Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2024-005879
UI-2024-005880
UI-2024-005881

First-tier Tribunal Nos:
PA/65024/2023
PA/65029/2023
PA/65335/2023

THE IMMIGRATION ACTS

Decision and Reasons Issued:
On the 07 April 2025

Before

UPPER TRIBUNAL JUDGE GREY
DEPUTY UPPER TRIBUNAL JUDGE BIBI

Between

KMR, AKM and AKM
(ANONYMITY ORDER MADE)
Appellants
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr Michael McGarvey, Counsel instructed by Crowley and Company
For the Respondent: Dr Suzana Ibisi, Senior Home Office Presenting Officer

Heard at Field House on 18 March 2025

DECISION AND REASONS

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellants are granted anonymity.

No-one shall publish or reveal any information, including the name or address of the Appellants, likely to lead members of the public to identify the Appellants. Failure to comply with this order could amount to a contempt of court.

Background
1. The Appellants appeal against the decision of the First-tier Tribunal Judge Lester (“the Judge”) dated 16 October 2024 dismissing the Appellants’ asylum appeal.
2. The Appellants are Iraqi nationals of Kurdish ethnicity. The first Appellant (hereinafter “the Appellant”) is the father of second and third Appellants. The Appellant’s wife and his two children are dependant on the Appellant’s claim. The Appellants claimed asylum upon arrival in the UK on 26 February 2021 and their claim was refused on 29 November 2023. Their appeals against that decision came before the First-tier Tribunal at a hearing on 13 September 2024.
3. The Appellant’s account is that he started being politically active against the Iraqi Kurdish Region (IKR) authorities in 2010, attending demonstrations in 2011 and 2015. He was arrested and detained following each of these demonstrations. On 05 February 2021, the Appellant’s home was raided, and he managed to escape. He fled Iraq on 06 February 2021 with his wife and their two children.
4. The Respondent accepted the Appellant’s identity, that he is an Iraqi Kurd and that he had been politically active in Iraq. Further, it was accepted that if the first Appellant’s account was established there would be no protection available on return to the IKR and the Appellants would not be able to safely internally relocate.
5. The Respondent does not accept that the Appellant came to the adverse attention of the Kurdish authorities on credibility grounds due to inconsistencies and a lack of detail in his account. It was also disputed that the Appellant does not have access to his Iraqi identification or would be unable to obtain his CSID or replacement documentation.
6. The Judge dismissed the Appellants’ appeals, making various adverse credibility findings in relation to the Appellant.
7. The Appellants sought permission to appeal on two grounds. Ground 1 asserts that the Judge failed to give adequate reasons and placed reliance on insignificant factors. In relation to this ground the Appellant refers to five specific matters. In respect of ground 2 it is asserted that the Judge failed to apply caselaw in failing to apply the HJ (Iran) principle in accordance with RT (Zimbabwe) [2012] UKSC 38.
8. Permission was granted by First-tier Tribunal Judge CL Taylor on 20 December 2024 on limited grounds. On ground 1 permission was granted in respect of four of the five matters pleaded, on the basis the Judge made an arguable error of law by taking minor inconsistencies into account in the credibility assessment, in circumstances where the account of political activities was accepted by the respondent. The four specific matters referred to in the grant all relate the Judge’s adverse credibility findings on the basis that:
i) The Appellant did not correct an obvious error made in the asylum interview. At AIRQ104 it states the Appellant undertook his political activities in December 2021 and at question AIRQ105 it states it was in December 2020.
ii) The Appellant’s release from detention was contrary to the objective evidence.
iii) The Appellant's wife gave a slightly different account of how the Appellant left his house when the authorities arrived.
iv) The Appellant agreed to repay his uncle the cost of the agent without the Appellant knowing those costs.
9. Judge Taylor did not accept there was an arguable error of law in respect of the Judge’s finding that it was not credible the Appellant could pass three checkpoints without being asked for documentation because the issue of whether the Appellant was in possession of his documents was a live issue.
10. Judge Taylor granted permission on ground 2 on the basis that the Judge failed to consider the HJ (Iran) principle which should have formed part of his risk assessment regardless of whether it was raised in the Appellants’ appeal skeleton argument (“ASA”).
11. There was no Rule 24 response filed by the Respondent.
Hearing
12. The submissions on behalf of the Appellants were closely based on the written grounds. In relation to ground 1, Mr McGarvey submitted that the error in the interview record concerning the date of the Appellant’s most recent political activities was clearly a typographical error. Mr McGarvey argued that the Judge had erred at [41] and [42] of the decision where he found that the Appellant’s account of how he was released from custody in 2015 was inconsistent with the objective country information. In submissions, Mr McGarvey addressed the American use of the terms ‘bail’ and ‘bond’ which he submitted have the same meaning. He referred us to the country evidence which confirmed that the government periodically released detainees.
13. Mr McGarvey further submitted that at [44] of the decision the Judge made an adverse credibility finding and erred in placing weight on a minor inconsistency between the account of the Appellant and that of his wife in exactly how he had escaped from his home when the authorities arrived looking for him. In relation to the Judge’s adverse credibility finding at [46] of the decision concerning the Appellant agreeing to repay his uncle for his escape from Iraq without knowing how much it was, it was put to us that this issue was completely irrelevant to the Appellants’ asylum claim and that the Judge erred in law by making an adverse credibility finding on this basis.
14. In relation to ground 2, Mr McGarvey argued that the Judge erred in law by failing to consider the guidance from RT (Zimbabwe) which states that “The HJ (Iran) principle applies to any person who has political beliefs and is obliged to conceal them in order to avoid the persecution that he would suffer if he were to reveal them”. Furthermore, he submitted that the Judge erred by failing to make any findings in relation to the risk on return to Iraq.
15. On behalf of the Respondent, Dr Ibisi submitted that the Judge had provided adequate reasons for his decision. She submitted that when looked at holistically the Judge had correctly concluded that the Appellant lacks credibility from the minor inconsistencies identified in the decision. In relation to the Appellant’s release from detention she referred us to the relevant section of the United States Department of State (USSD). Report on the Human Rights Practice in Iraq. She submitted that at [41] of the decision, the Judge refers to objective evidence from the USSD report which noted that the law in Iraq allows for release “on bond” for criminals but not for security detainees, with the authorities rarely releasing detainees on bail. Therefore, in her submission the Appellant has not provided a credible explanation of his release. His credibility was further undermined by agreeing to repay a sum of money to a relative without knowing how much he would be required to pay.
16. With regards to ground 2, Dr Ibisi argued that the HJ (Iran) principle was not put to the First-tier Tribunal and therefore the Judge was not required to apply the case law.
17. After hearing submissions, we reserved our decision. We find that the First-tier Tribunal materially erred in law for the following reasons.
Decision on the appeal
18. It is firmly established that an appellate court should exercise caution when considering first instance decisions of the First-tier Tribunal as a specialist Tribunal of fact. The Court of Appeal and Supreme Court have repeatedly emphasised that an error of law should not be assumed where the First-tier Tribunal has not expressly referred to an authority or statutory provision. The focus must always be on the way the Judge has “performed the essence of the task required”: see, for example, Yalcin v SSHD [2024] WLR(D) 49 at [67] and the principles summarised in HA (Iraq) v SSHD [2020] EWCA Civ 1176 at [72].
19. In relation to ground 1, the Appellants’ case is that the Judge’s findings were inadequately reasoned and the Judge relied on insignificant matters in making adverse credibility findings. On considering the detailed written grounds, in essence ground 1 is a reasons challenge combined with a challenge to the weight attached by the Judge to certain matters and a challenge on the basis of a failure to consider relevant matters.
20. The Judge directed himself at [19] of the decision “In assessing the evidence, I have reminded myself that small errors and inconsistencies might easily be attributable to such matters as nerves and even simple error and, as such, might not deserve weight, particularly with regard to dates. I have considered the evidence before me in the round, in accordance with the guidance given in the cases of Karanakaran and Ravichandran, and with the most anxious scrutiny applicable to all Immigration & Asylum Tribunal claims.”. In our view, however, the Judge did not apply this direction in respect of certain matters raised in ground 1.
21. At [34] to [36] of the decision the Judge makes an adverse credibility finding on the basis that the Appellant did not correct an obvious error within his substantive asylum interview. At Q104 it states the Appellant undertook his political activities in December 2021 and at Q105 it states it was December 2020. We note, however, that the Appellant was in the UK in December 2021, having arrived in February of that year. His screening interview took place on 11 March 2021. It is clear that the Appellant could not have been carrying out political activities in Iraq in December 2021.
22. Mr McGarvey submitted that it should have been clear to the Judge that this was a simple typing error not of the Appellant’s making. Even if the error arose as a result of the Appellant misspeaking at interview rather than a typographical error, we note that this matter was addressed in the letter dated 29 November 2022 from the Appellants’ representative to the Respondent which set out clarifications in relation to the transcript of the interview conducted just 8 days prior. Amongst the clarifications set out, at [6] of the letter, it is stated that the date in question was December 2020. We also accept that at [6] and [8] of his witness statement the Appellant states that he undertook the political activity in December 2020 thus correcting the error in the substantive interview record. We accept that the Judge erred in law by taking what we consider likely to have been to be a typographical error into consideration in his overall credibility assessment of the Appellant.
23. At [42] of the decision the Judge makes an adverse credibility finding against the Appellant on the basis of his account of how he was released from custody in 2015. The Judge found his account was inconsistent with the objective country information. The decision states:
41.On his evidence part of his release requirement was to sign the agreement. In the refusal letter the Respondent refers to objective evidence from the United States Department of State (USSD) on the human rights practise (sic) in Iraq which had noted that the law allows for release on bond for criminal but not security detainees, with the authorities rarely releasing detainees on bail. The Respondent refers to this in challenging his credibility. The Appellant in submissions argued that the terms bail and bond mean similar things in the USA. They also referred to the Iraq human rights report they had provided in relation to arbitrary arrests, stating that this was what had happened to the Appellant.
42. I find that there is a tension between this objective evidence from the USSD report and what the Appellant states happened in 2015. From his evidence the incident when he was arrested was viewed by the authorities as a political demonstration and not a criminal offence. Therefore, on the objective evidence his signing an agreement to prevent being charged and in order to be released is at odds and inconsistent with the objective evidence. I find that this is something I can take into account when assessing his credibility in the round.
24. It was the Appellant’s account that he was detained for political reasons and the USSD report states “local media and human rights groups reported authorities arrested suspects in security sweeps without warrants, particularly under the antiterrorism law, and frequently held such detainees for prolonged periods without charge or registration. The government periodically released detainees, usually after concluding it lacked sufficient evidence for the courts to convict them”. Dr Ibisi referred us to the final sentence of that paragraph in the USSD report which states “but many others remained in detention pending review of other outstanding charges”.
25. On the basis of the objective evidence before the Judge we accept that he erred in his assessment of the Appellant’s account regarding his release in 2015. The Judge does not appear to have considered the objective evidence fully. If he did, he failed to provide adequate reasoning for why he considered the Appellant’s account lacked credibility when, on the basis of the country evidence before the Judge (which states that the government periodically released detainees), his account appears to be at least plausible. There may also be some merit to the assertion that confusion may have arisen from the USSD report due to US use of the terms ‘bond and ‘bail’ and that they may have been used interchangeably.
26. At [43] to [44] the Judge states “In her oral evidence she was asked how her husband had escaped from the roof. She said that he had described to her how he had been jumping over the roofs of other buildings in the neighbourhood and had escaped that way. I find that this is a significant difference. In short, he says that he took the outside staircase from the roof down to ground level then took a taxi and escaped. Whereas she says that he was jumping over the roofs of other buildings to escape. In her evidence she said that she had not known how he had escaped and so he had explained to her how he had escaped”.
27. We accept that the accounts of the Appellant and his wife appear, on the face of it, to have been inconsistent on the matter of the Appellant’s escape from his home. The Judge treated the inconsistency as significant. However, we note that the Appellant’s wife did not witness the Appellant’s escape herself and therefore could have only recounted what the Appellant told her about how he had escaped. She made no mention of the escape in her witness statement. We find that the inconsistency is not as significant as determined by the Judge. For example, it is possible that the Appellant had taken the outside staircase of a neighbour’s house to descend to street level. We accept that the Judge erred by placing too much weight on relatively minor inconsistencies relating to the escape when making the overall credibility assessment of the Appellant. We accept that weight is a matter for the Judge. However, when this issue is taken together with the other matters in relation to ground 1, we are persuaded that the Judge erred in law when the errors are taken cumulatively.
28. The final matter for us to address in relation to ground 1 is the adverse credibility finding at [46] of the decision made by the Judge on the basis the Appellant agreed to repay the money required for his escape from Iraq without knowing the amount. We acknowledge that, on the Appellant’s account, he would have been fleeing for his life. Given the circumstances at the time, we find the account put forward by the Appellant does not wholly lack credibility. We consider that it is credible that a person fleeing for their life, could agree to repay the cost of arranging to take them to a place of safety without necessarily knowing how much that might be. We are persuaded that the Judge erred by failing to provide sufficient reasoning for his adverse credibility finding on this basis and seemingly not taking into account the context of the Appellants’ circumstances.
29. To conclude on ground 1, on balance we are satisfied that the Judge failed to provide adequate reasons and/or failed to take account of relevant matters, in making various adverse credibility findings. Although individually the errors identified may not have been sufficient to render the decision unsafe, we find ground 1 to be made out and accept that cumulatively the errors were material to the outcome of the appeal.
30. Turning to ground 2, we accept that the Judge erred in law by failing to apply the principles from HJ Iran in accordance with the case of RT (Zimbabwe). This is so even though there was no specific reference to HJ (Iran) in the ASA. It was clear from that document and the decision that a key disputed issue for the Judge to determine was the risk to the Appellants on return to Iraq due to the Appellant’s political activities. It was therefore incumbent on the Judge to consider HJ (Iran) in relation to this issue in accordance with the caselaw. Given that risk on return arising from political opinion was a central issue in the appeal we consider the Judge’s failure to consider or apply HJ (Iran) to be a material error of law.
31. In light of our decision in respect of both grounds, the decision of the First-tier Tribunal is set aside. In view of the fact many of the errors identified are in relation to the Judge’s assessment of the Appellant’s credibility we preserve no findings of fact.
32. We have considered paragraph 7.2 (b) of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal and the principles in Begum (Remaking or remittal) (Bangladesh) [2023] UKUT 46 (IAC). We are of the view, supported by the submissions of the parties, that the nature and extent of the fact-finding required is such that remittal for a de novo hearing is the appropriate course of action and that to do otherwise would deny the Appellant the benefit of the two-stage appeal process.
Notice of Decision
33. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
34. The decision is set aside in its entirety with no findings preserved.
35. The Appeal is remitted to the First-tier Tribunal to be heard de novo by a Judge other than First-tier Tribunal Judge Lester.

T Bibi

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

2 April 2025