Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000444

First-tier Tribunal No: PA/57788/2023
LP/10218/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 21st of May 2025

Before

UPPER TRIBUNAL JUDGE RUDDICK

Between

NAA
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms B. Efurhievwe, instructed by Kent Immigration & Visa Advice Ltd
For the Respondent: Mr E. Tufan, Senior Home Office Presenting Officer

Heard at Field House on 15 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. The appellant appeals with permission against the decision of First-tier Tribunal (“the FTT”) dismissing his appeal against the respondent’s decision to refuse his protection and human rights claim.
2. An anonymity order was made by the First-tier Tribunal. I have considered whether it is appropriate to continue that order, taking into account Guidance Note 2022 No.2: Anonymity Orders and Hearings in Private. I am satisfied that it is, because the appellant has made an application for international protection and 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 at this stage in the proceedings.
3. The appellant is accepted to be an Iraqi citizen of Kurdish ethnicity and a Sunni Muslim. He says that he was born in a village called Telkif, near Mosul. The family moved to Duhok in Iraqi Kurdistan in around 2005, but they were forced to return to their village because the Kurdish authorities accused his father of being a spy for the Iraqi government. The appellant says that between October and December 2020, he was arrested and detained three times by al-Hashd al-Shaabi, a militia group affiliated with the government of Iraq. This was part of a campaign of harassment intended to drive Kurds from the village. He was badly beaten each time. After his third arrest, his father decided that he should flee the country.
4. The appellant also says that he does not have any identity documents. He says he refused to obtain an identity document because this would have required him to identify himself as an Arab.
5. The FTT heard evidence from the appellant and dismissed his appeal on credibility grounds, finding that his account had been “manufactured”.
The grounds of appeal
6. The appellant’s grounds of appeal are discursive, and the specific errors of law were not identified with any precision. At the beginning of the hearing, the parties helpfully agreed to clarify them. After discussion between the parties, the grounds argued before me were:
(i) The Judge’s finding that the appellant’s credibility had been undermined by answering “no” to the detention question at his screening interview was irrational, because the parties had accepted the interpreter’s explanation at the beginning of the hearing that the Kurdish Bahdini language had a far more limited vocabulary than English, and because from his Preliminary Information Questionnaire of 12 January 2022 onwards the appellant had been entirely consistent in saying that he had been arrested three times;
(ii) No reasonable judge could have rejected the appellant’s credibility for the reasons given at [34], namely the inconsistency between the screening interview and the appellant’s subsequent accounts of being arrested, internal inconsistencies about where he had been taken from the first time he had been arrested, and the implausibility of his not having had any identity documents; and
(iii) It was clear that the judge had made a mistake of fact at [32], when she found that the appellant “has failed to discharge the burden of proof on the lower standard that he was targeted as claimed, and that he was shot when and where as claimed.” It is beyond dispute that the appellant has never claimed to have been shot. This error must have been material, when viewed in the context of the decision as a whole.
Discussion
7. In deciding whether the Judge’s decision involved the making of a material error of law, I have reminded myself of the principles of appellate restraint set out in a long line of cases, including Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201, at [26], Yalcin v SSHD [2024] EWCA Civ 74, at [50] and [51], Gadinala v SSHD [2024] EWCA Civ 1410, at [46] and [47], and Volpi & Anor v Volpi [2022] EWCA Civ 464, at [2-4] and of the danger of “island-hopping”, rather than looking at the evidence, and the reasoning, as a whole. See Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5 [114].
8. This has not been an easy decision. The decision clearly falls into the category of one that “could have been better expressed”, and I have consistently borne in mind that this in itself is insufficient reason for it to be overturned. Not only is there a clear finding with regard to a fact never put forward by the appellant (that he had been shot), but the judge does not consistently distinguish her own findings about the appellant’s credibility from her narrative of his evidence. I set out three examples.
18. In the witness statement the Appellant said he was arrested the first time when he was working at the shop. The Appellant said they put a mask on him, drove him to his house to let the Appellant know that they knew where he lived, and then after 20 minutes they arrived. However, the Appellant did not say they took the mask off his head and explain how it is he would know they had taken him to his home on the way from the shop to the base. […]
25. The Appellant confirmed his parents had ID documents which was a national card with their information on the card. The explanation the Appellant gave for not have his own document is that it would have ‘Arab’ nationality which he does not accept. The Appellant said it was the reason he could not move to another city as there were checkpoints and he could not get the documents. The Appellant could not explain how he was able to move to Duhok as a child without documentation. […]
31. The explanation for not being able to internally relocate in Erbil or Sulamaniyah was that because the father was accused of being a spy for the Iraqi government he could not move to Kurdistan. His father was arrested and threatened in Kurdistan 13 years before.
9. In each case, I consider that the final sentence clearly implies that the appellant’s explanation has been rejected and that it is possible to understand why. It would have been far clearer if this had been said explicitly, as it was, for example, at [32]:
“The Appellant was fingerprinted twice before arriving in the UK when he was fingerprinted a third time. I find that this is likely to have been in France and Italy. I find that the Appellant could have claimed asylum in these countries and I find the fact the Appellant was fingerprinted indicates that it is likely that he was not under the control of any agent but was making his own way to the UK.”
10. However, if this was the only issue with the credibility findings, the decision would have been sustainable. The problem arises from the way the judge then explains her credibility assessment at [34]. This begins:

“Drawing the strands together, having looked at the evidence in the round, I find the Appellant has presented a manufactured account to seek asylum in the UK.”
I am persuaded by Ms Efurhievwe’s submission that if this is read as expressing an intention to bring together all of the adverse credibility points made in the preceding paragraphs, whether explicitly or implicitly, it must include the obviously erroneous finding that he had not established that he had been shot as claimed. Mr Tufan submitted that the reference to the appellant claiming to have been shot is likely to be a typographical error, resulting from the judge having sought to reuse some aspects of a decision she had made in a different case, and that it therefore is unlikely to have played a role in the actual credibility assessment in this case. I find that there is real force in Ms Efurhievwe’s response to that submission, which was that even if the reference to the appellant’s failure to establish that he had been “shot when and where as claimed” was essentially a typographical error, it cannot be said with any confidence that it had not become one of the “strands” the judge then drew together two paragraphs later when making her final credibility assessment.
11. Given the structure of the decision and the relative lack of clarity in its reasoning, I conclude that it cannot be said that the result would inevitably have been the same without the error as to what the appellant had claimed.
12. In the alternative, if the preceding paragraphs are not treated as all “drawn together” in [34], the inconsistency between the screening interview record and the appellant’s later account then becomes one of the judge’s key reasons for rejecting his credibility. The paragraph continues:
“I find the Appellant has not been consistent about being detained three times, from where he was first detained, and the Appellant was articulate when he answered the questions. I find the Appellant was educated and was able to leave his country through the various checkpoints because he has his own ID documents, and he used them to leave the country. Even if he needed an agent to leave Iraq, I find that the ID documents have been issued to the Appellant, and I find the explanation about not wanting an ID card because it would suggest he was Arab is implausible because the Appellant’s father and mother have ID cards issued to them and the Appellant did not discuss this with them either in Iraq or from the UK. I find the Appellant would have had a card issued to him as a matter of routine because it would enable him to access services and travel around through checkpoints which I find the Appellant did when he lived in his country.”
13. I consider that in this case, the judge erred by relying as heavily as she did on the appellant’s answer to the question “have you ever been detained” at his screening interview. In coming to this conclusion, I have taken into account what was said in YL (Rely on SEF) China [2004] UKIAT 00145:
19. “When a person seeks asylum in the United Kingdom he is usually made the subject of a ‘screening interview’ […]. The purpose of that is to establish the general nature of the claimant’s case so that the Home Office official can decide how best to process it. It is concerned with the country of origin, means of travel, circumstances of arrival in the United Kingdom, preferred language and other matters that might help the Secretary of State understand the case. Asylum seekers are still expected to tell the truth and answers given in screening interviews can be compared fairly with answers given later. However, it has to be remembered that a screening interview is not done to establish in detail the reasons a person gives to support her claim for asylum. It would not normally be appropriate for the Secretary of State to ask supplementary questions or to entertain elaborate answers and an inaccurate summary by an interviewing officer at that stage would be excusable. Further the screening interview may well be conducted when the asylum seeker is tired after a long journey. These things have to be considered when any inconsistencies between the screening interview and the later case are evaluated.
20. The Statement of Evidence Form –SEF Self Completion […] is an entirely different document. […] it is the appellant’s opportunity to set out his case. The asylum seeker has to return the form by a specified date, usually about a fortnight after the form is given to him. However the asylum seeker is allowed to choose his own interpreter and obtain all the assistance he wants in order to complete the form. […]”
14. The appellant’s screening interview was conducted while he was in detention at Yarlswood IRC, on the morning of 23 April 2021, three days after he had arrived in the UK by small boat. The interpreter was present by telephone. The record clearly shows that the appellant was not asked any questions about his reasons for claiming asylum, such that he did not say in that connection that he had never been detained. The question about whether he had been detained arose only in the section of the interview headed “Criminality and Security”, after the question “Have you ever, in any country, been accused of, or have committed an offence […]” This makes the appellant’s claim to have understood the question to refer to a lawful arrest entirely plausible.
15. Just because the explanation was plausible, of course, it does not mean that it was an error for the judge to reject. Moreover, I disagree with Ms Efurhievwe’s suggestion that [6] of the decision shows that the parties had made an agreed finding of fact about the differences between Kurdish Bahdini and English, such that the judge erred by not taking this agreed fact into consideration in the credibility assessment. What was said at [6] was:
“The interpreter informed us that there are more English words than in Bahdini and it was agreed that if a word in a question was used which had no direct equivalent the interpreter would inform us and questions were kept simple.”
FTT judges should not treat interpreters’ explanations of how they will carry out their role at the hearing as expert evidence, and the FTT judge was entirely right to refuse to do so in this case: [11].
16. However, I find that the judge’s reason for rejecting the appellant’s explanation for his answer at his screening interview was not open to her on the evidence before her. She commented that:
“The word is ‘detained’ and if the Appellant did not understand the question, he was told to let it be known and he did not say he did not understand the question.”
17. In the first place, the word was self-evidently not “detained”. The interview was conducted through an interpreter and we cannot know what word was used. More importantly, it is entirely unclear when the appellant is thought to have been told that “if [he] did not understand the question, he was […] to let it be known and he did not say he did not understand the question.” There is a sentence at the very beginning of the screening interview form “If you do not understand the interpreter please tell me.” This is followed by a dense page of information about the asylum process overall, including the PIQ, the future substantive interview, inadmissibility, data sharing and the duty to tell the truth. The instructions end, “Is there anything you would like me to repeat or explain? YES/NO” (although there is no place to record the answer to that question). There is nothing that advises the interviewee to let the interviewer know if he does not understand the questions that follow. I agree with the suggestion made in the grounds that it appears that the judge was confusing here what the appellant had been advised at the hearing before the FTT with what had happened at his screening interview.
18. Moreover, the appellant does not say that he recognised that he had not understood the question but for some reason did not say so. He says he thought he understood it. Even if he had been told to let it be known if he did not understand the questions, this would not have made any difference. The reason the judge gives for rejecting his explanation therefore makes little sense.
19. Finally, in his first opportunity to put forward his case in his own words, in his PIQ, he said quite clearly that he had been arrested three times. For the reasons given in YL (China), this is the statement that the appellant can fairly be held to.
20. For these reasons, I find that the FTT’s credibility assessment involved material errors of law, and the decision must be set aside.

Notice of Decision
The decision of the First-tier Tribunal dated 2 December 2024 is set aside in its entirety.
The appeal is remitted to the First-tier Tribunal to be dealt with afresh on all issues, pursuant to section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and Practice Statement 7.2(b), before any judge aside from Judge SJ CLarke.

E. Ruddick

Judge of the Upper Tribunal
Immigration and Asylum Chamber

15 May 2025