Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002231
First-tier Tribunal No: PA/62510/2023
LP/13494/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 9th of September 2026

Before

UPPER TRIBUNAL JUDGE NEVILLE

Between

RA
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Chakmakjian, counsel instructed by Descartes Solicitors
For the Respondent: Mr M Parvar, Senior Presenting Officer

Heard at Field House on 4 September 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. RA is an Iraqi national of Kurdish ethnicity from a town within the Sulaymaniyah Governorate of the Iraqi Kurdish Region (“IKR”). In his protection claim of 11 November 2021, he described how he had struck up a sexual and romantic relationship with a woman who had a powerful husband. When the husband caught the two together at her house, RA fled and the woman was murdered. RA hid at the house of a friend, where he was told by his father that the husband was already at the family home looking for him. RA’s father made arrangements to get him out of the country. Since RA’s arrival in the United Kingdom, he has become active in political discourse concerning the authorities in the IKR, taking part in demonstrations and posting on social media.
2. RA claims that on return to the IKR he would face a reasonable likelihood of persecution, or a real risk of harm: (i) from the husband; (ii) from those opposed to his politics; or (iii) on account of having no identity documents and thereby being unable to safely travel or support himself.
3. The Secretary of State, and on appeal a Judge of the First-tier Tribunal (“FtT”), disbelieved RA’s account and dismissed his appeal. RA now appeals to the Upper Tribunal, arguing the following errors of law in the FtT’s decision:
a. Ground 1 – The Judge impermissibly relied on what he considered plausible, without regard to the differing social and cultural context in which the events claimed by RA occurred.
b. Ground 2 – The Judge failed to take account of material evidence.
c. Ground 3 – Inadequate reasons were given for rejecting that RA’s political opinions were genuinely held.
d. Ground 4 – No decision was made on whether RA was a member of a ‘particular social group’ such as to engage the protection of the Refugee Convention.
4. At the hearing I heard helpful submissions from Mr Chakmakjian on behalf of RA and Mr Parvar on behalf of the Secretary of State. I only set them out below where necessary to explain my conclusions.
5. I begin by taking Grounds 1 and 2 together. In opposing the claim that the Judge placed impermissible reliance on his own subjective views on the plausibility of the account, the Secretary of State relies on other reasons given by the Judge for his decision. As that includes what the Judge made of the other evidence, the subject of Ground 2, I take the first two grounds together.
6. There is a well-established requirement for appellate caution before interfering with findings of fact. In Clin v Walter Lilly & Co. Ltd [2021] EWCA Civ 136, Carr LJ (as she then was) surveyed the relevant authorities and set out the following summary:
84. In essence the finding of fact must be plainly wrong if it is to be overturned. A simple distillation of the circumstances in which appellate interference may be justified, so far as material for present purposes, can be set out uncontroversially as follows:
i) Where the trial judge fundamentally misunderstood the issue or the evidence, plainly failed to take evidence in account, or arrived at a conclusion which the evidence could not on any view support;
ii) Where the finding is infected by some identifiable error, such as a material error of law;
iii) Where the finding lies outside the bounds within which reasonable disagreement is possible.
85. An evaluation of the facts is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and appellate courts should approach them in a similar way. The appeal court does not carry out a balancing task afresh but must ask whether the decision of the judge was wrong by reason of some identifiable flaw in the trial judge's treatment of the question to be decided, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion.
86. The degree to which appellate restraint should be exercised in an individual case may be influenced by the nature of the conclusion and the extent to which it depended upon an advantage possessed by the trial judge, whether from a thorough immersion in all angles of the case, or from first-hand experience of the testing of the evidence, or because of particular relevant specialist expertise.
7. Also of importance are the principles collated and summarised in the Practice Direction from the Senior President of Tribunals: Reasons for decisions, in particular that a realistic and reasonably benevolent approach will be taken such that decisions under appeal will be read fairly and not hypercritically. The Judge was not required to identify all the evidence relied upon in reaching his decision, nor express every step of his reasoning.
8. The Judge’s credibility assessment begins as follows:
19. I accept the appellant’s identity. I do not accept his account of an adulterous relationship. I find its formation incredible and its carrying out unbelievable. I do not find it credible that he carried on a liaison in a village for six months going by foot to the married woman's house without being observed.
9. These are, of course, conclusions rather than reasons: Awala v Secretary of State [2005] CSOH 73. An affair going undiscovered for six months is not, as a matter of generality, manifestly incredible; it was incumbent upon the Judge to reason why it was so in this case. The Judge continues:
20. The account goes contrary to all the cultural norms in Iraq. He said at their first meeting she asked for his telephone number. Then they talk daily. After the third visit to his garage he said they went to her house and had sex. He said it was 15 minutes from his garage. I do not see how this could not raise suspicions. He said it went on for 6 months and ended through carelessness, Given the sanction was death for the woman I would expect greater circumspection.
10. I disagree that this forms the entirety of the Judge’s reasoning on credibility. It was meant to be read with the subsequent consideration of RA’s claim to be at risk from his sur place political activity, which in turn referred to RA not having claimed asylum when he passed through Italy. It is likely that the Judge meant to take this as damaging RA’s credibility in accordance with section 8(4) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, but this is not explicit and the extent to which credibility is damaged is unspecified.
11. While Mr Parvar argued that the Judge’s earlier treatment of the expert evidence provides additional reasons for finding RA’s account incredible, it can only do so to a point. The Judge rejects both expert reports as providing any significant support for RA’s account, but nowhere does he find that they positively undermine it. He does acknowledge that so-called honour crimes take place in the IKR.
12. The only negative indicators of credibility identified by the Judge are therefore those appearing at [20], as quoted above, together with the failure to claim in Italy. In KB & AH (credibility-structured approach : Pakistan) [2017] UKUT 491 (IAC), plausibility was described as an adverse indicator of credibility that:
28. …although in itself valid, requires a certain degree of caution in its application. Thus in HK v Secretary of State for the Home Department [2006] EWCA Civ 1037 case at [28]-[30] Neuberger LJ stated:
"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 the story, and the story as a whole, have to be considered against the 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 guard to avoid implicitly recharacterizing the nature of the risk based on their own perceptions of reasonability."
30. Inherent improbability in the context of asylum cases was discussed at some length by Lord Brodie in Awala -v- Secretary of State [2005] CSOH 73. At paragraph 22, he pointed out that it was "not proper to reject an applicant's account merely on the basis that it is not credible or not plausible. To say that an applicant's account is not credible is to state a conclusion" (emphasis added). At paragraph 24, he said that rejection of a story on grounds of implausibility must be done "on reasonably drawn inferences and not simply on conjecture or speculation". He went on to emphasise, as did Pill LJ in Ghaisari, the entitlement of the fact-finder to rely "on his common sense and his ability, as a practical and informed person, to identify what is or is not plausible". However, he accepted that "there will be cases where actions which may appear implausible if judged by...Scottish standards, might be plausible when considered within the context of the applicant's social and cultural background".
29. Reflecting much the same caution, paragraph 5.6.4 of this Home Office Instruction invokes, inter alia, what was said in Y v Secretary of State [2006] EWCA Civ 1223:
"[I]n [ Y] the Court of Appeal stated that in regarding an account as incredible the decision-maker must take care not to do so merely because it would not be plausible if it had happened in the UK. Again, underlying factors may well lead to behaviour and responses on the part of the claimant which run counter to what would be expected."
30. The reference by Neuberger LJ at [28] of HK to the need to consider factors related to plausibility along with "other familiar factors... such as consistency" is also illustrative of the need to avoid basing credibility assessment on just one indicator. We would add that even when focusing just on plausibility, it is not a concept with clear edges. Not only may there be degrees of (im)plausibility, but sometimes an aspect of an account that may be implausible in one respect may be plausible in another.
13. In short, reliance on implausibility alone does not automatically render a credibility assessment unlawful, but care must be taken. I have no doubt that the Judge was entitled to place limited weight on some elements of the account seeming unlikely, but in doing so he was obliged to explain why that was the case.
14. As argued by Mr Chakmakjian, RA had put forward a number of matters as answering those plausibility concerns, or which otherwise had the potential to support the account:
a. The “village” was actually a town, and the Judge’s findings can be taken as placing significance on whether the affair would remain undiscovered in a small community.
b. RA had given an explanation for such seemingly high-risk behaviour. In summary:
i. The woman was her husband’s second wife, and lived separately. Her husband spent the great majority of his time at his main home with his first wife and their children;
ii. RA had made sure to visit her only when he was sure the husband would not visit;
iii. He took great pains to keep the affair a secret; and
iv. “In addition to all of this, I was in love”.
c. RA was just 20 years old at the time.
d. The account was consistent with the accepted proliferation of so-called honour-based violence in the region. As well as providing consistency, this also showed that people do act outside social norms notwithstanding the potential consequences.
e. The Secretary of State had accepted that the account was consistent and coherent.
15. Nowhere in the decision, complained Mr Chakmakjian, are these potentially supportive matters given any consideration, and nor is it explained why they were insufficient to overcome the Judge’s plausibility concerns.
16. I agree. While the Judge did not have to refer to all the evidence relied upon in reaching his decision, he was under an obligation to explain his conclusions on the main issues in dispute. The Secretary of State had argued that the account was implausible. RA had given an explanation in response but is no indication that any of it was taken into account. Some of the matters listed above are implicit in the account considered by the Judge, such as romantic recklessness, but the house not being the husband’s principal residence nor the woman his principal wife was plainly relevant to the risk of discovery that lay at the heart of the Judge’s concerns.
17. While the validity of the Judge’s findings are not aptly tested by considering whether the decision presents a balanced account of the evidence, the reasons must still enable an appellate body to assess whether the decision involved the making of an error on a point of law; see the Practice Direction at para 5. A Judge deciding a protection claim “must show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account”: R (YH) v Secretary of State for the Home Department [2010] EWCA Civ 116 at [24]. That does not require each and every such factor to be rehearsed, but here it is impossible to know from the Judge’s reasoning whether RA’s response to the plausibility concerns was taken into account at all.
18. Mr Parvar sought to defend the decision by reference to the other reasons given by the Judge. I agree with Mr Chakmakjian that such other reasons as are provided are insufficient to explain the rejection of the account, for example the significance of the journey being 15 minutes. While the Judge was entitled to take credibility as being damaged by the failure to make a claim in Italy, it is far from clear that he did so, or to what extent. Coupled with the caution that must apply to plausibility as an adverse indicator, that factor alone is insufficient to establish that the credibility of RA’s account was lawfully rejected. The Judge’s findings on credibility are vitiated by that error of law.
Conclusion
19. As the decision to dismiss the appeal depended on the credibility assessment, it must be set aside. The parties were agreed in those circumstances that the appeal must be re-heard. Given the extent of fact-finding required the appropriate disposal is for the appeal to be remitted to the First-tier Tribunal with no facts reserved.
20. I need not consider the other grounds. The findings challenged under Ground 3 depended on the adverse credibility assessment. The parties agree that the Judge erred as argued under Ground 4; the Judge mistakenly took the Secretary of State as agreeing that RA’s account placed him in a Particular Social Group, whereas it was a matter of dispute that the Judge had to resolve.
Notice of Decision
(i) The decision of the First-tier Tribunal involved the making of an error of law and is set aside.
(ii) The case is remitted to a differently constituted First-tier Tribunal for re-hearing with no facts preserved.

J Neville
Judge of the Upper Tribunal
Immigration and Asylum Chamber

8 September 2026