Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001166
First-tier Tribunal No: PA/50553/2024
LP/03745/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 2nd of June 2026

Before

UPPER TRIBUNAL JUDGE LODATO

Between

BHH
(ANONYMITY ORDERED)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Kalyan, counsel
For the Respondent: Ms McKenzie, Senior Presenting Officer

Heard at Field House on 13 May 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 and Background
1. I have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal (‘FtT’) because the underlying claim involves international protection issues in that the appellant claims to fear persecution or serious harm on return to Iraq. In reaching this decision, I am mindful of the fundamental principle of open justice, but I am satisfied, taking the appellant’s case at its highest for these purposes, that the potential grave risks outweigh the rights of the public to know of his identity.
2. The appellant appeals with permission against the decision, dated 5 January 2025, of a judge of the FtT (‘the judge’) to dismiss the appeal on international protection and human rights grounds.
3. The appellant’s case before the FtT was that he is a Kurdish national of Iraq who had been employed for a number of years within the Patriotic Union of Kurdistan (‘PUK’), initially as a bodyguard and subsequently within its information apparatus, during which time he was tasked with gathering intelligence in relation to a senior figure associated with the rival Kurdistan Democratic Party (‘KDP’). He asserted that, in December 2020, he was ordered by his PUK superiors to carry out an assassination as an act of political retribution, but that he refused to comply and, having been given a short period to consider the order, fled Iraq on the advice of family members out of fear that his refusal would place him at risk of serious harm or death at the hands of the PUK. He also advanced a human rights claim based on his private and family life in the United Kingdom, including his relationship with a British partner.
The FtT Decision
4. The judge rejected the appellant’s protection claim in its entirety, finding that his account lacked credibility and did not satisfy the requirements of paragraph 339L of the Immigration Rules. It was concluded that the appellant’s narrative concerning his employment with the PUK and the alleged assassination order was not coherent or plausible, identifying inconsistencies in his evidence, including confusion as to his role (whether bodyguard or taxi driver), the circumstances surrounding the killing to be avenged and the nature of his intelligence-gathering activities. The judge further found that there was no satisfactory explanation as to why the appellant would now be at risk of harm, noting in particular the absence of any substantiated continuing interest in him by the PUK and rejecting aspects of his account, such as the alleged raid on his family home, as unsupported.
5. The Article 8 claim was dismissed on the basis that the appellant did not meet the Immigration Rules and that there were no exceptional circumstances. The judge was not satisfied that the relationship evidence demonstrated a sufficiently strong or subsisting family life and concluded that removal would not result in unjustifiably harsh consequences when weighed against the public interest in immigration control.
Appeal to the Upper Tribunal
6. The appellant applied for permission to appeal in reliance on the following grounds:
i. The FtT materially erred by making findings of fact that were inconsistent with, and demonstrably misunderstood, the appellant’s evidence, including confusion as to his role, the chronology and nature of the alleged killing, and reliance on speculative reasoning in assessing risk on return.
ii. The FtT misdirected itself in law by requiring corroborative documentary evidence of the appellant’s claimed PUK employment and activities.
iii. The FtT conducted a flawed Article 8 assessment by treating “exceptional circumstances” or “unjustifiably harsh consequences” as a threshold test, rather than undertaking the requisite structured proportionality balancing exercise.
7. In a decision dated 12 March 2026, a judge of the FtT granted permission for all grounds to be argued.
8. At the error of law hearing, I heard oral submissions from both parties. I address any submissions of significance in the discussion section below.
Discussion
9. For reasons which will become clear, I address ground 2 first. The judge’s self-direction on the law and key findings of fact in seeking to determine the protection claim are to be found between [20]-[24]:
[20] I have given careful consideration to all the documentary evidence and to the oral evidence before me. I remind myself that “the real question, as always in these cases, was, notwithstanding that which had happened ...... whether it would be safe for this Appellant to return” (see Lord Justice Moses in AM (Pakistan) v SSHD [2008] EWCA Civ 1064 (at paragraph 18)). I do not find that the Appellant satisfies the requirements of paragraph 339L in that her evidence is not coherent and plausible for the following reasons.
[21] First, on or around 13th or 14th December 2020 a murder took place of a man by the name of ‘Sheikh Salah,’ who was a Peshmerga. The Appellant worked as a bodyguard in the information office of the PUK (Patriotic Union of Kurdistan) between 2015-2020. In December 2020 he was asked to avenge that death by Jalal Talabni. This is because the murdered man was his brother. So he was ordered by him to assassinate Abbas Baiz Aga, as he was the one who had killed Jalal Talabni’s brother. However, all that then happened was that the Appellant said, “I told them that I will think about it and they gave me a week to do so” (at §9). During that time he spoke to his family members. He decided that “it was best for me to leave the country as my life will be in danger” (at §10). There is absolutely no reason why, even if this story is true, that the Appellant now thinks he will be killed himself. Indeed, It was put to him by Ms Tasmin that he had said that if he did not carry his order out they would sexually assault his wife but there is no evidence at all that even this has happened. Furthermore. When asked how he knew that the PUK still had an interest in him all he could say was, “I am certain about that because I worked for security and I have information.” It is true that he also states that about a year’s ago that they raided his father’s house, but he also added that they had not returned after that, and I reject that this even happened given the circumstances outlined above.
[22] Second, in relation to the Appellant collecting information I reject that this is the case. His case is he was asked to collect information on the KDP. However, initially he had said he was collecting information for the KDP and not against them. Moreover, in the AIQ there is no mention of this.
[23] Third, and even more so, the Appellant’s case is based on his employment within the information office of the PUK party, but there is no supporting documentary evidence to support the Appellant’s claim to have worked with the PUK party, and he relies entirely upon his own evidence. I consider this to be required evidence given the doubts I have expressed above. I cannot find that if now returned to Iraq his fears of the PUK party, because he did not assassinate Abbas Baiz Aga as required, are legitimate.
[24] Fourth, if the Appellant was remotely of any interest to the PUK his family in Iraq would have been threatened. He has his parents, his siblings and his ex-wife and her children there, but none have come to any harm.
[Underlining added]
10. Ms McKenzie argued that it would be wrong to consider the judge’s reasons at [23] in isolation. Instead, it should be read in conjunction with the preceding paragraphs which I have included in the extract above. It was suggested that the judge was simply noting that the appellant ought not to be afforded the benefit of the doubt under paragraph 339L of the Immigration Rules for the reasons he went on to give. It was argued that the observation about a lack of corroboration must be seen against that backdrop and that the judge’s analytical approach did not offend against any legal principles which apply in this sphere.
11. There can be no doubt that in exercising anxious scrutiny of protection appeals, judges must be cautious not to unlawfully require corroboration. However, there is not an absolute rule against judges relying on manifest gaps in the evidence where a party could be reasonably expected to fill such a gap. The proper approach was recently considered in the leading case of MAH (Egypt) v SSHD [2023] EWCA Civ 216 where Singh LJ referred to Article 4(5) of the Qualification Directive and paragraph 339L of the Immigration Rules, together with the accompanying guidance. The following observation was made at [77]:
[77] It is important to appreciate the legal effect of these provisions. What both Article 4(5) of the Qualification Directive and para. 339L of the Immigration Rules provide is that, where certain criteria are met, corroborative evidence is not required. It does not follow from this that, where one or more of those criteria are not met, corroborative evidence is required. The correct legal position is accurately summarised in the Home Office guidance, which I have quoted above. In those circumstances the decision- maker (here the tribunal of fact) must still consider whether, on the facts of the case, it is appropriate to give the appellant the benefit of the doubt, bearing in mind the relatively low threshold of "reasonable degree of likelihood".
12. It seemed to me that Ms McKenzie fell into the analytical trap identified by Singh LJ. Even if the judge had lawfully concluded that the appellant should not be afforded the benefit of the doubt, this cannot be understood as meaning that he was therefore required to corroborate his protection claim. A fair and natural reading of paragraph [23] is difficult to read in any way other than the judge was, at least in material part, rejecting the appellant’s narrative of working for the PUK intelligence services because he had not corroborated his employment or provided the information he claimed to hold. Firstly, intelligence services are, by definition, secretive and tend not to document their activities in such a way that it would be reasonable to expect an agent to be able to adduce documentary evidence of their role. Secondly, the judge appears to have inferred that the appellant’s account of holding information, referred to information which he could readily produce in evidential form for the purposes of the appeal. It seems to me to be rather more likely that the appellant was, in fact, referring to information he knew to be true rather than information contained in documents. I am satisfied that the judge has unlawfully required the appellant to corroborate his international protection ground of appeal.
13. As agreed by the parties, a finding that the judge erred in law in the assessment of the protection claim also infects the Article 8 evaluation because if the appellant establishes his case that he is wanted by the Iraqi authorities, this would tend to weigh heavily in favour of their being very significant obstacles to integration. In any event, while it is not necessary to formally decide the point, I considered there to be considerable force to the appellant’s third ground of appeal in that there appeared to be real substance to the contention that the judge had used unjustifiably harsh consequences as a complete cypher for the required proportionality balancing exercise.
14. The decision involves material errors of law and I set it aside in full without preserving any findings of fact.
Disposal
15. As I have set aside the decision in full, it will be necessary to re-decide the underlying international protection and human rights grounds of appeal. A full fact-finding exercise will be required which the FtT is better equipped to undertake. Overall, remittal to the FtT strikes me as being the most appropriate procedural course in the circumstances.
Notice of Decision
The decision involved material errors of law. The decision is set aside without preserving any findings of fact. The appeal is to be remitted to the FtT to be decided by a different judge.

P Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

19 May 2026