Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002740

First-tier Tribunal No: PA/68716/2023
LP/08195/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 9th of January 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE SMEATON

Between

BH
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMNT
Respondent

Representation:
For the Appellant: Mr Gayle, consultant solicitor instructed by Elder Rahimi
For the Respondent: Mr Mullen, Senior Presenting Officer

Heard at Field House on 10 December 2025

DECISION AND REASONS
1. The Appellant is a citizen of Iraq of Kurdish ethnicity.
2. She appeals, with the permission of the Upper Tribunal (‘UT’) (Judge Ruddick) against the decision of the First-tier Tribunal (‘FTT’) (Judge Khan) promulgated on 5 April 2025, dismissing her appeal against the Respondent’s refusal dated 22 December 2023 of her protection claim made on 11 October 2021.
Background
3. The Appellant entered the UK without leave on 24 September 2021. She claims to be at risk of persecution on return because of her ethnicity and/or actual or imputed political opinion and to be at real risk of serious harm. Her claim is based on her husband’s alleged affiliation with an anti-government organisation with links to the PKK. The Appellant says that she was detained for five weeks in Iraq shortly before she left for the UK. The Appellant also says that she has no ID documents and no way of being re-documented in Iraq.
4. The Appellant’s protection claim was refused by the Respondent on 22 December 2023. The Respondent accepts her nationality and ethnicity but does not accept any other material facts.
5. The Appellant’s husband had a separate asylum claim, based on the same facts. He arrived in the UK separately to the Appellant and her children. His claim was also refused by the Respondent. He appealed to the First-tier Tribunal (‘FTT’) and his appeal was refused by the FTT (Judge Boyes) on credibility grounds in a determination promulgated on 11 April 2024.
The appeal to the FTT
6. The Appellant appealed, in-time, to the FTT. Her appeal was heard by FTT Judge Khan on 14 March 2025 and dismissed in a decision promulgated on 5 April 2025.
7. FTTJ Khan:
7.1. Set out the findings of FTTJ Boyes in the Appellant’s husband’s appeal and indicated that she would approach that determination in accordance with the guidance in Devaseelan [2002] UKIAT 00702
7.2. Set out the appropriate standard of proof
7.3. Found elements of the Appellant’s account to be inconsistent, incoherent or so implausible as to be incapable of belief
7.4. Rejected the Appellant’s claim to be at risk.
The appeal to the UT
8. The Appellant sought permission to appeal to the UT on four grounds of appeal:
8.1. Failure to apply the lower standard of proof.
8.2. Misapplication of the Devaseelan guidance.
8.3. Materially flawed analysis of the evidence.
8.4. Materially flawed analysis of internal relocation feasibility/redocumentation.
9. Permission was granted by UT Judge Ruddick on all grounds although, in granting permission, the Judge expressed reservations about the merits of grounds 1 and 4.
10. The matter was listed for hearing before this Tribunal on 10 December 2025. I was provided with a bundle of documents comprising 413 pages.
11. I heard submissions from both representatives. I do not propose to rehearse the submissions here but will consider what was said during my analysis of the grounds of appeal.
12. At the end of the hearing, I indicated that my decision would be reserved.
Discussion
13. I have reminded myself of the authorities which set out the distinction between errors of fact and errors of law and which emphasise the importance of an appellate tribunal exercising judicial restraint when reviewing findings of fact reached by first instance judges (as summarised by Lewison LJ in Volpi & Anor v Volpi [2022] EWCA Civ 464). In reaching my conclusions, I acknowledge that the UT should be slow to infer that a relevant point has not been taken into account simply because it is not expressly mentioned by the judge below (applying MA (Somalia) v SSHD [2010] UKSC 49 and Volpi & Anor v Volpi) and should not too readily assume that the FTT misdirected itself just because not every step in its reasoning is fully set out (R (on the application of JR (Jamaica)) v SSHD [2014] EWCA Civ 477).
14. I also note, however, that in an asylum context, the obligation to give the most ‘anxious scrutiny’ to a case requires reasoning that shows ‘that every factor which might tell in favour of an applicant has been properly taken into account’ (ML (Nigeria) v SSHD [2013] EWCA Civ 844).
Ground 1
15. The Appellant argues that the Judge failed to apply the lower standard of proof in her consideration of the Appellant’s credibility.
16. Upon further discussion, it became clear that this was, in fact, a perversity challenge. Mr Gayle did not point to any particular finding which demonstrated an erroneous standard of proof. Instead, he maintained that, had the FTTJ properly applied the lower standard of proof, she ought to have accepted the Appellant’s account. He maintained that the FTTJ had repeatedly, and erroneously, referred to the Appellant’s account as incoherent when, in fact, the Appellant had provided a coherent and plausible account.
17. Perversity amounting to an error of law is established where the decision is one to which no reasonable decision maker, properly instructing himself on the law, could have come on the evidence before him.
18. Considering this ground in isolation, I do not accept that the FTTJ failed to apply the appropriate standard or proof or that she made a perverse decision (save as to as discussed below under grounds 2 and 3). The FTTJ set out the Appellant’s account and gave reasons for rejecting it. This ground of challenge, considered alone, is no more than a disagreement with the FTTJ’s findings, which were open to her on the evidence.
Grounds 2 and 3
19. I take these grounds together because they both concern the FTTJ’s approach to the evidence from the Appellant’s neighbours (in video and documentary form) in which they confirm that they witnessed the raid on the Appellant’s house following which she claims she was detained. That evidence was not before FTTJ Boyes in the Appellant’s husband’s appeal.
20. The Appellant argues that the FTTJ misapplied the guidance in Devaseelan and wrongly rejected the neighbours’ evidence as self-serving and implausible.
21. At paragraph 26 of the determination, FTTJ Khan referred to the previous determination of FTTJ Boyes before concluding that, ‘Although the neighbours’ video evidence was not before IJ Boyes, the Judge did not accept that the Appellant’s house was raided as claimed. In view of the repeat evidence, I find no reason to depart from IJ Boyes’ findings. On the contrary, and as discussed below, I find many aspects of the Appellant’s claim to be implausible…’.
22. At paragraph 29 of the determination, FTTJ Khan dismissed the Appellant’s claim that the authorities attended her home because ‘I do not accept that her husband had a political profile such that the authorities would have an ongoing interest in [him]. As noted above, IJ Boyes found that there was no credible evidence to demonstrate that the Appellant’s husband had any political profile in Iraq, I made the same finding’.
23. Those two sentences, read together, reflect an improper application of the guidance in Devaseelan. The video evidence is capable of justifying a departure from FTTJ Boyes’ finding about the raid. The conclusions suggest that the FTTJ treated the finding of FTTJ Boyes as determinative, rather than the starting point.
24. I note that the FTTJ did engage substantively with the video evidence later in the judgment, at paragraphs 33-36, and that I must consider the judgment as a whole rather than subjecting it to narrow textual analysis. The analysis at paragraphs 33-36 of the determination does not, however, assist. In those paragraphs, the FTTJ explained that she attached limited weight to the video evidence because it is implausible that the evidence would have come as a surprise to the Appellant and her husband, as they both claimed, finding instead that it was self-serving and had in fact been arranged by the Appellant and/or her husband in order to bolster the Appellant’s claim. She concluded that it was implausible that a journalist of the party the Appellant’s husband was affiliated with would obtain the evidence of his own volition.
25. There are two difficulties with those findings.
26. Firstly, it is not clear on what basis the FTTJ found the actions by the journalist to be implausible. The Appellant’s husband’s evidence was that he spoke to the journalist who was part of the same political party as him, told him of the difficulties they were having with their claims in the UK, and that the journalist then took action to assist. That is nothing inherently implausible about that. The FTTJ does not provide any or any adequate reasons for her finding in this respect on what is a key issue.
27. More importantly, even if the Appellant and/or her husband had directly asked the journalist to help, that does not mean the evidence must be unreliable. I have had regard to the discussion of the term ‘self-serving’ in R (on the application of SS) v Secretary of State for the Home Department ("self-serving" statements) [2017] UKUT 00164 (IAC). The expression is a protean one which explains little or nothing. What is needed is a reason, however brief, for that designation. The fact that corroborating evidence has been produced for the purposes of an appeal to add support to an account of persecution does not, by itself, render the evidence unreliable. That is even more so here, where the evidence in question is precisely the evidence that FTTJ Boyes considered to be lacking in the Appellant’s husband’s appeal (at paragraph 17 of FTTJ Boyes’ determination ‘there are…no statements from neighbours who happened upon the raid’).
28. By erroneously placing limited weight on the neighbours’ evidence because it was self-serving and implausible, the FTTJ misdirected herself in law. The result of that is that the FTTJ failed to take into account material evidence on a key issue and did not properly apply the guidance in Devaseelan to reach a justifiable conclusion on whether to depart from the findings of FTTJ Boyes.
Ground 4
29. The parties agreed that this ground stands or falls with grounds 1-3. There is no reason to address it separately.
Disposal
30. Applying the guidance in paragraph 7 of the Senior President’s Practice Statement and AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (Remaking or remittal) [2023] UKUT 00046 (IAC) I consider that the matter ought to be remitted to the FTT to be considered de novo. The reliability of the neighbours’ evidence is a matter which has the potential to affect the credibility of the Appellant’s evidence more widely. No findings of fact are preserved.
Notice of Decision
31. The decision of the FTT (Judge Khan) dated 5 April 2025 contained a material error of law. The decision is set aside and remitted to the FTT to be reconsidered to be heard by a different judge with no findings of fact preserved.

J. SMEATON
Deputy Judge of the Upper Tribunal
1 January 2026