Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2025-001891
First-tier Tribunal No: PA/52923/2024
LP/11256/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

5TH November 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE HOSHI

Between

WRK
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Khan, counsel, instructed by Broudie Jackson Canter, via CVP
For the Respondent: Ms Young, Senior Home Office Presenting Officer, via CVP

Heard at Field House on 16 October 2025

Order Regarding Anonymity

Pursuant to rule 14 Tribunal Procedure (Upper Tribunal) Rules 2008, the anonymity order made by the First-tier Tribunal shall continue in force. No-one shall publish or reveal any information that is likely to lead members of the public to identify the Appellant, including his name or address. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. By a decision dated 21 February 2025, the First-tier Tribunal dismissed the Appellant’s appeal against the Respondent’s 23 January 2024 decision to refuse his 27 September 2022 protection and human rights claim.
2. Thereafter, the Appellant applied in-time for permission to appeal. By a decision dated 16 June 2025, the Upper Tribunal granted permission to appeal. The appeal came before me for an error of law hearing on 16 October 2025, for which I was present in-person at Field House and Ms Khan and Ms Young appeared via CVP.
Background
3. The Appellant is an Iraqi national of Kurdish ethnicity now aged 23 years. He is from a village near Koya, which is a town in the Kurdistan Region of Iraq (‘KRI’). In short summary, by the time of his First-tier Tribunal appeal, the basis for his protection claim and human rights claim had crystalised as being that he would be at risk on return because he: (1) was embroiled in a tribal feud concerning certain land in the KRI; (2) had engaged in sur place political activism against the KRI’s authorities since his arrival in the UK; and (3) had not got the necessary Iraqi identification documentation and would not be able to obtain it within a reasonable period of time on return.
4. In the First-tier Tribunal’s 21 February 2025 decision, the Judge dismissed the Appellant’s appeal on all grounds. In broad terms, the Judge’s reasons may be summarised as follows:
a. The Refugee Convention was engaged in respect of both the tribal feud and sur place political activism limbs of the Appellant’s claim (on particular social group and political opinion grounds, respectively) (§§15-19).
b. For the purposes of the Refugee Convention, the Appellant had not established a genuinely-held subjective fear of return in respect of the tribal feud limb of his claim (§§20-22).
c. For the purposes of Humanitarian Protection and Article 3 ECHR, the Appellant had not established a real risk of serious harm on return in respect of the tribal feud limb of his claim (§§24-146). This comprised a rejection of the credibility of the Appellant’s claimed account of his pre-flight activities, to the lower standard.
d. For the purposes of the Refugee Convention, the Appellant had established a genuinely-held subjective fear of return in respect of the sur place political activism limb of his claim (§23).
e. For the purposes of the Refugee Convention, Humanitarian Protection and Article 3 ECHR, the Appellant had not established a real risk of persecution or serious harm on return in respect of the sur place political activism limb of his claim (§§147-86). In part, this rested on a rejection of the credibility of elements of the Appellant’s account in respect of this limb.
f. For the purposes of Humanitarian Protection and Article 3 ECHR, the Appellant had not established a real risk of serious harm on return in respect of the identification documentation limb of his claim (§§187-94). In part, this rested on a rejection of the credibility of elements of the Appellant’s account in respect of this limb.
g. The Appellant had not established that his removal would breach Article 8 ECHR (§§195-8).
5. The Appellant’s grounds of appeal raised four grounds, each of which challenged the Judge’s rejection of the credibility of his claimed account of his pre-flight activities. I summarise them as follows.
a. Ground 1: failure to take account of material considerations. In finding that the Appellant’s account was lacking in detail about the timeline and circumstances of the attack on his family (were his uncles killed immediately, or were they first kidnapped and then killed at a later stage), the Judge failed to take account of the Appellant’s explanation in cross-examination. Counsel’s note of the Appellant’s evidence was attached to the grounds.

b. Ground 2: procedural irregularity. Inconsistencies in the Appellant’s account of how his grandfather acquired the disputed land were not put to him.

c. Ground 3: misdirection of law. The Judge failed to give the Appellant the benefit of the doubt, in accordance with §339L Immigration Rules.

d. Ground 4: taking account of an immaterial consideration. The Judge impermissibly took account of the Appellant’s demeanour.
6. In due course, the First-tier Tribunal refused permission to appeal. Thereafter, Appellant renewed his application for permission to appeal to the Upper Tribunal, on the same grounds. On 16 June 2025, the Upper Tribunal granted permission to appeal on all of the Appellant’s grounds of appeal, on the following basis:
“The grounds of appeal are just arguable. The judge gave detailed consideration to various answers given by the Appellant in interview and compared those to his oral and written evidence. However, on a significant number of issues the judge did not make clear findings as to whether he accepted the Appellant’s account or not and he also found that the App[e]llant’s account was clear, consistent and not inherently implausible. It is arguably unclear from the judge’s reasoning which inconsistencies led to his overall rejection of the Appellant’s account.”
7. On 24 June 2025, in response to directions, the Respondent confirmed that it was accepted that counsel’s note of the Appellant’s evidence was accurate. Then, on 27 June 2025, the Respondent provided a rule 24 response, defending the appeal on all grounds.
Hearing
8. Before me, the documentation was contained in a consolidated bundle of 230 pages.
9. Ms Khan applied for the anonymity order made by the First-tier Tribunal to remain in force. Ms Young had no objection to this on behalf of the Respondent. I acknowledge the importance of the principle of open justice. However, I grant the application because it has been accepted that the Appellant has been involved in some political activism in the UK, and therefore I consider that disclosing his identity could potentially cause him harm in the event that he is returned to KRI.
10. Ms Khan adopted the grounds of appeal (which she had not drafted) and made further oral submissions which may be summarised as follows:
a. The permission Judge’s ground: inadequate reasoning. Though very lengthy, the Judge’s decision was hard to follow. The Judge identified a number of concerns with the Appellant’s account but failed to reach clear conclusions on them at §§75, 86, 98 and 106. Therefore, it was not possible for the Appellant to understand why the Judge rejected the credibility of his claimed account of his pre-flight activities.

b. Ground 1: failure to take account of material considerations. In cross-examination, the Appellant had provided the following explanation for whether his uncles were killed immediately or kidnapped first and killed later: “At the time, I was aware that they were kidnapped, and my father took me away, that’s what I knew at the time. When my father hided me, and later my father told me that they have been killed.“ What the Appellant meant by this was that, at first, he believed his uncles had been kidnapped at the time of the attack but, later, his father told him that his uncles had in fact been killed at the time of the attack. This explanation was not taken into account.

c. Ground 2: procedural irregularity. The Judge identified inconsistencies in the Appellant’s account of how his grandfather acquired the disputed land: in his screening interview the Appellant said his grandfather bought the land; in his asylum interview the Appellant said his grandfather took the land by force because he was a feudal lord; and in his witness statement the Appellant said his grandfather was awarded the land by the government. Counsel’s note of the Appellant’s evidence made it clear that these inconsistencies were not put to the Appellant. This was unfair.

d. Ground 3: misdirection of law. Ms Khan said that she was not pursuing this ground with force (though she did not formally abandon it). She accepted that §339L Immigration Rules did not impose any legal requirement upon the Tribunal to give appellants the benefit of the doubt – i.e. to accept that they have provided a credible account – in finely-balanced cases. However, this was such a finely-balanced case that the Judge could have given the Appellant the benefit of the doubt here.

e. Ground 4: taking account of an immaterial consideration. The Judge expressly referred to rejecting the Appellant’s account in part because of his “demeanour” at §21 and then included a section titled “The Appellant’s presentation as a witness” at §§138-42. This was contrary to the guidance of the Court of Appeal in R (SS (Sri Lanka)) v SSHD [2018] EWCA Civ 1391.
11. In response, Ms Young adopted the rule 24 response (which she had not drafted) and made further oral submissions which may be summarised as follows:
a. The permission Judge’s ground: inadequate reasoning. In identifying this alleged arguable error of law, the permission Judge had not followed the guidance in AZ (error of law: jurisdiction; PTA practice) [2018] UKUT 245 (IAC) or Durueke (PTA: AZ applied, proper approach) [2019] UKUT 197 (IAC). Further, the Appellant had not amended his grounds of appeal to seek to rely on this ground. Therefore, I should not consider it. In any event, on careful scrutiny of the decision as a whole, there was nothing in this point: the Judge had given detailed reasons for his concerns with the Appellant’s account and then weighed them in the balance against the Appellant’s at §§143-145. The Judge had thereby undertaken a proper, in-the-round analysis, precisely as he was required to do.

b. Ground 1: failure to take account of material considerations. The Judge had expressly taken into account the Appellant’s explanation in cross-examination at §97, in terms that were materially identical to counsel’s note of the Appellant’s evidence: “… at the time I was aware that they were kidnapped, and my father took me away, that’s what I knew at the time. When my father hid me. Later my father told me they told me they had been killed”.

c. Ground 2: procedural irregularity. The Judge was entitled to take into account that the Appellant had been inconsistent, and even took into account in the Appellant’s favour factors that could render unreliable the record of his screening interview.

d. Ground 3: misdirection of law. The Judge had carefully weighed in the balance the factors weighing both for and against the Appellant and come to the conclusion that he was not satisfied that the Appellant’s account was a credible one. There was no requirement in law for the Appellant to be given the benefit of the doubt, i.e. for the credibility of his account to be accepted, simply because there were factors weighing in his favour.

e. Ground 4: taking account of an immaterial consideration. If one looked at the substance of the findings in §§138-42, they did not concern the Appellant’s demeanour, i.e. his appearance and behaviour as a witness. Rather, they concerned the content of his evidence. The findings were therefore permissible.
12. Ms Khan made concise further submissions in reply. In particular, she submitted that, irrespective of whether the permission Judge had followed the correct approach, they had granted permission on the additional ground and I was therefore bound to consider it. In such circumstances, there was no requirement for the Appellant to amend his grounds to include it.
13. In terms of disposal, both representatives agreed that if I were to find a material error of law in the Judge’s rejection of the credibility of the Appellant’s claimed account of his pre-flight activities, then the entirety of the decision would need to be set aside with no findings preserved because that conclusion had materially impacted upon all other elements of the decision. Both representatives also agreed that, in such circumstances, the appropriate course for remaking would be for the appeal to be remitted to the First-tier Tribunal, given the breadth of fact-finding that would be required.
14. At the conclusion of the hearing, I reserved my decision.
Decision and reasons
The permission Judge’s ground: inadequate reasoning
15. Headnote 3 of AZ states:
“Permission to appeal to the Upper Tribunal should be granted on a ground that was not advanced by an applicant for permission, only if:

(a) the judge is satisfied that the ground he or she has identified is one which has a strong prospect of success:

(i) for the original appellant; or
(ii) for the Secretary of State, where the ground relates to a decision which, if undisturbed, would breach the United Kingdom’s international Treaty obligations; or

(b) (possibly) the ground relates to an issue of general importance, which the Upper Tribunal needs to address.”
16. Headnote (i) of Durueke states: “…if permission is granted on a ground that has not been raised by the parties, it is good practice and a useful aid in the exercise of self-restraint for the permission judge to indicate which aspect of head-note 3 of AZ applies.”
17. It is true that, in this case, the permission Judge did not follow the guidance in Durueke by stating the basis on which they were granting permission on a ground that had not been raised by the parties. However, the fact remains that permission was granted on that ground, and I consider that I am therefore bound to consider it (which is what happened in both AZ and Durueke, notwithstanding that, in both cases, the Tribunal expressed serious reservations about the grounds that had been identified by the permission Judge).
18. In considering this ground, I remind myself that a conclusion that a trial judge has given inadequate reasons will not readily be reached: see per Lord Steyn in South Buckinghamshire District Council v Porter (No 2) [2004] UKHL 33, [2004] 1 WLR 1953 at §36:
“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”
19. The Judge’s analysis of the credibility of the Appellant’s claimed account of his pre-flight activities comprised detailed findings at §§24-146 of their decision, under a series of sections respectively titled: “Sufficiency of detail”; “Internal consistency”; “External consistency”; “Plausibility”; “Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004”; “The Appellant’s presentation as a witness”; and “Conclusions on credibility”.
20. As Ms Khan developed it, this ground concerns the section of the Judge’s decision titled “Internal consistency”. The Judge started by considering a number of adverse credibility points raised by Respondent and found that none of them were made out (§§32-63). They then proceeded to consider four further point that they had identified for themselves (§64), as follows:
a. First, the Appellant’s account of how his grandfather acquired the disputed land had been inconsistent: in his screening interview he said his grandfather bought the land; in his asylum interview he said his grandfather took the land by force because he was a feudal lord; and in his witness statement he said his grandfather was awarded the land by the government (§§65-75). The Judge concluded at §75:

“It follows that, although I accept that there are plausible explanations for the said inconsistencies, they are not without difficulty, and I am not obliged to accept them uncritically. Whether I do or not – and whether or not I draw any adverse inference from the said inconsistencies – depends upon my assessment of the evidence as a whole.”

b. Second, the Appellant’s account of who his persecutors were had been inconsistent: in his asylum interview he said he was being persecuted by an entire village whereas in his witness statement he named two specific tribes (§§76-86). In cross-examination, the Appellant explained the inconsistency as follows: “These two families are big families, and they control the whole village“ (§81). The Judge concluded at §86:

“It follows that, whilst the Appellant’s explanation for the said inconsistency cannot be said to be inherently implausible, I have very great difficulty with it. Whether or not I accept that explanation – and whether or not I draw any adverse inference from the said inconsistency – depends upon my assessment of the evidence as a whole.”

c. Third, the Appellant’s account of what had happened to his uncles had been inconsistent: in his screening interview he said they had disappeared; his answers in his asylum interview suggested that they were they first kidnapped and then killed at a later stage; in his witness statement he said they had been killed immediately when they were attacked (§§87-98). In cross-examination, the Appellant explained the inconsistency as follows: “… at the time I was aware that they were kidnapped, and my father took me away, that’s what I knew at the time. When my father hid me. Later my father told me they told me they had been killed” (§97). The Judge concluded at §98: “I find that the said inconsistencies justify an inference that the Appellant’s evidence with regards to the incident in 2015 is unreliable. Whether or not I choose to draw that inference depends upon my assessment of the evidence as a whole.”

d. Fourth, there were anomalies in the Appellant’s account in that, in his asylum interview, he had referred to having been attacked 6 or 7 times including having been attacked with knives leaving scars on his hands and legs, yet he had only particularised a single attack which was apparently less serious (at least terms of the physical injuries sustained by the Appellant) (§§104-6). The Judge concluded at §106: “These anomalies cause me to regard the Appellant’s account of what had happened to him as being somewhat suspect. However, what I make of them ultimately depends upon my assessment of the evidence as a whole.”
21. I accept that, at §§75, 86, 98 and 106, the Judge did not reach their final conclusions on what they made of these four issues in terms of the assessment of the credibility of the Appellant’s account (albeit that it is quite clear that they were matters that the Judge considered capable of weighing against him in that regard).
22. In such circumstances, I might have had concerns about the Judge reasoning on these four issues if they had not returned to them in the section of their decision titled “Conclusions on credibility”, and clearly weighed them in the balance against the Appellant as follows:
“143. I have found that the core of the Appellant’s account is relatively clear, and that it has remained broadly consistent throughout. I have also found that there is nothing inherently implausible in the core of the Appellant’s account, and that it derives some support from the Shkoi Kurdistan article. Those considerations, taken cumulatively, exert a certain pull in favour of the Appellant, or a certain “positive” pull.

144. On the other hand, I have found that the nature and level of the information provided by the Appellant does not demonstrate a reasonable depth of personal knowledge or experience, having regard to all underlying factors. I have also found that there are a number of apparent inconsistences, omissions and anomalies in the Appellant’s account. Whilst I have acknowledged that some of these can be plausibly explained, I have concluded that the said explanations are not entirely satisfactory. I have also found that there are inconsistencies between the Appellant’s account and the Shkoi Kurdistan article. In addition, I have noted that the Appellant has failed to produce any evidence of provenance in respect of the said article, or any evidence in support his claimed to have been stabbed and to have scarring on his hands and legs. No explanation has been advanced for either failure, and none is obvious. I have also expressed great difficulty in understanding how the putative persecutors could hope to reclaim the land by wiping out the Appellant’s family. Finally, I have noted concerns about the presentation of the Appellant as a witness. Those considerations, taken cumulatively, exert a very strong pull against the Appellant, or a very strong “negative” pull.

145. I now come to look at everything in the round. When I do, I find that the positive pull exerted by the considerations that I have identified, is wholly insufficient to effectively counteract the negative pull that I have described. Indeed, that negative pull is so strong that I find that I cannot be satisfied, even to the lower standard of proof, that any part of the Appellant’s account of the events that led to his departure from Iraq is worthy of credence. I reject that claim in its entirety.” [Emphasis supplied]
23. I am satisfied that the Judge found that each of the four issues they identified in the “Internal consistency” section of their decision weighed against the Appellant in their overall assessment of the credibility of his account, i.e. that they were all damaging to its credibility. The Judge’s reasons for this were intelligible and adequate, and enable the reader clearly to understand why they considered these issues to be damaging to the credibility of the Appellant’s account. I accept Ms Young’s submission that, on carefully scrutiny of the decision as a whole, there is nothing in this ground of appeal.
Ground 1: failure to take account of material considerations
24. I consider that the error of law alleged in Ground 1 is not made out for the following reasons:
a. First, this ground rests on the premise that when the Appellant said in cross-examination “At the time, I was aware that they were kidnapped, and my father took me away, that’s what I knew at the time. When my father hided me, and later my father told me that they have been killed“ (per counsel’s note), what he meant was that, at first, he believed his uncles had been kidnapped at the time of the attack but, later, his father told him that his uncles had in fact been killed at the time of the attack. However, I do not accept that this meaning is tolerably clear from what the Appellant actually said. On a viable, alternative reading of what was actually said, it is quite possible that the Appellant’s uncles could have been kidnapped first and then killed at a later stage. In such circumstances, and given that the Appellant’s account had already been materially inconsistent in respect of this element of his account (see above), the Judge was perfectly entitled to conclude that it was “vague and lacking in clarity” (§28).

b. Second, in considering this ground, I remind myself that “An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it” (Volpi v Volpi [2022] EWCA Civ 464, [2022] 4 WLR 48, per Lewison LJ at §2(iii)). In my view, there is no compelling reason to consider that the Judge did not take into account the Appellant’s explanation in cross-examination. Indeed, quite the contrary: the Judge did, expressly, take into account the Appellant’s explanation at §97 (albeit that this was in a different section of their decision). Considering the decision as a whole, I am entirely satisfied that the Judge took the Appellant’s explanation in cross-examination into account in concluding that this element of his account was vague and lacking in clarity.
Ground 2: procedural irregularity
25. In considering this ground, I remind myself that, in general, as a matter of fairness, a contradiction or alleged problem with the evidence of a witness must be put to them so that they are given an opportunity to explain it. However, the rule must not be applied rigidly; its application depends upon the circumstances of the case as the criterion is the overall fairness of the trial (see TUI UK Ltd v Griffiths [2023] UKSC 48, [2025] AC 374, per Lord Hodge at §70).
26. I consider that the error of law alleged in Ground 2 is made out for the following reasons.
a. First, this rule applies with particular force where, as here, it is proposed to disbelieve the witness (TUI, §§60, 70).

b. Second, it is clear from counsel’s note of the Appellant’s evidence, which the Respondent accepts is accurate, that the apparent inconsistency in his account of how his grandfather acquired the disputed land was not raised with the Appellant during his oral evidence. The Respondent does not seek to dispute this.

c. Third, this apparent inconsistency has never been raised by the Respondent as an adverse point. She did not raise it in her decision letter, or her First-tier Tribunal review, or at the First-tier Tribunal hearing (the latter is clear from the fact that the Judge expressly stated at §64 that they had identified the point for themselves). The Respondent does not seek to dispute this.

d. Fourth, this was not such an obvious inconsistency that it would have been readily apparent to the Appellant on the face of the papers (indeed, it can be assumed that it was not readily apparent to the Respondent, otherwise she would have sought to rely upon it).

e. Fifth, in their analysis on this point, the Judge speculated as to possible explanations that the Appellant might have provided and concluded at §75 that:

“It follows that, although I accept that there are plausible explanations for the said inconsistencies, they are not without difficulty, and I am not obliged to accept them uncritically. Whether I do or not – and whether or not I draw any adverse inference from the said inconsistencies – depends upon my assessment of the evidence as a whole.”

However, despite recognising that potentially plausible explanation existed (albeit that they were not without difficulty), the Judge proceeded to weigh this apparent inconsistency in the balance against the Appellant in the overall assessment of the credibility of his account (at §144, and see also my analysis in respect of Ground, 1 above).

f. Sixth, I remind myself that asylum proceedings are “of such moment that only the highest standards of fairness will suffice” (SSHD v Thirukumar [1989] EWCA Civ 12, [1989] Imm AR 402, per Bingham LJ (as he then was) at §46). I am satisfied that, in all of the circumstances, where this apparent inconsistency was one of the reasons that he was disbelieved, fairness required the Appellant to be given a reasonable opportunity to explain it. The denial of this opportunity undermined the overall fairness of the proceedings.
27. I consider the question of whether this was a material error below.
Ground 3: misdirection of law
28. As I have said, Ms Khan said that she was not pursuing this ground with force. In my judgment, she was right not to have done so. There is nothing at all in this ground, for the following reasons:
a. First, Ms Khan was correct to concede that §339L Immigration Rules does not impose any legal requirement upon the Tribunal to give appellants the benefit of the doubt – i.e. to accept that they have provided a credible account – in finely-balanced cases. It provides:

“339L. It is the duty of the person to substantiate the protection claim or substantiate their human rights claim. Where aspects of the person’s statements are not supported by documentary or other evidence, those aspects will not need confirmation when all of the following conditions are met:
(i) the person has made a genuine effort to substantiate their protection claim or substantiate their human rights claim;
(ii) all material factors at the person’s disposal have been submitted, and a satisfactory explanation regarding any lack of other relevant material has been given;
(iii) the person’s statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to the person’s case;
(iv) the person has made a protection claim or made a human rights claim at the earliest possible time, unless the person can demonstrate good reason for not having done so; and
(v) the general credibility of the person has been established.”

The legal effect of §339L Immigration Rules is that “where certain criteria are met, corroborative evidence is not required” (MAH (Egypt) v SSHD [2023] EWCA Civ 216, [2023] Imm AR 713, per Singh LJ at §77). It is quite clear that it does not impose a legal requirement to accept the credibility of an asylum claimant’s account in finely-balanced cases.

b. Second, in considering this ground, I remind myself that “Correctly viewed, [the benefit of the doubt] adds nothing of substance to the lower standard of proof, which as construed by the Court of Appeal in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449, affords a “positive role for uncertainty” (KS (benefit of the doubt) [2014] UKUT 00552 (IAC), headnote (3)).

c. Third, relatedly, it is not suggested that there was any legal error in the Judge’s application of the lower standard in this case.

d. Fourth, Ms Khan’s submission that this was such a finely-balanced case that the Judge could have given the Appellant the benefit of the doubt here is a straightforward disagreement with the Judge’s analysis. Perhaps they could have done, but it was not an error of law not to do so. In truth, this ground is nothing more than a disagreement with the Judge’s assessment that the factors weighing in the Appellant’s favour were significantly outweighed by the factors weighing against him.
Ground 4: taking account of an immaterial consideration
29. I consider that the error of law alleged in Ground 4 is made out for the following reasons:
a. First, in considering this ground, I remind myself that “it is usually unreliable and often dangerous to draw a conclusion from a witness’s demeanour as to the likelihood that the witness is telling the truth” (SS (Sri Lanka), per Leggatt LJ at §36).

b. Second, the Judge included a section titled “The Appellant’s presentation as a witness” at §§138-42 and returned to the theme in their conclusions at §144, listing among the factors that weighed against the Appellant in the overall assessment of the credibility of his account the following: “I have noted concerns about the presentation of the Appellant as a witness”.

c. Third, while I acknowledge that, in substance, the section titled “The Appellant’s presentation as a witness” comprised criticisms of the content of the Appellant’s evidence rather than his demeanour, the Judge did make a specific reference to the Appellant’s “demeanour” at §21 of their decision, in finding the Appellant had not established a genuinely-held subjective fear of return in respect of the tribal feud limb of his claim for the purposes of the Refugee Convention:

“For the reasons set out below, I reject the Appellant’s account of the events that led to his departure from Iraq. Since there is no independent evidence before me to suggest that he in fact fears persecution for reasons of a land dispute involving his own and another family, and I saw nothing in his demeanour to suggest otherwise, I find that I cannot be satisfied, on the balance of probabilities, that the Appellant does in fact fear persecution in Iraq as a result of his membership of a particular social group. It follows that he does not meet the condition in section 32(2)(b) of the 2002 Act, in so far as the first aspect of his protection claim is concerned.” [Emphasis supplied]

d. Fourth, on balance, I consider that the overall impression given is that the Judge did take account of the Appellant’s demeanour, i.e. his appearance and behaviour as a witness, in concluding that he was not telling the truth. I am therefore satisfied that they took account of an immaterial consideration in rejecting the credibility of his account.
30. I consider the question of whether this was a material error below.
Materiality
31. Individually and cumulatively, I consider that the errors of law identified above were material. I acknowledge that the Judge gave many further reasons for rejecting the credibility of the Appellant’s account and that they have not been impugned. However, I consider that it cannot be said that any reasonable Tribunal would inevitably have come to the same conclusion on the credibility of the account if these errors had not been made (see SSHD v AJ (Angola) [2014] EWCA Civ 1636 per Sales LJ, as he then was, at §49).
Conclusion
32. I allow the appeal on Grounds 2 and 4.
33. As I have said, the representatives agreed that, if I were to find a material error of law in the Judge’s rejection of the credibility of the Appellant’s account, then the entirety of the decision would need to be set aside with no findings preserved because that conclusion had materially impacted upon all other elements of the decision. I agree, and I therefore set aside the decision of the First-tier Tribunal in its entirety.
34. The representatives also agreed that, in such circumstances, the appropriate course for remaking would be for the appeal to be remitted to the First-tier Tribunal, given the breadth of fact-finding that would be required. Again, I agree. Having considered the Practice Direction and Practice Statement, and also having regard to the guidance in AEB v SSHD [2022] EWCA Civ 1512, [2023] 4 WLR 12, I consider that this is a case in which the nature and extent of the necessary fact-finding means it is appropriate to remit the appeal to the First-tier Tribunal for a de novo hearing. I further note that this is a case in which one of the reasons that the Appellant’s appeal has been allowed is that there was a procedural irregularity in the First-tier Tribunal proceedings.
Notice of Decision
The decision of the First-tier Tribunal contains material errors of law and is set aside in its entirety.
The appeal is remitted to the First-tier Tribunal for a de novo hearing before a differently constituted Tribunal.

B. Hoshi

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

29 October 2025