Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002764

First-tier Tribunal No: PA/52415/2024
LP/09822/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 7th of January 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE BURGHER

Between

SF (Iraq)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms K Wass, Counsel, instructed by Barnes, Harrild and Dyer
For the Respondent: Ms K McKenzie, Senior Presenting Officer

Heard at Field House by CVP on 19 December 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 members of the public to identify them. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Background
1. Although the appeal was brought by the Secretary of State for the Home Department (“SSHD”) hereinafter, for clarity, the parties are described as they were before the First-tier Tribunal, that is SF as the appellant and SSHD as the respondent.
2. The Appellant is a citizen of Iraq of Kurdish ethnicity, born on 5 March 2001. He made an asylum claim on 8 November 2022 which was refused on 20 January 2024.
3. The Appellant appealed against the refusal decision. In summary his asylum claim is based upon fear for his safety upon return to Iraq due to threats from a Major in the Popular Mobilisation Force.
The Appeal to the First-tier Tribunal
4. First Tier Tribunal Judge Clarkson (‘the Judge’) heard the Appellant’s appeal on 25 February 2025 and the appeal against the Respondent’s decision to refuse his protection claim was allowed on the basis of humanitarian protection. The decision and reasons were senton 22 April 2025. Specifically, at [37]-[38] the Judge found that the Appellant would be unable to re-document within a reasonable period of time.
Anonymity Order
5. The Judge made an anonymity order. There was no request for the anonymity order to be set aside. I conclude that the Appellants’ rights to international protection outweigh the Article 10 rights of the public to know their identity as a party to these proceedings.
The Grounds of Appeal
6. The Respondent appealed to the Upper Tribunal. The essence of the appeal was that having rejected the key aspect of the Appellant’s appeal relating to fear of return, the Judge had not adequately reasoned that the Appellant would not be able to redocument in a reasonable period of time.
7. Permission to appeal was subsequently granted by Upper Tribunal Judge Rimington on 17 July 2025. Permission to appeal was granted as follows:
The grounds are arguable bearing in mind the overall credibility findings. It is of course possible to find an appellant credible on some areas and not others but even the findings on the CSID within [37] – [38] are arguably inadequate in this instance.
The Appeal to the Upper Tribunal
8. I had before me the composite hearing bundle of 536 pages, the Respondent’s written skeleton argument and the Appellant’s rule 24 response opposing the appeal dated 14 August 2025.
Respondent’s submissions
9. Ms McKenzie, referred me to [37] and [38] of the Judge’s decision that stated:
Documentation
37. The Appellant’s evidence was that he held a CSID but no longer has it. His account is that his father arranged his leaving Iraq with a good friend of his and that when he left he left his documentation at home. He said that he is not in contact with his family but as they assisted him to leave. In order for final payment to have been made some confirmation of arrival must have been made. I have not accepted the Appellants credibility in regard to having the relationship he alleges but conclude that something must have promoted him to leave Iraq in the first place and that he did refer to the in his original screening interview that the forces that now controlled his home areas were a threat to Kurdish people.
38. It is asserted on behalf of the Appellant that he would not be able to obtain an INID or a CSID within a reasonable time frame following removal to Iraq. I accept that he would not require a INID which he does not have. I accept that his family may have left the area or may not be willing to travel to Bagdad in order to provide the Appellant with documentation so that he may travel safely. I acknowledge that given the distance to his home areas he may have to travel through checkpoints which he would not have the documentation to safely pass through which in turn could lead to destitution. He therefore should be granted humanitarian protection 3.2.2 of the CPIN.
10. Ms McKenzie submitted that the Judge had provided inadequate reasoning in allowing the appeal on grounds of humanitarian protection. Specifically, she contended that, having found the Appellant not credible on the core narrative, it was speculative for the Judge to accept that the Appellant was not in contact with his family and would be unable to obtain documentation necessary for safe return to Iraq. Ms McKenzie developed this submission by asserting that the Judge’s finding at [38] referencing that the Appellant’s family may have left the area or may not be willing to travel to Baghdad was unsupported by evidence and amounted to improper speculation. There was no record in the witness statements, interview records, or counsel's notes to support the Judge's finding in this regard and there was no indication or specific reference to there being oral evidence on this point.
11. Ms McKenzie, also submitted that the Judge had failed to follow the CPIN and country guidance, emphasised in SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 00110 (IAC) (“SMO2”) concerning the risk to undocumented returnees and the assessment of humanitarian protection.
12. Insofar as is relevant Ms McKenzie stated that SMO2 required the Judge to consider and reason the following matters:
12.1 The process for obtaining an INID requires personal attendance at the Civil Status Affairs office at which the individual is registered, for enrolment of biometrics.
12.2 Replacement CSIDs remain available through consular facilities only for those registered at offices not yet transferred to the digital INID system.
12.3 The likelihood of obtaining a replacement document depends on the availability of family support and the ability to recall or obtain the relevant Family Book details.
12.4 The guidance emphasises a fact-sensitive, sliding scale assessment of risk, particularly in the “Formerly Contested Areas” (including Diyala, the Appellant’s home governorate), and the need for a careful, evidence-based approach to documentation and internal relocation.
13. In summary, Ms McKenzie submitted that the Judge erred in failing to reason and explain the basis for the finding that the Appellant’s family “may have left the area or may not be willing to travel to Bagdad in order to provide the Appellant with documentation so that he may travel safely”.
Appellant’s submissions
14. Ms Wass responded by submitting that the only ground on which permission to appeal was granted was inadequate reasoning. Ms Wass submitted that the Judge’s findings at [37] and [38] were open to them on the evidence. In particular, she submitted that the Judge was entitled to accept that the Appellant was not in contact with his family and that there was a risk he would not be able to obtain documentation. She submitted that the Judge’s reasoning was consistent with the background evidence and country guidance.
15. Ms Wass further submitted that even if the finding at [38] was speculative, the conclusion that the Appellant was not in contact with his family and would not be able to obtain documentation within a reasonable timeframe was supported by the evidence.
16. In summary, Ms Wass submitted that the conclusions reached were consistent with the country guidance and that whilst the reasoning was brief, this did not amount to a material error.
17. Ms Wass objected to the ‘SMO2’ ground, regarding the alleged failure by the Judge to follow the CPIN and country guidance. She stated that this was a new ground which was not previously pleaded or for which permission had not been sought or granted. She submitted that I should not entertain this ground in the absence of an application to amend and a grant of permission.
Amendment
18. In determining this appeal, I am required to consider and decide whether it is necessary for the Respondent to seek permission to amend the grounds of appeal in order to advance arguments concerning the Judge’s failure to follow country guidance (SMO2) and/or the relevant CPIN, in circumstances where permission to appeal was granted on the ground of inadequate reasoning.
19. The Respondent’s grounds of appeal, and the grant of permission by the Upper Tribunal, are framed in terms of the adequacy of the Judge’s reasoning, particularly in relation to the assessment of documentation and risk on return.
20. The Tribunal Procedure (Upper Tribunal) Rules 2008 require that an application for permission to appeal must set out all the grounds on which the applicant intends to rely. However, pursuant to the overriding objective under rule 2, the Upper Tribunal is required to take a proportionate and flexible approach to the identification and characterisation of grounds, and to avoid unnecessary formality.
21. When considering the adequacy of the Judge's reasoning I consider that this must be assessed by reference to the legal framework that the Judge was required to apply and this necessarily includes any relevant CPIN or country guidance. Where the Judge's reasons are said to be inadequate because they fail to engage with or apply such guidance, I consider that this is properly part and parcel of the overarching ground of inadequate reasoning.
22. Consequently, I do not consider that the Respondent’s argument that the Judge failed to engage with or apply SMO2 and the CPIN amounts to free-standing ground of appeal for which an amendment is required. I consider it to be a particularisation of the complaint that the Judge's reasoning was inadequate, and I am satisfied that the issue of whether the Judge failed to engage with or apply SMO2, the CPIN and relevant country guidance is properly encompassed within the inadequate reasoning ground for which permission has been granted.
The Legal Framework
23. The Upper Tribunal is confined to considering whether there are errors of law in First Tier Tribunal decision. In R (Iran) & Ors v SSHD [2005] EWCA Civ 982 Brooke LJ summarises what amounts to an error of law at paragraphs 9 and 10
9. When the court gave this guidance in Subesh, it was aware that it would not be of any relevance to an appellate regime in which appeals were restricted to points of law. It may be convenient to give a brief summary of the points of law that will most frequently be encountered in practice:
i) Making perverse or irrational findings on a matter or matters that were material to the outcome ("material matters");
ii) Failing to give reasons or any adequate reasons for findings on material matters;
iii) Failing to take into account and/or resolve conflicts of fact or opinion on material matters;
iv) Giving weight to immaterial matters;
v) Making a material misdirection of law on any material matter;
vi) Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings;
vii) Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.

10. Each of these grounds for detecting an error of law contain the word "material" (or "immaterial"). Errors of law of which it can be said that they would have made no difference to the outcome do not matter. This need to identify an error of law which would have made a material difference to the outcome…
24. The guidance in SMO2 is relevant to this appeal. Further, relevant Country Guidance and CPIN are material matters that ought properly to have been taken into account in determining the appeal.
Conclusions
25. I am satisfied that there are material errors of law in the Judge’s decision.
26. I accept that the brevity of the reasons would not in itself amount to a material error of law. I also accept that the Judge’s finding that the Appellant was not in contact with his family was open to them on the evidence. However, there was no finding in respect of the steps taken by the Appellant to contact his family, and the further finding that the Appellant’s family may have left the area or may not be willing to travel to Baghdad was not grounded in any evidence from either party.
27. The Judge did not refer to any oral evidence or documentary material supporting this conclusion and there was no record in the witness statements or interview records to that effect. I therefore conclude that the Judge's reasoning was inadequate in relation to the evidential basis for the finding that the Appellant’s family may have left the area or may not be willing to travel to Baghdad. I consider the lack of explanation in this regard to be a material shortcoming.
28. Further, the Judge did not reference or explain how the necessary fact-sensitive, sliding scale assessment of risk was undertaken or how complexity of the situation in Diyala was addressed as set out in SMO2 in concluding that the Appellant would not have the documentation to safely pass though which in turn could lead to destitution [38]. The Judge’s failures to engage with the Country Guidance and CPIN as part of this conclusion also amounted to material failure to take into account material matters.
29. I conclude that the errors identified were substantive and material and in these circumstances the Respondent’s appeal succeeds, and the Judge’s decision is set aside.
Remaking
30. I consider that it is appropriate to remit the appeal to the First-tier Tribunal for a hearing de novo, see, AEB v SSHD [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC). Specifically, the effect of the material error means that there will need to be a fresh credibility assessment and none of the findings of fact can be preserved. I conclude that the proper course is to remit the case to the First-tier Tribunal for a full rehearing.
Notice of Decision
The decision of the First-tier Tribunal involved the making of an error on a point of law.
I set aside that decision and remit the appeal to the First Tier Tribunal to be heard afresh by a judge other than Judge Clarkson.

Benjimin Burgher

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

1 January 2026