Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003620

First-tier Tribunal No: PA/55607/2024
LP/01990/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 20th February 2026

Before

UPPER TRIBUNAL JUDGE REEDS

Between

HR (Iraq)
(ANONYMITY ORDER continued)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms L. Coen, Counsel instructed on behalf of the Appellant
For the Respondent: Mr Diwnycz, Senior Presenting Officer

Heard on 4 February 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
1. The Appellant appeals, with permission, against the determination of the First-tier Tribunal (Judge Monaghan) promulgated on 27 February 2025. By its decision, the Tribunal dismissed the Appellant’s appeal on all grounds against the Secretary of State’s decision dated 27 February 2024 to refuse his protection and human rights claim.
2. The FtTJ did make an anonymity order, and no grounds were submitted during the hearing for such an order to be discharged. Anonymity is granted because the facts of the appeal involve a protection claim and that his rights protected under Article 8 outweigh the right of the public to know his identity as a party to these proceedings, the latter being protected by Article 10 of the ECHR. The anonymity order is detailed above.
Background:
3. The factual background is summarised in the decision of the FtTJ between paragraphs 15-16 and is taken from various sources of evidence as follows. The Appellant is a national of Iraq. Members of the Komala Party of Iranian Kurdistan invaded the Appellant’s farm and set up a training base. The Appellant asked them to leave but they did not listen. A week after the invasion there was an attack on the farm by the Iranian Authorities. The Komala members accused the Appellant of being a spy and giving information about their location to the Iranian Authorities. The Appellant was arrested by the Asayish and beaten by them. He was released on bail and approached by the PUK and asked to work for them on behalf of the Iranian Etalaat and spy on the Komal party members. The Appellant refused to help them, and they threatened him and his children. The Appellant fears he will be killed by Komala for his perceived collaboration with Iran as a spy. He further fears that if he returns to Iraq he will be killed by the PUK and Iranian Etalaat for refusing to help them.
4. The Appellant left Iraq on 15 September 2021. He travelled through Turkey, Italy and France and arrived in the UK from France on 1 August 2022. On 1 August 2022 he made a claim for asylum.
5. The Respondent considered his application and, in her decision letter dated 27 February 2024 refused the claim. Beyond accepting his nationality, ethnicity and identity the Respondent rejected his account of having problems as a result of adverse interest /attention from the PUK, the Iranian Etalaat or the Komala Party. The Respondent in the decision letter and the review set out the issues raised as to the credibility and consistency of his claim.
6. The appeal came before the FtTJ. In a decision promulgated on 27 February 2025, the FtTJ dismissed the appeal having rejected his account that he had been credible in his claim to have been at risk in Iraq on the factual basis as claimed. The FtTJ set out her findings of fact and analysis of the evidence between paragraphs 17-39 and dismissed the claim.
7. The Appellant applied for permission to appeal, based on 2 grounds. Permission to was refused by FtTJ on but on renewal was granted by Upper Tribunal Judge Mahmood on 8 October 2025.
The hearing before the Upper Tribunal:
8. The hearing took place on 4 February 2026. The Appellant was represented by Ms Coen, of Counsel and the Respondent by Mr Diwnycz, Senior Presenting Officer.
9. Ms Coen indicated that she relied upon the grounds of challenge and the skeleton argument she had provided. Mr Diwnycz Senior Presenting Officer confirmed that there was no Rule 24 response under the Tribunal Procedure (Upper Tribunal) Rules 2008 but that the position of the Respondent was that there was no error law in the decision of the FtTJ.
10. I am grateful for the submissions made by the advocates and the assistance they have given during the hearing. It is not necessary to set out those submissions as they are contained within the written grounds and the skeleton argument drafted by Ms Coen and relied upon by her. I will consider those submissions when assessing whether the decision of the FtTJ discloses the making of a material error of law.
Decision on error of law:
11. Before undertaking an assessment of the grounds, I take into account the following matters. First, I must read the decision of the FtTJ sensibly and holistically and exercise appropriate restraint before interfering with it. Secondly, a brief decision does not mean necessarily that it is erroneous in law. Thirdly, what is required in a decision will be case specific and will depend on the nature of the issue (s) in play.
12. There are two grounds of appeal. The first ground is that the judge failed to follow Sections 31-36 of the Nationality and Borders Act 2022 in respect of the varying standard of proof and applied the wrong standard of proof.
13. The grounds cite and rely on JCK (s.32 NABA 2022) (Botswana) [2024] UKUT 00100 (IAC).
14. There is no dispute that the Appellant claimed asylum on 1 August 2022. As this is a claim which post-dates the coming into force of the Nationality and Borders Act 2022 (“NABA”) the statutory framework of that Act applies when considering whether the Appellant qualifies for asylum. Section 32 of NABA states:
“(1) In deciding for the purposes of Article 1(A)(2) of the Refugee Convention whether an asylum seeker’s fear of persecution is well-founded, the following approach is to be taken.
(2) The decision-maker must first determine, on the balance of probabilities—
(a) whether the asylum seeker has a characteristic which could cause them to fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion (or has such a characteristic attributed to them by an actor of persecution), and
(b) whether the asylum seeker does in fact fear such persecution in their country of nationality…. as a result of that characteristic…..”
15. If it is found that the asylum seeker has the relevant characteristic or would have such a characteristic attributed to them and if they do in fact fear persecution, then under section 32 (4) and (5):
“(4) The decision-maker must determine whether there is a reasonable likelihood that, if the asylum seeker were returned to their country of nationality…..

(a) they would be persecuted as a result of the characteristic mentioned in subsection (2)(a), and
(b) they would not be protected as mentioned in section 34.

(5) The determination under subsection (4) must also include a consideration of the matter mentioned in section 35 (internal relocation).

16. If the Appellant does not qualify for asylum, then the claim falls to be considered as a claim for humanitarian protection. In this case, under paragraph 339C immigration rules, a person who is not a refugee (and not otherwise excluded) qualifies for humanitarian protection if substantial grounds have been shown for believing that if returned to their country of origin, they would face a real risk of suffering serious harm and they are unable, or owing to such risk, unwilling to avail themselves of the protection of that country. Serious harm includes torture or inhuman or degrading treatment or punishment in their country of origin (paragraph 339CA).
17. The headnote to JCK sets out the following:
Sections 31-36 of the Nationality and Borders Act 2022 apply in an appeal where the claim for international protection was made after 28 June 2022.

2. In an appeal to which s32 NABA 2022 applies, the proper approach is to address each of the questions posed by the section expressly and sequentially.

3. Question 1 is whether, on the balance of probabilities, the claimant has a characteristic which could cause them to fear for one of the five reasons set out in the Refugee Convention. In simple terms: is there a Convention reason?

4. Question 2 is whether, on the balance of probabilities, the claimant "does in fact fear" such persecution. This is the 'subjective fear' test.

5. Questions 3-5 are matters of objective evaluation and must each be determined on the lower standard of proof: 'a reasonable degree of likelihood'. Is it reasonably likely that there is:

- a risk of harm
- an absence of state protection, and
- no reasonable internal flight alternative
18. The FtTJ was plainly aware that the protection claim was made on 1 August 2022 as she set this out at paragraph 1 of her decision and recognised the relevance of that date in the context of the applicable legal framework for the decision she then went on to make. The FtTJ expressly are recorded, “ as such ss 30 – 39 of the Nationality and Borders Act 2022 (“the 2022 Act “) apply”.
19. Further at paragraphs 12 – 14 the FtTJ again returned to the correct legal framework by reference to the relevant date, the Appellant’s claim having been made on or after 28 June 2022, and that section 32 of NABA applied and further recognised that she must apply a two stage test and directed herself in accordance (correctly) with the relevant statute and the guidance given in JCK (s.32 NABA 2022) Botswana [2024] UKUT 00100 . There are a number of references to the standard of proof applied by the FtTJ at paragraphs 23, 30 and 38.
20. It is accepted on behalf of the Appellant that the FtTJ correctly set out the relevant legal framework as recorded above. It is further accepted in the skeleton argument that the FtTJ identified the relevant standard of proof at paragraphs 12-14. At paragraph 13 the FtTJ set out the standard of proof as whether it is “reasonably likely that , the Appellant would be persecuted for that Convention reason, they would not be sufficient protection available: and the Appellant could not internally relocate .
21. Having considered the decision under challenge, the FtTJ plainly applied section 32 (2) to the “ first test” to determine on the balance of probabilities whether the asylum seeker has a characteristic which could cause them to fear persecution for one of the five reasons set out in Article 1 (A) (2) of the Refugee Convention. This assessment is set out at paragraph 8 of the decision. The FtTJ records the concession made in respect of the first test, (a) as to whether the Appellant has a characteristic which could cause him to fear such persecution and sets out that the Convention reason is “ political opinion” ( see paragraph 8 (d) of the decision).
22. In this appeal the focus was on the second question whether the Appellant does in fact fear such persecution, otherwise known as the “subjective test”. The FtTJ set out the issues in dispute between the parties at paragraph 9. By reference to the decision letter and the Respondent’s review, and as recorded in the FtTJ’s decision at paragraph 9, the credibility of the Appellant’s account and events that he claimed in Iran were the central issue ( see paragraph 9 (a)).
23. Turning to the “subjective fear” the credibility of the Appellant’s account although not determinative is relevant in that assessment ( see paragraphs 17 – 18 of JCK and as cited in the Appellant’s skeleton argument). It is further acknowledged by the Upper Tribunal in JCK that it is not possible to evaluate subjective fear without having some regard to the context in which that fear is said to arise. The historical facts in this appeal are those which concern the events in Iraq, and they inform the decision as to whether or not the Appellant was in fear. In my view the question of whether the Appellant in fact fears such persecution in Iraq because of political opinion (whether real or imputed to him), cannot be entirely separate from the consideration of the factual claim made on his credibility. The FtTJ addressed this in her decision and in her analysis of the evidence which referred to the Appellant’s lack of consistency in his evidence, the implausibility of his account in the inadequacy of his evidence (see paragraph 23 of her decision).
24. Whilst the grounds seek to argue that it is not clear what standard of proof was applied, this has to be viewed in the context of the decision and in the light of the findings and analysis of the evidence made. Having correctly identified the legal framework and having set this out in her decision making it clear that this was an appeal under the new provisions, it was not necessary for the FtTJ to set out any further reference to the standard of proof. In other words, it can be viewed from the decision and can be read that the FtTJ, who is a judge of a specialist tribunal is taken to be aware of the correct standard of proof and applied it. The FtTJ began her assessment on the balance of probabilities when starting with issue one. Whilst it is submitted that the FtTJ failed to have regard to the standard of proof, the FtTJ did refer to this at paragraphs 23, 30 and 38 of her decision as apart from the correct legal framework as identified and recorded at paragraphs 12-14.
25. I further consider that the assessment made at paragraph 38 which considered the risk on return relating to the issue of documentation was made by applying the standard of a “reasonable likelihood”, which is the lower standard of proof, and therefore demonstrates that the FtTJ was aware of the correct test at that stage of her assessment. Ms Coen accepted that the reference to the lower standard of proof in the assessment of risk was a reference to the correct standard of proof. As the FtTJ demonstrated that she had applied the lower standard of proof in assessing risk, it is self-evident that she applied the correct standard to the earlier findings of fact and analysis of the evidence.
26. It is of relevance that the grounds do not challenge any of the findings of fact or analysis of the evidence on the basis that the findings are not in accordance with the evidence, or that the inconsistencies in the evidence identified by the FtTJ were in error.
27. Having considered the evidence the FtTJ identified what she described as a number of credibility concerns with the Appellant’s account which she went on to set out as follows.
28. Firstly, he gave contradictory evidence about where he went into hiding after he was accused of spying by the Komala party following the attack on their camp. In cross-examination when asked where he was living when he was arrested by the Asayish he said he was hiding at home. The FtTJ recorded that at question 52 the Appellant said that he was actually hiding when he was arrested. The cross examination is set out; and that when asked further about this the Appellant said that he was hiding in his cellar at home. The FtTJ made a finding that it was not plausible that the Appellant would choose a hiding place in his own home where he would be easily discoverable. The FtTJ assessed the evidence given that found that the Appellant had not suggested that there was anything special about the cellar or that it was very hard to find such that it would make it suitable. The FtTJ also identified that in his evidence he said he was hiding in his own home due to fear of being arrested however a complete reading of his asylum interview made it clear that the Appellant said he was hiding in his cellar as he was in fear of the families of individuals who were killed in the attack on his occupied land by Iranian forces. The FtTJ went on to find that the Appellant did not mention this at all during cross examination mentioning only his arrest and subsequent recall regarding being asked to spy for the reigning intelligence services and the PUK ( see paragraph 19).
29. Other credibility findings that were made related to his evidence given in cross-examination about where he was hiding in the mountains (see paragraph 20) and at paragraph 21 assessed his evidence and claim he was in hiding at the house of an acquaintance. The Appellant did offer even a first name, he did not say how we knew this individual and the neighbour did not say was prepared to give up accommodation which belonged to him for the Appellant to hide on given that this would also place them at risk from powerful organisations such as the PUK, the Iranian intelligence services and Komala. The FtTJ concluded “it is also not possible in my view that a mere acquaintance had placed himself at risk in this manner.” Paragraph 22 considered the plausibility of the Appellant’s account of remaining in Iraq for a month before fleeing the country given the powerful organisations whom he claimed were looking for him and his family. His evidence was characterised as “vague” and did not explain why he felt he was at the point of discovery after one month in hiding. The FtTJ assessed his explanation about checkpoints but concluded that she “did not find this to be a reasonable explanation”.
30. As to his claim to have been tortured, the FtTJ stated that she considered that “in the round” with all the other evidence including the two photographs which he claimed showed that he had an injury to his middle finger. The FtTJ concluded there was no supporting evidence such as in Istanbul compliant report dealing with the injury. She took judicial notice that there could be many causes of an injury to a middle finger, other than torture, and concluded that given that there was a lack of any supporting evidence did not find that the injury was suffered due to the torture in the manner described.
31. Other inconsistencies in his evidence were identified at paragraph 24 relating to the core detail in his account, and when he was given an opportunity in cross-examination to explain why he did not mention that he had initially agreed to the spying request in either his witness statement or asylum interviews, the FtTJ recorded his evidence that “these kinds of details do not come up in his memory all the time”. The FtTJ considered that this depended on how he was questioned on how he answered the question but did not find that this was a reasonable explanation for omitting such an important detail. There was no evidence to suggest that the Appellant has a problem with his memory or a memory problem or any other health-related issue which might have affected his recall.
32. Paragraph 26 related to is inconsistent evidence about contact with his family members. The FtTJ contrasted his evidence both in cross-examination and his original asylum interview where the judge found he had given “an entirely different account”. The FtTJ concluded overall that the Appellant was not telling the truth.
33. There were other findings relating to section 8 of 20024 Act by reference to his journey and the is evidence of having made a claim for asylum in Italy ( see paragraph 28-29).
34. The FtTJ assessed the expert report ( paragraphs 32-36) . The FtTJ gave reasons why she did not find the Appellant to be a credible witness and did not accept the core factual matrix that he had put before the Tribunal.
35. Turning to the assessment of risk, the FtTJ stated that “he has not established to the standard required of him that he is at a real risk on return to Iraq at the hands of the three claimed groups; Komala, PUK and Iranian intelligence or for that matter anyone else in Iraq. Whilst Ms Coen submits that the reference to the standard of proof is not further explained. However as set out above, when dealing with risk on return upon the issue of documentation ( which is based on the lower standard of proof of reasonable likelihood) the FtTJ applied the reasonable likelihood standard ( see paragraph 30) and thus having already identified that the standard of proof when assessing risk is lower standard, that can be the only standard that she applied when assessing the risk on return as set out at paragraph 38. That being the case, it is not demonstrated that the FtTJ failed to apply the correct standard of proof in the early analysis of the evidence and findings of fact. There is no error of law disclosed on the basis of ground one.
36. Dealing with ground 2, Ms Coen submits that the FtTJ inverted the standard of proof. This is directed to paragraph 30 of the FtTJ’s decision. The FtTJ set out the following:
“I turn now to assess the Appellant’s account regarding his CSID. His evidence is that his CSID and others belonging to his dependents were in a bag ( together with the letter granting him asylum in Italy) when the bag was lost on the way to the United Kingdom. I do not find it plausible that a bag containing such a range of important documents would not be taken greater care of. However, even taking the Appellant’s case that it was lost at its highest, when asked where it was lost the Appellant said that he lost it “ just before getting to France in the jungle.” His evidence makes no sense. It is reasonably likely that the Jungle referred to is the well-known area where people attempting to leave France set up an informal camp waiting their chance to cross to the United Kingdom. It makes no sense therefore to say that the loss occurred in the Jungle before getting to France. I take judicial notice of the fact that this statement is geographically inaccurate. I therefore do not accept the explanation given. As I find that the Appellant’s credibility is lacking in respect of this matter, I find it reasonably likely that he is still in possession of his CSID or he remains in contact with his family who can assist him to become re- documented within a reasonable period of being returned to Iraq”
37. In her oral submissions Ms Coen submitted that the FtTJ deployed the standard of proof against the Appellant. Mr Diwnycz submitted that the FtTJ did not err in his assessment at paragraph 30 on the issue of documentation and submits that the burden is upon the Appellant to prove his case to the appropriate standard which is the reasonable likelihood.
38. I agree with submission made on behalf of the Respondent. When reading that paragraph in its context the FtTJ had made it clear finding that she was not satisfied that there was a reasonable likelihood that he had demonstrated that he had no documents as evidenced by her assessment of the Appellant’s own evidence that she had found that it was reasonably likely that he was still in possession of the relevant documents (CSID) or that he remained in contact with his family. That assessment of the evidence was applying the lower standard of proof of a reasonable likelihood on the issue of whether he had access to his documentation. The part of paragraph 30 relied upon in the submissions made on behalf of the Appellant cannot be read in isolation from the evidence analysed by the FtTJ. None of that is challenged in the grounds and the FtTJ assessed his evidence as to where the documents were, and his claim that he had lost the documents. The FtTJ assessed the plausibility of the account of losing them which were “very important documents”. It is well established in the context of Iraqi cases that a CSID is a document of importance in Iraq hence the issue of access to documentation by a particular individual in the context of return to that country. The FtTJ assessed that explanation provided but gave reasons why she decided that she did not accept it. It is clear that she was assessing the likelihood of his account being true to the lower standard upon which she concluded that there was no reasonable likelihood that his evidence was true. There is no error of law by reference to paragraph 30 and ground 2 is not established.
39. Returning to ground one, it is submitted that the FtTJ failed to apply the correct standard of proof relating to humanitarian protection. Ms Coen confirmed that the case for humanitarian protection was not based on any claim made of indiscriminate violence or risk of harm for a non-Convention reason but on the basis of a lack of documentation. This is supported by the skeleton argument filed on behalf of the FtT at paragraph 28. The FtTJ addressed this at paragraph 30 in her decision as set out above applying the correct standard of proof which is the standard of reasonable likelihood and thus was applying this at paragraph 30 and her conclusions at paragraph 39.
40. For the avoidance of doubt when the FtTJ concluded at paragraph 38 that the Appellant had not established the required standard that he was at risk on return to Iraq, having already referred to the standard of a reasonable likelihood at paragraph 30 when assessing the issue of documentation, but also having directed herself correctly as the law between paragraphs 12 and 14, it has not been demonstrated that the FtTJ applied a higher standard of proof in those conclusions she reached.
41. Having considered the decision of FtTJ Monaghan in light of the evidence and the grounds I am satisfied that there is no error of law in the decision based on the grounds as advanced. Having considered the decision reached, the FtTJ applied the correct legal framework and analysed that evidence and gave adequate, sustainable reasons for her decision.
42. Consequently, for those reasons the Appellant has not established that the FtTJ’s decision involved the making of an error on a point of law, therefore the decision shall stand.
Notice of Decision:
The decision of the FtTJ did not involve the making of a material error of law and the decision of the FtTJ shall stand.
11 February 2026
Upper Tribunal Judge Reeds