in a) to i), I consider almost all of them are not wholly implausible. Having said that, I comment on them as follows:

a) As the wife of an important and influential person, Shirin (the woman concerned), may be assumed to understand the cultural norm that her behaviour in seeking sex from her employee, would be regarded most seriously as a matter of dishonour. Having said that, people who are upset by no means always act rationally;
b) it is quite possible for someone fleeing the scene to be shot at but not hit or injured in any way;
c) the Appellant says he managed to pick up a taxi but I find it highly unlikely that there would not be some vehicle in which one or more guards could and would have followed him in;
d) I have presumed that the Appellant’s friend lives no more than about 90 minutes from his house as well as where he was working (the Appellant’s account) and it is possible for him to have made the journey to the house, obtain the passport there and return within a period of about three hours;
e) the Appellant has given no account of how the agent was found, the large sum that must have been paid or how that money was obtained – I find this aspect of the account much less credible than others. My conclusion is that everything here points towards pre-arrangement;
f) I regard it is highly convenient that the Appellant lost his phone en route;
g) on the other hand, if he were in the hands of an agent, there would be value to the agent in the passport and that aspect of the claim is more plausible and credible;
h) if the Appellant is correct in what he says about the very limited time between the events at his place of work and him leaving the country – effectively within the day – that he left unhindered is not implausible;
i) I do not accept that he lost his phone and could not contact his parents. I specifically note that it was his evidence that his father was able to contact the agent and this contradicts his assertion that his parents were not good with modern technology.”
9. After observing at [30] that the appellant’s refusal to give the respondent details of his journey to the United Kingdom ‘does not assist in establishing the credibility of his account’, the judge gives further consideration to some of the 9 factors at [31]:
“31. In my assessment, it is very unlikely that a woman in Shirin’s position would act as she is said to have done but not impossible. I do not consider that the Appellant has begun to demonstrate that could be spirited out of the country within 24 hours with the help of an agent who would have had to have been paid a considerable amount of money. I find as a fact that this was not so. In the circumstances, there would have been a prearranged departure after sufficient money had been gathered to pay the agent. The fact that the Appellant says his passport was taken is plausible but when put together with the loss of the ‘phone and the claimed inability to contact parents, I conclude that even applying lower standard, I do not accept these aspects his claim.”
10. The Judge therefore clearly rejects e), f), g) and i). The remaining factors, except a), the Judge appears to accept. As for a), it is entirely unclear whether the Judge found that it was so unlikely that Shirin would have entered into a sexual relationship with the appellant, notwithstanding her claimed emotional state, that it had not happened, or alternatively whether it being ‘not impossible’ gave rise to a real possibility that the appellant’s claim was true. Whether a sexual relationship existed between the appellant and Shirin is the keystone of the appellant’s case. The Judge’s failure to make a clear finding on a), or to resolve the clear tension in his reasoning on the point, we find to be an error of law.
11. In any event, the Judge’s conclusion on e), that an agent was found for the appellant within 24 hours, is reached without any reference to evidence. Instead, it appears simply to be something which, to the Judge, did not seem plausible. That in itself is in our judgment an error of law. We note in any event that, given the volume of appeals which come before First-tier Tribunal from Iraqis who have used agents to leave, often at relatively short notice, it was an error of law for the Judge not at least to explain his reasoning given his reliance on this factor.
12. The errors above go to the heart of the Judge’s credibility assessment. Indeed, the Judge makes clear in the passages quoted above the importance he placed on e) in particular. We are unable in the circumstances to find that any of the Judge’s findings of fact are safe. Consequently, we set aside the decision and conclude that it is necessary to remit the appeal to the First-tier Tribunal to be heard afresh by a different judge.
Notice of Decision
1. The decision of the First-tier Tribunal involved the making of an error of law and is set aside.
2. The appeal is remitted to the First-tier Tribunal to be heard afresh by another Judge with no findings of fact preserved.

Sean O’Brien

Judge of the Upper Tribunal
Immigration and Asylum Chamber

16 June 2025