Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-002292

First-tier Tribunal No: PA/50590/2024
LP/08082/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

7th July 2026

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

MS
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S Kadic, instructed by Wimbledon Solicitors
For the Respondent: Mr Clewley, Home Office Presenting Officer

Heard at Field House on 27 April 2026

DECISION AND REASONS
1. The appellant, a citizen of Iraq and 66 years old, appeals the decision dated 27th February 2025 of First-tier Tribunal Judge Chana (the judge) who heard the appeal on 6th February 2024 and dismissed the appellant’s claim.
2. The appellant (and with her son as a dependent) appealed the Secretary of State’s decision dated 2nd January 2024 to refuse her protection claim. The appellant claims that she was employed by a school in Iraq and on 17th February 2021 she moved a troublesome student to a different school. The child’s father was involved with the military. The child’s family started threatening the appellant and she reported him to the police after which she was forced to go into hiding staying with relatives in Erbil. She claimed she would be at risk of persecution should she return to Iraq.
3. At the appeal hearing before the FtT the appellant gave oral evidence through a Kurdish interpreter.
Grounds of appeal and permission
4. The grounds of appeal were as follows:
Ground (i) the judge gave the appearance of bias leading to an unfair hearing. The appellant relied on the Serafin v Melkiewicz & Ors [2020] UKSC 23 and Elais (fairness and extended family members) [2022] UKUT 300 (IAC).
Counsel representing the appellant appended her Note of Hearing with the grounds and advanced that the judge interjected forcefully as could be seen from certain excerpts from the Note of Hearing. There was an exchange in relation to the child starting and leaving school following which the judge asked whether the claim was being pursued purely on Articles 3 and 8 (ECHR) or whether the protection claim was being pursued as well. The judge then directed the Home Office Presenting Officer (the HOPO) to continue with the comment ‘Mr Hedwen she said September 2021 so carry on’. Following questions about whether the Head teacher was aware that the appellant had taken action to remove a pupil from the school to another school, a further exchange took place and the judge intervened ‘somewhat forcefully’ after the question whether the head teacher knew that the appellant was removing the pupil, with the observation ‘you are not answering the questions yet again’ and repeating the question. The appellant confirmed the head teacher agreed with the decision.
The judge further intervened following an exchange between the HOPO and the appellant when the HOPO was exploring a discrepancy in the appellant’s oral evidence in relation to her journey to the UK. The judge intervened again to tell the HOPO he had no need to put that question and counsel for the appellant intervened to indicate the question should be put properly to clarify what the appellant meant. The judge agreed.
Following the conclusion of the HOPO’s cross examination, the judge had questions in clarification and in particular concerning the appellant’s ability to move a child to another school. It was arguable that the judge ‘entered the arena’ in cross examining the appellant not simply asking clarificatory questions. The exchange was concluded by the following
‘by what authority can you move a child to another school? – I was responsible to move, I have the responsibility, I can move a child to another school, there are other times I have moved to another school’.
The judge closed by stating ‘I am just going to say question not answered’.
To an objective observer the judge would appear biased against the appellant. The tone and nature of the judge’s interventions demonstrated a lack of open mindedness fairness or patience and at time were bullying in nature.
Arguably the intervention earlier in the HOPO’s cross examination, whether the appellant was pursuing the protection claim, was indicative that the judge had already formed a view. That the judge indicated that the HOPO need not clarify an identified discrepancy and the intervention shortly afterwards staying ‘at the hearing just now you said to me you went walking and by car to Germany’ could be perceived as bias.
The judge put some questions to the appellant in a negative way based on the judge either mishearing or misconstruing evidence and was likely to have confused the appellant.
Ground (ii) following the judge being clearly told the appellant had the authority to move a child to another school the judge declared ‘I am just going to say the question not answered’.
It is submitted that the judge’s findings on credibility fell into the trap deprecated in Y v SSHD [2006] EWCA Civ 1223 [25] whereby the judge substituted her own opinion of how school expulsions and transfers occurred in the KRI based on her understanding of how the process worked in the UK and not based on the evidence before her. There was no objective evidence available as to how school transfers occurred in the IKR and it is plausible that the system is very different.
5. Permission to appeal was granted on the grounds listed above. It was noted that arguably there was an error of law through a flawed credibility assessment, with the judge rejecting the appellant’s account of her role in the expulsion and transfer of the child to another school, effectively by comparison to how such matters would be dealt with in the British education system. Permission was granted on all grounds.
Submissions
6. At the hearing int the Upper Tribunal, Ms Kadic relied on the grounds.
7. In the first ground the judge appeared to be impatient with the appellant not answering the questions and was perceived as hostile and then proceeded to descend into the arena. Ms Kadic did confirm that in relation to the ‘joint decision’ the intervention was not inappropriate. The exclusion was a point of culture.
8. There was no evidence before the judge to make the findings she did in relation to ground (ii). The decision to move the child was, as the appellant stated, a joint decision between her and the headteacher. The judge, however, did not find it a joint decision owing to reliance on the British education system. This was culturally specific. Additionally, the differing roles she described were in fact because of different interpreters between the screening interview, asylum interview and oral evidence. In her statement the appellant described herself as not having a teaching role and in 2016 she was promoted to pupil affairs assistant. The judge also at [10] of the decision found it was not possible, without reasoning, that the cleaner (who had relayed the threat) lived near or was a relative of the powerful father of the child excluded from school.
9. Ms Clewley relied on the Rule 24 response. She had not listened to the audio recording herself. She noted the judge made a series of sustainable findings from [8] to [18]. The conclusions did not turn on who made the decision. The appellant had given inconsistent titles. The point on the authority of the appellant was put to her. This question was not merely something raised by the judge but raised by the HOPO.
10. The judge merely raised clarifying questions. There was also confusion over the dates the child joined or was expelled from school. Mr Clewley relied on Hossain v Secretary of State [2024] EWCA Civ 608 at [76]. The question was whether the judge considered the evidence objectively. The judge intervened appropriately and was alert to inconsistent answers. The point on the refugee convention was merely an observation.
Conclusions
11. Hossain held as follows:
45. In Serafin v Malkiewicz and others (Media Lawyers Association intervening) [2020] 1 WLR 2455, the Supreme Court considered the approach the court should take when considering the effect of a judge's interventions during the course of a hearing. It was noted, at [40], that the "leading authority on inquiry into the unfairness of a trial remains" Jones v NCB (my emphasis). Southwark LBC v Kofi-Adu was referred to, at [41], both in respect of the observation, at [145], that trial judges are "more proactive and interventionist" and the observation, at [146], that "interventions during oral evidence … continued to generate a risk of their descent into the arena, which should be assessed not by whether it gave rise to an appearance of bias in the eyes of the fair-minded observer but by whether it rendered the trial unfair" (my emphasis).
46. In the course of his analysis of the authorities, Lord Wilson (who gave the sole judgment) also referred, at [38], to what Hildyard J had said in M & P Enterprises (London) Ltd v Norfolk Square (Northern Section) Ltd [2018] EWHC 2665 (Ch) ("M & P Enterprises"), at [32]-[42], about the difference in the approach to an allegation that a trial had been unfair and to an allegation that the judge had been biased. As Lord Wilson noted: Hildyard J "added that they required appraisal from different perspectives for, while the fairness of a trial required objective judicial assessment, the appearance of bias fell to be judged through the eyes of the fair-minded and informed observer" (my emphasis).
12. Moylan LJ in Hossain also approved at [58] the following
58. Ouseley J also said, at [43]:
"An Adjudicator ought not to interrupt examination-in-chief or cross-examination except in the circumstances to which we have referred or for other reasons associated with the general control of the case and the court room. If there are inconsistencies between documents and oral evidence or between answers which have been given already, it is nearly always best to wait until after cross-examination and re-examination to see what matters are put. However, it is wholly legitimate for the Adjudicator to ask his or her own questions on issues of inconsistency, points raised in the refusal letter or matters which trouble the Adjudicator whether or not they are raised by the other party. What is important, however, in relation to those matters is that the Adjudicator should not develop a different case from that being presented by the other party or pursue his or her own theory of the case." (my emphasis)
And, at [44]:
"The manner in which any intervention is undertaken is also important. It should not be done in any hostile manner or in a manner which suggests that the Adjudicator's mind has been made up. Questions should not be leading questions or ones which conceal the purpose for which they are asked, but instead should be direct and open-ended questions. It is perfectly proper for the Adjudicator to ask, after questions have been put in cross-examination and re-examination has taken place, why a witness has said x when earlier that or another witness has said y, or how document x can be reconciled with document or oral evidence y. An Adjudicator is entitled to follow the logical train of answers to see how they fit with the case if that is regarded as potentially significant for an issue in the case. It is also important, however, that an Adjudicator should keep a sense of proportion about the questions which he or she asks. It is not for the Adjudicator to take over conduct of the case either by the number of questions asked or the development of his or her own theories. The interventions may or may not assist one or other party. They are not unfair merely because one or other party may derive assistance from them." (my emphasis).’
13. I also note Elais which referenced various well-established principles relating to fairness and which at [37] set out that ‘In summary, interventions that stray beyond the merely supervisory role of a judge during the taking of evidence risk a judge descending into the arena and so clouding their vision by the dust of conflict.’
14. Following the principles elucidated above I am not persuaded that ground (i) is made out.
15. First, as outlined it was open to the judge to attempt to clarify the issues on inconsistency which she considered had not been resolved satisfactorily. The roles of the appellant was an important issue in the appellant’s case.
16. Secondly, the headnote of PA (protection claim: respondent's enquiries; bias) Bangladesh [2018] UKUT 0337 (IAC) concludes
"4) As a general matter, if Counsel concludes during a hearing that a judge is behaving in an inappropriate manner, Counsel has a duty to raise this with the judge.
(5) Although each case will turn on its own facts, an appellate court or tribunal may have regard to the fact that a complaint of this kind was not made at the hearing or, at least, before receipt of the judge's decision."
17. Counsel for the appellant, who is very experienced at no point raised an issue at the hearing that the judge displayed bullying or hostile behaviour towards the appellant. The intervention was in relation to the evidence recorded. Having considered the minutes of the hearing and the transcripts I am not persuaded that the judge has failed to be open minded or unfair. The judge was attempting to attempt to reconcile the evidence. It is correct that the appellant had described her role in various ways.
18. The judge was entitled to follow the logical train of answers and raise issues thereon as the oral evidence developed.
19. In terms of clarification as to whether the appeal continued to rest on the protection grounds, it is confirmed in the grounds that updated material was submitted in a supplementary bundle including a letter from a medical practitioner and as a result permission was sought to amend the grounds of appeal to the FtT to include medical grounds under Article 3. It may be that the judge should have clarified the grounds at the outset rather than part way through the cross examination, but points are sometimes taken out of order and judges are not confined in strait jackets to a specific order. This question in context does not raise the spectre of bias or render the proceedings unfair. The hearing extended to over two and half hours and it cannot be said that the appellant was unable to give her evidence.
20. In the appellant’s counsel’ notes and where it is recorded the judge is being unfair about the evidence, I have carefully listened to the audio recording. I have not had a full written verbatim transcript of the proceedings but only access to the audio recording.
From the start of the cross examination, I have done my best to faithfully transcribe the evidence from the recording as follows:
Cross examination:
HOPO can you just explain to me please what your role was at the school you worked at was?
App: Head teacher’s assistant
HOPO: what did that involve
App: I was controlling the students
HOPO: discipline – what does she mean
App: if there is an issue I was dealing with it.
HOP: where you teaching at this stage or dealing with administration?
App: no, I was not teaching
HOPO: when this boy, when did the problems with him start do you know?
App: on 17th February 2021 I moved him and then the problems started on 20th
HOPO: ok so but how long had he been badly behaved?
App: so he was continuously behaving you know badly, a few times we warned him until the teachers obliged us to transfer him sometime?
HOPO: when you say for sometime how long months years I want to know how far back this problem goes?
App: so since the beginning, everyday he was getting worse and worse, I called him many times and I talked to him but like he was getting worse and worse.
Judge: now can you please answer the question the question is a very different one. We want a timeframe.
When did he start misbehaving, how many warnings did you give him and when did you get rid of him, we want the dates?
App: in January before like February
Judge: give the year
App: 2021
Judge: Jan 2021
App: he started from then
Judge: – he started misbehaving
App: on 17th Feb 2021 I decided to transfer
Judge: 17th Feb 2021 – you decided to move him
Judge I am just writing what she just said – I decided to remove him is that what she said
App: yes
Judge : so after basically, ok to be quite clear about this so 17th from Jan - what date in January?
App: I don’t remember the date
Judge: ok so from January 2021 until 17th February 2021 – which would be about 3 weeks later
App: 3 weeks to one month something like that.
Judge: yes Mr Hedwen
HOPO: – when did this boy actually start at school?
App: he was at our school from the beginning.
Judge: now you have to understand when the questions are put to you, you can’t just say beginning, soon, we have to have time frames.
App: oh it was the same year ,same school year he moved to our school which was year 9 - oh no year 3- sorry
Judge: moved in year 3 – what year 2021
App: yes
Judge: thank you
HOPO: I don’t understand that - when did he arrive at school?
App : at the beginning when the school opens.
HOPO: ok we are going round in circles
App: you mean the month?
HOPO: I want to know when this boy started attending this school
App: in September 2021
HOPO: how can that be?
App: at the beginning when the school starts.
HOPO: that’s not what I mean I think, I am asking a question that could be understood by most people. I want to know when this boy first started attending this school.
App: the year before 21 he came to our school – in 2021 in January 2021 he started misbehaving.
Judge: let’s take a pause do you understand you are in a court of law?
App: Sorry
Judge: Do you understand you are in a court to law?
Judge: Do you understand you have to tell the truth?
App: he was our student, but I can’t give you the exactly when he started.
Judge: if you don’t know something just say I don’t know
App: I don’t know the dates but I know that he was our student
Judge: because you have given inconsistent evidence already. You said that at March 2021 you got rid of him and then he started the school in September 2021, I mean this doesn’t make any sense
App: 17th February not March
Counsel for App: So sorry to intervene judge but I shall. Her evidence was not March 2021 but looking back through the evidence she was umm – the point where you intervened and you said
‘you can’t just say the beginning we have to have a time frame ‘ the reply was that same school year that he moved to our school which was year 3. The school year obviously starts…
Judge: I’ll tell you how it went. When did the problem start 17th February 2021 I moved him, how long was he badly behaved – a few times we warn him, how long was he misbehaved for that … how long was he misbehaving – January 21 he started misbehaving, 17th February I decided to remove him which would be about 3 weeks to a month. When did the boy start at the school – from the beginning, he moved in year 2021, when did the boy start school September 2021.
I have everything in verbatim, so the dates do not pan out here. Do they? Are you still relying on the refugee?
Counsel: I am still relying on the refugee judge. Her reply was at the beginning when the school opens, the beginning when the school opens - starts, the year before 2021 he came to our school and in 2021 the bad behaviour starts.
Judge: We are not having a discussion at this time. This is a time for evidence. All these matters will be put to me in submissions. If you think this her evidence her evidence is not inconsistent you will tell me why after I have read my record to you as to what aspect you think is not inconsistent but that is a matter for later.
For now, I ask you to listen to the question very carefully before replying. Do you understand it is important? If you need some time in your head to answer it take the time.
Mr Hedwen: we were at the point of when did the boy start school and she said September 2021, so carry on
HOPO: I think you understand what we are looking for here. What I want to know is when did this boy first go to this school when was his first day at this school?
App: I don’t remember the date.
HOPO : ok that is fine.
21. I have listened very carefully to the audio recording. When taking the exchange transcribed and listened to, as an example, a note of frustration creeps into the questioning by both the HOPO and the judge but the tone and manner does not descend, in my view, to hostility to the appellant who was indeed represented. The counsel did intervene but only in relation to the evidence which in view of the vague answers given by the appellant to straightforward questions evidently caused confusion. The same very question was repeated over, and rightly owing to the confusion, and the appellant accepted that she did not even know. The point on the starting/exclusion from school was not taken against the appellant in the reasoning. At the close of the exchange above the judge clearly and correctly reminds counsel that submissions on evidence could be made.
22. Although, there was much discussion about the HOPO’s minute and whether the judge interjected during his cross examination, there was clearly a contradiction in the evidence given that the judge attempted to clarify. On the one hand the appellant stated that she made the decision to remove him and then stated that the head teacher agreed. Moreover, the dates were not coherent initially and until the appellant stated she in fact did not know the answers to certain questions.
23. Although the Home Office minute transcript would indicate that the judge carried on with the questions at page 3 when I listened to the audio recording that was not the case. The judge only intervened once at this point. At points in the cross examination the judge exhorts the HOPO to question in very plain terms. The judge repeats the question in relation to travel to Germany and elicits the correct answer.
24. As to descending into the arena as held at [73] of Hossain
‘The ultimate issue is, therefore, whether the FTTJ's questioning made the trial unfair. As Lord Mustill observed, as set out above, this is "essentially an intuitive judgment".’
25. In my view having listened to the audio recording, the number of questions asked by the judge was not necessarily unusual, and further it is necessary to look at what happened qualitatively as well as a quantitatively. I am not persuaded that the judge’s questioning could be described overall as hostile or disclosed a ‘barrage of hostility’ as deprecated in Serafin. The judge prefaced her own questioning with the need for clarification and was clearly aware of the limits of questioning and in essence pursued lines of enquiry that fell within the areas previously covered by the evidence including the SSHD's cross-examination.
26. Ground (ii) As to who held authority and the culture of education in Iraq, the judge specifically asked the appellant about this and confirmed that the appellant helped the headmaster with his duties. The judge asked why was the headmaster (teacher) not in charge of all the decisions? The appellant was thus specifically asked about this point and the judge also asked was it not the responsibility of the headteacher as to what happened at that school. The judge was entitled to ask that question. The appellant stated that the Head teacher had 2 assistants and she was the one dealing with student’s duties. The judge clarified with the appellant saying ‘tell me what you think, expelling a student from school is an extremely serious matter?’ and repeated this and to which the appellant replied opaquely, ‘I take it seriously’. The appellant agreed that it was even more serious if the father were powerful. The judge then asked, ‘What made you make a decision without the headmaster?’ The appellant answered that everyone knew and agreed, and the judge thus confirmed it was a collective decision. The judge then asked if the others had been threatened. Again that was open to the judge. The appellant stated she signed the ‘moving papers’. The judge specifically stated tell me if it is ‘wrong’ when she asked how the appellant had the authority to move a pupil to another school. The judge repeated that she already knew the appellant was stating the pupil was misbehaving and directly asked the appellant ‘by what authority’ she could move a child to another school?’. The appellant merely stated that she had the authority to which the judge replied she was not going ask again saying it was a very simple question. The appellant had the opportunity to expand on the source of her authority within the education system in Iraq but did not. The judge then proceeded to ask the appellant about the threats she received from the family.
27. The fact is that the appellant was specifically asked about how she derived her responsibility for such a serious matter and merely replied she had the responsibility. Rather than a cultural question it was seen by the judge as a rational matter as to the role of the appellant as an administrator to expel the child and moreover the ‘authority’ of the appellant to move the child to another school. Those in my view were legitimate questions. The differing job roles was not determinative of the judge’s findings; crucially, the judge stated at [9] ‘I also do not find it credible given the appellant’s claim that Khan was a very powerful man, she would move his child to another school without his consent’. That was a conclusion open to the judge and related to the power of the excluded pupil’s father rather than the role of the appellant herself.
28. I am not persuaded that the judge was ‘over influenced by his [her] own views on what is or is not plausible’ or acted contrary to Y v SSHD which confirms at [25] that a judge’s ‘views will have inevitably been influenced by his own background in this country and by the customs and ways of our own society. It is therefore important that he should seek to view an appellant's account of events, as Mr Singh rightly argues, in the context of conditions in the country from which the appellant comes. ‘.
29. On reviewing the audio recording that is exactly what the judge did here. A judge is not obliged to take at face value an account of facts proffered by an appellant and is not expected to suspend judgment.
30. As to the point on the change of interpreters the judge would have been aware that different interpreters were used but specifically noted that there had been a change in the appellant’s evidence as to the nature of the threat. That was open to the judge. The judge stated at [10] that there was no explanation as to how the cleaner, even as a neighbour, could hear the appellant being threatened by the ‘powerful man’ on the telephone. That logic would appear open to the judge.

Notice of Decision
The Judge did not err materially for the reasons identified. The decision of the FtT judge will stand and the appeal remains dismissed.

H Rimington

Judge of the Upper Tribunal Rimington
Immigration and Asylum Chamber

29th June 2026