Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-003148
First-tier Tribunal No: PA/60305/2023
LP/02626/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

14th August 2026

Before

UPPER TRIBUNAL JUDGE LODATO

Between

HHA
(ANONYMITY ORDERED)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Coyte, Fountain Solicitors
For the Respondent: Ms Rushforth, Senior Presenting Officer

Heard at Cardiff Civil Justice Centre on 23 July 2026

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 the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Introduction and Background
1. I have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal (‘the FtT’) because the underlying claim involves international protection issues in that the appellant claims to fear persecution or serious harm on return to Iraq. In reaching this decision, I am mindful of the fundamental principle of open justice, but I am satisfied, taking the appellant’s case at its highest for these purposes, that the potential grave risks outweigh the rights of the public to know of his identity.
2. The appellant appeals with permission against the decision, dated 16 January 2025, of a judge of the FtT (‘the judge’) to dismiss the appeal on international protection and human rights grounds.
3. The appeal arose in the context of the appellant’s claim to be at risk of persecution on return to Iraq because he was compelled to marry for political reasons and was later discovered to be having an affair.
Appeal to the Upper Tribunal
4. The appellant applied for permission to appeal in reliance on the following grounds:
• Ground 1 – a range of challenges to the lawfulness of the judge’s adverse findings of fact.
• Ground 2 – unlawful approach taken to the assessment of verification evidence.
5. In a decision dated 22 August 2025, a judge of the Upper Tribunal granted permission for both grounds to be argued.
6. At the error of law hearing, I heard oral submissions from both parties. Ms Rushforth conceded that the judge’s approach to the verification evidence of Dr Giustozzi involved a material error of law. I indicated at the conclusion of the hearing that I was minded to allow the appeal principally on the strength of ground 2.
Discussion
7. Between [15] and [36], the judge reached a series of adverse findings in which the central pillars of the appellant’s protection claim were rejected. At [31], the judge appears to reach a settled conclusion that the core narrative account lacked credibility:
Overall, I do not accept the Appellant’s claim that he had a 7-year relationship with A, and that despite his parents, A’s parents and even his wife knowing about the relationship, he had no issues until the alleged sexual encounter. I find this part of the Appellant’s claim implausible.
8. The judge went on, at [37]-[38], to assess the evidence of Dr Giustozzi and the researcher he used for the purposes of verifying an arrest warrant the appellant relied upon in support of his core narrative:
The Appellant has provided supporting evidence from Dr A G and researcher, R S A. In view of my findings relating to Mr H A R above, I also attach limited weight to the evidence of Dr A G and R S A.
In view of my overall findings relating to the core parts of the Appellant’s account, I attach limited weight to the evidence of Dr A G and R S A, instead, I find that the evidence is also self-serving.
9. The structure of the decision leaves the palpable sense that the judge had already made up her mind about the credibility of the appellant’s factual claim before turning her mind to the evidence of Dr Giustozzi. This may explain why the reasoning which supported the rejection of his verification evidence is so underdeveloped. Firstly, it is difficult to understand why the rejection of the evidence of Mr HAR, a lawyer in Iraq who also provided evidence of the existence of the arrest warrant, should have any material bearing on whether Dr Giustozzi’s evidence could not be relied upon when the two sources of evidence apparently had no connection to one another. Secondly, Dr Giustozzi is a professional and independent expert witness. Quite why his evidence could be characterised as self-serving is also difficult to make sense of. It is not uncommon to see limited weight attached to the evidence of witnesses of narrative fact because they have a vested interest in the outcome of the proceedings, but this witness did not fall into this category. If it was suggested that Dr Giustozzi was providing less than impartial evidence for improper motives, such an imputation would need to be explained far more fully than simply asserting that the evidence was “self-serving”. The ultimate effect was that potentially important and independent verification evidence of the existence of an arrest warrant was sidelined leaving an already settled credibility decision undisturbed. I am satisfied that the respondent was right to concede that this was a classic error such as that identified at Mibanga [2005] EWCA Civ 36. At [24] of his judgment, Wilson J said this:
It seems to me to be axiomatic that a fact-finder must not reach his or her conclusion before surveying all the evidence relevant thereto. Just as, if I may take a banal if alliterative example, one cannot make a cake with only one ingredient, so also frequently one cannot make a case, in the sense of establishing its truth, otherwise than by combination of a number of pieces of evidence. Mr Tam, on behalf of the Secretary of State, argues that decisions as to the credibility of an account are to be taken by the judicial fact-finder and that, in their reports, experts, whether in relation to medical matters or in relation to in-country circumstances, cannot usurp the fact-finder's function in assessing credibility. I agree. What, however, they can offer, is a factual context in which it may be necessary for the fact-finder to survey the allegations placed before him; and such context may prove a crucial aid to the decision whether or not to accept the truth of them. What the fact-finder does at his peril is to reach a conclusion by reference only to the appellant's evidence and then, if it be negative, to ask whether the conclusion should be shifted by the expert evidence. […]
10. Mibanga was considered in the leading case of R (MN) v SSHD & Others [2021] 1 W.L.R. 1956. While this authority was decided in the context of the administrative decision-making process to determine trafficking claims, important observations were made by Underhill LJ about the limitations of what has been referred to as a “Mibanga error”. After surveying the key authorities which considered Mibanga, he held, at [108], that it was “[…] clear that the question is one of form rather than substance: if it is evident that the tribunal has in fact taken the expert evidence into account as part of the primary assessment, it does not matter at what particular point in the decision it is specifically referred to”. It was, however, emphasised that the fundamental principle remained good law that it would be wrong to reject credibility and then ask whether that finding should shift to make way for other evidence. The following general guidance was given at [123]:
The essential message of that possibly over-elaborate discussion is that decision-makers should in each case assess whether and to what extent any particular expert evidence relied on by an applicant supports their case as a matter of rational analysis. Observations in the case law are useful in drawing attention to likely limitations on the value of particular kinds of evidence, but they should not be treated as laying down rigid rules. If there are qualifications to the value to be given to a particular piece of evidence, that is not a reason for excluding it altogether: if it has some weight it must go into the overall assessment.
11. The above theme was expanded upon in QC (Verification of Documents: Mibanga Duty: China) [2021] UKUT 00033 where the following observations were made at [57]:
To sum up, the judicial fact-finder has a duty to make his or her decision by reference to all the relevant evidence and needs to show in their decision that they have done so. The actual way in which the fact-finder goes about this task is a matter for them. As has been pointed out, one has to start somewhere. At the end of the day, what matters is whether the decision contains legally adequate reasons for the outcome. The greater the apparent cogency and relevance of a particular piece of evidence, the greater is the need for the judicial fact-finder to show that they have had due regard to that evidence; and, if the fact-finder's overall conclusion is contrary to the apparent thrust of that evidence, the greater is the need to explain why that evidence has not brought about a different outcome.
12. I am satisfied that the judge erred in conclusively rejecting the appellant’s credibility before turning her mind to independent verification evidence of the existence of an arrest warrant which conferred potentially substantial support that at least parts of the narrative were accurate and truthful. In addition, the assessment of the verification evidence was otherwise fundamentally flawed and superficial.
13. In light of the decision I have reached on ground 2, it is unnecessary to determine ground 1.
Disposal
14. The starting point is paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal which provides: 
7.2. The Upper Tribunal is likely on each such occasion to proceed to remake the decision, instead of remitting the case to the First-tier Tribunal, unless the Upper Tribunal is satisfied that:  
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party’s case to be put to and considered by the First-tier Tribunal; or  
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal. 
15. I have also considered the guidance in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC). The parties were agreed that remittal to the FtT was appropriate if no findings of fact were preserved. I am entirely satisfied that it would not be appropriate to preserve any findings of fact because the error of law is so central to the overall assessment of the factual claims which underpin the protection ground of appeal that it is impossible to have confidence that those findings would have been reached were it not for the error. In view of the broad sweep of fact-finding which remains to be undertaken, the appropriate procedural remedy is to remit the matter to be decided de novo in the FtT.

Notice of Decision
The decision of the judge involved a material error of law. I preserve no findings of fact and remit the matter to the FtT to be decided de novo by a different judge.

P Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

30 July 2026