Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-004038
First-tier Tribunal No: PA/59709/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

9th October 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE GIBBS

Between

AW
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr. West, Counsel instructed by Wimbledon Solicitors
For the Respondent: Mr. Tufan, Senior Presenting Officer

Heard at Field House on 7 October 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, and any family member 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. This is an appeal brought by the appellant against the decision of First-tier Tribunal Judge Fern (the Judge) to dismiss the appellant’s appeal against a decision made by the Secretary of State for the Home Department refusing his protection and human rights application.

Background
2. The appellant is a citizen of Iraq and of Kurdish ethnicity. The appellant claims to fear serious harm from his wife’s brother because the appellant has been unable to father a child with his wife and he refuses to divorce her. The appellant’s evidence is that he has been attacked by his brother-in-law but the police will not protect him because his brother-in-law is a high-ranking officer in the PUK peshmerga and is part of the Mirawdale tribe. The respondent refused the appellant’s claim based primarily on his credibility.
3. The Judge dismissed the appeal on the basis that she was not satisfied that the appellant was a credible witness.
Grounds of Appeal
4. The Grounds of Appeal are threefold.
5. Ground 1 asserts that the Judge made findings on Article 8 ECHR when the appellant did not rely on such grounds;
6. Ground 2 is that the Judge made findings on the appellant’s credibility relying on s.8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 when this was not raised by the respondent;
7. Ground 3 is that the judge failed to make any or adequate findings on the core issue in the appeal i.e. whether the events that the appellant claimed happened in Iraq had indeed occurred.
Grant of Permission
8. Upper Tribunal Judge Aspinall granted permission to appeal in a decision dated 21 July 2026.
9. Permission was not granted on ground 1. Permission was however granted on grounds 2 and 3:
“3…It is arguable that the Judge gave considerable adverse weight to the appellant’s passage through third countries under s.8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 without adequately identifying the relevant statutory conduct or explaining why the statutory conditions were missed.
4. It is also arguable that the Judge did not make sufficiently clear and reasoned findings upon the alleged threats, assault and police response which formed the central factual basis of the claimed risk of serious harm. Those matters were capable of affecting the assessment of credibility and the outcome of the humanitarian protection appeal.”
10. The respondent filed a rule 24 response to the appeal.
11. 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
12. I remind myself of the need for appropriate judicial restraint before interfering with a decision of the First-tier Tribunal, particularly where the fact-finding Judge has considered evidence from a variety of sources and has undertaken an evaluation of it, set in the applicable legal framework. I also remind myself that no decision will be perfect, that such decisions must be read holistically and sensibly, and that there is no requirement to give reasons for reasons.
Ground 2
13. It is not a matter of dispute that the respondent did not refer to s.8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 in either the reasons for refusal letter or the respondent’s review as a reason to doubt the appellant’s credibility. Further, that the issue was not addressed in the appellant’s witness statement and not raised in cross examination.
14. Contrary to Mr West's submission, I am satisfied that, where the statutory conditions are met, s.8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 requires a tribunal to take the relevant conduct into account when assessing credibility. However, I find that the Judge did not adequately explain how the statutory provisions were engaged on the facts of this case. In particular, she stated that the appellant's failure to claim asylum in other EU countries damaged his credibility but did not identify whether he had failed to take advantage of a reasonable opportunity to claim asylum or otherwise explain why the relevant statutory conditions were satisfied [36].
15. Further, I am satisfied that the Judge had no evidential basis upon which to reach that conclusion. The issue had not been raised in the reasons for refusal letter, the respondent's review, or in cross-examination. As a consequence, the appellant was not afforded a fair opportunity to give evidence or provide an explanation in relation to the conduct relied upon before an adverse credibility finding of significant weight was made against him.
16. In these circumstances I am therefore satisfied that the Judge made an error of law. I find that it is clearly a material error because she concluded that this “lessens his credibility to a considerable degree.”
Ground 3
17. For the sake of completeness, I will also consider the merits of Ground 3. This is that the Judge failed to make adequate findings on the core issue of the credibility of the appellant’s fear of his brother-in-law.
18. I am satisfied that this ground is made out. Even the wording of the respondent’s Rule 24 Response appears to recognise a lack of explicit findings from the Judge “…it is implicit that she has found the alleged attack/threats from the brother-in-law were not accepted”.
19. I find that the Judge failed to make sufficiently clear findings on the central elements of the appellant's claim. Whilst the decision contains a detailed summary of the evidence, the subsequent credibility assessment does not clearly identify why the judge reached the conclusions that she did. For example, at [40] the Judge stated, "It is not plausible that he has stopped contact with these people” but did not explain why that conclusion was reached. Read as a whole, the decision does not provide sufficient reasoning to enable the parties to understand why the central account was rejected.
20. I am therefore satisfied that Ground 3 also discloses an error of law that is clearly material.
Disposal
21. Mr. West expressed the view that the matter should be remitted to the First-tier Tribunal for a de novo hearing because a full and extensive fact-finding process is required. Mr. Tufan indicated that he was neutral on the issue.
22. I find that the appeal is remitted to the First-tier Tribunal at Hatton Cross, for a rehearing before any Judge other than First-tier Tribunal Judge Fern. No findings of fact are preserved.
Notice of Decision
23. The decision of the First-tier Tribunal dated 25 May 2026 is set aside for a material error of law.

L K Gibbs
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
8 October 2026