Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-004930

First-tier Tribunal No: PA/59023/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 19th February 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

MR SU
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr T Hussain, Counsel instructed by Batley Law
For the Respondent: Ms S McKenzie, Senior Home Office Presenting Officer

Heard at Field House on 4 February 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, [the Appellant] (and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) 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 (and/or other person). Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. The Appellant is a national of Iraq born on 1 January 1990. The basis of his claim is that he fell in love with his now wife but her family rejected his proposals. He claims that her family had power and influence within the PUK and the Peshmerga and threatened to kill him, however he and his wife eloped in 2016 and married against her family’s wishes and lived for five years in another area of Iraq. In 2021 he says he received a call that his home was raided by armed men believed to be his wife’s family and he fled the country along with his wife and children in fear of their lives. He arrived in the United Kingdom on 19 December 2021, claimed asylum on 22 December 2021 and his application was refused in a decision dated 1 October 2023.
2. His appeal came before First-tier Tribunal Judge Walker for hearing on 12 May 2025. In a decision and reasons promulgated on 21 May 2025 the appeal was dismissed, essentially on the basis that the judge concluded at [29] that the Appellant has contrived to embellish evidence to support his asylum claim; there were clear inconsistencies in his account which had not been adequately explained and the varying accounts on core aspects of the claim severely undermined his credibility.
3. An application for permission to appeal was made to the Upper Tribunal challenging the manner in which the judge had treated the evidence of the Appellant’s witness, Mr SRA, who provided a statement dated 1 October 2024. It was submitted that, in finding that the evidence of the witness is so weak that it fails to meet the evidential threshold:
(i) the judge failed to provide reasons for his conclusion. There was no challenge to the credibility of the witness as a witness of fact and the witness independently became aware of the material facts of the Appellant’s claim through people speaking about it in the community. The First-tier Tribunal Judge does not rationalise why the fact that the knowledge was received second hand in the community undermines its weight to such an extent that it cannot be relied upon;
(ii) Secondly, the First-tier Tribunal Judge finds that the witness did not state how he knows the family are very powerful. The witness was tendered for cross-examination and neither the Respondent or the judge posed this question to him which was in any event immaterial to assessment of past fact and questions of relocation and/or protection were not in issue.
4. Permission to appeal was granted by First-tier Tribunal Judge Dainty on 21 October 2025 in the following terms:
“2. It is averred that there is inadequate and/or irrational reasoning given in relation to the evidence of the independent witness. This is dealt with at para 26. It is averred that there is a failure to reason why the evidence is so weak as to not meet the threshold.
3. Secondly it is averred that it was wrong to refer to a lack of details being provided when no one asked the witness questions about the wife’s family’s links and that that was immaterial in any event because internal relocation was not at issue.
4. It is said that this is all highly material because if the Appellant’s account were accepted as credible the appeal would succeed.
5. There is an arguable error of law in the weight that was given to the evidence of the witness and/or failing to explain why the evidence is ‘so weak’ as to not reach the threshold. The approach arguably fails to understand the standard of proof or seeks to import a restriction on hearsay evidence which is not present in immigration proceedings but on any view is not adequately explained. This arguably infects the whole credibility analysis”.
Hearing
5. At the hearing before the Upper Tribunal, Mr Hussain on behalf of the Appellant made submissions in line with the grounds of appeal. An issue then arose as to the availability of a Record of Proceedings by either party of the proceedings in the First-tier Tribunal. Ms McKenzie helpfully was able to produce the Presenting Officer’s minute of the hearing and there was a short adjournment whilst that was emailed to the parties who were given the opportunity to read the minute of the hearing.
6. Upon our return and in the absence of a Rule 24 response, Ms McKenzie responded to the grounds of appeal. She submitted that, in fact, it was quite clear from [26] that the judge did provide reasons and that one has to consider the whole of the paragraph. Ms McKenzie also submitted that there was nothing wrong with those reasons. The evidence of the witness was in fact third hand and that made that evidence weak and so, therefore, the judge’s reasons were clear.
7. In relation to the questions asked of the witness, she submitted it was a matter for the parties to ask questions and that the judge’s questions were for clarification. I put to Ms McKenzie the fact that some of the judge’s questions according to the Presenting Officer’s minute appeared not to be for clarity but raising new matters. Ms McKenzie submitted that the judge’s decision was based on the evidence that the witness gave and the judge properly asked and was entitled to ask the questions that he did.
8. In his reply, Mr Hussain submitted that the judge has essentially discounted the evidence of the witness based on hearsay but it was also not for the judge to cross-examine the witness, see Hima [2024] EWCA Civ 680 at [59] to [62] which make clear that the judge’s entering into the arena is not permitted and in that case the decision was set aside on that basis.
9. Mr Hussain submitted that it was critically important in this case from the minute of the hearing that no issue of hearsay was raised with the parties. He submitted that, even if it had been, it is clear that the issue of the raid on the Appellant’s family home was the subject of gossip in the community and was controversial. He submitted that the Appellant and the witness did not know each other in the UK and had not been socially connected in Iraq. Mr Hussain submitted that the judge had entered the arena, that on sight of the minute he expected detailed cross-examination from the Presenting Officer and there was some, however the judge’s questions followed cross-examination and there is no evidence that the judge then gave the parties the opportunity to come back to ask the witness further questions.
10. Mr Hussain submitted that there is nothing wrong with the witness’s evidence that the source of the information was the community and students in his school. He submitted that the judge’s finding was a strong finding but it was based on an impermissible rationale and grounded in reason that was taken from cross-examination conducted by the judge rather than by a Presenting Officer and that this was impermissible because the judge entered into the arena and that this rendered the determination unlawful.
11. Mr Hussain accepted that this was in effect raising an additional ground of appeal, however it has arisen expressly due to the submission of the Presenting Officer’s minute of the hearing. Mr Hussain submitted the judge’s reasoning was fundamentally flawed because it was based on the testimony of an independent witness being discounted when it should not have been. He submitted if I were to find a material error of law that the decision should be set aside in totality and remitted to the First-tier Tribunal for the making of proper findings of fact.
12. In light of Mr Hussain’s additional ground of challenge, I gave Ms McKenzie, exceptionally, the opportunity to respond. She submitted that, in fact, the judge was just seeking clarity arising from questions put in cross-examination and that was clear both from his question “How do you know the people were part of the Appellant’s wife’s family” and the second question as to whether he saw the raid himself were both clarifications and the judge’s questions were sustainable as were his reasons at [26].
Decision and reasons
13. Given that the sole basis of challenge is the manner in which the judge treated the evidence of the witness, SRA, I set out the questions the witness was asked and his answers as recorded in the Presenting Officer’s minute:

“How do you know him?
• I know the A through the neighbourhood we used to live
Whats the name of the neighbourhood?
• Bnar, Ranya. It’s a big neighbourhood
Who were you living with in bnar?
• Family
Were you studying or working at the time?
• I was a teacher
When did you come to the UK?
• in 2021 when I left ranya
Do you know when the A came to the UK?
• no I don’t know when he arrived
When the A left Iraq did you keep in contact with him?
• No
Were you in contact with him when the A was living in goratu?
• We were not that close to each other in addition to age which we are wide apart, we met each other for example when we gave condolences or there was a particular event
When he left ranya did you stay in contact with him?
• No when he left ranya which was in nov 2016, it was said he run away with his lover
What do you know about the attack from hawdas family on sirwans house?
• After he left in nov 2016, hawdas family were searching for him, so they raided his house but after that I wasn’t aware of him, hawdas family were armed, for a girl eloped with the boy its not allowed in our community, that news became a rumour in the community, due to my occupation as teacher, I heard through community so it was not normal
To the best of your knowledge who was living at that house?
• I don’t know im not sure in relation to his family it wasn’t my job to go and find out whats going on
Do you know what family he had?
• I believe he had a brother and 2 sisters if I am not wrong we were not close to each other, we only met during mosque or condolences or in neighbourhood event, not much interaction between us
The A said his family never faced any problems for his relationship, but you’ve said his family were raided by armed men, does that not sound like a problem?
• Indeed, they belong to authorities, they are armed in relation to those incidents it is not absolved easily in muslim community.

Rep re-exam

None
Judge re-exam

How do you know the people who raided the house were from hawdas family?
• The people in the community were talking about it and that’s what they were saying
You saw the raid yourself?
• No I didn’t, people were saying it, my students told me that, I was up to my duty in school
In your statement when you say you saw what happened, you don’t have direct knowledge of that, you heard that third hand?
• There might be interpretation issues, I was at work when I finished the community were talking about it, it became a tale
14. At [26] the judge held:
“26. ... The evidence of witness SRA is the most useful to the Appellant’s claim in this regard as he said in his statement and in oral evidence that it was specifically SUA’s wife’s family that had attacked the house in November 2016. However, under cross-examination SRA confirmed that the information was not known to him directly having not been a witness to the raid. He had only learned of the incident through talk in the community and from the students he taught at school. Accordingly, I find that the evidence with regards to the only alleged incident of aggression towards the Appellant is so weak that it fails to meet the evidential threshold. On a further note, SRA states in his statement that he knows the Appellant’s wife’s family are very powerful with links to the PUK but again fails to give any specific details and does not state how this information is known to him.”
15. Whilst it was in response to questions from the judge rather than from the Presenting Officer that resulted in the responses the judge has relied upon in his finding that the witness evidence was “so weak that it fails to meet the evidential threshold” I do not find that the judge erred in law in relying upon his own questions and the witness’s responses. I accept Ms McKenzie’s submission that the judge’s questions were permissible because he was seeking clarification. I find it would have been open to the parties to have sought to ask any further questions that arose from the judge’s questions had they wished to do so.
16. However, I have concluded that the judge erred materially in law in his assessment of the witness’ evidence. I accept Mr Hussain’s submission that the judge failed to provide reasons as to why he considered the evidence of the witness regarding the alleged attack on his home in November 2016 by his wife’s family as “so weak that it fails to meet the evidential threshold.” I accept the submission that there was no challenge to the credibility of the witness as a witness of fact and the witness independently became aware of the material facts of the Appellant’s claim through people speaking about it in the community. Whilst I accept that this is not the same as the witness having personally witnessed the attack, I find that the First-tier Tribunal Judge does not rationalise why the fact that the knowledge was received second hand in the community undermines its weight to such an extent that it cannot be relied upon at all. It is also unclear which evidential threshold is being applied here.
17. I further find that the judge erred in holding against the witness that he failed to give any specific details as to how he knows that the Appellants wife’s family are very powerful with links to the PUK and because he did not state how this information became known to him. Given that the witness was cross-examined and questioned by the judge and neither the Respondent or the judge posed these questions to him, I consider that the judge’s finding is unsustainable as he could have asked these questions and should have asked these questions as a matter of fairness, in order to give the witness the opportunity to answer.
18. Given that the witness evidence is potentially corroborative of the Appellant’s account of the reasons underlying his flight to the UK and application for asylum, I find that the errors by the judge are material and that the decision has to be set aside. Given that the appeal was dismissed on the basis that the Appellant’s credibility was not accepted and bearing in mind the decision in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) I consider that fairness requires that the appeal be remitted for a hearing de novo before a different Judge of the First tier Tribunal.
Notice of Decision
19. The decision of the First tier Tribunal Judge contains material errors of law. I set that decision aside and remit the appeal to the First tier Tribunal for a fresh hearing.

Rebecca Chapman
Deputy Judge of the Upper Tribunal (Immigration and Asylum Chamber)
12 February 2026