UI-2025-001163
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The decision
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IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001163
First-tier Tribunal No: PA/50912/2024
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 26th of June 2025
Before
UPPER TRIBUNAL JUDGE HANSON
DEPUTY UPPER TRIBUNAL JUDGE SAFFER
Between
HO
(ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Madanhi of CB Solicitors (via CVP)
For the Respondent: Mr Diwnycz a Senior Home Office Presenting Officer
Heard at Phoenix House (Bradford) on 23 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. Both members of the panel have contributed to this decision.
2. The Appellant appeals with permission a decision of a judge of the First-tier Tribunal (‘the Judge’), promulgation on 19 December 2024, in which the Judge dismissed her appeal against the refusal of the Secretary of State of her application for leave to remain in the United Kingdom on protection grounds.
3. The date of application was 28 September 2022 which was refused on 3 January 2024.
4. The Appellant’s husband and son are dependants on her claim.
5. The Judge accepts the Appellant is a citizen of Iraq of Kurdish ethnicity. The core of the claim was a risk on return because she was raped by a high-ranking officer who threatened to kill her and her son if she reported him. The Appellant also claimed to be at risk of honour-based violence if her family discovered she was raped and feared persecution as a member of a Particular Social Group (PSG).
6. The Appellant also claimed she will be unable to travel safely within Iraq as she had no ID documents and severed contact with her family.
7. The Judge sets out findings of fact from [17] including the inconsistencies that had arisen in the Appellant’s various accounts of the alleged events. Those inconsistencies were put to the Appellant in the evidence and the Judge received submissions as noted in the determination.
8. The Judge’s findings in relation to the existence of a Convention reason are set out from [26]. In relation to whether the Appellant has a characteristic which would cause her to fear persecution for a Convention reason, the Judge finds that the Appellants evidence was that only the man she alleges raped her and her husband were aware she had been raped, the person concerned does not want anybody to find out, and the husband has promised not to tell anyone and has not threatened her with violence. As a result, the Judge concludes that the asylum claim must fail although went on, in the alternative, to consider the remaining provisions of section 32 Nationality, Asylum and Borders Act 2022 from [29].
9. The Judge was not satisfied the Appellant had established she feared persecution if returned to Iraq, nor to the lower standard established that she would be persecuted if returned. The Judge records at [30] not being satisfied that the Appellant’s account is true, although in the alternative finds that on her own evidence she faces no risk on return.
10. The Judge at [31] also finds the Appellant could internally relocate within the part of the IKR not controlled by the PUK, or to another area of Iraq.
11. In relation to the issue of documentation, the Judge notes the Appellant had an INID card which she claims to have left in Iraq when she fled. The Judge finds there is no reason she cannot get in touch with her family and the same can either be sent to her or provided to her on return to Iraq. It was therefore found she did not lack relevant documentation [32].
12. The Judge therefore finds the Appellant had not established she was entitled to any form of international protection on any basis and dismissed the appeal.
13. The Appellant sought permission to appeal which was granted by another judge of the First-tier Tribunal on 10 March 2025, the operative part of the grant being in the following terms:
2. The grounds assert that the Judge erred in making material errors of law.
3. Firstly, by failing to treat the Appellant as a vulnerable witness in accordance with the Joint Presidential Guidance Note No 2 of 2010: Child, vulnerable adult and sensitive appellant, or the Equal Treatment Bench book and subsequently failing to consider her evidence through the prism of her claimed vulnerability as a past victim of sexual violence.
4. This first ground provides a basis for an arguable material error of law in that it is arguable that the decision as to credibility was infected by a failure to consider whether the appellant as a witness should be treated as a vulnerable witness and her evidence of her claim form its initial disclosure considered within the context of he being a possible victim of sexual violence. I do note that there is no evidence that the Tribunal was alerted by the Applicant’s representatives that it was considered that she fell to be considered in accordance with the Presidential Guidance.
5. It follows that the other two grounds may provide arguable errors of law if the first ground is established.
6. The application is granted.
14. The appeal is opposed by the Secretary of State in a Rule 24 response dated 18 March 2025, the operative part of which reads:
1. The respondent opposes the appellant’s appeal. In summary, the respondent will submit inter alia that the judge of the First-tier Tribunal directed himself appropriately.
2. In respect of the Grounds, the Respondent notes the grounds but will submit that there was no evidence before the FTTJ to alert him that the Appellant should be treated as a vulnerable witness. There is nothing in the determination that any representation to be treated as a vulnerable witness was made on the day. In any event the FTTJ was alive to her now claimed sexual assault in her latest WS and it is respectfully submitted
3. The FTTJ at [19-20] acknowledges what the Representatives have said about it being a taboo subject but the appellant had the opportunity to provide the detail in her WS, where she was in private with her Reps but decided not to. The FTTJ notably understands that this may be the case in her SCR and her substantive interview but does not accept she could not have furnished the details in her WS. This does not amount to an error of law.
4. In respect of the grounds the FTTJ lays out clearly that the appellants account has evolved over the course of her asylum claim and there is no evidence to show she has not been treated fairly. The grounds argue that the appellants evidence should be considered in light of her sexual assault but it is respectfully submitted the FTTJ did exactly this. This is not an error of law as the FTTJ engages fully with the appellant when assessing her credibility.
Discussion and analysis
15. The parties were aware of the inconsistencies in the Appellant’s evidence highlighted by the Judge as there is reference to them in the Respondent’s review and the Refusal letter.
16. The review was written following receipt of the Appellant’s skeleton argument in which there is no mention or reference whatsoever to the Appellant being a vulnerable witness.
17. The Judge in the determination at [19] sets out a summary of the submissions that were made by the Appellant’s representative. Again, there is no reference to the Judge being addressed on the issue of the what is now alleged to be Appellant’s vulnerability either at the beginning of the hearing ,when any reasonable adjustment needed would have been sought, or in the submissions to the Judge in relation to how the Judge was being asked to consider the evidence.
18. In terms of the evidence the Judge did have, it was accepted before us that there was no medical evidence relating to physical or mental health issues to support the Appellant’s claim.
19. We do not accept the submission that just because the Appellant was alleging she had been the victim of a sexual assault the Judge should have accepted such a claim as true. That would have had the effect of moving the burden of proof to the Secretary of State to disprove what was being alleged. It is not a ‘Robinson obvious’ point and what is now being alleged has to be established to the requisite standard of proof.
20. It is clear that the Judge treated the Appellant with the required degree of sensitivity and the challenge really amounts to an argument that the Judge should have treated the Appellant differently in the way in which her evidence was assessed.
21. Had the Judge inserted a paragraph stating that regard had been given to the Joint Presidential Guidance Note No2 of 2010 or the decision of the Court of Appeal in AM (Afghanistan) [2017] EWCA Civ 1123, on the evidence that was available to the Judge, the outcome would have been exactly the same. We make a finding of fact to that effect as there was nothing in the evidence to suggest otherwise. It is also important to note that the grounds of appeal do not indicate anything the Judge failed to consider in the evidence or highlight any aspect of the evidence that warranted a different decision being made.
22. We find the grounds are, in effect, a challenge of form over substance, as it is clear that the Judge was entitled to come to the conclusions set out in the determination in relation to the credibility of the Appellant’s account. We find no legal error made out in respect of Ground 1.
23. Mr Madanhi accepted Grounds 2 and 3 were predicated on Ground 1, as also noted in the grant of permission to appeal. We find no material legal error in respect of the same on this basis, or even if they had been considered as stand-alone grounds.
24. The Court of Appeal has made it clear that appellate judges should not interfere in decisions of judges below unless that decision is plainly wrong. We do not find it has been made out that the determination under challenge is plainly wrong on the basis of the evidence the Judge was asked to consider. No fairness point arises in the manner in which the Judge conducted the hearing or assessed the evidence.
25. Whilst the Appellant would prefer a more favourable outcome to enable her and her family to remain in the United Kingdom, we find the grounds do not establish material legal error sufficient to warrant the Upper Tribunal interfering any further in this appeal.
Notice of Decision
26. The First-tier Tribunal has not been shown to have materially erred in law.
27. The determination shall stand.
C J Hanson
Judge of the Upper Tribunal
Immigration and Asylum Chamber
23 June 2025
IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001163
First-tier Tribunal No: PA/50912/2024
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 26th of June 2025
Before
UPPER TRIBUNAL JUDGE HANSON
DEPUTY UPPER TRIBUNAL JUDGE SAFFER
Between
HO
(ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Madanhi of CB Solicitors (via CVP)
For the Respondent: Mr Diwnycz a Senior Home Office Presenting Officer
Heard at Phoenix House (Bradford) on 23 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. Both members of the panel have contributed to this decision.
2. The Appellant appeals with permission a decision of a judge of the First-tier Tribunal (‘the Judge’), promulgation on 19 December 2024, in which the Judge dismissed her appeal against the refusal of the Secretary of State of her application for leave to remain in the United Kingdom on protection grounds.
3. The date of application was 28 September 2022 which was refused on 3 January 2024.
4. The Appellant’s husband and son are dependants on her claim.
5. The Judge accepts the Appellant is a citizen of Iraq of Kurdish ethnicity. The core of the claim was a risk on return because she was raped by a high-ranking officer who threatened to kill her and her son if she reported him. The Appellant also claimed to be at risk of honour-based violence if her family discovered she was raped and feared persecution as a member of a Particular Social Group (PSG).
6. The Appellant also claimed she will be unable to travel safely within Iraq as she had no ID documents and severed contact with her family.
7. The Judge sets out findings of fact from [17] including the inconsistencies that had arisen in the Appellant’s various accounts of the alleged events. Those inconsistencies were put to the Appellant in the evidence and the Judge received submissions as noted in the determination.
8. The Judge’s findings in relation to the existence of a Convention reason are set out from [26]. In relation to whether the Appellant has a characteristic which would cause her to fear persecution for a Convention reason, the Judge finds that the Appellants evidence was that only the man she alleges raped her and her husband were aware she had been raped, the person concerned does not want anybody to find out, and the husband has promised not to tell anyone and has not threatened her with violence. As a result, the Judge concludes that the asylum claim must fail although went on, in the alternative, to consider the remaining provisions of section 32 Nationality, Asylum and Borders Act 2022 from [29].
9. The Judge was not satisfied the Appellant had established she feared persecution if returned to Iraq, nor to the lower standard established that she would be persecuted if returned. The Judge records at [30] not being satisfied that the Appellant’s account is true, although in the alternative finds that on her own evidence she faces no risk on return.
10. The Judge at [31] also finds the Appellant could internally relocate within the part of the IKR not controlled by the PUK, or to another area of Iraq.
11. In relation to the issue of documentation, the Judge notes the Appellant had an INID card which she claims to have left in Iraq when she fled. The Judge finds there is no reason she cannot get in touch with her family and the same can either be sent to her or provided to her on return to Iraq. It was therefore found she did not lack relevant documentation [32].
12. The Judge therefore finds the Appellant had not established she was entitled to any form of international protection on any basis and dismissed the appeal.
13. The Appellant sought permission to appeal which was granted by another judge of the First-tier Tribunal on 10 March 2025, the operative part of the grant being in the following terms:
2. The grounds assert that the Judge erred in making material errors of law.
3. Firstly, by failing to treat the Appellant as a vulnerable witness in accordance with the Joint Presidential Guidance Note No 2 of 2010: Child, vulnerable adult and sensitive appellant, or the Equal Treatment Bench book and subsequently failing to consider her evidence through the prism of her claimed vulnerability as a past victim of sexual violence.
4. This first ground provides a basis for an arguable material error of law in that it is arguable that the decision as to credibility was infected by a failure to consider whether the appellant as a witness should be treated as a vulnerable witness and her evidence of her claim form its initial disclosure considered within the context of he being a possible victim of sexual violence. I do note that there is no evidence that the Tribunal was alerted by the Applicant’s representatives that it was considered that she fell to be considered in accordance with the Presidential Guidance.
5. It follows that the other two grounds may provide arguable errors of law if the first ground is established.
6. The application is granted.
14. The appeal is opposed by the Secretary of State in a Rule 24 response dated 18 March 2025, the operative part of which reads:
1. The respondent opposes the appellant’s appeal. In summary, the respondent will submit inter alia that the judge of the First-tier Tribunal directed himself appropriately.
2. In respect of the Grounds, the Respondent notes the grounds but will submit that there was no evidence before the FTTJ to alert him that the Appellant should be treated as a vulnerable witness. There is nothing in the determination that any representation to be treated as a vulnerable witness was made on the day. In any event the FTTJ was alive to her now claimed sexual assault in her latest WS and it is respectfully submitted
3. The FTTJ at [19-20] acknowledges what the Representatives have said about it being a taboo subject but the appellant had the opportunity to provide the detail in her WS, where she was in private with her Reps but decided not to. The FTTJ notably understands that this may be the case in her SCR and her substantive interview but does not accept she could not have furnished the details in her WS. This does not amount to an error of law.
4. In respect of the grounds the FTTJ lays out clearly that the appellants account has evolved over the course of her asylum claim and there is no evidence to show she has not been treated fairly. The grounds argue that the appellants evidence should be considered in light of her sexual assault but it is respectfully submitted the FTTJ did exactly this. This is not an error of law as the FTTJ engages fully with the appellant when assessing her credibility.
Discussion and analysis
15. The parties were aware of the inconsistencies in the Appellant’s evidence highlighted by the Judge as there is reference to them in the Respondent’s review and the Refusal letter.
16. The review was written following receipt of the Appellant’s skeleton argument in which there is no mention or reference whatsoever to the Appellant being a vulnerable witness.
17. The Judge in the determination at [19] sets out a summary of the submissions that were made by the Appellant’s representative. Again, there is no reference to the Judge being addressed on the issue of the what is now alleged to be Appellant’s vulnerability either at the beginning of the hearing ,when any reasonable adjustment needed would have been sought, or in the submissions to the Judge in relation to how the Judge was being asked to consider the evidence.
18. In terms of the evidence the Judge did have, it was accepted before us that there was no medical evidence relating to physical or mental health issues to support the Appellant’s claim.
19. We do not accept the submission that just because the Appellant was alleging she had been the victim of a sexual assault the Judge should have accepted such a claim as true. That would have had the effect of moving the burden of proof to the Secretary of State to disprove what was being alleged. It is not a ‘Robinson obvious’ point and what is now being alleged has to be established to the requisite standard of proof.
20. It is clear that the Judge treated the Appellant with the required degree of sensitivity and the challenge really amounts to an argument that the Judge should have treated the Appellant differently in the way in which her evidence was assessed.
21. Had the Judge inserted a paragraph stating that regard had been given to the Joint Presidential Guidance Note No2 of 2010 or the decision of the Court of Appeal in AM (Afghanistan) [2017] EWCA Civ 1123, on the evidence that was available to the Judge, the outcome would have been exactly the same. We make a finding of fact to that effect as there was nothing in the evidence to suggest otherwise. It is also important to note that the grounds of appeal do not indicate anything the Judge failed to consider in the evidence or highlight any aspect of the evidence that warranted a different decision being made.
22. We find the grounds are, in effect, a challenge of form over substance, as it is clear that the Judge was entitled to come to the conclusions set out in the determination in relation to the credibility of the Appellant’s account. We find no legal error made out in respect of Ground 1.
23. Mr Madanhi accepted Grounds 2 and 3 were predicated on Ground 1, as also noted in the grant of permission to appeal. We find no material legal error in respect of the same on this basis, or even if they had been considered as stand-alone grounds.
24. The Court of Appeal has made it clear that appellate judges should not interfere in decisions of judges below unless that decision is plainly wrong. We do not find it has been made out that the determination under challenge is plainly wrong on the basis of the evidence the Judge was asked to consider. No fairness point arises in the manner in which the Judge conducted the hearing or assessed the evidence.
25. Whilst the Appellant would prefer a more favourable outcome to enable her and her family to remain in the United Kingdom, we find the grounds do not establish material legal error sufficient to warrant the Upper Tribunal interfering any further in this appeal.
Notice of Decision
26. The First-tier Tribunal has not been shown to have materially erred in law.
27. The determination shall stand.
C J Hanson
Judge of the Upper Tribunal
Immigration and Asylum Chamber
23 June 2025