Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001959

First-tier Tribunal No: PA/62103/2024
LP/01416/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 30th of January 2026

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

MS
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr MNA Hamid, counsel instructed by Primus Solicitors
For the Respondent: Mr K Ojo, Senior Home Office Presenting Officer

Heard at Field House on 26 January 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
Introduction
1. The Secretary of State has been granted permission to appeal the decision of the First-tier Tribunal allowing the appellant’s protection appeal following a hearing which took place on 24 March 2025 in the Virtual Region. However, for ease of reference hereafter the parties will be referred to as they were before the First-tier Tribunal.
2. Permission to appeal was granted by the First-tier Tribunal on 1 May 2025.
Anonymity
3. I have continued the anonymity order made by the First-Tier Tribunal. I have considered the public interest in open justice but conclude that it is outweighed by the importance of facilitating the discharge of the United Kingdom’s obligations to those claiming international protection because of the need for confidentiality.
Factual Background
4. The appellant is a national of Iraq, of Kurdish ethnicity, now aged twenty-five. He entered the United Kingdom in August 2022 and applied for asylum the same month. The appellant’s protection claim is based on political activity in support the New Generation Movement (NG) which he states brought adverse attention from the Iraqi authorities. He further relies on sur place activity in the United Kingdom.
5. By way of a decision dated 15 April 2024, the Secretary of State refused the appellant’s protection claim. Essentially, the credibility of the appellant’s claim was rejected owing to inconsistencies, a lack of detail/knowledge and implausible aspects to his account. The respondent further concluded that the appellant’s return to Iraq was feasible despite a lack of CSID/INID, with reference to paragraphs 3.4.1 to 3.4.11 of the Country Policy and Information Iraq: Internal relocation, civil documentation and returns.
The decision of the First-tier Tribunal
6. At the hearing before the First-tier Tribunal, there was agreement by the parties as to the issues in dispute. They were credibility, whether the appellant’s sur place activity would put him at risk, whether the appellant held a genuine political belief and whether he could be redocumented within a reasonable period. After a lengthy discussion of the evidence, the judge concluded, on the balance of probabilities, that it was likely that the appellant was a low-level supporter of NG but that he was not detained and that his activities did not come to the adverse attention of the Iraqi authorities [46]. The judge accepted that the appellant had engaged in low-level sur place activities in the United Kingdom, motivated by genuine belief, but that he was ‘one of the crowd, nothing more.’ [58]. While the refugee Convention ground of appeal was dismissed, the appeal was allowed on Humanitarian Protection grounds, owing to the lower standard of proof.
The appeal to the Upper Tribunal
7. The grounds of appeal can be summarised as follows:
Ground one – A failure to make clear findings, on the balance of probabilities, on the issue of whether the appellant had demonstrated that he did, in fact, fear persecution for a Convention reason, applying JCK (Botswana) [2024] UKUT 100 (IAC) (13 March 2024). It is argued that given that the judge did not accept significant parts of the appellant’s claim, inadequate reasons were provided for accepting that the appellant had demonstrated a subjective fear on return.
Ground two – that the judge misdirected themselves on the remainder of the protection claim owing to a failure to resolve the key issues, in making contradictory findings and lowering the evidential standard when addressing the Humanitarian Protection element of the claim.
8. Permission to appeal was granted on the basis sought, with the judge granting permission making the following remarks.
Having considered the decision for myself, I am inclined to agree. There is a great deal of narrative and comment which obfuscates the reasoning. It makes the findings difficult to understand with any clarity. For this reason, I consider it to be arguable that the Judge has not given adequate reasons for their findings.
9. The appellant filed no Rule 24 response.
The error of law hearing
10. The matter comes before the Upper Tribunal to determine whether the decision contains an error of law and, if it is so concluded, to either re-make the decision or remit the appeal to the First-tier Tribunal to do so. A bundle was submitted by the Secretary of State containing, inter alia, the core documents in the appeal, including the appellant’s and respondent’s bundles before the First-tier Tribunal. The appellant uploaded a skeleton argument shortly before the hearing.
11. The hearing was attended by representatives for both parties as above. Both representatives made brief submissions, and the conclusions below reflect those arguments and submissions where necessary.
12. At the end of the hearing, I announced that the decision of the First-tier Tribunal contained no material error of law.
Discussion
13. Mr Ojo sought the preliminary view of the Upper Tribunal before making his submissions. Having been informed that the provisional view of the Tribunal was that the judge had made it clear that their findings as to the factual basis of the appellant’s pre-flight claim differed depending on the standard of proof employed and therefore the judge may not have erred.
14. Mr Ojo then stated that he would make a single submission, having discussed the matter with counsel for the appellant. That submission was that the judge should have ‘gone through’ the appellant’s evidence in more detail as to his claim to have been tortured and detained when making findings on the lower standard applicable for Humanitarian Protection. He made a passing reference to MAH (Egypt) [2023] EWCA Civ 216, by analogy, arguing that in a two-stage test, the Court’s guidance was that if the issue of Convention Reason was arrived at, the judge should look at the case again with reference to background country evidence. He recognised that the situation in the instant appeal was different but emphasised that the judge had given only brief reasoning as to why the appeal was allowed under HP, whereas under the Convention claim the judge had highlighted credibility issues and should have gone into same level of detail when assessing HP.
15. Restraint should be exercised when examining the reasons given by the First-tier Tribunal Judge for their decision. There are several authorities on the point, but I particularly have in mind what Lord Hamblen said in HA (Iraq) [2022] UKSC 22, at [72] that:
It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. In particular:
i. They alone are the Judges of the facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. It is probable that in understanding and applying the law in their specialised field the tribunal will have got it right. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently – see AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 678 per Baroness Hale of Richmond at para 30.
ii. Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account – see MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49; [2011] 2 All ER 65 at para 45 per Sir John Dyson.
iii. When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out – see R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19; [2013] 2 AC 48 at para 25 per Lord Hope.
16. It is notable that Mr Ojo did rely on or refer to the grounds of appeal during his submissions, albeit he made no concessions. Nor did he submit that the judge misapplied JCK (Botswana). Thus, the grounds were reduced to a reasons challenge. It is abundantly clear that the judge correctly used the balance of probabilities standard to assess the asylum claim. When discussing the HP claim at [65] onwards, the judge records the submission made that were the judge to reject the appellant’s protection claim on the balance of probabilities, his account could be considered credible to the level of reasonable likelihood. Thereafter, after an appropriate self-direction as to the applicable standard of proof under the HP limb, the judge says the following:
67. Having considered the Appellant’s account with caution, I am just about persuaded to the standard of reasonable likelihood he has told the truth about what happened in Iraq. A distinction can be drawn between this and the asylum limb of the claim, due to the lower evidential standard which applies here. The same concerns as to credibility apply. As do the more positive, consistent elements set out. Taken together, though I am not without doubts there aspects of the narrative – support the NG, generally having been detained and tortured – are to my mind reasonably likely to be true.
68. I have when considering the risk of serious harm the sur place aspect of the account. My conclusions remain as they were, with one crucial difference. Having found the Appellant is an NG supporter, that he his sur place activity in the UK represents genuine belief, there can be no expectation he conceal that from the Iraqi authorities on return. Of itself, the activity demonstrated would not be enough to generate sufficient risk whereby either an asylum or humanitarian claim is sustained. However, when combined with my findings – at least in humanitarian terms – about what happened in Iraq, the continued sur place behaviour would only add to the danger faced.
17. The respondent’s complaint amounts to little more than disagreement with the outcome of the appeal. The judge’s application of the varying standards of proof was without legal error. Furthermore, the judge was entitled to simply refer to the copious findings that she made on the asylum aspect without repeating them under the HP aspect. What the judge was required to do was to explain why their conclusion was different on each aspect. This the judge did at [67-68].
18. The judge’s reasons grapple with the difficult exercise undertaken in this case and acknowledge the credibility issues in relation to the protection claim, many of which have been selected for inclusion within the grounds. While the explanation could have been more fulsome, what the judge said was adequate. A desire for more detail does not justify setting aside what was a legally sound, careful and detailed decision.
Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
The decision of the First-tier Tribunal shall stand.

T Kamara

Judge of the Upper Tribunal
Immigration and Asylum Chamber

27 January 2026

NOTIFICATION OF APPEAL RIGHTS

1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal’s decision was sent:

2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).

3. Where the person making the application is in detention under the Immigration Acts, the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).

4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).

5. A “working day” means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.

6. The date when the decision is “sent’ is that appearing on the covering letter or covering email.