Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005185
First-tier Tribunal No: PA/00111/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 27th March 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE GRAVES

Between

SM
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Saifolahi, Counsel instructed by Logan Kingsley Solicitors
For the Respondent: Ms Clewley, Senior Home Office Presenting Officer

Heard at Field House on Monday 23 March 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

BACKGROUND

1. The appellant appeals against the decision of a judge of the First-tier Tribunal (“the judge”) promulgated on 15 October 2025 dismissing his appeal against the respondent’s decision dated 11 December 2023, in which the appellant’s protection and human rights claims were refused. There are four dependants on the appellant’s claim, who are his wife and three children.

2. The appellant is a national of Iraq, from the Kurdistan region. He claims to be at risk from the authorities because he attempted to expose the corruption of government officials in Kurdistan, and says his life and those of his family were threatened by an official he worked for. He also relies on sur place political activism in the United Kingdom, in attending demonstrations and posting on social media.

3. The judge dismissed the appellant’s appeal, largely on credibility grounds.

4. The appellant appeals the decision on five grounds summarised as follows:

Ground 1: Failure to apply the correct standard of proof, in that there was no reference anywhere in the decision to the standard or burden of proof, which was important as this was a claim that predates the changes brought in by the Nationality and Borders Act 2022, which meant that the lower standard of proof applies throughout. There was also no use of phrasing that would suggest the judge was applying the correct test, such as ‘reasonable degree of likelihood’ or ‘real risk’.

Ground 2: Failure to make adequately reasoned credibility findings, in that the judge appeared to have misunderstood or mischaracterised significant aspects of the appellant’s oral evidence, such as finding the appellant did not give an explanation for certain matters, but in the same paragraph, setting out the appellant’s explanation for that matter. Also conflating or confusing documents and evidence about them and failing to have regard to documents in the bundle, while finding there were no documents to address a particular issue. There was also a failure to make findings about the appellant’s sur place activism, whether this would place him at risk and whether the appellant could be expected to delete his social media account and lie about his activities on return.

Ground 3: failure to apply anxious scrutiny, in that there was a reliance by the judge on errors of fact, an absence of adequate reasoning, the conflation of concepts, such as attempting to share evidence on corruption with the media and social media, and that evidence not actually being published because it was intercepted. There was also a conflation of the country of origin, being Iran with Iraq, and of the name of the administrator for a Facebook page with the page itself, and an error in finding there was no evidence such a page existed, when it was reproduced in the appellant’s bundle. Further, the judge rejected the appellant’s application for an anonymity direction without giving any reasons, identifying him in the decision.

Ground 4: failure to consider the ‘best interests’ of any relevant children, in the judge totally failing to make any findings at all about three children who were affected by the decision. That was despite this being a remitted appeal, remitted in part due to a similar error by a previous judge.

Ground 5: inadequately reasoned conclusions in relation to the Article 8 proportionality assessment, in that the judge failed to make any findings at all about the appellant’s family life, to balance any findings about the best interests of relevant children and to consider matters relevant to the proportionality balancing exercise. Counsel at the First-tier hearing had also drafted the grounds of appeal and disputed that any concession was made at hearing that Article 8 was not relied upon, and referred to the ASA in which it was specifically pleaded as being raised, which ASA counsel said was relied on in his submissions at the First-tier hearing.

5. Permission to appeal was given by a judge of the First-tier Tribunal on all grounds on 3 November 2025, with the following comments:

“3. I shall return to ground one below and instead begin with grounds two and three, which I consider together as there is a degree of overlap. The grounds are arguable. On a number of occasions as identified in the grounds the decision arguably contradicts itself, for example noting at [11] the Appellant’s explanation as to what had happened to his identity card before continuing to state that he had not addressed what had happened to his identity card. While it may be that some of the examples relied on are no more than inexact drafting that might have been better expressed, and so would not amount to an error of law, it is at least arguable that they demonstrate an inadequate consideration of the Appellant’s case and/or mistakes of fact.

4. I shall also take grounds three and four together. These are arguable. The decision records at [6] that “no mention was made that the Appellant seeks to rely [on] Article 8”. It is accordingly arguable that the Judge has assumed a concession when none had been made, and/or failed to adequately confirm the principle controversial issues. If so, the Tribunal has then arguably failed to make adequate findings in respect of this aspect of the claim.

5. In respect of ground one, I am unpersuaded that this is a particularly strong ground and would not have granted permission on this in isolation. While it may have been helpful for the Judge to expressly refer to the relevant standard of proof, a failure to specify a legal test does not in itself amount to an error of law where it is apparent that it has nevertheless been properly applied. Here, the grounds do not point to any particular examples that are said to demonstrate that the Tribunal considered the wrong burden. As, however, this issue is likely to be closely linked to a consideration of the remaining grounds, such that a refusal here may cause somewhat artificial difficulties in a consideration of the overall appeal, I do not restrict the grant of permission.”

6. The appeal comes before me to decide whether there is an error of law. If I determine that the decision does contain an error of law, I then need to decide whether to set aside the decision in consequence. If I set the decision aside, I must then either re-make the decision or remit the appeal to the First-tier Tribunal to do so.

7. I had before me a bundle running to 728 pages containing the appellant’s and respondent’s bundles before the First-tier Tribunal. Within the bundle was the respondent’s Rule 24 reply, in which Grounds 4 and 5 were conceded. The respondent also confirmed that the presenting officer’s note of the hearing accorded with that of Mr Moriarty, who had represented the appellant, in that Article 8 and best interests of the children were agreed to be issues for the judge to determine, on which submissions were made. The respondent therefore conceded this was a material error of law.

8. As to Grounds 1 to 3, the respondent did not concede an error of law, and set out detailed responses to the grounds.

9. Both representatives made detailed submissions, to which I have had regard.

DISCUSSION

Grounds 4 and 5

10. The respondent concedes that the judge erred in her approach to Article 8 and the failure to take relevant matters into consideration, such as family life, the impact of the decision on the appellant’s wife and three children, the best interests of the children under s.55 Borders, Citizenship and Immigration Act 2009, and the impact of the statutory considerations under s.117B of the Nationality, Immigration and Asylum Act 2002 on the proportionality exercise.

11. The respondent also concedes that this is a material error of law and so I find there is an error of law that means the decision must be set aside. I will go on to consider whether any findings can be preserved. As to Article 8, as they do not address the evidence and issues, I find no findings can be preserved.

Grounds 1 to 3

12. In terms of findings and the decision in relation to the protection claim, I have also dealt with these grounds together as there is overlap between them.

13. I accept that there is a procedural question arising from the judge’s failure to give any reasons for deciding not to continue the interim anonymity direction which is applied in protection appeals, and the relevance of the Presidential Guidance Note No 2 of 22 on this issue. The appellant’s solicitors applied for an anonymity direction in the ASA. The judge did not make an anonymity direction and details in the decision include names and places capable of identifying the appellant and his family directly. No reasons were given. While this does not undermine the findings at the core of the decision, going forward, any judge hearing this appeal should give clear reasons for any decision not to continue the anonymity direction already made, given this is a protection appeal and the guidance in the above note.

14. As was accepted by Ms Saifolahi in her submissions, some issues, such as incomplete sentences, internal contradictory sentences such as [at 4 and 6] that Article 8 was, and then was not, relied upon, and references to Iran rather than to Iraq, are arguably drafting errors, which are unfortunate, but do not by themselves undermine the core of the decision. Similarly, the failure to make any reference to the burden and standard of proof to be applied, and the confusing summary of the principles to be applied from Tanveer Ahmed [2002] UKIAT 00439, do not necessarily mean the judge did not have the correct law and guidance in mind when considering the evidence. It is relevant, however, that the respondent accepted at least two of the documents the appellant submitted were capable of reliance, which would be relevant to the assessment under Tanveer Ahmed, but to which concession the judge did not have regard.

15. However, there are other issues, where it is less clear what the judge was referring to when giving reasons, and whether there is some apparent confusion about the evidence. For example, the judge referred to two documents submitted from January 2004 and February 2006, but then there are six different references in her decision to these documents which the judge recorded were instead issued to the appellant in 2016 and what happened to those documents and the appellant’s explanations, which evidence was then relied upon in the credibility assessment. The appellant had in fact submitted a number of identity documents for himself and family members to the respondent, issued in 2009 (B671), 2014 (B673), 2013 (B678), a single document with two dates of issue in January 2004 and February 2006 (B75), and a ‘decision’ and attached list from 2005 (B77). None of the appellant’s documents dated to 2016 and the document at B75 seems to have been considered as two different documents, rather than a single document.

16. The appellant also says the judge also conflated his evidence about documentation issued before 2006, what happened to documents issued to him between 2006 and 2016, and what happened to documentation issued to him after 2016. It is not at all clear whether the judge had regard to all of the documents, and it would appear that there was a mischaracterisation of the appellant’s evidence about the documents issued after 2016, when considering what happened to earlier documents and what they show. The findings are so convoluted and confused they are difficult to follow, given the date anomalies and apparent confusion of documents and explanations about them. Since this is relied on in the credibility assessment, and affected the weight to be attached to any documents, I find this gave rise to an error that infected the credibility assessment.

17. The judge also relied on the appellant’s failure to explain at interview how he came to know about the corruption in Kurdistan, but appeared to have no regard to the appellant’s answers at interview, that he saw it with his own eyes as a result of his work. The judge then also set out this explanation, arguably undermining the finding that the appellant had not given one.

18. There was also an absence of reference by the judge to explanations given by the appellant in, for example his witness statement, with regard to credibility points relied on, when giving reasons for why they were capable of damaging credibility, such as the appellant’s reference to uniform and therefore whether his unit was ‘informal’ (WS13). Similarly, it is unclear to me whether there is some conflation of concepts such as military rank and a voluntary rather than permanent role for a salary which may have been lost in translation. The appellant also gave explanations about his documents in his witness statement, and references his involvement in two elections. The appellant says the judge then connected the dates of two different elections, and treated that as the start and end of a period of full time employment as an election official, which was found to be inconsistent with his claimed full time role for the authorities. The appellant says he has never asserted having two different full time positions and this is a mischaracterisation of his evidence that should not give rise to an adverse credibility point.

19. There is a similar reliance on an absence of evidence or explanations for an issue, [at 14] for example where it is said there was no ‘background evidence’ to support the existence of the official the appellant worked with, and while the judge had regard to a single photograph, the appellant says there were a series of photographs, which had not all been considered. The appellant also raises the lack of reference to the document submitted naming the official (B674).

20. Within the appellant’s bundle was also a screenshot said to be of a Facebook account for Ranya City in Iraq (B82) described as ‘Ranya City Facebook page’ both on the bundle index and on the page itself. The appellant had referred to this Facebook account in his interview (AIR6-10) and promised to provide a screenshot of the page when asked to do so. This was an point raised in the refusal letter. He said at interview he had tried to share evidence of corruption with this Facebook account, and named two of the administrators for the account, one of whom was said to be a relative of the official he was working for, and said he believed they had warned that official, which was what led to the threat to him and his family (AIR4-6).

21. The judge considered the Facebook evidence and made a series of adverse credibility findings on it, which the appellant say are a result of a misunderstanding of the evidence he submitted. These include the judge considering whether Facebook evidence showed the appellant had demonstrated in Iran [at 26] which does not appear to be the purpose of the appellant providing this or any other Facebook screenshot, and recording the appellant could not produce any evidence of this account from Kurdistan [at 26], yet a screenshot was in his bundle. The judge also referred to it as a personal account, conflating the name of the city with one of the names of the two administrators mentioned at interview, perhaps not appreciating it is a screenshot of the Facebook account he was asked to provide at interview and not his own account.

22. The judge also relied [at 21] on the appellant’s answer at the interview, at question 64, that he did not know how the authorities discovered he had reported the corruption to the media, as being an inconsistency capable of undermining his credibility. The appellant’s answer at interview was not referenced by the judge in full, but I note he also said ‘they have intelligence – because I did that through the media’. He then gave the explanation in the second interview that one of the administrators for the Facebook page was related to the official he worked for, but these explanations were not considered by the judge. The judge also then relied [at 21] on the appellant’s answer in oral evidence, that one of the administrators was related to one of the officials he worked under, as being given ‘for the first time’, at hearing, which was a ‘newly introduced detail’ which therefore appeared ‘opportunistic and was not mentioned in his earlier evidence or statements’. That is despite the appellant having given the same explanation in both interviews for how he believes his actions might have come to light. Mr Moriarty has shared his note of the oral evidence, in which he recorded the same official’s name was given by the appellant in oral evidence as being related to an administrator of the Facebook page, to that given in the interviews. Given this was a core credibility point, I find the reasons given in the decision are not sustainable as they are based on an apparent misunderstanding of the evidence.

23. The appellant raises other issues, such as mischaracterisation of his evidence that he contacted the Facebook page without knowing one of the administrators was related to the official he worked for. This was relied on as a credibility point, in that the judge found it was not credible he would knowingly reveal evidence of corruption about an official to one of their relatives [at 21]. The appellant says that is not an accurate record of his evidence. The appellant also argues that in asking the media and social media to publish evidence of corruption, it is not inconsistent or an embellishment for him to also say they did not publish that evidence, but is instead simply an aspect of his account.

24. The appellant argues there are also a lack of adequate reasons for findings in respect of the appellant’s political and other motivations, to enable an application of the principle in HJ (Iran) v SSHD (Rev 1) [2010] UKSC 31, in that it was arguably found by the judge that merely coming ‘to the United Kingdom to save his life’ meant it was inherently incredible that he could be a genuinely motivated political activist. I find there is some force in Ms Saifolahi’s submission, as this would mean no refugee fleeing their country could be genuinely motivated to undertake political activism. There is also a lack of findings about the nature, extent and any profile created by the appellant’s sur place activism, the download provided for his Facebook account, and the evidence of whether he was genuinely motivated to be politically active. There was also an absence of findings on whether the appellant could be expected to lie, or whether deleting his account would mitigate against risk, if any, on return. These were all matters for the judge to determine, which were raised in the ASA as issues for the judge to determine.

25. For all of these reasons I find there is a lack of adequate reasoning to support findings, and that some of the findings appear to be based on a mischaracterisation or misunderstanding of the evidence as it was presented. Those issues infect the credibility assessment and the findings on risk on return, and so go to the core of the decision, which means no findings can be preserved.

CONCLUSION

26. For the reasons set out above, the decision contains material errors of law.

27. I have considered whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statement and further considered in AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC). Since the appeal now needs to be heard afresh, on all issues, and taking into account the importance of the two tier appellate process, I have remitted the appeal to the First-tier to be heard by a different judge. Both parties were also in agreement as to the venue for re-making.

28. I therefore set the decision aside in its entirety and remit the appeal to the First-tier Tribunal for a full de novo hearing.

NOTICE OF DECISION
The decision promulgated on 15 October 2025 involves the making of an error of law. I set aside the decision in its entirety. I remit the appeal to the First-tier Tribunal for rehearing before a different judge.

H Graves
Deputy Upper Tribunal Judge Graves
Judge of the Upper Tribunal
Immigration and Asylum Chamber

25 January 2026