Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005818

First-tier Tribunal No: PA/53938/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 24th of April 2025

Before

UPPER TRIBUNAL JUDGE LOUGHRAN
DEPUTY UPPER TRIBUNAL JUDGE STERNBERG

Between

RRR
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr T Lay, counsel instructed by Simman Solicitors
For the Respondent: Mr K Ojo, Senior Home Office Presenting Officer

Heard at Field House on 8 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 was granted permission to appeal the decision of First-tier Tribunal Judge Eldridge (‘the Judge’) who dismissed the appellant’s appeal, following a hearing which took place on 3 April 2024. That appeal challenged a decision made by the respondent on 16 March 2023 to refuse his claim for asylum.
2. Permission to appeal was granted by Upper Tribunal Judge Sheridan on 4 February 2024. Whilst Judge Sheridan’s grant of appeal made observations on the relative strengths of the grounds of appeal, permission to appeal was granted on all grounds and was not limited.
3. An anonymity direction was made by the First-tier Tribunal. We maintain that order given the nature of the appellant’s claim.
Factual Background
4. The appellant is a national of Iraq of Kurdish ethnicity who is now aged nineteen. He entered the United Kingdom and claimed asylum on 28 June 2021 when he was sixteen years old. The basis for his asylum claim was that he feared persecution on the basis of being a member of a particular social group namely being a potential victim of honour crime. The basis for this claim is that he formed a secret relationship with D, the daughter of the leader of the Barzani tribe. As a result of this intimate relationship, he claims that they threatened to kill him.
5. The Respondent’s decision to refuse the appellant’s claim of 16 March 2023 did not accept that the appellant had been in a secret relationship with D and noted a number of inconsistencies relating to the appellant’s claim specifically focussed on that relationship. The decision concluded that the appellant did not have well-founded fear of persecution, because it was not accepted that he had a secret relationship with D, nor that there was a reasonable degree of likelihood that he would be persecuted if returned to Iraq. Whist it accepted that the appellant is Kurdish, that did not give rise to a real risk of persecution. There was no basis to grant the appellant leave on the basis of humanitarian protection or for any other reason.
The decision of the First-tier Tribunal
6. The appellant appealed against that decision to the First-tier tribunal. The First-tier Tribunal Judge dismissed the appellant’s appeal. The Judge made a series of findings on the appellant’s credibility which are of relevance to this appeal. We summarise those findings:
i. The Judge started by recording the relevance of the appellant’s age at the time of the events he was describing, namely 15, that he was a minor when interviewed and that he had had only two years of formal education [26];
ii. The Judge noted that some of the matters that the respondent relied on that might appear to be inconsistent related to cultural factors, for example in relation to the appellant saying his brother was the same age in interview and at the appeal hearing, nearly three years later, the Judge found that this discrepancy did not seriously affect his credibility [27];
iii. However, the Judge noted a number of inconsistencies relating to the appellant’s account of his relationship with D. These included the circumstances in which they were able to meet away from her parents and whether he had been able to speak to her when he saw her in a local town. The Judge recorded the appellant’s evidence that they had met in a town that was approximately 90 minutes’ drive away from where the appellant was working and held that they could not have met at lunchtimes as the appellant had said. The Judge considered the appellant’s account regarding these meeting to be unlikely [28]-[29];
iv. The Judge also considered it unlikely that the appellant had entered into a physical relationship with D at D’s sister’s house. The Judge found that the appellant’s account that the relationship was disapproved of by D’s family to be unlikely as was the fact that his mother had not questioned him about his absences. Nor was the relationship in accordance with societal norms [30];
v. The Judge recorded the appellant’s evidence that he was warned off from pursuing his relationship with D and was sacked from his job. The Judge considered D’s sister’s assistance in the relationship to be implausible and that it strained plausibility to accept that the appellant and D pursued their relationship in the face of family opposition following threats, but with D’s sister’s assistance. The Judge found it difficult to accept the appellant’s explanation that he pursued his relationship with D in the hope of forcing D’s family to agree to a marriage [31];
vi. In considering the appellant’s claim that he was at risk as a potential victim of honour killing the Judge noted the background evidence that the Barzani family are leading political figures in Iraq but also noted that women are more likely to be the victims of honour killing than men and that offences against men alone are rare. The appellant did not suggest that D had been ill-treated and the Judge considered it very unlikely that only the appellant would be targeted. The Judge did not accept the appellant’s claim to have been kidnapped nor that he did not need medical treatment when released despite being beaten to the extent that his mother did not recognise him [32]-[33];
vii. The Judge noted that although the appellant said he had electronic communications with D by a phone that was taken away from him when he was kidnapped and then from a second phone, he was not able to produce any evidence to show this communication had taken place [34];
viii. The appellant’s account was that his maternal uncle had arranged his travel to the UK after his release and that he maintained contact with his uncle while in France after he left Iraq using an agent’s phone. The Judge did not accept the appellant’s reasons for not maintaining contact with his family [35]-[36];
ix. In considering the core of the appellant’s claim, the Judge set aside variations of time and date and made allowance for the appellant’s age. However, he concluded that he did not accept the principal events on which the appellant relies. The Judge did not consider the appellant’s claim to be credible and he did not accept the core of his account [37];
x. The Judge found as a fact that the appellant was not in a relationship with D and that he was not of adverse interest to the Barzani tribe or other persons in Iraq. He had had assistance from his uncle. The Judge considered that the appellant’s departure from Iraq was planned over time, he is not in need of protection but is an economic migrant. The Judge concluded that the appellant has no well-founded fear of persecution or ill-treatment under the refugee convention or otherwise [28]-[39];
xi. As to the appellant’s lack of documentation, the Judge found there was no risk to the appellant because of this. There were no issues relating to state protection or internal relocation [40]-[41];
xii. The Judge accordingly rejected the appellant’s grounds of appeal relating to humanitarian protection [43], articles 2 and 3 of the European Convention on Human Rights (‘ECHR’) [44] and article 8 ECHR [45]-[48].
7. The appellant sought permission to appeal to the Upper Tribunal, permission to appeal was refused by the First-tier Tribunal but was granted by Upper Tribunal Judge Sheridan on 4 February 2025 in the terms described at paragraph 2 above.
The appeal to the Upper Tribunal
8. The appellant sought permission to pursue three grounds of appeal:
i. That the First-tier Tribunal Judge erred in applying the wrong standard of proof, considering whether the appellant’s claim was likely.
ii. That the First-tier Tribunal Judge held matters against the appellant that were not put to him in cross-examination or relied on by the Respondent. In particular, the Judge’s assessment of whether D’s sister was complicit in their relationship was not something that was put to the appellant in the course of the hearing or before.
iii. That the First-tier Tribunal Judge did not make adequate adverse credibility findings.
9. The Respondent filed a rule 24 response on 18 February 2025 which we summarise. The response submits that the Judge directed themself correctly. Reading the determination in its entirety it is clear that the Judge did not accept the appellant’s claim. As to plausibility, the Judge followed KB & AH (credibility - structured approach) Pakistan [2017] UKUT 491 (IAC) and assessed the Appellant’s account by reference to cultural norms. Whilst it is correct that matters relating to D’s sister were not put to the appellant in cross-examination, that is immaterial to the overall account of the appeal. The Judge rejected the Appellant’s account for a variety of reasons given between paragraphs 28 and 36 of the decision. It is unlikely that a response from the appellant regarding D’s sister would have led to a different outcome and would have been self-serving absent any evidence from D’s sister. The Judge was entitled to characterise the appellant’s account as implausible in the circumstances. There was no material error of law and the Judge’s decision was thorough and reasoned in its rejection of the appellant’s claims.
The error of law hearing
10. The matter comes before us to determine whether the decision contains an error of law and, if it does, whether to re-make the decision or remit the appeal to the First-tier Tribunal to do so. We were provided with a hearing bundle running to 351 pages including the grant of permission, the grounds of appeal, the First-tier tribunal’s determination, both parties’ bundles from the hearing before the First-tier Tribunal and other relevant documents. We were provided separately with the rule 24 response and Mr. Lay’s skeleton argument.
11. The hearing was attended by representatives for both parties as above. We heard submissions from both sides, summarised below.
12. At the end of the hearing we reserved our decision which we now give.
Legal Framework
13. The law in relation to a positive case being put to a witness is well established. In Tui v Griffiths [2023] UKSC 48 Lord Hodge, giving the Judgment of the Supreme Court held:
36. … It is trite law that as a generality in civil proceedings, the claimant bears the burden of proof in establishing his or her case. It is trite law that the role of an expert is to assist the court in relation to matters of scientific, technical or other specialised knowledge which are outside the judge’s expertise by giving evidence of fact or opinion; but the expert must not usurp the functions of the judge as the ultimate decision-maker on matters that are central to the outcome of the case. Thus, as a general rule, the judge has the task of assessing the evidence of an expert for its adequacy and persuasiveness. But it is trite law that English law operates an adversarial system, and the parties frame the issues for the judge to decide in their pleadings and their conduct in the trial. It is also trite law that, in that context, it is an important part of a judge’s role to make sure that the proceedings are fair. At the heart of this appeal lies the question of the requirements of a fair trial.
…
61. From this review of the case law it is clear that there is a long-established rule as stated in Phipson at para 12.12 with which practising barristers would be familiar, as Bean LJ suggested in para 87 of his judgment. There are also circumstances in which the rule may not apply. Several come to mind. First, the matter to which the challenge is directed is collateral or insignificant and fairness to the witness does not require there to be an opportunity to answer or explain. A challenge to a collateral issue will not result in unfairness to a party or interfere with the judge’s role in the just resolution of a case; and a witness in such a circumstance needs no opportunity to respond if the challenge is not an attack on the witness’s character or competence.
62. Secondly, the evidence of fact may be manifestly incredible, and an opportunity to explain on cross-examination would make no difference. For example, there may be no need for a trial and cross-examination of a witness in a bankruptcy application where the contemporaneous documents properly understood render the evidence asserted in the affidavits simply incredible: Long v Farrer & Co [2004] EWHC 1774 (Ch); [2004] BPIR 1218, para 60, in which Rimer J quotes from the judgment of Chadwick J in In re Company (No 006685 of 1996) [1997] 1 BCLC 639, 648.
63. Thirdly, there may be a bold assertion of opinion in an expert’s report without any reasoning to support it, what the Lord President (Cooper) in Davie v Magistrates of Edinburgh described as a bare ipse dixit. But reasoning which appears inadequate and is open to criticism for that reason is not the same as a bare ipse dixit.
…
69. Because the rule is a flexible one, there will also be circumstances where in the course of a cross-examination counsel omits to put a relevant matter to a witness and that does not prevent him or her from leading evidence on that matter from a witness thereafter. In some cases, the only fair response by the court faced with such a circumstance would be to allow the recall of the witness to address the matter. In other cases, it may be sufficient for the judge when considering what weight to attach to the evidence of the latter witness to bear in mind that the former witness had not been given the opportunity to comment on that evidence. The failure to cross-examine on a matter in such circumstances does not put the trial judge “into a straitjacket, dictating what evidence must be accepted and what must be rejected”: MBR Acres Ltd v McGivern [2022] EWHC 2072 (QB), para 90 per Nicklin J. This is not because the rule does not apply to a trial judge when making findings of fact, but because, as a rule of fairness, it is not an inflexible one and a more nuanced judgment is called for. In any event, those circumstances, involving the substantive cross-examination of the witness, are far removed from the circumstances of a case such as this in which the opposing party did not require the witness to attend for cross-examination.
14. In Lowe v SSHD [2021] EWCA Civ 2021 at [29]-[30] the Court of Appeal applied the decision in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 at [114]-[115] in the context of immigration appeals explaining the correct approach of an appellate tribunal to a first instance Judge’s decision.
15. In Abdi and others v Entry Clearance Officer [2023] EWCA Civ 1455 Popplewell LJ held at [28]-[30]:
28. There is a wealth of authority on the circumstances in which a failure to raise a point at a hearing amounts to procedural unfairness, both generally and in the context of immigration cases. It is only necessary to refer to a few.
29. HA v Secretary of State for the Home Department (No 2) [2010] SC 457 [2010] CSIH 28 was a decision of an Extra Division of the Inner House of the Court of Session presided over by Lord Reed (now PSC), who delivered the Opinion. It made a number of general points about procedural fairness in the context of immigration cases, amongst which the following emerge at [4]-[13]. Subject to the procedural rules governing first instance tribunals, the tribunal has power to decide the procedure it adopts, but in doing so must act fairly. What fairness requires is essentially an intuitive judgment which is dependent on the context of the decision; although it is possible to identify a number of general principles, they cannot be applied by rote identically in every situation. An overall judgment must be made in the light of all the circumstances of a particular case. Whether there is procedural unfairness is fact-sensitive. See [4] and [13]. The tribunal may identify an issue which has not been raised by the parties to the proceedings, but it will be unfair, ordinarily at least, for it to base its decision upon its view of the issue without giving the parties an opportunity to address it upon the matter (see [7]). As an expert body, the tribunal is entitled to reject evidence notwithstanding that the evidence has not been challenged before it. Fairness may, however, require it to disclose its concerns about the evidence so as to afford the parties an opportunity to address them (see [8]). There is, on the other hand no general obligation on the tribunal to give notice to the parties during the hearing of all the matters on which it may relay in reaching its decision (see [10]). Where an applicant can generally be expected to be aware that the tribunal will have to assess their credibility, there will generally be no unfairness in a tribunal proceeding without drawing attention to a point which the applicant could reasonably expect to be plainly relevant to that assessment (at [11]-[12]).
30. In The Secretary of State for the Home Department v Maheshwaran [2002] EWCA Civ 173 [2004] 176 Imm AR, Schiemann LJ delivered the judgment of this court. He drew attention to the difficulties often faced by those sitting at first instance in immigration cases. Of relevance to the present appeal are the following observations. There are innumerable decisions which have stressed that the requirements of fairness are very much conditioned by the facts of each case (at [6]). A failure to put to a party a point which is decided against him can be grossly unfair and lead to injustice because he must have a proper opportunity to deal with the point (at [4]). Where much depends on the credibility of a party which has made several inconsistent statements, that party has a forensic problem as to whether to confront them or focus attention elsewhere. Fairness may in some such circumstances require the inconsistencies to be put to the witness but that will not usually be the case. Usually the tribunal can remain silent, especially if the party is represented, and see how the case unfolds (at [5]).
Submissions
16. At the start of the hearing Mr. Lay confirmed the position set out in his skeleton argument that ground 1 of the grounds of appeal (at [8]) above, was not pursued and that his focus was on ground 2, with ground 3 subsumed within it.
17. Mr. Lay submitted that the appellant was asked only two questions about D’s sister’s role in his relationship with D in his asylum interview. The matter was not referred to in the Home Office’s refusal letter, nor in questioning at the hearing before the Judge. He was not asked about it in cross-examination at the hearing nor in questions from the Judge. The issue of plausibility ought to have been put to him at the hearing and goes to the heart of the Judge’s credibility findings, it is not a peripheral issue. The appellant’s response on this issue is not incapable of making a difference. It was a material issue for the Judge to consider. The correct approach is to consider this issue with the appellant’s explanation. That is capable of leading to a re-evaluation of the appellant’s credibility, which would have a domino effect on the other issues raised. The appellant could not have reasonably anticipated that a core issue in the determination would be the Judge’s view of whether a family member on D’s side would have provided a space for the relationship to take place. It is not obvious from two questions in the interview, nor was it mentioned in the refusal letter or at the hearing. The Respondent’s position is that credibility was generally in issue. It was not so obvious that it was an area where the appellant needed to provide positive evidence. It may not have been possible to obtain that evidence, although that is speculation. There is a spectrum of matters where there is a positive case on an issue of fact. It is not in the appellant’s witness statement, his counsel could not ask about it in chief, but he could have answered questions about it from the respondent or the Judge. The Home Office’s refusal was based on there being no corroborative evidence. We cannot speculate about the absence of evidence from D’s side. That is of concern to the Judge’s approach, it should not have been a matter raised for the first time in the FTT determination. The expert who reported was invited to address matters relied on by the appellant. The Respondent’s refusal letter did not raise plausibility issues regarding D’s sister and the expert could have commented on it if this was a matter in issue. It is concerning that this was raised for the first time in the Judge’s determination and this procedural failing requires remittal to the First-tier Tribunal.
18. Mr. Ojo relied on the rule 24 response. He submitted that if there has been an error it is not material. The Judge took a holistic view and looked at the background evidence. At paragraph 30 the Judge noted matters relied on by the appellant which did not accord with social norms. At paragraph 31 the judge noted other matters he could not accept. Paragraph 32 referred to the profile of the Barzani family and their political profile. The evidence showed that they are a powerful family. The Judge assessed the appellant’s credibility against this background. Paragraph 32 notes the position of women in Iraq and that they are more likely to be the victims of honour killings and that it is rarer for men. Taking all of these matters together, with the other credibility points the judge made reference to and inconsistencies that were raised, the judge followed the structured approach to credibility set out in KB & AH. The Judge took into account the appellant’s age and education. Inconsistencies were noted by the Judge at paragraph 27 onwards. There is no criticism of the Judge’s fact sensitive assessment of credibility. The Judge had heard oral evidence and submissions from both parties as well as the background evidence. Applying the Supreme Court’s decision in Tui v Griffiths at [62], if the appellant had been cross-examined on these matters it would not have made a difference to the outcome.
Discussion
19. As we have noted above, the appellant did not pursue ground 1, we need not say any more about it. Equally, given Mr. Lay’s focus on ground 2, with ground 3 contained within it, we do not need to address ground 3 separately.
20. Our starting point for the analysis of ground 2 is that the parties agreed that the issue of D’s sister’s role in the appellant and D’s relationship was not a matter that was referred to specifically in the Respondent’s refusal letter, nor was it a matter that was referred to in the oral evidence that the appellant gave to the Judge. The advocate who represented the appellant at the hearing before the Judge provided a note of the appellant’s oral evidence which was not disputed by the Respondent. We accept that this was not a matter referred to in the appellant’s oral evidence.
21. It is the appellant’s case that the Judge made credibility findings based on their assessment of the role that D’s sister played in the appellant’s relationship with D that had not been put to him in cross-examination and that demonstrates an error of law. The appellant’s submission was that this was an error of the kind considered by the Supreme Court in Tui and by the Court of Appeal in Abdi which gives rise to procedural unfairness and therefore an error of law.
22. We are unable to accept this submission. It is correct that the Respondent did not cross-examine the appellant regarding D’s sister’s role. Nor did the Judge ask the appellant questions about this aspect of his claim. The Judge proceeded to make findings on this issue which we have summarised at [6](iv) and (v) above. We accept that the failure to put these matters to the appellant before making findings on them does amount to an error on the part of the Judge.
23. However, this error was not a material error of law. First, it is apparent from the Judge’s determination that they took a holistic and structured approach to assessing the appellant’s credibility. That included, in fairness to the appellant, not holding inconsistencies over dates against him and taking account of his young age, both at the time of the matters he described in his claim and at the time of his interview. There was no criticism of the Judge’s overall approach which we consider was plainly correct.
24. Second, it is also clear from a fair reading of the Judge’s decision that the issue relating to D’s sister was only one of a multiplicity of points where the Judge found that the appellant’s account was not credible or plausible. We have summarised the Judge’s findings at [6](iii), (vi), (vii), (viii), (ix) and (x) above all of which were negative findings regarding the reliability and plausibility of the appellant’s account which led the Judge to conclude that his account was not credible. None of those matters turned on the Judge’s rejection of the appellant’s account regarding D’s sister’s role in the appellant’s relationship with D. Accordingly, we consider that even if the appellant had been asked about these matters it would not have changed the Judge’s conclusions, which were open to him, given the other inconsistencies the Judge identified. The issue relating to D’s sister was, in our judgment, a minor and peripheral point. The error in not putting that matter to the appellant does not materially undermine the Judge’s approach to, and assessment of, the appellant’s credibility.
25. Third, although the appellant places weight on this issue at this stage, the role of D’s sister in his relationship with D was not a matter on which he provided any evidence at all in his witness statement made for the appeal hearing before the Judge. Nor has the appellant sought to put in further evidence under rule 15(2A) of the Upper Tribunal procedure rules to provide a supplementary statement to explain what his response would have been if the matters relating to D’s sister’s role had been put to him at the hearing. We are left with speculation as to what that evidence might have been and why there was no evidence on this issue before the Judge or before us. That is insufficient to demonstrate an error of law on the part of the Judge in this case.
26. Fourth, applying the decision in Abdi, we consider that this is a case where all aspects of the appellant’s credibility were generally in issue, save for his nationality, ethnicity and date of birth. The Respondent’s refusal letter made clear that it did not accept the appellant’s account of having been in a relationship with D at all. Accordingly the appellant was on notice that all aspects of his account regarding that relationship were in issue at the hearing before the Judge. The appellant was aware that the Judge would have to assess his credibility generally and specifically in relation to all aspects of his account of his relationship with D. As Abdi and HA explain, there is generally no unfairness in a tribunal proceeding without drawing attention to a point which the applicant could reasonably expect to be plainly relevant to its assessment. In this case that encompassed the entirety of the appellant’s account regarding his relationship with D.
27. Fifth, we accept Mr. Ojo’s submission that this is a case of the sort discussed in Tui at [62], namely a case where cross-examination on this issue would not have made any material difference. Accordingly, for the reasons set out above, we are not able to accept Mr. Lay’s submission that if the role of D’s sister had been put to the appellant, his answers to those questions would have had a domino effect on the Judge’s assessment of the appellant’s credibility globally. It would not.
28. In our judgment, the Judge took a structured and holistic approach to the appellant’s credibility and gave cogent reasons for rejecting his account, finding it to be implausible and incredible. The Judge’s decision leaves the appellant under no misapprehension as to why his appeal was dismissed. It contains full reasons which enables a reader to understand why the appeal was decided as it was and the Judge’s conclusions on the main issues in dispute. We conclude that the failure to question the appellant regarding D’s sister’s role in their relationship, whilst an error, was not a material error of law for the reasons we have explained.
29. It follows that we conclude that the First-tier Tribunal’s decision did not involve the making of an error on a point of law. We dismiss this appeal.

Notice of Decision
The appeal is dismissed

D Sternberg

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

11 April 2025

NOTIFICATION OF APPEAL RIGHTS

1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal’s decision was sent:

2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).

3. Where the person making the application is in detention under the Immigration Acts, the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).

4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).

5. A “working day” means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.

6. The date when the decision is “sent’ is that appearing on the covering letter or covering email