Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-003042
First-tier Tribunal No: PA/59152/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

5th October 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE RICHARDS

Between

VY
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr T. Hussain, Counsel
For the Respondent: Ms A. Everett, Senior Home Office Presenting Officer

Heard at Field House on 18 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

Introduction
1. This is an appeal by VY, an Iraqi Kurd, against the decision of the First-tier Tribunal dated 7 April 2026 dismissing their appeal against a decision of the Respondent dated 12 October 2023 to refuse his asylum and protection claim made on 21 October 2021.
2. The Appellant’s claim is founded on the ground of religion as he says he is an atheist and if he returns to Iraq he fears being killed by his family or other non-state actors, and that he lacks civil documentation, would face destitution there, and that there is no sufficiency of protection available to him in Iraq, and that internal relocation would not be safe or reasonable.
3. The First-tier Tribunal found that the Appellant has not established a well-founded fear of persecution for a Convention reason, and that there is not a real risk of serious harm on return.
4. The Appellant applied for permission to appeal the First-tier Tribunal’s decision, and on 11 June 2026 a different Judge to the person who conducted the initial appeal hearing granted permission stating that it was arguable that there was a failure to apply a structured approach as identified in HJ (Iran) and HT (Cameroon) v SSHD [2010] UKSC 31.
5. The case came before me on 18 September 2026 whereby I heard submissions from both parties and reserved my judgement, which I am delivering here.
6. The oral submissions have been audio recorded and thus I do not set them out here. I have also considered the bundle of 303 pages. Ms Everett had not received this bundle for reasons that were unclear, however she was content that she had received all of the relevant papers and was content to proceed with the hearing.
7. The Judge did make an anonymity order in their decision and there was no application before us to discharge or vary it. We have had regard to Guidance Note 2022 No.2: Anonymity Orders and Hearings in Private and Kambadzi v SSHD [2011] UKSC 23 as well as the strong public interest in open justice and have decided that the United Kingdom’s obligations towards an applicant for international protection outweigh the open justice considerations and we have maintained the anonymity order.
Grounds of appeal
8. Ground 1 asserts that the First-tier Tribunal Judge (“the Judge”) failed to correctly apply HJ (Iran) when finding any discretion the Appellant would exercise in expressing atheism if he was returned to Iraq would be personal choice rather than fear of persecution.
9. Ground 2 asserts that the Judge applied the wrong standard of proof as to whether the Appellant would be at risk from friends or other non-state actors when he stated that there is “no direct evidence” identifying the attackers and “no reliable evidence” of ongoing risk to the Appellant.
10. Ground 3 asserts that the Judge failed to consider the cumulative risk to the Appellant and only considered each potential risk factor in isolation.
11. Ground 4 asserts that the Judge mischaracterised the evidence when he rejected the Appellant’s evidence by stating that there was “no reliable evidence that the Appellant was disowned” and “no continuing adverse interest from family”.
12. Ground 5 asserts that the Judge provided inadequate reasons for rejecting the risk said to arise from the Appellant’s family and that the Judge applied an incorrect threshold as to the nature of any such risk.
13. Ground 6 asserts that the Judge failed to consider relevant factors when considering the issue of internal relocation.
14. Ground 7 asserts that the Judge failed to provide adequate reasons for his findings regarding help the Appellant would receive regarding documentation, and failed to correctly apply SMO & KSP (Civil status documentation; Article 15) Iraq CG [2022] UKUT 00110 (IAC).
Error-of-law
Ground 1
15. The relevant portions of the Judge’s decision are found at his [22-24]:
22. I find that there is no continuing adverse interest in the Appellant from his family, former friends, or any other actor in Iraq on account of his atheism. Further, I am satisfied that any discretion the Appellant may exercise in the expression of his beliefs on return would arise from personal choice rather than a well-founded fear of persecution and does not engage the principle in HJ (Iran) v SSHD [2010] UKSC 31.
23. On the totality of the evidence, I am not satisfied that the Appellant has established a well-founded fear of persecution for a Convention reason. Applying the standard in R v SSHD ex parte Sivakumaran [1988] AC 958, the Appellant has not shown a real risk of serious harm on return. I do not accept that he is at risk from his family: there is no evidence of threats to life, sustained violence or disownment, and the Appellant’s own account places his father’s reaction at its highest as anger and short-term restraint rather than persecution.
24. In relation to the wider risk, the background evidence indicates that atheists in the Kurdistan Region of Iraq are not subject to systematic persecution and that societal tolerance is relatively greater than in federal Iraq. The Appellant has not demonstrated that he would be required to conceal his beliefs in order to avoid persecution, nor that any such discretion would arise from a real risk rather than personal choice, consistent with the guidance in HJ (Iran) v SSHD [2010] UKSC 31.
16. What the Judge had to do in this portion of his decision was decide whether the Appellant had a well-founded fear of persecution because he is an atheist. In doing so, the Judge was bound to follow the structured approach provided in [82] of HJ (Iran). Although that case considered the approach to be taken when considering a risk arising out of sexuality rather than atheism, the same approach needed to be followed (RT (Zimbabwe) v SSHD [2012] UKSC 38).
17. HJ (Iran) says at [82]:
When an applicant applies for asylum on the ground of a well-founded fear of persecution because he is gay, the tribunal must first ask itself whether it is satisfied on the evidence that he is gay, or that he would be treated as gay by potential persecutors in his country of nationality.
If so, the tribunal must then ask itself whether it is satisfied on the available evidence that gay people who lived openly would be liable to persecution in the applicant's country of nationality.
If so, the tribunal must go on to consider what the individual applicant would do if he were returned to that country.
If the applicant would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well-founded fear of persecution - even if he could avoid the risk by living "discreetly".
If, on the other hand, the tribunal concludes that the applicant would in fact live discreetly and so avoid persecution, it must go on to ask itself why he would do so.
If the tribunal concludes that the applicant would choose to live discreetly simply because that was how he himself would wish to live, or because of social pressures, e g, not wanting to distress his parents or embarrass his friends, then his application should be rejected. Social pressures of that kind do not amount to persecution and the Convention does not offer protection against them. Such a person has no well-founded fear of persecution because, for reasons that have nothing to do with any fear of persecution, he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay.
If, on the other hand, the tribunal concludes that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then, other things being equal, his application should be accepted. Such a person has a well-founded fear of persecution. To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect – his right to live freely and openly as a gay man without fear of persecution. By admitting him to asylum and allowing him to live freely and openly as a gay man without fear of persecution, the receiving state gives effect to that right by affording the applicant a surrogate for the protection from persecution which his country of nationality should have afforded him.
18. The use of the word “must” by the Supreme Court means that that the Judge was obliged to follow this structured approach. In my judgment, (and as was conceded by Ms Everett for the Respondent), the Judge clearly did not do so.
19. The first thing the Judge needed to do was find whether he was satisfied that the Appellant was an atheist – this he did and it was an agreed issue between the parties.
20. Next he needed to determine whether he was satisfied that atheists who lived openly would be liable to persecution in Iraq; specifically in the Appellant’s context where the risk is said to arise from non-state actors, was the Judge satisfied that if an atheist in the Appellant’s context lived openly he would be liable to persecution from his family or others in his community.
21. This the Judge attempts to do at his first sentence in [22] – “I find that there is no continuing adverse interest in the Appellant from his family, former friends, or any other actor in Iraq on account of his atheism.” However, this sentence finding that there is “no continuing adverse interest in the Appellant” is a finding of the present level of adverse interest based on the past, and is not a complete forward-looking finding on the future risk to the Appellant if returned to Iraq in light of his behaviour once he returns to Iraq. As such it is an insufficient finding. The Judge continues in [22] to find that any discretion he exercises in relation to his beliefs would arise from personal choice. This statement omits crucial elements of what HJ(Iran) requires the Judge to do, in particular to make clear findings on what the Appellant would do on return – the conditional statement “any discretion the Appellant may exercise…” is insufficient for this in my judgment – and subsequently if the Judge were to find that he would live discreetly, he needed to make findings on why he would do so.
22. Thus in my judgment the Judge has failed to adequately assess whether the Appellant has a well-founded fear of persecution by failing to make adequate findings on what the Appellant would do if returned and failing to apply the structured approach required by HJ (Iran).
23. Although Ms Everett argued that even though she agreed the Judge erred in relation to HJ (Iran), the case was nevertheless inevitably bound to be found in the Respondent’s favour and thus the error was not material, I do not accept this as persuasive. In my judgment the failure to make findings and to follow HJ (Iran) adequately are so fundamental to the overall decision as to make the whole decision unreliable and thus it does constitute a material error-of-law.
24. Having found a material error-of-law in relation to Ground 1, I need not, and did not, go on to consider Grounds 2-7.
25. Both parties submitted that if I found Ground 1 to be made out, then the case should be remitted to the First-tier Tribunal. I had regard to [7.2-7.3] of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal as well as the submissions of both parties and have determined that the case shall be remitted to the First-tier Tribunal for a de novo hearing.
26. Nothing in this decision should be taken as an indication of whether or not the Appellant’s appeal will ultimately succeed or not.

Notice of Decision
The decision of the First-tier Tribunal made on 7 April 2026 involved the making of a material error on a point of law.
The decision of the First-tier Tribunal is set aside, and the case is remitted to the First-tier Tribunal for a de novo hearing before a different Judge than the one who made the decision on 7 April 2026. No findings are preserved.

Judge Richards

Judge of the Upper Tribunal
Immigration and Asylum Chamber

29 September 2026