Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001040

First-tier Tribunal No: PA/64157/2023 LP/11778/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 16th of September 2025

Before

UPPER TRIBUNAL JUDGE PINDER

Between

O S
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr K Wood, Legal Representative, Immigration Advice Service.
For the Respondent: Ms Simbi, Senior Presenting Officer.

Heard at Birmingham Civil Justice Centre on 27 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 Malik (‘the FtT/the Judge’) promulgated on 19th December 2024. The Judge dismissed the Appellant’s appeal against the Respondent’s decision of 28th November 2023, in which the Respondent refused the Appellant’s protection and human rights claim.
2. I have maintained the anonymity order in favour of the Appellant. I consider that the specific facts of this appeal, the maintenance of the integrity of the United Kingdom’s immigration system and the Appellant having raised a claim to international protection, are such that an anonymity order is a justified derogation from the principle of open justice.
Factual and Procedural Background
3. The Appellant is a national of Iraq, of Kurdish ethnicity, born in 1993. He entered the UK on 16th December 2021 and claimed asylum on the same day. The Appellant’s protection claim is grounded in his account that he is at risk on return as a member of a Particular Social Group, namely as a potential victim of an honour crime, as a result of his relationship with a woman (‘S’) out of wedlock. The Appellant also claims to be at risk on return as a result of his political activities, undertaken whilst in the UK, in which he has demonstrated against and criticised the IKR authorities.
4. The Appellant appealed to the FtT against the Respondent’s refusal and his appeal was heard by the Judge on 4th December 2024.
Decision of the First-tier Tribunal
5. The Judge rejected the Appellant’s account relating to his relationship and being at risk of harm from her family as well as his own. The Judge’s reasons included at [14(a)] that it was not credible of the Appellant to have not known, initially at least, that the relationship (and her becoming pregnant outside of wedlock) would be dangerous for them both, if discovered. This was because of the prevalent cultural and religious norms in his society/community. The Judge added at [14(b)] that it was not credible that S would be able to attend the Appellant’s shop 3-4 times a week and make telephone calls to him without raising suspicion when S’ father was described to be powerful, being in or linked to the KDP intelligence. Nor did the Judge find it credible that S’ sister would place herself at risk by calling the Appellant to warn him, after S was claimed to have been killed by their father, because this would place the Appellant’s sister-in-law at risk as well.
6. Other aspects of the Appellant’s account were found by the Judge not to be credible, including when and how he found out that S’ father was powerful ([14(c)-(d)], the Appellant’s account of travelling to Erbil without his CSID [14(e)] and his ability to exit Iraq without coming to the attention of S’ father and/or of the authorities [14(f)].
7. With regards to the Appellant’s sur place claim, the Judge’s adverse credibility findings were brought forward with the Judge concluding that the Appellant had sought to bolster his claim, which the Judge had found to be false, by engaging in limited sur place activity here. This was also in light of the fact that the Appellant was not politically active in the IKR or Iraq previously and is not a supporter of a political party here either – [14(i)].
8. In considering the specific aspects of the Appellant’s evidence of his sur place activities, the Judge concluded at [14(j)] that there was no objective evidence to suggest membership of the Dakok Support Centre would place the Appellant at risk on return to the IKR or Iraq and there was no evidence to suggest that a claimed interview of the Appellant by a television channel had been viewed by the authorities he claims to fear. Similarly, that any such authorities would be interested in him or anything that he had said. The Judge found at [14(j)] that the Appellant was at most no more than a low-level activist, which would not place him at risk on return.
9. The Judge turned to consider the issue of documentation and the feasibility of returning the Appellant to the IKR. At [16], the Judge found that there was no reason for the Appellant to have lost any contact with his family not having accepted his claim in this respect. The Judge was satisfied therefore that the Appellant would be able to receive his family’s assistance on return to ensure the provision to him of his identity documents.
10. Accordingly, the Judge went on to dismiss the Appellant’s appeal all grounds.
The Appellant’s Appeal to the Upper Tribunal
11. The Appellant applied for permission to appeal raising three grounds of appeal against the Judge’s decision and findings.
12. In granting permission to appeal, a different judge of the FtT noted that it was arguable that the Judge had made a number of findings on the basis of inherent implausibility and on the basis of points not taken by the Respondent. The judge also noted that whilst the grounds in relation to the sur place claim were less arguable, permission to appeal on those grounds was not refused.
13. The Appellant’s grounds of appeal can be summarised as follows:
(i) Ground 1 – the Appellant’s sur place claim was capable of standing alone and the Judge’s starting point on credibility of the Appellant’s sur place claim was in error and contrary to the guidance issued by the Court of Appeal in WAS (Pakistan) v Secretary of State for the Home Department [2023] EWCA Civ 894 at [87]. Further that the Judge’s approach was procedurally unfair in light of the Respondent not having taken issue with the genuineness of the Appellant’s political activities. The Judge also required corroboration of the authorities having viewed and/or monitored the Appellant’s posts/interview, which amounted to an error;
(ii) Ground 2 – the Judge has materially misdirected herself in law in relation to her rejection of the Appellant’s (pre-flight) account on the basis of implausibility;
(iii) Ground 3 – the Judge has taken irrelevant considerations into account and/or failed to take other relevant matters into consideration, relating to the Appellant’s account of S’ father, his uniform and consequent power and influence.
14. In response, the Respondent did not file and serve a reply under Rule 24 of the Procedure Rules.
15. At the hearing, both parties’ advocates made further submissions on each of the grounds of appeal pursued and Ms Simbi, on behalf of the Respondent, defended the Judge’s decision. At the end of the hearing, I reserved my decision on whether or not the Judge made material errors of law. I have addressed the Appellant’s written pleadings and the parties’ respective oral submissions in the section below when setting out my analysis and conclusions for my decision.
Analysis and Conclusions
The Appellant’s second and third grounds of appeal
16. I address the second and third grounds of appeal first as these both relate to the Appellant’s pre-flight claim.
17. I am satisfied that the Judge has fallen foul of the well-established guidance contained in HK v SSHD [2006] EWCA Civ 1037 cautioning against findings grounded in plausibility, as argued in the Appellant’s second ground. In HK, Neuberger LJ made the following well-known remarks:
“27. The difficulty of the fact-finding exercise is particularly acute in asylum cases, as has been said on more than one occasion in this court - see for instance Gheisari –v- Secretary of State [2004] EWCA Civ 1854 at paragraphs 10 and 12 per Sedley LJ and at paragraphs 20 and 21 per Pill LJ. The standard of proof to be applied for the purpose of assessing the appellant's fear of persecution is low. The choice is not normally which of two parties to believe, but whether or not to believe the appellant. Relatively unusually for an English Judge, an Immigration Judge has an almost inquisitorial function, although he has none of the evidence-gathering or other investigatory powers of an inquisitorial Judge. That is a particularly acute problem in cases where the evidence is pretty unsatisfactory in extent, quality and presentation, which is particularly true of asylum cases. That is normally through nobody's fault: it is the nature of the beast.

28. Further, in many asylum cases, some, even most, of the appellant's story may seem inherently unlikely but that does not mean that it is untrue. The ingredients of the story, and the story as a whole, have to be considered against the available country evidence and reliable expert evidence, and other familiar factors, such as consistency with what the appellant has said before, and with other factual evidence (where there is any).

29. Inherent probability, which may be helpful in many domestic cases, can be a dangerous, even a wholly inappropriate, factor to rely on in some asylum cases. Much of the evidence will be referable to societies with customs and circumstances which are very different from those of which the members of the fact-finding tribunal have any (even second-hand) experience. Indeed, it is likely that the country which an asylum-seeker has left will be suffering from the sort of problems and dislocations with which the overwhelming majority of residents of this country will be wholly unfamiliar. The point is well made in Hathaway on Law of Refugee Status (1991) at page 81:
“In assessing the general human rights information, decision-makers must constantly be on guard to avoid implicitly recharacterizing the nature of the risk based on their own perceptions of reasonability.”

30. Inherent improbability in the context of asylum cases was discussed at some length by Lord Brodie in Awala –v- Secretary of State [2005] CSOH 73. At paragraph 22, he pointed out that it was "not proper to reject an applicant's account merely on the basis that it is not credible or not plausible. To say that an applicant's account is not credible is to state a conclusion" (emphasis added). At paragraph 24, he said that rejection of a story on grounds of implausibility must be done "on reasonably drawn inferences and not simply on conjecture or speculation". He went on to emphasise, as did Pill LJ in Ghaisari, the entitlement of the fact-finder to rely "on his common sense and his ability, as a practical and informed person, to identify what is or is not plausible". However, he accepted that "there will be cases where actions which may appear implausible if judged by…Scottish standards, might be plausible when considered within the context of the applicant's social and cultural background.”
18. In KB & AH (credibility-structured approach : Pakistan) [2017] UKUT 491 (IAC), the Upper Tribunal held that plausibility is a valid indicator of credibility, but requires a certain degree of caution in its approach.
19. Whilst the Judge has used the terms “lacking in credibility” and “credible”, the reasons and context given at [14(a)-(b)] really relate to the plausibility of the Appellant starting and maintaining a relationship with a woman, outside of wedlock, when this is otherwise considered dangerous and against the more traditional cultural and social norms that may otherwise set different expectations. It is trite to note that persons engage in conduct and hold and/or express beliefs despite these being regarded as transgressive by a prevailing, or dominant, and more traditional set of social and cultural norms. Placing themselves in danger, potential or actual, does not inherently make a claim implausible, or indeed incredible.
20. The Judge also accepted at [14(b)] that secret relationships do take place but does not give any reasons why she did not think it plausible that S would have been able to attend the Appellant’s shop 3-4 times a week and take telephone calls without raising suspicion. The only reason given appears to relate to S’ father being powerful but that in itself does not render the Appellant’s claim implausible. The Judge also returned to the danger that this would have presented the Appellant and S, as well as the Appellant’s sister-in-law, returning to the same issue addressed at para 19 above.
21. In addition, as Mr Wood reiterated in oral submissions, the Judge was expressly taken to background information relating to pre-marital relationships being common despite the risks that these entail. At para 16 of the Appellant’s skeleton argument before the FtT, the following was set out, which the Judge has not addressed, or even acknowledged, when reaching her findings:
“16. The Appellant avers that he was in a pre-marital relationship with Sahar. The circumstances in which the pair met and maintained their relationship are consistent with the objective evidence. Despite the risks associated with pre-marital relationships, a report from ACCORD – Austrian Centre for Country Origin and Asylum Research and Documentation dated 15/10/2021 does states, it is the norm in Kurdish society that men embark on illicit sexual relationships. Society in KRI is male-dominated and many men are ready to take on the risk that is associated with illicit sexual relationships. It is only natural and plausible that the Appellant would have taken the risk to have a relationship with Sahar.” (emphasis original)
22. For this reason and those set out immediately above, the findings of the Judge at [14(a)-(b)] are unsafe and amount to material errors of law. Since these relate to the core of the Appellant’s pre-flight claim, namely whether he engaged in a relationship outside of wedlock leading on his account to an honour-crime and a risk of ill-treatment to him, these errors are material and sufficient to set aside the Judge’s findings on the Appellant’s pre-flight claim. This is in the specific context of background evidence concerning honour-crimes in Kurdish societies in the IKR.
23. I turn briefly to the Appellant’s third ground of appeal, the issue of the power and influence claimed to be held by S’ father. At [14(d)], the Judge stated as follows:
“Again, I do not find it credible that if her father was powerful, she would not have disclosed this much earlier than he claims she did but waited days before she was killed to do so. In any event the appellant’s account of her father’s power/rank is predicated on the uniform he claims he saw her father wearing and/or what Sahar told him. Regardless, I find it would be relatively easy and, in the public, domain, to find out what rank an eagle, and two stars indicated and that given my credibility findings, I find the appellant has concocted his account of her father having power to enhance his false claim of being at risk on return.”
24. No reason is given by the Judge why it is not plausible that S would not have disclosed the fact that her father was powerful to the Appellant at an earlier point. There could be many reasons for this. It is also clear that the Judge’s concerns with regards to the Appellant’s account of S’ father’s uniform are also predicated on the earlier findings of the Judge concerning the credibility of other aspects of the Appellant’s account, which I have already found to be unsafe.
25. I have considered Ms Simbi’s submissions on these two grounds of appeal very carefully and I have reminded myself of the guidance from Green LJ in the Court of Appeal in Ullah v SSHD [2024] EWCA Civ 201 at [26]. Ms Simbi focused her submissions on how the Judge addressed the issue of S’ father and whether the Appellant had demonstrated that he was powerful. There was nothing in Ms Simbi’s submissions that was capable of demonstrating that the Judge had not fallen into the errors on plausibility that I have outlined above. Particularly, the Judge’s failure to address the background information outlined at para 21 above, which had been raised by the Appellant in direct response to the concern raised by the Respondent in the refusal decision (second bullet point under ‘credibility’ [251] in the consolidated bundle). The Judge only addressed the Respondent’s position relating to cultural norms and considering the core nature of this issue, it was incumbent on the Judge to consider and engage with the Appellant’s response.
26. Turning lastly to the Appellant’s first ground of appeal relating to his sur place claim, I will not address this in any detail since I have deemed the material errors of law under the second and third grounds of appeal sufficient to set aside the Judge’s decision. It is clear from [14(i)] that the Judge carried forward the adverse credibility findings relating to the Appellant’s pre-flight claim, which I have deemed to be unsafe. I will also add that it is concerning that the Judge appeared to require evidence of the authorities having viewed the Appellant’s interview broadcast by a television channel or evidence of the authorities otherwise monitoring him. As Mr Wood rightly pleaded in the Appellant’s first ground of appeal, it is unlikely that any such evidence would be available to the Appellant. Mr Wood continued, “(a)s the Court of Appeal in WAS (Pakistan) observed at [84]:
“…'What evidence did the UT expect?' It is very improbable that there would be any direct evidence of covert activity by the Pakistani authorities, whether it consisted of monitoring demonstrations, meetings and other activities, monitoring social media, or the use of spies or informers…”
27. Ms Simbi submitted that the Judge’s findings and reasons at [14(j)] was not the Judge asking for evidence that the interview footage had been viewed but instead, Ms Simbi submitted, that the Judge was noting the lack of evidence that there was risk for those who undertake political activity abroad. Had the Judge expressed the latter, this ground may have less strength but I am not prepared to read that paragraph in the way that Ms Simbi suggested that I should. There is no reference there to background evidence when submissions were again expressly made by the Appellant before the FtT addressing background evidence on the monitoring of political activities by the Kurdish authorities at para 23 of his skeleton argument.
28. I accept Ms Simbi’s submission that the Judge has not just focused on the adverse credibility findings in her consideration of the Appellant’s sur place claim and has pulled together a number of factors, including the lack of political activity undertaken by the Appellant in Iraq/the IKR on his own account and that he himself had not organised the demonstrations that he had attended. For the reasons above however, I am satisfied that there is sufficient overlap between the Judge’s consideration of both aspects of the Appellant’s claim to also set aside the Judge’s findings as they relate to the Appellant’s sur place claim. There are also separate concerns with the Judge’s approach to the Appellant’s sur place claim as briefly address above.
29. For the reasons above, I am satisfied that the material errors of law made by the Judge as pursued by the Appellant in all three grounds of appeal, are made out. I am satisfied that the First-tier Tribunal’s decision to dismiss the appeal should be set aside pursuant to Section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 with no findings of fact preserved.
30. I have considered and applied the guidance in paragraph 7 of the Senior President’s Practice Statement as well as the guidance in AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (remaking or remittal) [2023] UKUT 46 IAC. The parties were agreed that if I were to find in favour of the Appellant on all three grounds, it would be appropriate for the matter to be heard afresh in the First-tier Tribunal before a different judge and that no findings of fact should be preserved. Having considered the guidance referred to above, I am satisfied that such a disposal is appropriate.
Notice of Decision
31. The decision of the First-tier Tribunal dated 19th December 2024 contained material errors of law and is set aside.
32. The appeal is to be remitted back to the First-tier Tribunal for remaking afresh before a different judge.

Sarah Pinder

Judge of the Upper Tribunal
Immigration and Asylum Chamber

27.08.2025