Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002069

First-tier Tribunal No: PA/00922/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 11th of July 2025

Before

UPPER TRIBUNAL JUDGE GREY
DEPUTY UPPER TRIBUNAL JUDGE HARRIS

Between

HMS
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Ahmad of Counsel instructed by SH Solicitors Ltd
For the Respondent: Ms Ahmed, Senior Home Office Presenting Officer

Heard at Field House on 26 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.

DECISION AND REASONS

1. The appellant appeals against the decision dated 26 April 2025 by First-tier Tribunal Judge Head (“the FTTJ”) dismissing his appeal against the decision dated 20 February 2025 of the respondent refusing his protection claim.
2. This appeal comes before us to decide whether there is an error of law in the decision of the FTTJ. If we determine that the decision of the FTTJ does contain an error of law, we need then to decide whether to set aside the decision. If we set aside the decision, we must then decide whether this Tribunal should remake the decision or whether we should remit the appeal to the First-tier Tribunal to do so.
The First-tier Tribunal Decision
3. In her decision the FTTJ first sets out concisely background and preliminary matters, the legal framework and then evidence. Then she makes her findings.
4. At paragraph 12 of the decision the FTTJ states she is aware of the provisions of s.8 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 and that she bears in mind those provisions “when assessing the appellant’s credibility”.
5. The FTTJ finds that the appellant’s failure to claim asylum in the various safe countries through which he travelled before coming to the UK engages s.8 of the 2004 Act and “damages his credibility accordingly”. The FTTJ concludes paragraph 12 of the decision by stating:
“Notwithstanding this finding, this is clearly not determinative of the appellant’s claim and I have gone on to consider the substance of his claim.”
6. The FTTJ goes on to confirm that she has considered the appellant’s credibility and the plausibility of his account, in a country context, by considering relevant case law and other applicable country material including the CPIN relied upon by both parties.
7. Then at paragraph 15 of the decision FTTJ gives the finding that, having considered the evidence in the round, the appellant’s account of being at risk from N’s family is not even reasonably likely to be true. The FTTJ notes that it is the appellant’s claim that the family never looked to harm or threaten the appellant prior to N’s marriage to another man. The FTTJ does not find that even on the lower standard N harmed herself but, even if this were true, there was “simply no sensible basis” to find that N’s family would blame the incident on the appellant.
8. The FTTJ reiterates this analysis of the appellant’s claim in the next paragraph of the decision: having considered the entirety of the evidence the appellant’s account was wholly lacking in credibility. There was no sensible basis for N’s family to have shown any adverse interest in the appellant given that N was married to her cousin after the appellant’s marriage proposal was rejected and no honour issue had ever been raised.
9. In light of her credibility findings the FTTJ also concluded the appellant had not established that he had a characteristic that could cause him to fear persecution as a member of a particular social group. It was not demonstrated as reasonably likely that the appellant would be persecuted for a Convention reason on return to Iraq.
10. The FTTJ dismissed the appeal on asylum grounds and, for similar reasons even when applying the lower standard of proof, the appeal on Articles 2 and 3 grounds.
11. The FTTJ went on to consider documentation issues under humanitarian protection grounds as well as Article 8 matters. However, these are not the subject of the grounds of appeal argued before us and we do not need to detail them.
The grounds of appeal
12. In the notice of application to the First-tier Tribunal for permission to appeal to this Tribunal the appellant set out three grounds of appeal.
13. Firstly, there was a failure by the FTTJ to consider a material matter with anxious scrutiny. Here the appellant focuses on the FTTJ starting her findings with consideration of s.8 of the 2004 Act.
14. It is not disputed that the FTTJ made a finding on section 8 matters which was lawfully open to her. Rather, it is argued that, despite the FTTJ correctly mentioning that section 8 is not a determinative factor, it appears from the decision that section 8 did become the determinative factor and the core of the appellant’s claim become a secondary consideration for the FTTJ. It is submitted that the FTTJ should have considered the section 8 issue subsequent to her credibility findings in relation to the core of the appellant’s claim.
15. Secondly, the FTTJ failed throughout the decision to provide adequate reasons for finding the appellant is not credible. There is no reference to any inconsistencies or implausibility with reference to any evidence and any specific credibility point for not finding the appellant credible. The material fact accepted by the respondent that A was in a relationship with N carries significant weight in the assessment of the claim. The FTTJ fails to engage properly with the evidence in the appeal including background information from the CPIN referred to at the hearing and it is unclear why it was found that the appellant’s account lacks credibility.
16. Thirdly, the FTTJ failed to consider evidence with anxious scrutiny. The adverse finding made at paragraphs 15 and 18 of the decision that the appellant’s account is not even reasonably likely to be true was based on speculation rather than an engagement with the evidence.
Grant of permission to appeal
17. In a decision dated 8 May 2025 Judge of the First-tier Tribunal Singer found the first ground to be arguable. He noted guidance given in SM (Section 8: Judge’s process) Iran [2005] UKIAT 00116 and JT Cameroon v SSHD [2008] EWCA Civ 878 and found it was arguable that, in using the phrase “I have gone on to consider the substance of [the appellant’s] claim” at paragraph 12 of her decision, the FTTJ made findings on section 8 matters which formed the starting point of the credibility assessment rather than making the required holistic, global assessment.
18. Judge Singer also considers that, while the FTTJ did set out some plausibility matters, it was also arguable that the factual findings at paragraph 15 and 16 of the decision were not adequately reasoned with reference to the evidence.
19. Judge Singer granted permission to appeal on all three grounds.
The Upper Tribunal Hearing
20. There was no consolidated bundle filed by the appellant with the Tribunal or served on the respondent for the hearing.
21. With the assistance of Mr Ahmad and Ms Ahmed, we ensured that, before submissions began, we and the parties had sight of the same following documents: the decision of the FTTJ, the First-tier Tribunal bundles of the appellant and the respondent, the grounds of appeal included in the notice of application to appeal and the grant of permission by Judge Singer.
22. It appeared that those instructing Mr Ahmad had provided him, among other documents, with a document entitled “Grounds of Appeal” that was clearly different in content to the grounds included in the notice of application to appeal and which had never been filed with either the First-tier Tribunal or this Tribunal or served on the respondent. It also appeared that the document had been drafted after the grant of permission with knowledge there was going to be an appeal hearing in this Tribunal.
23. Mr Ahmad, sensibly in our view, acknowledged that permission to appeal had only been granted by Judge Sinder as regards the three grounds submitted in the notice of application and indicated that he would be restricting himself to arguing those three grounds only.
24. Once the parties had had time to consider the documentation now assembled, they both indicated they were content to proceed. We heard the submissions of the parties.
25. In summary, Mr Ahmad, relying on the three grounds of appeal , submitted that the FTTJ was wrong to start her decision making with her finding about s.8 of the 2004 Act and in the rest of the decision placed too much weight on adverse section 8 behaviour by the appellant rather than engaging with the substance of the appellant’s protection claim and assessing it holistically. The FTTJ failed to provide adequate reasons and give proper scrutiny when rejecting the appellant’s case.
26. Ms Ahmed submitted that, while the FTTJ did start her findings with s.8 of the 2004 Act, a judge has to start somewhere with making findings. This was not an error because the FTTJ indicated in paragraphs 12 and 13 of her decision that she was giving a proper assessment to the substance of the appellant’s claim.
27. Ms Ahmed drew attention to the Court of Appeal at paragraph 21 of JT Cameroon saying that section 8 can be construed as not offending against constitutional principles and is nothing more than a reminder to fact-finding tribunals that conduct coming within the categories stated by section 8 shall be taken into account in assessing credibility. The finding under s.8 of the 2004 Act did not infect the FTTJ’s subsequent findings.
28. It was clear that the FTTJ was aware of the appellant’s relationship with N being accepted by the respondent; the FTTJ had found as a matter of common sense that the core of the appellant’s claim lacked credibility and there was no need to deal with consistencies. The appellant in his grounds had not identified any specific parts of the appellant’s evidence or the CPIN evidence that the judge failed to consider.
Discussion
29. We begin with the appellant’s first ground of appeal.
30. It is not in dispute between the parties that SM (Section 8: Judge’s process) Iran [2005] UKIAT 00116 and JT Cameroon v SSHD [2008] EWCA Civ 878 are the leading authorities for us to bear in mind when considering this ground.
31. We note that at paragraph 9 in SM Iran the Tribunal specifically rejected the submission that matters identified by s.8 of the 2004 Act should always be treated as the starting point of a decision on credibility. The Tribunal went on to say in paragraph 10 of SM Iran:
In our judgment, although section 8 of the 2004 Act has the undeniably novel feature of requiring the deciding authority to treat certain aspects of the evidence in a particular way, it is not intended to, and does not, otherwise affect the general process of deriving facts from evidence. It is the task of the fact-finder, whether official or judge, to look at all the evidence in the round, to try and grasp it as a whole and to see how it fits together and whether it is sufficient to discharge the burden of proof. Some aspects of the evidence may themselves contain the seeds of doubt. Some aspects of the evidence may cause doubt to be cast on other parts of the evidence. Some aspects of the evidence may be matters to which section 8 applies. Some parts of the evidence may shine with the light of credibility. The fact-finder must consider all these points together; and, despite section 8, and although some matters may go against and some matters count in favour of credibility, it is for the fact-finder to decide which are the important, and which are the less important features of the evidence, and to reach his view as a whole on the evidence as a whole.
32. The Court of Appeal in JT Cameroon at paragraph 14 referred to paragraph 10 of SM Iran with evident approval.
33. We also note in JT Cameroon that the Court of Appeal did not find the positioning of s.8 of the 2004 Act as the first finding in a decision as necessarily fatal: see Pill LJ at paragraph 16.
34. However, in the case before him Pill LJ was concerned that section 8 matters were given a status and a compartment of their own rather than taken into account as part of a global assessment of credibility. This was notwithstanding it being said in the decision appealed that section 8 was not a determinative factor on credibility but one of the matters to take into account when weighing the evidence placed before the judge: see Pill LJ at paragraph 16.
35. The Court of Appeal emphasizes at paragraph 19 of JT Cameroon that a global assessment of credibility remains required.
36. On the basis of this case law, while we consider that it is usually preferable for a judge to be seen to consider substantial credibility disputes in her decision making before making any finding under s.8 of the 2004 Act, we are not persuaded by any submission that it is an error of law in itself simply for a judge to begin the assessment of credibility with a finding on section 8 matters. What matters is whether the reader of that judge’s decision sees that the required global assessment of credibility is carried out.
37. The submission of the respondent is that this can be seen in what the FTTJ says at the end of paragraph 12 and in paragraph 13 of the decision and that this frames the subsequent findings made by the FTTJ as a global assessment of the appellant’s claim.
38. However, bearing in mind the case law, we are not persuaded that describing a finding, particularly one placed at the start of a set of findings, as “not determinative” clearly establishes that that finding is not being treated as having an important effect on how other matters of credibility are assessed. A finding that is not determinative may still play a significant role, if not the significant role, in assessing substantial credibility issues and be the prism through which all subsequent issues are considered. We find this to be so even where there is reference in the decision to considering all relevant matters.
39. Further, we find this is particularly so where a judge has not expressly directed herself to the effect that that, even where s.8 of the 2004 Act applies, she should look at the evidence as a whole and decide which parts are more important and which less and that section 8 does not require the behaviour to which it applies to be treated as the starting-point of the assessment of credibility.
40. Accordingly, our concern is that, as read, the finding on s.8 of the 2004 Act was given over all in the FTTJ’s decision a status of its own rather than taken into account as part of a global assessment of credibility. We find this amounts to a material error of law by the FTTJ.
41. Turning to the second ground, we consider the respondent is correct in the submission that the FTTJ went to the core of the substantial claim before her and found it essentially lacking credibility.
42. We are not persuaded that it is necessarily an error of law for a judge to find that in the particular circumstances of a case there is one core reason for rejecting in substance the credibility of a claim. However, we consider adopting such an approach does need a clear, if only concise, explanation about why any other matters supporting or damaging credibility do not require consideration.
43. We note that the appellant has not identified in the grounds any particular relevant matter in the country background evidence or elsewhere, whether about honour crimes or any other matter, that the FTTJ failed to consider. Seeking to rectify this, Mr Ahmad in his submissions took us to passages in the CPIN which deal in the most general detail about honour crimes in Iraq. Yet it appears to us that, on the appellant’s account, this appeal does not involve infringements of honour, perceived or actual, by the appellant but is rather an instance of a family which is distressed at the self-harm of N, fixing blame, even if irrationally, on her previous boyfriend, the appellant. We are not persuaded that the FTTJ has erred over her consideration of the background material as suggested by the appellant.
44. Nevertheless, we note how the FTTJ summarises the appellant’s claim at paragraph 4 of the decision:
The appellant asserts that he is at risk on return to Iraq on account of his relationship with N. The appellant claims that N was forced to marry her cousin and set herself on fire; as a consequence, N’s family blame the appellant and seek to cause him harm.
45. In these circumstances, we do consider it a relevant matter to the assessment of the core of the appellant’s claim that the respondent was not disputing that there had been a relationship between the appellant and N. We consider there does need to be clear explanation why this does not affect in any way the rejection of credibility as a whole. The FTTJ does not provide this. We find this to be a material error.
46. Finally, there is the third ground.
47. We consider that this ground, framed in very general terms, did not disclose any error in law by the FTTJ in addition to those identified under the first and second grounds.
Setting aside and Remaking
48. We have found that under the first and second grounds of appeal the FTTJ has made material errors of law. We find that the decision of the FTTJ should be set aside and remade.
49. The normal course of action is for this Tribunal to remake the decision even if it requires further findings of fact to be made on the evidence. However, given that fresh findings will need to be made in relation to the credibility of the claim we agree with the parties that it is appropriate for this appeal to be remitted to the First-tier Tribunal to be heard afresh.

Notice of Decision
The decision dated 26 April 2025 of First-tier Tribunal Judge Head contains material errors of law. We set aside that decision and direct that the appeal be remitted to the First-tier Tribunal for a fresh hearing before any judge except for Judge Head.

M Harris

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

9 July 2025