Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005304
First-tier Tribunal No: HU/58015/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 4th of March 2026

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

NA
(Anonymity Order made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr A Islam, instructed by Qualified Legal Solicitors
For the Respondent: Mr A Sheikh, Senior Home Office Presenting Officer

Heard at Field House on 20 February 2026

DECISION AND REASONS
1. The appellant, whose date of birth is recorded as 1 January 2000, claims to be national of Iran of Kurdish ethnicity, but is considered by the respondent to be a national of Iraq from Sulaymaniyah in the Kurdish Region of Iraq (KRI). He appeals, with permission, against the decision of the First-tier Tribunal dismissing his appeal against the respondent’s decision of 21 October 2022 to refuse his human rights claim further to a deportation order made against him under section 32(5) of the UK Borders Act 2007.
2. The appellant claims to have entered the UK on 4 March 2016, at the age of 16, concealed in the back of a lorry, having left Iran in August 2015 and travelled through Turkey, various unknown countries and then France. He was arrested on the day of his arrival as a suspected illegal entrant and was referred into the care of the local authority as an unaccompanied asylum seeking child (UASC).
3. The appellant claimed asylum on 25 April 2016 as an Iranian national, asserting that he was at risk on return to Iran as a result of having been involved in smuggling alcohol across the Iran/Iraq border and as a result of having left the country illegally. The respondent refused his claim on 23 October 2016, providing reasons for concluding that he was not an Iranian national including the fact he did not speak any Farsi, that he was unable to describe or give details of his ID card, and that he lacked knowledge about aspects of Iranian life. The respondent accepted that the appellant was Kurdish as he spoke Kurdish Sorani but rejected his account relating to smuggling activities in Iran and rejected his claim to have no contact with family. The appellant was, nevertheless, granted discretionary leave as an UASC until 1 July 2017.
4. The appellant appealed against the refusal of his asylum claim. His appeal was heard on 21 February 2017 by First-tier Tribunal Judge Hembrough. The appellant did not appear at the hearing. Judge Hembrough considered it to be implicit from the wording of the asylum decision that the respondent believed the appellant to be an Iraqi Kurd and considered that that would explain his knowledge of the border region and his lack of any detailed knowledge of Iran. The judge was not satisfied that the appellant was an Iranian national and he accordingly dismissed the appeal in a determination promulgated on 2 March 2017.
5. The appellant became appeal rights exhausted on 17 March 2017. On 29 June 2017 he made an in-time application for further leave to remain.
6. On 4 September 2018 and 24 March 2020 the appellant was convicted of motoring offences. On 4 May 2021 he was convicted of possessing a controlled Class A drug (Cocaine) with intent to supply and failing to surrender to custody at the appointed time, and was sentenced on the same day to three years’ imprisonment for the drugs offence and one month’s imprisonment for the other offence.
7. As a result of the latter convictions, the respondent, on 15 August 2021, issued a stage 1 deportation decision pursuant to the Immigration Act 1971 and the UK Borders Act 2007, whereby the appellant’s deportation was deemed to be conducive to the public good under section 3(5)(a) and in accordance with section 32(5) of the UK Borders Act 2007. The appellant was invited to make representations as to why he should not be deported from the UK. He did so in a statement of additional grounds under section 120 of the Nationality, Immigration and Asylum Act 2002, dated 11 November 2021, in which he made a human rights claim based upon his family and private life in the UK, claiming to have a partner and child in the UK and to qualify under the exception to deportation under the UK Borders Act 2007 in paragraph 399A of the Immigration Rules. The appellant claimed to be in a relationship with his partner EV, a Lithuanian national settled in the UK with EUSS indefinite leave, and to have a British national son LV born on 31 January 2021.
8. The respondent considered the appellant’s human rights claim and made a decision on 21 October 2022 refusing that claim in a stage 2 deportation decision. A deportation order was signed on the same day, pursuant to section 32(5) of the UK Borders Act 2007. In the decision refusing the appellant’s human rights claim, and refusing his outstanding application for further leave, the respondent confirmed that he was considered to be an Kurdish Iraqi national, not an Iranian national. In view of the absence of any supporting evidence, the respondent did not accept that the appellant had a genuine and subsisting parental relationship with his claimed child and partner and considered that, in any event, it would not be unduly harsh for his claimed child and partner to live in Iraq or to remain in the UK when he was deported. The respondent considered that the family life exception to deportation had not, therefore, been met. With regard to the private life exception, the respondent did not accept that the appellant had been lawfully resident in the UK for most of his life and did not accept that he was socially and culturally integrated in the UK or that there would be very significant obstacles to his integration in Iraq or very compelling circumstances which outweighed the public interest in his deportation.
9. The appellant appealed against that decision. His appeal was initially heard in the First-tier Tribunal on 21 September 2023 by Judge Parkes. In a Respondent’s Review submitted for that appeal hearing, the respondent accepted that the appellant had a genuine and subsisting relationship with his child LV, but otherwise maintained the reasons for refusal. Furthermore, following directions issued previously by the Tribunal, the respondent confirmed that her position was that the appellant was a Kurd from Iraq, from Sulaymaniyah, and would be returned to that region unless he stated that he was from another part of Iraq. Judge Parkes dismissed the appeal in a decision dated 4 October 2023.
10. Following a review, however, Judge Parkes’ decision was set aside by reason of error of law in a decision dated 16 April 2024, pursuant to Rule 35 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, and the case was remitted to be heard de novo before the FTT by a different judge.
11. The appeal then came before Judge Howard on 4 September 2025. Judge Howard noted that the appellant had since been convicted, on 11 February 2025, in relation to an offence of battery from 20 September 2024, and had been given a community order until 10 August 2026, a rehabilitation activity requirement of 30 days, and had been ordered to pay costs as well as a victim surcharge. He was provided with a copy of the appellant’s PNC to that effect at the hearing and noted that the offence of battery was in relation to EV. The judge heard oral evidence from the appellant and from EV. He noted that the respondent accepted that the appellant had a genuine and subsisting relationship with both EV and LV but was maintaining that it would not be unduly harsh on EV or LV if he was deported.
12. Judge Howard took the decision of Juge Hembrough as his starting point, in accordance with Devaseelan [2002] UKIAT 00702. He was invited by the appellant’s representative to note that there were no positive findings in the determination of FTTJ Hembrough that the appellant was an Iraqi national and to find that the respondent had not made good her claim that he was an Iraqi national. Judge Howard did not accept that argument, however, and was satisfied that Judge Hembrough had make findings as to the appellant being an Iraqi national. He was not satisfied that the appellant had demonstrated that there were good reasons to depart from the findings of Judge Hembrough and was not satisfied that the appellant had demonstrated that he was a national of Iran or that he was of adverse attention from the Iranian authorities. He agreed with the respondent’s view that the issue of the appellant’s nationality had been settled by Judge Hembrough and was satisfied that Judge Hembrough had given clear findings as to why he found the appellant to be an Iraqi national. He was not satisfied that the appellant had provided any evidence in order for him to take a different view.
13. Judge Howard did not find the appellant or EV to be credible witnesses, since they both claimed in their statements that he had not committed any further crimes when that was not true. The judge did not accept the appellant’s explanation for the omission but considered that both he and EV had attempted to mislead the court in relation to his character. The judge found that the appellant was attempting to downplay the seriousness of the offences for which he had been convicted. Judge Howard was not satisfied that the appellant had shown that he did not have a CSID or the ability to obtain the same or other relevant identity documentation in order to facilitate his return to Iraq and was not satisfied that the appellant had demonstrated that he would be stopped at a checkpoint on his return to Iraq. He was not satisfied that the appellant had demonstrated that he did not have any family in Iraq or that he was not in contact with them. The judge was not satisfied that it had been demonstrated that LV and EV would suffer a real risk of serious harm if they decided to join the appellant in Iraq or that the appellant’s presence was required if they remained in the UK and he considered that it would not be unduly harsh on EV or LV if the appellant was deported. He found that the exception to deportation was not met on family life grounds. As for the private life exception, the judge found that the appellant had not been in the UK for more than half his life and he did not accept that he was socially and culturally integrated in the UK, given that he had been convicted of seven offences between 4 September 2018 and 11 February 2025. He did not accept that there were very significant obstacles to the appellant’s integration in Iraq and concluded that the exceptions to deportation were therefore not met. The judge found there to be no very compelling circumstances outweighing the public interest in the appellant’s deportation and he accordingly dismissed the appeal, in a decision promulgated on 15 September 2025.
14. The appellant sought permission to appeal against the judge’s decision. Permission was refused in the First-tier Tribunal, and the application was renewed to the Upper Tribunal on five grounds. Firstly, that there were material misdirections of law on material matters including the nationality issue, the application of Iraqi Country Guidance case law and the level of detail required to satisfy Art. 9 of the UNCRC. Secondly that there were perverse or irrational findings on matters that were material to the outcome, namely that a British citizen child, aged four, would not suffer a real risk of serious harm in Iraq, and regarding the appellant’s nationality. Thirdly, that there was procedural or other irregularity in the judge deciding the appeal with reference to a case not cited by either party without inviting submissions on its application. Fourthly, that there was a failure to make findings on the respondent’s claim as to where the appellant was from. Fifthly, that the judge failed to provide adequate reasons.
15. Permission was granted in the Upper Tribunal as follows:
“5. In my view it is arguable that the Judge erred in finding that Judge Hembrough had “given clear findings as to why he found the appellant to be an Iraqi national” (at [100]). It is arguable that Judge Hembrough’s findings were limited to a finding that the appellant had failed to establish that he was an Iranian national. In light of the documentation requirements for citizens in Iraq, I also note the failure to identify where in Iraq the Judge considered the appellant to come from in order to appropriately apply the guidance from SMO and KSP (Civil status documentation, article 15) (CG) [2022] UKUT 110 (IAC). It is arguable that the parties’ submissions should have been sought in relation to MY (Disputed Somali nationality) Somalia.
6. Permission is granted on all grounds because of the impact of the nationality issue on the further issues in the appeal...”
16. The respondent produced a rule 24 response opposing the appeal.
Error of Law Hearing
17. The matter came before myself for a hearing. Both parties made submissions, reflecting the grounds of appeal.
18. Mr Islam submitted that the key matter in this appeal was the nationality issue. He submitted that Judge Hembrough had made no positive findings as to the appellant being an Iraqi national and on the Iraqi identity documentation issue but had only found that he was not Iranian. Judge Howard had therefore erred in law in concluding otherwise at [100] of his decision, and had failed to give proper consideration to the issue of having access to a CSID. The judge failed to consider that the appellant was a minor and that, as such, his knowledge would be limited. Mr Islam submitted further that the judge had erred by relying upon the decision in MY (Disputed Somali nationality) Somalia* [2004] UKAIT 00174 but failing to give the parties an opportunity to make submissions on the case. Finally, Mr Islam submitted that the judge had erred by failing to give proper consideration to the ‘unduly harsh’ question and the best interests of the child in relation to return to Iraq.
19. Mr Sheikh submitted that Judge Howard properly found that the appellant had not sought to challenge Judge Hembrough’s findings and was entitled to rely on those findings, as set out at [92]. Judge Howard made his own findings, noting at [94] the lack of any further evidence from the appellant in relation to his nationality. The burden of proof was on the appellant and the judge was entitled to find that he had discharged it. In any event, the question of the family unit relocating to Iraq was immaterial to the findings on the ‘unduly harsh’ issue as the judge found, in the alternative, at [122], that it would not be unduly harsh for EV and LV to remain in the UK without the appellant. Mr Sheikh submitted that the judge was entitled to rely upon MY (Somalia), even if not relied upon by either party.
20. In response, Mr Islam submitted that it was a material error for the judge to have found that the appellant was an Iraqi national based upon the 2017 decision. The issue of documentation had to be considered in accordance with SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 00110. The appellant bore the burden of proving that he was the nationality which he was claiming to be, but he did not have the burden of proving that he was not Iraqi. That was upon the Secretary of State. The issue of nationality was material to the outcome of the appeal. Mr Islam submitted that the judge was wrong to rely upon education being compulsory in Iran, when many Iranian Kurds were illiterate. The judge ought to have considered that, but he failed to do so and instead focussed on the 2017 decision. Mr Islam submitted that the appellant’s nationality was material to the ‘unduly harsh’ issue as there was still the question of the appellant being returned to the country of his nationality.
Analysis
21. As a starting point, I do not agree with Mr Sheikh that the appellant’s nationality is necessarily immaterial to the ‘unduly harsh’ question. Clearly it is highly material to the “go” scenario, since different issues would need to be considered if the family unit was to consider relocating to Iran rather than to Iraq, the latter of which was considered by the judge but not the former. It is, furthermore, not entirely immaterial to the “stay” scenario, given that consideration would need to have been given as to how and if the appellant and his partner and child would be able to maintain contact and perhaps be able to see each other if the appellant was returned to Iran, as opposed to Iraq.
22. In the circumstances the issue of nationality had to be properly determined by the judge. However I consider there to be material errors in the judge’s assessment of nationality. I do find merit in the assertion in the grounds that Judge Howard erred by concluding that the issue of the appellant’s nationality as being an Iraqi national had been settled by the previous decision of Judge Hembrough. It appears that neither the respondent nor Judge Hembrough had given specific reasons for concluding that the appellant was an Iraqi national, other than by reference to the lack of evidence to show that he was an Iranian national, and that no such final and specific conclusion had in fact been reached by Judge Hembrough. Judge Howard therefore erred by concluding that the matter was settled and by taking that as his starting point.
23. More troubling, though, is the finding at [94] that “the appellant has not provided any new evidence that addresses the findings of FTT Judge Hembrough.” The reason for that being troubling is that there was in fact some evidence which was not considered by Judge Howard and which could possibly have impacted upon his decision on nationality. That was evidence set out at [23] of the appellant’s ‘Speaking Note’, which directly addressed one of the respondent’s reasons for doubting the appellant’s Iranian nationality. The Speaking Note was clearly a document before Judge Howard as it was referred to at [40(c)] of his decision. It provided a link to the relevant document. It cannot be said with any certainty that Judge Howard would have reached the same decision had he considered that evidence. Accordingly, whilst Judge Howard may have reached the same decision, it would also have been open to him to depart from the conclusion reached by Judge Hembrough on the basis of evidence which, albeit pre-dating the date of the appeal before Judge Hembrough, was nevertheless evidence which was not before that judge. That it was not before Judge Hembrough was, it seems to me, explicable by the appellant’s minority and lack of representation at the time of the hearing, a matter that Judge Howard did not appear to consider.
24. In the circumstances it seems to me that, despite the detailed and otherwise comprehensive decision of Judge Howard, there was nevertheless a failure to undertake a proper, evidence-based assessment of all the evidence in order for a conclusion to be properly reached that the appellant was an Iraqi national.
25. The issue of the appellant’s nationality is relevant to all aspects of the decision-making. For that reason the decision must be set aside and the matter considered afresh. The nature and extent of the necessary fact finding requires the matter to be remitted to the First-tier Tribunal for a de novo hearing, with no findings preserved.
Notice of Decision
26. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law. The decision is set aside. The appeal is remitted to the First-tier Tribunal to be dealt with afresh pursuant to section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and Practice Statement 7.2(b), before any judge aside from Judge Parkes, Judge Howard or Judge Hembrough.
Anonymity
The anonymity order previously made is continued.

Signed: S Kebede
Upper Tribunal Judge Kebede

Judge of the Upper Tribunal
Immigration and Asylum Chamber
26 February 2026