Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001877
First-tier Tribunal No: PA/64416/2023
LP/02914/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

3rd August 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE LAY

Between

MSJ (Iraq)
(Anonymity Order made)
Appellant
v

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Spurling, Counsel instructed by Dayton Rayleigh Solicitors
For the Respondent: Mr M Pugh, Senior Home Office Presenting Officer

Heard at Field House on 14 July 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the anonymity of the Appellant is maintained.

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
1. The Appellant is a 38-year-old Iraqi national of Kurdish ethnicity, a former police officer, whose original asylum claim in 2017 was made on the basis that he had been attacked by ISIS in 2015 and then fled his home country two years later due to threats following his arrest of a group of men who proved to be influential Arabs he said were capable of retribution. The asylum claim was refused and an appeal was dismissed by First-tier Judge Dilks [CB: 507] on 26 September 2022.
2. In October 2023 the Appellant submitted a fresh claim. The Secretary of State ultimately granted a fresh right of appeal in a decision dated 30 November 2023. The ensuing appeal was dismissed by First-tier Judge Bonavero in a decision dated 11 February 2026. I note that the appeal substantively turned on Article 3 ECHR (documentation). The core asylum claim – purported threat from men the Appellant had previously arrested – was pursued in principle but essentially without further/additional evidence capable of displacing the earlier adverse findings of FTJ Dilks. The negative findings on the asylum claim were also not challenged in this appeal to the UT.
3. The Appellant lodged an application for permission to appeal on 25 February 2026, focusing on the Article 3 ECHR claim. The Appellant argued under Ground 1 that the FTJ had impermissibly demanded additional corroboration to support the new evidence from a Mukhtar (local leader/mayor/administrator), in particular by noting that there was an absence of any expert report; Ground 2 argued that the FTJ had misapplied Devaseelan (Second Appeals - ECHR - Extra-Territorial Effect) Sri Lanka * [2002] UKIAT 00702 in treating the earlier determination of FTJ Dilks as fatal to the Appellant’s fresh claim; Ground 3 argued that the FTJ had “failed to give any sufficient reason to reject the Mukhtar’s letter [ … and …] the Mukhtar’s ID card…”
4. Permission was granted, on “limited grounds”, by FTJ Jepson on 14 April 2026. The grant of permission was constrained to the extent that FTJ Jepson did not grant permission to paragraph 10(b) of the grounds – which the FTJ clearly treated, in effect, as a fourth/discrete ground rather than a facet of Ground 3, relating to a purportedly inadequate assessment of country evidence. I understood Mr Spurling’s argument that paragraph 10(b) was indeed a facet of Ground 3 to the extent that any re-evaluation of the credibility of the Appellant’s claim that the Appellant’s family had indeed fled in 2017 would inevitably need to (re-)consider evidence of country conditions at that time, including the Kurdish independence referendum and disputes/population movements/transfers in and around Kirkuk during that period of flux. However, in my view there had not been an application for renewal and FTJ Jepson had plainly intended that the grant of permission be limited, stating it both in the header of his decision and in the body.
5. In accordance with Directions, there was a Composite Bundle (589 pages) served ahead of the error of law hearing – page references in this determination are in the form [CB: XX], denoting [Composite Bundle: PDF page finder]. There was a Rule 24 reply dated 3 May 2026.
Submissions
6. Mr Spurling, on behalf of the Appellant, submitted orally – with a focus on Ground 2 - that the FTJ had cleaved too closely to the previous determination without adequately analysing it and treating it as a mere “starting point”. He relied on KD v Secretary of State for the Home Department [2026] EWCA Civ 349 as a re-statement by the Court of Appeal of the importance of FTJs analysing any earlier FT determination and identifying the relevant Devaseelan “categories”(albeit KD was a case in which an FTJ was found to have paid insufficient attention to the adverse findings in the earlier determination and to have not explained why they were departing from it).
7. As regards Ground 3, Mr Spurling pointed out that the determination failed to consider the origin of the Mukhtar letter and ID and, further, the way in which it was capable of supporting the Appellant’s contention that he had indeed lost contact with his family. This was material to his Article 3 ECHR claim, namely that he was reasonably likely to be returning without documentation necessary for subsisting in Iraq, consistent with the Country Guidance in SMO and KSP (Civil status documentation, article 15) (CG)) Iraq [2022] UKUT 110 (IAC). In Mr Spurling’s words, “provenance matters” and there was insufficiency of reasoning on that issue. He also argued that the Respondent’s own Rule 24, by stressing that there had been oral evidence on provenance, was an attempt to “plug the gap” in the FTJ’s “thin” reasoning at paragraphs 26 & 27.
8. Mr Pugh argued that the FTJ had repeatedly laid out the correct legal framework, had carefully considered the detailed earlier determination of FTJ Dilks and had clearly not been satisfied that there was sufficient evidence to gainsay those adverse findings.
9. However, Mr Pugh did acknowledge that, in light of the setting aside of AH, AK & AJ (Identity documentation returns to the KRI) (CG) [2026] UKUT 00150, the issue of documentation and enforced returns to Iraq remains a live one and, were I to find an error of law in the FTJ’s approach to documentation/the reliability of Mukthar evidence, then it was at the very least capable of leading to a different outcome and thus would be material.
10. I was grateful to both representatives for the clarity and succinctness of their oral submissions.
Conclusions
11. I dismiss Grounds 1 & 2. I accept Mr Pugh’s submissions that the FTJ, at paragraph 23, reminded himself of the “general approach I must take to corroboration in protection cases”. This is likely to be an oblique but sufficient reference to the principles embedded within MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216, long established in asylum law and the Home Office’s own guidance. The FTJ does comment, rather loosely it must be said, that “there is no expert evidence to lend credibility to the letter” but then qualifies it by stating that the absence of expert evidence “is not in itself enough to fatally diminish its reliability”. This is all to be read in the context of the FTJ having approached the evidence with “circumspection” (paragraph 25) – which was not itself criticised by the Appellant - consistent with Devaseelan. In so far as Ground 1 argues that the determination offended ST (Corroboration – Kasolo) Ethiopia [2004] UKAIT 001119 and/or MAH Egypt, I do not agree.
12. As regards Ground 2, and the application of Devaseelan, the FTJ laid out the guidance/principles at paragraph 13. He then stated at paragraph 14 that “these principles are not a ‘straight jacket’ [sic] – it remains for me to determine the appeal before on its own individual merits”.
13. In the written grounds of appeal, it is advanced that “the Tribunal’s decision to reject the evidence of the Muktar’s letter because it went to a fact already decided against the appellant was vitiated by the error of treating the previous determination as establishing a res judicata”.
14. In my view the FTJ appropriately sought to treat the previous determination as a “starting point” and then turned to the new evidence, which was itemised and – in part – analysed at paragraph 17 onwards. While I have found (below) that the reasoning in this section of the determination was insufficient and defective in a material way, that was not owing to a misunderstanding or misapplication of Devaseelan per se but rather a failure to provide adequate reasoning on an key element of the evidence – the provenance of the letter – relevant to any evaluation of “reliability” in the Tanveer Ahmed sense.
15. I find that Ground 3 does establish a material error of law, to the extent that there was an insufficiency of reasoning on the Mukhar letter and ID. The very heart of the Appellant’s appeal was the Mukhtar evidence and the contention that, as the letter states, “after the events of October 2017, [the family] disappeared from the area and we do not know their fate. Please note that their father [ …] passed away in 2003”.
16. At paragraph 15 of his appeal witness statement [CB: 50] the Appellant stated that “I managed to find the Mukhtar of my local area through Facebook. He has provided a supporting letter with the official stamp and his photo ID. In his letter he confirms that my family has not been seen since October 2017.”
17. There is no reference in the determination, in particular paragraphs 20 to 29, to the claimed provenance of the letter, i.e. the means/channel through which it was obtained.
18. Having regard to Volpi & Anor v Volpi [2022] EWCA Civ 464 [at 2], a Court or Tribunal considering error of law should be circumspect in interfering with primary fact-finding conducted below:
i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
vi) Reasons for judgment will always be capable of having been better expressed. An appeal 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.
19. Having read the determination carefully, I cannot glean the FTJ’s view of the claimed provenance of the letter and how this was fed into an overall evaluation of reliability. If this was a document to be viewed with “considerable circumspection” (paragraph 25) – which the Appellant accepts – then it is all the more important that the origin of the central piece of evidence in the appeal be referenced and rejected (or accepted) with the bare minimum of reasoning.
20. The FTJ certainly viewed it as “germane” (paragraph 24) that the Appellant was someone whose asylum claim had been rejected in a way that was damaging to this credibility. But this is precisely the place in the determination where one would expect there to be consideration of the provenance of the document.
21. In the Rule 24 reply dated 3 May 2026 the Respondent herself pointed out at paragraph 6 that “the issue of the provenance of this documentation had been raised in the Respondent’s Review dated 28/3/2024. The issue was also raised during cross-examination at A’s appeal hearing on 12/1/2026 where A confirmed that a friend residing in Norway (who worked as a police officer alongside A whilst they were in Iraq) had purportedly contacted the local Muktar. [The] A further stated that it was his friend in Norway who sent the Muktar’s letter and accompanying ID to him via Whatsapp…” (One of the few facts of the Appellant’s history which has long been accepted by the Respondent - going back to the previous determination in 2022 - was that he had indeed been a police officer.)
22. The Rule 24 reply submitted that it flowed from this that the FTJ was “clearly aware of the facts of the A’s case and that at paragraphs 17(v) and 24 of the determination he was “implicitly referring to how A had obtained this evidence”.
23. No doubt the Respondent emphasised this in order to argue that the issue of provenance was “on the table” at the hearing and had been considered.
24. I stress that I am not treating the contents of the Rule 24 as a record of proceedings in the FTT. Nonetheless, since the summary account is not disputed by the Appellant (not least because it might be said to be of assistance to him), it reinforces my view that, on the face of the determination, there was no, or no adequate, reasoning provided by the FTJ as to this issue and the evidence that had been presented (and ventilated) in the hearing itself.
25. I bear in mind that a “reasons” challenge has to surmount a relatively high bar. It is worth noting the Senior President’s Practice Direction, “Reasons for decisions”, dated 4 June 2024, which reminds the IAC that “adequate reasons for a substantive decision may often be short. In some cases a few succinct paragraphs will suffice… a challenge based on the adequacy of reasons should only succeed when the appellate body cannot understand the Tribunal’s thought process in making material findings.”
26. I conclude that Ground 3 is made out in that there is inadequacy of reasoning on the provenance of the key piece of evidence in the appeal. The general terms in which paragraphs 25 to 27 are expressed do not enable a reader to divine the thought process of the FTJ on provenance. Provenance was a material factor relevant to reliability.
Disposal
27. I invited, on a provisional basis, submissions from the representatives on whether the appeal should be retained in the Upper Tribunal or remitted to the First-tier Tribunal, and what, if anything, should be preserved from the determination.
28. Mr Spurling’s position was that, in the event of error, the appeal should be remitted de novo to the FTT. Mr Pugh was, on balance, neutral on venue but argued that the adverse findings on the asylum claim ought to be preserved.
29. I have had regard to Section 7 of the “Senior President’s Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal” (SPT Ryder, 11 June 2018), Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC), AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Majera v Secretary of State for the Home Department [2025] EWCA Civ 1597.
30. I did consider retaining the appeal in the UT but it is appropriate in the circumstances of this appeal that it be remitted, with preserved findings, for reconsideration of the Article 3 ECHR documentation issue (including likely oral evidence on provenance on which there will need to be a clear evaluation), but with the findings on asylum at paragraphs 15 & 16 preserved.
31. Given the setting aside of the new CG on Iraq documentation/returns, it will be a matter for the parties – and ultimately the FTT – to consider appropriate Directions for re-hearing, including any application for a stay.

Notice of Decision
I have found a material error of law; the appeal is remitted to the First-tier Tribunal (IAC) for reconsideration of the Article 3 ECHR claim, with the core asylum findings of FTJ Bonavero at paragraphs 15 & 16 preserved.

Taimour Lay

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

22 July 2026