Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2025-001159
UI-2025-001162
UI-2025-001161
UI-2025-001160

First-tier Tribunal Nos: PA/00272/2024
PA/02105/2024
PA/02728/2024
PA/02727/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 12th of June 2025

Before

UPPER TRIBUNAL JUDGE HOFFMAN
DEPUTY UPPER TRIBUNAL JUDGE DAVIES

Between

(1) MA
(2) A4
(3) A3
(4) AZ
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Solomon of counsel, instructed by Logan Kingsley Limited
For the Respondent: Ms R Tariq, Senior Presenting Officer

Heard at Field House on 5 June 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellants are granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellants, likely to lead members of the public to identify any of the appellants. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. The First Appellant appeals with permission against the decision of First-tier Tribunal Judge Abebrese (“the Judge”) promulgated on 17 January 2025 dismissing her appeal against the Respondent’s decision dated 12 December 2023 to refuse her application (and those of the Second to Fourth Appellants) for asylum and humanitarian protection made on 19 December 2021.
Factual Background
2. The First Appellant (MA) was born on 5 February 1998 is a citizen of Iraq and is female. The second Appellant is her husband, also an Iraqi citizen. The third and fourth Appellants are their children.
3. The Appellants’ claims to asylum and humanitarian protection are based on the fact that the First Appellant married the Second Appellant contrary to the wishes and instructions of her family, who were said to hold power and influence.
4. An anonymity direction was made on 6 May 2025 by UTJ Hirst. For the avoidance of doubt, we maintain that direction.
5. MA applied for asylum on 19 December 2021. Her claim was refused on 12 December 2023. The second to Fourth Appellants are dependents on her claim. Refusal letters were sent to them, also dated 12 December 2023. The Appellants appealed against the Respondent’s decisions.
Procedural background
6. The appeals came before the Judge on 19 December 2024. By a decision promulgated on 17 January 2025, the appeals were dismissed. The Judge considered MA to lack credibility.
7. Permission to appeal was sought and granted by First-tier Tribunal Judge Dainty on 3 March 2025.
8. The matter came before us on 5 June 2025 to determine whether there was a material error of law in the Judge’s decision. We have a composite appeal bundle and it was confirmed that this contains all relevant documents.
9. We are grateful to Mr Solomon and Ms Tariq for their submissions.
The grounds of appeal
10. The grounds of appeal, in essence, assert that the Judge’s credibility findings were made in a procedurally unfair manner and that they amount to an error of law.
The error of law hearing
11. The Judge took into account at [12] that the First and Second Appellants had travelled through unknown countries and could have made a claim for protection in these countries. The fact that they did not is said to undermine the credibility of their claim. This is an application by the Judge of s.8 of the Asylum and Immigration (Treatment of Claimants) Act 2004.
12. There is, as Ms Tariq submitted, a requirement upon a “deciding authority” (which includes the First-tier tribunal) to “take account, as damaging the claimant’s credibility, of any behaviour to which this section applies” (s.8(1)).
13. In the circumstances of this case, however, s.8 was not relied upon by the Respondent in the reasons for refusal letter. There is no record that questions were asked by way of cross-examination of the First or Second Appellants in relation to the s.8 factors. Furthermore, it was not suggested that the presenting officer made any submissions on s.8 before the Judge.
14. In light of the above, we consider there to have been procedurally unfairness amounting to an error of law in the Judge’s approach to s.8. There is no judicial determination that the unknown countries through which the First and Second Appellants passed were safe. They did not have an opportunity to provide reasons for failing to seek protection in those countries and were not on notice that these were matters that might be held against them, in the absence of this being identified as an issue in the refusal letters.
15. We also accept that the Judge’s approach to s.8 is to treat it as a starting point in his assessment of credibility, contrary to SM (Section 8: Judge’s process) Iran [2005] UKAIT 00116. That is apparent from the structure of the Judge’s decision
16. Ms Tariq sought to argue that, even if the Judge had erred in relation to the procedural manner in which s.8 was dealt with, it was not material, because there were other adverse credibility issues found against the First Appellant. We reject that submission because the task of the fact-finder is, per SM at [10] “…to look at all the evidence in the round, to try and grasp it as a whole and to see how it fits together and whether it is sufficient to discharge the burden of proof”. We cannot accept that a flawed approach in relation to an aspect of credibility is capable of being separated from the overall assessment of the evidence for this purpose.
17. We consider this to amount to a material error of law and to have prevented there from being the required analysis of the First Appellant’s credibility on a holistic basis.
18. Having determined there to be a material error of law in relation to the Judge’s approach to the First Appellant’s credibility, we do not consider it necessary to consider in detail the remainder of the grounds of appeal. However, for the avoidance of doubt, we consider all the grounds of appeal to be made out to the required standard. In particular, we are satisfied that the Judge made adverse findings on matters that were not in dispute, in particular by finding at [15] that the Appellants were not credible in relation to their claim that the First Appellant’s family were influential members of a main political party in Iraq despite (a) this not having been in issue in the refusal letter and (b) the Judge having refused the presenting officer permission to rely on this as a new point at the start of the hearing.
19. In light of the above, we consider it necessary to set aside the Judge’s decision.
20. We invited the views of the representatives on future disposal of these appeals. Both representatives submitted that remittal to the First-tier Tribunal was appropriate in the event that a material error of law was identified.
21. We consider that approach to be correct. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), we considered whether to retain the matter for re-making in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statements.
22. We took into consideration the history of the case, the nature and extent of the findings to be made, as well as the fact that the nature of the errors of law in this case meant that the Appellants were deprived of a fair hearing.
23. We consider that it would be unfair for either party to be unable to avail itself of the two-tier decision-making process and we therefore remit the appeal to the First-tier Tribunal.

Notice of Decision
(1) The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
(2) The decision of the First-tier Tribunal is set aside.
(3) The appeal is remitted, de novo, to the First-tier Tribunal to be reheard by any judge except First-tier Tribunal Judge Abebrese.

Siân Davies

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

6 June 2025