Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002221
First-tier Tribunal No: PA/03260/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 5th of November 2025

Before

Deputy upper tribunal JUDGE Kelly

Between

MA
(ANONYMITY ORDERED)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr E Banham, Counsel instructed by Seren Legal Practice
For the Respondent: Mr N Wain, Senior Home Office Presenting Officer.

Heard (remotely) at Bradford on the 12th September 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 member of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. The Appellant is a citizen of Iraq. He made a protection and human rights claim on the 17th November 2021, which the Respondent refused on the 11th December 2023. Judge L Jones dismissed the appeal against that refusal on the 7th April 2025. Permission to appeal against that dismissal was granted by Judge Lawrence on the 15th May 2025. Thus, the matter came before me.
The appellant’s case
2. The essence of the appellant’s protection claim before the First-tier Tribunal was that he had a well-founded fear of being harmed on return to Iraq due to (a) him having been falsely accused of sexual assault by a woman called ‘H’ (the wife of a man called ‘H R’, who was director of the local security force), and (b) his political activities in the UK having come to the adverse attention of the authorities in the Iraqi Kurdish Region (IKR) of Iraq.
Findings of the First-tier Tribunal
3. The respondent accepted (as noted by the judge at paragraph 8 of their decision) that the appellant had attended protests in the UK against the regime in the IKR, and that he had created a social media profile in the UK upon which he had posted “related content”.
4. The judge also counted in the appellant’s favour the fact that (a) external evidence lent support to the general plausibility of the appellant’s account of him becoming a potential victim of ‘honour crime’ in the IKR [20, 25], (b) the fact that the appellant’s age, nationality and ethnicity was accepted by the respondent, as was his explanation for failing to claim asylum in France [21], and (c) the appellant had generally given a consistent account of claimed events in the IKR [22].
5. However, the judge found that the following negative factors outweighed the positive credibility factors summarised above, namely -
(i) The appellant’s failure “to provide any or any adequate explanation” as to

(a) why he was unable to escape through the front door at which H was standing whilst contacting her husband on her mobile telephone,
(b) how H was able simultaneously to unbutton her top, call her husband, and block his exit through the front door of her home, whilst at the same time speaking to her husband on a video call

(ii) The implausibility of H putting herself at risk of being sentenced for adultery when claiming to have been sexually assaulted by the appellant [23];
6. The judge also found, “further or alternatively”, that the appellant had failed to demonstrate that H’s husband had either the means or the motivation to harm the appellant given that, by his own account, H R had not threatened or otherwise contacted him on social media following the claimed incident.
7. Finally (so far as the appellant’s protection claim was concerned) the judge found that (a) “despite the scale of the followers in the virtual world, there is no evidence before me that the appellant has played a leading role in the demonstrations”, having, “played a low-level role at best”, (b) he was not “the creator” of much if any of the content on his Facebook page, (c) there was no evidence that the appellant had received any adverse attention due to his attendance at demonstrations in the UK or his social media activity, [29] and, “further or alternatively”, (d) he could delete his social media profile [30].
The grounds of appeal.
8. The first ground concerns the judge’s credibility assessment and can conveniently be summarized as follows:
(i) The judge failed to consider the appellant’s explanation for why he chose to leave via the back (rather than the front) door of H’s home, namely, (a) that H was of a large build and was thereby blocking his exit through the front door, and (b) the appellant did not wish “to get into a physical altercation with her”.
(ii) It was not implausible that, as a woman who had been scorned by her husband, H may not (in the heat of the moment) have considered the possible repercussions for her in making a false allegation against the appellant. She may, moreover, “have believed that her position in the Barzani family would have offered her protection”.
9. The second ground concerns the judge’s alternative finding that, by the appellant’s own account, H R had made no attempt to contact the appellant via social media, and was thus without the means and motivation to pursue the matter. In so finding, it is said that the judge failed:
(i) to note the appellant’s claim that H R had on one occasion raided both his home and his business,
(ii) to refer to any “objective evidence” that threats are routinely made over social media in “honour matters”,
(iii) to take account of evidence showing the extent of H R’s social media profile.
10. The third ground concerns Judge Jones’ assessment of the risk of the appellant’s political activities in the UK coming to the adverse attention of the authorities in the IKR, and can conveniently be summarized as follows:
(i) The judge failed to have regard to the specific evidence listed under paragraph 5.2 of the grounds.
(ii) The judge misunderstood the appellant’s evidence concerning the creation of his posts on Facebook.
(iii) The judge did not take account of the impossibility of deleting posts about him that had been made by others.
(iv) The judge failed to take account of the fact that the respondent had confiscated and then lost the appellant’s mobile phone upon his arrival in the UK (this had also limited the appellant’s ability to provide evidence in support of his core claim).
Analysis
11. I consider the grounds as they are numbered in my summary (above) rather than by reference to their numbering in the written grounds.
12. The three reasons given by the judge for disbelieving the appellant’s account of the claimed incident that led him leaving Iraq (summarised at paragraph 5 above) are each based upon the concept of what is often termed ‘implausibility’. In other words, the factfinder considers that the events as described by the witness are so inherently unlikely as to be (in the words of the judge at paragraph 23(c)) “not capable of belief”. In elaborating upon the first ground, Mr Banham cited passages from well-known authorities that refer to the need for caution when using this essentially subjective factfinding tool. Those authorities also stress the special need for caution when assessing claimed events that are said to have taken place in a social and/or cultural milieu with which the factfinder is unlikely to be familiar. It should therefore be noted that it is only the judge’s third reason that is predicated upon what is assumed to be a cultural norm in Iraq (blaming female victims for sexual assaults perpetrated against them) with which the judge was unlikely to have had any direct experience. The complaint made about the other two ‘implausibility reasons’, however, is the judge’s alleged failure to consider the appellant’s explanation for those aspects of his account whose plausibility had been questioned by the respondent in their ‘Reasons for Refusal Letter’ and whose reasoning the judge largely adopted when dismissing the appeal against that refusal. I therefore turn to consider this complaint in a little more detail.
13. Whilst it may be appropriate for a party to proceedings to allege that an opponent has failed “to provide any or any adequate” evidence in support of their claim at a stage when the ultimate state of the evidence may be unclear, it was not in my judgement appropriate for the judge to use it in connection with the appellant’s concluded evidence concerning his escape from H’s house. Either the appellant did not give any explanation at all as to the circumstances that led to that escape, in which case that was all that needed to be said, or his explanation was inadequate, in which case the judge needed to explain why they considered this to be the case. However, as the judge acknowledged within the very same sentence, the appellant had in fact given such an explanation; namely, that H was of a large build and was blocking his exit through the front door [23(a)]. The limited reason given for treating this explanation as ‘inadequate’ was the supposed implausibility of H being able to prevent the appellant’s escape by this means whilst simultaneously doing “other things” (including contacting her husband) and that the appellant had by his own account been able to “grab” the phone on which she was speaking to him. As the written grounds point out, the clear implication of this reasoning is that the appellant had failed to explain why he could not in the claimed circumstances have simply “manhandled” her out of his way whilst her attention was distracted by the video call she was making to her husband. However, at paragraphs 11 to 13 of his witness statement, the appellant gives a very detailed explanation of the escalating situation that he claims to have faced, explaining that he, “did not want to touch her or to get into a physical altercation with her”. He repeated this explanation at paragraph 36, saying, “I did not want to touch her or to get into any struggle”. In the same paragraph, he explains that he had, “reacted impulsively by smashing the phone to the wall before fleeing”, because he was “so upset and angry at this accusation”, which he thought at the time may have been, “a set up”. Whether those explanations were ‘adequate’ or ‘plausible’ was of course a matter for the judge to determine. However, by failing to consider them I am satisfied that the judge fell into legal error, namely, in failing to have regard to clearly relevant evidence before reaching a conclusion that was adverse to the appellant.
14. The second reason that the judge gave for finding that the appellant’s account was “not capable of belief”, was that the appellant, “cannot adequately explain how H was able to do so many things at once - unbutton her top; call her husband; block [him] from leaving whilst getting the appellant into the picture for her husband – in a situation that he invites the Tribunal to accept was not one which he wished to prevail”. Tellingly, the judge did not suggest that it would have been impossible for H to have done these things simultaneously; merely that she would have had “greater difficulty” in doing them as described by the appellant had his account been true [23(b)]. It is in any event questionable whether the appellant’s description of the events in his witness statement involved H having done all these things “at once”. On one interpretation of that evidence, H had first blocked the appellant’s exit, she had then unbuttoned her top (which, according to the grounds of appeal, the appellant had explained in oral evidence was easily accomplished due to her loose-fitting clothing) and had then called her husband. Be that as it may, the appellant’s explanation for how H had been able to achieve these things, without him intervening to prevent them, was that he had wished to avoid becoming embroiled in a physical altercation with her. His explanation was thus intimately linked to that which he had given for why he had not used physical force to move her out of his way to facilitate his escape through the front (rather than the rear) door, in respect of which I have already found the judge fell into error by failing to consider relevant evidence.
15. The judge’s third reason for finding the appellant’s account incapable of belief - the implausibility of Helin risking the potential adverse consequences to herself in alleging a sexual assault – appears to have been based upon external evidence referred to in the Reasons for Refusal Letter, to the effect that, “the worst consequence a woman may face for adultery is to be killed”. This too was addressed by the appellant in his witness statement to which the judge again did not make reference. Thus, at paragraph 39, the appellant suggested that H may have ignored the risk to herself of making a false allegation of sexual assault because, “she was angry and upset with her husband, she felt hurt and betrayed, I believe she did this on purpose to make her husband hurt in the way she was hurting, may she did not care about the consequences” [40]. It would have been better had the judge acknowledged the appellant’s suggested explanation for H’s claimed conduct, if only to note (as the appellant himself had acknowledged in the same paragraph) that he could only infer what had lain behind H’s actions. I accordingly conclude that the judge did not fall into legal error in this regard.
16. I am conscious that an appellate tribunal should be slow to interfere with reasoned factual findings made at first instance, even where those findings are (as I have found) tainted by error of law. However, I have concluded that in the circumstances of this case I should exercise my discretion to set those findings aside and to direct that the matter be completely reheard in the First-tier Tribunal. My reasons for this conclusion are that (a) the judge’s adverse conclusions were entirely based upon an assessment of the plausibility of appellant’s account and, in two out of three instances, were reached without having first considered relevant evidence, and (b) there were at least three credibility factors that favoured the appellant (acknowledged by the judge and summarised at paragraph 4, above) which potentially outweighed those the adverse findings that are tainted by error of law.
17. Grounds two and three were fully argued at the hearing. However, given that they are pleaded in the alternative to the first ground, which I have allowed, it is unnecessary (and potentially unhelpful) for me to adjudicate upon them.
Notice of Decision
18. The appeal is allowed.
19. The decision of the First-tier Tribunal is set aside with none of its findings preserved.
20. The appeal is remitted for complete rehearing in the First-tier Tribunal before a judge other than Judge L Jones.

David Kelly Date: 23rd October 2025

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber