Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002564

First-tier Tribunal No: PA/63446/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 11 August 2025

Before

UPPER TRIBUNAL JUDGE KEITH
DEPUTY UPPER TRIBUNAL JUDGE LAY

Between

HSS
(Anonymity Order made)
Appellant
v

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S Aziz, instructed by Justice and Rights Law Firm Ltd
For the Respondent: Ms R Tariq, Senior Home Office Presenting Officer

Heard at Field House on 6 August 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the anonymity of the Appellant is maintained.

No one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The Appellant is from the Kurdistan Region of Iraq (KRI). He left KRI in April 2019, spent two years in third countries and then entered the UK on 28 April 2021 and claimed asylum. He claims to be at risk on return to KRI, owing to his attendance at a demonstration there on 17 December 2017. He also advances a sur place claim flowing from political activity in the UK since 2021 in which he says the KRI authorities would take an interest.
2. The Secretary of State refused the asylum and human rights claims in a decision dated 22 November 2023. His appeal against that decision was dismissed in a First-Tier Tribunal determination promulgated on 26 March 2025. First-tier Judge Chana did not accept the Appellant’s account of being on an arrest list in IKR, made wide-ranging adverse credibility findings and dismissed the sur place claim, as well as an Article 3 ECHR claim which was based on return without documentation.
3. Permission to appeal to the Upper Tribunal was granted by First-Tier Judge Stevenson on 10 June 2025.
4. There was a Composite Bundle served. Bundle references in this determination are in the following format: [CB: XX]: [Composite Bundle: PDF page number]. There was no Rule 24 reply by the Respondent. A skeleton argument for the error of law hearing, dated 30 July 2025, was served on behalf of the Appellant.
The two grounds of appeal
5. While the grounds of appeal drafted by the Appellant’s solicitors [CB: 10] were diffuse and unstructured, Ms Aziz acknowledged that there were, in essence, two aspects to the challenge: (1) that the FTJ had mis-stated at paragraph 5 of the determination that the appeal had been narrowed, by the Appellant’s consent, to the sur place claim alone when, in reality, the appeal was always advanced on the twin fronts of the 2017 protest as well as a sur place claim; and (2) the FTJ failed to have any, or any adequate regard, to two key pieces of evidence capable of assisting the Appellant in establishing his past account – namely, an image of the Appellant at the claimed protest [CB: 47] and an identity document of the Appellant’s uncle [CB: 46] which was said to be corroborative of the Appellant’s contention that his uncle was part of the KRI’s security services (sometimes referred to as the “Asayish”) and thus someone who was in a position to have learned of the Appellant being placed on a list of individuals of adverse interest.
Submissions
6. Ms Aziz submitted, first, that the FTJ had erred at paragraph 5 of the determination in stating that “it was accepted that the only issue for me to decide in this appeal is whether the Appellant will be persecuted in Iraq for his imputed political opinion due to the appellant’s surplus [sic] activities by attending demonstrations in the United Kingdom”. Ms Aziz argued that events in KRI were always part of the appeal and there was no such narrowing of the issues. She maintained that paragraph 5 was the foundation of the FTJ’s failure to properly consider the asylum claim which flowed from the 2017 protest.
7. On Ground 2, Ms Aziz submitted that the FTJ had failed to have regard to a “still” of a video of the 2017 protest. There was no mention of the “still” in the determination under challenge. It was a central part of the Appellant’s case that “went to the heart of this account”.
8. At this stage we invited Ms Aziz to assist the Tribunal on whether or not it was evidentially correct that the image [CB: 47] had been proffered in evidence in the FTT as being a “still” from a video/Iraqi television, as the grounds of appeal and latest skeleton argument have asserted. In the index to the Appellant’s Bundle in the FTT it is described simply as “Photograph from December 2017”. In the Appellant’s witness statement for the FT appeal [CB: 28] he states that he has an “old photo when I attended the demonstration in 2017. The photo was taken by someone who sent it to my brother”.
9. Ms Aziz was given time to take instructions. When the hearing resumed, she confirmed that she could offer no further assistance on the issue beyond what was apparent on the face of the papers. She maintained that the image, whatever its provenance, was relevant evidence which established that the Appellant was at a protest, as claimed, and should have been taken into account when evaluating credibility of the past account. She also said that “this led to him being publicly identified as a target”.
10. We then heard submissions on the identity document of the Appellant’s uncle. The Appellant’s case was that he learned that he was on a wanted “list” via the uncle, who was in a high enough position in the security apparatus to have had access to such information. There was no finding by the FTJ on whether the document was reliable and no integration of that evidence into the discussion of the uncle at paragraph 10 of the determination. Ms Aziz submitted that “if the Judge had taken account of the card, she would have seen that he was in a security role” and this was directly relevant to a core issue in dispute. It was at least capable of “rebutting the adverse credibility point” made in paragraph 10.
11. Ms Tariq, on behalf of the Secretary of State, submitted in reply that Ground 1 had no merit because the determination, notwithstanding the mis-statement at paragraph 5, nonetheless dealt with all the live issues in the appeal. Paragraphs 7 to 13 are solely focused on the past account. It is poor wording but no more.
12. On Ground 2, Ms Tariq stressed that there was a lack of “coherence” as regards the photo/image put into evidence. She argued that it is not clear what it seeks to show, its origin has not been clarified nor did the Appeal Skeleton Argument or any other material from the FT hearing assist in that regard. Her position was that the analysis at paragraph 7 was sufficient discussion of the Appellant’s presence at a protest in 2017. The determination then focused on the primary issue of whether or not the Appellant’s account of subsequently coming to the attention of the authorities was reasonably likely to be true.
13. As to the identity document of the Appellant’s uncle, Ms Tariq relied upon paragraph 2(iii) of Volpi & Anor v Volpi [2022] EWCA Civ 464: “An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.”
14. The Secretary of State’s position was that paragraphs 9 & 10 of the determination contained the FTJ’s analysis of the uncle and the FTJ’s scepticism about his role owing to the evolution of the Appellant’s account as to his occupation/role/rank.
15. In the alternative, even if the FTJ did not consider the identity card, it was not a material error because of the inconsistencies identified at paragraph 10.
Our Conclusions
16. In our view, Ground 1 does not establish an error of law. While there is plainly a mis-statement at paragraph 5 of the determination, the FTJ nonetheless proceeds to address herself to all the live issues in the appeal. Whatever the reason for the wording in paragraph 5, we cannot see how, in substance, it has affected the determination thereafter.
17. As to Ground 2, we first deal with the “image” purporting to show the Appellant at a demonstration. We agree with Ms Aziz’s submissions. There is a stark lack of clarity about the image/photograph. Based upon the evidence we had before us, we are not satisfied that it was put forward in the FTT as a “still” of an Iraqi television report or some such variation. The grounds of appeal and the skeleton argument for the error of law hearing make that assertion but it is not otherwise to be found in the Appellant’s asylum claim statement, asylum interview, appeal witness statement or Appeal Skeleton Argument for the FTT.
18. The Appellant has not clarified if the image was sourced from video footage or if it is a photograph taken of the Appellant at the 2017 protest which was sent to him by a third party. Regardless, the issue is materiality. At paragraph 7 of the determination the FTJ comments that, at most, the evidence more generally would only establish that “the appellant’s involvement in politics consisted of attending one demonstration in Iraq in 2017”. In other words, even if the FTJ had specifically adverted to the image itself, it would have taken matters no further than the attendance at one protest – when the appeal ultimately turned on the Appellant’s account of subsequently coming to the adverse attention of the authorities: variously, he said that people on the protest had given his name to the authorities [CB: 175], that the “Asayish took photos of me” [CB: 26] and/or that “the security forces took pictures of me during the demonstration and they identified me and issued an arrest warrant” [CB: 187].
19. But it was not contended at any stage that this photo in the bundle was evidence of the source of risk per se. Rather, it appears to have been evidence to show that he attended a protest in the first place. Consistent with Volpi, and also having regard to the FTJ at paragraph 6 stating that she “considered all the evidence in the appeal, including evidence to which I have not made specific reference”, allied to ambiguity over the image itself in any event, we do not find that there was any error of law, let alone a material one, in the FTJ’s treatment of that evidence.
20. We are, however, persuaded that the uncle’s identity document was a core piece of evidence with which the FTJ was obliged to engage. That evidence was at the very least capable of corroborating the Appellant’s clear contention that his uncle was a man who would have been in a position to learn of the “wanted list”. That, in turn, had the potential to establish the credibility of the past account more generally.
21. We simply do not know what the FTJ made of the identity document. There is no consideration of whether it has been deemed reliable or not, applying Tanveer Ahmed [2002] UKIAT 00439. The identification of “inconsistencies” in the Appellant’s account of the uncle’s role/status, at paragraph 10, is precisely the place where we would have expected to see the document accepted or rejected.
22. Even if we proceed, on Volpi principles, on the basis that the FTJ did indeed consider it, it remains an error of law not to have provided any reasoning at all on that strand of the evidence.
23. It is worth noting the Senior President’s Practice Direction, “Reasons for decisions”, dated 4 June 2024, which reminds the IAC that “adequate reasons for a substantive decision may often be short. In some cases a few succinct paragraphs will suffice… a challenge based on the adequacy of reasons should only succeed when the appellate body cannot understand the Tribunal’s thought process in making material findings.”
24. We therefore find that the failure to engage meaningfully with that piece of evidence does constitute a material error of law. It was capable of supporting the Appellant’s credibility on risk in the period following the 2017 protest, and the means by which he came to learn of that risk, and was thus a core issue in the appeal on which a finding was necessary.
25. We invited, on a provisional basis, submissions from the representatives on whether the appeal should be retained in the Upper Tribunal or remitted to the First-tier Tribunal. Ms Aziz’s position was that the appeal could be retained or remitted. She indicated that a supplementary witness statement from the Appellant was likely and there would be need of oral evidence from him, given that credibility remained a central matter.
26. Ms Tariq submitted that the appeal should be retained in the Upper Tribunal.
27. Both representatives took the view that any re-making would be de novo because revisiting the evidence and credibility would inevitably lead to the re-opening of other findings also grounded in credibility.
28. We have had regard to Section 7 of the “Senior President’s Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal” (SPT Ryder, 11 June 2018) and Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC). Remittal is not the usual course but it is appropriate in the circumstances of this appeal, having regard to the nature and extent of the factual finding and the issues that will be in dispute.
29. Finally, we note that the Judge granting permission to the Appellant observed [CB: 13] that the FTJ “appears to have relied on country guidance for Iran, rather than Iraq”.
30. There is indeed a problematic citation and application of XX (PJAK, sur place activities, Facebook) Iran (CG) [2022] UKUT 23 (IAC) at paragraph 17 of the determination. This was not a pleaded ground of appeal nor was it pursued at the error of law hearing, as a Robinson-obvious point or otherwise. Given that we have found a material error of law on a pleaded ground, it has been rendered otiose. But in the interests of ensuring a sustainable hearing on remittal, we note that the Respondent’s Review [CB: 153] seeks to rely on XX in a way which may lead to confusion. The Respondent, and indeed an FTJ, is entitled to refer to paragraphs 125-128 of XX on the degree to which Facebook posts/data can be manipulated. That is a general point in the Country Guidance not specific to Iran. But reliance on paragraphs 121-124 of the CG, which are plainly specific to Iran, namely the degree to which the Iranian authorities will be interested in posts by individuals outside the country, are of no application in a non-Iranian case. It will, of course, be for the Appellant to provide evidence on the IKR authorities’ attitude and approach to UK-based social media activity in due course.
Notice of Decision
The decision of the First-tier Tribunal, which dismissed the appeal, is set aside and the appeal is remitted to the First-Tier Tribunal to be heard afresh.

Taimour Lay

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

7 August 2025