Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005919

First-tier Tribunal No: PA/53696/2023
LP/06924/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 13th of June 2025

Before

UPPER TRIBUNAL JUDGE BLUNDELL
DEPUTY UPPER TRIBUNAL JUDGE HARRIS

Between

BSA
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Katani, Legal Representative
For the Respondent: Mr Tan of Counsel

Heard at Field House on 29 May 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
1. This is an appeal by the appellant against the decision dated 16 October 2024 by First-tier Tribunal Judge Malik dismissing an appeal against the respondent’s decision dated 12 June 2023 to his protection claim based on fresh submissions made on 7 December 2022.
2. The appellant had a previous protection appeal dismissed by First-tier Tribunal Judge Herwald in a decision promulgated on 9 October 2020
3. This appeal comes before us to decide whether there is an error of law in the decision of the First-tier Tribunal. If we determine that the First-tier Tribunal decision does contain an error of law, we need then to decide whether to set aside the decision. If we set aside the decision, we must then decide whether this Tribunal should remake the decision or whether we should remit the appeal to the First-tier Tribunal to do so.
The First-tier Tribunal Decision
4. After identifying the issues between the parties, the claims made and the legal framework, the FTTJ indicates that he has considered the oral and documentary evidence produced when making his findings. Beginning with the asylum grounds, the FTTJ notes that the appellant had submitted a medical report by Dr MH which along with certain other submissions made before him, sought to address issues arising in the first refusal letter and the appellant’s interview. Nonetheless, the FTTJ treated the previous decision of Judge Herwald as his starting point where it was found that the appellant’s account lacked credibility.
5. The FTTJ turns to assess the documentary evidence produced before him by the appellant which was not before the previous judge. The FTTJ finds it was unclear how the appellant was able to obtain the claimed ID card of his stepfather when it was claimed the stepfather was out to kill the appellant. The FTTJ notes that the appellant produced the report of Dr AG , whose expert evidence was that it was plausible the stepfather might be trying to frame the appellant and that the clearance to hold a weapon implied the stepfather was a member of the Peshmerga. However, the FTTJ comments that it did not appear from the report that the expert was provided with the decision of Judge Herwald where the appellant’s account was found to be incredible.
6. The FTTJ finds that there was no other evidence beyond the word of the appellant that the ID card produced was that of his stepfather as the untranslated copy of the document was not provided. The FTTJ considers that the evidence of the photos produced by the appellant with supporting identify documentation, said to show the appellant’s relatives, did not of itself establish that anyone shown was related as claimed. Even if the people shown were related as claimed, the photos did not indicate the stepfather held any power or influence in Iraq. It is unclear to the FTTJ how the appellant obtained this evidence, given the contact he described as having with his mother and stepfather.
7. The FTTJ further finds that the claim that the stepfather held any power in Iraq was contradicted by the stepfather being arrested by the police after assaulting and hospitalizing the appellant in October 2015.
8. The FTTJ assesses the translated document that starts with “Afafa Police station 6-04-2021” (which we will call “the Police station documentation”) and which involves the stepfather making a complaint against the appellant for defrauding him of money/gold. The FTTJ considers that nowhere in this document is it recorded when the claimed defrauding took place. The FTTJ finds there is no reasonable explanation for why the stepfather would wait from October 2015 to make the claimed false allegations forming the basis for the documents dated 2021, 2022 and 2023, given the appellant was not even in the country. The FTTJ also finds that, if it was made as a disincentive for the appellant to return to Iraq, there is again no reasonable explanation as to why the stepfather would wait until 2021 to take such action.
9. The FTTJ observes that the appellant was relying on a September 2024 statement from his (now former) solicitor NB who explains that, seeking an independent solicitor in Iraq to verify the documents as genuine and still active, she obtained the contact number of PSM from the country expert HH for someone he had used in the past. The FTTJ comments there was no evidence from HH about this recommendation and no evidence in the WhatsApp exchange between NB and PSM as to what steps PSM took to verify the authenticity of the documents. The FTTJ finds that although the appellant has provided an ID card for PSM indicating membership of the Iraq-Kurdish Bar, PSM did not provide even basic information as regards at which court he made the checks.
10. The FTTJ finds as a consequence that the documentation now relied upon by the appellant, taken with the previous credibility findings, was entitled to little weight. This was not a case where the findings of the previous judge should be departed from. The FTTJ finds the account of the appellant was not true whether as a real likelihood or on the balance of probabilities. The appellant did not establish on the balance of probabilities that he had a characteristic that could cause him to fear persecution as a member of a member of a particular social group for the reasons he claimed. The FTTJ goes on to find that the appellant has not established that it is reasonably likely that he would be persecuted for Convention reason on return to Iraq. The FTTJ dismisses the appeal on asylum grounds.
11. For similar reasons the FTTJ dismisses the appellant’s claim regarding fear of his stepfather on humanitarian protection grounds and implicitly on Article 3 grounds (the appellant has taken no point about this). The FTTJ additionally notes that, when asked at the hearing before him where was the appellant’s CSID, the appellant said “I left all of them in Sweden”. The FTTJ considers there was nothing preventing the appellant requesting the return of his documents from the Swedish authorities. He also considered in line with the previous findings made, should the appellant wish, it was reasonably open to the appellant to relocate to the IKR. No documents issues prevented the dismissal of the appeal on humanitarian protection grounds.
12. The FTTJ also made findings under Article 8 which we will not detail as they are not the subject of any distinct legal challenge by the appellant.
The grounds of appeal
13. The appellant raises 10 grounds of appeal, some with various limbs. We shall refer to the points made where relevant in our findings below.
Grant of permission to appeal
14. In a decision dated 24 December 2024 First-tier Tribunal Dieu found the grounds of the appellant were arguable and granted permission to appeal
The Upper Tribunal Hearing
15. This was a hybrid hearing. Mr Katani and Mr Tan each joined us at Field House by CVP.
16. We had before us at the hearing the consolidated bundle of documents filed by the previous representatives of the appellant.
17. In summary, Mr Katani for the appellant in his submissions relied upon the grounds of appeal to argue that the FTTJ had materially erred in law in his decision while Mr Tan for the respondent submitted that the decision contained no material error of law because the FTTJ engaged properly with the issues mentioned in the grounds and made findings lawfully open to him to make.
Discussion
18. We consider that most of the grounds pursued by the appellant lack merit and are seeking to challenge findings which it was lawfully open to the FTTJ to make on the evidence at it was presented before him.
19. However, we find we do have the following concerns about the decision of the FTTJ.
20. Firstly, when assessing the provenance and reliability of the verification evidence said to come from the Iraqi lawyer PSM, the FTTJ notes in paragraph 16 of his decision that the appellant’s then solicitor NB says it was HH, the country expert, who referred her to PSM. The FTTJ goes on to say there is no evidence before him from HH that they recommended PSM. We find here the judge has implicitly rejected attaching any weight to the account of events given by NB but has provided no reason for this. This is an error concerning a matter central to the credibility of the claim made by the appellant.
21. Moreover, NB in her witness statement is either being honest in her account about seeking the advice of MM or she is not. By apparently treating the evidence of NB as not worthy of weight, the FTTJ has, it appears unwittingly, impugned the reputation of a solicitor in practice in this jurisdiction. We find this to be problematic and adding to the significance of the error.
22. Mr Tan invited us to focus on the other points made by the judge about the quality of the evidence produced by PSM. We agree with the FTTJ that it was lacking in basic detail. PSM did not identify the court at which he had made enquiries or indeed how he had done so. His evidence was contained in a WhatsApp exchange with the appellant’s solicitor. These are all valid criticisms made by the First-tier Tribunal about this evidence. The difficulty, however, is that the FTTJ’s observations about PSM’s evidence must be considered as a whole. We have no doubt that the first of those observations was erroneous in law for the reasons we have set out above, and we cannot be sure that the FTTJ would have reached the same conclusion on PSM’s evidence if he had not fallen into that error.
23. Secondly, we consider the appellant is right to submit at paragraph 9 of his grounds of appeal that the FTTJ failed to make a finding about the 2024 letter from the lawyer HKA whom the appellant instructed about obtaining a CSID and who it is claimed was the person who initially discovered there was a court order and arrest warrant against the appellant. We accept that this is evidence which is capable of supporting the appellant’s claim and required a finding from the FTTJ. This is an error by the FTTJ. It follows that the first ground of appeal discloses two separate errors of law in the judge’s treatment of the documentary evidence.
24. Thirdly, from what the parties could draw our attention to in the refusal letter, review and the First-tier decision itself, it does appear that the respondent did not raise as an issue before or at the hearing in cross-examination or submissions that there was any challenge concerning the claim of the appellant to have obtained his stepfather’s identification card. Notwithstanding this, in both paragraph 13 and 14 of the decision the FTTJ makes adverse findings concerning the appellant’s claim regarding this evidence which contribute to the conclusion made at paragraph 17 of the decision that the documentary evidence produced by the appellant is entitled to little weight. We acknowledge there is a tension between the claim of the appellant to be at real risk from his stepfather and the ability of the appellant to obtain his stepfather’s ID card. However, given the approach taken by the respondent on the matter, we consider fairness required that the appellant be given the opportunity at the hearing to comment or provide an explanation about the concerns focussed upon by the FTTJ in his decision regarding the claimed identification of the stepfather. We find the FTTJ has fallen into error here. We consequently find ground three to be made out.
25. Fourthly, when the FTTJ assesses the Police station documentation at paragraph 15 of the decision, we consider that he does not assess it as a whole. When finding that it is not recorded “in this document” when the claimed defrauding took place, the FTTJ does not take into account that the document as translated contains a number of pages which concern the collection of witness and police statements about the allegation. At p.138 of the respondent’s bundle we see that another witness does expressly refer to 2015 as when the appellant took the jewellery. The FTTJ does not assess this before reaching his conclusion about attaching no weight to the Police station evidence and we find this to be an error. For that reason, we find that the first complaint articulated in ground two is also made out.
Is there a material error of law requiring us to set aside the decision of the First-tier Tribunal?
26. We consider that the errors we have identified as being made by the FTTJ do concern parts of the appellant’s case central to his claim to be at real risk in Iraq in terms of the reliability of documentary evidence produced and the credibility of the appellant.
27. Accordingly, we find the errors of the FTTJ are material and require us to set aside the First-tier decision.
Remaking
28. We have considered whether we should remake the decision on the appeal in this Tribunal. The normal course of action is for this Tribunal to remake the decision even if it requires further findings of fact to be made on the evidence.
29. However, given that fresh findings will need to be made about the reliability of documentary evidence produced by the appellant which directly affect the credibility of the appellant, we consider it appropriate to remit this appeal to the First-tier Tribunal to be heard afresh. This includes not only protection grounds of appeal but also grounds under Article 8 because there is overlap with issues that form part of the appellant’s protection claim.
30. We make the final observation that under the Nationality and Borders Act 2022 the first question on asylum grounds that the First-tier Tribunal will be required to decide is whether the appellant have a characteristic which could cause him to fear persecution for a Refugee Convention reason. We consider that it was far from clear in either the skeleton argument or the case recorded at paragraph 7 onwards of FTTJ Malik’s decision as put before him on what basis the appellant argues he is a member of a particular social group. Before us Mr Katani submitted it was on the basis of the appellant being a potential victim of an honour crime. It will, of course, be for the First-tier Tribunal to consider this or any other submission the appellant seeks to make on the issue.

Notice of Decision
The decision dated 16 October 2024 contains material errors of law. We set aside that decision and direct that the appeal be remitted to the First-tier Tribunal for a fresh hearing before any judge except Judge Malik.

M Harris

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

6 June 2025