Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002088
First-tier Tribunal No: PA/55705/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 8 October 2026

Before

The Hon. MR JUSTICE LAVENDER, PRESIDENT
UPPER TRIBUNAL JUDGE O’BRIEN

Between

AG
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr C Rahman of Counsel, instructed by Rodman Pearce Solicitors Ltd
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

Heard at Field House on 7 July 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
(1) Introduction
1. The appellant appeals against a decision of the First-tier Tribunal (“the FtT”) dated 30 December 2025 dismissing his appeal against the respondent’s refusal of his protection and human rights claim. His claim was advanced on the basis of imputed political opinion and a risk of serious harm from an individual working for the Government of the Iraqi Kurdish Region (“the IKR”).
2. In her decision, the respondent said that the “Material facts I accept” were that:
“You were attacked by three men organised by your old boss [M] because you reported him for embezzlement.”
3. However, the respondent did not accept that the appellant would be of continued interest to M or of adverse interest to the IKR authorities. Moreover, the respondent said in relation to the appellant’s credibility that the appellant had provided inconsistent evidence without reasonable explanation, as well as a lack of detail. The inconsistencies identified by the respondent included the following, in relation to the appellant’s relationship with M:
“Following your discovery of the embezzlement of money by your manager [M], you told us you reported it to your bosses (WS 9). Alternatively, you reported him to the police and to security forces (AIR 31). Alternatively, you discovered that your boss was trying to steal money from the government, so you stopped him.”
4. No change in that position was intimated in the respondent’s review.
5. The FtT found the appellant’s evidence to be unbelievable in its entirety, consequently finding that he would not be at risk on return to Iraq and dismissing his appeal on all grounds. In particular, the FtT held that it was not bound by the respondent’s concession that he had been attacked and found instead that none of the appellant’s account was true.
6. The appellant appealed in time on the grounds that: it had been procedurally improper for the FtT not to have indicated to the appellant that it did not consider itself to be bound by the respondent’s concession and to invite submissions on that issue and on the ‘conceded evidence’; and that it had been unlawful for the FtT to hold that it was not bound by the respondent’s concession. Permission was granted by the FtT in a decision dated 23 April 2026. No rule 24 response was submitted.
(2) The Hearing
7. At the outset, it was agreed that this appeal raised three issues:
(1) Was it lawfully open to the FtT to go behind the respondent’s concession regarding events in the IKR?
(2) If so, did the FtT act unfairly in doing so?
(3) If the FtT erred in finding contrary to the respondent's concession, would the FtT inevitably have dismissed the appeal in any event?
8. The representatives each made oral submissions. Regrettably, and despite our encouragement, Mr Rahman did not address the pleaded grounds of appeal, instead focussing on the FtT’s unchallenged adverse credibility findings. For the respondent, Mr Tufan accepted that the respondent had not resiled from the concession made in the decision. However, he stressed that it had only been conceded that the appellant had been attacked after reporting M for embezzlement. It had been lawfully open to the FtT, feeling unable to accept the concession, to reject that element of the appellant’s account. In any event, the alleged consequential risk had not been conceded, and it had plainly been open to the FtT to dismiss the appeal.
(3) Consideration
(3)(a) The Obligation to Accept a Concession
9. It is convenient to deal first with the appellant’s second ground of appeal, namely whether the FtT was obliged to accept (and therefore make findings in accordance with) a party’s concession on an issue of fact. The grounds rely on the Senior President of Tribunals’ Practice Directions for the First-tier Tribunal dated 1 November 2024 and, in particular, paragraph 1.3, which states:
“The disputed issues represent the parameters, or scope, of the appeal and will operate as the foundation and structure for all judicial decisions. Subject to ‘Robinson obvious’ matters and the need for extra care when litigants in person are involved in proceedings, judges should not be expected to infer issues which have not been clearly identified and articulated by the parties. The Tribunal will not tolerate a rolling consideration of issues and will not permit the issues to evolve at will for procedural advantage.”
10. However, this practice direction merely reminds parties that they cannot expect judges to search proactively for unpleaded issues or to accept a mutating case. It does not prohibit judges from taking points of their own motion if that is necessary to do justice in the particular circumstances of a case.
11. Mr Rahman was unable to take us to any authority to the latter effect. We drew his attention to MH (Appendix EU; withdrawal of concession) Albania [2025] UKUT 00351 (IAC), but he did not develop the argument. MH concerned the principles to be applied when a party sought to withdraw a previously made concession. However, the panel’s observations at [40] touch on the issue before us:
“In Carcabuk & Bla v SSHD 00/TH/01426, the Immigration Appeal Tribunal (Collins J and Judge Ockelton) heard two appeals together with a view to providing authoritative guidance (see [2]) as to the approach which should be adopted when the respondent to an appeal has tacitly or expressly conceded that an appellant was credible about important factual matters. The implications for procedural fairness were stark where an appellant chose not to give oral evidence in reliance on such a concession. For present purposes, important observations were made about the principles at stake, at [11] and [12(4) & (6)] (other observations were made in relation to the procedure to be adopted in such a situation which we will come to later):
[11] It is in our judgment important to identify the precise nature of any so-called concession. If it is of fact (for example that a particular document is genuine or that an event described by the appellant or a witness did occur), the adjudicator should not go behind it. Accordingly, if facts are agreed, the adjudicator should accept whatever is agreed. Equally, if a concession is clearly made by a HOPO that an appellant is telling the truth either generally or on specific matters, the adjudicator may raise with the HOPO his doubts whether the concession is appropriate but, if it is maintained, he should accept it. But there is all the difference in the world between a concession and a failure to challenge. The former will bind the adjudicator, the latter will not. Furthermore, any concession can be withdrawn so that, for example, the case before the Tribunal can be presented in a different way to that before the adjudicator. It is open to a HOPO to withdraw a concession made before an adjudicator before the hearing is concluded, but the appellant must be given a proper opportunity to deal with the new case against him and unless there is good reason for the withdrawal such as the discovery of fresh material we doubt that the adjudicator should permit any adjournment which such withdrawal would be likely to necessitate. […]
[…]
[12(4)] A HOPO may make any concession before an adjudicator. If he does, the adjudicator may ask him to reconsider it if he believes it may be wrong to make it. But the adjudicator must always bear in mind that the appellant may have prepared his case on the basis of the concession and so must ensure, if he persuades the HOPO that he should not make it, that the appellant is not prejudiced. In reality, HOPOs should not make concessions unless sure that they should be making them.
[…]
[12(6)] A concession can be withdrawn but, if a HOPO seeks to do this, the adjudicator must be satisfied that the appellant will not be prejudiced if the hearing continues and should only allow an adjournment if persuaded that there was good reason to have made and to withdraw the concession”
12. We note that neither MH nor Carcabuk & Bla v SSHD was a case in which a judge had decided not to accept a concession:
(1) MH concerned an erroneous concession made by the respondent before the FtT that the appellant met the applicable Immigration Rules, which was accepted by the FtT and which the respondent then wished to withdraw on appeal to the Upper Tribunal.
(2) In Carcabuk & Bla v SSHD the Immigration Appeal Tribunal found, at [9], that there had been no positive concession by the respondent, merely, in the case of Bla (and possibly Carcabuk), a failure to challenge the veracity of the account given.
13. For that reason, no doubt, the exhortation on judges in Carcabuk & Bla v SSHD at [11] to accept concessions is not to be found in the Upper Tribunal’s guidance at [55] of MH (reproduced as paragraph 3 of the headnote).
14. By contrast, the subsequent decision of a Vice-Presidential panel in Kalidas (agreed facts – best practice) [2012] UKUT 00327 (IAC) concerned the exceptional circumstances in which a judge could make a decision which was inconsistent with a concession. In that case, it had been conceded by the respondent at a Case Management Review Hearing that the appellant had been threatened by her father. This was not, however, brought to the attention of the judge holding the final hearing, who rejected the entirety of the appellant’s case, including the claimed threats.
15. The appellant’s representative accepted that a judge is not always conclusively bound by an agreement or concession (see [15]). The panel held at [35]:
“Judges, unless in exceptional circumstances, do not look behind factual concessions. Such exceptional circumstances may arise where the concession is partial or unclear, and evidence develops in such a way that a judge considers that the extent and correctness of the concession must be revisited. If so, she must draw that immediately to attention of representatives so that they have an opportunity to ask such further questions, lead such further evidence and make such further submissions as required. An adjournment may become necessary.”
16. That approach is consistent with every judge’s fundamental obligation, consistent with their judicial oath, to try each case on its evidence and to reach conclusions in accordance with their own conscience. That point was made by the Court of Appeal in Djebbar v SSHD [2004] EWCA Civ 804; [2004] INLR 466, albeit in the context of the Devaseelan guidelines, which concern the approach to be taken by tribunals in cases where subsequent appeals are made by previous appellants: see Devaseelan v SSHD [2002] UKAIT 000702, [2003] Imm AR 1.
17. The court rejected the appellant’s submission, in challenging the adjudicator’s departure from earlier findings, that the guidelines were derived from the principle of estoppel. They were instead a proper exercise of the IAT’s role as a specialist body, in order to secure consistency, while respecting the ‘fundamental obligation’ of each adjudicator to decide each case on its own merits ([29]-[30]). The Court of Appeal emphasised at [40] the need for them to be applied flexibly:
“The great value of the guidance is that it invests the decision making process in each individual fresh application with the necessary degree of sensible flexibility and desirable consistency of approach, without imposing any unacceptable restrictions on the second adjudicator’s ability to make the findings which he conscientiously believes to be right.”
18. In summary, we reject the suggestion that a judge is always bound by law to accept a concession of fact made by a party. The judge should recognise the conceded fact as a matter not in issue between the parties and should make findings in accordance with the concession save in exceptional circumstances. Such circumstances include where the concession is partial or unclear and the evidence develops in such a way that the judge considers that the extent and correctness of the concession must be revisited. However, they also include where, although the concession appears unambiguous, the evidence develops in such a way that the judge cannot in all good conscience make findings consistent with the concession.
19. In any event, it remains the case that a judge considering making findings inconsistent with a concession must act fairly to the parties. They must draw the possibility immediately to the attention of the representatives, so that they have an opportunity to ask such further questions, lead such further evidence and make such further submissions as may be required. That might require an adjournment.
(3)(b) The FtT’s Decision
20. In the present case, the FtT set out at [18] to [34] its analysis of the appellant’s evidence. It identified numerous inconsistencies and made significant negative credibility findings, none of which are challenged (save implicitly those contrary to the conceded facts). As stated above, those facts were that the appellant had been attacked by three men, organised by M, because the appellant had reported M for embezzlement. There had been no concession regarding any other aspect of the appellant’s account. Indeed, as we have noted above, even the appellant’s account of reporting M was described in the decision letter, in the context of assessing the appellant’s credibility, as ‘internally inconsistent’. (We note that there could therefore be said to have been some ambiguity or unclarity in the concession made in the decision letter, since it included the appellant’s claim to have reported M for embezzlement, a claim in respect of which the decision letter stated that the appellant had made inconsistent statements.)
21. The FtT summarised its issues with the appellant’s account at [35] to [37]:
“35. This Appellant's account is wildly inconsistent and I do not accept that he is telling the truth about any part of the core of his account. He has opportunistically altered his account at every opportunity to fill in the gaps left by his inconsistency. For example when it was put to him in the AIR that he had previously denied going to police because it was pointless, he said he went to the police once but realised it was pointless after that. But he had previously signed a witness statement with his representatives’ help that expressly denied going to police. I find that this was not a ‘misunderstanding’ as he later said, but was a result of his dishonesty.
36. Even accounting for the lack of Sorani interpreter, the Appellant’s answers in his SIR are inconsistent with his later evidence. He says that the reference to working in a mobile phone shop was because he was tired and didn’t know what he was saying. He later says that the chronology of his travel from Iraq and through Europe was a misunderstanding. I accept that less weight should be attached to the SIR because it was not in his best language. But conversely the SIR adds nothing to his credibility.
37. He claimed in the AIR that M had embezzled 100,000,000 Dinar, which is about £24 million pounds. The sheer scale of this claim is implausible and it is unlikely that a manager at the traffic department could embezzle that amount of money with impunity by stealing half of each traffic fine. It also makes no sense that M, with his extraordinary riches, would murder his friend but not him; would send someone to Greece simply to speak with him; and would have been able to find him in Greece but not be aware whether he had returned to his own family home. In any case, this claim was raised for the first time in his AIR. It is another one of the many examples of the evolution of his claim.”
22. The FtT’s challenged conclusions are set out at [41] to [43]:
“41. In this case, the concession was that the Appellant was attacked by men M sent, because the Appellant had reported M for embezzlement. Despite this, his claim to be at risk on return was rejected as not credible. Ms Rayasat made submissions attacking the Appellant’s credibility, citing the numerous examples above, but did not expressly withdraw the concession about that one incident.
42. For the avoidance of doubt, I reject the submission that MH Albania is authority that a Tribunal is bound by a Respondent’s concession that is plainly contrary to the evidence before that Tribunal. In the first place, there is more evidence before me than was before the Respondent at the time of that concession, ie the RFRL. But the primary reason is that I find that there is a distinction between whether the Respondent may withdraw a concession and whether the Tribunal is also bound by it. To continue to accept the concession despite the evidence flies in the face of the overriding objective.
43. I find that notwithstanding the Respondent’s position on a concession, the only thing that binds a Tribunal is the law and evidence. In this case, a finding that the Appellant was attacked for the reasons he gave would be absurd. Making other findings on the evidence illustrating the Appellant's mendacity but preserving the concession would be dishonest. My findings on the evidence before me is that the Appellant is not at risk in Iraq and has fabricated his entire account.”
23. Consequently, not only are we satisfied that the FtT was not bound by law to follow and make findings in accordance with the respondent’s concession, we also find that its decision to go behind the concession was not contrary to authoritative guidance (subject to any issues of fairness, considered below).
(3)(c) Whether the FtT Acted Fairly
24. The grounds assert that the FtT acted unfairly in going behind the concession. Specifically, at paragraph 4:
“A submits that he was not told at the hearing that the FtTJ would not be bound by the concession and therefore was not given any opportunity to make detailed submissions on this.”
and at paragraph 6:
“A was not given the opportunity to make submissions either on this issue, or whether A should in any event be found credible in relation to the facts conceded by R.”
25. However, the FtT recorded at [39]:
“Mr Mukherjee asserted that the “issued-based approach” in the 2024 IAC Practice Direction meant I am bound by the Respondent’s concession that the Appellant was attacked by M for the reasons he gave, notwithstanding the evidence before me. He cited no authority. I reject this.”
26. It is clear to us that the grounds directly contradict what is recorded in the FtT decision. As noted in Carcabuk & Bla at [4]:
“…grounds do not establish themselves. If allegations are made about the conduct of hearings or that determinations do not properly reﬂect what happened at the hearing, they must be established.”
27. Whilst the grounds were drafted by Counsel appearing below, he has not provided a witness statement confirming their account of events at the hearing. No transcript or recording of the hearing was sought. Counsel below did not even attend the hearing before us.
28. All in all, there is no basis to doubt that the FtT raised with the parties the possibility that it would go behind the concession and gave them the opportunity to make submissions on the point, and that they took that opportunity.
29. That being the case, there is no basis to doubt that the appellant also had the opportunity to make submissions on why his account should nevertheless be believed. Whether he did or not was a matter for him; no substantive challenge is made in the grounds to the FtT’s credibility findings (beyond it not being open to the FtT to go behind the concession, which we have dealt with above). Furthermore, in addition to the FtT raising with the parties the possibility that it would go behind the concession, it also recorded at [41] that the presenting officer made submissions attacking the appellant’s credibility, citing the various examples recorded in the preceding paragraphs.
30. There is no suggestion in the grounds that the appellant was denied the opportunity to lead evidence in rebuttal or that he needed, let alone requested, an adjournment.
31. In short, the appellant has failed to establish that the FtT acted unfairly.
(3)(d) Materiality
32. Given our findings above, it is not necessary to consider materiality. However, for the sake of completeness we have considered whether the outcome would have been the same had the FtT made findings in accordance with the respondent’s concession.
33. It is important to keep in mind what was actually conceded: that the appellant had been attacked by three men, organised by M, because the appellant had reported M for embezzlement.
34. No other aspects of the appellant’s account were conceded. In particular, there was no concession as to the position held by the appellant, let alone M, no concession as to M’s influence and reach, and no concession regarding the appellant’s claim that M sent men to find him in Greece.
35. Each of these had to be established (albeit to the lower standard of proof: a real possibility) in order for the appeal to succeed. The FtT considered and rejected the appellant’s case on each of those elements. It did so because of numerous inconsistencies and because of an evolving account which the FtT concluded was the result of deliberate falsehood. The FtT rejected the conceded element of the appellant’s claim because of other critical, unconceded inconsistencies, and not vice versa. There is simply no conceivable basis to find that the FtT would have allowed the appeal even if it had limited its findings consistently with the respondent’s concession.
(4) Notice of Decision
36. The decision of the First-tier Tribunal did not involve the making of an error on a point of law and stands undisturbed.

Sean O’Brien

Judge of the Upper Tribunal
Immigration and Asylum Chamber

5 October 2026