Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-002738

First-tier Tribunal No: PA/50620/2024 LP/10640/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 13th March 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE HOBBS

Between

SM
ANONYMITY ORDER MADE
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Mr. M. Brooks, Counsel instructed by AB Legal Solicitors
For the respondent: Ms. S. Simbi, Senior Home Office Presenting Officer

Heard at Birmingham Civil Justice Centre on 5 March 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and/or any member of his family are 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 and/or any member of his family. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. This is an appeal by the appellant against a decision of First-tier Tribunal Judge Hawden-Beal (the “Judge”), dated 28 January 2025, in which she dismissed the appellant’s appeal against the respondent’s decision to refuse his protection and human rights claim. The appellant is a national of Iraq who claimed asylum on the basis of his imputed political opinion.

2. Permission to appeal was granted by Upper Tribunal Judge Lodato in a decision dated 18 July 2025 as follows:

“The applicant renews his application for permission to appeal following the refusal in the FTT. I am satisfied that the single ground of appeal is arguable. The strongest point is to be found at [3] of the grounds.

It is arguable that it is difficult to understand what underpinned the plausibility finding that the Assayish might have been inclined to mount a surveillance operation if the appellant had been telling the truth about their interest in him. This finding is arguably in tension with the observation made at [33] of the decision in which the appellant’s smuggling activities are characterised as low level. Seen against that backdrop, it is arguably difficult to see why such significant resources would be devoted to any kind of surveillance on the appellant’s uncle’s home and that the judge has indulged in speculation. This was not the only finding of fact reached, and it may ultimately be argued that the decision can safely stand on the remaining facts as found, but the suggested error is at least arguably material to the overall outcome.”

3. The respondent opposed the appeal in her Rule 24 response.

The hearing

4. The appellant attended the hearing.

5. I heard oral submissions from both representatives. I reserved my decision.

Error of law

6. There is one ground of appeal with three elements. I will start with the second element, given that Ms. Simbi accepted the point, expanded on by Mr. Brooks, that there was no discrepancy in the appellant’s evidence regarding his mother and uncle. The grounds state:

“It is submitted that the judge has further erred by finding there was a discrepancy in the Appellant’s evidence as he had stated either it was his mother or uncle who had been informed by the Asayish that he was wanted by them. However, it is submitted that there is no discrepancy.”

7. At [31] the Judge states:

“I am not satisfied that the Asayish/KDP are in the slightest bit interested in the appellant. In his interview the appellant was asked how the KDP/Asayish knew that he had helped the PKK or would know that he had returned to Kurdistan and he said that he did not know. He has had no contact with his family since he came to the UK because he did not want to put them in danger and therefore does not know whether the authorities are still looking for him. His evidence as to who was told what by the Asayish is confusing to say the least. He cannot decide if it was his mother or his uncle who was told that the Asayish were interested in him.”

8. Mr. Brooks submitted that the Judge had conflated two issues, how the authorities knew he had helped the PKK, and how they would know he had returned to Kurdistan. He referred to Q71 and Q72. He submitted that the appellant had not been asked at his interview how the authorities would know that he had returned, but only how they would know that he had been helping the PKK. At Q71 the appellant was asked how he knew that the security forces were interested in finding him. He stated:

“At the time when Ahmed was arrested, I contacted a friend of mine in Zakho. I told him what had happened and I requested to go to him. I went to meet my friend and managed to hide in his place. During this time, the Kurdish security forces went to my maternal uncles house and they told my maternal uncle that I was guilty of helping and cooperating with the PKK.”

9. At Q72 he was asked how he knew that the security forces had visited his uncle’s house. His reply is recorded as “my mother told me”.

10. He submitted that there was no discrepancy in the appellant’s evidence, a point conceded by Ms. Simbi. I find that both statements can be true, that the security forces told his uncle, and that his mother told him. He did not say that the security forces told his mother. I therefore find that the Judge has erred in finding that the appellant’s evidence on this point was inconsistent.

11. Ms. Simbi submitted that this was not material. She accepted that it was difficult to say what weight a judge gave to any particular finding, but submitted that there were other findings which led the Judge to consider that the appellant was not credible.

12. Mr. Brooks submitted that if there was an error in the assessment of credibility, it was material to the whole assessment. He further submitted there were not very many clear findings by the Judge. In particular, he submitted that the Judge had found that the appellant was a smuggler at [30], but had made no finding as to whether or not the appellant’s uncle’s house was raided, which was core to the appellant’s account, and core to the central issue of risk as it was central to whether or not he was known to the authorities.

13. I find that the Judge did not make a finding as to whether or not the appellant’s uncle’s house had been raided by the Asayish. I find that the failure to make a finding on this issue goes to the materiality of her error regarding the discrepancy. The appellant’s evidence is that the security forces raided his uncle’s house, which is how he knew that they were interested in him. The Judge has erred in finding that the appellant’s evidence as to how he knew of the authorities’ interest in him was discrepant, and she has not made a finding that the raid did or did not take place. I find that this is material.

14. Further, in relation to materiality, I raised with Ms. Simbi the fact that the respondent’s decision states at [12] (page 80):

“There would not be sufficient protection from persecution in Iraq and you could not relocate within your home country if the key material facts of your claim were accepted because you fear the KDP whose power and influence is noted, meaning that neither option would be available to you.”

15. There were two “key material facts” set out at [6] and [7] (page 79):

“6. You transported cigarettes and food for the PKK
7. You are of adverse interest to the KDP (Aseyesh)”

16. The Judge had accepted the first of these “key material facts”. If she accepted the second, that the appellant was of adverse interest, the respondent’s position was that the appellant would be at risk. Therefore her findings on this point are at the core of the appeal. Ms. Simbi submitted that there were other findings made by the Judge which went to his credibility. However, I find that there is no finding on whether or not the authorities raided his uncle’s home, which is central to whether or not he is of adverse interest.

17. I have considered the Judge’s other findings which led to her to conclude that the appellant’s claim was not credible. At [28] she made findings regarding who had paid for his trip to the United Kingdom. I find that this is not core to his claim. At [29] she considers whether or not he tried to obtain another job, but I find that this is not central, especially as she has found that he was a smuggler at [33]. At [30] she sets out the evidence relating to who told him about the raid, but I have found above that her consequent finding at [31] is not sustainable. There is no clear finding in this paragraph that the raid took place.

18. At [32] she states:

“I note that the appellant’s evidence is that his uncle paid the money to the smuggler for the appellant's trip. That would suggest that the uncle was in Zakho to do that, in which case, given that the appellant’s evidence in his asylum interview is that his uncle’s home was raided on November 14 and the appellant was handed to the smuggler on November 28th, 2021, there was a period of at least 14 days during which the appellant was not found by the Asayish/KDP. It could be said that if they were really that interested in him then they would have kept an eye on the uncle to see if he had any contact with the appellant during this time, given that it was the uncle’s home which was raided. In any event, the appellant was not found by this organisation who, according to his asylum questionnaire is the most powerful party in Kurdistan and who would be able to find him wherever he went and, according to his recent statement, has thousands of soldiers and so could easily locate him. They clearly are not that capable because otherwise they would have found him before he fled from Iraq.”

19. Paragraph [3] of the grounds states:

“At [32] the judge finds that it is not credible the Appellant could hide from the Asayish for two weeks before leaving Iraq. This is based on the assumption that because the Appellants uncle paid the agent he must therefore have gone to Zakho where the Appellant was in hiding and the Asayish could have watched his movements and followed him there. It is submitted that this finding is based on pure speculation as the finding assumes the smuggler was paid in person and also assumes the smuggler was paid at the same location as where the Appellant was hiding.”

20. I find that [32] contains inferences from the Judge. She states that it would “suggest” that the appellant’s uncle was in Zakho, but there was no evidence that the appellant’s uncle had gone in person to pay the smuggler. Mr. Brooks submitted that she had built on this assumption with her subsequently statements “in which case…” and “It could be said that….”. She then stated that the authorities “would” have kept an eye on his uncle, which was speculation.

21. Mr. Brooks further submitted that the Judge had adopted a binary approach towards whether or not the appellant was of interest to the authorities. At [33] she stated: “I am not satisfied that the Asayish/KDP are looking for the appellant”. Mr. Brooks submitted that just because the authorities were not proactively looking for him did not mean that he would not be at risk during the security screening process on arrival. Similarly, at [32] she had found that the appellant was not found during the 14 days he was in hiding. Mr. Brooks submitted that this did not mean that he would not be at risk during the security screening process. That the authorities had not found him during this time did not mean that his asylum claim failed.

22. Taking all of the above into account, I find that the Judge has materially erred in her consideration of the credibility of the appellant’s evidence.

23. I have found that the credibility findings cannot stand, and so whether or not there is an error of law with regards to the first paragraph of the grounds is immaterial. However, while Ms. Simbi further submitted with reference to the first ground of appeal that the appellant did not meet the criteria set out in the headnote to SMO (Civil status documentation; article 15) Iraq CG [2022] UKUT 00110 (IAC) (“SMO II”), and so in any event his appeal could not succeed, I find that this is in contrast to the respondent’s decision as I have set out above at [14]. The respondent accepted that if the material facts of the appellant’s account were accepted, he would be at risk on return as there would be no sufficiency of protection, and he could not internally relocate. The two material facts were whether he had smuggled goods for the PKK and whether the Asayish were interested in him. As she accepted that he would be at risk if these two facts were accepted, whether or not he met the criteria in SMO II in relation to how that risk emerged is academic. Given this concession, he did not need to prove how he would come to their attention.

24. In considering whether this appeal should be retained in the Upper Tribunal or remitted to the First-tier Tribunal to be remade I have taken into account the case of Begum [2023] UKUT 46 (IAC).  At headnote (1) and (2) it states:    

“(1)    The effect of Part 3 of the Practice Direction and paragraph 7 of the Practice Statement is that where, following the grant of permission to appeal, the Upper Tribunal concludes that there has been an error of law then the general principle is that the case will be retained within the Upper Tribunal for the remaking of the decision.    

(2)    The exceptions to this general principle set out in paragraph 7(2)(a) and (b) requires the careful consideration of the nature of the error of law and in particular whether the party has been deprived of a fair hearing or other opportunity for their case to be put, or whether the nature and extent of any necessary fact finding, requires the matter to be remitted to the First-tier Tribunal.”    

25. I have carefully considered the exceptions in 7(2)(a) and 7(2)(b).  Given that the Judge erred in her consideration of the appellant’s evidence such that the credibility findings cannot stand, the appellant has effectively been denied a fair hearing.  It is therefore it is appropriate to remit this appeal to be reheard in the First-tier Tribunal. 

Notice of Decision    

26. The decision of the First-tier Tribunal involves the making of material errors of law and I set the decision aside.

27. The appeal is remitted to the First-tier Tribunal to be heard de novo. No findings are preserved.

28. The appeal is to be listed at Birmingham.

29. The appeal is not to be listed before Judge Hawden-Beal.

Kate Hobbs
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
13 March 2026