Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003345

First-tier Tribunal Nos: PA/50960/2024
LP/09486/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 17th November 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

PA
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr A Chakmajian, Counsel; Barnes Harrild & Dyer Solicitors
For the Respondent: Ms L Clewley, Senior Home Office Presenting Officer

Heard at Field House on 7 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.

DECISION AND REASONS

1. The Appellant appeals against the decision of First-tier Tribunal Judge Austin, dismissing his appeal on the basis of his protection and human rights claims.
2. The Appellant applied for permission to appeal, which was granted by First-tier Tribunal Judge Mills in the following terms:
“1. The application is in time.
2. The appellant is a citizen of Iraq, a Kurd from Kirkuk, who sought asylum on the basis of his imputed political opinion, claiming to have provided information which led to a battle between PUK Peshmerga and the Baghdad government backed Shia militia, Hashd-al-Shabi, and seemingly to fear both sides as a result. He also relied on sur place activity against both governments.
3. The Tribunal has dismissed the appeal on all grounds, and the appellant now seeks permission to appeal, contending in his grounds that the Tribunal has erred in law in the following ways:
a. Through rejecting a key part of the claim – that the PUK would have given the appellant’s details to Hashd-al-Shabi – without taking into account the context of the conflict in Kirkuk at the time, with Hashd-al Shabi being in the ascendancy;
b. Through a factual mistake as to whether the appellant had claimed that his home had been visited by Hashd-al-Shabi or not;
c. Through failing to consider the country guidance given in SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 110 (IAC), when considering the appellant’s feasibility of return, and potential internal relocation to the IKR
4. I find that the grounds do establish arguable errors of law in the Tribunal’s decision. In particular, the Judge does appear to make a factual error as contended for in ground 2, and it is arguable that his overall conclusion on credibility is infected by this error.
5. Permission to appeal is granted, and all grounds may be argued.”
3. The Secretary of State provided a Rule 24 response and indicated that the appeal was resisted.
Findings
4. At the close of the hearing, I indicated that I would reserve my decision which I shall now give.
5. In respect of ground 1, which identifies that the judge failed to consider in making credibility findings that the Appellant’s home area was Kirkuk, I am grateful to counsel for the detailed and explanatory nature of his submissions which illustrated the importance and impact of the judge’s failure to appreciate that the Appellant was born and lived in the Kirkuk province. The importance of this is crucial to this appeal and the errors of law that I have found. Given that the Appellant’s place of origin is Kirkuk province, which lies outside of the Iraqi Kurdish Region (IKR), the manner in which his claim should have been assessed is different from a case where an appellant originates from the IKR and is to be returned to that region, as a different return process governs that assessment. Thus, as the Appellant was from Kirkuk, he should have been assessed as if he were being returned to Baghdad, not the IKR, as occurred here.
6. In respect of his submissions, Mr Chakmajian took me to paragraph 16 where the judge queried why the PUK would bow to the demands of the Hashd-al-Shabi (HaS). However, this query by the judge can only be appreciated to be flawed when one understands that the events took place at Kirkuk which, as I have said, lies outside the IKR and falls under the jurisdiction of the HaS. I was helpfully taken to the Appellant’s pre-asylum interview questionnaire which is reproduced at page 146 onwards of the composite bundle wherein the Appellant has given an extremely detailed and comprehensive answer in relation to the nature of his protection claim and set out, in essence, that he was mindful of the history of the Kirkuk region and the fact that at the end of August 2021, the Peshmerga still had activities in the Kirkuk area but their activities were decreasing and the Peshmerga was no longer in coordination with the HaS as before, and their relations with the HaS were worsening. That was key background which gave context to the Appellant’s factual account that ten Arab individuals had come into his area and who were behind suspicious activity that the Appellant and his friend Ahmed had seen. They both reported this to the PUK, including details of the Arab individuals’ location and the licence plates of the cars they were using, as well as their being covertly armed. The questionnaire also recites that Ahmed gave the Appellant the phone and he, the Appellant, gave details of the number plates and the directions in which the cars had been headed and their location to the PUK.
7. It transpired that these were not terrorists who had come into the area but in fact were members of the HaS who were operating secretly and clandestinely in the area, which led to the confrontation between the PUK and the HaS. Thus, with that in mind, it becomes clear why the PUK would have bowed hypothetically to the HaS’ demands as alleged by the Appellant, namely, because Kirkuk was the area falling within their jurisdiction and control, in which the PUK only had influence, rather than control. This was the first factual omission or misapprehension that was highlighted. This, counsel argued, was the likely motive for the Respondent’s review accepting that if the Appellant’s account was credible, then there would be insufficiency of protection on return owing to the dominance of the HaS in the Kirkuk area.
8. I was also taken to the Appellant’s asylum interview at questions 39 and 44 to 47 wherein he had explained at length the attack and the concerns that he had in relation to the individuals whom he had informed upon to the PUK. The theme of this evidence, I find, was not considered by the First-tier Tribunal, namely that the complaint about these individuals arose in the context of persecution of the Kurdish community to the PUK and that it was naturally to them that the Appellant and his friend Ahmed turned to for assistance as there was persecution of Kurdish people in the area, as opposed to Arabs. The questions also illustrate that the local governor turned a blind eye to persecution of this nature, and therefore it was only to the PUK that the Appellant and Ahmed could complain, as opposed to the police. The fact that the Appellant also spoke with the PUK is also recited at question 44 of his asylum interview, as can be seen on page 173 of the composite bundle. Therefore paragraph 16 of the judge’s decision is also wrong to state, without consideration of this evidence, that the Appellant did not speak to the PUK when he has clearly stated so in his continuation questionnaire at page 148 of the composite bundle, which I find the judge has thus failed to consider. Therefore, it is clear that the Appellant did in fact have direct contact with the PUK contrary to the judge’s findings, which therefore contain a mistake of fact.
9. In support of the first ground, counsel also took me to paragraph 19 of the judge’s decision which contained the statement “… I saw no evidence to suggest that this was reasonably possible by the authorities in the IKR …”, in relation to the activities of the authorities in the area where the Appellant was from, which also contributes to the alleged error that the judge misapprehended the location in which these events took place and that the Appellant was going to be returned to the IKR. In further support of this, counsel directed my attention to paragraph 24 of the judge’s decision which under the heading ‘Findings’, concluded that the Appellant was being returned to the IKR, which is also the same basis under which the assessment as to whether or not the Appellant’s identity documentation could be obtained was assessed in relation to risk on return against the country guidance case of SMO & KSP (Civil status documentation; Article 15) Iraq CG [2022] UKUT 110 (IAC).
10. Therefore, I find that the error alleged in ground 1, namely that the judge’s findings arise from a failure to consider the correct region in which the events took place, and therefore the Appellant’s point of ultimate return and internal relocation, have been made out on the evidence before me and on the basis of the arguments pleaded and as embellished by counsel in oral submissions.
11. In fairness to the Respondent, Ms Clewley also indicated that she was not entirely comfortable with the references to the IKR that had been pointed to by counsel and which I have, in any event, noted and found indicate a material error of law in relation to the above paragraphs.
12. Notwithstanding that it is my provisional view that ground 1 represents a material error of law that affects the entirety of the decision, as well as supporting ground 3 that the judge’s assessment of risk on return is premised upon the Appellant being returned to the IKR, I go on to consider the remaining grounds in turn for the sake of completeness.
13. Turning then to ground 2, and the argument that the judge failed to consider the Appellant’s claim and has committed a mistake of fact, I do find that at paragraph 17 the judge has erred in stating that the Appellant’s home was not visited by the militia, which is in conflict with the first paragraph of the Appellant’s witness statement, which recites that his maternal uncle informed him that his friend Ahmed had been killed by the militia and that they had raided his house. The Respondent accepts in her Rule 24 reply that this is an error of law, but not that it is material to the outcome, given that there were other findings made. Notwithstanding that other findings have been made which touch upon credibility, given that the judge has fundamentally misconceived the nature of the Appellant’s claim and the actors of persecution, (illustrated by his query over why the PUK would bow to the HaS), I find that these further findings which the Respondent has accepted are erroneous, compound the errors already identified.
14. Turning finally to ground 3 and the judge’s failure to apply the country guidance case of SMO & KSP, albeit that the grounds go into some length in assessing the feasibility of return to Iraq and the availability of a CSID, paragraph 13 of those grounds does rightly note in any event that the Appellant would be returned to Baghdad since he comes from the Kirkuk area as opposed to the IKR. In that respect, emphasis is placed on headnote 7 of SMO & KSP which states in terms that “return of former residence of the Iraqi Kurdish region (IKR) will be to the IKR and all other Iraqis will be to Baghdad”. Thus it is clear that the judge’s decision is inconsistent with SMO & KSP, and that the judge has performed a factually incorrect and unlawful assessment of the risk on return that the Appellant will face.
15. As to the issue of the Appellant’s documents potentially remaining at home in Kirkuk, although he does not have his passport, albeit this point is not pleaded, I am fortified in my decision that the erroneous assessment of the risk on return is a material error, or contributes to the materiality of the other areas I have identified, because had the judge appreciated that the Appellant would be returned to Baghdad, as opposed to the IKR, there perhaps would have been a clearer focus on what documents the Appellant may or may not have available to him, given that there appears to be an indication that his CSID, INID, and INC, may still be at his family home, albeit that he does not have his passport with him. Given that there has not been a focused assessment on what documents are available to him and where he will be returned precisely, and how he might reach his reason of origin, namely Kirkuk, I find that ground 3 also represents a material error.
16. In light of the above findings, I find that the decision contained material errors of law such that it should be set aside in its entirety.
Notice of Decision
17. The appeal to the Upper Tribunal is allowed.
18. The appeal is to be remitted to be heard by any judge of the First-tier Tribunal other than Judge Austin.

P. Saini

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

12 November 2025