Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000473

First-tier Tribunal No: PA/63337/2023
LP/09141/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 29 May 2025

Before

UPPER TRIBUNAL JUDGE MAHMOOD

Between

HE
(ANONYMITY ORDER CONTINUED)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms K Renfrew, Counsel instructed by Logan Kingsley Solicitors
For the Respondent: Ms S Lecointe, 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. The parties may apply on notice to vary this order.

DECISION AND REASONS
1. This is the oral decision which I delivered at the hearing today.
Background
2. In this matter the Appellant, a national of Iraq, appeals with the permission of Upper Tribunal Judge Hirst against a decision of First-tier Tribunal Judge Manuell (“the Judge”) who had dismissed the Appellant’s protection claim.
3. At this hearing I am considering whether or not there is an error of law in the decision of the Judge. If I conclude that there is no error of law in the Judge’s decision then the decision of the Judge will stand. If I conclude that the Judge’s decision does contain a material error of law then I will remake the decision or remit the matter to the First-tier Tribunal which will consider the matter further.
4. The background to the matter is that the Appellant is a national of Iraq of Kurdish ethnicity. He had raised various matters in respect of why he ought to be granted his protection claim. The Judge had heard evidence from the Appellant and the Judge had concluded that the Appellant’s claim had to be dismissed not least because the Judge did not find the Appellant to be credible. The Judge dismissed the Appellant’s human rights claim pursuant to Articles 3 and 8 of the European Convention on Human Rights in line with the factual findings which he had made.
5. Ms Renfrew of Counsel did not appear before the First-tier Tribunal Judge but she had drafted the grounds of appeal.
Permission to Appeal
6. Permission to appeal was granted by Upper Tribunal Judge Hirst by way of a decision dated 18 March 2025 and within her decision the learned Upper Tribunal Judge said as follows:
“The Appellant relies on four grounds of appeal:
a. The judge’s finding at paragraph 33 of the determination that the Appellant’s sur place political activity started only after the refusal of his asylum claim was an error of fact which was material to his conclusion that the Appellant’s political beliefs were not genuine;
b. The judge’s findings at paragraphs 38, 40 and 45 as to the availability and sufficiency of state protection were not in accordance with the available objective evidence or with country guidance in SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 00110 (IAC);
c. The judge applied too high a standard of proof and relied impermissibly on speculative findings as to the motives or purpose of alleged persecutors, or on ‘inherent probability’ as a basis for dismissing the appeal;
d. The judge’s approach to Section 8 Asylum and Immigration (Treatment of Claimants, etc) Act 2004 was flawed. In particular his reliance on the Appellant not seeking asylum in Turkey was an error, as Turkey is not a ‘safe country’ for the purposes of Section 8”.
The Hearing Before Me
7. During the hearing before me today Ms Renfrew had to taken me through her comprehensive grounds of appeal.
8. I had also heard from Ms Lecointe who had informed me that she was hampered a little because of, I understand, some difficulty with accessing the papers on her computer from the Home Office IT system. I adjourned the matter and time was provided to Ms Lecointe and she was able to go through the documentation.
9. When the hearing resumed, Ms Lecointe submitted that in any event even if factual or other errors were made by the Judge, whether with or without any mistaken reference at the First-tier Tribunal by the Presenting Officer in relation to the sur place activity and when such sur place activity might or might not have commenced, none of that was material. Ms Lecointe said that was because the Respondent’s review indicated at paragraphs 20 to 22 that somebody with such a low political profile like this Appellant would not face any difficulties on return, even on the lower standard of proof. Similarly, insofar as the Judge’s Section 8 findings were concerned Ms Lecointe said that one needed to look further and not just consider the risks in respect of the adverse findings relating to Turkey because there is also reference to the Appellant having been able to claim asylum in Germany.
Analysis and Consideration
10. The law in respect of errors of law is well settled and I need not repeat it any length. The Court of Appeal’s judgment in R (Iran) and others v Secretary of State for the Home Department [2005] EWCA Civ 982; [2005] Imm A.R. 535 sets out the framework. The law is also well settled that I must also ensure that I have regard to and respect the expertise of the First-tier Tribunal, especially since it had the benefit of seeing and hearing from the Appellant and his legal advisers.
11. In my judgment the nature of the errors by the Judge in this protection claim comprise material errors of law in accordance with the decision in the Court of Appeal in R (Iran).There are three particular aspects, whether individually or cumulatively, which lead me to conclude that the errors of law are material.
12. Firstly, the Judge was wrong to conclude that the Appellant had only begun to undertake his refugee sur place activities once the Respondent had refused his claim. The Judge very clearly said at paragraph 33 of his decision:
“The Appellant’s sur place activities (such as they were) in the United Kingdom only started after his asylum claim had been refused. That speaks for itself and the tribunal finds that the Appellant’s activities are not genuine but are a further attempt to bolster a weak and contrived claim”.
13. The reason that this was wrong and therefore a mistake of fact, by the Judge was because the Respondent had said prior to the hearing in her Reasons for Refusal Letter that the Appellant had undertaken his refugee sur place activities before the refusal decision had been made. For example, in the Respondent’s decision dated 20 November 2023 there is clear reference to the Respondent accepting that the Appellant had attended protests and that the Appellant had also raised this in his interview with the Home Office. Therefore, the Judge was wrong to make credibility findings about the Appellant based on his mistake of fact.
14. Secondly, I turn to the Judge having concluded in respect of Section 8 Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 at paragraph 31 of his decision:
“The contrived nature of the Appellant’s claim can be seen in his failure to claim asylum far closer to Iraq, e.g., in Turkey. The Appellant has identified no connection with the United Kingdom or any reason for making such a long and expensive journey”.
15. Whilst it is correct that the Judge later referred to Germany as another transit point, the difficulty with the Judge’s finding is that he was wrong to conclude that the Appellant could or should have sought protection in Turkey. Not least because Turkey is accepted not to be a safe country for the purposes of Section 8.

16. Thirdly, I take into account that the Judge applied too high a standard of proof and relied considerably on speculation and did not consider matters in the correct context. As Ms Renfrew points out the Court of Appeal in MAH (Egypt) [2003] EWCA Civ 216 at paragraph 63 said “a Tribunal of fact making an adverse finding on credibility must only do so on reasonably drawn inferences and not simply on conjecture or speculation. Inferences concerning the plausibility of evidence must have a basis in that evidence”. Here in my judgment the Judge’s reference to matters such as his conclusions at paragraph 38 that the Appellant’s brother’s disappearance “made little sense” was speculation on the part of the Judge. Then at paragraphs 35 and 41 the Judge was requiring that one look to the motivation of kidnappers and those who may have attacked the Appellant’s home. Again, the Judge added his view and speculated as to what kidnappers might do in this region of the world.
17. Therefore, even without considering the other grounds which have been relied upon including the matters related to country conditions, I conclude that the Judge’s findings are such that it is not possible to be satisfied that the most anxious scrutiny was applied. As was discussed during today’s hearing with Ms Lecointe, it is simply not possible to work out what proportion of the Judge’s adverse findings may not have been made had he not erred in respect of his factual mistakes. Therefore, it is not possible to save any part of the Judge’s findings. Had that been possible, then it may have been that certain retained findings could remain. The difficulty is that the whole decision is infected by the factual errors made by the Judge.
18. In the circumstances and in my judgment the decision is unsafe as a whole and the decision of the Judge has to be set aside in its entirety.
Further Hearing
19. I invited the parties to provide submissions as to what they thought the appropriate way forward would be if I was to find there was a material error of law and, as I understood it, both parties agreed that the matter will have to be remitted to the First-tier Tribunal for a complete remaking.
20. I consider the venue of the remaking by applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), I carefully consider whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statement. I also take into consideration the history of this case, the nature and extent of the findings to be made as well as the fact that the nature of the errors of law in this case mean that the Appellant was deprived of an adequate consideration of his appeal. I further consider that it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process and I therefore remit the appeal to the First-tier Tribunal.
Notice of Decision
The decision of the First-tier Tribunal contains a material error of law and I set it aside in its entirety.
The matter is remitted to the First-tier Tribunal for hearing afresh before a different judge. None of the findings shall stand.
The anonymity direction which was previously made continues.

Abid Mahmood

Judge of the Upper Tribunal
Immigration and Asylum Chamber

15 May 2025