Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004417
First-tier Tribunal No: PA/63490/2023
LP/07355/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 1st of October 2026

Before

UPPER TRIBUNAL JUDGE REEDS
DEPUTY UPPER TRIBUNAL JUDGE WILLIAMS

Between

HMA
(ANONYMITY ORDER continued)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Jagadesham, Counsel instructed on behalf of the Appellant
For the Respondent: Mr Tan, Senior Presenting Officer

Heard on 7 September 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 Dainty) promulgated on 11 May 2025. By its decision, the Tribunal dismissed the appellant’s appeal on all grounds against the Secretary of State’s decision dated 21 July 2023 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 as follows. The appellant is a citizen of Iraq. He and his wife and children left Iraq on 6 September 2021 and travelled via Turkey and other unknown countries arriving in the UK on 22 September 2021 by boat. The appellant made a claim for asylum on 21 February 2022 with his family members dependent upon his claim. This claim was based on his fear that he would be killed by an individual called BK who was said to be influential and powerful in the PUK. BK was said to be a relative of the appellant’s wife and that it had been arranged for her to marry BK when she was younger. BK was involved in the killing of political protesters in Sulamaniyah on 17 February 2011 and was sentenced to 9 years in prison. The appellant claimed that he and his wife were threatened by BK and that she should divorce the appellant and marry BK. The appellant was attacked by BK and his bodyguards on 21 August 2021 and his stated that his hand was broken. He claims to have lost his job as a result of BK. The appellant claimed that BK made an ultimatum for his wife to divorce the appellant or the appellant would be killed. The appellant and his family members therefore left Iraq in fear of BK.
4. The factual claim was considered but refused in a decision taken by the respondent on 31 October 2023. Other than accepting the appellant’s nationality as Iraqi and that he was of Kurdish ethnicity, the respondent rejected his account of being in fear of BK and set out the inconsistent evidence given, both internally and with the objective material and the lack of detail given in relation to his factual account.
5. The FtTJ heard the appeal on 28 April 2025 and in her decision promulgated on 11 May 2025 dismissed his appeal on all grounds. The FtTJ set out her reasoning in the decision and found that in all the circumstances she was not satisfied to the requisite standard of proof that the appellant had established that he had a subjective fear of his wife’s family (which related to BK). The FtTJ therefore dismissed the appeal.
6. Permission to appeal the decision was sought in grounds dated 26 May 2025. Permission to appeal was granted by FtTJ Dainty on 17 September 2025.
The hearing before the Upper Tribunal:
7. The hearing took place on 7 September 2026. The Appellant was represented by Mr Jagadesham, of Counsel, who did not appear before the FtT and the Respondent by Mr Tan, Senior Presenting Officer.
8. The appellant applied for permission to appeal, based on 2 grounds. The following is stated:
i) “Making perverse or irrational findings on a matter or matters that were material to the outcome ("material matters"); ii) Giving weight to immaterial matters”.
9. Paragraph 1 of the grounds referred to the findings of fact made that related to the date of the x ray evidence (paragraphs 20(ii) and (ii) of the FtT decision) and paragraph 2 related to the finding made at paragraph 20(iv) by reference to the photographs produced.
10. On 17 September 2025 permission to appeal was granted by FtTJ Dainty on a limited basis whereby the FtTJ refused permission on the first paragraph of the grounds stating that this ground was unarguable for the reasons that she gave but she granted permission based on paragraph 2 of the grounds stating: “As to the uniform point it is arguable in terms of the error and its materiality”. No application was made to the Upper Tribunal seeking to appeal on the basis of the ground upon which permission was not granted within the time limit or at all.
11. In a document uploaded to the electronic case file on 6 September 2026 an application was made to amend the grounds of challenge to include the ground upon which permission was refused. Neither we nor the Presenting Officer had seen the application until the morning of the hearing. We therefore stood the case down for this to be considered. Mr Jagadesham sought instructions on this aspect and upon resuming the hearing indicated that the application was not being made and that he advanced only paragraph 2 of the grounds.
12. Mr Jagadesham indicated that he relied upon the grounds of challenge as it related to paragraph 2 and the part of the document he had provided prior to the hearing which dealt with this ground. He provided his oral submissions in support of the grounds. Mr Tan Senior Presenting Officer confirmed his reliance upon the Rule 24 response served under the Tribunal Procedure (Upper Tribunal) Rules 2008 and that the position of the Respondent was that there was no error law or any material error of law in the decision of the FtTJ.
13. We are grateful for the submissions made by the advocates and the assistance they have given us during the hearing.
14. In his oral submissions, Mr Jagadesham submitted that the FtTJ had made a “material mistake of fact” when making the finding that in two of the photographs produced by the appellant the man “BK” appeared to be wearing some sort of uniform. Paragraph 11 of his written submissions referred to the photographs in the bundle at pages 30 and 34 and that it was submitted that photographs do not show an individual wearing a uniform. There is a footnote at the bottom of the written submissions with a link to a website “Kurdish central.org/clothes which provides a link to Kurdish clothing.
15. He submitted that it was notable that the FtTJ granted permission and that it would be necessary to show that any error of law was material to the outcome, but where the material error is one of fact, it should be resolved in favour of the appellant (relying on ML (Nigeria) V SSHD [2013] EWCA Civ 849 at paragraph [16]).
16. By reference to the decision of the FtTJ, he submits that the finding made was not a “throwaway comment” but one that was relevant to the evidence given by the appellant as indicated by the FtTJ’s use of the word “damaging” and by reference to the first line of paragraph 21 of the decision where the FtTJ stated that “for all the reasons set out above I did not find the witness documentary support for the appellant’s case to be credible”.
17. Mr Jagadesham submitted that whilst there were other criticisms made of the appellant’s evidence the assessment of credibility was to be made “in the round” and that it could not be said that the outcome would be “inevitable” if the error had not been made.
18. Mr Tan submitted that the grounds had not been drafted on the basis of the mistake of fact but that it had been asserted that the FtTJ had approached matters in an irrational way or had made a perverse finding (see grounds of challenge). He further submitted the difficulty with the challenge now raised on behalf of the appellant was that there was no evidence submitted with the grounds to suggest what was worn in the two photographs is Kurdish dress.
19. Mr Tan submitted that it was not irrational for the FtTJ that he appeared to be wearing some sort of uniform given that he was said to be standing by military people or figures of authority.
20. As to the issue of materiality, he submitted that the decision should be read as a whole and that the appellant’s case was that BK held a position of authority and that he had subsequently threatened the appellant due to his relationship with his wife. The FtTJ only heard evidence from the appellant (not his wife) and his account of threats from BK. The FtTJ assessed the supporting evidence in the form of x-ray and hospital evidence but gave reasons why that evidence was rejected. It was therefore clear why the FtTJ rejected his claim by reference to the core material elements. Those findings were sufficiently reasoned and the core findings made with that the appellant was not able to provide a detailed consistent accounts of problems with BK, there were issues of provenance relating to the documentary evidence (x-ray evidence and photographs) but also that the photographs did not establish the threat as they did not link BK to the appellant at all as a potential persecutor (see finding of fact at 20 (iv)). Further, the FtTJ made a finding at paragraph 21 that the key part of his account which related to BK was inconsistent with the objective country material; this had been raised in the decision letter by the Secretary of State and no other evidence had been provided in response and the FtTJ found that this ran contrary to the appellant’s account. Thus, he submitted even if the finding made by the judge as challenged could be viewed as irrational or as now stated as mistake of fact, there were other significant findings of fact as to the core of his account which were rejected with reasoning and as such it not been demonstrated to be material to the outcome.
21. By way of response, Mr Jagadesham submitted that paragraph 2 of the grounds were advanced on the basis that the judge made a mistake and that permission was granted on the basis it was arguable subject to materiality. He made the point that the respondent did not say that BK was wearing clothes that could be a uniform. Mr Jagadesham referred us to the appellant’s witness statement paragraph 2, where the appellant stated that BK did not wear a uniform or display a rank, “he just wears civilian clothes. So, no one knows his rank or if he even has one”. However, Mr Jagadesham was not able to point to any evidence before the FtTJ which related to traditional Kurdish clothing. He referred to his written submissions and the web link which he accepted had not been put before the FtTJ.
22. At the conclusion of the hearing, we reserved our decision which we now give.
Analysis and discussion:
23. Before undertaking an assessment of the grounds, we take into account the following matters. First, we 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.
24. We remind ourselves that restraint should be exercised when examining the reasons given by the judge for his decision. In HA (Iraq) v SSHD [2022] UKSC 22, at [72] Lord Hamblen said:
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 misdirection’s 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.
25. There is one ground of challenge. The written grounds state as follows:
(i) Making perverse or irrational findings on a matter or matters that were material to the outcome ("material matters");
(ii) Giving weight to immaterial matters;
At paragraph 20(iv) the judge also finds that BK is wearing some sort of uniform in at least two of the photos provided, despite the Appellants assertion he never saw him in uniform. However, this is not correct, in two photos BK is wearing traditional Kurdish clothing, he is not wearing a police or military uniform.
26. The grounds advanced on behalf of the appellant seek to challenge the finding made by the FtTJ that related to the assessment made of the photographic evidence which was said to be related to the man identified as “BK”. This was only part of the assessment of the evidence which related to the factual claim made by the appellant. In our view it is necessary to set out the basis of the factual claim made and the issues arising from the evidence to set the grounds in context.
27. By way of summary, the appellant claimed that he feared BK (his wife’s cousin) who was a violent and powerful man as demonstrated by his background where he had shot and killed protesters in political demonstrations in Sulaymaniyah and as a result he was sentenced to 9 years imprisonment on the 17 February 2011(see p73CB: although he provides a different date in his witness statement) and that his father-in-law had told him that BK had been sent to Europe by the PUK because of his power. It was said that BK made calls to his wife making threats against her unless she refused to divorce the appellant and marry BK instead. He was employed by a company which was controlled by the PUK and BK made contact with his employers and his employment was ended. On 21 August 2021, BK called at his home and made further threats and there was an incident where shots are fired at his home. One occasion the appellant was followed in a car and was attacked leaving him with a broken wrist which he sought treatment for. He therefore asserted that he would be killed on return to Iraq because the appellant refused to divorce his wife so that BK could marry her.
28. The decision letter issued by the Secretary of State set out a number of credibility issues relating to the appellant’s factual account, notably stating that the account given of BK having been identified and sentenced to 9 years imprisonment was not consistent with the objective evidence where the opposition parties referred to no one being held accountable for the victims at the protests. Furthermore, the appellant’s interview concerning BK’s claimed profile (links with the PUK and KDP) lacked detail as did his asserted timeline and his inability to provide the date where he ceased his employment despite this occurring due to BK’s intervention. The decision letter considered the photographs produced but that they did not demonstrate who the man was in the pictures, nor that he was connected to the appellant’s wife.
29. The FtTJ had the opportunity to hear the appellant give evidence and to consider his account in the light of the documentary and the oral evidence. The FtTJ began her assessment as to credibility at paragraph 20 where she stated that having had the benefit of hearing live evidence from the appellant and comparing that alongside the documentation, she did not find the appellant to be either a “clear or cogent witness” and provided reasons for that conclusion between paragraphs 20 (i)-(iv) -21 of the decision. As Mr Tan submitted, the challenge made in the grounds to paragraph 20 (iv) relates to one finding within that paragraph and as such cannot be viewed in isolation.
30. Prior to the finding at paragraph 20 (iv) the FtTJ assessed the reliability of his account relating to him being in fear of BK but found that the appellant had not given a reliable account of the threats that he claimed he and his wife had faced from her family member BK. This was a matter raised in the decision letter and by reference to the interview responses given. The FtTJ did not consider this in isolation but considered his witness statement where he provided an explanation of not being able to provide an account of the threats (how many and when) because he had a toothache and/or was unwell at the time of the interview. It is clear that the appellant gave oral evidence about this issue as the FtTJ recorded his response. The FtTJ rejected his explanation with reasons at paragraph 20(i) and made a finding that this was a “central part of his case” and that it was reasonable to expect the appellant to remember those details if his account were true.
31. At paragraph 20(ii) the FtTJ considered the x-ray evidence. It was not only the date of the x-ray which was found to be inconsistent. The FtTJ set out the evidence given by the appellant in his witness statement and also cross examination concerning contact with family and how the documents were obtained. Having assessed that evidence the FtTJ made a finding that the appellant provided evidence was “self-serving and opportunistic and at times deliberately vague”. Furthermore, at paragraph 20(iii) the FtTJ found that the hospital record was written in English and the appellant was not able to explain why that was the position despite being given the opportunity to do so. Further, her assessment of the photograph of the appellant in hospital was that “this is not the same as proving that the injury in question happened when the appellant says it did or at the hands of BK who he claims to fear”.
32. The FtTJ then turned to the photographs of BK (see findings of fact at paragraph 20(iv)-(v)). The FtTJ made a number of findings of fact in those paragraphs and the grounds only seek to challenge one of them. First, the FtTJ found that the photographs said to be of BK appeared to show someone who has links to officials or as an official himself. Second, the FtTJ considered the appellant’s inability to give evidence about the rank of BK. We pause there. In interview when asked questions about the profile of BK, the appellant was not able to provide evidence of his rank, or his links to the PUK or the KDP (see questions 19, 20, 26, 27, and 35). When asked about his rank he then claimed that BK was an actual member of the police (see Q19) but that he did not know his rank. The FtTJ found that this was not fatal but that she did find it damaging that in the process of explaining that point the appellant stated that BK wore plainclothes/no uniform yet in two the photographs he produced BK appears to be wearing some sort of uniform. Third, the FtTJ made a finding that she could not place any particular weight on the photographs in establishing the threat as in her view the photographs related to an individual said to be BK but did not link BK to the appellant or as a potential persecutor. We take that to mean the point raised by the respondent that there was no link made between BK and the appellant’s wife. Fourth, the FtTJ assessed the provenance of the photographs in the context of the appellant’s evidence that he had had no contact with his family or his wife’s family and made a finding that he had given inconsistent evidence in that context also.
33. At paragraph 21, the FtTJ set out a finding that for “all of the reasons set out above I do not find the witness or documentary support for the appellant’s case to be credible”. Whilst Mr Jagadesham pointed to that as a reference to the challenged finding made at paragraph 20(iv) and relevant to materiality, it is entirely clear that this referred to the entirety of those findings which started at paragraph 20. At paragraph 21 the FtTJ returned to the assessment of credibility and reflected on the findings that had been made by reference to those findings. The FtTJ then made a further finding that a “key part “of the appellant’s account was not consistent with the country evidence. The judge recorded his account that BK had committed a crime at the protest on 17 February 2011 and was sentenced to 9 years. The FtTJ set out the respondent’s objective country materials referenced in the decision letter and separately on a document which stated that “none of those who killed or assaulted the protesters have been held accountable”. The FtTJ found that the appellant had not produced any rival source to that material despite being in receipt of it for some time. The judge concluded that that objective material before her ran contrary to the appellant’s account.
34. As can be seen from that summary, the FtTJ made a number of findings of fact adverse to the appellant which assessed the core factual elements of his claim which led to the conclusion at paragraph 22 that she did not accept that the appellant had established to the lower standard that he had a subjective fear of his wife’s family for a Convention reason.
35. It is also clear from that summary that the FtTJ made a number of findings of fact between paragraphs 20 (iv) and (v) which related to the photographs and the grounds seek to challenge only one of those findings.
36. Having considered the submissions of the parties and in the context of the evidence, we are not satisfied that the FtTJ fell into legal error. Whilst Mr Jagadesham seeks to advance the ground on the basis of the mistake of fact, we accept the submission made by Mr Tan. There was no evidence submitted with the grounds to suggest what was worn in the two photographs identified (or any of the photographs) is Kurdish dress. Nor was there evidence that what BK was wearing was not a form of uniform as worn.
37. The grounds do not identify what documentary evidence was provided to the FtTJ about the types of dress worn by officials in the Kurdistan region, including those of political links or with the police, or any evidence about dress in Kurdistan. Mr Jagadesham was not Counsel at the hearing and there is no record of proceedings as to what, if any, evidence or submissions were made on behalf of the appellant. What is clear is that there was no documentary evidence provided by way of sourced objective evidence concerning modes of dress for anyone in Kurdistan in the bundle before the FtTJ. Thus, in the absence of evidence, it cannot realistically be said that the FtTJ had made a mistake of fact. In other words, it was necessary to establish that it was a mistake of fact. We do not consider that the late inclusion of a web link to Kurdish central.org/clothing in Mr Jagadesham’s written submissions addresses the issues of what dress BK would have worn or did wear.
38. We remind ourselves of what was said by Lady Hale PSC in Perry v Raleys Solicitors [2019] UKSC 5 at [52], that the constraints to which appellate judges are subject in relation to reviewing first instance judges' findings of fact may be summarised as:
"...requiring a conclusion either that there was no evidence to support a challenged finding of fact, or that the trial judge's finding was one that no reasonable judge could have reached."
39. The test of irrationality is an onerous one to meet. It requires the Tribunal to be satisfied that no reasonable Tribunal properly directing itself could have reached the finding or conclusion challenged. In this context we also accept his submission that when considering the photographs it was not irrational for the FtTJ to make the finding that he appeared to be wearing some sort of uniform given that he was said to be standing by military people or figures of authority.
40. In our judgment, the FtTJ was further entitled to find that in two of the photographs BK “appeared to be wearing some sort of uniform”. Whilst the FtTJ did not state which photographs she was referring to, we have considered the material before the FtTJ and there are two photographs at pages 122 and page 124 both of which appear to show BK wearing some sort of uniform, using the words of the FtTJ. At page 122, the handwritten caption is that BK is standing next to the deputy of Kurdistan. At page 124 there is a similar picture. Whilst Mr Jagadesham submits that the photos show BK in traditional Kurdish dress by reference to page 34 and page 36(where he is wearing a leather jacket), we are satisfied that the FtT was entitled to make the finding she did on the material as identified and that BK appears to be wearing clothing which gave the appearance of being some sort of uniform.
41. Consequently, we are not satisfied that the FtTJ fell into an error of law on the material before the FtTJ and that it has not been established that the FtTJ made an error of fact.
42. We are further satisfied that it has not been established that even if we were to accept there was an error, is a material error of law or that it was material to the outcome. Mr Jagadesham relied upon the decision in ML (Nigeria) v SSHD [2013] EWCA Civ 849 and paragraph 16 where the following was stated by Sir Stanley Bunton:
“In agreement with Moses LJ, I consider it clear that a material error of fact in a determination of a tribunal will constitute an error of law. A material error of fact is an error as to a fact which is material to the conclusion. If there is any doubt as to whether or not the incorrect fact in question was material to the conclusion, that doubt is to be resolved in favour of the individual who complains of the error. It is clear from the determination of the First-tier Tribunal that the appeal of this appellant was not considered with the care that was required”.
43. On the facts there had been substantial errors in the recollection and record of the facts that were advanced in that case (see paragraphs 6 and 7). The Court disagreed with the Upper Tribunal stating at paragraph 10:
“A series of material factual errors can constitute an error of law. It is trite in not only the field of judicial review but also statutory appeals and appeals by way of case stated that factual errors, if they are significant to the conclusion, can constitute errors of law. Moreover, to take into account that which did not exist, for example a written skeleton argument, again is plainly an error of law. I put aside the plain error in referring to Sri Lanka as a factual error which necessarily vitiates the conclusion that was reached, but the essential question for the Upper Tribunal, as it seems to me, was whether this appellant had the fair hearing to which he was entitled before adverse findings of credibility were found”.
44. This is not an appeal where it could properly be advanced that the FtTJ made a series of material factual errors or that the appellant did not have a fair hearing. What is identified is part of a finding of fact and which has not been established as one which was significant to the conclusions reached.
45. Importantly in our view, the grounds and submissions fail to address the second part of the finding of fact made relating to the photographs and that they do not link BK to the appellant or BK as a potential persecutor. In this regard we note that this was the point made by the respondent in the decision letter that the photographs did not link BK to the appellant’s wife, who was the one BK interested in and was a family member. Consequently, even if the FtTJ was in error in making the first part of the finding, by reason of the second part of the finding which is unchallenged whether he was wearing a uniform or traditional Kurdish clothing does not undermine that finding of fact and in the light of the other significant and unchallenged findings of fact made by the FtTJ which assessed the core of his claim.
46. For those reasons the appellant has not established that the FtTJ’s decision involved the making of a material error on a point of law and 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.

Upper Tribunal Judge Reeds

Upper Tribunal Judge Reeds

28 September 2026