Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001339

First-tier Tribunal No: PA/60270/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

29th May 2025

Before

UPPER TRIBUNAL JUDGE LODATO

Between

SH
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Woodhouse, Shams Williams Solicitors
For the Respondent: Mr Diwnycz, Senior Presenting Officer

Heard at Phoenix House (Bradford) on 21 May 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
Introduction
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 I have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal because the underlying claim involves international protection issues in that the appellant claims to fear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 Iran. 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 4 December 2024, of First-tier Tribunal Judge French (‘the judge’) to dismiss the appeal on international protection and human rights grounds.
Background
3. The broad procedural background and immigration history to the appeal is not in dispute between the parties. In summary, the appellant’s underlying factual case is that he fears he was identified by the Iranian security services for smuggling political literature in support of Kurdish political causes while he worked as a Kolbar. He further claims that he has engaged in political activism against the Iranian regime since his arrival in the UK and that this too puts him at risk of persecution on return.
Appeal to the First-tier Tribunal
4. The appellant appealed against the refusal of the claim. The appeal was heard by the judge on 28 November 2024 before dismissing the appeal on all grounds in a decision promulgated on 4 December 2024. For the purposes of the present proceedings, the following key matters emerge from the decision:
• At various points in the decision, the judge referred to the Senior President of Tribunal’s Practice Direction of June 2024 in which it was observed that adequate judicial reasons do not require an exhaustive summation of the evidence as long as it is clear why the operative decisions were taken ([1] & [14(i)]). Despite this, the judge proceeded to summarise the refusal letter, the skeleton argument, the review, the response to the review, the documentary bundles, the evidence given during the hearing and the oral submissions advanced during the hearing over the course of 6 dense pages of text ([3]-[13]).
• At [8(iii)], it was recorded that the central issue to be resolved in the appeal was whether the appellant was a credible witness. It was noted in the next paragraph that there was no dispute between the parties that the appellant worked as a Kolbar before he left Iran.
• The judge reached his findings of fact on the protection claim from 14(iii) as follows:
(iii) It was apparent that there were major inconsistencies in the Appellant's case. He had claimed to become politically involved from December 2020 but on his own evidence his so called involvement did not amount to any more than physically bringing into Iran material that was supportive of the KDPI and on occasion transporting people. He had not claimed that he had for example distributed leaflets. On the face of it he had done no more than act as a Kolbar.
(iv) The Appellant had accepted that he did not definitely know why his cousin (Rahman ) had been arrested but he assumed that it was because of political activity although it is not clear from material in the stitched bundle what political activity Rahman had been engaged in. He had also assumed that Rahman would have informed against him. The only purported evidence of that is said to be after the event because according to the Appellant the authorities had raided his house.
(v) As far as the Appellant's political beliefs were concerned I note that he had not attended any rallies whilst living in Iran and he had not been a member of the KDPI or any other political organisation. He seemed far from clear about the history of the party or any specifics of what it was trying to achieve. On his own admission he had never read any of the leaflets that he claimed to be transporting.
(vi) As to political activity in the UK I note that he had had minimal involvement and had attended few demonstrations. He had given differing explanations for that, varying from not wanting attention to himself which could be to the detriment of his family in Iran and that he could not afford to travel to London. As far as the claim that he did not want to bring attention to his family by being seen at a demonstration, that in my view is contrary to the fact that at the same time he purported to place critical content on his Facebook account, which was in his correct name, which apparently he believed would be seen by the Iranian authorities.
(vii) The Appellant and his representatives had claimed that his attendance at the seminar given by a leading of the KDPI was very significant because the event had been videoed and the footage posted online through the Kurdish Youtube channel. It was stated that the Appellant was recognisable and I was referred to an image that purported to be the Appellant. It was argued that the Iranian authorities would have seen that footage because it was a high profile event. The Appellant's Counsel tried to persuade me that by having attended a “high profile” event the Appellant would have become high profile himself. I do not accept that that is true. He is just one face among many in the crowd.
(viii) I have no doubt that the Appellant is not a credible witness and that he has fabricated an account as to the reasons he came to the UK. It seems that the Respondent now accepts that the Appellant worked part-time as a Kolbar but I am not persuaded that any of his activities as a Kolbar or otherwise were politically motivated. His lack of interest in politics is demonstrated not only by his limited knowledge but also his actual lack of activity other than re-posting other peoples' material. I am convinced that upon return to Iran he would be persecuted so as to breach his rights under Article 2, 3 or 8 or otherwise and in those circumstances he does not qualify for asylum or humanitarian protection.
Appeal to the Upper Tribunal
5. The appellant applied for permission to appeal on the following grounds:
i. The judge’s reasons for rejecting the appellant’s credibility were either lawfully inadequate or irrational. In particular, it was noted that the judge had not explained what he meant by “major inconsistencies”.
ii. The judge did not assess risk on return on the strength of uncontroversial matters such as the appellant’s work as a Kolbar smuggling alcohol, the manner in which he left Iran, his Kurdish ethnicity and his overtly political acts in the UK.
iii. The judge failed to turn his mind to an important part of the sur place claim which indicated that the appellant could be seen, on widely publicised channels, to be in attendance at a high-profile political seminar in the UK.
iv. The judge failed to meaningfully assess the nature of the appellant’s sur place activity in the UK, whether this was pursued in good faith and, if so, whether this alone would put him at risk on application of country guidance decisions of the Upper Tribunal.
6. In a decision dated 20 March 2025, First-tier Tribunal Sills granted permission for all grounds to be argued. The following observations were made in granting permission:
The grounds identify arguable errors of law. It is arguable that the Judge has failed to make findings on the key issues in the appeal. The major inconsistencies at [14(iii)] are not apparent.
Quite what is accepted and what is disputed is arguably unclear from [14(iv) and (viii)]. The final sentence of that paragraph appears to be contradictory.
There are arguably no clear findings on whether the Appellant’s political opinions are genuinely held or opportunistic, and no clear consideration of the pinch point of return. There is arguably no consideration HB (Kurds) Iran (illegal exit: failed asylum seeker) CG [2018] UKUT 430 (IAC).
7. At the error of law hearing, I heard oral submissions from both parties. I address any submissions of significance in the discussion section below.
Discussion
8. I have considered BA (Demonstrators in Britain – risk on return) [2011] UKUT 36, SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308, HB (Kurds) (CG) [2018] UKUT 430, PS (Christianity – risk) (CG) [2020] UKUT 46 and XX (PJAK, sur place activities, Facebook) (CG) [2022] UKUT 00023.
9. The touchstone for considering adequacy of reasoning as an error of law remains R (Iran) & Others v SSHD [2005] EWCA Civ 982. At [13]-[14] of the judgment of Brook LJ, it was emphasised that reasons must be sufficiently detailed to show the principles on which a decision was made and why the ultimate decision was reached. Reasons need not be elaborate nor is it necessary to address each and every matter which might have had a bearing on the overall decision if those which were material to the reasoning have been articulated. In DPP Law Ltd v Paul Greenberg [2021] EWCA Civ 672, the Court of Appeal, in the context of employment proceedings, considered adequacy of reasoning as an error of law. Popplewell LJ, stressed, at [57], the need to consider judicial reasons fairly and as a whole without being hypercritical. Restraint is required to read reasons benevolently. “Simple, clear and concise” reasoning was to be encouraged to enable to parties to broadly understand why they had won or lost. Further, it should not be assumed that an element of the evidence which was not expressly discussed was thereby left out of account. While these observations were made in the context of employment proceedings, they are of relevance in the immigration and asylum sphere because this is also a jurisdiction in which decisions are made by expert tribunals attenuated by the need to give appeals anxious scrutiny.
10. At the error of law hearing, Mr Diwnycz did not formally concede the appeal, but he came close to doing so. He indicated that he would be offering “minimal resistance” and would not be arguing that the decision should be upheld. I asked him to elaborate on which parts of the grounds led him to this position. He pointed to paragraphs [14(iv)] and [14(viii)] as lending considerable weight to the argument that the decision involved material errors of law.
11. It is, of course, not for the respondent to decide whether a judicial decision involves a material error of law. I am not bound to accept the concession but the agreement between the parties is an important indication of the strength of the appellant’s arguments. This is because a forensic decision has been taken in adversarial proceedings not to resist those arguments. I have considered the grounds of appeal and the challenged decision with care and agree that the decision is not sufficiently reasoned to permit the reader to understand why the central decisions have been reached.
12. It was always the position that the appellant’s credibility was of fundamental importance in the resolution of the issues in the appeal. His credibility was always likely to play a decisive role in deciding whether he had an objectively well-founded fear that he had already come to the attention of the Iranian authorities for transporting leaflets in support of Kurdish political causes. Further, his credibility would play an important part is deciding whether his political activity in the UK was a genuine manifestation of his political opinions. Neither of these critical matters are the subject of legally adequate reasoning. It cannot be pieced together from the reasons copied above what the “major inconsistencies” were that the judge relied upon. In the same paragraph where this phrase was used, the judge discussed how his claimed political activities in Iran were not, in reality, political acts at all. This is difficult to regard as an inconsistency as opposed to a difference of opinion as to what amounts to political activity. For my part, I struggle to see how the movement of leaflets in support of Kurdish rights into Iran is not a political act and we know from the country guidance that the Iranian authorities would certainly perceive it as such. At [14(iv)] the judge cast doubt on whether the appellant had safely inferred from the circumstances that he had come to the attention of the Iranian authorities. The implication that the appellant should “definitely know” why his cousin had been arrested and informed against him prior to the visit of the authorities to his mother’s home is difficult to reconcile with the applicable threshold of a reasonable degree of likelihood. I note also that the use of the language of being “convinced” at [14(viii)] would generally have no rightful place in the kind of risk assessment needed in cases where the lower standard is to be applied with anxious scrutiny.
13. I have closely examined the judge’s reasons but cannot discern any clear findings on whether the appellant transported political leaflets into Iran or whether the political activity in the UK was pursued in good faith and reflected his genuine political beliefs. Each point was an essential building block to deciding this appeal. In addition, there is nothing approaching a risk assessment based on the uncontroversial facts at the pinch point of arrival. I find that the appellant cannot reasonably read the decision and understand why he lost his appeal.
14. I find that the decision involved material errors of law and set it aside. I am not minded to preserve any findings of fact but note Mr Diwnycz’s position that he maintained the respondent’s concession that the appellant worked as a Kolbar in Iran.
Disposal
15. The parties were agreed that the matter should be remitted to the First-tier Tribunal because of the broad sweep of facts which remain to be determined. It was further suggested by Mr Woodhouse that to do otherwise would deprive the appellant of a right of appeal to the Upper Tribunal. I am not persuaded that remittal is the appropriate procedural step to take. While I agree that it would not be appropriate to preserve any findings of fact, I see no reason to depart from the starting point identified at paragraph 7.2 of the Practice Statements and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) that the decision should be remade in the Upper Tribunal.  
Notice of Decision
The decision of the judge is set aside as it involved material errors of law. The decision will be remade in the Upper Tribunal at a resumed hearing. 
Directions: 
i. The matter is to be listed for 3 hours on the first available date after 6 June 2025. The hearing is to be listed at Phoenix House, Bradford. The resumed hearing is reserved to Upper Tribunal Judge Lodato. 
ii. Within 14 days of 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. A Kurdish (Sorani) interpreter is to be booked for the hearing.

Paul Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

27 May 2025