Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000075

First-tier Tribunal No: RP/50084/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 19th of March 2025

Before

UPPER TRIBUNAL JUDGE RIMINGTON
DEPUTY UPPER TRIBUNAL JUDGE BURGHER

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

KAE
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr Collins, Counsel, instructed by Liberty Solicitors
For the Respondent: Mr E Terrell, Senior Presenting Officer

Heard at Field House on 11 March 2025

Order Regarding Anonymity

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

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

DECISION AND REASONS

1. Although the appeal was brought by the Secretary of State for the Home Department (“SSHD”) hereinafter, for clarity, the parties are described as they were before the First-tier Tribunal, that is KAE as the appellant and SSHD as the respondent.
2. The appellant is a national of Iraq born on 1 January 1988.
3. The SSHD appeals with the permission of First-tier Tribunal Judge H Athwal, which was given on 6 January 2025, against the decision of First-tier Tribunal Judge Cox (‘the judge’) dated 19 November 2024, in which the judge allowed the appellant’s appeal on asylum grounds and on human rights grounds.
4. This is the decision of the panel and includes the contributions of both judges.
5. The appellant was granted anonymity before the First-tier Tribunal because he has made a claim for international protection. Having taken into account Guidance Note 2022 No.2: Anonymity Orders and Hearings in Private, we are satisfied that it is appropriate to continue that order because the UK’s obligations towards applicants for international protection and the need to protect the confidentiality of the asylum process outweigh the public interest in open justice in this case.
Background
6. The appellant arrived in the UK in a lorry on 29 September 2018 and claimed asylum the following day.
7. The Home Office refused the application on 1 February 2019 and the appellant appealed. In a determination promulgated on 28 March 2019, Judge Smith dismissed the appellant’s appeal. The appellant’s appeal rights became exhausted on 10 May 2019.
8. On 20 February 2020 the appellant lodged further representations, which were refused with no right of appeal.
9. On 24 February 2023 the appellant lodged further submissions. He maintained that he cannot return to Iraq as he is at risk of suffering serious harm throughout the IKR. In doing so he relies on a report by Dr Fatah (Country Expert), dated 8 June 2022 referencing changes to the current situation in IKR.
The Appeal before FtT Judge Cox
10. The judge heard the appellant’s appeal on 8 November 2024 and allowed it by decision and reasons sent to the parties on 19 November 2024. Insofar as is relevant the judge stated:
20. At the outset of the hearing, it was agreed that the key issue was whether the Appellant can safely relocate to the area of the IKR controlled by the KDP and, in particular Erbil. Counsel did not seek to go behind the judge’s findings that the fact that the fact that the PUK have an adverse interest in the Appellant will give rise to him being at risk in the KDP area of the IKR. In my view this was an appropriate concession as Dr Fatah does not suggest that there is an exchange of information between the authorities.
21. In addition, Counsel did not seek to argue that the KDP authorities will be aware of his activities in the UK. Instead counsel effectively relied on HJ (Iran). As such, a potentially key factual issue to decide is whether there is a reasonable degree of likelihood that when the Appellant continues his political activities in the IKR, he may come to the adverse attention of the KDP authorities. In this context, the Respondent maintains that the Appellant does not have a genuine fear of persecution in the kDP controlled area of the IKR.
22. Although the fact that the Appellant does not have his CSID with him was not explicitly raised as an issue, as the hearing progressed, it became apparent that a further key issue is whether the Appellant can safely obtain the appropriate identity documents upon his return to the IKR.
The documentation issue
26. My starting point is that Judge Smith found that the Appellant was in contact with his family and could obtain his CSID.
27. It is the Appellant’s case that since drafting his witness statement, in which he stated that he remained in contact with his family in Iraq, he has lost contact with them. He explained that he was in contact with his family through his cousin on Facebook. However, his cousin’s Facebook page has disappeared. He has undertaken a search on Facebook, but has not found any members of his family.
28. The presenting officer noted that the Appellant had been in contact with his cousin for some time and submitted it was reasonable to have expected him to have obtained his CSID from his cousin. The Appellant told me that he had not asked his cousin for his CSID as he would not have needed it here and does not want to go back, as it would not be safe for him. As such, he said, rhetorically why would I ask for such a thing?
29. Although there are issues arising from the documentation issue, upon reflection, I have decided that I do not need to resolve these issues, as the situation in the country has changed since the judge’s decision.
30. I have had regard to the Country Policy and Information Note Iraq: Internal relocation, civil documentation and returns, October 2023. I note the Iraqi National Identity Card (INID) replaces the Iraqi Nationality Certificate (INC) and the Civil Status ID Card (CSID) and that since 2017, the uptake of the INID has been slow but it is estimated that 85-90% of people in the KRI have now obtained the INID (3.7.1).
31. I also note that the CSID can still be used for passing through checkpoints and accessing services such as financial assistance, employment, education, housing and medical treatment. It is also still a gateway to obtaining other documents including the initial issuance of an INID (3.7.5)
32. As such, on the face of it, if the Appellant has a CSID he can safely relocate to Erbil. However, in SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 110 (SMO2), the Upper Tribunal held that
‘In order to obtain an INID, an individual must personally attend the Civil Status Affairs ("CSA") office at which they are registered to enrol their biometrics, including fingerprints and iris scans.
‘… Once in Iraq, it remains the case that an individual is expected to attend their local CSA office in order to obtain a replacement document. All CSA offices have now re-opened, although the extent to which records have been destroyed by the conflict with ISIL is unclear, and is likely to vary significantly depending on the extent and intensity of the conflict in the area in question (paragraphs 144 (12) and (15)).
33. Accordingly if I assume for one moment that the Appellant can access his CSID, he will nonetheless still have to obtain an INID. The Appellant will have to attend his local Civil Affairs Office in Sulaminyah, which is under the control of the PUK. However, Judge Smith found that the Appellant is a person of interest to the PUK. Accordingly, in my judgement, if the Appellant tried to obtain his INDI, there is a reasonable degree of likelihood that he will come to their attention and there is a real risk of him suffering serious harm.
34. In conclusion, even if the Appellant can obtain his CSID, undertake his political activities and function on a day to day basis in Erbil without coming to the adverse attention of the KDP authorities, there will come a time when he will be expected or required to obtain his INID. He will have to return to Sulayminyah, and, at this point, he will be at risk of suffering serious harm. Accordingly, I am satisfied that the Appellant cannot reasonably be expected to relocate to Erbil. In my judgement this effectively disposes of the appeal.
11. The SSHD appealed to the Upper Tribunal by notice dated 2 November 2024. Permission was granted by First-tier Tribunal Judge H Athwal on 6 January 2025.
The Appeal to the Upper Tribunal
12. In summary, Mr Terrell maintained that the judge erred by taking an impermissible shortcut to proper determination as follows:
12.1 Failure to correctly apply country guidance,
12.2 Failure to make findings, and
12.3 Findings based on speculation.
13. No Rule 24 response was filed or served. However, at the hearing Mr Collins Counsel for the appellant made it clear that the appeal was opposed.
14. In respect of ground 1 Mr Terrell referred to SMO and KSP (Civil status documentation, article 15) (CG)) Iraq [2022] UKUT 110 (IAC) that states that it is necessary for an individual to have either a CSID or INID to live and travel in Iraq to avoid treatment contrary to Article 3 ECHR. There was no requirement to have both.
15. Mr Collins accepted that the relevant Country Guidance reads in the alternative that is a CSID or an INID and does not require an individual specifically to have an INID but submitted that the judge properly set out the Country Guidance at paragraph 32 of the decision and considered this matter in the light of the reducing areas where CSID was accepted.
16. In respect of ground 2 Mr Terrell submitted that the failure by the judge to make a finding as to whether the appellant could obtain a CSID underlined the error in applying the Country Guidance. Had the judge made such a finding he would have been required to consider whether ‘very strong grounds supported by cogent evidence, are adduced justifying’ the departure from country guidance.
17. Mr Collins accepts that the judge failed to make a finding on whether the appellant could obtain a CSID despite it being a key issue but maintains that in view of the Dr Fatah report on transitional requirements, it was not a leap too far for the judge to conclude that a INID would ultimately be required, placing the appellant at risk.
18. In respect of ground 3, Mr Terrell submitted that the judge engaged in unexplained speculation and assumptions when concluding that the appellant will have to return to Sulaymaniyah to obtain an INID at which point he will be at risk of suffering serious harm. Mr Terrell stated that this matter was not part of either parties’ case and in concluding as he did the judge
18.1 has not engaged with the consequences, if any, of what would happen if the appellant did not seek to renew his CSID;
18.2 has not assessed when the appellant is likely to have to return to Sulaymaniyah, whether in the reasonably foreseeable future or otherwise,
18.3 whether at that time he would be required to return to Sulaymaniyah he would still be of interested to the PUK; and
18.4 whether at that time he would be required to renew his CSID there would be any alternative arrangements to obtaining documents without attending Sulaymaniyah.
19. Mr Collins accepted that there was an absence of fact finding on key issues but submitted that this was not necessary given the findings that were made.
The Legal Framework
20. The Upper Tribunal is confined to considering whether there are errors of law in a FtT decision. In R (Iran) & Ors v SSHD [2005] EWCA Civ 982 Brooke LJ summarises what amounts to an error of law at paragraphs 9 and 10
9. When the court gave this guidance in Subesh, it was aware that it would not be of any relevance to an appellate regime in which appeals were restricted to points of law. It may be convenient to give a brief summary of the points of law that will most frequently be encountered in practice:
i) Making perverse or irrational findings on a matter or matters that were material to the outcome ("material matters");
ii) Failing to give reasons or any adequate reasons for findings on material matters;
iii) Failing to take into account and/or resolve conflicts of fact or opinion on material matters;
iv) Giving weight to immaterial matters;
v) Making a material misdirection of law on any material matter;
vi) Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings;
vii) Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.
10. Each of these grounds for detecting an error of law contain the word "material" (or "immaterial"). Errors of law of which it can be said that they would have made no difference to the outcome do not matter. This need to identify an error of law which would have made a material difference to the outcome…
21. SMO and KSP (Civil status documentation, article 15) (CG)) Iraq [2022] UKUT 110 (IAC) sets out the relevant country guidance applicable in this matter. Importantly, it states that it is necessary for an individual to have either a CSID or INID to live and travel in Iraq to avoid treatment contrary to Article 3 ECHR. There was no requirement to have both documents. It was held:
Kurds
27. For an Iraqi national returnee (P) of Kurdish origin in possession of a valid CSID or Iraqi National Identity Card (INID), the journey from Baghdad to the IKR by land is affordable and practical and can be made without a real risk of P suffering persecution, serious harm, or Article 3 ill treatment nor would any difficulties on the journey make relocation unduly harsh.
22. The necessity to have specific regard to relevant Country Guidance was restated in the case of Secretary of State for the Home Department v PG [2025] EWCA Civ 133 where Baker LJ held:
54. The significance of country guidance cases and the court's approach to them was considered by this court in R (SG (Iraq)) v SSHD [2012] EWCA Civ 940, ("R(SG)Iraq)") at [46] and [47], where Lord Justice Stanley Burnton explained that,
"46. The system of country guidance determinations enables appropriate resources, in terms of representations of the parties to the country guidance appeal, expert and factual evidence and the personnel and time of the tribunal, to be applied to the determination of conditions in, and therefore the risks of return for persons such as the appellants in the country guidance appeal to, the country in question. The procedure is aimed at arriving at a reliable (in the sense of accurate) determination.
47.It is for these reasons, as well as the desirability of consistency, that decision-makers and tribunal judges are required to take country guidance determinations into account, and to follow them unless very strong grounds supported by cogent evidence, are adduced justifying their not doing so."
55. In SB (Sri Lanka), Lord Justice Green, having noted what had been said in R (SG (Iraq)) v SSHD, endorsed that approach, adding at [75] that, "The guidance is by its nature incapable of covering every conceivable possible scenario that might arise and which might place a person at jeopardy if returned. It is, though, a very important starting point, is to be taken into account, and carries great weight."
56. It is within the framework of these legal principles and approach, that UT Judge Perkins was required to consider the documentary material before him and the particular circumstances relating to PG. In this regard, there was no issue but that PG was a gay man, and that unless his return amounted to a breach of his Article 3 ECHR rights, the SSHD was required to deport him to Sri Lanka.
57. The starting point for any consideration of whether PG's deportation, as a gay man to Sri Lanka, would be contrary to his Article 3 ECHR rights, was for the UT to ask itself whether it was satisfied on the available evidence that gay people who lived openly in Sri Lanka would be liable to persecution. Furthermore, in considering this question the UT was required to take the country guidance case of LH & IP into account, and to follow it unless "very strong grounds supported by cogent evidence, are adduced justifying their not doing so."
58. In relation to this latter issue, not only was the UT required to consider the further evidence which had been placed before it, but it was also necessary for the UT to carry out a careful analysis of the evidence which had been considered by the UT in LH & IP, in order to be in a position to decide whether there were very strong grounds supported by cogent evidence for not following the country guidance in that case.
Conclusions
23. We conclude that by failing to follow the Country Guidance SMO and KSP (Civil status documentation, article 15) (CG)) Iraq [2022] UKUT 110 (IAC) the judge erred in law. Judge Smith had found that the appellant could obtain a CSID. That being so the Country Guidance led to a conclusion that there was not a real risk of the appellant suffering persecution, serious harm, or Article 3 ill treatment nor would any difficulties on the journey make relocation unduly harsh. The failure to apply the Country Guidance was a substantive error given that no strong grounds for departure were provided supported by cogent evidence.
24. We conclude that the judge also erred by failing to resolve the conflict of fact on the material matter of whether the appellant could obtain a CSID. This was central to the appeal and we accept that failing to resolve this matter was an impermissible short cut.
25. Finally, we conclude that the judge failed to provide adequate reasons for findings on material matters concerning the eventualities on expiry of CSID. We accept that the judge engaged in assumptions and speculated without reference to evidence.
26. We conclude that the errors identified were substantive and material and in these circumstances the appeal of the SSHD succeeds and the First-tier Tribunal decision is set aside.
Remaking
27. Substantial fact-findings will need to be made in particular relating to whether the appellant is able to obtain a CSID and if so the basis for any conclusion that he may face a real risk of persecution or serious harm or Article 3 ill treatment in future if returned to IKR. Both parties submitted, and we accept, that it is appropriate to remit this matter to the First-tier Tribunal for a hearing de novo, see, AEB v SSHD [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC).
Notice of Decision
The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
We set aside the decision of the First-tier Tribunal.
Subject to the principles from Devaseelan [2002] UKIAT 00702 and SSHD v BK (Afghanistan) [2019] EWCA Civ 1358, in respect of the facts found by FtT Judge Smith dated 28 March 2019, we remit the case to the First-tier Tribunal at Bradford to be heard by a judge other than FtT Judge Cox with no findings of fact preserved.

Benjimin Burgher

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

13 March 2025