Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005744

First-tier Tribunal Nos: PA/56803/2023
LP/09405/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 17th of June 2025

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN
DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

SA
(ANONYMITY direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms I Kirwan, Counsel instructed by UK & EU Law Immigration Services
For the Respondent: Mr P Deller, Senior Home Office Presenting Officer

Heard at Field House on 23rd 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
Anonymity Order
1. We note that the First-tier Tribunal judge did not grant the Appellant anonymity. Indeed, despite the requirements of the Presidential Guidance Note No. 2 of 2022 issued by the President of the First-tier Tribunal requiring a First-tier Tribunal judge to consider issuing an anonymity order, the Judge's decision is entirely silent on the issue. Upper Tribunal Judge Owens issued an anonymity order on 22 January 2025. Before us, neither party requested that the Order be set aside. We have considered UTIAC Presidential Guidance Note No. 2 of 2022. We observe that the appellant seeks international protection and conclude that at the present time his private life rights protected by article 8 ECHR outweigh the right of the public to know that he is a party to these proceedings, the latter right protected by article 10 ECHR. In the circumstances, we confirm UTJ Owens' order in the terms detailed above.
Decision
2. The Appellant, a citizen of Iran, appeals against the decision of First-tier Tribunal Judge Swinnerton (“the Judge”), promulgated on 21st October 2024, dismissing his appeal against the decision to refuse his protection and human rights claims.
3. The core of the Appellant’s claim, in short, is that his problems in Iran started when he was a partner of his uncle in a business. That was a family business that made bricks. The appellant claims to have found leaflets belong to the KDPI (the Democratic Party of Kurdistan Iran) at the business that he shared with his uncle. Shortly thereafter, the business was raided and the appellant’s uncle and other workers at the business were arrested. Consequently, the appellant had to flee from Iran because he was accused of assisting his uncle with respect to the leaflets. The appeal was heard by the Judge in the Virtual Region on 16 October 2024.
4. The Appellant sought to appeal from the First-tier Tribunal and was granted permission by First-tier Tribunal Judge Turner on all grounds, which we summarise as follows:
(i) The Judge erred in reaching conclusions on plausibility without sufficient justification.
(ii) The Judge misinterpreted the Appellant’s response in his screening interview in relation to his political activity in Iran and made no finding upon the same.
(iii) The Judge failed to properly assess the Appellant’s sur place activity and the pinch point on return in terms of any enquiry likely to be made of a returning Kurd of fighting age.
(iv) The Judge failed to adequately consider the Appellant’s private life under Article 8 ECHR.
Analysis
5. Before the panel, Ms Kirwan relied upon a skeleton argument filed in advance of the hearing. Mr Deller acknowledged that a Rule 24 response had not been filed. Initially, Mr Deller resisted the appeal, but having heard Ms Kirwan's submissions, he accepted on behalf of the Respondent that the Judge materially erred in law in respect of grounds 1 and 3. We proceed to consider the Appellant's appeal in light of Mr Deller's concession.
6. In relation to the first ground, alleging that the Judge erred in failing to adequately reason his findings, we find that the ground is made out. As observed in the grant of permission, the Judge’s findings run from paragraph 10 to 26. At paragraph 10 and 11, the Judge sets out the nature of the Appellant’s claim, its history and that the Respondent does not accept that the Appellant’s Uncle and his employees were arrested following a raid, nor that he would be of adverse interest. At paragraph 12, the Judge then recites that the Appellant was forced to flee Iran “because he was accused of assisting his uncle with respect to the leaflets” pertaining to the KDPI that were found at his Uncle’s and his shared place of business. However, the Judge fails to state whether any of this evidence is accepted or not. Next, at paragraph 13, the Judge notes the Appellant was asked in his Screening Interview the pro forma question of whether he had been accused of being involved with any political organisation which was answered “N/A” and in cross-examination the Appellant stated he answered as he did because he understood the question to be whether he was a member of a political organisation. The Judge again fails to state whether he accepts or rejects this explanation from the Appellant. Then, paragraph 14 merely recites a question and response from his interview, followed by a finding at paragraph 15 that the Judge seemingly accepted the Appellant’s evidence that he was not politically active in Iran “of his own accord”.
7. In the following paragraph at 16, the Judge sets out that the discovery of the leaflets by the Appellant at the brick-making business and the subsequent raid took place over a short period of time, namely three days. This is immediately followed by the following finding: “I find the timing of that sequence of events not to be plausible and I do not believe it”. There is no embellishment nor any reasons given for this finding in the subsequent paragraph and the reader is left unclear as to why this finding, the first adverse finding in the decision, has been made against the Appellant.
8. Then, at paragraphs 17 and 18, the Judge recites the Appellant’s evidence that he was last in contact with his brother-in-law in Iran two months prior to the hearing at which point they discussed the welfare of the family. In cross-examination, the Appellant expanded upon the answer, stating that his former colleagues were in prison and the brick-making business had been shut down. This is followed by the Judge’s finding that he did not find the Appellant’s evidence to be “at all credible” and that the Appellant “did not give evidence that he had discussed anything other than the wellbeing of his family with his brother-in-law”. Whilst it appears the Judge is insinuating that the evidence was not given earlier than in response to a direct question, it is unclear why that evidence should have been given sooner than it was, such that it impacted heavily upon the Appellant’s credibility. This must follow as the Judge does not state in clear terms whether or not he believed this to be an opportunistic ad hoc fabrication, or indeed, any other reason for the finding. It is also apparent that this expansion of the Appellant’s evidence exercised the judge as in the very next paragraph, the Judge states “(h)aving considered all of the available circumstances, I do not accept the account of the appellant which I find to be contrived”. We find it is unclear to us, or any reader, that this must follow based upon the two adverse findings at paragraphs 16 and 18 we have identified above which form the only bases for the Judge rejecting the Appellant’s factual account.
9. We observe that the findings in the decision can properly attract criticism not dissimilar to that described by Holgate LJ in AA (Morocco) v. Secretary of State for the Home Department [2025] EWCA Civ 144 at [79], [80] and [84] that what is required is “a series of proper determinations of each claim in a logical sequence” as opposed to a decision which “jumps from one subject to another without a clear, coherent, and comprehensive legal structure for determining each claim” which could lead to issues being improperly elided.
10. We thus find Ground 1 to be made out.
11. Given that the ground goes to the Judge’s reasons and insufficient findings on the credibility of the protection claim, we find that this error of law materially infects the remainder of the decision which is built upon these initial findings. However, for the sake of completeness, we shall address the remaining grounds in shorter terms.
12. Concerning ground 2 and the complaint that the Judge misinterpreted the Appellant’s response in his screening interview at 5.5 when answering “N/A” in relation to whether he was accused of being involved with any political groups, as the Appellant did not write to the Respondent following the interview to clarify his answer, and as it was not raised in his Appeal Skeleton Argument (ASA) we find that the Judge was entitled to find against the Appellant on this issue. However, as we have noted when analysing the decision above, the Judge did not in fact reach a conclusion on this issue, merely noting the evolution of the Appellant’s evidence without indicating if it was accepted or rejected. Therefore, we do not find ground 2 adds anything to the error already identified.
13. Turning to ground 3 and the complaint that the Judge failed to properly assess the Appellant’s sur place activity, we find that whilst the Appellant’s role in the demonstrations was assessed, at paragraph 24 in reaching conclusions on the sur place activity, the Judge erroneously failed to consider the objective evidence in relation to the surveillance and filming by the Iranian authorities of sur place activity, despite this being noted at [65] of the Country Guidance case of BA (Demonstrators in Britain - risk on return) Iran CG [2011] UKUT 36 (IAC).
14. We also find that the Judge failed to consider the pinch point and social media activity in a sufficiently comprehensive manner in terms of any enquiry likely to made of a returning Kurd of fighting age (HB (Kurds)) and in light of headnotes 1 and 2 of XX (PJAK – sur place activities – Facebook) Iran CG [2022] UKUT 23 (IAC). As an aside, Ms Kirwan argued that the Judge failed to consider whether or not the Appellant would delete his Facebook account, there was no evidence on this issue from the Appellant and so we reject that point.
15. Thus, we find that ground 3 reveals a material error of law in relation to the assessment of sur place activity and risk on return being insufficiently assessed further infecting the decision.
16. As to ground 4, the Appellant contends that the judge failed to adequately consider his private life as per Article 8 ECHR. We observe that he entered the United Kingdom in 2021 and has not been employed in this country. We are satisfied that his private life claim is parasitic upon the time he continues to spend in this country as he pursues his protection claim. Consequently, the private life claim has limited merit. However, noting the material errors identified above, we consider it appropriate not to preserve the private life findings and to permit the Appellant to rely upon Article 8 at the resumed hearing if he so wishes.
17. In light of our above findings, we find the decision is infected by material error of law requiring that it be set aside in its entirety.
Resumed Hearing
18. We have carefully considered the venue of any rehearing, taking into account the submissions of the representatives. Applying AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), we have considered whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statement. We are satisfied that the fundamental failures by the Judge identified above are such that the proper course is for the matter to be remitted to the First-tier Tribunal. To date, the Appellant has not enjoyed a fair hearing of his appeal. We observe that the hearing before the Judge was conducted in the Virtual Region. Consequent to the manifest errors arising in the Judge's decision, and with the agreement of the parties, this matter is remitted to the First-tier Tribunal sitting in Hatton Cross and is to be listed as a face-to-face hearing.
Notice of Decision
19. The decision of the First-tier Tribunal sent to the parties on 21 October 2024 is subject to material error of law. The decision is set aside in its entirety.
20. The decision is remitted to the First-tier Tribunal sitting at Hatton Cross to be heard by any judge other than First-tier Tribunal Judge Swinnerton.
21. An anonymity order is confirmed.

P. Saini

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

8 June 2025