Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-006004

First-tier Tribunal No: PA/50836/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

23rd June 2025

Before

UPPER TRIBUNAL JUDGE HANSON

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

HR
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms Z Young, a Senior Home Office Presenting Officer.
For the Respondent: Mr C Holmes instructed by Batley Law Solicitors.

Heard at Phoenix House (Bradford) on 13 June 2025

Order Regarding Anonymity

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

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

DECISION AND REASONS
1. The Secretary of State appeals with permission a decision of a First-tier Tribunal Judge (‘the Judge’), promulgated following a hearing at Bradford on 2 December 2024, in which the Judge allowed HR’s appeal against the Secretary of State’s refusal, dated 5 January 2024, of his protection claim made on 22 October 2022.
2. HR is a citizen of Iraq of Kurdish ethnicity who claimed to have been mistreated, humiliated and abused in Iraq due to his speech impediment. HR also claimed he had attended demonstration to voice his opinion against the government in the IKR and to promote Kurdish rights. On one occasion, on 28 December 2017, HR claims he was beaten up when he attended a demonstration to deter him from taking part in future demonstrations. He claimed he sustained an injury to his right ear.
3. HR attended a second demonstration in about June 2022 during the course of which he was detained for 24 hours and experienced humiliating and degrading treatment and was mocked for his disability.
4. The following month HR posted critical comments about the authorities on his social media account. He stated some of his friends have been arrested for similar posts and he claims they were made to disappear. As a result, HR claimed he had no choice but to leave Iraq which he left using a Visa to travel to Turkey on 26 August 2022.
5. HR’s disability was not disputed by the Secretary of State, the issue before the Judge being the credibility of his claim to have come to significant adverse attention due to his political beliefs.
6. The Judge sets out findings of fact from [18] of the decision under challenge. At [34] the Judge records agreement with the Secretary of State’s position that the treatment HR experienced as a result of his disability is discrimination and not persecution, although also finds that HR engaged in political activity in Iraq because of the discrimination he suffered and that his political activities have continued in the UK which engages the Refugee Convention.
7. The Judge at [36] accepts the Secretary of State’s argument that the Appellant did not have a high profile in Iraq before he left the country. It was accepted when he was detained in 2022 he was not identified as someone of interest to the authorities and was therefore released. The Judge also noted HR was able to leave Iraq using a tourist Visa.
8. The reasons for allowing the appeal are set out at [39] - [41] in the following terms:
39. This brings me to the pinch point on return to Iraq. The question is whether the Appellant would disclose or would have to disclose his sur pace activities. This brings him within the scope of HJ (Iran) v SSHD [2011] AC 596.
40. The Respondent submits in the review that the Appellant would be able to delete his Facebook account and within three months this would not be visible on the internet and therefore he would not be identified by the authorities. On this basis, the timely closure of the Facebook account would neutralise the risk consequential on having a critical account.
41. This is not a case where I have found the Appellant’s political opinions to be opportunistic. On the contrary, he has genuinely held political opinions forged by his experience as a disabled person. The Appellant’s existing political profile is low but on return it is reasonably likely that he will be interviewed by the authorities. In these circumstances, I find that the Appellant should not be expected to conceal his political opinion to avoid persecution. This would put him at risk on return from the authorities in Iraq.
9. The Secretary State sought permission to appeal asserting the Judge had failed to give adequate reasons in support of the decision to allow the appeal and/or made perverse or irrational findings on the matter or matters that were material to the outcome.
10. Permission to appeal was granted by another judge on 9 April 2025, the operative part of the grant being in the following terms:
2. The grounds assert that the Judge erred in the adequacy of the reasons given and in the findings made.
3. The grounds are arguable. At paragraph 36 the Judge appeared to find he was not of interest to the authorities in 2022 - he had been detained and released. At paragraph 34 it was found he had not been persecuted. He was able to leave Iraq on a tourist visa.
4. The Judge then went on to consider sur place activities, finding that his attendance at demonstrations did not suggest a high profile and that his Facebook posts would not have come to the attention of the authorities. At paragraph 39 the Judge referred to the pinch point on return, disclosure of sur place activities, and that this brought him within the scope of HJ (Iran). The Judge found he had genuine political opinions but had a low profile. He would be interviewed. Paragraph 41 concludes “In these circumstances, I find that the Appellant should not be expected to conceal his political opinion to avoid persecution. This would put him at risk on return from the authorities in Iraq “.
5. Having considered the grounds and the decision as a whole, I agree that it is arguable that the Judge has failed to adequately reason the decision and explain why the Appellant would be persecuted for a convention reason on return.
11. HR opposes the appeal in a Rule 24 response dated 14 May 2025, the operative part of which reads:
Response
1. The Appellant opposes the Secretary of State’s appeal and will argue that the First Tier Tribunal determination contains no legal error. The Secretary of State’s appeal should be dismissed. The Appellant requests an oral hearing.
The FTT’s determination
2. At [6] – [10], the FTT sets out the agreed facts in precise, granular detail. At [15] – [17], the FTT accurately and concisely sets out the applicable legal principles in an asylum appeal considered under the 2022 Act. At [19], the FTT accurately summarises the case against the Appellant, as expressed in the Respondent’s decision. At [20] – [31], the FTT analyses the evidence before it and, at [31], reaches the finding that the Appellant holds a political opinion and has a fear of returning to Iraq. At [32] to [41], the FTT determines all of the facts of the Appellant’s case and determines whether the Appellant would be at risk upon return. The FTT has expressed itself with sufficient detail to entitle the parties to understand why it has found as it has.
The Secretary of State’s Grounds
3. The Respondent’s grounds, as advanced in her grounds of appeal of 3rd January 2025, are not properly arguable and should be rejected.
4. At Paragraph 1 b) the Respondent argues that the cumulative impact of discriminatory treatment experienced by individuals with disabilities is not of such severity as to amount to persecution. The FTT does not find that it does. In fact, at [34], the FTT agrees with the Respondent. This submission addresses a finding which the FTT did not make and should be rejected. The basis on which the Tribunal allowed the Appellant’s appeal is that the Appellant is likely to be harmed upon the discovery of his earnestly held political beliefs upon return to Iraq (at [41]). There is no direct challenge to this finding.
5. At Paragraph 1 c) the Respondent appears to argue that it is inherently improbable that the Appellant would militate in favour of the rights of individuals with disabilities because assistance and opportunities are made available to the disabled population in IKR. This submission was not advanced in either the Reasons for Refusal Letter or in the Respondent’s review. It is neither properly arguable nor Robinson obvious. It was not an error for the Tribunal to fail to determine a submission which is not properly arguable and was not advanced before it.
6. At Paragraph 1 d), the Respondent argues that, in the absence of an expert country report to show that demonstrations in Iraq took place, that it cannot be said with any degree of certainty that the Appellant would face persecutory treatment upon return to Iraq. The Respondent did not dispute in either the Reasons for Refusal Letter or in the Respondent’s review that demonstrations of the sort described by the Appellant took place. In any event, the Respondent’s own Country policy and information note: opposition to the government in the Kurdistan Region of Iraq (KRI), Iraq, July 2023 recognises that protests over public services took place in Kurdistan in November 2021 (at 15.1.8) and that protests over the handling of the economy took place in December 2017 (at 13.3.3). This point was not advanced before the FTT and it is not properly arguable now.
7. At Paragraph 1 e), the Respondent argues that there is no established country information to show that the Appellant would be prevented from campaigning in favour of the rights of the disabled population of Iraq. The Respondent’s Country policy and information note: opposition to the government in the Kurdistan Region of Iraq (KRI), Iraq, July 2023 recognises that protesting against the Kurdish forces is potentially risky (at 3.1.1). Those who are considered to be at greater risk are those who have a previous history of participating in demonstrations and protests (at 3.1.3). The Respondent’s own CPIN is the best evidence in respect of this aspect of the Appellant’s claim.
Disposal
8. The Respondent’s grounds are not made out. The Appeal should be dismissed.
Discussion and analysis
12. In relation to the SSHD’s reliance on matters not previously pleaded, a similar situation was recently considered by the Court of Appeal in AAZA (Yemen) v Secretary of State for the Home Department [2025] EWCA Civ 705. Lord justice Bean gave the lead judgement which with which other members of the panel agreed. At [33 – 36] of the judgement it is written:
33. This issue, as I have already noted, was briefly alluded to by the Appellant in his witness statement to the FTT which on this point does not appear to have been the subject of cross-examination. There were apparently no submissions on the subject to the FTT and it is therefore hardly surprising that the question was not considered in the FTT judgment. Similarly, it was not the subject of a ground of appeal to the Upper Tribunal, nor of argument before the Upper Tribunal and was therefore not considered in UTJ Hanson's decision. The policy of both the FTT and the UT is very hostile to allowing points to be raised for the first time on appeal. For example, in Lata (FTT: principal controversial issues) [2023] UKUT 163 (IAC), Dove J (President) and UTJ O'Callaghan said that:-
"27. A judge sitting in the FtT can properly expect clarity as to the remaining issues between the parties by the date of the substantive hearing of the appeal. The parties are obliged by rule 2(4) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 to help the Tribunal to further the overriding objective, and to cooperate with the Tribunal generally. The parties are under a duty to provide the FtT with relevant information as to the circumstances of the case, and this necessitates constructive engagement with the FtT to permit it to lawfully and properly exercise its role. The parties are therefore required to engage in the process of defining and narrowing the issues in dispute, being mindful of their obligations to the FtT.
28. It follows that unless a point was one which was Robinson obvious, a judge's decision cannot be alleged to contain an error of law on the basis that a judge failed to take account of a point that was never raised for their consideration as an issue in an appeal. Such an approach would undermine the principles clearly laid out in the Procedure Rules."
34. This is to some extent a stricter approach than that applied by this court in cases such as Singh v Dass [2019] EWCA Civ 360 where Haddon-Cave LJ said:-
"15. The following legal principles apply where a party seeks to raise a new point on appeal which was not raised below.
16. First, an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court.
17. Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial (Mullarkey v Broad [2009] EWCA Civ 2 at [30] and [49]).
18. Third, even where the point might be considered a 'pure point of law', the appellate court will only allow it to be raised if three criteria are satisfied: (a) the other party has had adequate time to deal with the point; (b) the other party has not acted to his detriment on the faith of the earlier omission to raise it; and (c) the other party can be adequately protected in costs. (R (on the application of Humphreys) v Parking and Traffic Appeals Service [2017] EWCA Civ 24; [2017] RTR 22 at [29])."
35. I accept Mr Irwin's submission that we should adopt the Lata approach in the present case, since that is what the Upper Tribunal would have done if the point had been raised for the first time before them. I would leave for future consideration whether Lata would be applicable in its full rigour where this would result in serious injustice. In the present case I am satisfied that it would not cause injustice. As Mr Irwin has confirmed on behalf of the Respondent, if the Appellant wishes to make a submission now that fresh evidence exists relating to a risk of refoulement from China to Yemen, he could apply to the Secretary of State to reconsider his case under paragraph 353 of the Immigration Rules.
36. I have considered whether the point was "Robinson obvious" (the reference being to the decision of this court in R v Secretary of State for the Home Department ex p Robinson [1998] QB 929), particularly having regard to what the Appellant had said in his witness statement. However, it was not spotted by either Judge O'Hanlon in the FTT or Judge Hanson in the UT, nor by counsel (respectively Ms Ferguson and Mr Muquit) who appeared for the Appellant in either tribunal below. It cannot be reasonably be said that they all missed an obvious point.
13. If one takes away from the Secretary of State’s ground [1 (b)] on the basis it asserts legal error in a finding the Judge did not make, [1(c)] on the basis that it refers to a matter which was neither raised in the Refusal letter, Respondents review, was not arguably Robinson obvious, and not a matter which was therefore at large before the Judge, [1(d)] on the basis it was not disputed in the Refusal letter or Review that demonstrations of the type described by the Appellant took place and that the Respondents CPIN records that protests over public services took place in Kurdistan in November 2021 and December 2017, and it not being disputed the point was not advance before the First-tier Tribunal and is not probably arguable now, it is only arguably [ 1(e)] which remains at large.
14. In that paragraph the Secretary of State argues the Appellant was able to leave Iraq without hindrance with the support of family with no evidence of ongoing interest in him from the authorities which also argues there was no reason why the Appellant cannot continue to campaign for the rights of the disabled population within the IKR should he wish to do so on return, with no established country information to show he would be prevented from doing so.
15. That does not address the point made by the Judge who does not dispute that the Appellant will be able to express his genuinely held political views forged by his experience as a disabled person or that his existing political profile is low. The key point is that made by Judge at [31] that the Appellant has a characteristic, namely his political opinion, which could cause him to fear persecution and that if he expresses that on return it would put him at risk of persecution from the authorities. The key point made by the Judge is that the Appellant cannot be expected to conceal his political opinion to avoid persecution which is clearly a finding that the Appellant is able to succeed on the HJ (Iran) principle.
16. It matters not whether another judge would have made the same decision on the facts as that is not the test. The findings might have been expressed differently but that is not the test. It may also be that in some quarters it is felt that this is a very generous decision but, again, that is not the test.
17. Guidance has been provided by the Court of Appeal in a number of cases including Volpi v Volpi [2022] EWCA Civ 462 at [2], Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 at [26] and Hamilton v Barrow and Others [2024] EWCA Civ 888 at [30-31], the upshot of which is that appellate judge should not interfere with a decision made by judges below unless it is ‘plainly wrong’. Whilst the Secretary of State disagrees with the Judge’s findings it is not made out that this decision is outside the range of those reasonably open to the Judge on the evidence. It has not been shown to be plainly wrong. On that basis there is no material legal error and I dismiss the appeal.
Notice of Decision
19. No material legal error in the determination of the First-tier Tribunal has been made out. The determination shall stand.

C J Hanson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

19 June 2025