Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No.: UI-2025-001032

First-tier Tribunal No: PA/53421/2023
LP/08166/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 15th of July 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

DS (IRAQ)
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Thomas Thrower, Solicitor, Jackson Lees Group Limited
For the Respondent: Mr Andrew Mullen, Senior Home Office Presenting Officer

Heard at Field House and via Teams on 25 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
1. The appellant appeals against the decision of First-tier Tribunal Judge Farrelly promulgated on 1 November 2024 (“the Decision”). By the Decision, Judge Farrelly dismissed the appellant’s appeal against the decision of the respondent made on 24 May 2023, to refuse his claim for protection.
Relevant Background
2. The appellant was born in 1996. The agreed and/or undisputed facts in the First-tier Tribunal were that the appellant is an Iraqi Kurd who follows the Sunni branch of Islam. He was born and brought up in the town of Jalawla in the Governate of Diyala. His father was a farmer who also had a machine shop. The appellant helped him and took over the work when his father died in 2018. Three years earlier, the appellant volunteered for the Peshmerga, but he left the Peshmerga when Hasht El Shabi, otherwise known as the Popular Mobilisation Forces (“PMF”) or the Popular Mobilisation Units (“PMU”) took over. For ease of reference, I will refer to them hereafter as the PMU, in line with the nomenclature used by the Tribunal in SMO 1 (see below).
3. The appellant’s case was that he received a tip from a policeman that the PMU was accusing him of having supported Daesh (aka “ISIL” or “ISIS”) by servicing their vehicles. He moved to his aunt’s house in the city of Khanaqin. On 29 April 2019 members of the PMU came looking for him at the family home. They searched his house and took his identity documents, and told his mother that he was wanted for supporting Daesh. Following this, his family planned for him to leave. On 5 May 2019 he left Iraq by lorry.
4. In the reasons for refusal letter (RFRL) dated 24 May 2023, the respondent accepted that the Refugee Convention was potentially engaged on the basis of imputed political opinion, flowing from the fact that he claimed that he had been accused of supporting Daesh. But the respondent did not accept that this claim was credible. This was because they considered that his evidence on the issue was inconsistent. He initially said that the PMU had made up the accusation because he was a Kurd and a Sunni, and then he had said that it was because he had been a Peshmerga volunteer.
The Decision of the First-tier Tribunal
5. The appellant’s appeal came before Judge Farrelly sitting in Manchester on 17 October 2024. Both parties were legally represented, with Mr Thrower appearing on behalf of the appellant. The Judge received oral evidence from the appellant. He said that the tip-off about the arrest warrant had come from a cousin who served as a Police Officer. He said that he thought that the reason for the accusation was because he was Kurdish and he had volunteered with the Peshmerga (although he had not been involved in any fighting).
6. In closing submissions, the Presenting Officer relied on the reasons for refusal, and submitted that the appellant’s account was not credible. Mr Thrower relied upon the appeal skeleton argument (ASA), and submitted that the appellant’s claim was consistent with external evidence that in Diyala Governate attempts had been made to replace Kurds with ethnic Arabs.
7. In the Decision, the Judge’s findings began at paragraph [8]. At paragraph [9] the Judge said that central to the appeal was the truth of the appellant’s claim that the PMU believed (my emphasis) he had been working for Daesh. At paragraph [10] the Judge said he had tried to see why the PMU might think this.
8. At paragraph [12] the Judge observed that the information was that the Peshmerga were helping to maintain control in the area against Daesh. Beyond the claim of working in a machine shop, it was not apparent to him why the appellant would be suspected of helping Daesh.
9. At paragraph [13] the Judge referenced an article dated 17 October 2022 which referred to ethnic cleansing of the disputed territories. It referred to discrimination and hardships from the Iraqi Government against Kurds. There was a reference to a policy from the 1930s of the displacement of ethnic minorities. The Judge went on to observe in the same paragraph that the Peshmerga was a military force of the autonomous Kurdistan region formed over 50 years ago, and they were responsible for the security of the Kurdish region. They had joined with Iraqi troops to fight against active terrorist groups. The majority of Arab settlers had voluntarily left, allowing Kurds to return.
10. Against this background, the Judge held at paragraph [14] that he could not see why, as a former Peshmerga volunteer, the appellant would be perceived to be a Daesh sympathiser. In 2014 Daesh had gained strength and the Iraqi forces had retreated from the disputed areas. The Peshmerga were sent to protect those areas from ISIS. Following an independence referendum in 2017, events swung again against the Kurds. The Judge continued:
“The appellant’s account in relation to this is very bald. Ultimately, even applying the lower standard applicable, I do not find he has shown that Hasht al Shabi pursued him on the basis that he was working with Daesh.”
11. As he did not find the appellant credible in his asylum claim, the Judge said at paragraph [16] that he saw no real risk of a breach of Articles 2 or 3 ECHR upon return.
The Grounds of Appeal to the Upper Tribunal
12. Ground 1 was that the Judge failed to apply the required sliding-scale assessment to the appellant’s risk on return to a formerly contested area, as required by SMO & KSV (Civil status documentation; Article 15) Iraq CG [2022] UKUT 00110 (SMO 2).
13. Ground 2 was that the Judge had made a mistake as a material fact, resulting in unfairness.
14. Ground 3 was that the Judge’s rehearsal of the background evidence relating to Jalawla in the Diyala Governate ran counter to the analysis given in para [112] of SMO. KSP & IM (Article 15(c); identity documents) Iraq CG [2019] UKUT 400 (SMO 1) and thereby undermined the Judge’s conclusion that the appellant’s account was not credible.
The Reasons for the Grant of Permission to Appeal
15. On 27 February 2025, First-tier Tribunal Judge Taylor granted permission to appeal on all three grounds.
16. Judge Taylor’s reasoning was that it was arguable that the material facts of the appellant’s claim were misunderstood, which had impacted upon the assessment of credibility. Judge Farrelly seemed to misunderstand the marginalisation of Kurds in the appellant’s home area, following the re-capture of the area when - despite the PMU and the Peshmerga jointly fighting against Daesh - the Shia PMU took control, which resulted in the marginalisation of Kurds. This was at odds with the country situation outlined in paragraphs [12]-[14] of the Decision. The Decision also did not contain the sliding-scale assessment of risk which would be required, irrespective of any credibility findings, based upon the appellant’s personal characteristics.
The Hearing in the Upper Tribunal
17. The hearing before me to determine whether an error of law was made out was a hybrid one, with both representatives attending remotely via Teams.
18. At the outset of the hearing, Mr Mullen informed me that he was minded to concede the error of law challenge, and to concede that the Decision should be set aside in its entirety and remitted to the First-tier Tribunal for a fresh hearing before another Judge. I probed Mr Mullen’s reasons for making this concession, and I raised with Mr Thrower the fact that the agreed issues which the Judge was asked to address did not include a need for him to conduct a sliding scale assessment pursuant to Article 15(c) of the Qualification Directive and/or SMO 2.
19. Having satisfied myself that the concession was reasonable, I ruled that a material error of law was made out, with my detailed reasons for so finding to follow in writing.
Discussion and Conclusions
Ground 1
20. In response to my query as to whether the issue raised in Ground 1 was raised before Judge Farrelly, Mr Thrower directed my attention to paragraphs 339C and 339CA of the Rules.
21. Paragraph 339C requires that the person be granted humanitarian protection in the United Kingdom if the Secretary of State is satisfied (among other things) that the person does not qualify as a refugee but substantial grounds have been shown for believing that the person concerned, if returned to the country of return, would face a real risk of suffering serious harm.
22. Paragraph 339CA provides that for the purposes of paragraph 339C, serious harm consists of:
(iv) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.
23. In SMO 2, the Tribunal gave the following headnote guidance:
1. There continues to be an internal armed conflict in certain parts of Iraq, involving government forces, various militia and the remnants of ISIL. Following the military defeat of ISIL at the end of 2017 and the resulting reduction in levels of direct and indirect violence, however, the intensity of that conflict is not such that, as a general matter, there are substantial grounds for believing that any civilian returned to Iraq, solely on account of his presence there, faces a real risk of being subjected to indiscriminate violence amounting to serious harm within the scope of Article 15(c) QD.
2. The only exception to the general conclusion above is in respect of the small mountainous area north of Baiji in Salah al-Din, which is marked on the map at Annex D. ISIL continues to exercise doctrinal control over that area and the risk of indiscriminate violence there is such as to engage Article 15(c) as a general matter.
3. The situation in the Formerly Contested Areas (the governorates of Anbar, Diyala, Kirkuk, Ninewah and Salah Al-Din) is complex, encompassing ethnic, political and humanitarian issues which differ by region. Whether the return of an individual to such an area would be contrary to Article 15(c) requires a fact-sensitive, “sliding scale” assessment to which the following matters are relevant.
4. Those with an actual or perceived association with ISIL are likely to be at enhanced risk throughout Iraq. In those areas in which ISIL retains an active presence, those who have a current personal association with local or national government or the security apparatus are likely to be at enhanced risk.
5. The impact of any of the personal characteristics listed immediately below must be carefully assessed against the situation in the area to which return is contemplated, with particular reference to the extent of ongoing ISIL activity and the behaviour of the security actors in control of that area. Within the framework of such an analysis, the other personal characteristics which are capable of being relevant, individually and cumulatively, to the sliding scale analysis required by Article 15(c) are as follows:
(i) Opposition to or criticism of the GOI, the KRG or local security actors;
(ii) Membership of a national, ethnic or religious group which is either in the minority in the area in question, or not in de facto control of that area;
(iii) LGBTI individuals, those not conforming to Islamic mores and wealthy or Westernised individuals;
(iv) Humanitarian or medical staff and those associated with Western organisations or security forces;
(v) Women and children without genuine family support; and
(vi) Individuals with disabilities.
24. The relevance of paragraph 339CA (iv) in this context is that it contains the same wording as Article 15(c) of the Qualification Directive, and thus the guidance in SMO 2 remains relevant, even if Article 15(c) of the Qualification Directive is not invoked.
25. The difficulty with Mr Thrower’s argument is that the ASA also did not make any reference to paragraph 339CA (iv). The agreed issues did not require the Judge to assess whether the appellant qualified for subsidiary protection pursuant to paragraph 339CA (iv) or pursuant to the guidance given in SMO 2. Mr Thrower said he had raised the issue in oral submissions. But that is not sufficient to make good an error of law challenge in circumstances where it is not suggested, still less shown, that the Judge incorrectly listed the agreed issues that he had to decide. So, I find that Ground 1 is not made out.
Grounds 2 and 3
26. I consider Grounds 2 and 3 together, as they have a common theme, and they both go to the assessment of credibility. Firstly, it is said that the Judge misunderstood the appellant’s core claim. Secondly, it is said that the Judge misunderstood the relevant background evidence relating to the Sunni Kurdish population in Jalawla, where Daesh maintains an operating presence, and where the Sunni Kurdish population had become marginalised and vulnerable to Shia PMU actors who now control the area following the peshmerga withdrawal.
27. The Judge’s line of reasoning on the central credibility issue was entirely focused on the question as to why the PMU would have formed the belief that the appellant had collaborated with Daesh. The Judge thus overlooked, and failed to engage with, the explanation that was foregrounded by the appellant in cross-examination as follows:
“Daesh did not give my name. This is allegation they made to give the case some kind of formality to not lead to a fight between Kurds and Arabs. I believe that this was the reason they fabricated all of these things, to be able to tell police to issue an arrest warrant
28. In short, the appellant’s case on appeal was that the PMU made the allegation maliciously, knowing that it was baseless and untrue.
29. It follows that the Judge was wrong to make an adverse credibility finding solely on the basis that it was not credible that the PMU would have a genuine belief that the appellant was a Daesh collaborator. The Judge should also have asked himself whether it was credible that the Shia PMU would knowingly make such a false allegation against the appellant, a Sunni Kurd.
30. In SMO 1, the Tribunal said as follows at paragraph [112]:
“Like Dr Fatah, EASO considered the situation in Khanaqin in the East to deserve separate consideration. It noted that the district was ethnically diverse and had a range of pressures being brought to bear on it during the Sadam Hussain years and thereafter. Suburbs had been taken by ISIL in June 2014, but not Khanaqin City itself. When these areas were recaptured by the (Shia) PMU and the Peshmerga in 2015, it was the former who took over control of the area. This caused many, especially the Kurds, to flee in fear of reprisals. Many had not returned. Security was now shared between Iraqi forces and the Badr Organisation, although Kurdish forces continue to stand at check points. A high-ranking official felt that the withdrawal of Kurdish forces had left Khanaqin vulnerable to insurgent attacks. The town of Jalawla has witnessed similar events resulting in the marginalisation of the Kurdish population.”
31. It is pleaded in the Grounds of Appeal, and not disputed by the respondent, that the Judge was specifically directed to this passage. While the Judge was not bound to refer to it, I consider that his summary of the background evidence betrays a misunderstanding of its import in two material respects. Firstly, (although this is not a point which is picked up in the grounds) the Judge earlier characterised the PMU as being predominantly Sunni, whereas the country guidance is that they are Shia. Secondly, while the Judge rightly recognised that areas taken by Daesh were recaptured by the PMU and the Peshmerga fighting together, it is not acknowledged that it was the former who took control of those areas, which caused many, especially the Kurds, to flee in fear of reprisals; and that the appellant’s account of his adverse treatment by the Shia PMU was – at least arguably – consistent with the Kurdish population in Jalawla becoming marginalised.
32. Accordingly, I am persuaded that a material error of law is made out as pleaded in Grounds 2 and 3, and that the Decision is thereby unsound and must be set aside in its entirety.
33. I have carefully considered the venue of any rehearing, taking into account the submissions of the representatives. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), I have considered 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.
34. I 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 an error of law, and accordingly the decision is set aside in its entirety, with none of the findings of fact being preserved.
This appeal is remitted to the First-tier Tribunal at Manchester for a fresh hearing before any Judge apart from Judge Farrelly.

Anonymity
The First-tier Tribunal made an anonymity order in favour of the appellant, and I consider that it is appropriate that the appellant continues to be protected by anonymity for the purposes of these proceedings in the Upper Tribunal.

Andrew Monson
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
9 July 2025