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United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments


You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> UI2024000640 [2025] UKAITUR UI2024000640 (8 May 2025)
URL: http://www.bailii.org/uk/cases/UKAITUR/2025/UI2024000640.html
Cite as: [2025] UKAITUR UI2024000640

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IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case No: UI- 2024-000640

First-tier Tribunal No: PA /00419/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

8 th May 2025

 

Before

 

UPPER TRIBUNAL JUDGE LINDSLEY

DEPUTY UPPER TRIBUNAL JUDGE LAY

 

Between

 

AH

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr J Metzer, of Counsel, instructed by W Legal Ltd

For the Respondent: Mr K Ojo, Senior Home Office Presenting Officer

 

Heard at Field House on 6 May 2025

 

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.              The appellant is an Iraqi Kurd from the IKR, and thus a citizen of Iraq, and was born in April 1990. He came to the UK and claimed asylum on 20 th February 2018. This claim was refused by the respondent on 11 th June 2019, and his appeal was dismissed by the First-tier Tribunal in a decision dated 11 th December 2019 at a hearing the appellant failed to attend. On 14 th October 2020 the appellant made a fresh protection claim with new supporting evidence. This evidence concerned the death of his brother, TB, in April 2019, who had, it is said, been murdered as a result of the appellant having eloped from the IKR with his girlfriend. This application was refused on 27 th May 2022 with a right of appeal. The appellant's appeal against the decision was dismissed by a First-tier Tribunal Judge in a decision promulgated on 2 nd February 2024.

2.              Permission to appeal was granted by Upper Tribunal Judge Bulpitt on 7 th March 2025 on the basis that it was arguable that the First-tier Judge had erred in law. It is found to arguable that there was a failure to consider the Facebook evidence of threats and provide a reasoned response to this evidence, and also that the First-tier Tribunal mistakenly found there was no documentary proof about the charge and conviction of men for the appellant's brother's murder.

3.              The matter now comes before us to determine whether the First-tier Tribunal had erred in law, and if so, whether any such error was material and whether the decision of the First-tier Tribunal should be set aside.

Submissions - Error of Law

4.              In the grounds of appeal, and in a skeleton argument and submissions from Mr Metzer, it is argued, in short summary, that the First-tier Tribunal erred in law as follows.

5.              Firstly, it is argued that the First-tier Tribunal erred by failing to have regard to the evidence of threats to the appellant that came to him via Facebook. This evidence was produced in a supplementary bundle after the hearing had been adjourned for it to be put before the First-tier Tribunal and consisted of a witness statement from the appellant together with original and translated screenshots of the messages via Facebook from two individuals unknown to the appellant dated 19 th April 2020 and 3 rd July 2020. It is argued that this evidence makes reference to the death of the appellant's brother and shows a real risk of honour-based violence for the appellant if he were returned to Iraq, and is evidence of past threats of serious harm meaning cogent reasons would be needed to show the appellant was not at real risk of serious harm now, applying paragraph 339K of the Immigration Rules. It is argued that the First-tier Tribunal Judge did not engage specifically with this evidence except to state at paragraph 29 of the decision that "in the round I cannot find it is reasonably likely that they are a reliable record of events". Secondly, it is argued that there is an error of law by the First-tier Tribunal not deciding and reasoning the weight to be given to this evidence of threats via Facebook direct messaging. Mr Metzer took us to these messages and the appellant's statement that he did not know the senders. He argued that the violent death of TB made the threats reasonably likely and that this fresh evidence of threats was not properly examined and given weight, and absent any finding the Facebook messages were forged, this ought to have happened. Mr Metzer argued that there was substantial evidence of the violent death of the appellant's brother TB, and that this was not given sufficient weight, particularly as the Facebook messages give the nexus to an honour killing by referring to honour and the plight of the appellant's brother.

6.              Thirdly, it is argued that there was a failure to have proper regard to the evidence of the appellant's brother, TB, having been killed. It is said at paragraph 29 of the decision there is no "documentary proof" of the appellant's brother's killers having been charged and convicted in a court in the IKR. In fact, the appellant submitted a document with the identities of those who had confessed to this killing from the Investigation Department of the Security Agency in the IKR, plus a news article from Rudaw Media Network relating to the criminal justice proceedings dated 13 th June 2022, other documentation from social media about his death and a death certificate. It is argued that, if the Facebook messages and evidence going to TB's death had been dealt with properly, this could have led to a different outcome when placed in the balance with the other findings against the appellant's credibility, which, it is accepted, are not challenged in this appeal.

7.              The respondent filed no Rule 24 response but defended the decision of the First-tier Tribunal in oral submissions from Mr Ojo. In short summary he argued that the approach the First-tier Tribunal took to the first decision lawfully applied Devaseelan and looked at credibility correctly. The First-tier Tribunal was not obliged to make reference to every single piece of evidence before it when determining an appeal, and sufficient reference is made to both the documents regarding the claimed death of the appellant's brother and the Facebook evidence. It sufficed to find that the evidence was not reliable, and applying Tanveer Ahmed there was no need to make findings on whether it was a forgery or not, just whether when considered in the round with the credibility of the appellant it was reliable or not. It was central to the appellant not having credibility that the First-tier Tribunal had found, as found by the first First-tier Tribunal, that evidence placed him in Austria at the time when he said that he had caused the "honour" problems to himself and his family by eloping with his girlfriend in Iraq, which in turn led to his brother's death and his own real risk of serious harm. There was simply no reliable evidence to link the apparent violent death of his brother TB and any risk of harm to the appellant, and it was accurately said by the First-tier Tribunal there were no court documents which would showed TB's death was an honour killing.

Conclusions - Error of Law

8.              The starting point for the First-tier Tribunal was the previous 2019 First-tier Tribunal decision which found that the appellant had not produced a credible account due to internal and external inconsistencies, particularly relating to the fact that evidence from the Austrian authorities put him in Austria in March and April 2016 whereas he had said he returned to Iraq to be with his girlfriend in December 2015, had proposed to her in early 2016 and was seen by her brother together with him in February or March 2016. This is set out at paragraphs 5 to 7 of the decision of the First-tier Tribunal under challenge, with an appropriate directions with respect to Devaseelan at paragraphs 15, 16 and 20 of the decision.

9.              The First-tier Tribunal made the following findings against the appellant's credibility in this appeal which are not challenged. His explanation for not attending his appeal in December 2019 is found not to be credible at paragraphs 24 and 25 of the decision. His failure to raise his brother's death in that appeal is found to be damaging, as set out at paragraphs 26 to 27 of the decision. At paragraph 28 of the decision his lack of a coherent account of how he got the documents relating to his brother's death is found to be troubling, particularly as he had said in 2019 that he was not in touch with his family and appears to maintain that he is now disowned by his family. At paragraph 32 of the decision it is found that the new explanation from the appellant that he was threatened by telephone by his girlfriend's family whilst in Austria does not fit with the answers given by him at his asylum interview, which specifically refer to his being seen by his former girlfriend's brother in Iraq, and as such, as found by the first First-tier Tribunal, his claim to be at real risk of serious harm as a result of this incident is not credible as he says he was seen with his girlfriend in Iraq in February/ March 2016 when he has been shown to be in Austria at this time.

10.          The Facebook messages challenge is essentially one which argues that insufficient reasons are given for not giving them weight as evidence of honour -based threats of serious harm against the appellant referencing the death of his brother. We accept that on their face they do provide a link to the death of the appellant's brother and a threat of serious harm to the appellant with honour being the motive. The First-tier Tribunal considers these messages at paragraph 29 of the decision, and correctly applies Tanveer Ahmed by looking to consider them in the round to assess whether they are reliable. We do not find that there was any obligation to consider whether the items of evidence (that relating to the death of TB and these messages) were forgeries, and reiterate that the obligation on the First-tier Tribunal was simply to consider whether the evidence was reliable when viewed in the round. This was the approach found to be correct in the decision of a Presidential Panel of the Upper Tribunal in QC (verification of documents; Mibanga duty) China [2021] UKUT 33, which found Tanveer Ahmed continued to be good law. We find that it is acknowledged by the First-tier Tribunal that the messages were, if taken as reliable, evidence of communication from "persecutors". We find, in the context of the unchallenged negative credibility findings of the First-tier Tribunal set out above, that the First-tier Tribunal was entitled to find that the Facebook messages, which had been produced late in the proceedings before them by the appellant, had not been shown to the lower civil standard of proof to be reliable, and did not need to say anything further.

11.          The documents concerning the death of TB include a newspaper article which references people having been sentenced to death on the basis of confessions for the murder of TB; Investigation Department documents recording that there was a confession for the killing of TB on 18 th December 2018 by three men; a death certificate showing that the Investigation Agency reported the death and it was caused by "garter strangulation" (which we take to mean a ligature was used to strangle TB in a non-accidental violent killing); a Sharia Allotment document evidencing TB being dead; and an autopsy document which finds TB was strangled and had also been shot in the leg. The First-tier Tribunal finds firstly that these documents do not demonstrate the appellant's brother's death - we understand this finding was due to the concerns about the provenance of these documents outlined in the previous paragraph, but in any case the First-tier Tribunal goes on to consider the issue in the alternative on the basis that they did indeed evidence TB's violent death, and make findings as to whether they provided a link to any honour based crime of a family member of the appellant. We find that the First-tier Tribunal accurately, and lawfully, concludes: "None of the documents provided show a reasonably likely nexus between any death that occurred and honour-based crime." This is because there is no reference to honour in any of the documents provided. The final sentence of paragraph 29 of the decision states: "The appellant says that his brother's killers were charged and convicted in a court in the IKR, but he has failed to seek and produce any documentary proof of this." We find that this is also accurate, there is no court document amongst those relating to TB's death. We also note that the appellant says in his evidence that there had been court proceedings; that he has not explained why he has not produced court documents; and if TB's death was an honour killing these documents might reasonably be expected to have included sentencing remarks which related to motive. We find that this was a reasonable and rational observation for the First-tier Tribunal to make when considering the evidence in the round.

12.          It follows that we do not find that the grounds are made out, and uphold the decision of the First-tier Tribunal dismissing the appeal, which we finds deals with all of the evidence before it and provides more than adequate reasons for dismissing the appeal and finding the appellant not to be a credible witness.

Decision:

1.       The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

2.       We uphold the decision of the First-tier Tribunal dismissing the appeal.

 

Fiona Lindsley

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

7 th May 2025

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