Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001143

First-tier Tribunal No: IA/06571/2022
PA/52541/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 11th February 2026

Before

UPPER TRIBUNAL JUDGE LODATO

Between

DZSA
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Unrepresented
For the Respondent: Mr Diwnwyz, Senior Presenting Officer

Heard at Phoenix House (Bradford) on 7 January 2026

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 and Background

1. I have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal because the underlying claim involves international protection issues in that the appellant claims to fear persecution or serious harm on return to Iraq. In reaching this decision, I am mindful of the fundamental principle of open justice, but I am satisfied, taking the appellant’s case at its highest for these purposes, that the potential grave risks outweigh the rights of the public to know of his identity.

2. The appellant appeals with permission against the decision, dated 12 August 2024, of a judge of the First-tier Tribunal Judge (‘the judge’) to dismiss his appeal on international protection and human rights grounds.

3. The appellant, an Iraqi national from Najaf in southern Baghdad, maintains that he faces a real risk of persecution and serious harm on return, arising from the arrest, torture and eventual death of his father at the hands of militia factions. His father was said to have been targeted because of the work he had done as an interpreter with American forces. These same factions engage in retaliation against family members of those they have targeted for collaboration. He provided a copy of his father’s death certificate and that the same militias continue to show an adverse interest in him personally. He further contends that his mental health has been severely affected by past trauma, unstable living conditions, the loss of family connections, and prolonged uncertainty in the asylum process, and that forced return to Iraq would exacerbate his psychological deterioration. He additionally argues that he no longer has access to the Iraqi civil identity documents he would need to be able to survive and travel in Iraq without encountering conditions contrary to Article 3 of the ECHR.

Appeal to the First-tier Tribunal

4. The appellant appealed against the refusal of his claim. The hearing in the First-tier Tribunal took place on 13 August 2024 following remittal of the appeal from the Upper Tribunal after a previous decision was set aside as involving a material error of law. The hearing before the judge followed an unusual course in that the then-represented appellant indicated that he did not wish to participate in the hearing beyond making an oral statement. He was permitted to make this statement in which he set out his frustration at the drawn-out administrative process and the impact this had had on his mental and physical health. He then left the hearing room and the proceedings continued in his absence with oral submissions from the professional representatives. The appellant did not give oral evidence in any meaningful sense and was not cross-examined.

Appeal to the Upper Tribunal

5. The appellant applied for permission to appeal. His former representatives prepared grounds of appeal on his behalf. The grounds are unhelpfully discursive and run to some 21 paragraphs which are not separated into distinct legal heads of challenge. This not in accordance with recent guidance about how such grounds of appeal should be structured. In Rai and DAM (Grounds of Appeal – Limited Grant of Permission) [2025] UKUT 00150 (IAC), it was explained that grounds of appeal are not an opportunity to list claimed errors and that professional representatives are expected to identify distinct grounds of appeal clearly and succinctly. This approach was not followed here. I have endeavoured to extrapolate the central themes of the grounds; it was a difficult task. Below are what I consider to be central challenges within the grounds:

i. The appellant’s mental health and vulnerability was not properly factored into the credibility assessment.
ii. Inadequate analysis of risk from militias on account of the appellant being related to his father.

iii. Risk on return not adequately assessed on the basis of actual or imputed political opinion, and religion.

iv. Risk of encountering Article 3 conditions not adequately assessed with reference to necessary findings of fact and binding Country Guidance.

6. In a decision dated 4 June 2025, Upper Tribunal Judge Loughran granted permission for all grounds to be argued emphasising that it was arguable that the judge had paid inadequate regard to the appellant’s mental health issues and failed to reach findings on all relevant matters.

7. At the error of law hearing, I heard oral submissions from both parties. The appellant was no longer represented. He agreed that it would be best if the respondent made submissions first so that he could respond to those points. I address any submissions of significance in the discussion section below. While Mr Diwnwyz did not formally concede the appeal, he recognised the force of the challenges which went to the judicial assessment of the appellant’s vulnerability and the analysis of the documentation issue.

Discussion

8. I will assess the grounds of appeal following the structure of the themes I have identified above.

The appellant’s mental health and vulnerability was not properly factored into the credibility assessment

9. The first point to note is that it cannot be said that the judge took no procedural steps to accommodate the appellant’s vulnerability arising out of his mental health issues. She took the unusual and procedurally irregular approach of allowing the appellant to make an uninterrupted statement as to why his case should succeed. He was not required to subject himself to the test of cross-examination and there is no reason to think that the judge did not consider the points he made during this monologue. He was then permitted to absent himself from the remainder of the hearing. His representative was afforded an opportunity to take further instructions and the judge was not invited to adjourn the hearing in light of these events. It follows that she was required to assess the evidence in the round, which manifestly did not include oral evidence tested by cross-examination. It is against that limited evidential backdrop that it falls to be considered whether the judge erred in how she approached the appellant’s credibility as a vulnerable witness.

10. At paragraphs [21] and [26], the judge made the following observations:

[21] In reply, Ms. Brakaj submitted the Appellant’s claim relies on his statement in which he has given an explanation for the discrepancies between that and what is written in the transcript of his substantive asylums interview. He has long standing mental health problems and has been documented as suffering from periods of psychosis. He was identified as someone who needs intervention and assistance. He is someone who has concerns about being considered to have lied, therefore, has chosen not to engage in cross-examination today or listen to the submissions. […]

[…]

[26] The documentation before me clearly demonstrates that the Appellant suffers from mental health problems as contained within the documents is a letter from his doctor in Iraq who prescribed him with medication for his anxiety and stress. I note the Appellant did not have access to medication on his initial arrival but this was rectified by the time his substantive asylum interview took place on 08 November 2019 as he had registered with a doctor and said he was taking sleeping tablets. The medical records show that he suffers from anxiety and low mood and Dr Joseph in his letter of 08 June 2022 refers to the Appellant having started on the medication for these conditions in Iraq. I have taken into account the Appellant’s mental health in assessing the credibility of his account.

[Underlining added]

11. The above passages tend to reveal that the judge had well-in-mind that she was assessing the credibility of a vulnerability witness. I have no reason to doubt that she did not factor this into her analysis of the key aspects of his factual narrative. It is a misconception to suggest that a judge is required to explicitly set out in mechanistic fashion how mental health vulnerability has a bearing on each and every facet of an appellant’s narrative account. Reading the decision fairly, the judge has made allowances for nuanced inconsistencies and not held them against the appellant. Immediately after paragraph [26], where express reference was made to the appellant’s mental health conditions, the judge (at [27]) does not hold it against him that he appeared to initially suggest that he, not his father, worked as an interpreter for the American forces. This, it seems to me, is an example of the judge taking account of the frailties of the appellant’s ability to recall and communicate relevant events from his past.

12. Overall, I am not satisfied that the judge can be said to have fallen into error in how she evaluated the appellant’s credibility. It is apparent from how the hearing process was adjusted, and a fair reading of the decision, that the judge was mindful of the appellant’s vulnerability and took these factors into account.

Inadequate analysis of risk from militias on account of the appellant being related to his father

13. I am not persuaded that the judge did not assess risk to the appellant on the strength of his father’s material assistance to American forces. This was the centrepiece of the protection claim. The existence of risk was rejected on the basis that the appellant was found to have been able to live and work in Iraq for several years after his father’s death and that the violence he claimed to experience could not be attributed to his family background. The judge was entitled to reach these conclusions on the available evidence. A more detailed analysis of objective country background information could not have altered the primary assessment of what underpinned the events of the past. The judge plainly had doubts about the reliability of the appellant’s father’s death certificate given the dubious circumstances in which it came to be received by the appellant many years after it was issued in circumstances where he claimed to have lost contact with his family for the vast majority of the period of time he had been away from Iraq. It was lawfully open to the judge to arrive at these conclusions and once those factual foundations fell away, the broad proposition that family members of perceived collaborators are targeted for persecution (a proposition which was not doubted by the judge) could not have altered the fundamental judicial analysis that the appellant was not at risk on return for this reason.

Risk on return not adequately assessed on the basis of actual or imputed political opinion, and religion

14. The judge adequately and properly assessed these elements of the appellant’s protection claim at paragraphs [17] and [32] of the decision:

[17] The Appellant claims he is no longer a Muslim but he has not embraced any other religion since arriving in the United Kingdom in 2019. Further, he would not come to harm because he no longer follows Islam as he has said he made the decision in secret and keeps it to himself, therefore, in terms of the case guidance in HJ (Iran), he would not face harm because of his lack of religion. He would not be forced to keep the fact to himself for fear of persecution, as he has already made the choice not to keep the fact to himself in the wider community here in the United Kingdom.

[…]

[32] The Appellant claims he attended demonstrations in both Iraq and in the United Kingdom. He initially claimed he attended ten to twenty demonstrations but in his written statement he states he attended two demonstrations in Iraq but he was not personally attacked at those demonstrations as he was in the middle of the crowd. In respect of the Appellant’s attendance at demonstrations in the United Kingdom, the only evidence is one photograph of the Appellant holding an Iraqi ﬂag over his shoulders and looking at the camera. Everyone else in the photograph is looking the other way towards a monument on which there are people standing. In my judgement, the photograph does not establish the Appellant was taking part in the demonstration. The Appellant has not established that he would be seen to have a political opinion, imputed or otherwise should he return to Iraq.

15. The above analysis fully explains why the judge rejected these additional elements to the appellant’s primary claim for seeking international protection. The appellant cannot be said to be in a state of uncertainty about why he did not succeed on these matters and it follows that the judicial analysis was adequately reasoned in law.

Risk of encountering Article 3 conditions not adequately assessed with reference to necessary findings of fact and binding Country Guidance

16. I am persuaded that the judge has not addressed her mind to important factual and legal matters in deciding whether the appellant has available to him the documents he would need to avoid Article 3 conditions on return to Iraq.

17. The first material gap in the judge’s analysis is that she has not expressly accepted or rejected the appellant’s account that the CSID card with which he left Iraq went overboard into the sea during his journey to the UK. While the judge referred to the appellant’s account in this important respect, there are no findings of fact as to whether he continues to have access to this critical document. The central analysis on the documents issue is to be found at paragraph [39]. While it appears to proceed on the footing that the appellant does not have his original and unexpired CSID card, the suggestion that he could use a copy of an expired CSID card furnished by his sister raises further difficulties as to its faithfulness to the applicable Country Guidance in SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 00110 (IAC). I can discern nothing in SMO to suggest that a copy of an expired CSID card would suffice to avoid Article 3 conditions on return to Iraq. Mr Diwnwyz accepted this latter point during the hearing.

18. I am bound to conclude that the judge’s analysis of the redocumentation issue involved a material error of law because it hinged on the proposition that the appellant being met on arrival by his sister with a copy of an expired CSID card would be sufficient to safely return to his home area and undergo the redocumentation process.

Disposal

19. Mr Diwnwyz invited me to direct that the underlying appeal decision be remade in the Upper Tribunal given the length of time that the proceedings have been in train. The appellant expressed no view on what should happen next if his appeal was allowed.

20. I see no reason to depart from the starting point identified at paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal that the decision should be remade in the Upper Tribunal. The basis on which I have found that the decision involved a material error of law does not include any suggestion that the appellant was deprived of a fair trial such that the preservation of a second-tier appeal right would have greater purchase. A weightier factor, given the narrow issue which falls to be decided, is the need to ensure that these proceedings conclude within a reasonable period of time. A final decision is likely to come considerably sooner in the Upper Tribunal than in the First-tier Tribunal. Applying the guidance in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), I am satisfied that the appropriate procedural course is to remake this appeal at a resumed hearing in the Upper Tribunal.

Notice of Decision

The decision of the judge is set aside as it involved a material error of law. The decision will be remade in the Upper Tribunal at a resumed hearing.  The findings of fact between [16]-[37] and [47] are preserved for the purposes of the remaking hearing.

Directions:
i. The matter is to be listed at Phoenix House Bradford for a 3-hour remaking hearing on the first available date.

ii. No later than 14 days before the resumed hearing, the parties must upload to CE-File, and directly serve on the other party, any further evidence they intend to rely upon. 

iii. An Arabic interpreter is to be booked for the hearing. 

P Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

4 February 2026