Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005738

First-tier Tribunal No: PA/54596/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 7th April 2025

Before

UPPER TRIBUNAL JUDGE BRUCE
DEPUTY UPPER TRIBUNAL JUDGE GREER

Between

RO
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss Patel (of Counsel)
For the Respondent: Mr Thompson (Senior Home Office Presenting Officer)

Heard at Phoenix House (Bradford) on 31 March 2025

DECISION AND REASONS
Introduction
1. The Appellant appeals, with permission, the decision of Judge of the First Tier Tribunal Saffer (‘the Judge’) who dismissed his appeal against the Respondent’s decision to refuse his Human Rights Claim in a decision dated 8th October 2024.
2. The Appellant is a 19-year-old national of Iraq who entered the United Kingdom in February 2023. It is his case that he was involved in a romantic relationship with a young woman. For the purpose of this decision we refer to her as ‘H’. He says that this relationship was pursued against the wishes of H’s family, including her uncle, who is a Brigadier or Major General in the Peshmerga. The Appellant claims that he was discovered sitting next to H on her bed and he was as a result, assaulted by H’s relatives. He left Iraq fearing that he would be killed for being perceived to have brought dishonour upon H’s family.
3. On 24th May 2023 the Respondent refused the Appellant’s application for asylum. The Appellant appealed against that decision.
4. The Appellant’s Appeal went before the First Tier Tribunal at Bradford on 7th October 2024. The Appellant was represented by Miss Patel. In a decision promulgated on 8th October 2024, the First Tier Tribunal dismissed the Appellant’s appeal.
Grounds
5. By order of Upper Tribunal Judge Rimmington dated 20th January 2025, the Appellant was granted permission to appeal in respect of all grounds.
All grounds are arguable. Credibility is woven throughout the findings and it is arguable that in relation to grounds (i) and (ii) this experienced judge nonetheless did not appreciate HK v SSHD [2006] EWCA Civ 1037 nor MAH (Egypt) v SSHD [2023] Civ 216 para 61 when making his findings on what young Kurdish teenagers would or would not do in the IKR. Their age was in fact considered to be a factor which would militate against risky action.
On ground (iii) the conclusion that ‘there is no cogent reason’ why the family would not have the appellant’s CSID rather ignores the judge’s own previous finding, if that is what it was [24], that there was a possibility the appellant had thrown his documents into the sea. There is arguably either a lack of clarity in the findings or a contradiction. In relation to the CSID an appellant can be found to be untruthful about one aspect to his account and yet credible on another. On (iv) I find less merit with the assertion that discrepancies were not put to the appellant amounting to an arguable procedural error but in relation to (v) it is also arguable that in effect corroboration was required in relation to the medical evidence. In the light of these observations all grounds are arguable.
Discussion and Findings
Ground 1: Plausibility
6. Miss Patel made determined submissions about the judge's approach to the plausibility of the Appellant's account. She submitted that the Judge failed to consider the Appellant’s age or the background evidence regarding the prevalence of such relationships leading to honour crimes being committed. The Judge’s conclusions, particularly at [19] – [20], were said to have been reached in a manner which was contrary to the approach required by authorities including HK v SSHD [2006] EWCA Civ 1037 and MAH (Egypt) [2023] EWCA Civ 216.
7. Both of those decisions of the Court of Appeal emphasised that the plausibility of an account could not be gauged by domestic standards and that a judge, “must look through the spectacles provided by the information he has about conditions in the country in question" (Y v SSHD EWCA Civ 1223, at [27], per Keene LJ) before making any such finding.
8. On a fair reading of the impugned passages of the Judge's decision, that is precisely what the Judge sought to do. The Judge begins [19] by referring to, “young couples engaging in sexual relations in a variety of circumstances others may feel to be risky, it is not likely they would do so especially in her family home or bedroom given the obvious risk of being caught, the societal attitudes of which they were well aware, and given their tender years.” It is clear from this that the Judge was aware of the general background evidence of the prevalence of young couples engaging in risky sexual relations, when determining the plausibility of the Appellant’s claims. He was also plainly aware of the Appellant’s age. This much is clear from his reference to, “young couples” and the Appellant being in his “tender years”.
9. The more fundamental difficulty with [19] is not that the Judge sought to assess the probability of the Appellant’s claims, it is that the Judge sought to assess the plausibility of a claim that the Appellant did not make; nowhere in the Appellant’s evidence did the Appellant claim to have engaged in sexual relations with H in her home, or indeed anywhere else. Instead, the Appellant claimed to have met H in a remote park (witness statement, paragraph 3), and that they had short interactions of 5-10 minutes in duration at a time (witness statement, paragraph 5). When questioned in interview about what they did together, he described these interactions as, “we were standing together and had a chat and then she was going home” (interview, question 105). When H’s relatives returned home unexpectedly, they found the two of them sat on the bed (witness statement, paragraph 5). None of this describes the scenario of the Appellant and H engaging in risky sexual behaviour of the sort that the Tribunal found to be implausible.
10. Mr Thompson argued that the Tribunal was entitled to infer that the Appellant had claimed in interview to have had sex with H. He drew our attention to the Appellant’s answer to Question 109 of the Appellant’s Home Office Interview where the following exchange is recorded:
What did you do while you were at her house?
I feel shy to say it
11. This does not in our view support the reading that the Appellant claimed to have been caught having sex with H. We therefore find that, whilst there is nothing objectionable about the Tribunal seeking to assess the plausibility of the Appellant’s claims against the background evidence before the Tribunal, the Tribunal in this case did so on a mistaken factual basis. The Tribunal assessed, and rejected, the plausibility of a claim that the Appellant did not make.
12. We find that the Tribunal did fall into material legal error in its assessment of the plausibility of the Appellant’s claims. Ground 1 is made out.
Ground 5: Corroboration
13. Ground 5 argues that the Judge fell into material legal error in calling for documentary corroboration, firstly, in respect of the existence of H’s uncle (at [22]) and, secondly, medical evidence in respect of the injuries suffered by the Appellant when he was assaulted by H’s father and brothers (at [23]).
14. We were taken to MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216, in which LJ Singh said at [86]:
It was common ground before this Court that there is no requirement that the applicant must adduce corroborative evidence: see Kasolo v Secretary of State for the Home Department (13190, a decision of the then Immigration Appeal Tribunal, 1 April 1996). On the other hand, the absence of corroborative evidence can, depending on the circumstances, be of some evidential value: if, for example, it could reasonably have been obtained and there is no good reason for not obtaining it, that may be a matter to which the tribunal can give appropriate weight. This is what was meant by Green LJ in SB (Sri Lanka) at para. 46(iv).
15. On a fair reading of the determination, taken as a whole, we do not accept that this is a case in which the Tribunal has imposed a requirement that the Appellant adduce corroborative evidence, in the manner that the Appellant contends. That is not to say, however, that there are not errors in its approach.
16. It is the Appellant’s case that H’s uncle is either a Brigadier or a Major General in forces under the control of the KDP. The Tribunal makes comment on the absence of any reference to him in the country background material, and apparently draws a negative inference from this lack of “digital footprint”. We are unclear as to what evidence might support the hypothesis that this man would have such a “digital footprint”. Neither party took us to any particular evidence in the papers before the Tribunal to suggest that he would have a digital footprint. We find that this aspect of the determination is therefore inadequately reasoned.
17. As for [23], the First Tier Tribunal is mistaken in fact to state that, “there is no medical evidence of any injuries consistent with the time line and claimed causation” (emphasis added). At [12], the First Tier Tribunal refers to the Appellant’s claims in interview that he has scars on his hand and belly. At Question 121 (composite bundle, page 741) the Appellant attributed these scars to having been assaulted at H’s house.
18. At the very end of the Home Office interview, the following exchange took place:
Has your representative or your interpreter any comments about the interview? (where appropriate)
No comments but I do have a radiology report and doctors notes I can forward.
19. And the Interviewing officer recorded the following comments:
Interviewing Officer’s comments (if any)
Applicant showed multiple scars on stomach and forearm that appeared consistent with knife wounds. He also said he had multiple scars in his head from a knife but you could not really see them due to his hair covering them now.
20. There was therefore no dispute between the parties over the fact that the Appellant had significant scarring, which he attributed to the attack that he claims to have experienced at the hands of H’s relatives. There is no dispute that these scars appeared to the immigration officer to look like knife wounds. The Tribunal was certainly not bound to accept this officer’s opinion, and in the absence of expert commentary on causation, there may have been a limit to the weight that could be attached to these scars. We are however satisfied that the Tribunal was wrong to say that there was “no” medical evidence of any injuries, since the scars themselves constitute such evidence. It may be that what the Tribunal intended to say was that there was “no expert medical evidence”, but that is not apparent from the decision itself, in which it appears that these significant scars, which were on the face of it capable of supporting the Appellant’s claim, were excluded from consideration altogether.
21. For the Respondent, Mr Thompson argued that the Tribunal’s comments at [22] and [23] were simply statements of fact, and it cannot be safely inferred that the Tribunal attached weight to these matters as undermining the credibility of the Appellant’s claims. We reject that submission. It is apparent from the structure of the determination that the Tribunal attached weight to each the matters identified between paragraphs [19] and [25] and that they each formed part of the Tribunal’s reasoning. This is because the Tribunal Judge begins this passage of the determination with what is said at [18]:
I do not accept it is likely the Appellant was caught with [H] or is at a real risk for an honour related matter for these inter-related reasons.
22. We therefore find that the Tribunal’s errors in respect of the absence of corroborative evidence were material to the outcome. Ground 5 discloses material legal errors in the First Tier Tribunal’s determination.
Grounds 2 - 4
23. In light of our findings in respect of grounds 1 and 5, it is not necessary for us to deal with grounds 2,3 and 4 in great detail, save as to say that they are not made out.
24. In respect of Ground 2, it is argued that the First Tier Tribunal failed to consider the Appellant’s age in the context of his asylum claim. Judge Saffer was plainly aware of the Appellant’s age when events are said to have taken place in Iraq. This much is clear from the repeated references to the Appellant’s age (at [14] and [19]). We reject Miss Patel’s submissions on this point. The First Tier Tribunal had the fact that the Appellant was a child at all material times well in mind. Ground 2 is not made out.
25. Ground 3 argues that the First Tier Tribunal made contradictory findings in respect of the location of the Appellant’s CSID. This mischaracterises what is said at [24] and [25]. [24] rejects a submission made on behalf of the Respondent about the consistency of the Appellant’s evidence. It does not reach any finding of fact in respect of the location of the Appellant’s CSID. The only finding in respect of the location of the Appellant’s CSID is at [25]. There is no other finding on the face of the determination for it to contradict. Ground 3 therefore fails.
26. Ground 4 argues that the Tribunal deprived the Appellant of a fair hearing by taking matters against the Appellant which were not put to him at the hearing. Miss Patel pointed to 6 discrete points identified by Judge Saffer at Paragraph [19] of the determination which, she said, ought to have been put to the Appellant by the Judge.
27. In WN (Surendran; credibility; new evidence) Democratic Republic of Congo [2004] UKIAT 00213 the IAT (Mr Justice Ouseley, President, with other two members) said at [28]:
These [citations] show that neither in Scotland nor in England and Wales is it thought in the higher courts that every point which concerns an Adjudicator when dealing with the credibility of an Appellant needs to be raised explicitly with the Appellant in order for him to pass a comment upon it. There may be tactical reasons why an Appellant and his advocate decide not to grapple with what might be thought to be a problem; they may hope that the Adjudicator will not see it as a significant point or indeed may not spot it at all; but it is for an Appellant whose credibility is challenged as this Appellant's credibility most emphatically was, and challenged in almost every possible respect, to put forward all the evidence he can and to deal with the discrepancies which arise. Even where the Secretary of State is not represented, the Appellant cannot assume that points which are not put by the Adjudicator to him for his comment are points which are to be regarded as accepted, especially if they are obvious points of contradiction or implausibility which he has failed to grapple with. It is not necessary for a fair hearing that every point of concern which an Adjudicator has, be put expressly to a party, where credibility is plainly at issue. As we have said elsewhere, it is a matter of judgment whether to omit to do so is unfair or whether to do so risks appearing to be unfair as a form of cross-examination. On balance, the Adjudicator's major points of concern are better put, especially if they are not obvious. The questions should be focussed but open, not leading, expressed in a neutral way and manner, and not at too great a length or in too great a number. But, whether or not that is done, it is for the Claimant to make his case.
28. In WA (Role and duties of judge) Egypt [2020] UKUT 127 (IAC) the hearing Judge, for no apparent reason, had adjourned in course of the evidence to give the appellant the opportunity to improve his case. The UT (a panel comprising Mr Justice Lane, President, and Mr C M G Ockelton, Vice President) said at [6]:
During the course of taking evidence, a judge's role has to be merely supervisory. In dealing with representatives, and in assessing their submissions, the judge is entitled to take a role as interventionist and active as he considers appropriate. But while evidence is being taken, he should limit himself to making sure that the evidence is given as well as may be. He should be alert to the witness's welfare; he should check that there are no obvious problems with interpretation. He will ensure that there are no undue interventions from the other side, reminding representatives, if necessary, that they will have an opportunity in due course to ask their questions. When both sides have finished their examination, he may ask questions of his own by way of clarification; if he does, he should give both sides an opportunity to ask any further questions arising from his.
29. Judges must tread a fine line between reticence, risking criticism for failing to give an appellant a fair chance to deal with matters, and expressing their concerns, risking criticism for undue intervention, or for rushing to judgement. The authorities all require an assessment of fact and degree in a particular set of circumstances.
30. Leaving to one side the fact that not all points which concern a judge need be put expressly to a witness, there is no evidence before us to support the submission that the points were not squarely raised, whether by the judge or the Presenting Officer. Insofar as such procedural complaints are to be advanced, it is well established that they must be supported by evidence, usually from the advocate with conduct of the appeal before the First Tier Tribunal. There is no such evidence before us.
31. In response to questions from the bench, Miss Patel candidly and professionally accepted that the 6 points identified by Judge Saffer at [19] of the First Tier Tribunal determination did in fact emerge during the Appellant’s evidence under cross examination before the First Tier Tribunal. It was therefore not incumbent upon the Judge to put the questions again, or to draw them to Miss Patel’s attention. In our judgment these were all obvious points of inconsistency in the Appellant’s evidence which went to the heart of the Appellant’s claims. It was a matter for the Appellant’s counsel to determine how to deal with these points. It was not incumbent upon the Tribunal Judge to draw them to the Appellant’s attention. Ground 4 is not made out.
Anonymity
32. We have had regard to the Presidential Guidance Note 2022 No 2: Anonymity Orders and Hearings in Private . In light of the guidance at paragraph 28 [1] thereof, we make an order for anonymity in the following terms:
"Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him, any of his witnesses or any member of his family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings"
Disposal
33. We are conscious of the Court of Appeal's decision in AEB v SSHD [2022] EWCA Civ 1512, Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC) and 7.2 of the Senior President's Practice Statements. Sub-paragraph (a) deals with where the effect of the error has been to deprive a party before the Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the FtT, whereas sub-paragraph (b) directs us to consider whether we are satisfied that 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.
34. Having regard to the nature of the errors of law, which relate to the global credibility assessment, we are persuaded that no findings can be preserved. We are persuaded that the appropriate course is for the appeal to be remitted for rehearing before the FtT afresh.
Notice Of Decision
1. The decision of First-tier Tribunal dated 8th October 2024 is set aside with no findings preserved.
2. The appeal is remitted to the FtT to be heard afresh by a judge other than Judge Saffer.

J. Greer

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

1st April 2025