Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005570

First-tier Tribunal No: PA/55941/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

8th April 2025

Before

UPPER TRIBUNAL JUDGE LINDSLEY
DEPUTY UPPER TRIBUNAL JUDGE BARTLETT

Between

NK
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Imamovic, of Counsel, instructed by Kings Law Solicitors Ltd For the Respondent: Mrs A Nolan, Senior Home Office Presenting Officer

Heard at Field House on 1 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
Introduction
1. The appellant is a citizen of Iraq of Kurdish ethnicity born in 1992. He says that he is from Koya in Iraqi Kurdistan, a town which lies between Erbil and Sulaymaniyah. He came to the UK in February 2016 and claimed asylum based on fear of his brother’s wife’s family who accuse his family of assisting her to leave Iraq to be with his brother against their wishes and due to false accusation made against him of trading oil with ISIS. His claim was refused in August 2016, and his appeal was dismissed by Judge of the First-tier Tribunal Graham in 2017. In January 2020 the appellant made further submissions which were refused with a right of appeal in March 2020. His appeal against this decision was dismissed by First-tier Tribunal Judge Young-Harry in April 2021. He made a further fresh claim on 7th February 2023, which was refused with a right of appeal in the decision of the respondent dated 19th July 2023. The appellant’s appeal against this third decision was dismissed by the First-tier Tribunal Judge Buckwell after a hearing on the 27th September 2024.
2. Permission to appeal was granted by Upper Tribunal Judge Reeds on 9th December 2024 on the basis that it was arguable that the First-tier judge had erred in law as per paragraph 12 of the grounds of appeal on the basis that there were no findings made on the appellant or his brother’s evidence despite the fact that they attended the First-tier Tribunal and gave oral evidence. It is found to be arguable that this evidence ought to have been balanced with the negative credibility findings of the previous First-tier Tribunals in 2017 and 2021. It was not found to be arguable that the First-tier Tribunal erred when it placed reliance on the expert report of Dr Fatah, put in evidence by the appellant before the First-tier Tribunal but explicitly not relied upon at the appeal by the appellant, however the grant of permission was not formally limited so we accepted that all grounds could be argued before the Upper Tribunal.
3. The matter now comes before us to determine whether the First-tier Tribunal had erred in law, and is so whether any such error was material and whether the decision of the First-tier Tribunal should be set aside.
Submissions – Error of Law
4. In the grounds of appeal and in oral submissions from Ms Imamovic it is argued, in short summary, that the First-tier Tribunal erred in law as follows.
5. It is firstly argued, that the First-tier Tribunal erred by failing to properly assess the unchallenged witness evidence of the appellant and his brother, and to determine what weight should have been given to that witness evidence when assessing the credibility of the appellant’s protection claim. It is argued that applying Ullah v SSHD [2024] EWCA Civ 201 that failure to cross examine a witness must be relevant as a Tribunal cannot be asked by a party to reject evidence that was not subject to challenge. It is argued that what is said at paragraph 44 of the decision about the other evidence overriding that of the appellant’s brother’s evidence is insufficiently reasoned. It is argued that the witness evidence of the appellant’s brother went to how the peshmerga letter was obtained and was new evidence, and that it was supported by other witness evidence from SN and AR, although it is accepted that these witnesses did not attend the First-tier Tribunal. It is argued that any issues of a lack of credibility on the part of the appellant arising out of the past decisions of the First-tier Tribunal ought to have been assessed in the context of the appellant’s explanations for those inconsistencies in his new witness statement.
6. Secondly, it is argued that the First-tier Tribunal erred by relying solely on the report of Dr Fatah, and by failing to consider the evidence, including the witness evidence, in the round. Whilst it was accepted that it was open to the Tribunal to place weight on the report of Dr Fatah it was not lawful for the First-tier Tribunal to close its mind to other evidence and not place all the evidence in the balance.
7. Thirdly, it is argued, that the First-tier Tribunal erred in law by failing to consider the documentation issue lawfully, as, it is argued, the appellant would be at risk on return to Iraq as he only has a copy of his CSID (this was checked with Mrs Nolan and as far as she could see the records of the respondent show that they have only ever seen a copy of the CSID). It was argued that SMO(2) – SMO & KSP (civil status documentation; article 15) Iraq CG [2022] UKUT 110 and the CPIN “Iraq: Internal relocation, civil documentation and returns”, Version 14, October 2023 (hence forth the CPIN) provided the First-tier Tribunal with evidence that the appellant would have to cross checkpoints within the IKR if returned, as is proposed by the respondent to Erbil or Sulaymaniyah, and so would be at Article 3 ECHR risk on return whilst travelling to his home area of Koya due to lack of documentation. It is argued that what is said at paragraph 45 of the decision simply endorses the previous decisions of the First-tier Tribunal and does not properly assess the real risk of serious harm on the basis of insufficient documentation on the basis of the current evidence on this issue.
8. There was no Rule 24 notice but Mrs Nolan argued that the decision of the First-tier Tribunal contains no errors of law. She argued that in relation to the first contended error that the First-tier Tribunal Judge did not need to engage with the appellant’s explanation as to why the previous judges were wrong as these were preserved findings that had not successfully been appealed and the appellant had been found to be a non-credible witness and so further explanations from him took the matter no further. Mrs Nolan pointed out that the appellant’s brother had given evidence before Judge Graham in 2017 and had also been found not to be a credible witness with respect to the core of the appellant’s claim. She argued that whilst his new witness statement was concerning a new document it was open to Judge Buckwell to prefer the evidence of the respected expert Dr Fatah, that the new peshmerga documents were not genuine, as is done at paragraph 44 of the decision. Weight to be given to evidence is always a matter for the judge.
9. It is argued for the respondent that the evidence was considered in the round by the First-tier Tribunal, and thus that the second ground also cannot succeed. The decision of Judge Buckwell gives detailed reasoning as to why weight is to be given to the report of Dr Fatah, and makes it clear that the other witness statements, given by people who did not attend the hearing, were considered when making the decision, and that ultimately the report of Dr Fatah is rationally found to outweigh the other evidence, including that of the appellant’s brother.
10. It is argued that the decision of the First-tier Tribunal does not err when finding there is no risk of serious harm as a result of the position of the appellant with respect to civil status documentation. The fact the appellant has family means that he will be able to document himself in accordance with the process set out at 5.1.3 of the CPIN as a Kurd returned to Erbil or Sulaymaniyah It is noted that the information in this paragraph derives from the respected expert Dr Fatah. It was also noted that the appellant himself did not in fact even argue he was at risk due to lack of documentation as per paragraph 53 of his statement where he says he: “never wanted to claim that I cannot return because I would not be able to obtain my Iraqi IDs.”
Conclusions – Error of Law
11. With respect to the first ground, that there was a failure to give weight to the oral evidence of the appellant and his brother, it is clear from paragraph nine of the decision that both the appellant and his brother RK gave oral evidence in support of their written witness statements through the interpreter at the hearing before the First-tier Tribunal. It is also clear that RK and the appellant were not subject to cross-examination by the respondent’s representative from what is said at paragraphs 27 and 29 of the decision. The evidence of the appellant’s brother about the obtaining of the peshmerga letter was also supported by two additional pieces of evidence in the form of unsigned statements from AR and SN. We find that these documents were considered as the First-tier Tribunal confirms that all documentation was considered whether or not referred to at paragraph 36 of the decision.
12. The First-tier Tribunal rightly takes as its starting point the decision of the previous First-tier Tribunal Judges, Graham and Young-Harry, when considering the credibility of the appellant’s history as set out at paragraphs 36 and 37 of the decision. It is clear from paragraph 40 that the First-tier Tribunal understood that new evidence could lead to a different outcome notwithstanding the fact that the appellant had not previously been believed. We therefore find that the First-tier Tribunal correctly directs itself on determining an appeal in the context of past Tribunal decisions on the same matter. The starting point of this appeal was that the appellant had not been found to be a credible witness by the two previous First- tier Tribunal Judges. In this context his own more elaborate explanations set out in the witness statement trying to explain away the negative conclusions of Judges Graham and Young-Harry were correctly not given weight. As Mrs Nolan has submitted, the appellant’s brother, RK, gave evidence before Judge Graham in 2017, had also been found, as set out at paragraphs 32 to 30 of that decision, to be exceedingly vague, to have given evidence that was inconsistent with that of the appellant and thus was ultimately found not to be a credible witness. Indeed Judge Graham appears to conclude that it had not been shown even that they were related as claimed. The statements of AR and SN going to the obtaining of the peshmerga letter were not supported by oral evidence and were not signed. In this context we find that the conclusion of this First-tier Tribunal at paragraph 44 of the decision that the unchallenged evidence of RK, the appellant’s brother, fails to outweigh the negative evidence in the expert report of Dr Fatah to be sufficiently reasoned, particularly as we find that weight is properly given to that report and that all of the evidence was considered in the round for the reasons we now set out below.
13. With respect to the second ground we find that it was unarguably rationally open to the First-tier Tribunal to rely upon the report of Dr Fatah, an accepted expert on Iraq with expertise in assessing the validity of documentation (as set out at paragraphs 41 and 43 of the decision), in a report the appellant’s representatives had placed before the Tribunal, and give significant weight to that report. The conclusion of Dr Fatah is that the documents the appellant has put forward to evidence his role as a Peshmerga and regarding his colleague SN are not reliable, as set out at paragraph 43 of the decision of the First-tier Tribunal. We find that it was entirely lawful to prefer this evidence when placing it in the round with the evidence of the two witnesses (the appellant and his putative brother RK) who had both previously been found not to be credible and the two unsigned witness statements of SN and AR who did not attend the First-tier Tribunal, particularly as the peshmerga identity card of SN is found to lack the characteristics of a reliable document by Dr Fatah. This ground does not therefore disclose an error of law.
14. It is clear that the First-tier Tribunal correctly referred to the guidance case of SMO(2) at paragraphs 40 and 45 of the decision as the most up to date country guidance case with respect to any real risk of serious harm due to lack of documentation on return to Iraq. It is found, at paragraph 45 of the decision, that the appellant can be returned to the IKR without risk, as no evidence displaces the previous decisions finding the appellant would not be at such risk, as he would be able to obtain help with redocumentation from family. As Mrs Nolan has pointed out this accords with what is said at paragraph 5.1.3 of the CPIN regarding the return of ethnic Kurds to the IKR, relying on advice from the expert Dr Fatah, that a returnee without an ID will be asked to phone a relative to come to the airport to act as guarantor for the returnee if the family do not have the returnees ID, and the returnee can then apply for their own ID in a seven day timeframe. Ms Imamovic argued that the appellant would be at risk as he would be without an ID and would have to cross checkpoints, and relied upon what is said at 9.2 of the CPIN to say that there are internal checkpoints within the IKR. However we find that would be inconsistent with what is said at 9.1.1 of the CPIN where it is said that there are no further legal impediments or requirements after security screening and registering with the Muhtar in the IKR. We read what is said about internal border checkpoints at 9.2.1 of the CPIN refers to checkpoints on the border between the IKR and the rest of Iraq. This appellant comes from the Erbil Governorate of Iraqi Kurdistan, and so would not be crossing with border from the IKR into the rest of Iraq whilst returning to his home area to sort out a new (INID) identity card as his proposed return by the respondent is either to Erbil or Sulaymaniyah. The third ground therefore also fails to reveal any error of law.

Decision:
1. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
2. We uphold the decision of the First-tier Tribunal dismissing the appeal on asylum, humanitarian protection and human rights grounds.

Fiona Lindsley

Judge of the Upper Tribunal
Immigration and Asylum Chamber

2nd April 2025