Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001380

First-tier Tribunal Nos: PA/63234/2023
LP/00563/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 11 August 2025

Before

UPPER TRIBUNAL JUDGE MAHMOOD

Between

KA
(ANONYMITY DIRECTION CONTINUED)
Claimant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Brown of Counsel instructed by Halliday Reeves Solicitors
For the Respondent: Mr Diwnycz, a Senior Home Office Presenting Officer

Heard at Phoenix House (Bradford) on 11 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. The parties may apply on notice to vary this order.

DECISION AND REASONS
1. This is the oral decision that I delivered at the hearing today.
Background
2. This matter relates to an appeal by the Secretary of State against the decision of First-tier Tribunal Judge Greer (“the Judge”) who by way of a decision dated 9 February 2025 had allowed the Appellant’s appeal. For ease in following this decision, I shall refer to the parties as they were at the First-tier Tribunal, although it is the Secretary of State who brings this appeal.
3. The issue for me to consider is whether or not there is a material error of law in the Judge’s decision. If there is no error of law in the Judge’s decision then that decision will stand. If I conclude that there is a material error of law in the Judge’s decision then I shall have to decide whether I should remake the decision here at the Upper Tribunal or to remit the matter to the First-tier Tribunal for the decision to be remade there.
Grounds of Appeal
4. The Secretary of State had sought permission to appeal and permission to appeal had been granted by First-tier Tribunal Judge Taylor by way of a decision dated 19 March 2025. The Secretary of State’s Grounds of Appeal state in summary as follows:
“On 27 October 2021 the Appellant made an asylum claim on the basis of his extra-marital relationship which came to the attention of her husband, who it is stated is a member of the PUK. The application was refused in a decision letter dated 21/11/2023, to which the appellant appealed and his appeal was allowed by the First-tier Tribunal Judge Greer, promulgated on 10/02/2025 which is the subject of this appeal.”
5. The Secretary of State’s grounds are not easy to decipher and require considerable reading and re-reading. I can do no more then to again remind the Secretary of State’s caseworkers to set out grounds of appeal in a clear and simple manner. That will assist the Upper Tribunal, but also the parties themselves. It will also achieve the requirement to further the overriding objective.
6. Ground 1 states: “Making a material misdirection of law - inadequate reasoning - basis of claim - honour killing” and it then states that Judge Greer omitted to say in his findings or adequately reason which Convention reason under which the appeal was being allowed. There is reference to the case of Budhathoki (reasons for decisions) [2014] UKUT 341 (IAC) which it is contended states that the findings should clearly set out the reasons for allowing the appeal. It said in the grounds the Judge failed to make any reference to the latest country guidance regarding honour crimes concerning Iraqi males which was referenced in the Reasons for Refusal Letter and that was relevant to the assessment of this claim. There is also reference to the CPIN of July 2024 under the heading of “Blood Feuds, Honour Crimes and Tribal violence” with references in full to paragraph 2.2, 2.2.3 and 2.2.5 which refers to honour crimes.
7. It is said that the judge did not make any connection between the Appellant’s paramour’s spouse being a member of the PUK beyond the realm of honour killing nor was an explanation of the risk by the PUK to the Appellant provide. Additionally, the fact that the Appellant had left Iraq over ten years ago was not factored in, as had been set out under the credibility section of the Respondent’s Reasons for Refusal Letter. It was said that this was a material error because the appeal was allowed for a Convention reason which had not been established with any clarity and that it was material to the outcome.
8. The next ground in the Respondent’s Grounds of Appeal states that there was the making of a material misdirection in law by failing to consider internal relocation and documentation and it is said here that the Appellant, in his skeleton argument, raised issues regarding lack of documentation as being a risk on return to Iraq but the Judge had neither considered the documentation nor the feasibility of internal relocation. It is said that this was relevant because the Appellant’s parents and two brothers reside in Iraq as was set out in the Reasons for Refusal Letter and no evidence had been presented to show that the Appellant could not rely on their assistance or to support him to obtain an IND or that relocation was not the viable option in the circumstances.
9. The grounds were discursive and refer to other matters as well but they can be fairly summarised in the way I have set out.
The Hearing Before Me
10. At the hearing before me Mr Diwnycz relied on the Grounds of Appeal and it was then that I heard from Mr Brown on behalf of the Appellant.
11. Mr Brown said and did all that he possibly could on behalf of the Appellant and particularly highlighted that there is no real challenge to the findings in respect of the Grounds of Appeal. He said that there were express findings made by the Judge in relation to the ‘embarrassment factor’ being expressed by the Appellant himself but the Judge did seem to accept the connection with Z’s family in the UK. Mr Brown agreed with the Respondent’s submissions that perhaps the Judge could have expressed himself more clearly but ultimately that wherever the Appellant might go, he will be pursued. Mr Brown’s main point being that the Secretary of State’s grounds did not challenge the primary findings which had been made by the Judge.
12. Mr Brown said that in any event in relation to Convention reason it was not material because a refusal letter had said that if the facts were accepted then it was not necessary to consider, for example internal relocation. Mr Brown correctly pointed out however that this was not the approach taken in the Respondent’s Review which did clearly refer to internal relocation and sufficiency of protection being issues in the case.
13. In any event Mr Brown said that ultimately even if I was against him in relation to that aspect, this was a case in which, because there were no challenges in the grounds to the primary facts then some facts could be preserved and any further consideration of the matter could take place at remaking hearing with those preserved findings.
14. I heard from both parties thereafter and unusually giving Mr Brown the final word even though it was not the Appellant’s appeal in this instance.
Consideration and Analysis
15. It is necessary to look at the Judge’s decision through the lens of the decision in Lata (FtT: principal controversial issues) [2023] UKUT 99163 (IAC) in which part of the judicial Presidential headnote makes clear,
“1. The parties are under a duty to provide the First-tier Tribunal with relevant information as to the circumstances of the case, and this necessitates constructive engagement with the First-tier Tribunal to permit it to lawfully and properly exercise its role. The parties are therefore required to engage in the process of defining and narrowing the issues in dispute, being mindful of their obligations to the First-tier Tribunal.
2. Upon the parties engaging in filing and serving a focused Appeal Skeleton Argument and review, a judge sitting in the First-tier Tribunal can properly expect clarity as to the remaining issues between the parties by the date of the substantive hearing.
3. The reformed appeal procedures are specifically designed to ensure that the parties identify the issues, and they are comprehensively addressed before the First-tier Tribunal, not that proceedings before the IAC are some form of rolling reconsideration by either party of its position…”
16. Unfortunately, there was no such compliance in this case. Mr Brown therefore assisted me by taking me to the Appellant’s previously instructed Counsel’s skeleton argument which identifies the issues at paragraph 9 of that skeleton argument dated 26 September 2024. It states under the sub-heading of “Schedule of Issues” as follows:
(i) Credibility.
(ii) Risk on Return.
(iii) Is A (the Appellant) able to obtain a replacement INID by proxy?
17. It is then necessary to look to the Respondent’s Review which appears in the bundle at page 218 and within that on the first internal page under the sub-heading of “Schedule of issues summarised from ASA”, it is said
(i) Credibility.
(ii) Risk on Return.
(iii) Is the A able to obtain a replacement INID by proxy or obtain documentation by other means?
18. Importantly, there is then a “Counter Schedule” whereby it is made clear that the Reasons for Refusal Letter is relied upon and maintained. In respect of issue (ii) i.e., the risk on return the Respondent also stated the
“…Respondent does not accept that the Appellant is at a real risk on return. The Respondent will argue primarily that the Appellant would have no need to seek protection or internal relocation as he has not reliably established the basis of his account, see above. Having considered the position on review the Respondent will argue that in the alternative the Appellant could reasonably relocate as necessary within the IKR. The Respondent has considered the Appellant’s appeal statement as regards relocation but does not accept that he has given any reliable or persuasive reasons why he would be unable to reasonably relocate or that he has produced any supporting or cogent evidence that those he claims to fear would know of his return and would have the will, resources or influence to locate him should he do so.”
19. Insofar as issue (iii) is concerned, it is said, the
“…Respondent will argue that the Appellant could successfully obtain documentation to facilitate safe return. It is understood that the Appellant is from Sulaymaniyah in the IKR and the latest country guidance is referred to where it is said that that acknowledged there are regular direct flights form the UK to the IKR and that former residents of the IKR will be returned to the IKR and there is also reference by the Respondent to the then Country Policy and Information Note Iraq: Internal relocation, civil documentation and returns October 2023 which is set out. The Respondent says that in any event as per the headnote of the country guidance SMO and KSP (Civil status, documentation article 15 (CG)) Iraq [2022] UKUT 110 (IAC) that the likelihood is that the Appellant is aware of the CSID card numbers and or the volume and page reference of the entries in the Family Book in Iraq and that if no such information can be obtained from patriarchal relatives in any event overall the Respondent would argue that such matters would be dependent on the assessment of the Appellant’s credibility which was said to be lacking.”
20. I turn again to the Judge’s decision. Initially the Judge said at paragraph 6, “As a general observation I found the Appellant to be an unimpressive witness in his manner before the Tribunal.” At paragraph 7 the Judge said, “I was initially extremely troubled by the Appellant’s evasiveness. Plainly, he did not want to help the Tribunal understand his case.”
21. But as Mr Brown correctly identifies, ultimately the Judge concluded in considering matters further that an explanation for this reluctance, evasiveness and the like on the part of the Appellant could very well have been the embarrassment in terms of the affair with Z. Ultimately the Judge concluded, at paragraph 15, having stood back and considered all the evidence in the round that the Appellant had given detailed, consistent and plausible evidence. The Judge said, “He was an extremely poor witness and he actively sought to avoid answering questions in the evidence before me however I attribute this true embarrassment about the nature of his claim.” Then the Judge concluded that the Appellant did engage in an extramarital affair with Z and that the Appellant will be pursued by Z’s husband if he was to return to Iraq. The Judge said this was the ‘only issue’ to be determined in this appeal. The Judge therefore concluded that the Appellant succeeded in his asylum appeal.
Conclusion
22. I am well aware of the settled case law that I must show appropriate judicial restraint in respect of the decision of the First-tier Tribunal whereby the expert judge had the benefit of seeing and hearing from the Appellant. I note too that the authorities date back to Baroness Hale’s clear judgment in AH Sudan v Secretary of State for the Home Department [2007] UKHL 49; ]2009] 1 AC 678 in respect of that expertise. I also note similar and important judgments have been provided by the higher courts frequently since then. In the recent decision of the Court of Appeal in MH (Bangladesh) v the Secretary of State for the Home Department [2025] EWCA Civ 688 (9 June 2025) Lord Justice Arnold, with whom Lord Justice Singh and Lady Justice King agreed, again set out the important principles and which I have applied in this case.
23. I conclude that I am unable to decide other than that the Judge clearly misdirected himself.
24. In my judgment the Judge materially erred in law. The Judge was wrong to say that the only issue to be determined in the appeal was whether or not the extramarital affair had taken place or not. As was clear from the Appellant’s skeleton argument there were actually three issues to be dealt with. Even if the Appellant’s skeleton argument was not clear, the Respondent’s Review made it even clearer because the ‘Counter Schedule’ had set things out fully. The important issues of internal relocation, sufficiency of protection, CSID/documents were significant matters which required a decision from the Judge. There was unagreed background evidence provided to the Judge which require adjudication and there was caselaw from Country Guidance which required to be applied.
25. Whilst it is not necessary for a judge to refer to every point which is raised and whilst it is not necessary for a judge to set out in extensive detail all of the submissions and all of the documentation that he or she has considered, it remains necessary to deal with the issues which are placed before the judge. In my judgment the Judge has failed to deal in particular with issues (ii) and (iii). Credibility was challenged in the Respondent’s Review.
26. Mr Brown made a valiant effort to submit that I ought to uphold at least the findings which the Judge made. In my judgment, in any event as was made clear in the Respondent’s Review, there was an alternative which had been put forward i.e., sufficiency of protection and internal relocation. I cannot detect within the Judge’s decision whether that that was considered at all and therefore whether the Judge applied the correct test of internal relocation. There is no indication whether the tests in Januzi v Secretary of State for the Home Department [2006] UKHL 5; [2006] 2 AC 42 or AH Sudan v Secretary of State for the Home Department [2007] UKHL 49; ]2009] 1 AC 678 were applied. The internal relocation test is well-known but not even the wording appears in a clear manner within the Judge’s decision. Whilst a Judge need not cite the actual authority, the principles of it ought to be and then a decision made in respect of that issue.
27. There has to be fairness for both sides and the Secretary of State’s real complaint is that she contends that she does not know why she lost in respect of issues (ii) and (iii). Regrettably I conclude that the Judge failed to deal with those two issues. The issues are intertwined and connected. It is not possible in this case to easily separate the issues and to retain certain findings and not be cognisant of the alternatives.
28. In the circumstances of this particular case, there is no alternative but for me to conclude that there is a material error of law in the Judge’s decision.
29. I must therefore set aside the decision of the First-tier Tribunal as it contains a material error of law.
30. I canvassed with the parties what the venue of the remaking ought to be. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), I carefully consider whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statement. I also take into consideration the history of this 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. On balance I cannot be satisfied that the Judge would have made his findings if he had also considered the other two issues. I further consider that it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process and I therefore remit the appeal to the First-tier Tribunal with no retained findings.
31. That is my judgment.
Notice of Decision
The Decision of the First-tier Tribunal contains a material error of law.
The Decision of the First-tier Tribunal is set aside in its entirety. None of the findings shall stand.
The matter is remitted to the First-tier Tribunal for a hearing de novo on all issues.
The Anonymity Direction is continued.

Abid Mahmood

Judge of the Upper Tribunal
Immigration and Asylum Chamber

11 June 2025