UI-2025-002194

• Status of case: Unreported
• Hearing date: 09 Mar 2026
• Promulgation date: 18 Mar 2026
• Publication date: 07 Apr 2026
• Last updated on: 07 Apr 2026

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-002194
First-tier Tribunal No: PA/58474/2023
LP/11877/2024


THE IMMIGRATION ACTS


Decision and Reasons Issued:
On 18 March 2026


Before

UPPER TRIBUNAL JUDGE KEBEDE
DEPUTY UPPER TRIBUNAL JUDGE ALIS


Between

DY
(Anonymity Order made)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr C Holmes, instructed by J D Spicer Zeb
For the Respondent: Mr A McVeety, Senior Home Office Presenting Officer

Heard at Manchester Civil Justice Centre on 9 March 2026


DECISION AND REASONS

1. This is the re-making of the decision in the appellant’s appeal, following the setting aside of the decision of First-tier Tribunal Judge McQuillan which had allowed the appellant’s appeal on protection grounds under the Refugee Convention.

2. The appellant is a citizen of Iraq of Kurdish ethnicity, born on 15 August 1990. He arrived in the UK on 30 November 2020, having left Iraq on 4 September 2014 and travelled to Turkey where he stayed for six years until 4 September 2020 before travelling through several unknown countries to the UK. The appellant claimed asylum on 30 November 2020 and was interviewed about his claim on 12 July 2023. He completed three asylum claim questionnaires. His claim was then refused on 11 October 2023.

3. It was the appellant’s claim that ISIS took over the Kurdish area of Sinjar, where he was living, in 2014, and forced entry into the homes of the villagers. When they entered his home they found his father’s and brother’s peshmerga guns and ID cards. They killed his father and brother for being peshmerga fighters and took him and his brother away and imprisoned them for 10 days. They escaped and made their way to Turkey where the appellant’s brother was arrested and imprisoned for overstaying. The appellant then left Turkey and came to the UK. He claims to be at risk on return from ISIS and also because he has no documentation.

4. The respondent, in refusing the appellant’s claim, accepted that he was an Iraqi national of Kurdish ethnicity but did not accept that he came from a contested area or that he had come to the adverse attention of ISIS on a personal level, and considered that he could in any event avail himself of state protection or relocate internally.

5. The appellant appealed against that decision and his appeal came before First-tier Tribunal Judge McQuillan on 11 March 2025. The judge accepted that ISIS took control of the area including Sinjar in 2014; that they subjected the minority communities to imprisonment, violence and death; that the area including Sinjar remained violent after the defeat of ISIS in 2017 and that much of the present violence was connected to tensions between armed groups, including the PMF, that filled the void after ISIS; that ISIS remained a threat in the area until 2022 at least although not to the same extent as previously; and that a great many people had left Sinjar and had not returned and that the area was badly damaged by the conflict. The judge accepted that the appellant was one of a large number of people who were detained and then escaped, although he did not accept that the appellant was personally of adverse interest to ISIS, and he accepted that the appellant’s father and brother were shot for being peshmerga. The judge found the appellant’s evidence about his brother’s separation from him to be untruthful. He did not accept that the appellant would be known or personally of adverse interest to ISIS in Sinjar at present. The judge found Sinjar to be ‘a dangerous place for a range of people’ and that it was appropriate to apply a sliding scale assessment of risk on return. He found that the appellant, as a Kurd, would be returning as a member of a group not in control and to which those in control (or seeking control) would be hostile. He accepted that the appellant would be returning undocumented to Sinjar and found that that would add to the risk he faced. The judge concluded that, applying the sliding scale, the appellant would be at real risk of persecution in Sinjar on the grounds of ethnicity and religion, that he could not turn to the authorities (the PMF) for protection and that relocation would be unreasonable. He found that there was a reasonable degree of likelihood that the appellant had a well-founded fear of persecution for a convention reason, and he accordingly allowed the appeal on that basis, finding that he was as a result not entitled to humanitarian protection.

6. Permission was granted to the respondent to appeal against that decision on the following basis:

“The grounds of appeal are that the First-tier Tribunal erred in law in (i) failing to give any or any adequate reasons for findings on material matters, including whether the Appellant’s area is a contested area for the purposes of considering the risk of indiscriminate violence and misdirecting itself in law as to the differences between the Refugee Convention and humanitarian protection, improperly applying the sliding scale from country guidance and finding a risk based on ethnicity which was not supported by background country evidence; and (ii) failing to give adequate reasons on the issue of redocumentation on return to Iraq, in particular in relation to the Appellant’s brother’s whereabouts and contact.”

7. In a decision promulgated on 9 January 2026, Upper Tribunal Judge O’Brien set aside Judge McQuillan’s decision. The full decision is annexed to this decision, but the salient part is set out below:

“13. It is clear from [13(d)] that the judge expressly declined to find that Sinjar was a contested area or formerly contested area. Therefore, the opening sentence of [17] merely confirms the judge’s acceptance that the appellant was from Sinjar. Consequently, the judge fails to explain how his subsequent analysis applies to the appellant.

14. It could be argued (although the appellant, curiously, does not appear to take this exact point) that the same country guidance makes clear that Ninevah governorate is a formerly contested area, that Sinjar is located in Ninevah governorate, that Sinjar is therefore a formerly contested area, and thus that the judge’s failure to make such a finding for himself is ultimately immaterial. However, there are other fatal flaws in the judge’s analysis.

15. First, the guidance in SMO1 followed by the judge applies specifically to risk from indiscriminate violence and qualification for humanitarian protection under Article 15(c), and not risk of persecution for a Refugee Convention reason. No reasons are given by the judge for why the same approach is appropriate for both cases.

16. Second, the judge found at [19] that only one of the risk factors identified in SMO1 applied to the appellant: that he would, as Kurd, find himself in a group that is not in control and which those that are in control or are seeking control, especially the PMF, would be hostile to. Even adding to the balance his finding at [21] that the appellant would be undocumented, the judge fails adequately to explain how these factors would cross the threshold to create a risk of indiscriminate violence.

17. Third, the judge fails entirely to explain how such a risk of indiscriminate violence (even if adequately reasoned and rationally found) leads to a rational finding that the appellant would be at real risk of persecution by reason of his ethnicity and religion, as is baldly asserted at [22]. Mr Holmes submitted that, because the judge had found that the appellant’s Kurdish ethnicity was a risk factor, it was at least partially causative of the risk of indiscriminate violence, and because such violence would reach the level necessary to constitute persecution it was rationally open to the judge to reach the conclusion he did. However, the judge says none of that. Moreover, indiscriminate action is the very antithesis of action for a reason.

18. Mr Holmes preyed in aid Fornah v SSHD [2007[ 1 AC 412, [2007] UKHL 46 at [17] as authority for the proposition that a persecutor does not need to be consciously motivated by the Convention reason in question, it merely needs to be an operative cause of the persecutory treatment. He submitted that the judge had found that to be the case for the appellant’s Kurdish ethnicity…

…20. To the extent that his reasons can be discerned, the judge appears to have found that, merely by being at risk of indiscriminate violence because of his Kurdish ethnicity, the appellant is thereby at risk of persecution for that reason. That is, with respect, the ‘but for’ approach deprecated by Lord Bingham. I should add that the judge does not even identify the appellant’s religion as a risk factor in his SMO1 analysis before concluding that he would be at risk of persecution for that reason.

21. Fourth, I am unpersuaded in any event that a finding of persecution can be adequately reasoned without identifying the likely persecutor. The judge does not do so. The closest he gets, having rejected the appellant’s case (a risk from ISIS), is a finding at [13(b)(iii)] that much of the present violence in Sinjar is connected to the tensions between armed groups, which include the PMF, who are Shia, and at [19] that the PMF would be hostile to Kurds. This is far short of a finding that the appellant is at real risk of persecution by the PMF. As it is, the judge appears to go no further than finding that the appellant could not turn to the PMF for protection [22].

22. Ground 1 therefore succeeds.

23. As for the judge’s reasoning on the appellant’s inability to redocument on return, the relevant findings are found at [20] and [21]: …

24. However, the appellant’s account of what happened in Turkey to the brother with whom he escaped from ISIS and fled to Turkey was rejected by the judge as untrue. Whilst the judge accepted the appellant’s account of events in 2014 and (implicitly) his inability to seek the assistance of family members left behind in Iraq, he gave no consideration to whether the brother who escaped with him to Turkey was back in Iraq and, if so, whether he could assist the appellant to obtain his existing documentation or in his redocumentation.

25. I am persuaded, therefore, that the judge failed to give adequate reasons for accepting that the appellant could not be met on return with his existing documentation.

26. For these reasons, ground 2 also succeeds..”

8. Judge O’Brien noted, in regard to disposal and the re-making of the decision:

“28. The only conclusions challenged are that the appellant is at risk of indiscriminate violence in Sinjar, that he is consequently at risk of persecution by reason of ethnicity that he would be undocumented on return. These findings are set aside. The judge’s conclusions on sufficiency of protection and internal relocation are to a greater or lesser extent infected by the errors found, and so are also set aside. However, the following findings are not challenged and so are preserved:

a. The appellant is from Sinjar.
b. ISIS attacked Sinjar in 2014, killed the appellant’s father and brother, took the rest of the family hostage, and the appellant and one brother escaped an fled to Turkey.
c. The appellant would not now be of adverse attention to ISIS.
d. The appellant has not given a true account of what happened to his brother in Turkey.”

9. The appeal came before us on 9 March 2026 for a resumed hearing.

Resumed Hearing

10. The parties agreed that the appeal would proceed on the basis of submissions only as there was no need to hear any oral evidence from the appellant.

11. Mr Holmes relied upon the skeleton argument which had been produced for the appeal in the First-tier Tribunal. He submitted that there were two issues in the appellant’s case: firstly the application of Article 15(c) of the Qualification Directive; and secondly, the issue of relocation and identity documentation. With regard to Article 15(c), he submitted that Sinjar was part of Nineveh province which was a formerly contested area. He relied upon a country expert report from Christoph Bluth which had been before the First-tier Tribunal and which, at page 19, stated that “Kurds - even though they are Sunni Muslims - remain at serious risk from ISIS in the region, especially if they are associated with Peshmerga, while the Hashd al-Shaabi, are also a risk to Sunni Muslims, ordinary Kurds and anyone associated with the Peshmerga”. He submitted it was relevant, in that regard, that the appellant was Sunni and that his father was a former peshmerga killed by ISIS. Mr Holmes also relied upon paragraph 5.4.3 at page 31 of the report which referred to Shia militias being the main flighting force of the Iraqi government and to militias enjoying immunity in committing war crimes against the Sunni community. He submitted that that was sufficient to establish an Article 15(c) risk and, further, that it was sufficient to meet the definition of refugee since the risk to the appellant was exacerbated by him being a Sunni Muslim. He relied upon [292] of (SMO, KSP & IM (Article 15(c); identity documents) Iraq CG [2019] UKUT 400 (“SMO1”) in that regard, which stated that “A decision maker who is minded to conclude, say, that an individual with an actual or perceived association with ISIL is more likely to be exposed to conditions contrary to Article 15(c) would be well advised to consider whether, in reality, it should be the 1951 Convention and not the Qualification Directive which should provide the appropriate protection against return.”

12. With regard to the issue of internal relocation and documentation, Mr Holmes relied upon the guidance in SMO and KSP (Civil status documentation, article 15) (CG)) Iraq [2022] UKUT 110 (“SMO2”) in submitting that relocation would not be reasonable for the appellant owing to the lack of family support, a lack of previous residence in a different area, and the high rates of unemployment. That was in addition to the fact that the appellant would be unable to redocument himself as he had no access to his original CSID which was left at his home when he was kidnapped after witnessing the execution of his father and brother. Mr Holmes submitted that in that respect it was relevant to consider the length of time that the appellant had been away from his home area and the fact that his home was in a conflict zone. It was likely that the original document was lost. He could not redocument himself in the UK or in Iraq as he could not return to his home area. His appeal therefore succeeded on that basis.

13. Mr McVeety relied upon [261] of SMO1 whereby it was found, with regard to Nineveh Governate, that there was not “such a high level of indiscriminate violence there that substantial grounds exist for believing that an ordinary civilian would, solely by being present there, face a real risk which threatens his life or person”. Mr McVeety referred to the list of characteristics relevant to the “sliding scale” analysis under Article 15(c), as set out in SMO1 and submitted that the only one which applied to the appellant was membership of an ethnic group. He submitted that, by the appellant’s own evidence however, it was not true that merely by being a Kurd the appellant would be in a worse position than anyone else, since the area was so ethnically diverse. There was therefore nothing to show that the appellant would be at risk on return. The expert did not go so far as to say that the appellant’s presence in Sinjar alone was sufficient to meet the Article 15(c) threshold. With regard to the evidence relied upon by Mr Holmes, Mr McVeety submitted that that dated back to 2018 and would therefore have been taken into account in the decision in SMO1. The country guidance had to be followed and accordingly the appellant could not succeed under Article 15(c). Mr McVeety submitted that the main issue was, however, documentation, as it was correct that the appellant could not redocument himself from the UK and would need family remaining in Iraq to assist him. He relied upon the adverse credibility findings made in regard to the appellant’s evidence about his brother and submitted that it was reasonable to assume that his brother was in Iraq and could assist him in obtaining his identity documents. He submitted that if the appellant’s brother was in Iraq it must be assumed that he had his own identity document and further that he would have the documents for the other family members. Mr McVeety accepted that that involved some speculation, but he submitted that it was reasonable speculation.

14. In response, Mr Holmes submitted that it would be wild speculation to conclude that the appellant’s brother was in Sinjar at the family home. It was unlikely that he would have returned there and also unlikely that the family would have been able to take their documents with them when they fled the area.

Discussion

15. We remind ourselves of the preserved findings in the appellant’s case, namely that he is from Sinjar in Nineveh Province, that ISIS attacked Sinjar in 2014 and killed his father and brother, took the rest of the family hostage, and that he and another brother escaped and fled to Turkey. It is also a preserved finding that the appellant would not now be of adverse attention to ISIS and that he had not given a true account of what happened to his brother in Turkey.

16. We start by making a finding that Sinjar is in a former contested area, Nineveh Province. That was the suggestion in Upper Tribunal Judge O’Brien’s decision at [14] and is consistent with the country guidance in SMO1. We refer to [258] to [261], and [425] at [B32] in that regard. Whether that is sufficient in itself to meet the Article 15(c) threshold is a matter which was considered in SMO1. As referred to by Mr McVeety, the Tribunal found at [261] with respect to Nineveh province as a whole that, whilst it remained an insecure area, it could not be said that there was such a high level of indiscriminate violence that substantial grounds existed for believing that an ordinary civilian would, solely by being present there, face a real risk which threatened his life or person.  The Tribunal found that the risk of actual or indirect violence to civilians in Nineveh was higher than elsewhere but it nevertheless fell short of the Article 15(c) threshold. That was clearly expressed at [425] at {B30] in the country guidance section of SMO1. We have considered the appellant’s characteristics and profile in the context of a “sliding scale” analysis in Article 15(c), in accordance with [B34]. We agree with Mr McVeety that, applying the risk factors in that “sliding scale” analysis, it cannot be said that the appellant, albeit meeting one of the characteristics as a member of an ethnic group as a Kurd, can demonstrate that that is sufficient in itself to meet the Article 15(c) threshold. We also agree with Mr McVeety that the references made by Mr Holmes to the country evidence within Mr Bluth’s report are not sufficient to show that the threshold could be met. Further, that the expert report, although referring to the high level of violence in the area, does not go so far as to conclude that the level of risk required to meet the Article 15(c) threshold was met solely by being present in the area.

17. In the circumstances, and whilst taking account of the appellant’s profile as a Sunni Muslim of Kurdish ethnicity, we do not accept that he has demonstrated an entitlement to humanitarian protection under Article 15(c) on the sole basis of the security situation in Sinjar. We find no evidence to persuade us to depart from the clear findings in the country guidance in SMO1, as confirmed in SMO2 at paragraphs A1 to A3 of the headnote, in that respect. It follows also, from our findings on risk on return, that the appellant cannot qualify as a refugee under the Refugee Convention. Mr Holmes’ reliance upon the appellant’s Kurdish ethnicity and Sunni religion as being sufficient to bring him within the Refugee Convention is, we find, far too tenuous to enable him to succeed on such a basis when there is otherwise no particular persecutor identified by the appellant sufficient to give rise to a risk in any event.

18. We do accept, however, that the appellant succeeds on the issue of documentation. Mr McVeety accepts that the appellant could not be re-documented in the UK. He also accepts that the appellant would need assistance from family or elsewhere in order to be reunited with his CSID document, which he would need to enable him to travel to Sinjar following his arrival in Iraq, or to relocate to another part of the country. Indeed, he would not be able to obtain an INID in any area other than his home area, as made clear in the country guidance. We refer to paragraph [C12] of the headnote in SMO2 in that respect:  “In order to obtain an INID, an individual must personally attend the Civil Status Affairs ("CSA") office at which they are registered to enrol their biometrics, including fingerprints and iris scans.” The respondent relies upon the preserved findings from the First-tier Tribunal, that the appellant’s account of his brother’s whereabouts from the time they travelled together to Turkey was not credible, to assert that his brother would be in a position to assist him in re-documenting himself. However in order to reach such a conclusion it would be necessary to find that the appellant’s brother had returned to Iraq from Turkey and had managed to obtain the appellant’s CSID, despite the accepted evidence that the family had fled Sinjar as long ago as 2014 and that the appellant and his brother had been kidnapped from their home by ISIS after the execution of their father and brother. Mr McVeety accepted that that required some speculation, but he submitted that it was reasonable speculation. We agree with Mr Holmes, however, that that would be wild speculation and is highly unlikely. Given the circumstances in which the family left Sinjar, and the situation there at the time, we consider it highly unlikely that the appellant’s CSID remains accessible, and highly likely that it has been lost in the intervening years, and we consider it highly unlikely that his brother would have returned to Sinjar in any event. We do not accept, therefore, that it can reasonably be concluded that the appellant could have access to his CSID through his brother or through any other means. In the circumstances the appellant would not be able to redocument himself prior to, or on return to Iraq, and would therefore be at real risk on his journey back to his home area or to any other area of Iraq including the KRI. Without an identity document the appellant would most likely be unable to access housing, employment, healthcare and other services, and would in the circumstances be at risk of enduring conditions contrary to Article 3 of the ECHR. We rely on [C11] of the headnote to SMO2 in that respect: “As a general matter, it is necessary for an individual to have one of these two documents in order to live and travel within Iraq without encountering treatment or conditions which are contrary to Article 3 ECHR.” For all these reasons we accept that the appellant’s removal to Iraq would put him at real risk of serious harm such as to be in breach of his Article 3 human rights.

19. The appeal is accordingly allowed on Article 3 grounds, on the basis that the appellant would be at risk on return to Iraq as an undocumented returnee in accordance with the guidance in SMO1 and SMO2.

DECISION

20. The making of the decision of the First-tier Tribunal having been set aside, the decision is re-made by the appellant’s appeal being allowed on Article 3 grounds.



S Kebede

Upper Tribunal Judge Kebede
Judge of the Upper Tribunal
Immigration and Asylum Chamber


13 March 2026



ANNEX ONE: ERROR OF LAW DECISION


IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2025-002194
First-tier Tribunal No: PA/58474/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

09/01/2026

Before

UPPER TRIBUNAL JUDGE O’BRIEN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

DMY
(ANONYMITY ORDER MADE)

Respondent

Representation:
For the Appellant: Ms S Lecointe, Senior Home Office Presenting Officer
For the Respondent: Mr C Holmes of Counsel, instructed by JD Spicer Zeb

Heard at Field House on 9 October 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. For convenience, I refer below to the parties as they were known before the First-tier Tribunal.

2. The respondent appeals against the decision of a First tier Tribunal Judge (‘the judge’) dated 28 March 2025 to allow the appellant’s appeal against the respondent’s refusal of his protection and human rights claim.

3. The judge summarises the appellant’s claim and the respondent’s response at [4] and [5]. In short, the appellant claimed to fear persecution from ISIS, who had killed his father and brother when they invaded his home area of Sinjar and who remained active in the area, and also to be at risk because of a lack of documentation. The respondent did not accept the appellant’s account or that he came from a contested area. She submitted that the appellant could in any event avail himself of state protection or relocate internally.

4. The judge rejected the appellant's claim to be at risk from ISIS [15]. However, he found Sinjar to be ‘a dangerous place for a range of people’ and that it was appropriate to apply a sliding scale assessment of risk on return [17]. The judge found that the appellant, as a Kurd, would be returning as a member of a group not in control and to which those in control (or seeking control) would be hostile [19]. The judge accepted that the appellant would be returning undocumented to Sinjar and found that that would add to the risk facing the appellant [21]. The judge concluded that, applying the sliding scale, the appellant would be at real risk of persecution in Sinjar on the grounds of ethnicity and religion [22]. He found that the appellant could not turn to the authorities (the PMF) for protection [ibid] and that relocation would be unreasonable [23].

5. Whilst refused permission to appeal by the First-tier Tribunal, the respondent was granted permission by the Upper Tribunal on all grounds. Those grounds are summarised in the grant of permission thus:

‘The grounds of appeal are that the First-tier Tribunal erred in law in (i) failing to give any or any adequate reasons for findings on material matters, including whether the Appellant’s area is a contested area for the purposes of considering the risk of indiscriminate violence and misdirecting itself in law as to the differences between the Refugee Convention and humanitarian protection, improperly applying the sliding scale from country guidance and finding a risk based on ethnicity which was not supported by background country evidence; and (ii) failing to give adequate reasons on the issue of redocumentation on return to Iraq, in particular in relation to the Appellant’s brother’s whereabouts and contact.’

6. In his rule 24 response, the appellant argued that the grounds amounted to mere disagreement with findings perfectly open to the judge. Evidence before the judge justified a finding that the appellant would be at risk from the PMF. The sliding scale was not relevant only to assessing the risk from indiscriminate violence but also to whether relocation would be unduly harsh and/or a continuation of earlier persecution by ISIS. The question of whether Sinjar was a contested area was immaterial. The judge’s findings on the appellant’s lack of contact with his brother was adequately reasoned and immaterial in any event.

7. The representatives made oral submissions to which I refer below only to the extent necessary to understand my conclusions. However, I took them entirely into account.

Consideration

8. The judge set out at [6] the issues to be decided as agreed between the parties:

a. Does the Appellant have a Convention reason?
b. Whether the Appellant is from a contested area?
c. Whether the Appellant came to the adverse attentions of ISIS?
d. Whether the Appellant will have sufficient protection?
e. Whether the Appellant can internally relocate to Dahuk, Erbil or Sulaymaniyah?
f. Whether the Appellant has his CSID card or can obtain one within a reasonable period of time?

9. In his ASA, the appellant asserted on the one hand that Sinjar is a formerly contested area (paragraph 14) and on the other that it is a contested area (paragraph 15).

10. No issue is taken with the judge’s finding that the appellant comes from Sinjar. As for whether Sinjar is a contested area or formerly contested area, the judge’s relevant findings are set out in [13(b)]:

(b) A review of the documents submitted by both parties establishes, I find, the following matters;

(i) ISIS took control of the area including Sinjar in 2014.

(ii) They subjected the minority communities, in particular the Yazidi ethnic group, to imprisonment, violence and death.

(iii) The area including Sinjar remained violent after the battlefield defeat of ISIS in 2017 but at greatly reduced levels. Much of the present violence is connected to the tensions between armed groups that fill the void after ISIS lost control of the area. These armed groups include the PMF who are Shia.

(iv) ISIS remained and remain, until 2022 at least, a threat in the area though not in the generalised way they were in the years after they took over. They continued to mount attacks against military targets and infrastructure on the basis of the expert report and SMO1 at least until 2021. In the Country Policy and Information Note of 20226 a report from the United Nations Security Council on the 26 July 2022 stated ‘Attacks (from ISIS) also occurred in Anbar and Ninawa Governorates, where Da’esh operates mainly in small, mobile cells’

(v) A great many people left Sinjar and have not returned and the area was badly damaged by the conflict. There are many displaced people in the KRG from the areas once controlled by ISIS.

11. His conclusions on the point and how that informed his subsequent assessment of risk are set out at [13(c)] and [13(d)]:

(c) Although the question of whether Sinjar is a contested area was identified as a matter in dispute it is in some ways a semantic point. The area remains violent and unsettled . There are various actors with in the area who pose a threat to groups in the community. The damage caused to Sinjar and its people was severe and it continues to have an impact on many former citizens.

(d) Although the Respondent did not specify whether or not they disputed that the Appellant came from Sinjar, his answers to the questions in interview about Sinjar are supportive of him coming from that area and his evidence has been consistent that he does, in fact, come from Sinjar. I find apply the lower standard of proof that the Appellant comes from Sinjar. As to whether or not it is a contested area, or a formerly contested area I find that this need not be resolved in order to answer the question of risk. I find that Sinjar remains a dangerous place for a range of people. I will return to SMO1 when making an assessment of the risk the Appellant faces and shall carry out a ‘sliding scale’ assessment as proposed by that case.

12. The judge’s reference in [13(d)] to SMO1 is, of course, to SMO, KSP & IM (Article 15(c); identity documents) CG Iraq [2019] UKUT 400. At [17], the judge continues:

‘17. As discussed above SMO1 encourages the application of the ‘sliding scale’ approach when assessing an Appellant’s risk on return to a formerly contested area such as Sinjar where I have found the Appellant to be from.’

before quoting from passages in the headnote to SMO1, which reflect country guidance given at [425]. However, those passages expressly concern the assessment of risk of return to the formerly contested areas of Iraq.

13. It is clear from [13(d)] that the judge expressly declined to find that Sinjar was a contested area or formerly contested area. Therefore, the opening sentence of [17] merely confirms the judge’s acceptance that the appellant was from Sinjar. Consequently, the judge fails to explain how his subsequent analysis applies to the appellant.

14. It could be argued (although the appellant, curiously, does not appear to take this exact point) that the same country guidance makes clear that Ninevah governorate is a formerly contested area, that Sinjar is located in Ninevah governorate, that Sinjar is therefore a formerly contested area, and thus that the judge’s failure to make such a finding for himself is ultimately immaterial. However, there are other fatal flaws in the judge’s analysis.

15. First, the guidance in SMO1 followed by the judge applies specifically to risk from indiscriminate violence and qualification for humanitarian protection under Article 15(c), and not risk of persecution for a Refugee Convention reason. No reasons are given by the judge for why the same approach is appropriate for both cases.

16. Second, the judge found at [19] that only one of the risk factors identified in SMO1 applied to the appellant: that he would, as Kurd, find himself in a group that is not in control and which those that are in control or are seeking control, especially the PMF, would be hostile to. Even adding to the balance his finding at [21] that the appellant would be undocumented, the judge fails adequately to explain how these factors would cross the threshold to create a risk of indiscriminate violence.

17. Third, the judge fails entirely to explain how such a risk of indiscriminate violence (even if adequately reasoned and rationally found) leads to a rational finding that the appellant would be at real risk of persecution by reason of his ethnicity and religion, as is baldly asserted at [22]. Mr Holmes submitted that, because the judge had found that the appellant’s Kurdish ethnicity was a risk factor, it was at least partially causative of the risk of indiscriminate violence, and because such violence would reach the level necessary to constitute persecution it was rationally open to the judge to reach the conclusion he did. However, the judge says none of that. Moreover, indiscriminate action is the very antithesis of action for a reason.

18. Mr Holmes preyed in aid Fornah v SSHD [2007] 1 AC 412, [2006] UKHL 46 at [17] as authority for the proposition that a persecutor does not need to be consciously motivated by the Convention reason in question, it merely needs to be an operative cause of the persecutory treatment. He submitted that the judge had found that to be the case for the appellant’s Kurdish ethnicity.

19. At [17] of Fornah, Lord Bingham of Cornhill said:

‘The meaning of “for reasons of”

17 The text of article 1A(2) of the Convention makes plain that a person is entitled to claim recognition as a refugee only where the persecutory treatment of which the claimant has a well-founded fear is causally linked with the Convention ground on which the claimant relies. The ground on which the claimant relies need not be the only or even the primary reason for the apprehended persecution. It is enough that the ground relied on is an effective reason. The persecutory treatment need not be motivated by enmity, malignity or animus on the part of the persecutor, whose professed or apparent motives may or may not be the real reason for the persecution. What matters is the real reason. In deciding whether the causal link is established, a simple but for test of causation is inappropriate: the Convention calls for a more sophisticated approach, appropriate to the context and taking account of all the facts and circumstances relevant to the particular case.’

20. To the extent that his reasons can be discerned, the judge appears to have found that, merely by being at risk of indiscriminate violence because of his Kurdish ethnicity, the appellant is thereby at risk of persecution for that reason. That is, with respect, the ‘but for’ approach deprecated by Lord Bingham. I should add that the judge does not even identify the appellant’s religion as a risk factor in his SMO1 analysis before concluding that he would be at risk of persecution for that reason.

21. Fourth, I am unpersuaded in any event that a finding of persecution can be adequately reasoned without identifying the likely persecutor. The judge does not do so. The closest he gets, having rejected the appellant’s case (a risk from ISIS), is a finding at [13(b)(iii)] that much of the present violence in Sinjar is connected to the tensions between armed groups, which include the PMF, who are Shia, and at [19] that the PMF would be hostile to Kurds. This is far short of a finding that the appellant is at real risk of persecution by the PMF. As it is, the judge appears to go no further than finding that the appellant could not turn to the PMF for protection [22].

22. Ground 1 therefore succeeds.

23. As for the judge’s reasoning on the appellant’s inability to redocument on return, the relevant findings are found at [20] and [21]:

‘20. On documentation, the submission is that he left Iraq in 2014 after having family members murdered, was detained by ISIS and escaped custody fleeing the country. It is entirely credible that if I accept the account of what occurred in Iraq in 2014, which I do, that the Appellant would have no documentation now and would never have had an INID. Mr Beckett submitted that I could take the issues with the Appellant’s credibility in terms of his brother in Turkey and apply that to his account of having no documentation and no family support. For the reasons I have given at paragraph’s 13 (f) and 14 to 16 I do not consider that the Appellant’s evidence is credible in every respect but this is not the end of the matter on credibility. I accept his account of what occurred in 2014 and that includes his evidence in respect of his family and his documentation. Mr Beckett suggested the Appellant could redocument but this, Mr Dingley, suggests would involve returning to Sinjar with all the risks described above.

The CPIN on redocumentation says

“3.6.7 However, those who return to Iraq or the KRI without a CSID or INID, cannot obtain one via a family member on arrival and who would be required to travel internally to a CSA office in another area of Iraq or the KRI to obtain one would be at risk of encountering treatment or conditions which are contrary to paragraphs 339C and 339CA(iii) of the Immigration Rules/Article 3 of the ECHR. In these cases, a grant of Humanitarian Protection is therefore appropriate (unless the person is excluded from such protection)”.

21. I have accepted the Appellant’s account of what occurred in 2014 and I therefore found that he would have no family support to provide him with assistance in redocumenting and I add this finding that he would be undocumented to my assessment of the risk he faces if returned to Sinjar.’

24. However, the appellant’s account of what happened in Turkey to the brother with whom he escaped from ISIS and fled to Turkey was rejected by the judge as untrue. Whilst the judge accepted the appellant’s account of events in 2014 and (implicitly) his inability to seek the assistance of family members left behind in Iraq, he gave no consideration to whether the brother who escaped with him to Turkey was back in Iraq and, if so, whether he could assist the appellant to obtain his existing documentation or in his redocumentation.

25. I am persuaded, therefore, that the judge failed to give adequate reasons for accepting that the appellant could not be met on return with his existing documentation.

26. For these reasons, ground 2 also succeeds.

Disposal

27. I have given careful consideration to whether the appeal should be remitted to the First-tier Tribunal or can be remade in the Upper Tribunal. Applying the principles in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), I am satisfied that the appeal can fairly and appropriately be retained for remaking in the Upper Tribunal.

28. The only conclusions challenged are that the appellant is at risk of indiscriminate violence in Sinjar, that he is consequently at risk of persecution by reason of ethnicity and religion, and that he would be undocumented on return. These findings are set aside. The judge’s conclusions on sufficiency of protection and internal relocation are to a greater or lesser extent infected by the errors found, and so are also set aside. However, the following findings are not challenged and so are preserved:

a. The appellant is from Sinjar.
b. ISIS attacked Sinjar in 2014, killed the appellant’s father and brother, took the rest of the family hostage, and the appellant and one brother escaped an fled to Turkey.
c. The appellant would not now be of adverse attention to ISIS.
d. The appellant has not given a true account of what happened to his brother in Turkey.

Notice of Decision

1. The decision of the First-tier Tribunal involved the making of an error of law and is set aside.
2. The decision will be retained to be remade in the Upper Tribunal with preserved findings as detailed above.
3. Any application to rely on evidence not before the First-tier Tribunal must be made no later than 2 weeks before the hearing to remake the decision and will be considered as a preliminary matter at that hearing.
4. Any skeleton arguments to be relied upon at that hearing must be filed and served no later than 1 week before the hearing.


Sean O’Brien

Judge of the Upper Tribunal
Immigration and Asylum Chamber

19 December 2025