Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001041

First-tier Tribunal No: PA/51536/2024
LP/12412/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

4th November 2025

Before

UPPER TRIBUNAL JUDGE MAHMOOD

Between

KQ
(ANONYMITY ORDER CONTINUED)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Gayle of Counsel, instructed by Elder Rahimi Solicitors
For the Respondent: Ms L Clewley, a Senior Home Office Presenting Officer

Heard at Bradford on 28 July 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
Introduction
1. The Appellant appeals with permission against the decision of First-tier Tribunal Judge Richards-Clarke (“the Judge”) who by way of a decision dated 19 December 2024 dismissed the Appellant’s appeal on protection and human rights grounds.
2. First-tier Tribunal Judge Mulready granted permission by way of a decision dated 3 March 2025. Judge Mulready granted permission on limited grounds, but specifically not in respect of redocumentation if the Appellant was returned to Iraq.
The Hearing Before Me
3. Mr Gayle amplified the grounds of appeal which had been drafted by his instructing solicitors. Those grounds in summary had contended that: (1) The Judge had failed to provide adequate reasons why the Appellant was not at risk from the Surchi tribe, against a background of the murder of his cousin by that tribe. (2) The Appellant’s Refugee Sur Place activities had not been correctly considered, including with reference to the CPIN.
4. Ms Clewley on behalf of the Respondent relied upon a Rule 24 response dated 10 March 2025. She submitted that in respect of Ground 1, the Judge had made reasonable findings that were open to her, for example at paragraphs 21 and 22 of her decision. The Judge concluded that there was a sufficiency of protection. Ms Clewley said that the authorities in Iraq had been involved and were acting independently. The Judge had also considered the measures against blood feuds. The tribe were not acting with impunity.
5. Ms Clewley submitted in respect of Ground 2 that the Judge had considered matters in the round and it was not necessary for her to have refer all of the evidence that she had considered. Even though the Appellant had said that some of the reports were not considered by the Judge, the Judge had said at the outset she had considered all background evidence. Ms Clewley submitted that the findings made about the Refugee Sur Place activities were open to the Judge. Paragraphs 26 to 27 of the Judge’s decision had referred to the level of the Appellant’s activity.
Consideration and Analysis
6. I remind myself that the expertise of the First-tier Tribunal has been impressed upon the Upper Tribunal for very many years since, including more recently in the decision of the Court of Appeal in MH (Bangladesh) v Secretary of State for the Home Department [2025] EWCA Civ 688 9 June 2025. Arnold LJ, with whom Singh and King LJJ agreed explained the importance of the role of the Appellate Court or Tribunal. It was said at paragraph 29:
“There have been many recent authorities in both the Supreme Court and this Court on the need for appellate courts and tribunals to be cautious before interfering with findings of fact and evaluative assessments by lower courts and tribunals, and in particular specialist tribunals such as the FTT. For present purposes it is sufficient to cite Lord Hamblen’s summary in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, [2022] 1 WLR 3784 at [72]:
‘It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. In particular:
(i) They alone are the judges of the facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. It is probable that in understanding and applying the law in their specialised field the tribunal will have got it right. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 678 per Baroness Hale of Richmond at para 30.
(ii) Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49; [2011] 2 All ER 65 at para 45 per Sir John Dyson.
(iii) When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19; [2013] 2 AC 48 at para 25 per Lord Hope of Craighead.”
7. In this case, despite the quite clear case law that I should hesitate long before I disturb the findings of a specialist First-tier Tribunal, in my judgment, this is a case in which the errors of law by the Judge are material.
8. The reasons that I come to this view are because much of the Appellant’s factual claim had been accepted by the Respondent prior to the hearing. In respect of Ground 1, the real issue for the Judge was whether the non-state actors (the Surchi tribe) would also be able to gain access to the Appellant to cause him injury or worse, just as occurred when his cousin was murdered. In my judgment, it was necessary for the Judge to engage specifically with the attempts made to seek protection from the authorities and the apparent inability to provide protection. The Judge’s reasoning is inadequate in this protection claim.
9. Ground 2 relates to the Appellant’s Refugee Sur Place activities. The Judge had set out the details of the Appellant’s claim at paragraphs 25 and 26. The Judge then referred to the background material at paragraphs 27 and 28. The Judge said at paragraph 29 that she did not find that the Appellants’ activities would lead to the Appellant facing a real risk of serious harm on return and that, “I make this findings in reliance on the Country Guidance information before me”.
10. As submitted by Mr Gayle and within the Appellant’s grounds of appeal, what was required was an assessment of all of the Background material, including those passages which were relied upon by the Appellant. The passages relied upon by the Respondent were set out in some detail at paragraph 28 of the Judge’s decision. Mr Gayle referred me to numerous other passages which presented other relevant aspects within the material that was before the Judge. The material could have made a difference to the Judge’s difference. In this case, what stands out is that the Appellant was not merely part of a crowd at demonstrations, but he also gave at least one interview to BK4TV. Whilst that might not ultimately amount to much if the interviews were not watched or known of, I remind myself that because this is a protection claim, the most anxious scrutiny had to be applied.
11. Although the decision of the Court of Appeal in MH (Bangladesh) v Secretary of State for the Home Department [2025] EWCA Civ 688 relating to Refugee Sur Place activities was handed down after the Judge’s decision, what the Court of Appeal say is declaratory of what the law always was. Whilst the Judge would not have known what case law might later be decided, the case law is also a relevant factor when I consider whether or not there was a material error of law in the Judge’s decision.
12. When considering the matter with the decision in MH and the background material, I conclude that there is a material error of law in the Judge’s decision in respect of Ground 2.
13. Therefore, the Judge’s decision contains material errors of law. Those aspects I have identified are set aside.
14. The Appellant was granted permission to appeal on limited grounds. In the circumstances the Judge’s decision at paragraphs 32 and 33 shall remain as retained findings. For the avoidance of doubt, the retained findings of the Judge are as follows:
“32. I found the appellant’s evidence reading his identity documents and contact with his family members to be unsatisfactory. I am satisfied that the appellant is either in contact or is able to contact his family members in Iraq. Furthermore, I am satisfied that the appellant either has his identity documents or would be able to obtain replacements of these through a family member. In the alternative as the appellant would return to the IKR directly, he would be able redocument himself with the assistance of family members. I therefore dismiss the appeal on Article 3 grounds.
…
33… The appellant does not pursue Article 8 as a freestanding claim. In any event I am not satisfied that there would be very significant obstacles to the appellant’s integration in Iraq if he were to leave the United Kingdom. I am not satisfied that his removal is a disproportionate breach of Article 8. I therefore dismiss the appeal on Article 8 grounds.”
15. I have considered whether or not this is a matter which ought to remain for consideration here at the Upper Tribunal and I have considered the submissions which have been made. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), I consider whether to retain the matter for remaking here at the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statement. I take into account the history of this case, the nature and extent of findings to be made as well as the nature of the errors in this case. I further consider it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process. I therefore remit the appeal to the First-tier Tribunal with retained findings.
Notice of Decision
The Decision of the First-tier Tribunal contains a material error of law and is set aside with retained findings.
The matter is remitted to the First-tier Tribunal for a rehearing in respect of the protection claim before any Judge other than Judge Richards-Clarke with the retained findings identified at paragraph 14 above.
The anonymity direction is continued.

Abid Mahmood

Judge of the Upper Tribunal
Immigration and Asylum Chamber

28 August 2025