Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001373

First-tier Tribunal No: PA/01694/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

5th November 2025

Before

UPPER TRIBUNAL JUDGE RASTOGI

Between

MK
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Not present
For the Respondent: Ms L. Clewley, Senior Home Office Presenting Officer

Heard at Field House on 22 October 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. By way of a decision sealed on 29 May 2025 Upper Tribunal Judge Rastogi and Deputy Upper Tribunal Judge Rhys-Davis found an error of law in the decision of the First-tier Tribunal dismissing the appellant’s appeal against the respondent’s refusal of his protection and human rights claim. By way of the error of law decision, the decision of the First-tier Tribunal was set aside albeit all the findings of fact were preserved. That was because the only part of the appellant’s appeal the judge dealt with was his protection claim in respect of which the appellant was not granted permission to appeal to the Upper Tribunal. The error of law came about because the judge had failed to deal with the appellant’s Article 8 claim. The respondent conceded that failure amounted to an error of law. The error of law decision appears below as an Appendix.

2. As the judge had not dealt with the appellant’s Article 8 claim, that fell to be re-made and it was the re-hearing of that part of the appellant’s appeal which was due to be heard before me on 22 October 2025.

3. By way of an email timed at 09.08 on 22 October 2025, the appellant indicated he no longer wished to proceed with his appeal and asked that it be withdrawn. He did not give a reason but he attached some identification to his email and the email address was one which the Tribunal had previously used to correspond with him.

4. At the hearing I informed Ms Clewley of the appellant’s application. The appellant did not attend the hearing. That was not a surprise given his earlier email. Whilst I had no reason to go behind the appellant’s request in principle to withdraw his appeal, the decision still had to be re-made pursuant to section 12(2)(b)(ii) of the Tribunal, Courts and Enforcement Act 2007. His earlier email made it clear the appellant was aware of the hearing and it justified hearing the matter in his absence in the interests of justice (Rule 38 Tribunal Procedure (Upper Tribunal) Rules 2008 applies). In the event, there was little to be said at the hearing. Ms Clewley clarified that she could not see that there was any change in the appellant’s status in the UK, such as a grant of leave or a fresh application.

5. In light of the preserved findings from the protection claim and the appellant’s indication that he wished to withdraw his appeal, I treated that as meaning he was no longer challenging the respondent’s decision on Article 8 grounds, so this part of his appeal falls to be dismissed.

6. Of course, the preserved findings mean that the appeal against the respondent’s refusal of the appellant’s protection claim also falls to be dismissed.

Notice of Decision

The appeal on asylum grounds is dismissed.
The appeal on humanitarian protection grounds is dismissed.
The appeal on human rights grounds is dismissed.

SJ Rastogi
Judge of the Upper Tribunal
Immigration and Asylum Chamber

28 October 2025

Appendix – Error of law decision

DECISION AND REASONS

1. This is an error of law decision relating to the refusal of the Appellant’s protection and human rights claims against which the Appellant appealed to the First-tier Tribunal. That appeal was subsequently dismissed and it is his onward appeal to this Tribunal which is the subject of this decision .
2. The Appellant is an Iraqi national of Kurdish ethnicity. He lived in the IKR throughout his life until leaving the country. He says he arrived in the UK on 27 October 2022. He claimed asylum on 4 November 2022. The Respondent refused his application on 26 March 2024. The Appellant appealed. His appeal was heard by a First-tier Tribunal Judge (“the Judge”) on 6 January 2025. The Judge dismissed the appeal on all grounds in a Decision and Reasons promulgated on 14 January 2024 (“the Decision”).

Background
3. The Appellant’s case is that he is at risk of persecution as a potential victim of an “honour crime”. He also argues that his sur place activities put him at risk of persecution by the IKR authorities on the grounds of actual or imputed political opinion. The Appellant also argues that he is at risk of serious harm for lack of identity documents and that he merits humanitarian protection on the same facts as relied on for his asylum claim. Lastly, he argues that there are very significant obstacles to his integration.
4. The Judge dismissed the appeal on all grounds.
5. The Appellant applied, in time, for permission to appeal to the Upper Tribunal. The grounds are lengthy (13 pages to the 17 pages of the Decision). Another Judge of the First-tier Tribunal granted permission on just one of the grounds: that the Judge had failed to address the Appellant’s Article 8 ECHR arguments. Permission was refused in relation to all the grounds relating to the Appellant’s protection claim.

The Hearing
6. The Appellant’s solicitors uploaded to CE-File a consolidated bundle of 609 pages and served that on the Respondent.
7. The Parties agreed that the Appellant had only been granted permission on the Article 8 ECHR ground (see (12) – (16) of the Grounds and [4] of the Grant of Permission).
8. Mr. Hulme stated that the Respondent accepted that this amounted to a material error of law.
9. However, Ms. Efurhievwe asked us to stand the matter down for 30 minutes before proceeding further, as she wished to make an application under r21 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the Rules”) for permission to rely on further grounds of appeal and for an extension of time to do so. Ms. Efurhievwe stated that the application was partly drafted and that she intended to file and serve it shortly.
10. We granted that request. In the event, it took rather longer than 30 minutes for us to reconvene. As permission on the protection grounds had been refused, we had not had reason to consider the protection part of the Judge’s Decision and the grounds in any detail. In order to deal with the application justly, it was necessary for us to do so. When we reconvened, the Parties were both ready to deal with the application. Mr. Hulme confirmed that the application was opposed.

Decision on the application
11. Having heard the Parties, we declined to extend time to apply for permission to rely on the additional grounds. Our reasons, as stated in summary at the time, are as follows.
12. The relevant principles and tests to be applied are those set out in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, Denton v White [2014] EWCA Civ 906 and R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633 (as summarised in R (on the application of Onowu) v First-tier Tribunal (Immigration and Asylum Chamber) (extension of time for appealing: principles) IJR [2016] UKUT 185 (IAC)).
13. We apply those principles to give effect to the overriding objective of 'dealing with a case fairly and justly' when exercising the powers: rules 2(1), 2(2) and 2(3)(a).
14. The first stage of the test is to assess the seriousness of the default. Ms. Efurhievwe accepted it was a serious default. She was right to do so. The Appellant was notified of the limited grant of permission on 20 March 2025. Any application for permission to rely on additional grounds should have been made within 14 days, i.e. by 3 April 2025 (r.21(3)(aa)). The application was being made at the hearing, some 47 days later. That is considerably beyond time limit for making such an application and amounts to significant delay.
15. The second stage is whether there is a good reason for the delay. Ms. Efurhievwe sought to argue that there is. We are not persuaded. The highest she could put her case was that she had been instructed for the appeal hearing at the Upper Tribunal on 24 April 2025, and had not been told then that permission had been granted on limited grounds. The solicitors had then not sent her the papers until 1 May 2025 and it was only then that she had realised permission was limited.
16. Ms. Efurhievwe could not say why her instructing solicitor had not instructed her sooner or made any application to rely on additional grounds in time, or at all. Ms. Efurhievwe “believed” the reason would be that those instructing were under-resourced and, although the individual file-handler was very competent, they did not have time to deal with everything. In the absence of any evidence from the solicitors, and in the absence of anything to explain the default beyond Counsel’s belief, we find this is not made out. In any event, a lack of resources, or having too much work, will rarely amount to a good reason.
17. Further, and alternatively, there is then additional delay from 1 May 2025. Ms. Efurhievwe admitted that the default from that date to the hearing is down to her. She offered her apologies but did not seek to advance any extenuating professional or personal reasons why she had not acted sooner than the morning of the hearing. We therefore find that there is no good reason for the significant default.
18. Turning to the third stage, we have regard to the need for litigation to be conducted efficiently and at proportionate cost and the need to enforce compliance with rules, practice directions and court orders. We also note the stage this appeal had reached. It was listed for an error of law hearing on Article 8, and we were being asked to extend time to deal with grounds on an entirely separate basis, in relation to which there was no reason for any of the participants to otherwise prepare.
19. The Appellant has been represented throughout the proceedings. The grant of permission was clear in its limitation and is accompanied by a notice that expressly states the same. Ms. Efurhievwe suggested that her making the application at the hearing was no different to her having made it on or about 1 May 2025. As UTJ Rastogi pointed out at the time, those scenarios are not the same. Had the application been made late, but still weeks in advance of the hearing, it could have been dealt with on the papers rather than taking up valuable time at the hearing.
20. However, we balanced the above against the fact that the application was in the context of the Appellant’s protection claim. If it carried arguable prospects of success, that could mean that circumstanced did justify extending time so as not to undermine the protection the Appellant might otherwise require. For that reason we considered the merits of the grounds that the Appellant now sought to introduce.
21. However, even in those circumstances, and bearing in mind what was said in Hysaj at [46], we are not satisfied that they are so obviously meritorious as to outweigh the factors against extending time. The Judge’s findings were open to her on the evidence, for the reasons she gave.
22. In particular, although Ms. Efurhievwe focussed particularly on the argument that the Appellant’s sur place activities pose a real risk to him (renewed Grounds 2(e) and 3(b)), we are not satisfied that was supported by any adequate country background evidence to that effect. Ms. Efurhievwe accepted that she could not take us to any evidence before the Judge to show that political activity of the type conducted by the Appellant, when conducted outside Iraq, was reasonably likely to lead to persecution on return (even had the Appellant come to the attention of the Iraqi authorities). Neither do we find the other grounds to have sufficient merit to justify extending time. The Judge plainly considered her findings justified even on the lower standard [61] and [93] (renewed Grounds 2(f) and 3(a)). Finally, the judge expressly considered whether the appellant’s mental health may explain his inconsistent evidence but decided it did not [28] (renewed Ground 2(c)).
23. When looking at all the circumstances, we find that the significant and inadequately explained delay is not outweighed by any merit in the further grounds. We therefore refused the application to extend time with reference to r. 5(3), and refused to admit the application for permission to appeal on the renewed grounds with reference to r.21(6)(b).

Decision on Error of Law
24. We are satisfied that the Respondent’s concession was an appropriate one to make. The Appellant’s ASA clearly argued Article 8, the Respondent accepts it was a live issue to be determined by the Judge, and yet the Decision and Reasons does not address it.
25. Accordingly, as Article 8 was not dealt with at all, that justified the Judge’s decision being set aside pursuant to section 12(2)(a) of the Tribunal, courts and Enforcement Act 2007 (“the 2007 Act”).
26. As the Judge’s findings on the protection claim have not been successfully challenged, and as that represents the entirety of matters addressed in the Decision and Reasons, they therefore stand. We find that those findings must be preserved.
27. Having heard further submissions from the Parties as to disposal and venue of hearing on the Article 8 ground only, we have taken into consideration the Court of Appeal’s decision in AEB v SSHD [2022] EWCA Civ 1512, the decision in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) and para. 7.2 of the Senior President’s Practice Statements. Having regard to the extent of the preserved findings, we find the appropriate course is for the appeal retained for re-making in the Upper Tribunal pursuant to section 12(2)(b)(ii) of the 2007 Act. The issue in dispute is narrow and requires only limited further findings of fact. We are satisfied the Appellant can rely on updating evidence including medical evidence and we make directions for that below.

Notice of Decision
1. The Judge’s decision involved the making of an error of law.
2. The Judge’s decision is set aside.
3. The Judge’s findings of fact are otherwise preserved.