Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-001672
First-tier Tribunal No: PA/00955/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 30th of June 2026

Before

UPPER TRIBUNAL JUDGE LANE

SH
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:

For the Appellant: Mr Katani
For the Respondent: Ms Karini, Senior Presenting Officer

Heard at Edinburgh on 19 May 2026

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 a decision promulgated on 15 December 2025, I set aside the decision of the First-tier Tribunal and directed that the decision be remade in the Upper Tribunal. The resumed hearing took place in Edinburgh on 19 May 2026 following which I reserved my decision. I have decided to grant the appellant anonymity; the evidence in the appeal concerns, in part, his children who are minors.
Preliminary Matters
2. At the resumed hearing, I made the following direction [7]:
Both parties accept that the deportation decision under consideration was made under section3(5) of the Immigration Act 1971; notwithstanding the contents of the respondent’s decision letter, there will be no consideration at the resumed hearing of other statutory deportation provisions which are not relevant to an appeal against a decision made under that Act. At the resumed hearing, both parties may adduce fresh evidence provided that copies of any written evidence is sent to the Upper Tribunal and the other party no less than 10 days prior to the resumed hearing.
3. There was brief discussion at the resumed hearing regarding those directions. Mr Katani, for the appellant, had not appeared at the initial hearing and did not have a record of my having directed at that hearing that the parties agreed that appeal should proceed on the basis that the Secretary of State had made a valid decision to deport under section 3(5) of the 1971 Act. However, he agreed that the appeal should proceed at the resumed hearing by way of a consideration of the oral evidence of the appellant and his partner. He noted also that I had set aside the First-tier Tribunal’s decision in its entirety notwithstanding that the First-tier Tribunal’s decision on asylum and humanitarian protection had not been challenged. I shall address that aspect of the appeal below.
Evidence at the resumed hearing
4. The appellant and his partner, SM, both gave evidence in English. Their evidence concerned the appeal on Article 8 ECHR grounds and, in the case of the appellant, his connections with family in Iraq. The burden of proof in the Article 8 ECHR appeal is on the appellant and the standard of proof is the balance of probabilities.
Oral evidence: the appellant
5. The appellant said that he had not been in contact with his family in Iraq for about 10 years. He had been in a relationship with SM for about 5 years. They are parties to an Islamic marriage. He and SM have their own homes but ‘sometimes’ live together. The appellant assists SM to care for their child (E), who may have autism; a final medical diagnosis is awaited. E will be 4 years old in November 2026.
6. The appellant also has a child (A) by a former partner. A is now 10 years old. The appellant had initiated family court proceedings for a contact order but these proceedings had effectively lapsed as the appellant could not afford to employ a lawyer to represent him. The appellant had last seen A eight years ago.
7. The appellant lives in what he described as ‘migrant accommodation’. He said that SM rents her home.
Oral evidence: SM
8. SM adopted her witness statement as her evidence in chief. She confirmed that she and the appellant had been in a relationship since about September 2021 and that the appellant is the father of their child, E. E has speech delay and has difficulty interacting socially with other children. She said that E attends nursery but ‘never lasts a whole day [there]’. SM said that E would suffer ‘psychological distress’ if he were to be separated from the appellant and that ‘E is closer to the appellant than he is to me.’ The appellant regularly takes E to nursery which is about a 25 minutes’ walk from the appellant’s home. The appellant sees E about four times every week.
Submissions
9. Ms Karini acknowledged that the appellant is not a foreign criminal under the provisions of the United Kingdom Borders Act 2007 so he is not subject to section 117C of the 2002 Act. Applying Section 117B of the Act, Ms Karini submitted that the appellant is a burden on the taxpayer although she accepted that his good command of English had enabled him to integrate into society. She stressed that, whilst the fact of their relationship and the appellant’s involvement in the life of E was not disputed, the appellant and SM do not cohabit whilst the appellant’s contact with his child A had, in effect, come to an end. Moreover, there was no evidence that the appellant’s depression could not be treated in Iraq. Notwithstanding his claim that he had lost contact with his family in Iraq, the First-tier Tribunal (in findings at [79] which the appellant had not challenged on appeal), had found the appellant to be an unreliable witness and had concluded that he had maintained contact with family in his home area (Kirkuk).
10. Mr Katani submitted that the Article 8 ECHR appeal turned on the matter of proportionality only. The appellant has a genuine relationship with his child E which would be terminated if the appellant is deported. As regards risk on return to Iraq, the appellant’s circumstances should be considered under the new country guidance, AH, AK & AJ (Identity documentation; returns to the KRI) Iraq CG [2026] UKUT 150 (IAC) . He observed that the appellant maintained, as he had throughout, that he could not access his identity documents and would be at risk returning to his home area from his point of entry to Iraq (Baghdad).
Analysis: Article 8 ECHR
11. As the parties agree, the appellant on Article 8 ECHR grounds lies outside the provisions of section 117C of the 2002 Act, the appellant being subject to a decision to deport on conducive grounds only. I am aware that it is now nearly 10 years since the appellant was convicted of a criminal offence and the appellant, who clearly speaks good English, has in my finding integrated into Scottish society. I find that he is in a genuine relationship with SM and E. I find that those relationships are important factors in the Article 8 ECHR analysis even though the appellant, SM and E do not regularly live together in the same property. I accept as accurate the evidence I heard regarding the appellant’s assistance with E’s care although I note that this is generally limited to taking E to nursery and collecting him, including at times when E becomes dysregulated. I find that E’s primary carer is his mother, SM. As regards section 55 of the 2009 Act, I find that the best interests of the E will be met by his remaining in the care of his mother in the event of the appellant’s removal.
12. I note that the appellant has effectively given up his attempts to see his other son, A, and I have given very limited weight to that relationship in my assessment. I also agree with Ms Karini that little weight should be given to the appellant’s mental health issues. There were no GP notes before the Tribunal and no evidence to indicate that the appellant could not access the medicines which he requires in Iraq.
13. I am aware that the appellant has been living in the United Kingdom since 2004. I was not told that he had made or intends to make an application for indefinite leave to remain on the basis of long residence. Such an application may, in any event, prove problematic on the basis of suitability given the appellant’s history of criminal offending.
14. The most significant problem for the appellant in the Article 8 ECHR appeal lies in the paucity of the evidence produced in support of that appeal. The test of the appeal on that ground, as both parties acknowledge, is one of proportionality and, although the more stringent provisions applying to foreign criminals under the 2007 Act do not apply to the appellant, the public interest in his removal as a convicted criminal offender whose removal the Secretary of State considers conducive to the public good remains strong. However, I acknowledge that the public interest could be outweighed if the evidence showed that the effect of the appellant’s removal on E, a child apparently with significant developmental issues, would be severe. However, beyond the oral evidence of the appellant and SM, there was a conspicuous lack of evidence from third parties, including expert evidence and evidence from those aware of and treating E’s conditions, to support the appeal. In the circumstances, I find that, in order to reach a conclusion in favour of the appellant, the Tribunal would need to read into the material which is before it evidence which might have been, but which has not been, produced. In the absence of evidence, it is not for the Tribunal simply to assume that consequences will likely result from the separation of the appellant and E. As I have said above, I accept that fact of the relationship between the appellant, SM and E notwithstanding that they do not live together, but the fact that they do not cohabit as a family renders the need for further evidence of the likely effect of separation on E, in particular, all the more pressing. I find that the appellant has not discharged the burden of proving that his deportation would cause disproportionate interference with his family life and that of SM and E.
Analysis: risk on return to Iraq
15. Mr Katani submitted that the entirety of the First-tier Tribunal’s decision had been set aside, including the dismissal of the appellant’s appeal on asylum, Article 3 ECHR and humanitarian protection grounds. He raised the recent Upper Tribunal country guidance case AH, AK & AJ (Identity documentation; returns to the KRI) Iraq CG [2026] UKUT 150 (IAC) and submitted that the appellant’s ability to return safely to his home area of Kirkuk should be considered in the light of the guidance now available.
16. As at the time of writing this decision, the guidance provided by AH, AK & AJ appears to be in doubt. The Secretary of State has sought to resile from evidence adduced before the Upper Tribunal regarding returns to the disputed territories in Iraq. As a consequence, the Upper Tribunal is considering is considering how best to proceed. I find that it is not appropriate in the circumstances to rely on the guidance in AH, AK & AJ until such time that these matters have been resolved.
17. In any event, notwithstanding the setting aside of the First-tier Tribunal’s decision on asylum and Article 3 ECHR, I find that the factual matrix relevant to the appellant’s ability to return safely to his home area of Iraq is sufficiently clear to enable me to proceed to determine the appeal.
18. First, as I noted at the resumed hearing, the First-tier Tribunal made findings of fact which the appellant did not challenge on appeal to the Upper Tribunal. Even though the decision has been set aside, I find that weight can legitimately be given to that fact. The First-tier Tribunal at [79-81] found as follows;
79. The appellant does not persuade me that there is a serious risk of harm befalling him on a return to Iraq due to the matter of documentation because he has given an account of being in contact with family who have provided him with some documentation at some point in the past. At WS50, the appellant explains that in 2014/2015 his partner travelled to Kirkuk to meet his mother; but that he has not had any contact with his mother since then. But later he said to Dr Hillen that it was 2017 that he lost contact with her. [#71 a 162/174]. The appellant is not a reliable or credible witness and given the several versions about what happened to family, I consider that that extends to his evidence about them still living there. He does not persuade me that all contact with family members living there is at an end. The appellant said that his Iraqi documentation was held at home, and I conclude that he does not persuade me that he cannot get possession of necessary documentation on return through family members still living there.
80. The factual matrix which has a bearing on the appellant’s article 2 and 3 claims are the same as those which apply to the other aspects of the claim which I have set out above. I have not been persuaded to the lower standard of proof that the appellant’s claim is well-founded in fact. I conclude that the appellant’s 2 and 3 claims stand or fall with the refugee convention claim. For the reasons outlined above, it is my intention to dismiss these claims.
81. The available evidence before as background country evidence does not persuade me that the present security and ‘humanitarian protection’ circumstances in Iraq would amount to circumstances warranting a grant of leave based on humanitarian protection grounds.
19. Those findings are wholly unaffected by the error of law which led me to set aside the decision and, as I have said, have not been challenged by the appellant. The appellant gave brief evidence before me to the effect that he has lost all contact with family members in Iraq but, having regard to the unchallenged findings of the First-tier Tribunal, I do not accept that he has lost contact as claimed. I find as a fact that the appellant can contact family members in his home area and, with their assistance, he can regain possession of his existing valid identity documents. With those documents, I find that he can safely travel from his point of arrival in Iraq (whether that be Baghdad or Erbil or any other airport in the vicinity of Kirkuk) to his home area. That finding is consistent with the guidance of SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 110 (IAC) and, subject to the provisos to which I refer above, the more recent AH, AK & AJ (Identity documentation; returns to the KRI) Iraq CG [2026] UKUT 150 (IAC). Consequently, I find that the appellant’s appeal on asylum, Article 3 ECHR and humanitarian protection grounds should be dismissed.
20. For the reasons, I have given I remake the decision dismissing the appellant’s appeal on all grounds.
Notice of Decision
I have remade the decision. The appellant’s appeal is dismissed on all grounds.

C. N. Lane

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 2 June 2026