Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005295
First-tier Tribunal No: PA/75432/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 21st Of April 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE L MURRAY

Between

TR
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Forrest, Counsel
For the Respondent: Mr Walker, Senior Home Office Presenting Officer

Heard at Field House on 20 March 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. He claimed asylum on 23 August 2023 and that claim was refused by the Respondent on 21 October 2024. His appeal to the First-tier Tribunal was dismissed by First-tier Tribunal Judge Kempton (“the FTTJ”) in a decision dated 30 September 2025. The Appellant sought permission to appeal to the Upper Tribunal which was granted by Deputy Upper Tribunal Judge Chapman on all grounds on 3 December 2025.
2. The matter came before me to determine whether the First-tier Tribunal had erred in law, and if so whether any such error was material such that the decision should be set aside.
Background
3. The Grounds are summarised in the grant of permission to appeal and assert that the FTTJ erred as follows:
“(i) misapplied established legal principles regarding sur place claims, credibility and the correct approach to previous asylum claims cf. Devaseelan. The judge’s finding at [75] that the Appellant could simply delete his Facebook posts or account on return to Iraq contradicts the HJ (Iran) principle. The judge further erred in dismissing the claim as manufactured because the Appellant did not have a political opinion in Iraq is a misdirection in law given it is a sur place claim and the test is set out in Danian [1999] EWCA Civ 3000 and RT Zimbabwe [2012] UKSC 38. Ground 3 which is linked in the summary of the grounds asserts that the judge’s treatment of the 2021 Dutch asylum claim constitutes a clear error of law, given that the UK claim is not a simple repeat of the Dutch claim but is based on new and materially different facts arising from the July 2023 incident, which resulted in a specific arrest warrant;
(ii) failed to give adequate reasons for rejecting core evidence and explanations cf. Mitovic [2005] EWCA Civ 1349 in that the adverse credibility findings of the FtTJ were procedurally unfair and inadequately reasoned at [39], [58] and [59] regarding interpreting error in interview, which the judge failed to determine which is a failure to engage with a relevant explanation and at [65]-[67] in applying a higher standard of proof with regard to the copy of the arrest warrant;
(iii) made irrational findings based on speculation in relation to the account of July 2023 incident in that he substituted his own view as to how an armed militia would behave rather than the Appellant’s direct evidence cf. HK(Afghanistan); R(Iran) [2005] EWCA Civ 982;
(iv) failed to give adequate reasons for his findings ie rejecting the evidence of why the Appellant returned to Iraq from the Netherlands in 2022 and his evidence explaining his sur place photographs and membership in 17 Shubat cf. Budhathoki [2014] UKUT 00341;
(v) failed to correctly apply s35 NABA 2022 in relation to internal relocation.”
4. Permission to appeal was granted by Deputy Upper Tribunal Judge Chapman in the following terms:
“3. I find there are arguable errors of law in the decision and reasons of the First tier Tribunal
Judge, primarily relating to his approach to the evidence.
4. I find there is merit in Ground 2 and the findings by the FtTJ at [66], [67] and [70] regarding
the arrest warrant where he enters into speculation as to how the Appellant could have
obtained a copy of the warrant, which is not a matter which appears to have been put to him,
contrary to the principles of procedural fairness.
5. I find there is merit in Ground 3 of the grounds of challenge in that the findings of the FtTJ at [64] are speculative and it does not appear from the record of cross-examination that these
matters were put to the Appellant [see [38] either by the Presenting Officer or by the FtTJ,
who also asked the Appellant some questions: see [57].
6. I find it is arguable that the FtTJ erred at [73] in failing to apply Danian (op cit). Even if it
was open to the FtTJ to find the Appellant’s Facebook usage was a cynical attempt to create a claim that he would be at risk on return, consideration needed to have been given as to
whether or not he would be at risk on return to Iraq.
7. It is further arguable that the FtTJ failed to provide adequate reasons for his findings. Whilst the other grounds of appeal may have less arguable merit I do not exclude them.”
5. I remind myself that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. The decision under appeal cannot be set aside unless it is one that no reasonable judge could have reached or is otherwise vitiated by some other identifiable error of law.
6. The following principles can be derived from the authorities: KM v Secretary of State for the Home Department [2021] EWCA Civ 693 AH (Sudan) v SSHD [2007] UKHL 49, AA (Nigeria) v SSHD [2020] EWCA Civ 1296, MA (Somalia) v SSHD [2010] UKSC 49 and Volpi & Anor v Volpi [2022] EWCA Civ 464:
1. The First-tier Tribunal is an expert tribunal and an appellate court should not rush to find a misdirection an error of law merely because it might have reached a different conclusion on the facts or expressed themselves differently;
2. The UT should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong;
3. The UT should not be astute to characterise as an error of law what, in truth, is no more than a disagreement with the UT's assessment of the facts;
4. Where a relevant point is not expressly mentioned by the First-tier Tribunal, the court should be slow to infer that it has not been taken into account;
5. The UT is an appellate court and it is bound, unless there is compelling reason to the contrary, to assume that the First-tier Tribunal judge has taken the whole of the evidence into his consideration. The mere fact that the First-tier Tribunal does not mention a specific piece of evidence does not mean that he overlooked it;
6. Experienced judges in this specialised tribunal are to be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically;
7. Reasons for judgment will always be capable of having been better expressed. An appellate court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract;
8. Decisions should be respected unless it is quite clear that the First-tier Tribunal has misdirected itself in law;
9. The focus should be on the way the First-tier Tribunal performed the essence of the task required.
7. Ground 1 relates to the Appellant’s sur place claim. However, I deal with the grounds in relation to the FTTJ’s credibility findings first as those findings impact on the subsequent findings in relation to the Appellant’s sur place activities. Ground 2 asserts a failure to give adequate reasons and “unlawful approach” to the arrest warrant. It is argued that the FTTJ failed to have regard to the Appellant’s evidence and explanation regarding the inconsistencies in his evidence in interview regarding the arrest warrant. It is further contended that the Judge erred in demanding “objective evidence” and a “copy of this arrest warrant” and implied a higher standard of proof than the “reasonable degree of likelihood” required and failed to consider both the Appellant’s evidence and background evidence including SMO & KSP (Iraq) CG [2022] UKUT 0110, that the PMF’s influence over the police means warrants are often informal verbal, or used as a tool of intimidation without formal service.
8. Mr Forrest added in submissions that the FTTJ speculated about the existence of the procedure for obtaining arrest warrants and there was a procedural unfairness point as noted in the grant of permission, albeit that he acknowledged that the Upper Tribunal did not have the record of proceedings.
9. The Respondent sets out their position in the Rule 24 Response in respect of Ground 2, namely that the FTTJ summarised the Appellant’s account at its highest, did not “demand” a copy of the warrant nor “objective evidence” of the warrant but was making the point that the Appellant had not even explored the possibility of obtaining a copy. The standard of proof was the balance of probabilities set out in section 32 (2) of NABA and set out in full in the decision of the FTTJ and not the lower standard cited in the grounds. Mr Walker added that the Respondent did not accept that there had been an arrest warrant and the Appellant would have been aware that the onus was on him to obtain it. There was therefore no undue speculation by the FTTJ.
10. The FTTJ succinctly summarised the Respondent’s case in the Refusal letter at paragraph 21 and 22 of the decision which was that the Respondent did not accept there was an arrest warrant in the Appellant’s name, and that he was inconsistent about whether the charge was murder or attempted murder. The FTTJ’s findings on the issue of the arrest warrant at paragraphs 65 to 67 and paragraphs 70 and 71 of the decision:
“65. That then leads to the issue of the arrest warrant. From his oral evidence, it appears that in fact his mother and his sister did not see what was written on the alleged document, said to be an arrest warrant for the appellant. It sounds as if a piece of paper was waved in front of them and they were told it was an arrest warrant. There is no objective evidence that in fact there is an arrest warrant.

66. No attempts have been made by the appellant to obtain a copy of this arrest warrant. There are a number of ways in which he could have attempted to obtain one. He could have instructed a lawyer in Iraq in the matter in order to ascertain if indeed there was an extant arrest warrant in the country for him in connection with attempted murder. He could have asked if there was anything in relation to his brother.

67. Alternatively, he referred to his friend whom he met in this country whom he had asked to go and try to trace his family members. He could have asked that person to go to a lawyer or to the authorities to make inquiries without raising too many suspicions. He could have given a power of attorney to that friend, to allow a lawyer in Iraq to act for the friend on behalf of the appellant while he remained in the UK. In that way, a lawyer could have been able to find out some information about the alleged warrant.”

“70. …… With regard to the most recent alleged problem, he has produced no evidence whatsoever yet there ought to have been a possibility of him being able to obtain something from Iraq or from a relative which could have assisted him.

71. I appreciate that asylum seekers do not require to produce corroboration. However, where there is a possibility of evidence to support a person’s claim then an asylum seeker ought to do the best he can to provide as much information as possible to the authorities in this country when he is making a fresh claim for asylum.”
11. In SB (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 160, at paragraph 46, Green LJ said:
"In cases (such as the present) where the credibility of the appellant is in issue courts adopt a variety of different evaluative techniques to assess the evidence. The court will for instance consider: (i) the consistency (or otherwise) of accounts given to investigators at different points in time; (ii) the consistency (or otherwise) of an appellant's narrative case for asylum with his actual conduct at earlier stages and periods in time; (iii) whether, on the facts found or agreed which are incontrovertible, the appellant is a person who can be categorised as a risk if returned, and, if so, as to the nature and extent of that risk (taking account of applicable Country Guidance); (iv) the adequacy (or by contrast paucity) of evidence on relevant issues that, logically, the appellant should be able to adduce in order to support his or her case; and (v), the overall plausibility of an appellant's account." (Emphasis added)
12. Green LJ explained at paragraph 48 of SB (Sri Lanka) that if a judge makes a material error in the evaluation of evidence, because, for instance, the inference drawn from a fact found is logically not one that can properly be drawn, then an appellate court will interfere because a material error of logic is a material error of law.
13. The submissions of the parties are not recorded in the decision, and I have not been provided with the record of proceedings. However, it is apparent from the Respondent’s refusal letter that the reason advanced by the Respondent for not accepting that an arrest warrant existed was due to what were considered to be internal inconsistencies in the Appellant’s account. The Appellant addressed those alleged inconsistencies in a response to the interview dated 18 October 2024, a response to the refusal letter dated 17 January 2025, in his witness statement dated 17 January 2025 and in cross-examination as recorded by the FTTJ at paragraphs 38–40 and 57-59 of the decision. The FTTJ makes no specific findings in relation to the inconsistencies and makes no findings on the Appellant’s explanation for why they took place. It is plain from the paragraphs from the decision set out above that the reason why his account regarding the existence of a warrant was rejected was because he had not taken any action to obtain the warrant from the authorities. The FTTJ was clearly aware that an asylum seeker is not required to provide corroborative evidence but that if such evidence is reasonably available, a tribunal may take its absence into account when assessing credibility. The arrest warrant, in this instance, would have had to be obtained from the alleged persecuting authority, the PMF. The Respondent did not argue in the refusal that the Appellant could reasonably obtain the arrest warrant nor is this recorded as a submission made by the Respondent. The record of questions and answers as recorded by the FTTJ also does not record that it was put to the Appellant that he could reasonably obtain an arrest warrant from the PMF by way of the third party. There is also no background evidence cited by the FTTJ to show that obtaining an arrest warrant from the PMF would be reasonable and not expose the third party to risk. In the circumstances I conclude that the conclusion of the FTTJ that the arrest warrant should have been obtainable was procedurally unfair as although the Appellant was on notice that the Respondent did not accept that an arrest warrant existed due to inconsistencies (which he addressed) he was not on notice of an argument that he could reasonably obtain it.
14. Ground 3 argues that the FTTJ’s treatment of the Appellant’s Dutch asylum claim constitutes an error of law because the FTTJ places significant weight on the Appellant’s return to Iraq in 2022 whereas the Appellant relied on new and materially different facts after his return in July 2023. It is asserted that the FTTJ misapplies Devaseelan [2002] UKIAT 00702.
15. The grant of permission does not specifically address this ground. The Appellant claimed asylum in Holland but there was no evidence before the FTTJ in relation to this claim and clearly therefore the case of Devaseelan was not relevant nor was it cited or relied on by the FTTJ. Whilst the FTTJ noted that the Appellant appeared to have been safe after returning to Iraq from Holland, I do not consider that it is arguable that this led to an adverse credibility finding as the FTTJ correctly notes that his current claim was based on similar circumstances but a new event when the Appellant’s brother took vengeance on a member of the PMF. The FTTJ’s finding at paragraph 70 that the Appellant was not at risk was due to the absence of supporting evidence rather than due to any adverse finding on his asylum claim in Holland. I find that Ground 3 is not made out.
16. Ground 4 asserts that the FTTJ made adverse findings relying on impermissible speculation as to how an armed militia should behave rather than taking account of the Appellant’s direct evidence and it is argued that the FTTJ citied no country evidence to support the finding.
17. The Respondent accepted in the refusal letter that the Appellant and his family were attacked by the PMF because of his land. The Appellant’s account, which was not found by the FTTJ to be internally inconsistent, was that in 2021 five PMF members asked his family to leave their farmland, and a fight broke out during which his father’s leg was broken. Because of his diabetes his leg had to be amputated, and he passed away because of this injury in 2022. In July 2023 two people came in a car and the Appellant recognised one of them as the person who broke his father’s leg and told his brother this. His brother then attacked him.
18. The Appellant’s claim that his brother had attacked a member of the PMF was dealt with by the FTTJ at paragraph 64. The FTTJ found that it was “highly surprising” that, after the Appellant’s brother attacked the member of the PMF with a stick causing him what was likely to be a severe injury, the other member of the PMF in the vehicle did not shoot the Appellant’s brother given that it was a militarised society where there were areas under dispute and there was a previous history with the Appellant’s family. It was found to be highly unlikely that the member of the PMF would not be armed or that the member of the PMF in the vehicle would not open fire or have radioed for a back-up team.
19. The Respondent argues that the FTTJ’s findings are well-reasoned with reference to the Appellant’s account as a whole and posit more plausible alternative scenarios. Further, it is argued that in her sentence beginning ‘in a militarised society…’ approximately half way down §64, the FTTJ is clearly and properly ‘looking through the spectacles provided by the information [s]he has about the country in question’ and applying her common sense and judgment: Y v SSHD [2006] EWCA Civ 1223 at [26]-[27].
20. The Appellant relies on the case of HK v Secretary of State for the Home Department [2006] EWCA Civ 1037 in which Neuberger LJ said at paragraphs 28 and 29:
"28. Further, in many asylum cases, some, even most, of the appellant's story may seem inherently unlikely but that does not mean that it is untrue. The ingredients of a story, and the story as a whole, have to be considered against available country evidence and reliable expert evidence, and other familiar factors, such as consistency with what the appellant has said before, and with other factual evidence (where there is any).
29. Inherent probability, which may be helpful in many domestic cases, can be a dangerous, even a wholly inappropriate, factor to rely on in some asylum cases. Much of the evidence will be referable to societies with customs and circumstances which are very different from those of which the members of the fact-finding tribunal have any (even second-hand) experience. Indeed, it is likely that the country which an asylum-seeker has left will be suffering from the sort of problems and dislocations with which the overwhelming majority of residents of this country will be wholly unfamiliar. The point is well made in Hathaway on Law of Refugee Status (1991) at page 81:

'In assessing the general human rights information, decision-makers must constantly be on their guard to avoid implicitly recharacterising the nature of the risk based on their own perceptions of reasonability.'"
21. The Respondent relies on the following passage from Y v SSHD [2006] EWCA Civ 1223:
“26. None of this, however, means that an adjudicator is required to take at face value an account of facts proffered by an appellant, no matter how contrary to common sense and experience of human behaviour the account may be. The decision maker is not expected to suspend his own judgment, nor does Mr Singh contend that he should. In appropriate cases, he is entitled to find that an account of events is so far-fetched and contrary to reason as to be incapable of belief. The point was well put in the Awala case by Lord Brodie at paragraph 24 when he said this:

"… the tribunal of fact need not necessarily accept an applicant's account simply because it is not contradicted at the relevant hearing. The tribunal of fact is entitled to make reasonable findings based on implausibilities, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole".

He then added a little later:

"… while a decision on credibility must be reached rationally, in doing so the decision maker is entitled to draw on his common sense and his ability, as a practical and informed person, to identify what is or is not plausible".

27. I agree. A decision maker is entitled to regard an account as incredible by such standards, but he must take care not to do so merely because it would not seem reasonable if it had happened in this country. In essence, he must look through the spectacles provided by the information he has about conditions in the country in question. That is, in effect, what Neuberger LJ was saying in the case of HK and I do not regard Chadwick LJ in the passage referred to as seeking to disagree.”
22. It was not part of the Respondent’s case either in the refusal letter or review that the Appellant’s account of the behaviour of the PMF member on seeing his colleague attacked was either inherently implausible or implausible when assessed against the background evidence. Whilst the FTTJ references a “militarised society” she makes no reference in the decision to any background evidence which was taken into consideration. The Appellant had provided background evidence on the PMF including a key passage index. I accept that the reference to a militarised society clearly indicates that the FTTJ was not judging the information by the standards of the UK. However, the FTTJ’s reasoning that it is simply not credible that the PMF member would not be armed on approaching the Appellant and his brother, or that the PMF member who drove off would not have opened fire when he saw what was happening is based on speculation as to inherent plausibility. It could not in my judgment be concluded that his account of events was so far-fetched and implausible as to be incapable of belief.
23. The two bases for the FTTJ’s finding that the Appellant had not given a credible account are that his account of the PMF member’s behaviour was not credible and he had not obtained the arrest warrant. I find that neither of these findings are sustainable for the reasons given. Given that these findings are the basis for rejecting the Appellant’s account I conclude that the credibility findings cannot stand.
24. The Respondent further argues in the Rule 24 response addressing Ground 4 that the FTTJ expressly considered and rejected the Appellant’s explanations of haste, poor interpretation and the screening interview being conducted by telephone (paragraph 72). It is submitted that in that light it is unlikely that any of the grounds above, even if made out, would make a difference to her overall assessment of the Appellant’s credibility.
25. I have read the decision as a whole and whilst the FTTJ sets out the evidence, there are no findings in paragraph 72 as to what the FTTJ concludes the Appellant should have but did not mention in his screening interview and no reasons given for rejecting the Appellant’s evidence in relation to why it is concluded that his account was not honest. The reasoning provided in paragraph 72 was therefore not adequate.
26. Ground 6 asserts a flawed analysis of internal relocation. However, the FTTJ found that the Appellant was not at risk in his home area and therefore there was no error of law in failing to consider internal relocation.
27. I turn then to Ground 1, which impugns the findings on the Appellant’s sur place claim. The FTTJ’s rejection of his sur place claim is grounded in the findings on credibility and I therefore do not deal with this ground separately as it is clear that these findings are also consequently vitiated by error of law. It follows also that I do not need to address Ground 5, which asserts inadequate reasoning in relation to why the Appellant returned from the Netherlands, his evidence concerning his sur place claim and the analysis of internal relocation.
28. Both representatives agreed that if I were to find that the FTTJ erred in the assessment of credibility the appeal would have to be remitted to the First-tier Tribunal, with no findings preserved. I have considered whether the decision should be re-made in the Upper Tribunal with regard to the decisions of Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) and AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512. In light of my conclusions above I am of the view that the due to the nature and extent of fact finding the appeal should be remitted to the First-tier Tribunal with no findings preserved.

Notice of Decision
The making of the decision of the First-tier Tribunal involved the making of a material error of law and I set it aside.
The appeal is remitted to the First-tier Tribunal with no findings preserved.

L Murray

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

13 April 2026