Tribunal decisions

The decision

Upper Tribunal UI-2025-004097
(Immigration and Asylum Chamber) Appeal Number: PA-61563-2023
LP/09997/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 4th of December 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE GREER

Between

HB
(anonymity direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms Brakaj, a Solicitor
For the Respondent: Mrs Bird, a Senior Presenting Officer

Heard at Bradford on 14 November 2025

DECISION AND REASONS

1. The Appellant is a 24-year-old national of Iraq of Kurdish Ethnicity. He appeals with permission the decision of the First tier Tribunal dismissing his Protection and Human Rights Appeals promulgated on 13th July 2025.

2. The basis of the Appellant’s claim is that he engaged in an extramarital affair with his maternal uncle’s wife. The Appellant’s uncle sought to harm the Appellant as an act of revenge. As a result, the Appellant fled Iraq fearing serious harm.

3. The Appellant applied for asylum in the United Kingdom on 20th December 2021. The Respondent refused the Appellant’s application on 25th October 2023, concluding that the entirety of the Appellant’s claim was untrue.

4. The First Tier Tribunal agreed with the Secretary of State and dismissed the appeal.

Application to vary grounds

5. At the hearing before me, Ms Brakaj sought the Tribunal’s leave to vary her grounds of appeal. She said that, in addition to the ground of appeal advanced in the notice of appeal, the First tier Tribunal’s decision discloses another error of law. She told me that, although it was not a point taken in the Appeal Skeleton Argument before the First Tier Tribunal, the Appellant’s evidence before the First tier Tribunal was that he had engaged in activities in the United Kingdom which would put him at risk of ill treatment upon return to Iraq. She told me that both parties addressed this at the beginning of the hearing, and in their closing submissions. In such circumstances, the First Tier Tribunal failed to resolve a dispute between the parties, namely, whether the Appellant could be at risk upon return to Iraq on account of his sur place activities.

6. For the Respondent, Mrs Bird told me that there was no dispute over the fact that this point had been argued before the First Tier Tribunal. In fact, it was the Respondent who raised the issue in the first place, in the Respondent’s review. She told me that she had no objection to the Appellant relying upon this ground of appeal before this Tribunal. Further, she conceded that the ground was made out and she invited me to find that the First tier Tribunal’s determination contains a material legal error, to the extent that it failed to determine this contested legal issue. By reference to the note of the hearing prepared by the advocate who appeared for the Secretary of State before the First Tier Tribunal, Mrs Bird told me that the question of the Appellant’s activities in the United Kingdom was canvassed at the hearing before the First Tier Tribunal. In Mrs Bird’s submission, the Tribunal was obliged to consider it.

7. In light of the parties’ agreement, I granted the Appellant’s application to vary his grounds of appeal.

Rule 15(2A) Application

8. Mrs Bird sought the Tribunal’s leave to rely upon a Country policy and information note: actors of protection, Iraq, September 2025. She said that this was relevant to the question of whether the First tier Tribunal was correct in its assessment of the likelihood of the Appellant’s uncle carrying a gun. This was not before the First tier Tribunal because it had not been published yet. Ms Brakaj did not oppose this background evidence being admitted. In the absence of any opposition, I admitted the background evidence.

Grounds of Appeal: Discussion and Findings

9. For the reasons that follow, I find that ground one is made out.

10. On behalf of the Appellant, Ms Brakaj argued that the First tier Tribunal’s decision is contaminated with material legal error. She focused her challenge on paragraphs 22 and 23 of the First tier Tribunal’s decision and made 2 submissions. Firstly, the First Tier Tribunal appeared to misunderstand the standard of proof. The First tier Tribunal found that it was reasonably likely that the Appellant’s uncle would have had a bodyguard guarding his home and therefore it was not credible that the Appellant could have conducted an affair with his aunt without this affair being discovered. Secondly, the determination does not contain sufficient reasoning to entitle the informer reader to understand why the Tribunal has found as it has. In Ms Brakaj’s submission, the First Tier Tribunal made a number of conclusions in respect of the inherent probability of events in Iraq, without explaining the evidential basis for those conclusions. In those circumstances, Ms Brakaj argued, the reader is left with the conclusion that the Tribunal has engaged in unlawful speculation. This, she argued, is a material error of law infecting the entirety of the Tribunal’s assessment of the facts.

11. In reply, Mrs Bird argued that the reference to an alternative hypothesis being reasonably likely would more properly be described as an error of expression, rather than an error of law. This is because, read as a whole, it is tolerably clear that the Judge had the correct standard of proof in mind. As for the evidential basis of the Judge’s conclusions, she argued that it was the Appellant’s own evidence was that his uncle carried a gun and this is what the Judge had in mind, whether or not he referred to it on the face of the determination. In respect of the finding that the Appellant’s uncle would have been flanked by bodyguards, the Appellant’s own bundle contained photographs of the Appellant’s uncle. Whilst it was not apparent that the uncle himself was carrying a weapon in these photographs, he was photographed next to a man equipped with a gun in a holster. It is tolerably clear, Mrs Bird argued, that this is what the Judge had in mind when reaching the conclusion that he did about the likelihood of the Appellant’s uncle having a bodyguard with him. Finally, turning to the conclusion that the Appellant’s uncle would have shot the Appellant, Mrs Bird referred to the Respondent’s Country policy and information note: actors of protection, Iraq, September 2025 which refers, at 7.1.6, to minor disputes often deteriorating into violence and, at 7.1.8, to 20% of the Iraqi population owning house guns. Although this evidence was not before the Tribunal, it demonstrates that the Judge’s conclusions were demonstrably correct and, therefore, any error on the face of the decision was immaterial.

12. It is a trite proposition of asylum law that findings in respect of the plausibility of a claim must be based on reasonably drawn inferences, supported by background evidence before the First tier Tribunal, and not solely on the Judge’s own view of the inherent probability of the claim. In the present case, the First tier Tribunal reaches findings as to the inherent probability of the Appellant’s account without disclosing, on the face of the determination, what background evidence informed those findings. The only conclusion open to an informed reader is that the First tier Tribunal relied on its own speculative assumptions as to life in Iraq. This, in my judgment, is an unlawful approach.

13. Turning first to the reasoning at [22], the Judge finds it to be reasonably likely that the Appellant’s uncle would have some form of bodyguard for himself and his home. Leaving aside the inversion of the applicable standard of proof, the passage does not entitle the reader to understand the evidential basis for this conclusion. The parties did not take me to any background evidence which was before the First tier Tribunal describing the likelihood of a man of the Appellant’s uncle’s rank in the Kurdish Security Forces having a bodyguard at his home. The Appellant does not describe this as having been the case in his witness statement and he is not recorded as having said as much in his Home Office interviews. It is impossible for the informed reader to know why it is that the Judge believed this would be the case.

14. It is of course right that the parties before the First tier Tribunal will have seen the papers and will be familiar with the facts of the case. It is with this in mind that challenges alleging inadequate reasoning must be approached. I have looked at the photographs highlighted by Mrs Bird at page 24 – 26 of the consolidated bundle. I agree with her that the man walking alongside the Appellant’s uncle carrying a gun might be a bodyguard. Similarly, he might not be. The photograph does not, by itself, support the First tier Tribunal’s counterfactual hypothesis that the Appellant’s uncle’s home would have been guarded. To this extent, it is impossible, even from the most sympathetic reading of the determination and of the case papers, to understand how the Tribunal reached its conclusion in respect of the nature of the security arrangements around the Appellant’s uncle’s house.

15. As for the reasoning at [23], the Judge finds it incredible that the Appellant’s uncle did not shoot the Appellant on sight, upon finding the Appellant at his home. The problem with this is that there is no evidential basis on which to conclude that the Appellant’s uncle was armed when he arrived home. Mrs Bird candidly accepted in her submissions before me that it was impossible to tell from the photographs before the Tribunal whether the Appellant’s uncle was armed at all times. This is because he was not visibly carrying a weapon in any of the photographs. As for the Appellant’s own evidence before the First Tier Tribunal as to whether the Appellant’s uncle was carrying a weapon when he found the Appellant in his home, Mrs Bird took me to the Appellant’s answer to question 46 of his interview. The following exchange is recorded:

Did [your uncle] threatened you?

Yes, he started beating his wife, he went to grab a weapon, I ran away, this issue is a serious issue in my country

16. Mrs Bird argued that it is clear from this evidence that the Appellant’s uncle was carrying a weapon when he caught the Appellant. In my judgment, the opposite is true; that the Appellant’s uncle went to grab a weapon suggests that he was not carrying a weapon on his person.

17. As for Ms Brakaj’s criticism of the Tribunal’s conclusions in respect of the Appellant’s uncle’s likely reaction, I find that this criticism is made out. The numerous reports about disputes over family honour in Iraq do demonstrate that such matters are taken extremely seriously. But there was nothing before the Tribunal to indicate that men who are caught having an affair with a family member face immediate death in every case. Many men are likely to react badly when catching his wife conducting an affair with another member of the family. In Iraqi Kurdistan, disputes of this nature are often settled by violence. However, as a matter of logic, each man is likely to react differently. Indeed, the Respondent’s position, as set out at 3.2.3 of Country policy and information note: Iraq Blood feuds, honour crimes and tribal violence, Iraq, July 2024 is that men who engage in extra marital affairs are not generally at risk from their own family, and that the women involved in the affair is at greater risk of suffering violence. On the Appellant’s evidence, his uncle’s reaction was to immediately set about beating his wife, before turning to the Appellant. The Appellant’s narrative is entirely consistent with that background evidence.

18. In these circumstances, I am satisfied that the Tribunal’s conclusions at [22] and [23] were reached without an adequate evidential foundation, and contain insufficient reasoning to entitle to parties to understand why the Tribunal has found as it has.

19. Regarding materiality, Mrs Bird argued that the more recent background evidence in respect of how life goes on in Iraq demonstrates that any Judge was bound to reach the same conclusion reached by this Judge. I have read paragraphs 7.1.6 and 7.1.8 of the Respondent’s Country policy and information note: actors of protection, Iraq, September 2025. That around 1 in 5 Iraqi households own a gun and disputes over matters of honour often turn violent does not, in my judgment, demonstrate that any properly directed judge was bound to find it inherently improbable that the Appellant’s uncle did not shoot the Appellant immediately. I therefore reject that submission.

20. As an alternative submission, Mrs Bird submitted that any error is immaterial because the Judge treated each factual issue separately and, therefore, the error does not infect the entirety of the decision. She argued that the Judge considered whether the Appellant’s uncle discovered the alleged affair only after already rejecting the Appellant’s claim that the affair with his aunt had occurred in the first place. In my judgment, that submission is not supported by a natural reading of the First Tier Tribunal’s determination. Read as a whole, it is clear from the structure of the decision that the Judge performed a global assessment of the Appellant’s credibility and that his findings about the plausibility of the Appellant’s claims informed that assessment. As such, the errors infect the entirety of the First tier Tribunal’s decision and the errors are material.

Disposal

21. I am conscious of the Court of Appeal's decision in AEB v SSHD [2022] EWCA Civ 1512, Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC) and 7.2 of the Senior President's Practice Statements. Sub-paragraph (a) deals with where the effect of the error has been to deprive a party before the Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the FtT, whereas sub-paragraph (b) directs me to consider whether I am satisfied that 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.

22. As the First tier Tribunal determination contains no findings of fact capable of being preserved, the matter must be remitted to the First Tier Tribunal to be determined afresh.

Notice of Decision

1. The decision of the First-tier Tribunal involved the making of a material error on a point of law. The decision of the First-tier Tribunal is set aside.

2. The matter is to be remitted to the First-tier Tribunal to be determined de novo by a judge other than Judge of the First Tier Tribunal Hillis.

Signed:

J. GREER

Deputy Upper Tribunal Judge Greer

Dated 1st December 2025