Tribunal decisions

The decision

Upper Tribunal Appeal Number: UI-2025-002084
(Immigration and Asylum Chamber) PA-65811-2023
LP/11834/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

8th of October 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE GREER

Between

DR
(anonymity direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr J. Dingley, Counsel
For the Respondent: Mr A. Tan, a Senior Presenting Officer

Heard at Manchester Civil Justice Centre on 22 September 2025

DECISION AND REASONS

1. The Appellant is a 26-year-old national of Iraq of Kurdish Ethnicity. He appeals with permission the decision of the First tier Tribunal dismissing his Protection and Human Rights Appeals promulgated on 24th March 2025.

2. The basis of the Appellant’s claim is that he engaged in a romantic relationship with a woman against the wishes of that woman’s family. As a result, the Appellant encountered problems with that woman’s family and fled Iraq fearing serious harm.

3. Although the Secretary of State had accepted that the Appellant had engaged in a relationship with the woman, and encountered some problems due to that relationship, the Secretary of State did not accept that those problems were of such severity as to cause the Appellant to flee Iraq. Nor did the Secretary of State accept that the Appellant would be at risk of serious harm upon return to Iraq.

4. The First Tier Tribunal agreed with the Secretary of State and dismissed the appeal.

Grounds of Appeal: Discussion and Findings

5. The Appellant sought and was granted permission to appeal in respect of 5 grounds. It is appropriate that I start with the first ground, which is the strongest and which infects the entirety of the First Tier Tribunal’s decision. For the reasons that follow, I find Ground 1 to be made out.

6. Ground 1 argues that the First Tier Tribunal went behind the Respondent’s concession of fact in respect of the Appellant’s claims about his relationship with V and the problems that follows. Those concessions, the Appellant argues, are set out in clear terms in the decision under appeal. At this stage, it is worth identifying the extent of the purported concessions.

The Respondent’s decision

7. In the Respondent’s Reasons for Refusal Letter, the Respondent said, under the heading, “Material facts I accept” (Composite Bundle, Page 54):

I am satisfied that you are of Iraqi Nationality and Kurdish ethnicity.

You experienced problems in Iraq due to your relationship with your partner.

8. Given that the Appellant only ever describes having had one partner, it is clear that the Respondent accepted that the Appellant had a relationship with V.

9. What is less clear is what else the Respondent accepted. The decision does not state which of the problems that the Appellant described in his claim the Respondent has accepted. As Mr Tan pointed out at the hearing before me, problems can mean a variety of things. At one end of the scale of severity, it could mean the inconvenience of having to conduct the relationship in secret to avoid the embarrassment of being seen engaging in a culturally inappropriate relationship. At the other end, it could mean being threatened by V’s family and having to flee Iraq. The concession is set out in vague terms. It is however clear from the decision that the problems accepted as having happened in Iraq were towards the less severe end of the spectrum. The is because the letter continues under the heading well-founded fear of persecution and states:

I do not accept you are at real risk on return because:

The material facts of your claim which would have created a real risk of persecution are not accepted.

10. The next paragraph states:

Credibility You provided inconsistent evidence without reasonable explanation, as well as a lack of detail. There are some elements of your account that were implausible and inconsistent with external information. Documents you submitted were given no/little/some weight when considered in the round:

11. The matters listed under that paragraph as having been rejected include the Appellant’s account of the profile of the people who he claimed to fear, the Appellant’s Claim that V’s family were connected to the PUK, the Appellant’s claim to have been disowned by his own family, the Appellant’s claim to have met V. alone, outside her house, without her family, the Appellant’s claim to have been beaten up by V’s brothers, and the Appellant’s claim to have made a complaint to the police. Whatever problems were accepted by the Respondent, these problems were rejected.

The Issues before the First Tier Tribunal and its treatment of those issues

12. The Appellant appealed against that decision. In accordance with the First Tier Tribunal’s directions, the Appellant filed an Appeal Skeleton Argument. There, the Appellant identified the issues in dispute as follows:

9. It is submitted that the issues in dispute are:

(i) Has the appellant given a credible account?

(ii) Has the SSHD correctly interpreted and reflected the country guidance and case law in their conclusions with regard to breaches of family honour in Iraq, sufficiency of protection, well-founded fear of persecution, internal relocation and on feasibility of return without requisite Iraq documentation?

(iii) The SSHD does not engage with the risk of persecution on account of appellant’s imputed political opinion limb of appellant’s claim, as he fears the family members of his partner, [V], who he claims are well connected in the power structures of the KRG.

13. The entirety of the Appellant’s submissions in respect of Issue (i) are found at Paragraph 10 of the Appeal Skeleton Argument:

10. It is submitted the appellant has addressed the credibility points raised by the UKVI’s decision letters in his asylum appeal statements.

14. The Respondent did not conduct a review of the case after receipt of the Appellant’s Skeleton Argument.

15. The matter came before a Judge of the First Tier Tribunal for a hearing. Neither party to this appeal filed a witness statement or a transcript of what was said at the hearing before the First tier Tribunal. It is therefore impossible to identity what attempts were made by the First Tier Tribunal Judge to confine the factual issues in dispute between the parties, beyond what is recorded on the face of the First tier Tribunal determination. The list of Issues in Dispute (at [6]) sets out the issues in dispute in the following terms:

I discussed the issues in the case with Ms Mensah and Mr Ferns-Evans and it was agreed that the following matters were in dispute;
(a) Is the account credible (including section 8 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004)
(b) Is there a convention reason (whether honour crime or imputed political opinion)
(c) Is the Appellant at risk of persecution
(d) Is the Appellant at risk of serious harm requiring humanitarian protection
(e) Is availing of the Protection of the authorities or relocation an option
(f) Does the Appellant have the necessary documentation to safely return.

16. There follows, at [13], an assessment of the points taken against the Appellant by the Respondent in the decision under appeal. Under the heading, Conclusions on the Appellant’s credibility, the First Tier Tribunal States at [15] and [16]:

15. I start my assessment of the Appellant’s credibility with reminding myself of the approach in MAH and I treat this as an assessment of risk. I also give myself a ‘Lucas direction’ acknowledging that Appellants can tell lies for a number of reasons, that an Appellant can embellish their account to bolster their claim and that this does not mean that the entirety of their evidence is untruthful. I also remind myself that the Respondent accepted that the Appellant experienced problems as a result of the relationship with his partner, who I am assuming to be V. Ms Mensah, understandably, returned to this concession a number of times and said that in the context of objective evidence showing blood feuds and honour killings to be a reality in the Appellant’s home region that the lower standard of proof which applies should lead to a finding that the Appellant’s core claim was accepted. She submitted that despite Mr Ferns-Evans efforts to distance the case he was making from the concession what other problems could the Appellant have had other than those he described in his account.

16. I have found that the Appellant’s credibility is damaged in respect of his account in a number of ways. The account of the second meeting with V lacks credibility as does that of the incident in Sulaymaniyah. There are also credibility issues over his account of how many times he spoke to his father. These aspects of his account, go, I find to the core of his account; what led him to leave Iraq and what support he has since he left. I remind myself that the burden is on the Appellant albeit to the lower standard. For the reasons I have set out at paragraph 13 I find these issues have impacted on the Appellant’s credibility and given the centrality of the issues identified I do not find there is a reasonable degree of likelihood that his overall account is credible. To put this in the context of an assessment of risk I do not find that there is a real risk that the Appellant would face the persecution that he claims even though it is not in dispute that he faced problems.

Error of Law

17. Mr Dingley argued on the Appellant’s behalf that the First Tier Tribunal went behind the Respondent’s concession in respect of the Appellant’s claim to have been involved in a relationship with V. He recognised that there is no prohibition on a Tribunal Judge going behind a concession made by a party, but that the Judge is obliged to put the parties on notice and give them a fair opportunity to respond. In this case, he argued, it is apparent from the decision that the Judge went behind the Respondent’s concession without putting the parties on notice. This, he averred, deprived the Appellant of a fair hearing and is a material legal error.

18. In my judgment, a more fundamental problem with the First Tier Tribunal’s determination is that it is impossible, even on the most sympathetic reading, to understand what the Judge considered the contested factual issues to be. It is clear from the decision under appeal that the Respondent accepted some aspects of the Appellant’s claims. Although it was not disclosed to this Tribunal, Mr Tan confirmed by reference to Mr Fearns-Evans’ note of the hearing before the First Tier Tribunal that the Respondent did not seek to resile from the concession that the Appellant had a partner in Iraq and this caused him problems; the severity of those problems was what was in dispute. The formulation of the Issues in dispute (at [6]) does not distinguish between what was accepted and what remained in dispute, nor does it identify which aspects of the Appellant’s account required determination by the Tribunal.

19. The first duty of the Tribunal is to identify and frame with clarity the factual issues that are genuinely in dispute. In cases in which the parties have not pleaded their cases with clarity, it falls upon the Tribunal to address this as a preliminary issue. This exercise must be undertaken at the outset of the hearing, so that both parties understand what is conceded, what remains contested, and what findings the Tribunal will be required to make (see, for example, The Secretary of State for the Home Department v TC [2023] UKUT 164 (IAC) at [60]).

20. Instead of identifying what factual issues were in dispute between the parties, the First Tier Tribunal in this case asks only whether the Appellant’s account is credible. That formulation is misconceived. Credibility is not itself a factual or legal issue in dispute. Rather, credibility is part of the evaluative reasoning the Tribunal undertakes when deciding whether a specific factual proposition is established on the evidence, to the required standard.

21. It is a trite proposition that credibility is not ‘a seamless robe’. Even if some or most aspects of a witness’s evidence are found to be incredible, that does not justify a blanket rejection of the entire account. In protection claims, adverse findings on parts of the evidence must not be generalised to all aspects of the claim. The fact-finder must still assess the intrinsic likelihood of the material elements of the claim, applying the applicable standard of proof. Equally, the fact that a witness is accepted as truthful in relation to one part of their evidence does not oblige the Tribunal to accept the remainder. Flaws or inconsistencies in other aspects may legitimately undermine credibility, provided the judge gives adequate reasons and assesses each material element on its own merits. Adverse findings on certain aspects of evidence do not justify a wholesale rejection of the entire account; each material element must be assessed separately to the applicable standard of proof.

22. In the present case, the Tribunal in reaches the conclusion, at [16], that the Appellant’s overall account is not credible. There may be cases in which such an approach is permissible. However, in a case in which some aspects of the Appellant’s account going to the assessment of future risk were the subject of agreement between the parties, and others were not, it is necessary for the Tribunal to reach clear findings of fact on each discrete factual claim. Read in conjunction with [6], the reader can have no confidence from [15] and [16] that the Tribunal has accepted the Respondent’s concession and taken this into account when performing that assessment of risk.

23. It is not difficult to have sympathy with the Judge in this case. The parties did not assist the Tribunal by identifying and narrowing the issues in their written pleadings. Nonetheless, the duty to identify the controversial issues and give sufficient reasons to entitle the parties to understand how those issues have been resolved ultimately rests with the First Tier Tribunal. The First Tier Tribunal has failed in both respects and this amounts to a material legal error infecting the entirety of the decision. The decision must be set aside.

24. This being so, it is not necessary for me to address any of the remaining grounds in detail. However, Ground 3 is also made out. Ground 3 argues that the First tier Tribunal made a material misdirection in law when determining whether the Appellant’s claim engaged the Refugee Convention.

25. As with Ground 1, the Appellant’s case in respect of his entitlement to succeed under the Refugee Convention was not pleaded with clarity in the Skeleton Argument. However, it is apparent from the First Tier Tribunal’s determination that the Appellant’s counsel the hearing before the FTT sought to recast the case on a sustainable basis. At [7], the decision states:

Ms Mensah indicated at the outset that she would be relying on the case of EMAP (Gang violence – Convention Reason) El Salvador CG [2022] UKUT 00335 (IAC) in her submissions on whether the Appellant had a convention reason.

26. I do not have the benefit of a record of Ms Mensah’s submissions. However, the only rational inference from what is recorded in the decision under appeal is that Ms Mensah was referring to Upper Tribunal Judge Bruce’s guidance in respect of whether a disjunctive or conjunctive approach ought to be applied to the question of whether an individual falls within a particular social group. As the Appellant made his claim before the implementation of the 2022 Act, it was at least arguable that the First Tier Tribunal ought to have adopted the disjunctive approach preferred by the Upper Tribunal in the case of EMAP, or given reasons why it was taking a contrary approach.

27. At [17], the decision states that the Presenting Officer referred the Tribunal to Paragraph 11.7.4 of the Respondent’s Country Policy and Information Note Iraq: Blood feuds, Honour crimes and Tribal violence Version 1.0 July 2024. I agree with Mr Dingley that the more applicable passage is what is set out at Paragraph 2.2.3, which states:

Male potential victims of ‘honour’ crimes (based on their involvement in a premarital or extramarital relationship with a female) are not considered to form a particular social group (PSG) within the meaning of the Refugee Convention. This is because while they do share a common background that cannot be changed in that they have compromised the familial ‘honour’ of the females’ family, they do not have a distinct identity. (emphasis added)

28. That assessment militates against a male victim of honour crimes falling within a Particular Social Group if a conjunctive approach is to be taken, but in favour of such a Claimant if a disjunctive approach is taken. It is not clear from the First Tier Tribunal’s decision quite what it understood Ms Mensah’s submission to be and whether it considered that it was a disjunctive or conjunctive approach which applied. As with Ground 1, the determination does not entitle the informed reader to understand why the First Tier Tribunal has found as it has. This is a legal error.

Disposal

29. I am conscious of the Court of Appeal's decision in AEB v SSHD [2022] EWCA Civ 1512, Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC) and 7.2 of the Senior President's Practice Statements. Sub-paragraph (a) deals with where the effect of the error has been to deprive a party before the Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the FtT, whereas sub-paragraph (b) directs me to consider whether I am satisfied that the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.

30. As the First tier Tribunal determination contains no findings of fact capable of being preserved, the matter must be remitted to the First Tier Tribunal to be determined afresh.

31. It will be a matter for the First Tier Tribunal to determine what directions to make. However, the parties should bear in mind their duties under Paragraph 1 of the Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal of November 2024 and use their best efforts to identify the issues in dispute between them. This is likely to require the Appellant to file a replacement skeleton argument, setting out what findings of fact he seeks, and a review by the Respondent indicating which of those facts she accepts.

Notice of Decision

1. The decision of the First-tier Tribunal involved the making of a material error on a point of law. The decision of the First-tier Tribunal is set aside.

2. The matter is to be remitted to the First-tier Tribunal to be determined de novo by a judge other than Judge of the First Tier Tribunal McQuillan.

Signed:

J. GREER

Deputy Upper Tribunal Judge Greer

Dated 28th September 2025