Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-002039

First-tier Tribunal No: PA/55504/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

3rd June 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE BURGHER

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SK

Respondent

Representation:
For the Appellant: Mr S Walker, Senior Presenting Officer
For the Respondent: Mr D Bezini (Counsel), D&A Solicitors

Heard at Field House by CVP on 14 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 them. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Background
1. Although the appeal was brought by the Secretary of State for the Home Department (“SSHD”) hereinafter, for clarity, the parties are described as they were before the First-tier Tribunal, that is SK as the Appellant and SSHD as the Respondent.
2. The Appellant, SK, is a citizen of Iraq, born on 18 June 1994. The Appellant sought asylum on the grounds of religion, namely converting from Islam to Christianity and threat from a woman’s family. He asserted that he had converted to Christianity and feared persecution on return from his own family and the wider Muslim community in Iraq. The Appellant stated that he would also face harm from the family of a woman who were said to believe that he had engaged in an improper relationship with giving rise to a risk of retaliatory harm to him. The Judge allowed the Appellant’s appeal.
3. The SSHD appeals appeal against the decision of First-tier Tribunal Judge Freer (“the Judge”) promulgated on 26 March 2025, by which the Respondent's appeal was allowed on asylum and humanitarian protection grounds.
4. Permission to appeal was granted by First-tier Tribunal Judge Saffer on 7 May 2025 on grounds that:
(i) the judge erred in refusing an adjournment;
(ii) the judge acted unfairly in the conduct of the hearing; and
(iii) the judge reversed the burden of proof, in particular at paragraph [33] of the determination.
Anonymity Order
5. The Judge made an anonymity order. There was no request for the anonymity order to be set aside. I conclude that the Appellant’s rights to international protection outweigh the Article 10 rights of the public to know his identity as a party to these proceedings.
Ground 1
6. The SSHD submits that the Judge erred in refusing an adjournment sought on the basis that the Presenting Officer was unwell.
7. The Judge directed himself expressly by reference to the applicable legal framework and addressed the question of fairness to all parties. He recorded the reasons given for the adjournment request, including the assertion of illness, and noted the absence of any supporting medical evidence. He further considered the circumstances of the listing, the availability of representation, the potential prejudice to the appellant, and the delay already inherent in the proceedings.
8. The Judge had regard to Nwaigwe (adjournment: fairness) [2014] UKUT 418 (IAC) and did not treat the application perfunctorily but engaged in a structured assessment of the relevant considerations and provided detailed reasons for refusing the application (see paragraphs [6]-[14]).
9. The decision fell well within the ambit of case management discretion. It is settled that such decisions will not be interfered with unless they are outside the range of reasonable responses or result in unfairness, see SH (Afghanistan) v SSHD [2011] EWCA Civ 1284. Neither is established here.
10. The SSHD has not demonstrated that the refusal deprived her of a fair hearing. I observe that even now wo evidence has been produced to substantiate the asserted illness, nor to explain what steps, if any, were taken to secure alternative representation.
11. Therefore, there is no material error of law established in respect of Ground 1.
Ground 2
12. The SSHD contends that the Judge acted unfairly by permitting counsel to ask questions which might otherwise have been put by the Presenting Officer.
13. The Judge recorded that he had read the papers carefully and was aware of the issues requiring exploration. In circumstances where one party was unrepresented, it was not only permissible but appropriate for the Judge to ensure that the relevant issues were properly ventilated.
14. The Tribunal is not confined to a purely adversarial role. It is well-established that a judge may ask questions or manage the questioning to ensure that material issues are addressed fairly, particularly in protection appeals where the Tribunal bears responsibility for reaching a lawful determination and is not limited to a strictly adversarial function. See AM (Afghanistan) v SSHD [2017] EWCA Civ 1123. The key remains fairness.
15. There is no indication that the judge descended into advocacy, or that the conduct of the hearing gave rise to unfairness. Mr Walker properly accepted that judicial questioning in such circumstances is not unusual.
16. There is no identification of any specific issue which was not explored, nor any prejudice said to have arisen from the manner in which the hearing was conducted.
17. Therefore, there is no material error of law established in respect of Ground 2.
Ground 3
18. The most forcefully put submission advanced by the SSHD concerned paragraph [33] of the determination, where the Judge observed that the SSHD had had time to verify aspects of the Appellant's account regarding the existence of Church of Mary in Iraq had not done so. It is said that this amounts to a reversal of the burden of proof. Paragraph 33 states:
I accept that two categories of people could harm him for his conversion. First there are very strict and militant Muslims including Imams in his own family. I saw no reason to doubt that. Second, most people in his part of Iraq are Sunni Muslims and will not tolerate Christians; the country documents show that land is often stolen and other forms of dangerous persecution can happen to Christians who are now a small minority indeed in his country. I accept that he has rejected this harshness and was drawn to the more appealing attitudes of the religious people he met at the Church of Mary in his country. There are churches dedicated to Mary in Kurdistan locations such as Dohuk and Zakho. His evidence is consistent with country information. To put it another way the respondent had years to check this point and has not said his church in Iraq does not exist. The respondent could have made contact through the Foreign & Commonwealth Office with his friends D and T who he met in 2020 and are Christians. I have no reason to doubt their existence.
19. The correct approach is to consider the decision as a whole. When so read, it is clear that the Judge correctly directed himself that the burden of proof lay upon the Appellant (see the legal framework at paragraphs [26]-[28]) and conducted his assessment accordingly.
20. Prior to paragraph [33], Judge made detailed and positive findings on credibility. In particular, he found the Appellant's account of conversion to be "vivid and persuasive" (paragraph [31]) and accepted that the Appellant is a genuine convert who practises his faith.
21. The Judge further considered the objective evidence of conditions in Iraq and found it to be consistent with the Appellant's account (paragraph [33]).
22. Against that background, the sentence following ‘To put it another way’ at paragraph [33] is properly read as an ancillary observation, not as a determinative step in the reasoning. The Judge did not state, nor imply, that the Appellant succeeded because the SSHD had failed to disprove his claim. It is clear that he observed that there was no evidence before him to undermine findings he had already reached. The phrase "to put it another way" reinforces that the judge was restating his conclusion, not altering the legal burden.
23. There is no indication that the Judge required the SSHD to prove that the church did not exist or that the Appellant's account was false. Instead, he accepted the Appellant's evidence on its merits and concluded that he had no reason to doubt their existence.
24. Whilst the phrase ‘to put in another way’ may have been unnecessary, this cannot amount to a material error of law in these circumstances. The Judge's findings on credibility and risk were independently and adequately reasoned elsewhere in the determination.
25. Therefore, there is no material error of law established in respect of Ground 3.
Conclusion
26. The Judge directed themselves appropriately in law, gave adequate reasons for its findings, and conducted the hearing fairly and none of the grounds disclose a material error of law.
Notice of Decision
1. The appeal is dismissed.
2. The decision of the First-tier Tribunal Freer did not involve the making of a material error of law, and so stands undisturbed.
3. The anonymity direction made below is preserved.

Benjimin Burgher

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

18 May 2026