Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000429

First-tier Tribunal Nos: PA/68283/2023
LP/10216/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 20th of May 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

[L G]
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr N Sadeqhi, Counsel, instructed by Sterling Lawyers Limited
For the Respondent: Ms S McKenzie, Senior Home Office Presenting Officer

Heard at Field House on 29 April 2025

DECISION AND REASONS
1. The appellant is a citizen of Armenia, born on 19 March 1972. The appellant applied to the respondent for protection on 26 June 2020, with that application being refused on 12 December 2023. The appellant’s appeal against that decision was dismissed by Judges of the First-tier Tribunal Revill and Swaney.
2. Permission to appeal was granted by Upper Tribunal Judge Ruddick on 27 February 2025 on the basis that it was arguable that the First-tier Tribunal Judges has erred in finding that there was no real risk to the appellant following the death of the leader of a now defunct political movement, KA. This was arguably irrational for the reasons set out in the grounds: the appellant had always maintained that the authorities were interested in the documents she held and it was arguable that there was no evidential basis for the First-tier Tribunal to conclude at [57] that the only reason the authorities were interested in the documents was because they hoped to bring a criminal case against KA. Similarly, the permission judge considered that ground 2, which was a finding in the alternative that if there were an interest in locating the files, the appellant would not face any risk as she could truthfully say they were no longer in her possession, was a material misdirection of law and failed to contain adequate reasons. Although the Upper Tribunal considered ground 3 weaker, primarily because the judges were entitled to deal with a change in circumstances which had postdated the refusal letter and it was difficult to see how this could be an error, namely KA’s death, the grounds were not limited. Ground 3 argued, primarily, that the judges had improperly gone behind the reasons for refusal letter.
3. The matter came before me to determine whether the First-tier Tribunal had erred in-law, and if so whether any such error was material and thus whether the decision should be set aside.
Submissions – Error of Law
4. In the grounds of appeal and in oral submissions by Mr Sadeqhi, it is argued, in short summary for the appellant as follows: it was noted that the judges had accepted the appellant’s account as credible. The appellant’s account had largely been accepted by the respondent except for the fact that the respondent did not accept that the appellant had been beaten in detention.
5. The First-tier Tribunal accepted at [37] that the appellant was credible, that she had a Refugee Convention reason [32], that she had been persecuted in the past, having been beaten to the extent of having a kidney removed [37]; and that her son had been questioned on a number of occasions and beaten in detention about the whereabout of the appellant and certain documents [39] and [44]. The judges dismissed the appeal on the basis of KA’s death, with the judges finding at [57], that ‘as far as they could see’ the desire to locate the files must have been connected with the wish to build a case against KA and now that KA was dead it was obviously no longer possible to prosecute him and the motivation for locating the file and pressuring the appellant no longer existed. In the alternative [58], the First-tier Tribunal found that even if there remained an interest in locating the files the appellant could explain that they were no longer in her possession, which was considered would not be unreasonable.
6. In terms of ground 1, it was submitted that the judges erred as it had never been the appellant’s case that the Armenian authorities were interested in her solely due to her connection to KA, but because she held files which were of interest to them. The Tribunal accepted that the interest in the appellant and the files persisted well after KA had left Armenia and the criminal investigation into him had been closed.
7. It was submitted that the judges had properly considered paragraph 339K and that paragraph 339K was engaged. The First-tier Tribunal accepted that the appellant was credible and that she was beaten and that her son was beaten. The appellant’s ex-husband had provided a letter confirming that the authorities have continued with their interest in the appellant and that their interest was in the documents. The First-tier Tribunal also had sight of a letter from the appellant’s son which clarified that the appellant’s son had told the authorities that the appellant had had the documents in her possession.
8. It was submitted that having accepted the appellant’s account, it was irrational for the judges to find at [57] that:
“The Armenian authorities’ interest in the appellant since 2017 has not been in her as an individual but in her connection to KA.”
The appellant case is and always has been that the authorities were also just in the document archive which was in her possession.
9. It was further argued that the First-tier Tribunal failed to give adequate reasons in finding at [57] that “As far as we can see the desire to locate the files must have been connected to the wish to investigate and to potentially build a case against KA”.
10. It was submitted that this finding was speculative and not open to the First-tier Tribunal without cogent reasons and it was submitted that the judges fell into the error identified by the Court of Appeal in YV (Secretary of State for the Home Department) [2006] EWCA Civ 1223 at [25], in relation to the approach to credibility and the dangers of finding an account to be inherently incredible.
11. It was submitted that the First-tier Tribunal had recharacterized the motivations of the Armenian state in finding that the files “must have” been connected to a wish to build a case against KA, based on the judge’s perceptions of reasonability, which ignored that there could be multiple reasons for wanting the archive: for example, to establish the identifies of other members of the former organisation; to establish where their family came from, to identify any foreign actors supporting them; to cross-reference the members of this group against known current dissenters, and so on. It was submitted that the finding that it “must have” been to investigate KA was not open to the judges on the basis of irrationality and/or failure to give adequate reasons.
12. In terms of ground 2, which was also a joint rationality and adequacy of reasons challenge, it was submitted that the judges erred at [58] in finding:
“Further, even if, contrary to our finding above, there remains an interest in locating the files, the appellant can truthfully say that they are no longer in her possession, and indeed can explain that she handed the one that was apparently of interest to a third party in Moscow.”
13. It was submitted that this finding was irrational and/or not supported by adequate reasons. In particular it was submitted that despite having found that the appellant was badly beaten in detention and that her son had been mistreated in detention and the country conditions were not inconsistent with risk on return at [55] the First-tier Tribunal failed to give reasons why the appellant, providing an honest account of where the file was, as suggested by the First-tier Tribunal, would prevent a risk of repetition of the treatment she previously received. It was submitted that the appellant’s son had provided an honest account to the authorities, but was still beaten in detention. It was submitted that if the appellant was detained and questioned about the files then there must be a real risk of repetition of the mistreatment she suffered previously.
14. In addition, whilst the judges had correctly directed themselves to paragraph 339K of the Immigration Rules at [46] of the determination, which requires a decision maker to treat previous persecution as a serious indication of a well-founded fear of repetition, unless there are “good reasons” to consider it will not be repeated, of the four “good reasons” advanced by the respondent and summarised at [49], the First-tier Tribunal only considered one sufficient, and this was the impact on the risk to the appellant of the death of KA.
15. However, it was submitted that this finding had been made in the alternative to the First-tier Tribunal’s findings about the impact on the risk to the appellant of the death of KA. Therefore, the judges were considering the risk to the appellant if they were wrong about the death of KA removing the risk. Therefore that “good reason” cannot feature in applying paragraph 339K.
16. In terms of ground 3, it was noted that the respondent in the refusal letter had accepted that if the appellant was credible, there was no sufficiency of protection. It was submitted that although it was the contention of the respondent that the risk is diminished by the absence of KA from Armenia and from life, having found that the appellant was indeed mistreated in detention, which had not been accepted by the respondent, it was not open to the First-tier Tribunal to go behind the apparent acceptance in the refusal letter that if was the appellant’s case was accepted in full that she would not be able to seek sufficiency of protection in Armenia.
17. Although there was no Rule 24 response, in oral submissions by Ms McKenzie for the respondent it is argued in short summary as follows:
18. Ms McKenzie pointed out that the decision was issued by a panel of two judges which emphasised the anxious scrutiny that had been given to the appellant’s case including and considering risk with sufficient detail; cogent reasons given and there was no irrationality.
19. Ms McKenzie accepted that the panel had found the appellant credible. This was quite clear. The turning point in the determination was in relation to the death of KA, a fact that emerged in cross-examination. Although ground 1 in particular sought to criticise the Tribunal for apparently speculating in relation to the desire to locate the file on the part of the Armenian authorities having been connected to the desire to locate KA, a proper reading of the decision, it was submitted by Ms McKenzie, disclosed that there was no speculation. At [7] of the decision, Ms McKenzie indicated that the First-tier Tribunal noted that following his release in 2017, KA asked the appellant to help him transport the files but this failed as KA was denied entry to Georgia. KA then left Armenia and asked the appellant to transport the files to Turkey, which she did in June 2017. The panel noted that the appellant was then subjected to pressure from the KGB who wanted her to cooperate and bring a case against KA. In July 2018, she was informed that she was no longer required as a witness as KA was known to be in the UK. However, they still wished her to cooperate in obtaining a particular file. It was noted that the appellant had that file in her possession and left the country, fearing the consequences of it being discovered. Ms McKenzie submitted it was quite clear that it was the appellant’s case that the KGB wanted her cooperation in bringing a case against KA, who was now deceased.
20. Ms McKenzie relied on paragraphs [39] and [44] of the decision and reasons. At [39] the First-tier Tribunal set out how the authorities dealt with the appellant’s son. The Tribunal references seeing photographs and a request to attend an interview with the appellant’s son being requested to attend and the City of Terevan Investigative Department, in order to be questioned as a witness. The First-tier Tribunal also noted the evidence from the appellant’s son of him being questioned on a number of occasions about the whereabouts of the appellant and certain documents. The findings at paragraph [44] accepted the appellant’s account including the parts not accepted by the respondent. The Tribunal found the documents from her son to be consistent with the appellant’s account and accepted that he was questioned repeatedly “regarding her and the whereabouts of the documents”. Ms McKenzie submitted that there was no speculation in the consideration therefore of the First-tier Tribunal, and that it was clear that the KGB wanted her cooperation in bringing a case against KA.
21. In response to ground 3, Ms McKenzie submitted that it was incorrect to argue that the panel had gone behind the respondent’s concession. At paragraph [57] the First-tier Tribunal had noted that there was no interest in the appellant whilst KA was detained, which was relevant to the Tribunal’s finding that the death of KA fundamentally altered the position for the appellant.
22. In reply, Mr Sadeqhi relied on the grounds of appeal and submitted that paragraph [7] of the decision noted that the authorities still wished the appellant to cooperate in finding the file despite KA’s absence in the UK, which the appellant had in her possession and that this was accepted by the Tribunal. At [8] it was noted that following her departure from Armenia the appellant’s ex-husband and her adult son had been repeatedly questioned “in relation to her and the documents she held”. In light of the fact that the First-tier Tribunal accepted the appellant’s credibility and in the absence of cogent reasons the findings were irrational.
Conclusions – Error of Law
23. The First-tier Tribunal, in a comprehensive decision, found the appellant credible, including in her claim that she was physically mistreated in detention, necessitating the removal of her kidney. The respondent had accepted every aspect of the appellant’s account, other than her claim to have been physically mistreated in detention. The First-tier Tribunal noted that the appellant provided a detailed written account of her claim and described physical beatings leading to serious damage to her kidney, which was then removed surgically and the judge has accepted that it was reasonable for the appellant not to have mentioned this in her substantive asylum interview. The beating and kidney surgery were accepted to the lower standard.
24. The First-tier Tribunal took into consideration all of the evidence before them, including the evidence from the appellant’s son which encompassed evidence that he was required to attend interview and photographs showing a wound on the appellant’s son head, and evidence that he had claimed asylum in Belgium. Although the respondent had submitted before the First-tier Tribunal that these documents should be treated as unreliable, the First-tier Tribunal following relevant jurisprudence including JT (Cameroon) v SSHD [2008] EWCA Civ 878. The Tribunal accepted the appellant’s explanation for the delay in providing an appeal witness statement and accepted her explanation as to why she said in her visa application that she was only intending to stay for two weeks in the UK. Having considered the documentary evidence in this context the First-tier Tribunal, in light of the appellant’s general credibility, accepted to the lower standard that the appellant’s son was indeed repeatedly questioned “regarding her and the whereabouts of the documents”.
25. Having accepted that the appellant had provided a truthful account of past events, the First-tier Tribunal properly reminded themselves of paragraph 339K of the Immigration Rules, which provides:
“The fact that a person has already been subject to persecution or serious harm, or to direct threats of such persecution or such 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 First-tier Tribunal went on to find at [48] that the appellant had been subject to past persecution and then considered at [49] that the respondent had put forward four potential “good reasons” for not considering that such persecution or serious harm would be repeated. The First-tier Tribunal dismissed the first three of those reasons. The fourth was that KA has now died.
27. The difficulty with the findings of the First-tier Tribunal, in finding so definitively that the death of KA would extinguish what they accepted would be the risk to the appellant on return, is that it relies in the most part on speculation. Whilst it is correct that the appellant had no difficulties in Armenia when KA was detained, both the appellant, her ex-husband and her son were pursued by the authorities after KA left Armenia. The First-tier Tribunal noted that the appellant in re-examination indicated that the authorities were more interested in the document archive than in KA himself and in her witness statement had stated that there was focus on finding one particular file, which the appellant had passed to KA’s nephew. The judges went on to find:
“However, as far as we can see, the desire to locate the files must have been connected to the wish to investigate and potentially build a case against KA. Now that KA has died, it is obviously no longer possible to prosecute him and the motivation for locating the file and pressuring the Appellant no longer exists. The Young Armenians Initiative Group no longer exists, and we have not been told that anyone intends to revive it, or that the authorities suspect them of doing so.”
28. It is difficult to see how the First-tier Tribunal could, on the available evidence, reach the conclusion and indeed it was only “as far as we can see” that the desire to locate the files was only connected to the wish to investigate and build a case against KA. At the very least it was incumbent on the First-tier Tribunal to consider, other potential reasons, as set out in the appellant’s grounds of appeal (and reproduced at paragraph [11] above).
29. The need to consider other potential reasons for wishing to locate the files must be considered in the context of the background country information and the judges’ findings, at [53] that there were reports of arbitrary arrests that appeared election related, including of four opposition-linked mayors and two municipal employees affiliated with the opposition; that an opposition figure was also charged with bribing university students to participate in anti-government demonstrations. The First-tier Tribunal also noted that there was reference to other arbitrary detentions and to members of the security forces torturing or otherwise abusing individuals in their custody.
30. The First-tier Tribunal considered the evidence, including the US State Department 2023 Report which described a “notable increase” in reports of torture or other abuse towards people in custody, carried out by security forces with impunity. The First-tier Tribunal concluded that the evidence suggested that whilst Armenia has more political freedom than some countries, this is not absolute and some individuals connected with opposition to the government may face repercussions. At [55], the First-tier Tribunal did not accept, as the respondent seemed to suggest, that country conditions were entirely inconsistent with the appellant not being at risk on return. In this context and in particular in the context of the US State Department 2023 report (with the First-tier Tribunal noting that it was more recent than other reports before it) the First-tier Tribunal failed to provide adequate reasons why the only reason that the Armenian authorities wished to locate the files was in relation to investigating KA. Such error is material.
31. In addition, the First-tier Tribunal’s alternative findings at [58] are materially flawed, in that they rely on the Armenian authorities accepting the appellant’s truthful explanation of no longer having the file. This flies in the face of the First-tier Tribunal’s earlier acceptance of the appellant’s son’s evidence that he truthfully explained about his mother and the files but this did not prevent him being beaten. It is also inconsistent with the Tribunal’s findings in relation to the up-to-date position in Armenia, in particular in relation to the treatment of those connected with opposition or seem to be connected with opposition to the government and the repercussions they may face and which the First-tier Tribunal accepted the appellant had previously faced.
32. Given that the First-tier Tribunal finding that interest will have ceased in the appellant following KA’s death is unsafe, the alternative finding that she could mitigate risk by telling the truth is irrational, in the context of the Tribunal’s overall findings and the background country information.
33. Ground 3 is not made out, including that it was not the respondent’s case in the refusal letter that the appellant’s case succeeded if it was accepted that she was mistreated during her detention, as the respondent had also noted in the refusal letter that there was political freedom in Armenia and individuals were not generally targeted for expressing opposing views. Whilst the First-tier Tribunal took a different view in relation to the position of political freedom in Armenia, it cannot be properly said that the First-tier Tribunal’s findings were going behind the refusal letter. However, given that a material error is clearly disclosed in grounds 1 and 2, ground 3 is immaterial.
34. It was agreed by both parties that if I found an error that the decision could be remade by the Upper Tribunal, on the basis of the evidence before it without the need for any further hearing.
35. Relying on the findings of the First-tier Tribunal, including in relation to the situation in Armenia for individuals connected or perceived to be connected with opposition to the government, the appellant’s credibility and her past torture; and applying paragraph 339K of the Immigration Rules, there is no good reason for considering that the past persecution will not be repeated.
36. The appellant will be at risk of persecution on return to Armenia.
Notice of Decision
37. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
38. I set aside the decision, preserving the findings of fact other than paragraphs [57] to [62].
39. I remake the decision in the appeal by allowing it. The appellant’s appeal on asylum grounds is allowed.

M M Hutchinson

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
14 May 2025