Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000547

First-tier Tribunal No: PA/00825/2024
PA/50213/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

6th May 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE L MURRAY

Between

EHR
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr Berry KC, instructed by Barnes, Harrild & Dyer Solicitors
For the Respondent: Miss Cunha, Senior Home Office Presenting Officer

Heard at Field House on 4 April 2025

DECISION AND REASONS

Introduction
1. The Appellant is a national of Iraq. He appealed against the Respondent’s decision dated 22 December 2022 refusing his protection claim. His appeal was dismissed by the First-tier Tribunal (FTT) in a decision promulgated on 16 October 2024.
2. Permission to appeal was granted by the First-tier Tribunal on 16 January 2025 on the grounds that it was unclear from the decision how the Judge approached the case and the standard of proof he applied. The Judge made a number of findings but beyond summarising the evidence he heard, he did not give reasons for those findings. There was also no assessment as to the genuineness or otherwise of the Appellant’s claimed political opinion which was relevant to the Judge’s findings that the Appellant could delete his Facebook account. Permission was granted on all grounds.
3. The matter came before me to determine whether the FTT had erred in law, and if so whether any such error was material such that the decision should be set aside.
Error of Law – Grounds of Appeal
4. Ground 1 asserts that the Appellant had shown opposition and criticism of the Iraqi government on Facebook. It is asserted that the FTT failed to consider the evidence in relation to the risk the Appellant would face as a result of his political activities on return. It is further asserted that the FTT failed to make any findings on the Appellant’s political opinion and whether it was genuine. Such a finding, it is argued, was a prerequisite for the finding that he could delete his Facebook account. It is submitted that he could not be expected to lie if subjected to a screening process on arrival and that there was a real risk of the Iraqi authorities becoming aware of his activities in the screening process. It is further submitted that the FTTJ failed to consider the Appellant’s ‘real world’ activities and determine what his ‘social graph’ is. The Facebook pages showed that he attended demonstrations outside the Iraqi Embassy and posted posts that meant that he would be perceived as advertising DAKOK demonstrations in the UK which would give him a higher profile. Further, the Appellant had over 2000 friends on Facebook, who had shared his posts, and the FTTJ was required to explain how the shared posts could be deleted.
5. Ground 2 asserts that the credibility assessment was flawed. It is asserted that the standard of proof was not stated and the FTTJ failed to follow the test in Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ 11. It is further asserted that the FTTJ makes a mistake of fact as the Appellant did mention his relationship with “E” at the first opportunity; further his evidence concerning whether the uncle was paternal or maternal, if confused, did not go to the core of his claim and further it was irrational to conclude that receiving a voice message from a family meant that the family could not have disowned the Appellant.
6. Ground 3 asserts that the finding that the Appellant’s family could not assist him was unsustainable because the Appellant could not approach his family due to fear of honour killing.
The hearing
7. Ms Cunha confirmed that the appeal was opposed.
8. Mr Berry relied on his skeleton argument. In summary he submitted that if the Appellant was credible in relation to his claim with regard to events in Iraq, he was at risk of persecution. His sur-place activities were a wholly independent basis of claim. In granting permission, the First-tier Tribunal Judge was troubled by the absence of reasons or sustainable reasons. There was no assessment of whether he had a political opinion in accordance with HJ (Iran) v Secretary of State for the Home Department. There was also an ambiguity with regard to the standard of proof.
9. In respect of Ground 1 and the Appellant’s sur place activities, Mr Berry referred me to the evidence in the CPIN and other background evidence with regard to arrests and detentions, killings, excessive use of force and abuse in detention. He referred me to paragraphs 27 to 30 of SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 00110 (IAC) with regard to the screening process in the KRI and submitted that there was no real reasoning in relation to the Appellant’s political activities a paragraph 20 of the decision. He submitted that the reasoning was not adequate in public law terms as the FTTJ had failed to consider a material matter and the Appellant was unable to understand why he reached the conclusion he did. Connected to that was the FTTJ’s failure to make a decision on the Appellant’s political opinion. There was evidence that the authorities targeted people for their on-line social media activism.
10. With regard to Ground 2, the FTTJ failed to consider the Appellant’s rebuttal statement in relation to the question of whether the Appellant feared his paternal or maternal uncle. The Appellant had provided a detailed account. The Appellant’s paternal uncle was identified in the asylum interview and the Appellant provided clarification as to why the uncle was associated with the PUK if he was living in the KDP area. It was the kind of detail that was missing from the FTT decision. Adequate reasons had not been provided. In relation to the findings with regard to the voice message, the Appellant’s evidence was that he was contacted in order to be disowned. There was no contradiction in his evidence. The approach of the FTTJ was far too brisk when considering the detail of the evidence and he did not deal with issues with anything like the appropriate amount of rigour.
11. In relation to Ground 3, the finding that the Appellant’s family may assist was in error. He had tried to get his female relatives to approach her family. He would have to go to a centre to get documents and that created a risk.
12. Mr Cunha referred me to the case of Volpi & Anor v Volpi [2022] EWCA Civ 464 and submitted that the fact that the Judge did not mention a piece of evidence did not mean that he had overlooked it. The Appellant had no political profile in Iraq and had not joined a political party in the UK. The Appellant was not affiliated with any party. The CPIN evidence did not point to the Appellant being at risk for merely having a Facebook account. The oral evidence was that he was not political and so the Judge did not need to consider HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31. There were inconsistencies as to whether his father disowned him and it was not the Appellant’s case that there were procedural improprieties with regard to the evidence. The Appellant was able to correct his Asylum Claim Questionnaire (ACQ) before the substantive interview and he did not do so and that was why the Judge did not accept his evidence. At question 21 of the substantive interview he said that he had no connection with the authorities and against that backdrop he could get documents. He left his CSID at home and could obtain it and could return to the IKR. The Judge had agreed with the Respondent’s position. The Appellant’s evidence with regard to whether his father had disowned him was ambiguous and therefore the absence of the direction as to the standard of proof was immaterial. The Judge made his decision on the basis of the evidence at the hearing. The evidence on Facebook would not take matters further. It was not argued before the FTT that the Appellant’s political profile would put him at risk in the airport. The three grounds were effectively a disagreement with findings and an invitation for the court to find that no reasonable judge would have made the findings. The question of whether it was a maternal or paternal uncle was a core matter as it was the source of risk.
13. Mr Berry replied that the Respondent should produce authorities for the court if relied on. Volpi and Volpi was not relevant to the approach to the evidence in an asylum appeal as it had nothing to do with the test of a reasonable degree of likelihood of risk. The FTTJ was required to look at the Facebook pages. The evidence in relation to the uncle went to a non-core issue and was addressed in the rebuttal statement. It was not a question of whether no reasonable judge could have come to the conclusion. Paragraphs 18 to 20 of the decision were inadequate for the Karanakan test. The Appellant would have to pass through checkpoints and that created an internal risk contrary to Article 3.
14. I reserved my decision.
Conclusions – Error of Law
15. I have considered Ground 2 first as it impugns the FTTJ’s core credibility findings in relation to the risk of persecution in Iraq. The FFT set out a summary of the evidence heard at the hearing at paragraphs 7 to the 11 of the decision and the submissions at paragraph 12 to 15. The credibility findings are at paragraphs 16 to 20. Paragraph 19 appears to be missing from the decision, but no point was taken in relation to this. These paragraphs contain the impugned findings and I set them out in full:
“16. I have considered all of the evidence in this appeal and I make the following findings. The A I find not to be credible regarding the core of his account for the following reasons. The A I find is not credible with the relationship he claims to have had with “E” because he failed to mention this initially because he the interview finished quickly. The A would have been asked if he agreed with what he has said at the end of the interview, and there is no evidence that he did not agree.
17. I also found that the A gave confusing oral evidence regarding whether his uncle was from his maternal or paternal side of the family. The A claims that his uncle from the maternal side of his side of the family but he was not consistent or clear. I was directed to parts of the interview but I find that his oral evidence confused the issue further.
18. The A claims that his family had disowned him but there was evidence that his father had sent him a voice message which he later denied. I am of the view that the A is in contact with his family and that they have not disowned and he introduced the issue of a relationship with “E” to bolster the argument that they had disowned him. I am of the view that the A was assisted to leave the country by his uncle and that there is no reason for them to disown him.
20. I find that the A may return to Iraq and that his family may assist him in obtaining the relevant documents. The A;s asylum claim is therefore dismissed. I also find that the A has not adduced sufficient evidence in respect of humanitarian protection and that if he were to return he would be in fear of his life. The A for instance has no political profile either in Iraq or in the UK. He has not provided evidence that the state would be interested in him or that the face book account has been monitored by the state. The A may delete the account and return to Iraq.”
16. The Appellant’s screening interview took place on 22 November 2021, he completed his ACQ on 28 June 2023, his asylum interview was on 15 November 2023 and he made further representations on 12 December 2023. He made a witness statement for the purposes of the hearing dated 11 June 2024. In his screening interview he was asked why he came to the UK and he said that his life was in danger both from his own family and his girlfriend’s family. He was seeing her, she was Christian and they were trying to kill him. He therefore clearly stated his claim was due to a relationship.
17. In his ACQ (which is written by his former solicitors) they say that they are instructed that he fears the family of the girl he was dating and his own maternal uncle. He also feared the authorities as there was an arrest warrant and feared the fiancé of the girl he was dating. He had also been disowned by his family as they found out that he was dating a Christian woman which was forbidden. He received a voice note from his father through a friend informing him that he had been disowned. He was unable to relocate because his family had influence within the PUK and the girl he was dating had connections with the KDP party.
18. In his asylum interview he said that he feared his uncle and the family of the girl he was with. He gave her name and said her family was Christian. His uncle was involved with the PUK although he did not have an official position he helped in the civil war. At q71 he said it was his paternal uncle that worked for the PUK.
19. It is clear from this chronology of the Appellant’s statement of his fears that the FTTJ’s finding at paragraphs 16 and 18 regarding the timing of the Appellant’s reliance on his relationship with E is an error of fact. The Appellant advanced this fear as the core of his case from his first interview and maintained it throughout. The FFTJ records the Respondent’s submission regarding the relationship at the hearing at paragraph 12 as being that the Appellant did not mention the name of the girl he was dating during the asylum interview. Either that submission was in error or the FTTJ recorded the submission incorrectly. In any event, the finding that the Appellant did not mention the relationship “initially” is unsustainable as is the finding that “he introduced the issue of a relationship with “E” to bolster the argument that they had disowned him" which suggests that the claimed relationship postdated the claim that he was disowned.
20. The Court of Appeal in Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201, Yalcin v SSHD [2024] EWCA Civ 74 and Chowdhury v SSHD [2025] EWCA Civ 36 emphasised the relevant principles to be taken into account by the Upper Tribunal (UT). They are set out by Green LJ in Ullah at paragraph 26:
i) The FTT is a specialist fact-finding tribunal. The UT should not rush to find an error of law simply because it might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v Secretary of State for the Home Department [2008] AC 678 at para 30;
(ii) Where a relevant point was not expressly mentioned by the FTT, the UT should be slow to infer that it had not been taken into account: e.g. MA (Somalia) v Secretary of State for the Home Department [2011] 2 All ER 65 at para 45;
(iii) When it comes to the reasons given by the FTT, the UT should exercise judicial restraint and not assume that the FTT misdirected itself just because not every step in its reasoning was fully set out: see R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] 2 AC 48 at para 25;
(iv) The issues for decision and the basis upon which the FTT reaches its decision on those issues may be set out directly or by inference: see UT (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1095 at [27];
(v) Judges sitting in the FTT are to be taken to be aware of the relevant authorities and to be seeking to apply them. There is no need for them to be referred to specifically, unless it was clear from their language that they had failed to do so: see AA (Nigeria) v Secretary of State for the Home Department [2020] 4 WLR 145 at para 34;
(vi) It is of the nature of assessment that different tribunals, without illegality or irrationality, may reach different conclusions on the same case. The mere fact that one tribunal has reached what might appear to be an unusually generous view of the facts does not mean that it has made an error of law: see R (MM (Lebanon)) v Secretary of State for the Home Department [2017] 1 WLR 771 at para 107."
21. A mistake as to a material fact which could be established by objective and uncontentious evidence and where unfairness results from the fact is made is an error of law (R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982. An error of law is material unless it can be said that it would have made no difference to the outcome.
22. I find that the error of fact in relation when the Appellant first mentioned his relationship is material because the FTTJ clearly states it is the reason why he rejects the existence of the relationship which is the basis of the Appellant’s claim. I therefore conclude that this material error of fact is alone, sufficient to render the decision unsafe.
23. The Appellant impugns the FTTJ’s adverse finding regarding the evidence as to whether the Appellant’s fear emanated from his maternal or paternal uncle. This challenge is to the adequacy of reasons. The FTTJ found that the Appellant’s evidence was confused and neither consistent nor clear. It is plain from my summary of the evidence in this regard that the Appellant’s case advanced by his solicitor in his ACQ was that he feared his maternal uncle whereas in his asylum interview he said it was his paternal uncle. This led to the Respondent concluding in the refusal letter that there was an inconsistency that adversely affected his credibility as he had not mentioned the discrepancy in his further representations.
24. The Appellant dealt with the Respondent’s points in the refusal letter in his rebuttal statement dated 11 June 2024. He said that he mentioned in his asylum interview at q71 that his solicitor made a mistake. When they read his ACQ back to him they did not mention this. In his Appeal Skeleton Argument (ASA) for the hearing it is said that he was not given the opportunity to have his ACQ read back in a language he understood.
25. The Appellant’s oral evidence in relation to the issue of whether the uncle was maternal or paternal is summarised at paragraph 7 of the decision and it is recorded that he claimed that he did mention issues that he had with his paternal uncle and this should have been noted by the Respondent.
26. The question is whether the FTTJ gave adequate reasons for finding that the Appellant’s evidence was confusing and unclear in light of the Appellant’s explanation for the inconsistency. In order for reasons to be adequate, the evidence relevant to the issues in dispute must be carefully scrutinized and where there is apparently compelling evidence contrary to the conclusion which the judge proposes to reach that must be addressed.
27. The FTTJ did not refer to the Appellant’s rebuttal statement which provided an explanation for the inconsistency. Although the FTTJ found that the Appellant’s oral evidence “confused the issue further”, there is no explanation as to why this was as the Appellant’s oral evidence in relation to the issue of whether the uncle was maternal or paternal is summarised at paragraph 7 of the decision and it is recorded that he claimed that he did mention issues that he had with his paternal uncle and this should have been noted by the Respondent. This accords with his explanation in his asylum interview and rebuttal statement that his (former) solicitor made a mistake. The FTTJ did not of course, have to accept this explanation but he was required to engage with it.
28. The final impugned credibility finding is the conclusion that the Appellant was not disowned because there was evidence that his father had sent him a voice message which he later denied. The oral evidence recorded at paragraph 11 of the decision is that the Appellant was not sure that if his father had disowned him. He was aware that his father had been assaulted and this may have caused him to disown him. The grounds of appeal argue that the FTT does not refer to the evidence upon which it relies when assessing whether he had been disowned by his family. Ms Cunha argued that it was on the basis of the evidence at the hearing. However, the Appellant was not asked about the voice message in interview, he did not deny its existence in his witness statement and the oral evidence, as recorded, also does not state that he denied receiving a voice message. In any event the ACQ does not show that there is an inconsistency because what is stated is that he had “been disowned by his family as they found out the client was dating a Christian woman which is forbidden. Our client received a voicenote from his father through a friend informing the client that he has been disowned”. As the grounds assert, it does not follow from the fact that his father made contact that he was not disowned - the evidence was that the contact from his father was in order to disown him.
29. For the above reasons therefore, I find that Ground 2 is made out.
30. In relation to Ground 1, the impugned findings are at paragraph 20 of the decision. The Appellant stated in his asylum interview on 15 November 2023 that he was “not a political man” in Iraq (q71). Nevertheless, he relied on Facebook evidence which was before the Respondent when the decision was made and further Facebook evidence showing involvement in demonstrations and posts about corruption that was before the First-tier Tribunal. In his rebuttal statement he said he had provided a screenshot of his own profile, and the oral evidence, as recorded by the FTT at paragraph 9, is that he opened his Facebook page after he arrived in this country, he had no political profile in Iraq, intended to join DAKOK but had not yet joined. He states that he considered that there were lots of injustices in his country and would like to express his feelings.
31. The Appellant’s bundle contained his Facebook pages and showed that he had 2.4K friends. His posts date from July 2022. The posts are political in nature and there are photos of the Appellant attending demonstrations in the UK. In the circumstances the general guidance as to Facebook activities in XX (PJAK, sur place activities, Facebook) (CG) [2022] UKUT 00023 (IAC) applied. Further, the FTTJ was required to make a finding, in accordance with the guidance in HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 and RT (Zimbabwe) v Secretary of State for the Home Department [2012] UKSC 38, as to whether the Appellant’s Facebook pages were an expression of a genuine political belief and whether he would be obliged to conceal them to avoid persecution. Neither the Appellant’s ASA nor his witness statement go into detail about his sur place activities. However, the ASA does state that the Appellant had been politically active in the UK and feared return due to his sur place activities. At paragraph 15 of the decision, the Appellant’s representative is recorded as submitting “that he would not past security clearance because of the nature of the questions”. However, there is nothing to show that the FTTJ was referred to any specific evidence as to the nature of the questions or that they could relate to his Facebook activities.
32. The Respondent’s position before the FTTJ as recorded at paragraph 12 was that there was no evidence that anyone in Iraq would have seen the posts and the Appellant could delete his account and return.
33. The FTTJ found that the Appellant could delete his account. An appellant can only be expected to delete his/her account if it does not reflect a genuine political belief. The UT should exercise judicial restraint and not assume that the FTT misdirected itself just because not every step in its reasoning was fully set out. Mr Berry argues in his skeleton argument that the FTT failed to consider that the Appellant’s activities would create a real risk if known by the KRI authorities and failed to consider references in the CPIN to background evidence. However, there is nothing to show that this was evidence to which the FTTJ was directed. Clearly, the case before the FTT could have been better put. However, the Appellant’s Facebook posts showed his attendance at a number of demonstrations and posting about corruption in Iraq. That was evidence of political activity. It was of course open to the FTT to find that these activities were not the expression of a genuine political belief that he would be obliged to conceal to avoid persecution but such a finding was a prerequisite to the conclusion that he could delete his Facebook account. I therefore find that Ground 1 is made out.
34. It follows that that Ground 3 is also made out as the findings in respect of redocumentation turn on the findings with regard to the Appellant’s contact with his family.
35. I have considered whether the appeal should be reheard in the Upper Tribunal or remitted to the First-tier Tribunal. Mr Berry argued that the appeal should be remitted for a de novo hearing. Ms Cunha suggested that it should be stayed behind an Iraqi country guidance case which was to be heard in the autumn. According to the Judiciary.uk website, that case is not yet listed and appears to be limited to the consideration of CSID and INID cards. Appeals from Iraq are not currently being stayed in the First-tier Tribunal and I have found that all the Appellant’s grounds are made out. I therefore do not consider it appropriate to stay this case.
36. In view of the extent of the fact finding with reference to paragraph 7.2 of the Practice Statement and having considered the applicable principles as set out in of AEB v SSHD [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) I conclude that the appeal should be remitted to be heard de novo. I therefore remit the appeal for a de novo hearing.

Notice of Decision
The making of the decision of the First-tier Tribunal involved the making of a material error of law.
I set the decision aside.
The appeal is remitted for a de novo hearing, with no findings preserved.

L Murray

Deputy Upper Tribunal Judge
Immigration and Asylum Chamber

14 April 2025