Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005486

First-tier Tribunal No: IA/00717/2024

THE IMMIGRATION ACTS

Decision and Reasons Issued:
On the 07 April 2025

Before

UPPER TRIBUNAL JUDGE BRUCE
DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

RM
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms J Blockley, counsel, instructed by the Ethnic Minorities Law Centre
For the Respondent: Ms E Blackburn, Senior Home Office Presenting Officer

Heard at 52 Melville St, Edinburgh, 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
1. We make an anonymity direction because this appeal arises from the appellant’s protection claim.
2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Gillespie, dated 24/07/2024, which dismissed the Appellant’s appeal on all grounds.
Background
3. The Appellant is an Iraqi Kurd who arrived in the UK on 21/12/2021 and claimed international protection on arrival. The Respondent refused the Appellant’s application on 15/11/2023.
The Judge’s Decision
4. The Appellant appealed to the First-tier Tribunal. On 24/07/2024 First-tier Tribunal Judge Gillespie (“the Judge”) dismissed the Appellant’s appeal.
5. The Appellant lodged grounds of appeal, and, on 13/12/2024, Upper Tribunal Judge Hoffman granted permission to appeal. He said
(4) The appellant raises three grounds of appeal. First, he argues that the judge failed to properly consider the documentary evidence before him. Second, he argues that the judge erred in finding that the appellant should have provided information about his work colleague during his asylum screening interview. And, third, he argues that the judge made speculative findings at [22] about the circumstances in which the PMF man was attacked.
(5) While the judge made several adverse credibility points, not all of which are challenged, I am satisfied that all of the grounds are, at the least, arguable for the reasons given by the appellant. In fact, it appears from reading the decision that there may be more circumstances in which the judge arguably impermissibly speculated on aspects of the case: see, for example, [24], [25] and [29].
The Hearing
6. For the appellant, Ms Blockley moved the grounds of appeal. She told us that the Judge took the wrong approach when dealing with the documentary evidence, and so materially erred in law. Ms Blockley told us that the documentary evidence supports the appellant’s account but is excluded from the Judge’s assessment of credibility. She took us to [28] of the decision and told us that, there, the Judge finalises his credibility findings before turning his attention to the documentary evidence. She said the Judge excluded consideration of supporting documentary evidence.
7. Ms Blockley relied on the guidance given in AR [2017] CSIH 52 and AM (Afghanistan) v SSHD [2018] 4 WLR.
8. Moving the second ground of appeal, Ms Blockley told us that the Judge took the wrong approach to the screening interview and did no more than play lip-service to the guidance given in YL (China).
9. Turning to the third ground of appeal, Ms Blockley said that the Judge relied on speculation when considering the appellant’s credibility. She referred to the respondent’s rule 24 response, which accepts that the Judge strays into speculation. She asked us to dismiss the appeal and remit the case to the First-tier Tribunal to be determined of new.
10. Ms Blackburn formally moved opposition to the appeal and relied on the respondent’s 24 note. She took us to [26] and [27] of the decision and said that the Judge’s findings there are not simply findings on credibility. Ms Blackburn told us that, there, the Judge considers background evidence as well as the appellant’s evidence.
11. Although maintaining resistance to the appeal, Ms Blackburn conceded that there is difficulty with the order in which the Judge has dealt with the evidence.
Analysis
12. At [14] of the decision, the Judge says that it is the totality of the evidence that is to be assessed. Unfortunately, the decision creates the appearance that the Judge did not properly assess the totality of evidence.
13. At [8] of the decision the Judge notes that the documentary evidence includes an arrest warrant and a statement from the appellant’s former employer. We can see from the First-tier Tribunal appeal bundle that the documentary evidence also includes a detailed statement from the appellant’s Iraqi lawyer, and a letter from the Mayor of the appellant’s hometown.
14. We cannot see any reference in the Judge’s decision to the detailed letter from the appellant’s Iraqi lawyer or the letter from the Mayor. Neither of those detailed, relevant, supporting pieces of evidence have been analysed by the Judge.
15. Between [18] and [21] the Judge considers the transcript of screening interview and finds elements which damage the appellant’s credibility. The Judge remind himself of the guidance given in YL (China) and then does not apply that guidance. Instead, after emphasising the contents of the screening interview as a determinative strand of evidence, the Judge finds that the absence of specific detail in the screening interview damages the appellant’s credibility.
16. The Judge starts [22] of the decision by declaring that a plausibility finding is coming. The Judge then explains that he finds the appellant’s account of the violent death of a PMF member at the hands of the appellant’s colleague to be implausible because of the lack of evidence of a “frightful commotion”. The problem with the Judge’s findings there is that the there was no evidence before the Judge from which he could draw the conclusion that events unfolded in a different way. The Judge relies on speculation and preconception, rather than an analysis of the evidence placed before him.
17. Between [18] and [27], the Judge disbelieves the appellant’s account. He looks at the screening interview, considers the appellant’s account given in the asylum interview, his witness statement and the oral evidence, and finds that certain aspects of the appellant’s account are implausible, that elements of the appellants evidence are “unsatisfactory”, and bemoans the lack of explanation for parts of the appellant’s account.
18. It is only then, after rejecting the appellant’s account as incredible, that the Judge considers the documentary evidence. That is wrong. The documentary evidence should have been considered as part of the overall holistic assessment of credibility (AR [2017] CSIH 52 (paragraph 34))
19. The only assessment of the documentary evidence is at [28] & [29] of the decision. There, the Judge only makes reference to
the material from the Iraqi lawyer
He does not consider each of the documents placed in evidence. He does not analyse the documents.
20. The Judge concludes [28] of the decision by saying
I have carefully considered it against the defendant’s subjective evidence and the many impairments therein and am not persuaded I can place weight on it.
21. It’s a shame that a clerical slip found its way into the promulgated decision. The Judge was talking about the appellant’s evidence.
22. In the final sentence of [28], the Judge says that he had already made a decision about the appellant’s credibility before turning his attention to the documentary evidence. That is a material error in law.
23. Because the decision is tainted by a material error of law it is set it aside.
24. A fresh hearing in the First-tier Tribunal is necessary.

Remittal to First-Tier Tribunal
25. Under Part 3 paragraph 7.2(b) of the Upper Tribunal Practice Statement of the 25th of September 2012 the case may be remitted to the First-tier Tribunal if the Upper Tribunal is satisfied that:
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party’s case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
26. The case should be remitted because a new fact-finding exercise is required. None of the findings of fact are to stand and a complete re-hearing is necessary.
27. This case is remitted to the First-tier Tribunal sitting at Glasgow to be heard before any First-tier Judge other than Judge Gillespie. A Kurdish Sorani interpreter will be required.
Decision
The decision of the First-tier Tribunal errs materially in law.
The Judge’s decision dated 24 July 2024 is set aside.
The appeal is remitted to the First-tier Tribunal to be determined of new.

Signed Paul Doyle Date 3 April 2025
Deputy Upper Tribunal Judge Doyle