Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005141
First-tier Tribunal No: PA/51575/2024
LP/03569/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 6th of March 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE Ó CEALLAIGH KC

Between

RW
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Gayle, of Elder Rahimi
For the Respondent: Ms Geerthy, Senior Home Office Presenting Officer

Heard at Field House on 5 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
Introduction
1. The appellant is a national of Iraq who seeks protection in the United Kingdom. By these proceedings he appeals with permission the decision of First-tier Tribunal Judge Khurrum promulgated on 10 September 2025. By that decision, FTTJ Khurrum dismissed the appellant’s protection claim.
2. Permission to appeal was granted by First-tier Tribunal Judge Nightingale on 3 November 2025 on limited grounds. The matter now comes before me to determine whether First-tier Tribunal Judge Khurrum’s determination contains an error of law.
Grounds of appeal
3. There was no application to renew the application for permission to appeal on Grounds 1 and 4. Accordingly there are two grounds of appeal before me, though to avoid confusion I will retain the numbering in the original application. They may be summarised as follows:
a. Ground 2: The FTTJ’s rejection of the evidence of Regay Azadi on the basis that it lacked specificity and detail was perverse. On no rational view could it be said that the letter lacked specificity and detail.
b. Ground 3: The FTTJ’s conclusion that there was insufficient evidence that the Iraqi authorities monitored demonstrators was reached without regard to relevant guidance including WAS (Pakistan) v Secretary of State for the Home Department [2023] EWCA Civ 894.
4. Granting permission FTTJ Nightingale held as follows:
“Ground 2 is arguable. The letter from Mr [X] lists specific events with dates and locations as well as the actions of the appellant in the demonstrations described. The Judge arguably fell into error in assessing this evidence. It is also arguable, albeit only just, that the Judge did not give adequate reasons for finding that the appellant’s involvement in demonstrations would not bring him into difficulties with the Iraqi authorities. Grounds 2 and 3 are arguable.”
5. Ms Geerthy confirmed that there was no Rule 24 response.
The hearing
6. In respect of Ground 2, Mr Gayle submitted that the FTT’s treatment of the evidence from Regay Azadi was wholly unsustainable. He noted that this was a large organisation and it was impractical to think that its Chairman could appear at every appeal. The reality was that this letter was an exceptionally detailed record of the appellant’s involvement with the organisation.
7. Significantly, the information described in the letter was not merely detailed, but was also corroborated by evidence in the bundle including photographs. While the FTT appears to hold against the appellant that he did not refer to the Dakok organisation in his evidence, he did produce photographic evidence of his activities for that organisation (including one photograph with 334 likes and 234 comments). In the circumstances the FTT was not entitled to conclude that there was inadequate evidence of this activity.
8. In respect of Ground 3, Mr Gayle submitted that the FTT had fallen specifically into the trap warned against in WAS (Pakistan) v Secretary of State for the Home Department [2023] EWCA Civ 894. Regimes such as the Iraqi authorities do monitor activity of overseas activists and it will invariably be very difficult for asylum seekers to obtain direct evidence of that surveillance. Mr Gayle also relied on MH (Bangladesh) v Secretary of State for the Home Department [2025] EWCA Civ 688 and in particular paragraph 37 of that decision.
9. It was Mr Gayle’s submission that the appellant could not rationally be considered to have been a “low-level” supporter given the transcripts of the speeches that he had given. The matter would need to be remitted for reconsideration as the credibility findings were all interlinked.
10. Ms Keerthy accepted that it would be difficult to persuade the tribunal that the conclusion that the letter from Regay Azadi lacked specificity was one the FTT was entitled to come to. However she maintained that it was.
11. In any event, it was her submission that the appeal must fail on grounds of materiality. The lack of specificity was one of several factors the FTT gave for not accepting that the appellant ha a genuine sur place claim. She accepted that the appellant had produced evidence of his involvement with Dakok via his Facebook account but asserted that he should have mentioned it in his witness statement if he wanted it to be considered. The FTT was entitled to find that the failure to do so was an inconsistency.
12. I put to Ms Keerthy that it was not inconsistent that he had not specifically referred to his activities with Dakok in his witness statement. She accepted that it was not technically inconsistent but maintained that the evidence did not show that he was “vital” to the organisation but just that he was an attendee. That was a good reason to give limited weight to the letter from Regay Azadi. She submitted that it was a crucial point that the author had not attended to give evidence. She relied on the other findings at [27] and [29-31] of the determination as supporting the position that the appellant’s sur place claim was ill-founded.
13. In respect of Ground 3 she submitted that the FTT’s reasoning was fully in line with WAS. There was no direct evidence that the Iraqi authorities engaged in surveillance of demonstrations. By contrast in WAS it was known that there was monitoring of demonstrations against the Pakistani government. In MH the Court of Appeal had reaffirmed the position in YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 360 where it was held that sur place activity did not inherently create risk, and that there needed to be credible evidence of genuine interest.
14. Ms Geerthy submitted that the appellant had to prove monitoring by the Iraqi authorities. The FTT concluded that it was not credible that the appellant was politically active in Iraq, and also appears to say that taking the claim at its highest he would not be at risk on return anyway.
15. In reply Mr Gayle pointed out that the respondent’s refusal letter had said nothing at all about the appellant’s sur place activity, despite the fact that he had expressly raised it in his asylum interview. It was difficult to obtain specific evidence of monitoring: that was precisely the point of WAS. Contrary to the FTT’s findings, the appellant had in fact specifically mentioned his work for Dakok in his interview.
16. I asked the parties to direct me to evidence on monitoring of sur place activities by the Iraqi government. Neither party was able to point me towards any relevant country guidance or CPIN, though the appellant relied on the extensive evidence of ill-treatment of those perceived as opposed to the government of Iraq or the KRG (as to which see e.g. the headnote of SMO and KSP (Civil status documentation, article 15) (CG)) Iraq [2022] UKUT 110 (IAC)).
17. If was Mr Gayle’s submission that Ground 2 did disclose a material error of law. The evidence did not suggest that the appellant was a mere bystander: he was actively involved. The FTT wrongly thought his evidence was inconsistent. There was documentary evidence of his activism, including a number of speeches and attendance at demonstrations. The central point in WAS, MH and YB is that is naïve to believe that repressive states do not monitor dissident activity abroad. Such monitoring is easier now than ever. The assertion that his claim could be dismissed because he could not show monitoring was happening is unsustainable.
18. On disposal, it was Mr Gayle’s submission that the appellant was a political activist on his case, and so if the FTT’s findings on his political activity in this country were unsafe that infected all of the findings on credibility. Ms Keerthy’s position was that on the contrary the findings in respect of sur place activity and what happened in Iraq could be neatly separated. The finding that he was not a political activist does not affect the findings on what he did in Iraq.
Decision and reasons
Ground 2
19. The FTT dismissed the letter from Regay Azadi on the basis that it was lacking “specificity and detail”. The FTT consequently concluded in the next paragraph that the appellant’s work with Regay Azadi was “vague, generic and insufficiently supported”.
20. As noted by FTTJ Nightingale granting permission, the letter from Regay Azadi “lists specific events with dates and locations as well as the actions of the appellant in the demonstrations described”. It is difficult to see how the letter could plausibly have provided more specificity and detail. Moreover, as the FTT appeared to acknowledge, the letter is supported by photographs and transcripts and other documentary evidence of the actions that the appellant was undertaking.
21. The FTT’s finding [28] that the appellant’s activity for Dakok was not “referred to in his evidence” is also as Mr Gayle submitted difficult to parse. The appellant referred to this activity in terms in his asylum interview and specifically relied on the Regay Azadi letter which also refers to it. He also provided documentary evidence of his Dakok activity. If the FTT meant that he did not specifically refer to the Dakok activity in his witness statement or oral evidence, and that this should be held against him, it is difficult to see how that could be a rational conclusion given: (i) his repeated references to activity for Dakok elsewhere; (ii) the uncontradicted documentary evidence of activity for Dakok; (iii) his express endorsement in his witness statement of his asylum interview, in which that activity was specifically mentioned; (iv) his reference in his witness statement to “anti-regime activities” in the United Kingdom against “the regimes in Erbil and Baghdad” which is plainly wide enough to include the Dakok support. Despite Ms Keerthy’s submissions I cannot accept that there was any contradiction or inconsistency here.
22. In my view the conclusion that the evidence of Regay Azadi lacked “specificity” or was “vague” was not one that was within the reasonable range of findings. It may be the case that the FTT only saw the first page of the letter, which might explain the conclusion reached. It is clear however on an analysis of the full letter that it was not vague or lacking in detail. That ‘vagueness’ was however specifically held against the appellant in deciding that he was not a genuine activist, and that was an error of law. I consider moreover that the findings on this issue, taken with the findings on the Dakok activity, show a lack of anxious scrutiny of the kind considered in R (YH) v Secretary of State for the Home Department [2010] EWCA Civ 116 at [24].
23. I do not accept Ms Keerthy’s submission that this was not a material error, or that it can be neatly separated from the remainder of the conclusions. It is clear that the FTT disbelieved the appellant in respect of his activities as a whole [29]. Had the FTT accepted that he was a “witness of truth” in respect of his activities in the United Kingdom, that could well have affected the FTT’s conclusions on his account of what happened in Iraq (as the FTT’s conclusions on what happened in Iraq clearly affected its view of what happened in the United Kingdom).
24. Ms Keerthy is on stronger ground when she says that the FTT was entitled to rely on the fact that the author of the letter did not attend to give evidence. However that does not cure the error set out above, and there is some force in what the appellant says about whether the head of such an organisation can be expected to attend court hearings. It is not inevitable that the FTT would have reached the same conclusion had the error not been made.
Ground 3
25. In YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 360 Sedley LJ held as follows [18]:
“… the tribunal, while accepting that the appellant's political activity in this country was genuine, were not prepared to accept in the absence of positive evidence that the Eritrean authorities had ‘the means and the inclination’ to monitor such activities as a demonstration outside their embassy, or that they would be able to identify the appellant from photographs of the demonstration. In my judgment, and without disrespect to what is a specialist tribunal, this is a finding which risks losing contact with reality. Where, as here, the tribunal has objective evidence which ‘paints a bleak picture of the suppression of political opponents’ by a named government, it requires little or no evidence or speculation to arrive at a strong possibility — and perhaps more — that its foreign legations not only film or photograph their nationals who demonstrate in public against the regime but have informers among expatriate oppositionist organisations who can name the people who are filmed or photographed. Similarly, it does not require affirmative evidence to establish a probability that the intelligence services of such states monitor the internet for information about oppositionist groups. The real question in most cases will be what follows for the individual claimant. If, for example, any information reaching the embassy is likely to be that the claimant identified in a photograph is a hanger-on with no real commitment to the oppositionist cause, that will go directly to the issue flagged up by art 4(3)(d) of the [Qualification] Directive [i.e. whether the activities will expose the applicant to persecution or serious harm if returned].”
26. The findings of the Court of Appeal in WAS (Pakistan) v Secretary of State for the Home Department [2023] EWCA Civ 894 bear setting out in some detail [83-86]:
“83. The significant obstacles to the success of A's appeal on ground 1 are three findings of the UT. The first, in paragraph 110, was its rejection of the expert's evidence that there was a real risk that members of MQM-L would give information to the Pakistani authorities to curry favour, and his evidence that those responsible for social media posts would be identified by informers. The second was that there was not enough evidence to enable the UT reasonably to draw conclusions about 'the level of and the mechanics of monitoring' in the United Kingdom. The third was that although the security services could detect social media posts, they did not have the resources or capacity to detect all relevant posts, let alone to identify those responsible.
84. I paraphrase a question which Phillips LJ asked Mr Holborn in argument, 'What evidence did the UT expect?' It is very improbable that there would be any direct evidence of covert activity by the Pakistani authorities, whether it consisted of monitoring demonstrations, meetings and other activities, monitoring social media, or the use of spies or informers. I do not consider that Sedley LJ was suggesting, in paragraph 18 of YB (Eritrea), that a tribunal must infer successful covert activity by a foreign state in the circumstances which he described. He was, nevertheless, making a common-sense point, which is that a tribunal cannot be criticised if it is prepared to infer successful covert activity on the basis of limited direct evidence. Those observations have even more force in the light of the great changes since 2008 in the sophistication of such methods, in the availability of electronic evidence of all sorts, and in the ease of their transmission. To give one obvious example, which requires no insight into the covert methods which might be available to states, it is very easy for an apparently casual observer of any scene to collect a mass of photographs and/or recordings on his phone, without drawing any adverse attention to himself, and then to send them anywhere in the world.
85. I consider that, on this aspect of the case, the UT erred in law by losing sight of the fact that direct evidence about ‘the level of and the mechanics of monitoring’ in the United Kingdom is unlikely to be available to an asylum claimant or to a dissident organisation, and by imposing too demanding a standard of proof on A. The UT repeatedly said that A had not ‘established’ things, that ‘cogent evidence’ of something was absent, and that parts of A’s evidence were not supported (see further, the next paragraph).
86. A related point is that the UT's approach was to posit two mutually exclusive alternatives: a tiny level of support for MQM-L which was not capable of drawing the attention of the Pakistani authorities, and, therefore, of putting A at risk on return, and the level of support which A described in his exaggerated but nevertheless nebulous evidence. If that was the UT’s approach, its danger is to obscure a third possibility, which is that, on the UT’s other findings, A did support, or could be perceived to support, MQM-L to an extent which might, to the lower standard, attract the attention of the authorities and therefore put him at risk. I consider that the UT's findings that A had exaggerated his role (which were open to it on the evidence) dominated the UT's analysis of potential risk; and that the UT erred in law in this respect. There were photographs of A at demonstrations, and the UT accepted that he had been to four outside Downing Street and one outside the Pakistan High Commission. The UT accepted that the authorities would keep an eye on the High Commission. There was also a photograph of AH on A’s Facebook account.”
27. In MH (Bangladesh) v Secretary of State for the Home Department [2025] EWCA Civ 688 the Court of Appeal returned to the theme, considering WAS and earlier caselaw and concluding inter alia [37]:
“It can be seen from the cases considered above that the FTT (and the Upper Tribunal if remaking an FTT decision) must not impose an unrealistic evidential burden upon asylum applicants who rely upon sur place activities. It is inherently unlikely that an applicant for asylum will be able to adduce direct evidence of covert surveillance and monitoring by a foreign state. Accordingly, tribunals are not merely entitled, but required, to use their common sense.”
28. This is not a case such as YB where the tribunal accepted that the political activity in question was genuine. However as detailed above I have found that the FTT’s conclusion on that issue contained an error of law. In any event the key question was whether that activity would result in the appellant being at risk, whether as a result of his genuine political opinion or a perceived political opinion.
29. The findings of the FTT under challenge are as follows [31]:
“There is insufficient evidence to show that any of the demonstrations attended by the appellant were monitored by the Iraqi authorities, or that they would have any particular interest in him personally. The appellant confirmed in his evidence that there has been no direct or indirect contact from the authorities. I am therefore not persuaded that his attendance at demonstrations in the UK—where he appears as one individual among many, occasionally reading extracts—places him at risk.
30. In my view the findings of the FTT here fall, as Mr Gayle submitted, into the trap identified in YB, WAS and MH. It was not realistic to expect the appellant to be able to adduce evidence that the relevant demonstrations were monitored by the Iraqi authorities, who as the country guidance (SMO, KSP & IM (Article 15(c); identity documents) CG Iraq [2019] UKUT 400 (IAC)) confirms are intolerant of dissent. It is also not realistic to expect that, while in the United Kingdom, the Iraqi authorities would inform the Claimant that he had been identified via “direct or indirect contact from the authorities”. The level of evidence expected by the Tribunal was, as in WAS, inconsistent with the standard of proof to be applied.
31. It follows that the FTT erred in law. In view of my findings on Ground 2 the matter must be reheard in full.
Notice of Decision
The decision of First-tier Tribunal Judge Khurrum did involve the making of an error of law. It is set aside and remitted to the First-tier Tribunal for a full rehearing with no findings preserved.

Greg Ó Ceallaigh KC

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

27 February 2026