Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002077

First-tier Tribunal Nos: PA/56775/2024
LP/11860/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

18/11/2025

Before

UPPER TRIBUNAL JUDGE RIMINGTON
DEPUTY UPPER TRIBUNAL JUDGE PHILLIPS

Between

K M
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr A Khan, instructed by Kings Law Solicitors
For the Respondent: Ms S Rushforth, Senior Home Office Presenting Officer

Heard at Cardiff Civil Justice Centre on 22 October 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity owing to the nature of the appeal.

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 applied for permission to appeal to the Upper Tribunal against the decision of First-tier Tribunal Judge Forster (the judge) promulgated on 19th March 2025, in which the judge dismissed the appeal of the appellant against the decision of the Secretary of State dated 1st March 2024.
2. The appellant is an Iraqi Kurd who claimed that he had run his own business with his partner, YM, sourcing overseas medical treatments and who had developed a sexual relationship with one of his customers, who was in fact married. The appellant asserts he received threatening messages, fled to a relative’s house and made arrangements to leave the country, leaving on 13th July 2019 and arriving in the UK on 23rd October 2019. He claimed asylum on the same day.
3. Since arriving in the UK, the appellant had engaged in political protests against the Kurdish and Iraqi authorities.
4. Judge Forster used, as his starting point, the previous determination of Judge Gribble dated 7th July 2021, in which the appellant’s claim was dismissed on adverse credibility grounds. Judge Forster applied the Devaseelan v Secretary of State for the Home Department [2002] UKAIT 702 guidelines.
5. The grounds for permission to appeal were threefold
(i) the assessment of credibility
(ii) the judge erred in his approach to the documentation and
(iii) the judge had erred in relation to the assessment of the risk of persecution.
6. We detail each ground in turn as follows.
7. Ground 1. It was asserted that the decision of the First-tier Tribunal was flawed in law because the judge had merely rubberstamped the previous judge’s findings without making his own. The documents had not been properly or adequately addressed. Relevant weight had not been given to documentary evidence produced by the appellant, and the judge’s findings were speculative.
8. The Secretary of State for the Home Department v Chiver [1997] INLR 212 showed it was possible for the Adjudicator, even if the appellant was not telling the truth about some matters still to be persuaded about the centrepiece of the story. The judge had failed to take into account that the appellant was consistent throughout the claim and had not changed the core elements. Most of the decision was dedicated to the previous judge’s decision. The space given to the previous decisions was more than the entire finding made by the judge.
9. From paragraphs 14 to 20 there were no findings by the judge. At paragraph 21 the judge made findings on the appellant’s credibility when the appellant mentioned a journalist killed by the Kurdish authorities, and the appellant would have the same fate as the journalist, but the judge found against him, and had failed to provide proper reasons.
10. Furthermore, the judge ignored paragraph 203 of the UNCHR Handbook, and it was frequently necessary to give the benefit of the doubt. The judge, at [25], stated that new evidence produced by the appellant, particularly from the statement from Mr M, related to matters occurring before the previous hearing, but the judge had failed to give reasons or proper reasons as to how he treated the documents with caution or circumspection as per Devaseelan. The judge also ignored the appellant’s explanation in his oral witness statement.
11. The judge in his determination gave little weight to the document provided in the witness statement of the appellant and had acted unfairly in relation to the documents and had not given anxious consideration to the documents.
12. In relation to the Facebook material the judge had failed to ask questions about the opening of the Facebook account during cross-examination or throughout the hearing. The judge should have given a proper and reasonable explanation for all his findings.
13. The judge at 29 of the determination had simply rubberstamped the previous judge’s findings.
14. Ground 2, in relation to documentation, it was submitted that there was a material error of law in respect of the case, namely in the way that the judge had dealt with the documentation and simply reiterated what the previous judge had found without making any findings himself and again simply rubberstamped the previous judge’s findings.
15. The judge had failed properly to follow the new SMO and KSP (Civil status documentation, article 15) (CG) Iraq [2022] UKUT 110 (IAC).
16. Ground 3 advanced that the judge’s decision was flawed because the judge had used the wrong test to assess the risk of persecution. The judge at [32] to [33] said this:
“32. I find on the balance of probabilities that the Appellant would not face persecution for a Convention reason on return to Iraq.
33. I find on the balance of probabilities that the Appellant is not a refugee and that he has not shown substantial grounds for believing that he would face a real risk of suffering serious harm in Iraq.”
The grounds submitted this was the wrong test to use and the correct test was reasonable likelihood of persecution.
17. Permission to appeal was granted only in relation to the third ground by the FtT observing that it was arguable that the Judge has not properly applied the guidance set out in JCK (s.32 NABA 2022) Botswana [2024] UKUT 00100.
Submissions
18. As per Safi and others (permission to appeal decisions) [2018] UKUT 388 (IAC) the grant did not appear to be limited, and we thus permitted Mr Khan to advance all three grounds of appeal.
19. Mr Khan submitted that the key ground on which permission had been granted was the last ground and the judge had not followed the guidance in JCK. The judge had not applied this to the political activities of the appellant in the UK. There was a Convention reason, and the judge was required to determine if he would be persecuted in Iraq. The judge had not addressed these questions set out in JCK and had fallen into error.
20. He also relied on the grounds as set out in the written grounds of appeal and stated that the judge should also have considered the documentation.
21. In response Mr Rushforth submitted that the judge correctly approached the consideration on the post section 32 Nationality and Borders Act 2024 standard at [9] of the decision and we were invited to consider [10] of the decision.
22. Even if the judge had fallen into error, it was not material. The judge had answered the questions and applied the proper standard of proof. The judge had not accepted anything about the appellant’s account and thus an error was immaterial.
23. The challenge on grounds 1 and 2 did not undermine the approach of the judge which was correct in relation to Devaseelan and SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 110 (IAC) applied.
Conclusions
24. Although the grant of permission to appeal in effect meant to grant permission only on the last ground, which was ground 3 on the assessment of credibility further to Safi we nonetheless considered that all grounds should be addressed.
25. We take the grounds in written order. We consider that the context of the previous findings was relevant. The determination of Judge Gribble was dated 7th July 2021 and pre the introduction of section 32 of the Nationality and Borders Act 2024 (NAB Act). Judge Gribble had thus assessed the essence of the appellant’s claim prior to the NAB Act and on the lower standard of proof throughout. He had dismissed the appellant’s claim making adverse credibility findings. The judge set out Judge Gribble’s findings in detail from [13] noting that the appellant relied on facts in the current appeal which were not materially different from the previous appeal. This found, inter alia, the relationship with the client not credible, his account of his escape was not credible, his explanation of his contact (phone and sim card) with Y Mohammed with whom he claimed he had had a business was not credible, and overall the core of the account was not found to be credible.
26. The judge recorded at [15] that
‘Judge Gribble found that the Appellant ‘has fabricated a claim of risk. He has a CSID, passport, INC and driving licence at his parents. He can obtain these documents from the UK to allow him to return. If return is to Baghdad, he will have a CSID and passport which will allow him to return to his home. If he is returned to Erbil or Sulaymaniyah the same applies. As he is from the IKR, he will not be likely to be destitute because he will be joining his family’.
27. We find that the judge’s approach to Devaseelan was unimpeachable. He set out most of the findings of the previous determination which unarguably made fundamental adverse credibility findings against the appellant in relation to the claimed relationship. Those findings were made pre-NABA and on the basis of reasonable likelihood. The judge having cited the previous determination identified from [16] onwards the fresh evidence including the appellant’s witness statement, Facebook material and background material. The judge also clearly identified the fresh basis on which the appellant claimed asylum namely his sur place activities.
28. Nevertheless, the judge, entirely in accordance with Devaseelan rejected the further evidence produced by the appellant on sound reasoning. Indeed at [16] the judge set out the fresh material. The judge rejected the explanation that the appellant had not produced evidence at the last hearing owing to lost contact with his friend MS because the previous judge had found he had been in contact with MS since his arrival in the UK and produced messages and voice recordings between December 2019 and March 2020 [18].
29. The judge dealt with the Facebook material at [21] and noted that the appellant changed his evidence in that regard (re Hussain) and overall rejected his claim to have been threatened whilst in the UK.
30. Further at [22] and [23] the judge criticised the further documentation produced (the statement from his business partner) and gave sound reasoning for finding it not credible not least because again the appellant had been in contact with MS his friend prior to the previous hearing and the statement from the business partner came from MS. That was open to the judge. At [24] the judge found the appellant’s mere explanation that he was unable to open a new Facebook account until February 2022 (that is after the previous hearing) inadequate and hence the evidence produced, particularly the statement from Mr Mohamed could have been produced earlier [25].
31. As held in Volpi v Volpi [2022] EWCA Civ 464 at 2(iii) ‘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’ and as the Court of Appeal confirmed at [18] of Herrera v SSHD [2018] EWCA Civ 412, it is necessary to guard against the temptation to characterise as errors of law what are in truth no more than disagreements about the weight to be given to different factors. The judge gave adequate reasoning for his findings, the appellant was aware of the evidence he presented, and it is not for the judge to enter the arena in cross examination.
32. As the judge stated at [25]:
“25. The new evidence produced by the Appellant, particularly the statement from Mr Mohamed, relate to matters occurring before the previous hearing. There is no good reason why this evidence was not provided at the time. Such evidence must be treated with caution and circumspection.”
33. That approach was plainly open to the judge.
34. There was no indication that the judge, having made crystal clear findings, in relation to credibility had erred in approach on assessing the credibility to the relationship; that was the core of the claim. The grounds assert the judge had failed to take into account that the appellant was consistent throughout the claim and had not changed the core elements of his claim. The core elements, however, had been previously rejected. That the appellant who had had fundamental adverse credibility findings made against him on his account persisted with the same account which had been rejected and had merely produced evidence which the judge rightly stated should be treated with caution and circumspection takes the case no further forward and does not undermine the approach of the judge. There is no indication that the judge erred in approach to credibility in the light of the UNHCR document that the ‘benefit of the doubt’ should be given to an appellant. The approach to credibility is not determined by UNHCR but as noted the NAB Act.
35. The judge gave sound reasoning for his treatment of the Facebook material.
36. Turning to ground 2, the judge identified that the appellant’s new case was based on his political activities in the UK; the judge at 26 to 28 stated this:
“26. Essentially, the Appellant’s new case is based on his political activities in the UK since 2021. At its highest, the evidence shows the Appellant attending demonstrations against the Kurdish and Iraqi authorities. He has also posted material on social media. It is submitted that these activities put the Appellant at risk on return to Iraq.
27. It is not in dispute that the Appellant has attended demonstrations in the UK against the IKR and Iraqi authorities. The evidence does not establish that he has taken a prominent role. He is one of many people in the crowd. As stated in BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC), it is necessary to consider the level of political involvement before considering the likelihood of the individual coming to the attention of the authorities and the priority that the authorities would give to tracing the Appellant. The Appellant has a low profile. The authorities’ ability to monitor everyone who attends a demonstration is limited and likely to be focused on those who unlike the Appellant already have a high profile.
28. In respect of the Appellant’s social media posts, the Respondent relies on XX (PJAK - sur place activities - Facebook) Iran CG [2022] UKUT 00023 (IAC). Applying this guidance, I find that the Appellant fails to demonstrate that it is reasonably likely that the Kurdish or Iraqi authorities are able to monitor social media accounts on a largescale and nothing to suggest that they would have reason to focus their searches against him because he does not have a high political profile. Searches will be confined to individuals who are already of significant adverse interest.”
The judge here accepted the political activities of the appellant in the UK and there was thus no question as to the issue of whether this was on the balance of probabilities and indeed turning to the question of risk. At [27] the judge noted that he had to consider as to risk the level of political involvement. It is clear the judge applied the relevant test on the standard of proof at [28] when noting that the appellant had failed to demonstrate “that it is reasonably likely” that the Kurdish authorities were to monitor social media accounts.
37. On the material before him that was entirely open to the judge. On the evidence as a whole, it is clear the judge did not simply rubberstamp the previous decision.
38. SMO was properly applied at [31] where the judge found
‘She [Judge Gribble] found that the Appellant has a CSID, passport, INC and driving licence at his parents and that he can obtain these documents while in the UK to allow him to return. If return is to Baghdad, he will have a CSID and passport which will allow him to return to his home. If he is returned to Erbil or Sulaymaniyah the same applies. As he is from the IKR, he will not be likely to be destitute because he will be joining his family. Whilst CSIDs are no longer being issued in Iraq, they can still be used to pass through checkpoints. The Appellant will be able to travel to the appropriate civil documentation centre and obtain an INID.
39. We turn to ground 3. The relevant sections of the NAB Act state:
“32. Article 1(A)(2): well-founded fear
(1) In deciding for the purposes of Article 1(A)(2) of the Refugee Convention whether an asylum seeker’s fear of persecution is well-founded, the following approach is to be taken.
(2) The decision-maker must first determine, on the balance of probabilities—
(a) whether the asylum seeker has a characteristic which could cause them to fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion (or has such a characteristic attributed to them by an actor of persecution), and
(b) whether the asylum seeker does in fact fear such persecution in their country of nationality (or in a case where they do not have a nationality, the country of their former habitual residence) as a result of that characteristic.
(See also section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (asylum claims etc: behaviour damaging to claimant’s credibility).)
(3) Subsection (4) applies if the decision-maker finds that—
(a) the asylum seeker has a characteristic mentioned in subsection (2)(a) (or has such a characteristic attributed to them), and
(b) the asylum seeker fears persecution as mentioned in subsection (2)(b).
(4) The decision-maker must determine whether there is a reasonable likelihood that, if the asylum seeker were returned to their country of nationality (or in a case where they do not have a nationality, the country of their former habitual residence)—
(a) they would be persecuted as a result of the characteristic mentioned in subsection (2)(a), and
(b) they would not be protected as mentioned in section 34.
(5) The determination under subsection (4) must also include a consideration of the matter mentioned in section 35 (internal relocation).”
40. The judge accurately set out the legal framework at [9] and [10] of the decision:
“9. To succeed in an appeal on asylum grounds, the Appellant must show a well-founded fear of persecution for a Convention reason (race, religion, nationality, membership of a particular social group, political opinion). The burden of proof rests on the Appellant. As the asylum claim was made on or after 28 June 2022, pursuant to s32 of the 2022 Act, in considering whether the Appellant qualifies as a refugee, I must apply a two-stage test. I must first determine the following matters on the balance of probabilities:
(a) whether the Appellant has a characteristic which could cause them to fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion (or has such a characteristic attributed to them by an actor of persecution), and
(b) whether the Appellant does in fact fear such persecution in their country of nationality as a result of that characteristic.
10. If I am satisfied on the balance of probabilities that the Appellant does have such a characteristic, and fears persecution as a result of that characteristic, I must go on to determine whether, applying the lower standard of proof, there is a reasonable likelihood that:
(a) the Appellant would be persecuted for a Convention reason on return,
(b) that there would be insufficient protection; and
(c) they could not internally relocate.”
41. Thus, the judge specifically cited the relevant sections of the NAB Act and there is no indication that he did not have this in mind when addressing the risk on persecution on the basis of political activities. We consider that on close analysis of the decision, as we have above, there was no material error of law. The underlying adverse credibility findings not only stemmed from previous findings (pre the NAB Act) but the judge gave sound reasoning, in line with Devaseelan as to the new documentation produced and cogently reasoned why the documentation could not be relied upon to unseat the previous credibility findings. The judge identified that the new case rested on sur place political activities, properly assessed those activities but found that the appellant was not of a profile to come to the attention of the Iraqi authorities and the relevant authorities would not have the means to monitor him.
42. The judge was clear that the appellant had fabricated his claim, that was not an assessment made on the balance of probabilities. The conclusions at [32] with references to the balance or probabilities is merely a shorthand and a proper and sound analysis with the relevant legal tests applied throughout. Thus, the findings of the judge were entirely open to him the references at [32] and [33] do not materially undermine the decision.
43. We find no material error of law.
44. Notice of Decision
The decision of the First-tier Tribunal contains no material error of law and will stand. The appellant’s appeal remains dismissed on protection and human rights grounds.

Helen Rimington

Judge of the Upper Tribunal
Immigration and Asylum Chamber

18th November 2025