Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005711

First-tier Tribunal No: PA/65069/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

28th April 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE FROOM

Between

AM
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Banks, Counsel, instructed by Barnes, Harrild & Dyer, Solicitors
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer

Heard at Field House on 15 April 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and any member of her family 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. The appellant appeals with the permission of the Upper Tribunal against a decision, dated 3 October 2024, of the First-tier Tribunal dismissing the appeal brought by the appellant on the grounds that removing him to Iraq would breach the United Kingdom’s obligations under the Refugee Convention and the Human Rights Convention.
2. The First-tier Tribunal made an anonymity order and I have continued the order in view of the fact this appeal concerns international protection issues.
The factual background
3. The appellant is Kurdish and the core of his claim is that he fled Iraq the day after his clandestine extra-marital relationship with a girl, which had been going on for four years, had been discovered by her family. The family of the girl had refused a financial settlement and the offer of marriage to resolve the issue. They demanded the appellant’s death to assuage the family’s honour. The head of the girl’s family was the local “lord” and an influential figure within the PUK.
4. The respondent rejected the appellant’s claim, principally on credibility grounds. His account was deemed inconsistent, vague and speculative. His credibility was also damaged by matters arising under section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. The appellant appealed on the available statutory grounds.
The judge’s decision
5. The appellant was represented by counsel at the hearing in the First-tier Tribunal. He attended and gave evidence. He submitted a bundle containing a witness statement responding to the credibility challenges made in the reasons for refusal letter.
6. At [41] the judge recorded that the entire case turned on whether the appellant had shown he was at real risk and that the behaviour he claimed to be at risk from had happened and therefore put him at risk. At [43] to [57] the judge set out his reasons for his conclusion that he did not accept the core of the appellant’s claim to the lower standard and, even if he had, there was little or no evidence to support a claim that the girl’s family was significant within the PUK.
7. Because this appeal concerns a close textual analysis of what the judge said in his decision, it is helpful to set out the salient passages in full:
“43. The Appellant’s case turns on his relationship with his girlfriend being discovered after some four years of meeting. The Appellant’s account of how he met his girlfriend is entirely plausible in that he saw her from afar. The difficulty for me with the Appellant’s case is that he then managed by not very subtle means to drop his phone number in a place, where this young lady could see the paper and pick it up.
44. His account is that initially she had no phone but used her mother’s phone in order to contact him over a considerable period. This is in a culture where we are asked to accept that the women of a family are kept separate from the men, and are not allowed to have chance meetings, or unaccompanied or unchaperoned meetings.
45. Not only did this young lady then speak to the Appellant over a long period without discovery, notwithstanding that she was using her mother’s phone which presumably recorded the constant phone calls which might, one would have thought, have caused her mother to question what was going on but, rather than that, it seems the family then bought the Appellant’s girlfriend her own phone, presumably because she was using her mother’s too often, but that did not seem to arouse or give rise to any suspicions, that something nefarious was going on.
46. I am then asked to accept that this highly prized young lady was able to arrange surreptitious meetings with the Appellant in a barn, on premises which were generally guarded, but at the times when they met, were not being guarded. No one from the family appears to have found out about the relationship, yet a neighbour passing by identified the Appellant and guessed what was going on.
47. While it is not impossible that that could have happened, it does seem highly unlikely to me that knowing the consequences of what such a liaison could lead to, the Appellant managed to keep this going unnoticed for some four years, with meetings for two years at least twice a week, and was then discovered by a casual passer by.
48. The other problem for me with the Appellant’s case is that on the one hand he needs the family of his girlfriend to be very important, and have tribal links with the P.U.K., and yet the more important they are, the harder it is to accept, that the Appellant would have put himself in an increasingly great position of danger. It seems to me that either the family is not as powerful as the Appellant would like us to believe, in which case he is not likely to be at risk on return, or they are which makes his account of these liaisons much harder to accept.
49. While the Respondent sets great store by consistency it is well-known that a good liar can often repeat the same account. The same goes in reverse for a truthful account it is not always told in exactly the same way on each occasion. The best type of account is one that blends the truth with a bit of exaggeration in order to achieve the aim.
50. In this case we have the Appellant’s account that the father of this young lady or the grandfather is the local “lord”, head of the village and close, through his family, to the P.U.K., but as I say the higher the gentlemen is, the harder it is for me to believe that the Appellant would take the risk of an illicit relationship.
51. From the background evidence it is clear that there are honour killings in relation to these sort of relationships, although my understanding is that the vast majority of penalties go to the woman, rather than the men. Further in this case the Appellant was willing and wanted to marry the young lady concerned, and from my understanding that is usually an acceptable way to resolve these disputes, particularly if money also changes hands, and so it is unclear to me why, if some part of the Appellant’s case is correct and there was talk of a marriage to resolve the issue, why that simply did not take place, and why suddenly people would have become caught up in the wish to kill the Appellant.
52. That does not seem to me to be consistent with the background evidence in the C.P.I.N. in the paragraphs dealing with honour killing starting at paragraph (sic) 11 although there are many more references throughout the C.P.I.N. to this issue.
53. My understanding of the position is that the Appellant will not have brought dishonour to his own family, and that over issues such as these, the background evidence suggests that families would prefer financial settlement and only use killing as a last resort.
54. I also note the Respondent’s point ,that the Appellant had the opportunity to claim asylum in France, and while his case is that he was under the control of the agent, it makes little sense, if all he wanted was safety, for them to have paid the agent to get him to the United Kingdom, when there were several countries he must have passed through, where he could have claimed asylum.
55. I also find it hard to accept the Appellant’s account with regard to the employment of the agent, namely that he had to find the agent, presumably with no experience whatsoever, and then the agent was put on to negotiate with the Appellant’s father. It seemed to me that if the family were in a position to pay an agent to get the Appellant to the United Kingdom, it would be unlikely that those threatening the Appellant, if that was what was going on, would have not taken that money for a financial settlement.
56. I bear in mind that it was agreed that in effect all the Appellant’s claims stood or fell with whether or not the core of his account was accepted. For all the above reasons I cannot say that I do accept the core of the Appellant’s claim, even to the lower standard, which is applicable in this case.
57. Finally and for the avoidance of any doubt I add that even if everything the Appellant says is true, there is little or no evidence to support a claim that the girl’s family is significant within the P.U.K. and although there are pictures of an armed man that is said to be a leader of the tribe, there is no clear link between the family the Appellant talks of and this man.”
The issues on appeal to the Upper Tribunal
8. The grounds rely on general points about the assessment of credibility and the low standard of proof found in the judgment of Singh LJ in MAH (Egypt) v SSHD [2023] EWCA Civ 216. Also relied on is the guidance provided by Keene LJ in Y v SSHD [2006] EWCA Civ 1223 about the risks of finding an account to be inherently implausible. Ground 1 argues the judge erred in permitting a procedural irregularity in the proceedings and arriving at conclusions which amounted to speculation. In some passages the judge posed rhetorical questions without these being put to the appellant. Passages from the decision at [44], [45], [48] and [51] are highlighted. Ground 2 argues the judge’s findings were perverse or irrational for similar reasons.
9. The First-tier Tribunal refused to grant permission to appeal but the Upper Tribunal granted permission to argue all grounds.
10. The respondent has not filed a Rule 24 response but I was informed by Ms Isherwood that the respondent intended to oppose the appeal.
11. A bundle had been uploaded on the Upper Tribunal’s platform running to 478 pages.
The submissions
12. Mr Banks expanded on the grounds, which he had drafted. He confirmed that Ground 2 would stand or fall with Ground 1. He said the questions posed rhetorically within the judge’s explanation of his reasons (summarised at [15] in the grounds) had been capable of being addressed by the appellant had he been given the opportunity to do so, but he was not. As such, the judge had allowed a procedural irregularity which had prejudiced the appellant. In particular, the judge had not understood the appellant’s explanation as to why a settlement was not reached. The approach by the appellant’s family had been made after the appellant and the girl had been spotted holding hands. However, the girl’s family later discovered that the couple had been intimate, which is why they were unwilling to accept a financial settlement. The damage to their honour was far greater. There was discussion of which passages from the CPIN the judge was referred to.
13. I asked whether, if the judge had erred in the manner suggested, this could be material in view of [57] in which he made plain he was not satisfied that the appellant had established that the girl’s family was powerful. Mr Banks argued that there was a distinction to be drawn between the link to the PUK and as the local “lord”.
14. Ms Isherwood argued there was no error of law in the decision. The judge said he had considered all the evidence in the round and he was entitled to reach the conclusion which he reached. The grounds were mere disagreement with the decision.
15. I reserved my decision on whether there is an error of law in the judge’s decision.
Decision on error of law
16. Relatively recent authority (Ullah v SSHD [2024]EWCA Civ 201, Yalcin v SSHD [2024] EWCA Civ 74, and Chowdhury v SSHD [2025] EWCA Civ 36) has emphasised that the Upper Tribunal should not rush to find an error of law simply because they would have expressed themselves differently from the First-Tier Tribunal, that the Upper Tribunal should be slow to infer that a point had not been taken into account even if not expressly mentioned, and that judicial restraint should be exercised even though not every step in the reasoning was fully set out, as the issues might be set out by inference. I have borne those principles in mind.
17. It is well-established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact-finding tribunal. The principles and cautious approach to be applied by an appellate court to first instance findings of fact are well established and are set out in Volpi v Volpi [2022] EWCA Civ 464 at [2]. I have kept in mind the role of the First-tier Tribunal as an expert Tribunal and bear in mind the principles set out in Volpi and articulated by the Supreme Court in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, 1 WLR 3784 at [72] including:
“(iii) When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out - see R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19; [2013] 2 AC 48 at para 25 per Lord Hope.”
18. Having carefully considered the oral submissions made to me, the relevant parts of the judge’s decision and the parts of the evidence relied on by the parties, I have concluded that the judge’s decision does not contain a material error of law and shall stand.
19. In my view, the appellant’s arguments as explained in the written grounds and developed by Mr Banks are doomed to failure for the simple reason that any error could not have been material to the outcome of the appeal. In [57] the judge explained why his decision would have been the same even if he had found the appellant’s account to be credible. The grounds do not challenge paragraph [57] and permission has not been given to argue against it. There is no genuine distinction between the family’s links to the PUK and the status as “lord” of the village and it is clear the two things were run together in the appellant’s case. For example, paragraph [2] of the appeal skeleton argument uploaded on the appellant’s behalf in readiness for the appeal in the First-tier Tribunal stated the girl’s grandfather was the lord of the village and an influential figure within the PUK.
20. I therefore find that the errors relied on could not be material: Detamu v SSHD [2006] EWCA Vic 604, [14], and the appellant’s appeal must fail.
21. The appeal can end there. However, I would also add for the sake of completeness that I do not agree that the grounds show the judge erred in law in the manner described. I do not agree that the judge was impermissibly speculating about the likelihood or otherwise of the events described by the appellant occurring. He placed his findings in the context of the background evidence relied on by the parties. Mr Banks, when asked by me, confirmed he was not arguing the judge had misunderstood the background evidence and I note this was not raised in the grounds. I find the judge was entitled to find that the vast majority of incidents of honour killing are carried out against women and that disputes are often settled through marriage or through payment.
22. Mr Banks was concerned about the judge’s reliance on his “understanding” that the honour matter could have been resolved by the appellant marrying the girl and money changing hands. It is clear that the reference to “understanding” is to the background evidence because the following paragraph refers to consistency with the CPIN. The reference by the judge to “paragraph 11” of the CPIN at [52] seems to me likely to have been intended as a reference to page 11, where it is stated:
“3.2.2 In June 2018 the United Nations Human Rights Council (UNHRC) published the ‘Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on her mission to Iraq’ which stated:
‘Iraq lacks proper legislation to prevent and punish honour killings. Article 409 Penal Code permits “honour” as mitigation for crimes of violence committed against family members. In connection herewith, while sexual assault is criminalized, article 398 Penal Code provides that charges may be dropped if the assailant marries the victim. It appears that this provision can also be applied in case the victim is a minor. This creates a nightmare type “catch 22” situation whereby the victim risks her life either way: in case she marries her assailant she may become victim of lethal domestic violence and, in case she does not, she may fall victim to honour killing by her family or tribe.’” (underlining added)
23. It is clear from the background evidence that a resolution of this kind might still be achieved where the couple had been intimate.
24. I do not accept the judge fell into error by speculating based on what he regarded as being plausible. The judge stated on at least three occasions that he was not rejecting the claim, or parts of it, on the basis it was inherently implausible. At [43], he said the account of the meeting was plausible. At [47], the judge began his reasons for rejecting the appellant’s account of the appellant being able to keep the liaison secret for so long by stating that it was “not impossible” this could have happened. At [51], he noted that honour killing could be a consequence of a relationship of the kind described.
25. The reliance on the guidance of Keene LJ from Y v SSHD is therefore inappropriate. Indeed, the passage from the judgment cited was immediately followed by Keene LJ explaining that none of this meant a tribunal was required to take at face value an account of facts proffered no matter how contrary to common sense and experience of human behaviour. This was set out by Singh LJ in MAH (Egypt) v SSHD at [62] to [64].
26. Read as a whole, it is clear the judge in this case placed the claim in the context of societal restrictions on extra-marital relationships, recognised that it was not implausible but nonetheless found it not credible. He was also entitled to note that the ability of the couple to continue a relationship undetected for four years, meeting twice a week in a hut which was usually guarded, was even more improbable if the girl’s family were who the appellant claimed they were. Having considered it all, he was unable to accept the appellant had established these events had occurred.
27. I do not find merit in the argument that the judge allowed a procedural irregularity by not putting all of his concerns to the appellant at the hearing. Ms Isherwood pointed out that no evidence was provided as to what was said at the hearing. Rhetorical questions contained in a decision are devices to explain the judge’s unanswered concerns and do not necessarily denote issues which should have been raised at the hearing. The appellant had prepared a detailed witness statement and was represented by counsel. He had every opportunity to set out his case and to address the credibility challenge against him.

Notice of Decision
The decision of the First-tier Tribunal, dismissing the appellant’s appeal on all grounds, did not involve the making of an error of law and shall stand.

Signed
N Froom

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
Dated

16 April 2025