Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001027
First-tier Tribunal No: PA/58111/2024
LP/08685/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 8 September 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE KIRK

Between

LQ
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Howard, Counsel instructed by Fountain Solicitors
For the Respondent: Ms S McKenzie, Senior Home Office Presenting Officer

Heard at Field House on 9 June 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
Introduction
1. The Appellant is a national of Iraq. He had appealed under the provisions of the Nationality, Immigration and Asylum Act 2002 against the Respondent’s decision dated 15 April 2024 to refuse his protection claim made on 13 September 2021.
2. In a decision which was promulgated on 29 November 2024, following a hearing in the First-tier Tribunal on 7 November 2024, Judge Young-Harry (‘the Judge’) dismissed the Appellant’s appeal (‘the Decision’).
3. On 3 March 2025, First-tier Tribunal Judge Clarke granted the Appellant permission to appeal to the Upper Tribunal.
Anonymity
4. The Tribunal considers that it is appropriate to maintain the anonymity order made by the First-tier Tribunal in light of the circumstances of the Appellant’s protection claims. No party asked for it to be set aside.
Background and claim
5. The Appellant worked for an estate agency in Iraq. His duties included showing prospective tenants available properties and post-tenancy cleaning. The Appellant claims he and his manager rented a property to two men (the tenants) who were identified as terrorists by Hashad Al Shabbi (HAS). The Appellant claims he was threatened by two men in plain clothing for providing the rental to the tenants and his manager was killed two days later. The Appellant’s mother informed him that HAS members attended his home looking for him, and she asked the Appellant not to return home. The Appellant fled to his father’s friend’s house and arrangements were made for the Appellant to flee the country.
6. The Appellant asserts that he would be at risk on return to Iraq based on his imputed political opinion. Alternatively, he claims he is entitled to humanitarian protection.
First-tier Tribunal decision
7. The Judge considered the account given by the Appellant in his written and oral evidence and found she doubted many aspects of his account.
8. The Judge noted that in the screening interview, the Appellant on two occasions referred to ‘unknown men’ who he claimed had threatened to kill him. However, at the substantive interview, the Appellant identified the men as members of HAS (at [16]). In the screening interview, the Appellant said that ‘men in plain clothes’ came into his shop and threatened him and his manager, suggesting that the Appellant saw the men (at [17]). The Judge noted that the Appellant later changed this evidence and claimed ‘five men in uniform’ came into the shop to threaten him and his manager. In his witness statement, the Appellant claimed he was not present when the men attended his shop and killed his manager, rather, he received a phone call from his mother who informed him men had attended his home looking for him. These inconsistencies were considered by the Judge to be ‘significant’(at [17]). Her Honour further doubted the Appellant's account because he was unable to provide details about which terrorist group he was accused of assisting. She also doubted the Appellant’s claim that ‘after killing the manager in the store, the men immediately went to his home as he failed to explain how they knew who he was or where he lived, given, on one version he was not present in the store when the men attended and killed his manager’(at [18]).
9. The Judge noted that whereas in his witness statement the Appellant claimed that he left his Civil Status Identity Document (CSID) in Iraq and he does not know where it is, in his substantive interview he claimed it was taken by HAS (at [19]). Her Honour found that the Appellant ‘added this inconsistent detail in order to bolster his claim and to explain how HAS identified him’ (at [19]). Further, the Appellant made no reference in the screening interview to being wanted by the police, however he subsequently claimed that the police informed his mother that they would hand him over to HAS (at [20]).
10. Her Honour concluded:
“Given the number of discrepancies and inconsistencies in the evidence, I do not find the appellant has given a credible account of what occurred in Iraq. I do not accept any part of the account he has given; thus I find it is safe for the appellant to return to his home country.

I am not satisfied the appellant has established he has a well-founded fear of persecution for a convention reason.”
11. In relation to the Appellant’s appeal on humanitarian grounds, the Judge found the Appellant had failed to show that there are substantial grounds for believing that he would face a real risk of suffering serious harm in his country of origin. Her Honour further found that the Appellant did not meet the requirements of paragraph 276ADE(1)(vi) of the Immigration Rules and that the decision did not disproportionately interfere with the Appellant's Article 8 rights.
Permission to appeal to Upper Tribunal
12. The Appellant applied for permission to appeal to the Upper Tribunal. The Grounds of Appeal argued that the Judge materially erred in law in:
1) The application of the standard of proof

2) Inadequate findings on paragraph 276ADE(1) of the Immigration Rules and Article 8 ECHR

3) Failure to apply country guidance

4) Finding that the Appellant gave conflicting accounts
13. The First-tier Tribunal granted permission to appeal on the following grounds
...
“It is arguable that the Judge has failed to make it clear that they are applying the lower standard of proof. In Paragraph 11 there is the sole reference to the lower standard but the Judge then immediately self-directs themselves from JCK (s32 NABA 2022) [2024] UKUT 00100 which obviously applies to NABA cases. Throughout the rest of the Decision and Reasons, the Judge refers to ‘doubting’ the Appellant’s case and it is not clear if the applicable lower standard has been applied throughout. This Ground is arguable.
It is also arguable that the Judge has made inadequate findings on the Appellant’s ability to redocument himself/access his CSID card. In Paragraph 19, the Judge does not make any findings on the Appellant’s ability to access their CSID card. This is a material point and is arguable.
In relation to Grounds 3 and 4, it is not clear to me if Article 8 was placed in issue at the hearing as the Judge does not indicate this as a matter in dispute at Paragraph 7. However, the Judge then goes on to make findings – albeit inadequate findings – on Article 8. Ground 4 appears to be a mere disagreement with the Judge’s findings. Despite my reservations about the merit of Grounds 3 and 4, I do not limit the grant.
Permission to appeal is ALLOWED.”
Upper Tribunal hearing and submissions
14. The oral and written submissions at the hearing are a matter of record and need not be set out in full here. The Tribunal had access to all the documents before the First-tier Tribunal and the composite bundle filed by the Appellant.
15. The Tribunal heard submissions from Mr Howard for the Appellant and Ms McKenzie for the Respondent which have fully been taken into account.
Appellant
16. In relation to Ground 1, the Judge erred in not applying the correct standard of proof at [11]-[18]. The Appellant’s claim for asylum was made before the Nationality and Borders Act 2022 came into force, and the Appellant’s claim for asylum should have been considered by applying the lower standard of proof, that is whether there was a reasonable degree of likelihood in the Appellant’s account. The Judge assessed the Appellant’s account at a higher standard of proof as shown by the repeated use of the words “I doubt” in the Decision at [15], [16] and [18].
17. In relation to Ground 2, the Judge at [25] found that the Appellant failed to meet the requirements of paragraph 276 ADE(1)(vi) of the Immigration Rules and that the decision did not disproportionately interfere with the Appellant’s Article 8 rights, but her Honour did not give any reasons for these findings.
18. In relation to Ground 3, the Judge failed to make findings as to whether the Appellant will be able to access a CSID or INID on his return to Iraq at [19] which is relevant to whether the Appellant is at a real risk of an Article 3 breach on return to Iraq. Her Honour did not apply the test in SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 00110 (IAC). (‘SMO2’) This failure to make clear findings on a material aspect of the Appellant’s case or apply the country guidance is a material error of law.
19. In relation to Ground 4, the Judge at [17] found that there were inconsistencies in the Appellant’s account as described by him in the screening interview and his witness statement. The Judge erred in finding that the Appellant had given materially conflicting accounts.
Respondent
20. In relation to Ground 1, the Judge at [11] directed herself correctly in relation to the standard of proof for an asylum claim being a reasonable degree of likelihood and cited Karanakaran v SSHD [2000] 3 All ER 449. Further, at [12] the Judge correctly stated the lower standard of proof for humanitarian protection being that there are substantial grounds for believing that the Appellant would face a real risk of suffering serious harm in his country of origin. The phrasing of the Judge’s reasons, specifically the use of the word “doubt”, does not indicate an error in the applicable standard of proof.
21. The Respondent conceded that Ground 3 does contain a material error of law. The Judge at [19] failed to make findings in relation to whether the Appellant will be able to access a CSID or INID on his return to Iraq which is relevant to whether he could travel from the airport to his home area without encountering treatment or conditions which are contrary to Article 3.
22. The Respondent also conceded that Ground 2 contains a material error of law. By not making findings in relation to whether the Appellant will be able to access a CSID or INID on his return to Iraq, the Judge did not properly consider whether there were very significant obstacles to the Appellant’s reintegration in his country of origin, and thereby meets the requirements of paragraph 276ADE(1)(vi) of the Immigration Rules.
23. In relation to Ground 4, the materials support a finding that the Appellant was present at the time the incident occurred, specifically the Appellant’s statement in his witness statement that he was “present at [his] job” at the relevant time (at p170 Appellant’s composite bundle). There is no material error of law.
Decision on error of law
Ground 1 – Standard of proof
24. The Appellant’s claim for asylum and protection was made before 28 June 2022 and the provisions of the Nationality and Borders Act 2022 do not apply to his claim. The “lower standard of proof” in asylum claims was outlined by Singh LJ in MAH (Egypt) v SSHD [2023] EWCA Civ 216 at [49]:
“The requirement that an applicant’s fear of persecution should be well-founded means that there has to be demonstrated “a reasonable degree of likelihood” that he will be persecuted for a Convention reason if returned to his own country: see R v Secretary of State for the Home Department, ex parte Sivakumaran [1988] AC 958, at 994 (Lord Keith of Kinkel).”
25. Under Article 3 ECHR and for humanitarian protection claims, a claimant must show that there is a “real risk” that they would be subjected to serious harm. That equates to the same lower standard of proof as applies under the Refugee Convention: Kacaj (Article 3 – Standard of Proof – Non-State Actors) Albania* [2001] UKIAT 00018 at [39].
26. The Judge set out at [11]-[12] the following self-direction in relation to the standard of proof applicable to asylum and humanitarian protection appeals:
“To succeed on asylum grounds, the appellant must show he has a well-founded fear of persecution for a Convention reason (race, religion, nationality, membership of a particular social group, political opinion). The burden of proof is upon the appellant. As per the decision in Karanakaran v SSHD [2000] 3 All ER 449 the standard of proof is a reasonable degree of likelihood.
...
To succeed on an appeal on humanitarian protection grounds the appellant must not be a refugee; he must show to the lower standard, that there are substantial grounds for believing that he would face a real risk of suffering serious harm in his country of origin. The burden of proof rests on the appellant.”
27. In considering the Appellant’s appeal on asylum grounds Her Honour stated at [15]-[16], [18]:
“Having considered the account the appellant gives in his written and oral evidence, I have reason to doubt the appellant’s account.
I doubt the appellant’s claim because in the screening interview, he states he does not know who wishes to harm him, simply that his life has been threatened. However by the substantive interview, he identified the men as members of HAS. The appellant claims he was not given sufficient time in the screening interview to explain. I note however the appellant on two occasions in the screening interview referred to unknown men threatening to kill him.
...
I further doubt the appellant’s account because he was unable to provide details about which terrorist group he was accused of assisting. I doubt the claim that after killing the manager in the store, the men immediately went to the appellant’s home; the appellant has failed to explain how they knew who he was or where he lived, given, on one version, he was not present in the store when the men attended and killed his manager.”
28. I do not accept that the Judge applied the incorrect standard of proof to the Appellant’s claims. As was recently recognised by the Court of Appeal in ASO (Iraq) v Secretary of State for the Home Department [2023] EWCA Civ 1282 at [41]:
“An appellate court must assume, unless it detects an express misdirection, or unless it is confident, from the express reasoning, that it must be based on an implicit misdirection, that the specialist tribunal knows, and has applied, the relevant law.”
29. The Judge, at [11]-[12] of the Decision, correctly directed herself in relation to the standard of proof applicable in asylum and humanitarian protection claims. There is nothing in the Judge’s express reasoning that indicates that she did not follow her own self-direction. Ground 1 is not made out.
Ground 2 – Failure to make findings
30. The Judge stated at [25]:
“In light of my findings above, I find the appellant fails to meet the requirements of paragraph 276ADE(1)(vi). Neither do I find that the decision disproportionately interferes with the appellant’s Article 8 rights.”
31. The reference to the “findings above” appears to be a reference to [22] in which the Judge stated:
“Given the number of discrepancies and inconsistencies in the evidence, I do not find the appellant has given a credible account of what occurred in Iraq. I do not accept any part of the account he has given; thus I find it is safe for the appellant to return to his home country.”
32. As the Appellant pointed out, the Judge made no findings as to why she considered there were not very significant obstacles to the Appellant’s return to any part of Iraq, or why she found that the decision did not disproportionately interfere with the Appellant’s Article 8 rights. I accept the Appellant’s submission that the Judge’s failure to make findings on matters relevant to the requirements of paragraph 276ADE(1) of the Immigration Rules, and to his Article 8 claim amounts to a material error of law. The Respondent accepted that the Judge erred in this respect. Ground 2 is made out.
Ground 3 – Failure to apply country guidance
33. The Appellant claimed that he does not have a CSID, INID or a passport, he is unable to obtain a replacement CSID or INID, and he has no-one who can assist him in obtaining replacement documents. He contended that without such documentation he is at real risk of an Article 3 breach on his return to Iraq. As the Appellant pointed out, the Judge made no findings on this material aspect of the Appellant’s case and did not apply the relevant Country Guidance. In SMO2 it was held at headnote 11:
“The CSID is being replaced with a new biometric Iraqi National Identity Card – the INID. As a general matter, it is necessary for an individual to have one of these two documents in order to live and travel within Iraq without encountering treatment or conditions which are contrary to Article 3 ECHR. Many of the checkpoints in the country are manned by Shia militia who are not controlled by the GOI and are unlikely to permit an individual without a CSID or an INID to pass.”
34. The Respondent conceded this ground of appeal in its submissions. Ground 3 is made out.
Ground 4 - Finding in relation to materially conflicting accounts
35. I consider that the error Ground 4 is no more than an expression of disagreement with a finding of fact made by the Judge which was reasonably open to her on the materials before the Tribunal for the reasons which she gave.
Remittal to First-tier Tribunal
36. The parties made submissions on whether the issues on which the appeal grounds had been made out should be heard in the Upper Tribunal or remitted to the First-tier Tribunal.
37. Mr Howard submitted that if the Article 3/humanitarian protection issue only is to be considered, the matter could be heard by the Upper Tribunal, otherwise it should be remitted to the First-tier Tribunal. He requested that the matter be listed in Birmingham.
38. Ms McKenzie submitted that if the only issue to be considered is the Appellant’s journey between the airport and his home, the matter could be heard by the Upper Tribunal. She informed the Tribunal that she is aware that an Iraq country guidance appeal in AH and KH will be heard on 15 September 2025 in the Upper Tribunal, and Judge Lane has said that after the hearing he intends to write a quick decision.
39. In deciding to remit this appeal to the First-tier Tribunal, I have taken into account the guidance in Part 3, paragraph 7 of the Senior President of Tribunals’ Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal (‘Practice Statement’) and the guidance in AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 (‘AEB’) and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) (‘Begum’).
40. Having had regard to paragraph 7.2 of the Practice Statement and having considered the applicable principles in AEB and Begum, I am satisfied that no findings can be preserved and the extent of the fact-finding necessary means that it is appropriate to remit this matter to be reheard in the First-tier Tribunal.
Notice of Decision
41. The Decision of the First-tier Tribunal involved the making of material errors of law.
42. The Decision of the First-tier Tribunal dated 29 November 2024 is set aside.
43. The appeal is remitted to the First-tier Tribunal to be heard in Birmingham by a different judge with no findings of facts preserved.

Dr Linda J Kirk

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

18 August 2025