Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004831
UI-2025-005088

First-tier Tribunal No: PA/04663/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 11th March 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE HILLS

Between

MA
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Brown, Counsel instructed by Barnes Harrild & Dyer Solicitors
For the Respondent: Mr Tan, Senior Home Office Presenting Officer

Heard at Field House on 25 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 is a national of Iraq, who appealed to the First-tier Tribunal (FtT) against the respondent’s decision to refuse his asylum claim. In a decision dated 21 July 2025, the FtT Judge (FtTJ) dismissed the appeal. The appellant now appeals to the Upper Tribunal.

2. The basis of the appellant’s claim is that he fears he would be killed or persecuted by ISIS or Asayish if returned to Iraq because of interactions he had with them. In particular, he claims to have been detained following an encounter at a checkpoint. He also argues that his sur place activities, attending demonstrations and posting on Facebook, put him at risk of harm on return.

Grounds of Appeal

3. The grounds of appeal are two-fold.

4. The first, is that the FtTJ made unsafe credibility findings on a material issue, namely whether the appellant gave inconsistent evidence about the timing and circumstances of his purported detention while in Iraq. The appellant argues he was not challenged about the supposed discrepancy by either the respondent or during the FtT hearing, and that it is unfair for the FtTJ to make an adverse credibility finding on that point when he had not been given an opportunity to address to it.

5. The second, is that the FtTJ failed to properly assess whether the appellant would be at risk on return on account of his sur place activities. Specifically, that the FtTJ made a material error in finding there was no evidence of the appellant’s attendance at a demonstration on 24 January 2024 when there was Facebook evidence relating to that in the bundle.

Discussion and Findings

6. Before the FtT, the parties agreed that key to the appeal was whether the appellant’s account of events in Iraq was credible and, if credible, would he face persecution on return.

7. The FtTJ set out findings in relation to the credibility of the appellant’s account of events in Iraq at [23] to [40]. The point in issue relates to the appellant’s claim that he was detained while in Iraq. At his initial interview he said he had been detained for a period of 10 days in 2017. He subsequently said he had been detained in 2021 for a period of 19 days.

8. At [34] the FtTJ found that the appellant’s account of what happened is not complicated and where there are inconsistencies or question marks about that account they naturally will draw more attention. He noted that the appellant’s account was inconsistent, both in the year and the period of detention. The FtTJ found that this was a “major inconsistency” at [37] and was a factor which he took into account in the credibility assessment.

9. Mr Brown submitted that the FtTJ is not entitled to take a point against the appellant which had not been raised by the respondent. He said that it was not a point relied upon by the respondent and it was not a matter that had been put to the appellant for him to rebut or comment upon. He submitted that this was a procedural irregularity which led to unfairness and infected the FtTJ’s overall credibility findings on a central issue.

10. Mr Tan took me to the Court of Appeal decision in Abdi v Entry Clearance Officer [2023] EWCA Civ 1455, where at [29] the Court said:

“HA v Secretary of State for the Home Department (No 2) [2010] SC 457 [2010] CSIH 28 was a decision of an Extra Division of the Inner House of the Court of Session presided over by Lord Reed (now PSC), who delivered the Opinion. It made a number of general points about procedural fairness in the context of immigration cases, amongst which the following emerge at [4]-[13]. Subject to the procedural rules governing first instance tribunals, the tribunal has power to decide the procedure it adopts, but in doing so must act fairly. What fairness requires is essentially an intuitive judgment which is dependent on the context of the decision; although it is possible to identify a number of general principles, they cannot be applied by rote identically in every situation. An overall judgment must be made in the light of all the circumstances of a particular case. Whether there is procedural unfairness is fact-sensitive. See [4] and [13]. The tribunal may identify an issue which has not been raised by the parties to the proceedings, but it will be unfair, ordinarily at least, for it to base its decision upon its view of the issue without giving the parties an opportunity to address it upon the matter (see [7]). As an expert body, the tribunal is entitled to reject evidence notwithstanding that the evidence has not been challenged before it. Fairness may, however, require it to disclose its concerns about the evidence so as to afford the parties an opportunity to address them (see [8]). There is, on the other hand no general obligation on the tribunal to give notice to the parties during the hearing of all the matters on which it may relay in reaching its decision (see [10]). Where an applicant can generally be expected to be aware that the tribunal will have to assess their credibility, there will generally be no unfairness in a tribunal proceeding without drawing attention to a point which the applicant could reasonably expect to be plainly relevant to that assessment (at [11]-[12]).”

11. Mr Tan submitted that the inconsistency was obvious and plainly relevant. He also argued that the FtTJ did not dismiss the appellant’s account on that point alone. There was a further issue about a newspaper article submitted in evidence by the appellant, specifically whether the appellant argued the article related to him or was provided as background evidence. In addition, the FtTJ makes other adverse credibility findings at [39] and [40]. Mr Tan submitted that the FtTJ made a cumulative assessment about the appellant’s credibility based on a number of issues which detracted from his account.

12. Mr Brown submitted that given how significantly the FtTJ viewed the discrepancy around the appellant’s detention in Iraq, it should have been put to the appellant. He said that the reason why the point was never corrected by the appellant was because it was not something which the respondent had raised in the Refusal Letter or the substantive review as something which she considered undermined the core of the appellant’s case.

13. There is, of course, no general obligation on the tribunal to give notice to the parties during the hearing of all the matters on which it might rely when reaching its decision. I do not agree with Mr Brown that a tribunal is not entitled to take a point against an appellant that has not been raised by the respondent. That factor might, however, be important when determining if the appellant could reasonably expect an issue to be relevant to the credibility assessment in line with Abdi.

14. The question here is whether the point was so plainly relevant that the appellant could reasonably expect it to have been in issue. If it was, then it would not have been unfair for the FtTJ to base his decision on something which had not been put to the appellant.

15. The issue was not raised by the respondent at any stage. Mr Brown said that, for that reason, the appellant did not consider it was a significant issue. In those circumstances, it was reasonable for the appellant to conclude the respondent did not consider it to be something which materially undermined his claim and therefore it would not be in issue in the proceedings. As the FtTJ took a different view, that the discrepancy was a “major” inconsistency, the interests of fairness in this case required the issue to have been put to the appellant and he should have had an opportunity to explain it. The failure to do so was procedurally unfair and makes the findings on the appellant’s credibility potentially unsafe, which amounts to a material error of law.

16. For the reasons above, I uphold the appellant’s first ground of appeal.

17. The second ground of appeal is significantly weaker than the first. Given I have upheld the first ground of appeal and found there to be a material error of law, it is not necessary for me to deal with the remaining ground.

Disposal

18. The decision of the FtT is vitiated for the reasons set out above. I set aside the decision of the FtT. I have considered whether to retain the case in the Upper Tribunal or remit it to the FtT and have concluded that remittal is appropriate because the matter will require a fresh credibility assessment. I have considered whether any of the FtTJ’s findings can be preserved however given the nature of the error of law I do not consider that possible.

Notice of Decision

The decision of the First-tier Tribunal is set aside as it involved an error of law. No findings are preserved.

Directions to the First-tier Tribunal

1. The appeal is remitted to the First-tier Tribunal (Manchester);
2. The remitted appeal shall not be conducted by First-tier Tribunal Judge Alis;
3. The anonymity direction is maintained.

N Hills

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 9 March 2026