Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000103

First-tier Tribunal No: PA/61748/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 09 April 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE COLE

Between

KTG
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms G Patel, Counsel instructed by BHD
For the Respondent: Ms Z Young, Senior Home Office Presenting Officer

Heard at Phoenix House (Bradford) on 28 March 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. The appellant is a citizen of Iraq. He arrived in the UK on 21 September 2021 and claimed asylum. His protection claim was refused, and he appealed to the First-tier Tribunal. His appeal was dismissed in a decision promulgated 14 November 2024. The appellant now appeals to the Upper Tribunal.

Background

2. The appellant is an Iraqi citizen of Kurdish ethnicity from Sulaymaniyah governorate in the IKR. He was arrested by the authorities in late 2020 in connection with protests against the PUK. He was held for four days and tortured. Following his release the appellant held meetings in the billiard hall belonging to his family to discuss his dissatisfaction with the PUK and his anti-government opinions. The shop was subsequently shot at, and the appellant was threatened by phone because of his anti-PUK activities.

3. Since his arrival the appellant has posted social media content critical of the IKR authorities and attended demonstrations in London.

4. The respondent refused the protection claim on the basis that it was not accepted that the appellant was a person of sufficient profile to be of any adverse interest to the authorities on return to the IKR.

5. The appellant appealed to the First-tier Tribunal. The appeal was heard by Judge Dunne on 5 November 2024.

6. The Judge accepted that the appellant had been arrested, detained and ill-treated by the IKR authorities in connection with the protests that occurred against the governing parties in that region in late 2020. The Judge also accepted that the appellant hosted meetings at the billiard hall owned by his family in July to September 2021 urging people to not vote for the PUK in the upcoming election. The Judge accepted that shots were fired at the billiard hall. Finally, the Judge accepted that the appellant has expressed his opposition to the IKR authorities on social media and participated in demonstrations against them since his arrival in the UK.

7. Despite the positive credibility findings, Judge Dunne concluded that the appellant would not be at risk on return as he would not be regarded as a well-known figure or a prominent critic of the regime, and the appellant is not particularly well known among opponents of the PUK.

8. Judge Dunne dismissed the appellant’s appeal.

9. The appellant submitted grounds of challenge, and First-tier Tribunal, Judge Mulready granted permission on the following terms:

The judge set out an extract from the CPIN which confirmed “However, available evidence does indicate that the following groups of people may be at higher risk of arrest, detention, assault, excessive use of force and extrajudicial killing by the KRG authorities:
• Individuals with higher profiles: Those who have a prominent public presence, who are actively involved in or have previous history of organising or participating in protests and demonstrations.”

The judge’s findings earlier in the decision at least arguably place the Appellant squarely within the above bullet point. The judge however found the Appellant was not at the higher level of risk identified in the CPIN because he was not a “well-known figure or prominent critic” of the regime, without explaining the apparent departure from the CPIN. This is an arguable error of law material to the outcome of the appeal, because the judge’s findings about the extent of the risk the Appellant may face on return were determinative of the appeal.

10. Thus, the matter came before me to determine whether Judge Dunne’s decision involved the making of an error on a point of law.

The Hearing

11. The parties had discussions prior to the start of the hearing. This meant that I only needed to hear from Ms Young.

12. Ms Young confirmed that the Respondent conceded that there were material errors of law in the decision of Judge Dunne such that the decision should be set aside.

13. Specifically, Ms Young confirmed that Ground 1, which stated that “The Judge failed to take into account material considerations/arrived at unreasonable conclusions when applying the relevant CPIN to the facts”, was made out. She confirmed that the decision of the Judge should be set aside, and that the decision could be remade by me on the facts as found by the Judge.

14. Ms Young further confirmed that the Respondent agreed that, when the facts as found by the Judge were applied to the country information contained in the Respondent’s Country Policy Information Note ‘Iraq: Opposition to the government in the Kurdistan Region of Iraq (KRI’), Version 3.0, July 2023, the appeal should be allowed on asylum grounds.

15. There was no need to hear from Ms Patel.

16. I informed the parties that in my judgment both Ground 1 and Ground 2 were made out and the decision of Judge Dunne contained material errors of law such that it must be set aside.

17. I informed the parties that, considering the facts as found by the Judge and the country information, the appeal would be allowed on asylum grounds. My written reasons would follow.

Discussion and Analysis

18. As the Respondent conceded that Ground 1 identified a material error of law and agreed that the appeal should be allowed on asylum grounds, my reasons will be brief.

19. The key passage of the CPIN is paragraph 3.1.3 which states as follows:

However, available evidence does indicate that the following groups of people may be at higher risk of arrest, detention, assault, excessive use of force and extrajudicial killing by the KRG authorities:
• Individuals with higher profiles: Those who have a prominent public presence, who are actively involved in or have previous history of organising or participating in protests and demonstrations.

20. The Judge had misapplied the CPIN. His findings of fact regarding the appellant placed the appellant squarely within the risk profile identified in the CPIN.

21. Furthermore, the Judge finds that the Appellant would not be regarded as a “well-known figure or prominent critic of the regime”, and to do so “significantly overstates his profile on the available evidence” and there is “no evidence that the Appellant is particularly well known among opponents of the PUK”. This is a characterisation which significantly overstates the guidance in the CPIN, as to who could be regarded as someone with a ‘higher profile’.

22. I find that the Judge has materially erred in law in his application of the CPIN and thus Ground 1 is made out.

23. Ground 2 states that “The Judge failed to take into account material considerations/made unreasonable findings on risk on return, in view of the Appellant’s accepted account of past persecution.” I find that this ground is also made out and the Judge materially erred in law in this regard.

24. The Judge fails to adequately assess the risk to the appellant on return to Iraq. The Judge had accepted that the appellant had been detained and ill-treated by the authorities for his political activities.

25. Paragraph 339K of the Immigration Rules states as follows:

The fact that a person has already been subject to persecution or serious harm, or to direct threats of such persecution or serious harm, will be regarded as a serious indication of the person’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.

26. The appellant had already been subjected to persecution in Iraq. There is no good reason to consider that such persecution will not be repeated. The Judge fails to consider this issue in his decision.

27. The Judge had accepted that the appellant had actively expressed his opposition to the IKR authorities whilst in the UK through his use of social media and attending demonstrations.

28. I find that the Judge erred in law by failing to lawfully assess the prospective risk to the appellant on return to Iraq. The appellant has a genuine political opinion opposed to the IKR regime which he would wish to express in Iraq. The appellant’s past persecution for expressing his political opinion in Iraq is a serious indicator that such persecution would be repeated on return. The Judge fails to lawfully consider this issue.

29. Overall, I find that the Judge materially erred for the reasons provided by the appellant in the grounds. The decision must be set aside.

30. Both parties agreed that the decision could be remade based on the findings of fact already made and the application of those facts to the CPIN. The respondent conceded that the appellant’s appeal should be allowed as he would be at real risk on return to Iraq.

31. The facts as found by Judge Dunne are comprehensive and detail the strength of the appellant’s political opinions which have led him to being persecuted by the authorities in the past.

32. I find that, when assessing the country information contained in the CPIN, the appellant has a higher risk profile such to place him at real risk on return to Iraq.

33. If on return to Iraq the appellant were to continue expressing his political views on social media and attending demonstrations, then, considering the appellant’s previous experiences, I find that there is a reasonable degree of likelihood that the appellant will be persecuted again.

34. I find that the appellant has a well-founded fear of persecution in Iraq due to his political opinion.

Notice of Decision

There is an error of law in the decision of the First-tier Tribunal and the decision is set aside. I remake the decision and allow the appeal based on refugee grounds.

C R Cole
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

4 April 2025