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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 >> UI2024005505 [2025] UKAITUR UI2024005505 (6 May 2025)
URL: http://www.bailii.org/uk/cases/UKAITUR/2025/UI2024005505.html
Cite as: [2025] UKAITUR UI2024005505

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IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2024-005505

First-tier Tribunal No: PA/56706/2023

LP/02416/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 6 th of May 2025

 

Before

 

UPPER TRIBUNAL JUDGE HIRST

DEPUTY UPPER TRIBUNAL JUDGE HOSHI

 

Between

 

SA

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

 

For the Appellant: Ms Doerr, counsel, instructed by BHD Solicitors

For the Respondent: Ms Isherwood, Senior Home Office Presenting Officer

 

Heard at Field House on 8 April 2025

Order Regarding Anonymity

 

Pursuant to rule 14 Tribunal Procedure (Upper Tribunal) Rules 2008, the anonymity order made by the First-tier Tribunal shall continue in force. No-one shall publish or reveal any information that is likely to lead members of the public to identify the Appellant, including his name or address. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1.              The Appellant appeals with permission against the decision of the First-tier Tribunal dated 27 September 2024 dismissing his appeal on protection and human rights grounds.

2.              The appeal came before the Upper Tribunal for an error of law hearing on 8 April 2025. Having heard submissions from the parties we reserved our decision. For the reasons given below, we have: (1) concluded that there were material errors of law in the decision of the First-tier Tribunal; and (2) set aside the decision in its entirety.

Background

3.              The Appellant is an Iraqi national of Kurdish ethnicity from the Kurdistan Region of Iraq ('KRI'). He made a protection and human rights claim in the UK on 19 September 2021.

4.              In short summary, the claimed factual basis for the Appellant's claim was as follows. He worked at a tomato paste factory that was owned by a corrupt faction of the Kurdistan Democratic Party ('KDP'), the ruling party in the KRI. When he raised whistleblowing complaints to the factory's management about poor hygiene standards there, he was told to desist. He then provided a journalist with information about and evidence of the poor hygiene standards at the factory. In turn, the journalist provided the information and evidence to the Health Committee of the Kurdistan Regional Parliament (which was independent of the corrupt faction of the KDP that owned the factory). This led to Parliamentary officials attending at the factory for an inspection; however, they were denied entry. Shortly thereafter, the factory's management called a meeting at which employees (including the Appellant) were informed that the KDP would be provided with whistleblowers' names. Within days, the Appellant received death threats by telephone and was then kidnapped from his home by three armed men in military uniform. They took him to a field outside his village and severely beat him (he sustained injuries but did not receive professional medical treatment). When fellow villagers came to the scene, his assailants departed; however, before doing so, they threatened that they would return to kill him. He then fled Iraq and made his way to the UK to make his claim.

5.              The Respondent made a decision to refuse the Appellant's claim on 5 September 2023. She accepted the Appellant's claimed identity, that he worked in the factory, and that he was discontented about its hygiene standards. However, she did not accept that he had come to the adverse attention of the KDP as a result, and so she did not accept that he would be at risk on return from the KDP. Further, she did not accept that he would be at risk on return due to the absence of documentation. She refused his claim on Refugee Convention, humanitarian protection and Articles 2, 3 and 8 ECHR grounds.

6.              The Appellant's appeal against the Respondent's 5 September 2023 refusal decision came before the First-tier Tribunal on 6 June 2024. By a decision dated 27 September 2024, the appeal was dismissed on Refugee Convention, humanitarian protection and Articles 2 and 3 ECHR grounds (the Appellant had not appealed on Article 8 ECHR grounds). In short summary, the First-tier Tribunal concluded that the Appellant was not a credible witness and that he would not be at risk on return from the KDP or due to the absence of documentation.

7.              The Appellant sought permission to appeal on two grounds. First, he contended that there were 10 discrete errors of law in the First-tier Tribunal's adverse credibility finding. Second, he contended that there were further errors of law in the First-tier Tribunal's conclusion on risk on return due to the absence of documentation. Permission to appeal was granted on both grounds by the Upper Tribunal on 3 February 2025.

Summary of the parties' submissions

8.              On behalf of the Appellant, Ms Doerr adopted her helpful skeleton argument and made further oral submissions. Having concisely summarised the facts of the Appellant's claim and the law on the narrow circumstances in which adverse credibility findings may be overturned on appeal, Ms Doerr made submissions on Ground 1.

9.              They may be summarised as follows: (1) it was unreasonable to find that the Appellant had provided no details of how he initially contacted the journalist - both the Appellant and the journalist had said it was by WhatsApp; (2) it was unreasonable to factor-in that the journalist had not provided the Appellant's name to the Parliamentary Committee or named him in an article - it was the Appellant's case that his identity was known to the corrupt faction of the KDP that owned the factory because of his earlier internal complaints; (3) it was unreasonable to factor-in that the journalist had not been targeted himself - it was not a part of the Appellant's case that the identity of the journalist had come to the attention of the corrupt faction of the KDP that owned the factory; (4) it was unreasonable to find that the Appellant had been unclear as to why the factory's management had called the meeting with employees after Parliamentary officials had attended at the factory - he had been clear that it was to warn whistleblowers; (5) it was unreasonable to factor-in that the Appellant was unable to provide the name or rank of the person who made death threats to him - there was no good reason to consider that the person would provide this information; (6) it was unreasonable to factor-in that the Appellant did not require professional medical treatment - there was no sustainable basis on which to conclude that such treatment would have been necessary; (7) it was unreasonable to find that the factory would not have admitted government inspectors because the KDP are the ruling party in the KRI - this finding missed the nuance of the Appellant's account, according to which he feared a corrupt faction of the KDP of which the Parliamentary Committee was independent; and (8) the First-tier Tribunal failed to resolve a material dispute of fact as to whether or not the factory was owned by a corrupt faction of the KDP.

10.          Ms Doerr then made submissions on Ground 2. They may be summarised as follows: (1) if we were persuaded that the First-tier Tribunal's adverse credibility finding was unsustainable, its findings in respect of risk on return due to the absence of documentation would also fall; and (2) in any event, the finding that the Appellant had previously held an INID card was unsustainable in circumstances where it was his case that he had not (although she accepted that he said that he had previously held an INID card in his asylum questionnaire and had not explicitly corrected this purported mistake in writing).

11.          We note that Ms Doerr abandoned the points made in the grounds of appeal as to various matters purportedly not being put to the Appellant in cross-examination.

12.          For the Respondent, Ms Isherwood adopted the Respondent's rule 24 response and made further oral submissions. They may may be summarised as follows: (1) the grounds of appeal amounted to no more than a disagreement with the First-tier Tribunal's decision; (2) in the main, the First-tier Tribunal's findings were sustainable on the evidence before it (including the finding that the Appellant had previously held an INID card); (3) the finding as to the Appellant not receiving professional medical treatment was problematic, but it was not sufficient on its own to amount to a material error of law; and (4) it was not incumbent on the First-tier Tribunal to make a finding as to the ownership of the factory.

Discussion and decision

13.          We acknowledge that the First-tier Tribunal's decision included a detailed and careful self-direction as to the approach to the assessment of credibility in protection appeals at §§28-31. We also remind ourselves that an appeal court should not interfere with a trial judge's conclusions on primary facts unless it is satisfied that they were plainly wrong, i.e. only if the judge's conclusion was rationally insupportable ( Volpi v Volpi [2022] EWCA Civ 464, [2022] 4 WLR 48, per Lewison LJ at §2).

14.          Nevertheless, on careful consideration, we have come to the conclusion that the First-tier Tribunal erred in law in rejecting the credibility of the Appellant's claimed account as follows:

(1)            At §43, the First-tier Tribunal found, on the Appellant's own evidence, that he would have required medical treatment if he had been beaten as badly as claimed. Ms Isherwood accepted that this was a problematic finding. We agree - we consider it to be an unreasonable one. Clearly, the First-tier Tribunal has no medical expertise and there was no other sustainable basis on which it could so confidently conclude that injuries sustained during a beating that took place several years would certainly have required professional medical treatment, in particular in circumstances where it was the Appellant's case that he did in fact receive some treatment for his injuries from his fellow villagers (as described at §18 of the First-tier Tribunal decision).

(2)            At §43, the First-tier Tribunal noted "[The Appellant] was not able to identify the full name of the person who he alleges called him [to make a death threat] or his position in the KDP, an organisation in which the Appellant himself had had no involvement." We consider this reasoning to be unreasonable. There is simply no good reason to suppose that the person would have provided his full name or position within the KDP to the Appellant. Further, the passage " an organisation in which the Appellant himself had had no involvement" is a curious one - we consider that the absence of involvement in the KDP would, in all likelihood, mean that the Appellant had no prior knowledge of the person or their position. That is, it would make it less likely that the Appellant would know the person's full name and position (not more likely, as this passage suggests when it is read in context).

(3)            At §40, the First-tier Tribunal noted that it was not said by the Appellant that the journalist had provided his name to the Parliamentary Committee or named him in an article - the inference being that the Appellant had failed to explain how his identity came to the knowledge of the KDP. We consider this reasoning to be unsupported by the evidence. The Appellant's case on this issue was clear. His identity came to the knowledge of the corrupt faction of the KDP that owned the factory because of his earlier internal complaints; that is, when a person unknown to the owners blew the whistle, they (correctly) presumed that it was the Appellant because of his earlier internal complaints. Therefore, the fact that he was not identified by the journalist was irrelevant.

(4)            At §§13, 41 and 44, the First-tier Tribunal noted that there was no suggestion that the journalist had come to the adverse attention of the KDP, notwithstanding country evidence to the effect that journalists were at heightened risk in the KRI. We consider this reasoning to be unreasonable. It was never a part of the Appellant's case that the journalist's identity had been discovered by the corrupt faction of the KDP that owned the factory (by contrast to his own identity, which came to its knowledge as a result of his earlier internal complaints - see above). Of course, it might have assisted the Appellant's case if the journalist's identity had somehow been discovered and he had been targeted as a consequence; but the fact that, by chance, this did not occur could not reasonably be found to undermine the Appellant's credibility.

(5)            At §42, the First-tier Tribunal found that it was not credible that the factory would not have admitted government inspectors because the KDP are the governing party in the KRI. We consider this finding to be unreasonable. We accept Ms Doerr's submission that it missed the nuance of the Appellant claim. The inspectors were not said to be government officials, they were said to be Parliamentary officials, and the factory was said to be owned by a corrupt faction of the KDP of which the Parliamentary Committee was independent. Therefore, there is no inherent implausibility in the factory refusing to admit the inspectors.

15.           Cumulatively, we consider that the errors of law identified above were clearly material; it certainly cannot be said that any reasonable Tribunal would have come to the same conclusion on the Appellant's credibility if these errors had not been made (see SSHD v AJ (Angola) [2014] EWCA Civ 1636 per Sales LJ, as he then was, at §49).

16.          We therefore allow the appeal on Ground 1 and set aside the First-tier Tribunal's decision in its entirety. In this context, we note that we accept Ms Doerr's submission that the First-tier Tribunal's conclusion on risk on return due to the absence of documentation falls with its conclusion on the Appellant's credibility. That is because the former turned in material part on the credibility of the Appellant's claimed degree of contact with his family members in Iraq, which the First-tier Tribunal also rejected (see §45). In such circumstances, it is not necessary for us to proceed to consider the Appellant's Ground 2.

Disposal

17.          The representatives were in agreement that if we found a material error of law in respect of Ground 1, then the appeal should be remitted to the First-tier Tribunal for a de novo hearing.

18.          Having considered the Practice Direction and Practice Statement, and also having regard to the guidance in AEB v SSHD [2022] EWCA Civ 1512, [2023] 4 WLR 12, we consider that this is a case in which the nature and extent of the necessary fact-finding means it is appropriate to remit the appeal to the First-tier Tribunal for a de novo hearing.

Anonymity

19.          We acknowledge the importance of the principle of open justice. However, we consider that the anonymity order made by the First-tier Tribunal should remain in force. That is because the Appellant is a protection claimant and we consider that disclosing his identity could potentially give rise to unacceptable risks to him in the event that he is removed to Iraq.

Notice of Decision

The decision of the First-tier Tribunal contains material errors of law and is set aside in its entirety.

The appeal is remitted to the First-tier Tribunal for a de novo hearing before a differently constituted Tribunal.

 

 

B. Hoshi

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

30 April 2025

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