Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003277

First-tier Tribunal No: PA/65307/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 13th of January 2026

Before

UPPER TRIBUNAL JUDGE MAHMOOD

Between

SMST
(ANONYMITY ORDER COntinued)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms Johnrose, Solicitor, Broudie Jackson Canter Solicitors
For the Respondent: Mr Tan, Senior Home Office Presenting Officer

Heard at Manchester Civil Justice Centre on 21 November 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 the Appellant. Failure to comply with this order could amount to a contempt of court. The parties may apply on notice to vary this order.

DECISION AND REASONS
Introduction
1. This is my oral decision which I delivered at the hearing today.
2. In this matter the Appellant, a national of Iraq of Kurdish ethnicity, appeals against the decision of First-tier Tribunal Judge Hena (“the Judge”), who by way of a decision dated 28 May 2025 had dismissed the Appellant’s claim based on international protection and human rights grounds.
Preliminary Issue: Grant of Permission
3. Permission to appeal had been refused by the First-tier Tribunal but a renewed application was made to the Upper Tribunal. By way of a decision dated 14 August 2025 Upper Tribunal Judge O’Callaghan stated that permission to appeal was granted on Ground 4 but refused on Grounds 1 to 3.
4. Ground 4 related to CSID documentation issues. Ground 1 to 3 related to more fundamental issues in respect of the Judge’s assessment of credibility of the Appellant.
5. The Applicant’s solicitors had notified the Upper Tribunal on 5 September 2025 that there was “an intention” to apply for the grounds of appeal upon which permission was not granted to be reconsidered under Rule 22(4)(b) of The Tribunal Procedure (Upper Tribunal) Rules 2008 (“The Rules”).
6. As a preliminary issue, I considered the written and oral submissions made by Ms Johnrose in relation to the limited grant of permission.
7. Ms Johnrose, who has made helpful submissions provided a skeleton argument in advance for today’s hearing. Within that, she has set out her arguments, albeit the latest case of Rai and DAM (Grounds of Appeal-Limited Grant of Permission) [2025] UKUT 00150 (IAC) was not referred to. I mention here one paragraph of that decision for relevance:
“21. That in our judgment must be correct. If the Upper Tribunal is seised of an appeal because a judge is satisfied that there is an arguable error of law on one ground, it can often be difficult to disentangle that error from other conclusions reached by the judge in the same decision. If, for example, an arguable error is demonstrated by the grounds as to a judge’s analysis of a particular facet of an Article 8 claim being advanced, it is likely to be problematic if permission to appeal on a separate ground, for example alleging that the judge erred in their overall analysis of ‘proportionality’, is refused. The error in the assessment of a discrete aspect of the Article 8 claim is likely to impact upon the overall proportionality of the decision. The Upper Tribunal, on appeal, should not be constrained from holistically considering critical issues capable of affecting the outcome of the appeal.”
8. In any event, Ms Johnrose submitted that even if I was against her and that the Rules do not permit her to seek a reopening of Upper Tribunal Judge O’Callaghan’s decision, then Rule 5 of The Tribunal Procedure (Upper Tribunal) Rules 2008, enables the Upper Tribunal ‘to do anything that it wishes to because it permits the Upper Tribunal to set aside directions’.
9. Mr Tan submitted that the reference by the Appellant to 22(4)(b) of the Rules is conceived because that Rule does not apply to the Upper Tribunal Immigration and Asylum Chamber. Mr Tan further submitted that in any event that the grant of permission was clearly limited and that I ought not to permit the Appellant to reopen the grounds for which permission was previously refused. Mr Tan is correct about Rule 22(4)(b).
10. I indicated to the parties that I would permit Ms Johnrose to argue all of the grounds de benne esse, being for the sake of argument basis, and then decide whether to grant permission to appeal on Grounds 1 to 3. I had invited Mr Tan to seek more time but he was characteristically efficient and said he was ready to proceed and had had sufficient time to consider all of the Appellant’s grounds of appeal.
11. As I indicated during today’s hearing, procedural rigour is of significant importance and anxious scrutiny will not be sufficient on its own to detract from that when the parties have failed to act in accordance with the Rules and caselaw. I stressed that to Ms Johnrose and she heard it loud and clear.
The Appellant’s Grounds of Appeal
12. The Appellant’s case was that at the age of 22, he had been propositioned by [S], the mother of his friend [MT], an official with Hasthi-Al-Shabbi. [S] had videorecorded sexual activity between her and the Appellant. The Appellant stated he refused to have sex with [S] on a second occasion and she telephoned her husband to inform him of her infidelity. The Appellant fled Iraq. Whilst it is right for me to observe that such a story seems fanciful, it still required lawful and adequate reasoning for it to be rejected and the appeal dismissed.
13. The Appellant’s grounds of appeal overlap but come to stating that a married woman and the wife of someone prominent would not have been left alone with the Appellant in Iraq. The Appellant’s grounds state that this was not put to the Appellant during the hearing nor raised as an issue by the Respondent prior to the hearing. It is further submitted in the Appellant’s grounds that the Judge applied a higher standard of proof than that required by the law. The grounds also contend that the Judge was wrong to speculate as to what the Appellant ‘would do’ in such a situation instead of dealing with the facts which were before him.
The Judge’s Decision
14. Paragraphs 25, 26, 28 and 29 of the Judge’s decision set out his findings and I refer them:
“25. I do have issues as to the appellant’s credibility, it has not been made clear as to how the appellant was allowed to be alone with a married woman of someone prominent. It does not appear likely that this would be possible let alone for them to have enough time to engage in relations. The appellant’s oral evidence was that there was no one else in home despite the witness statement saying that her husband had bodyguards. It does not make sense that there was no bodyguards or security for his wife given the objective country information on where they live.
26. I also find myself in agreement with the respondent it does not seem likely that someone in Iraq who is engaging in an extra marital affair would then threaten that she would confess as to what had happened to her husband. Even if she was a woman scorned and influenced by drink her actions are essentially a death sentence for herself, the concept of revenge for the [ST] would begin by dealing with her actions firstly. I find it difficult to accept she would willingly take such a drastic step knowing the consequences. I find this also extends to the appellant’s account that [S] claimed that she filmed them being intimate. I do not believe she would be able to do this on her phone without the appellant realising she was doing this and that she would risk having such footage on her phone. The discovery of something like this would be severe on [S]. I do not accept that a married woman in Iraq would take such footage all in a bid to exact revenge on her husband.
27. I disagree with the appellant’s representative’s submission that the appellant would not have much information on [ST] as he was only friends with his son and it is not the culture where he could ask his friend about his father. I find that once he was intimate with the [ST]’s wife he would have learnt more about him and how powerful he is through any means necessary. It is not likely he would not have the opportunity to learn this from others if he was so powerful, including some information from the [ST]’s son.
28. I find that the appellant had no intimate relations with a married woman and there is a risk from her husband as a result.
29. It follows that I also do not accept that the appellant’s family condemned him for being with a married woman. It is also credibility issue that the appellant claims they both condemned him and assisted in him leaving the country.”
Consideration and Analysis
15. I remind myself that the expertise of the First-tier Tribunal has been impressed upon the Upper Tribunal for very many years, including more recently in the decision of the Court of Appeal in MH (Bangladesh) v Secretary of State for the Home Department [2025] EWCA Civ 688 9 June 2025. In particular the judgment of Arnold LJ, with whom Singh and King LJJ agreed. Paragraph 29 makes clear:
“There have been many recent authorities in both the Supreme Court and this Court on the need for appellate courts and tribunals to be cautious before interfering with findings of fact and evaluative assessments by lower courts and tribunals, and in particular specialist tribunals such as the FTT. For present purposes it is sufficient to cite Lord Hamblen’s summary in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, [2022] 1 WLR 3784 at [72]:
‘It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. In particular:
(i) They alone are the judges of the facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. It is probable that in understanding and applying the law in their specialised field the tribunal will have got it right. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 678 per Baroness Hale of Richmond at para 30.
(ii) Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49; [2011] 2 All ER 65 at para 45 per Sir John Dyson.
(iii) When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19; [2013] 2 AC 48 at para 25 per Lord Hope of Craighead.”
16. The legal test to be met by the Appellant to show a material error of law is to be found in the Court of Appeal’s decision in R (Iran) and others v Secretary of State for the Home Department [2005] EWCA Civ 982; [2005] Imm. A.R. 535.
17. The Appellant’s grounds contend that it was necessary for the Judge to consider the Appellant’s witness statement dated 12 July 2024 from paragraphs 13 through to 22 which had set out the details in respect of the intimacy and similar issues with [S]. By way of example, the Appellant said at paragraph 19:
“I attended the house and she was at home alone. She told me that she had dropped her ring under the bed and asked if I could help her find it. When I was trying to help her recover it, she locked the door and asked me for sex. She had been drinking. I could smell alcohol from her. She told me that her husband had taken another wife who was only 20 years old. She was very upset.”
18. In my judgment, the Judge did not provide adequate reasoning at paragraphs 25 to 29 of his decision. For example, the whole of paragraph 28 only reads, “I find that the Appellant had no intimate relations with a married woman and there is no risk from her husband as a result”. In my judgment much more was required to deal with the evidence which had been presented by the Appellant. Indeed, the Judge was reminded of the submissions on behalf of the Appellant setting out that evidence. It was necessary to say ‘why’ the Appellant’s version of events was not accepted and why the Appellant was not at risk from [S]’s husband.
19. As I have observed, the Appellant’s story appears fanciful, but that of itself is not sufficient for the appeal to be dismissed. Adequate reasoning was required and an engagement with the Appellant’s specific case and an explanation ‘why’ the Appellant’s evidence was being rejected which then also required adequate reasoning.
20. In my judgment the Judge did not adequately reason his decision when dismissing the Appellant’s appeal in respect of grounds 1 to 3. This impacts too on Ground 4 although that had related to the CSID and documentation issues.
21. I return then to the preliminary issue in respect of the apparent restriction of the grounds.
22. I conclude that it is in the interests of justice that I allow the Appellant to argue grounds 1 to 3 before me.
23. There are 3 aspects I take into account in coming to that decision. Firstly, the Appellant’s solicitors had informed the Upper Tribunal on 5 September 2025 that an application for reconsideration would be made and that application has been made before me this morning. Although the application should have been made prior to the hearing and could have been considered by a Judge of the Upper Tribunal prior to the hearing, I have had the opportunity to consider it and Mr Tan has been able to reply to it. Secondly, I take into account the relative strength of the grounds of appeal upon which permission to appeal was refused. As I have said, I consider that the grounds 1 to 3 have merit and indeed are made out. Thirdly, although there has not been strict compliance by the Appellant’s solicitors with Rule 22(3) in that there was no clear application in writing, I accept that there was a misunderstanding as explained by Ms Johnrose. She thought the letter of 5 September 2025 would entitle her to raise the renewal of the grounds issue at this hearing in view of the e-mail response from the Upper Tribunal to her letter of 5 September 2025.
24. I have therefore considered all of the grounds of appeal.
Conclusion
25. The Judge’s decision contains a material error of law. All of the grounds of appeal are made out. The Judge’s decision is therefore set aside in its entirety.
26. I have considered whether or not this is a matter which ought to remain for further consideration here at the Upper Tribunal or be remitted to the First-tier Tribunal. I apply AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC). I consider whether to retain the matter for remaking here at the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statement. I take into account the history of this case, the nature and extent of findings to be made as well as the nature of the errors in this case. I further consider it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process. I conclude that the appropriate decision in this case is that I remit the matter to the First-tier Tribunal with no retained findings.

Notice of Decision
The decision of First-tier Tribunal contains a material error of law and is set aside.
The matter is remitted for rehearing at the First-tier Tribunal.
None of the current findings shall stand.
The anonymity direction is continued.

Abid Mahmood

Judge of the Upper Tribunal
Immigration and Asylum Chamber

21 November 2025