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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 >> UI2024005773 [2025] UKAITUR UI2024005773 (28 April 2025)
URL: http://www.bailii.org/uk/cases/UKAITUR/2025/UI2024005773.html
Cite as: [2025] UKAITUR UI2024005773

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IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case No: UI- 2024-005773

First-tier Tribunal No: PA /56241/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

28 th April 2025

 

Before

DEPUTY UPPER TRIBUNAL JUDGE MOXON

 

Between

RQA

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr Malik

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

 

Heard at Phoenix House (Bradford) on 11 April 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 appeals, with permission, the decision, dated 18 th May 2024, of a judge of the First-Tier Tribunal ("the Judge") who upheld the Respondent's decision to refuse the Appellant's claim for asylum. It is argued that the decision contains material error of law.

 

Background

 

2.       The Appellant is an Iraqi national of Kurdish ethnicity from the Independent Kurdish Region of Iraq ("the IKR"). He was born in 1991.

 

3.       He entered the United Kingdom and claimed asylum on 26 th November 2018 on the basis of fear of the family of a female with whom he had had a relationship in Iraq. He claimed that he had been beaten by them and feared them if returned.

 

4.       The claim was refused by the Respondent on 28 th August 2019

 

5.       An appeal against that decision was heard by a judge of the First-tier Tribunal on 18 th December 2019. The 2019 Judge dismissed the appeal and concluded, within his determination dated 24 th December 2019, that the Appellant was not credible. He also found that the Appellant retains contact with his family and so could access his CSID.

 

6.       The Appellant lodged further submissions on 23 rd October 2020. He maintained his claim of fear on account of his purported relationship in Iraq and stated that his family had disowned him and so he could not access his CSID. He also claimed fear of the authorities in Iraq on account of his support for the Ba'ath party and his sur place activity in the United Kingdom,

 

7.       The claim was again refused by the Respondent on 23 rd March 2021.

 

8.       An appeal against that decision was heard by a judge of the First-tier Tribunal on 19 th January 2022. The 2022 Judge dismissed the appeal and concluded, in his determination dated 14 th February 2022, that there was no evidence before him to depart from the findings of the 2019 Judge in relation to the fear arising from the claimed relationship. He did not accept that the Appellant had given a credible account of being a supporter of the Ba'ath party. The Appellant's claimed sur place activity was not such that would bring him to the adverse attention of the authorities in the IKR. The Appellant's claim of lack of contact with his family was not accepted and it was found that he would be able to access his CSID.

 

9.       The Appellant lodged further submission on 15 th July 2023 on account of fear of persecution on account of political activity in Iraq and the United Kingdom. The claim was again refused by the Respondent on 31 st August 2023.

The Judge's determination

 

10.   The Judge heard the appeal on 16 th May 2024 and dismissed the appeal within a determination dated 18 th May 2024. He outlined the fresh claim between paragraphs 12 and 16 of his determination. In summary, the Appellant claimed to have attended 4-5 demonstrations in Iraq and 15 demonstrations in the United Kingdom. He is politically active on Facebook. He had previously been supportive of the New Generation Movement ("NGM"), which fought corruption. His father has died and he has been unable to trace any of his family. He has engaged with Red Cross to trace them.

 

11.   The Appellant relied upon documentary evidence, notably letters and a Facebook printout. These were summarised by the Judge between paragraphs 17 and 21:

 

"17. Pooya Mahmoodi wrote (15 May 2024) that in March 2023 he went to the Appellant's town and neighbourhood. He asked around. People said they were no longer in the area. They suggested he visited the local Mukhtar who provided a letter he brought back. He added in oral evidence that when he went to the address the Appellant had given him, no one answered the door. The local shopkeeper said he had no information on where they were and suggested he go to the Mukhtar. When he showed a picture of the Appellant he recognised him and said he is the son of the family.

 

18. Abdula Hama Rahim Qadir wrote (4 May 2023) that he is the Karaba District Councillor. The family of QAR (the Appellant's father) has left the district and their whereabouts are unknown.

 

19. Arian Tugozi wrote (25 October 2023) that the Appellant is an NGM volunteer/activist. Membership is only available in Iraq. The Appellant joined the movement in February 2020 in the United Kingdom. He has been active in his political stands and activities in opposing the authorities in the IKR and Iraq. He participates in demonstrations and online through Facebook. They are unable to attend the Tribunal due to large political campaigns and activities including workloads.

 

20. Hawi Ahmad Hama Salih wrote (undated) that he is an activist and protest organiser based in the UK. The Appellant is an active member and organiser for Kurdish Civil activists here. He participated in many demonstrations against the Kurdish ruling parties.

 

21. I have seen pictures of the Appellant at demonstrations holding posters. His Facebook account bundle has 478 pages and identifies 1,400+ friends, appears to start in around October 2020, and has a "public" profile. There are pictures of demonstrations some of which he is at. There are posts critical of the authorities in the IKR (see for example p542, 562, 621, 628, 636 of the electronic bundle - page 59, 79, 138, 145, 153 of the Appellant's supplementary bundle), the vast majority of posts have not been translated, many are reposts or duplicates, and some have up to around 200 comments or likes and some far less. The post on 18 June 2021 states that he visited the Iraqi Consulate in Manchester on 17 June, submitted his request several times for assistance, but nothing has happened (page 774/291). The post on 1 October 2020 relates to his attendance at the Iraqi Embassy."

 

12.   The Judge's findings of fact are between paragraphs 33 and 47 of his determination.

 

13.   At paragraph 34 he does not accept that the Appellant attended demonstrations in Iraq:

 

"I do not accept it is reasonably likely let alone likely that the Appellant attended demonstrations in the IKR prior to coming to the United Kingdom as he did not mention it in either of his previous appeals and nor did he mention it in the fresh claim letter or his initial statement in these proceedings. He only mentioned it after the refusal of this claim. I do not accept the evidence that he thought it was a civil rather than political issue as demonstrating against the government is plainly a political issue. I am satisfied he has simply made this up to bolster his claim."

 

14.   At paragraph 35 the Judge did not accept that the Appellant has ever been involved with the NGM. He noted that Arian Tugozi had not attended to have his evidence tested and that his letter stated that the Appellant was a member in October 2023, whereas the Appellant himself said that he had left in April / May 2023.

 

15.   The Judge did not assign any weight to evidence of Mr Salih given that he did not attend the hearing to have his evidence tested (paragraph 36).

 

16.   In relation to the Appellant's attendance at demonstrations in the United Kingdom and his Facebook activity, the Judge concluded:

 

"37. I accept it is likely the Appellant has attended demonstrations and posted on Facebook information which criticises the parties that govern Iraq and the IKR having seen the posts. I do not accept it is likely he is a leader, mobiliser, organiser, speaker, or chant leader as there is no cogent independent evidence to suggest he does any of those things, the pictures do not show him speaking or leading chants, and simply posting details of when events happen does not mean he is an organiser or mobiliser. I therefore have no cogent evidence to depart from the finding [of the 2022 Judge] that it was not reasonably likely he was (the standard of proof having changed in the interim).

 

38. It has not been established anyone from the IKR was at the demonstrations or would be aware of the posts as the Appellant has simply speculated. He has no idea who his 1,400 Facebook Friends are and neither do I. He has not produced any cogent evidence of the alleged threats or that they are linked in any way to the authorities.

 

17.   At paragraph 39, the Judge concluded he was not satisfied that the Appellant's stated anti-government views are genuine.

 

18.   At paragraph 40, he found that the Appellant could deactivate his Facebook account and could explain, if asked by Iraqi authorities, that he had lied to claim asylum.

 

19.   Between paragraphs 42 and 45 the Judge did not accept that the Appellant has no contact with his family. He therefore found, at paragraph 46, that the Appellant could be sent his CSID.

 

Grounds of appeal

 

20.   Permission to appeal was initially refused by another First-tier Tribunal Judge on 4 th December 2024.

 

21.   Renewed grounds of appeal were submitted to the Upper Tribunal on 13 th December 2024 and can be summarised as follows:

 

Ground 1 - The Judge erred in his decision that the Appellant had not been involved in the NGM;

Ground 2 - The Judge erred in giving no weight to the evidence of Mr Salih and Mr Qadir;

Ground 3 - The Judge erred in relation to the standard of proof;

Ground 4 - The Judge erred in assessing risk on return;

Ground 5 - The Judge made assumptions; and

Ground 6 - The Judge erred in his assessment of the Appellant's ability to obtain identity documentation and travel within Iraq.

 

22.   Permission to appeal was granted on 30 th January 2025:

 

"2. Grounds 4 is just about arguable. The judge may have asked too much of the appellant to prove a risk on return as a result of his sur place activities in light of: the observations in WAS (Pakistan) v SSHD [2023] EWCA Civ 894; the nature of his Facebook comments; the extent of his followers and the background evidence summarised at [23]-[28]. For that reason notwithstanding that the judge set out the correct burden and standard of proof at [5] and [6], it is arguable the judge failed to apply that to the risk on return so ground 3 is also arguable. It is further arguable that the judge engaged in speculation at [45] as contended in Ground 5.

 

3. I do not find the other grounds to have much merit.

 

4. As for ground 1, it is clear from [35] and [39] that the judge stated his conclusion at the start of the paragraphs and then went on to provide the reasons he arrived at those conclusions. Further, the judge gave detailed reasons at [35] for why he did not find the letter from Mr Tugozi to assist the appellant and it is not arguable that he should have attached more weight to that letter.

 

5. Notwithstanding what is said in Ground 2, weight is a matter for the judge and the judge explained adequately why no weight attached to the letter from Mr Salih [36]. It is immaterial anyway as it is clear from the content of the letter as described at [20] that it went to matters which were broadly accepted by the judge in any event. As for the letter from Mr Qadir, the judge gave reasons why no weight attached and those reasons were open to him. However, it is again immaterial when read in light of the judge's comments at [43] which say that even had the family moved, it does not mean the appellant has lost contact with them.

 

6. As for ground 6, the judge found the appellant's family could send him his CPIN with which he could safely pass through checkpoints. That appears to be a finding open to the judge on the evidence before him.

 

7. However, as there is a risk that some of the arguable errors may infect other conclusions, I have decided not to limit the ground of permission."

 

The hearing

 

23.   The papers were contained within a 792-page electronic bundle. There was no Rule 24 response. I heard submissions from the advocates, which are summarised below.

 

Discussion and analysis

 

24.   Throughout consideration of the appeal, I have had regard to the guidance provided by the Court of Appeal in Volpi v Volpi [2022] EWCA Civ 462 at paragraph 2:

 

"The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled:

                                i.             An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.

                              ii.             The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.

                            iii.              An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.

                            iv.             The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.

                              v.             An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.

                            vi.             Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract."

 

Ground 1

 

25.   Ground 1 is contained within paragraph 4 of the written grounds as follows:

 

"At [35] and [39] of the decision, the FtTJ finds that the "Appellant has ever been involved in NGM for these reasons". The FtTJ seems to have a pre-determined mind because he seems to be using [34] finding onto [35] of another part of the claim and evidence. How can a finding be made in which the first sentence concludes "for these reasons", when no reasoning is advanced until after that sentence. Secondly, to say that he has ever been involved with the NGM is a material error as the letter proves that he is a volunteer member, again the evidence from NGM is free standing and had to be given weight."

 

26.   Within his oral evidence, Mr Malik argued that the Judge had " completely ignored" Mr Tugozi's letter because he had already found that the Appellant had not been politically active in Iraq. Mr Tugozi's letter states that the Appellant had been involved with the NGM and so the Judge's determination to the contrary amounted to " a clear error of fact".

 

27.   Mr Malik also argued that the Judge had failed to assess whether, even if the Appellant's political activity was in bad faith, it could still give rise to a risk of harm as per the case of Danian v SSHD [1999] EWCA Civ 3000. However, he accepted that this had not been pleaded within grounds of appeal nor had permission been granted on that ground.

 

28.   Ms Young contended that the Judge had adequately reasoned all of his conclusions and that the weight he assigned to evidence was a matter for him.

 

29.   I consider that ground 1 can be divided into four arguments:

                                i.             The Judge did not give reasons in paragraph 35 for his findings that the Appellant had never been involved with the NGM;

                             ii.              The Judge improperly pre-determined the matter having decided against the Appellant in relation to another feature of his appeal (as outlined in paragraph 34);

                           iii.             The Judge erred in his treatment of the letter by Mr Tugozi; and

                           iv.             The Judge failed to give reasons for concluding that the Appellant's claimed political views are not genuine.

 

30.   In relation to the first argument: The impugned paragraph 35 states the following:

 

"I do not accept it is likely the Appellant has ever been involved in NGM for these reasons. Mr Tugozi has not attended to have his evidence tested. The letter says the Appellant "is" a member in October 2023 whereas the Appellant said he left in April or May 2023 which accords with his answer that it was probably over a year ago (which that is), whereas October 2023 is only 7 months ago. I am satisfied the Appellant knows how the lettter came about (despite his oral evidence) as someone must have given the letter to the Solicitor to incorporate in the bundle. The Solicitor was therefore either given the letter by the Appellant, or someone sent it to him. It is not likely it would appear out of thin air or that an organisation that was busy would write out of the blue if not asked to do so by someone."

 

31.   It is abundantly clear that the first sentence of paragraph 35 is the Judge's decision and the remaining part of the paragraph is a list of reasons giving rise to that conclusion. There is nothing improper, or even unusual, with that approach. The Judge reached conclusions that were reasonably open to him and were adequately reasoned.

 

32.   In relation to the second argument: I do not accept that the Judge used the findings in paragraph 34, concerning whether the Appellant had undertaken political activity in the IKR, in his findings at paragraph 35. That is not a reasonable reading of the decision. Paragraph 35 is a self-contained paragraph which adequately explains the Judge's reasons for not accepting that the Appellant has ever been involved in the NGM. In any event, the Judge would have been entitled to take into account adverse credibility findings arising from the conclusions in paragraph 34 when assessing the veracity of the Appellant's claims as part of his holistic assessment of the evidence.

 

33.   The third argument relates to the letter from Mr Tugozi which does not, contrary to the bold assertion within the grounds, " prove" that the Appellant was a voluntary member of the NGM. The weight to be given to that documentary evidence was a matter for the Judge. Assigning no weight to the evidence was reasonably open to him and was adequately reasoned in paragraph 35 of his determination. He did not " completely ignore" the letter but acknowledged it; assigned it no weight, as he was entitled to do; and adequately explained why no weight was being placed upon it.

 

34.   In relation to the fourth argument: The impugned paragraph 39 states the following:

 

"I am not satisfied the Appellant has established his stated anti-government views are genuine, and I am satisfied he has simply been to demonstrations and posted on Facebook to fabricate a claim. That is because he has added a new historic element to his claim of involvement in Iraq despite having been through 2 appeals and not mentioning it in his fresh claim, he has pretended he is a mobiliser and assist in organisation when there is no cogent evidence he has, and he has adduced a letter that is false in its content. His development of the Facebook account is a shameless attempt to fabricate a claim."

 

35.   Again, the Judge reached conclusions that were reasonably open to him and were adequately reasoned.

 

36.   Ground 1 does not show any error of law or fact and is therefore dismissed.

 

Ground 2

 

37.   Ground 2 is contained within paragraphs 5 and 6 of the written grounds as follows:

 

"5. At [36] and [44] of the decision, the FtTJ placed no weight on an independent witness evidence of Mr Salih and Mr Qadir. We refer the Tribunal to McCloskey J in MK (duty to give reasons) Pakistan [2013] UKUT 641 (IAC) holding that it was insufficient for the FTT judge to state that he placed no weight on an independent document "taking into account the complete lack of credibility shown from the evidence before me". McCloskey J observed that:

 

"...the Judge was clearly referring to his finding that the Appellant's evidence was not worthy of belief. However, the AMA letter was entirely free standing of the Appellant's evidence. It had to be addressed separately and directly."

 

6. The evidence of Mr Salih regardless of him attending or not is free standing an "had" (mandated) to be addressed separately and properly. It was not."

 

38.   Within oral submissions, Mr Malik argued that the Judge was required to address any written evidence and give reasons for assigning it no weight. He argued that the fact the evidence was not tested in cross-examination was not an adequate reason for assigning it no weight.

 

39.   Ms Young contended that the weight to assign the evidence was a matter for the Judge and that he had reached conclusions that were open to him.

 

40.   I consider that the reliance on the case of MK is misconceived as it appears that the grounds argue that the documentary evidence should have been viewed in isolation of the other evidence. That is not the case. MK is not an authority that a document is freestanding in that it must be considered in isolation, but that it is free standing in that it must be analysed and separately addressed in the determination.

 

41.   The Judge correctly followed the guidance set at paragraph 38 of Tanveer Ahmed [2002] Imm AR 318 (emphasis added):

 

"1. In asylum and human rights cases it is for an individual claimant to show that a document on which he seeks to rely can be relied on.

 

2. The decision maker should consider whether a document is one on which reliance should properly be placed after looking at all the evidence in the round.

 

3. Only very rarely will there be the need to make an allegation of forgery, or evidence strong enough to support it. The allegation should not be made without such evidence. Failure to establish the allegation on the balance of probabilities to the higher civil standard does not show that a document is reliable. The decision maker still needs to apply principles 1 and 2."

 

42.   The Judge made an adverse credibility finding in relation to the Appellant at paragraph 34 and rejected his account of being involved with the NGM in paragraph 35. He was entitled to consider those adverse credibility findings when assessing the reliability of documentation provided.

 

43.   The Judge gave adequate reasons for giving no weight to the letter from Mr Salih, namely that he had not attended to have his evidence tested. That was a conclusion open to the Judge. In any event, even had the approach to that evidence amounted to an error of law, it would not have been material as the Judge went on, at paragraph 37, to accept that the Appellant had likely attended demonstrations but that it was his motives for doing so that was not accepted.

 

44.   Similarly, the Judge gave adequate reasons for not giving weight to the letter from Mr Qadir and noted that his evidence could not be tested in evidence. In any event, even had the approach to that evidence amounted to an error of law, it would not have been material as the Judge stated, at paragraph 43, that the Appellant's family moving away would not mean he had lost contact with them. At paragraph 45 he gave reasons why he did not accept that contact had been lost and could not be maintained.

 

45.   In summary, the Judge adequately analysed the evidence from Mr Salih and Mr Qadir (and, as outlined above in relation to Ground 1, Mr Tugozi) and provided adequate reasons for giving the evidence no weight. Those were conclusions that were reasonably open to him.

 

46.   There is no error of law in the assessment of the evidence from Mr Salih and Mr Qadir and, in any event, any error of law is not material. As such, ground 2 is dismissed.

 

Ground 3

 

47.   Ground 3 is contained within paragraph 7 of the written grounds as follows:

 

"At [37-39] and [45] the FtTJ refers to cogent evidence, and then states that the standard of proof has changed in the interim. NABA changes the standard of proof being twofold, the reasonable degree of likelihood is still applicable as to risk on return (see JCK v SSHD)."

 

48.   Mr Malik stated that references within the determination to " no cogent evidence" was imposing a higher standard of proof upon the Appellant than was appropriate. Further, he argued that the Judge had " hid behind Deveseelan"

 

49.   Ms Young contended that the criticism of the Judge's approach was not well founded. He had not elevated the standard of proof and had correctly set out the burden and standard of proof within the determination.

 

50.   I remind myself that, as the further submission were lodged after 28 June 2022, in considering whether the Appellant qualifies as a refugee the Judge was required to apply a two-stage test, pursuant to section 32 of the Nationality and Borders Act 2022. As per the guidance in JCK (s.32 NABA 2022) Botswana [2024] UKUT 100 he was required to first determine the following matters on the balance of probabilities:

                                i.             Taking the Appellant's claim at its highest, is there a convention reason?

                             ii.              Does the Appellant fear persecution for that convention reason?

 

51.   If so, he was required to go on to determine whether it is reasonably likely that:

                                i.             The Appellant would be persecuted for that Convention reason;

                             ii.              There would not be sufficient protection available; and

                           iii.             The Appellant could not internally relocate.

 

52.   The Judge accurately outlined the burden and standard of proof at paragraphs 5 and 6 of his determination.

 

53.   At paragraph 37 the Judge concluded, in relation to whether the Appellant was a leader, mobiliser, organiser, speaker, or chant leader at demonstrations: " I therefore have no cogent evidence to depart from the finding [of the 2022 Judge] that it was not reasonably likely he was (the standard of proof having changed in the interim)."

 

54.   The Judge correctly applied the guidance in Devaseelan [2002] UKIAT 000702, in which it was held, at paragraph 39:

 

"(1) The first Adjudicator's determination should always be the starting-point. It is the authoritative assessment of the Appellant's status at the time it was made. In principle issues such as whether the Appellant was properly represented, or whether he gave evidence, are irrelevant to this.

 

(2) Facts happening since the first Adjudicator's determination can always be taken into account by the second Adjudicator. If those facts lead the second Adjudicator to the conclusion that, at the date of his determination and on the material before him, the appellant makes his case, so be it. The previous decision, on the material before the first Adjudicator and at that date, is not inconsistent.

 

(3) Facts happening before the first Adjudicator's determination but having no relevance to the issues before him can always be taken into account by the second Adjudicator. The first Adjudicator will not have been concerned with such facts, and his determination is not an assessment of them."

 

55.   The criticism of undue reliance on the findings of the 2019 and 2022 Judge is unfounded as the Judge's determination shows that he adequately analysed the evidence provided by the Appellant that post-dates those decisions.

 

56.   The Judge was not incorrect in noting that the standard of proof had changed since the last appeal, which had related to a claim prior to the 2022 Act, and, in any event, paragraph 37 references the lower standard.

 

57.   There is nothing in paragraph 38, 39 or 45 to betray a misunderstanding as to the correct standard of proof and there is no error in noting the lack of cogent evidence. His reference to " cogent evidence" does not indicate the adoption of an elevated standard of proof, as is clear upon reading the determination as a whole.

 

58.   The Judge correctly applied the lower standard of proof when he concluded, at paragraph 41, that there is ".. no real risk he will be subjected to ill-treatment by anyone on his return to the IKR".

 

59.   The Judge did not misapply the standard of proof or otherwise impose an unduly high burden upon the Appellant. He correctly applied the guidance in Devaseelan. Ground 3 is therefore dismissed.

 

Ground 4

 

60.   Ground 4 is contained within paragraph 8 of the written grounds as follows:

 

"At [38] and [40] the FtTJ misdirects himself as to the question of risk due to the Appellant's sur place activities. He finds that there is no evidence of anyone present from the IKR at the demonstration or who is 1,400 Facebook friends are. In doing so, the FtTJ is asking or wanting to see direct evidence. In WAS (Pakistan) v SSHD [2023] EWCA Civ 894:

 

85. I consider that, on this aspect of the case, the UT erred in law by losing sight of the fact that direct evidence about 'the level of and the mechanics of monitoring' in the United Kingdom is unlikely to be available to an asylum claimant or to a dissident organisation, and by imposing too demanding a standard of proof on A. The UT repeatedly said that A had not 'established' things, that 'cogent evidence' of something was absent, and that parts of A's evidence were not supported (see further, the next paragraph).

 

86. A related point is that the UT's approach was to posit two mutually exclusive alternatives: a tiny level of support for MQM-L which was not capable of drawing the attention of the Pakistani authorities, and, therefore, of putting A at risk on return, and the level of support which A described in his exaggerated but nevertheless nebulous evidence. If that was the UT's approach, its danger is to obscure a third possibility, which is that, on the UT's other findings, A did support, or could be perceived to support, MQM-L to an extent which might, to the lower standard, attract the attention of the authorities and therefore put him at risk. I consider that the UT's findings that A had exaggerated his role (which were open to it on the evidence) dominated the UT's analysis of potential risk; and that the UT erred in law in this respect. There were photographs of A at demonstrations, and the UT accepted that he had been to four outside Downing Street and one outside the Pakistan High Commission. The UT accepted that the authorities would keep an eye on the High Commission. There was also a photograph of AH on A's Facebook account.

 

87. A recurrent theme of determination 4 is that A's evidence about aspects of his claim was not supported by other evidence, and, by implication, for that reason alone, to be rejected, without the need to consider, to the lower standard, its intrinsic probability. As I have indicated, on at least three occasions, the UT observed that there was 'no cogent evidence' that something was the case (paragraph 132, line 4, paragraph 133, line 3, paragraph 140, line 3). That theme indicates a linked error. That error is that the UT treated the specific preserved findings that A was not credible about particular aspects of his claim, coupled with their own findings that he was not credible about other aspects of his claim, as a proxy for analysing the relationship between their own general findings about risk, A's evidence generally, and the uncontested evidence about A's role. It is a trite proposition that credibility is not 'a seamless robe', even if, on analysis, some, or most of the evidence proves to be incredible. Findings that some aspects of a witness's evidence are not credible should not, in a protection claim, be generalised to all his evidence. The fact-finder must also consider the intrinsic likelihood, to the lower standard, of the significant aspects of his claim.

 

61.   In oral submissions, Mr Malik relied upon WAS and argued that the Judge had fallen into the error identified in that authority.

 

62.   Miss Young contended that the Judge made findings open to him upon consideration of all of the evidence, and that his approach was appropriate.

 

63.   The impugned paragraph 38 is as follows:

 

"It has not been established anyone from the IKR was at the demonstrations or would be aware of the posts as the Appellant has simply speculated. He has no idea who his 1,400 Facebook Friends are and neither do I. He has not produced any cogent evidence of the alleged threats or that they are linked in any way to the authorities."

 

64.   At paragraph 40 the determination continues:

 

"...It has not been established it is reasonably likely that anyone in the IKR would have access to the Facebook servers. It has not been established it is reasonably likely anyone in the IKR is one of his Facebook Friends or that posts would be reasonably likely to reappear on their accounts...."

 

65.   The Judge did not dismiss the Appellant's account simply due to a lack of cogent evidence but he analysed the evidence that was provided; he considered the findings of the 2019 and 2022 Judges in accordance with Devaseelan; and he assessed the Appellant's credibility. His conclusions were therefore based upon a holistic assessment of all the evidence before him. Throughout his determination he made findings that were reasonably open to him and he gave sufficient reasons for those findings. He applied the correct burden and standard of proof. The grounds of appeal amount to no more than a disagreement with his findings.

 

66.   In any event, the Judge concluded at paragraph 39 that he was not satisfied that any political activities / views expressed by the Appellant were genuine and, at paragraph 40 went on to say that: "... He can, if asked on return, say he lied to fabricate an asylum claim. As he had no profile in the IKR it is not reasonably likely anyone will ascribe any anti-government views to him."

 

67.   The Judge therefore concluded that there is no reasonable risk of harm to the Appellant even if his political activity is known by people within the IKR, as he would disclose that it was not genuine. I note, as highlighted by Ms Young, that there has been no ground of appeal pursued, or permission granted, against that conclusion. HJ (Iran) v Secretary of State for the Home Department; HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31 would not apply as the Appellant would not be denying genuine beliefs for fear of the consequences, but will be acknowledging that he had sought to mislead to seek asylum. As outlined above, no Darian ground of appeal has been pleaded.

 

68.   As such, any error in the Judge's analysis of whether people within the IKR will have learnt of the Appellant's purported sur place activity is not material. The Judge has alternatively found that it would not place the Appellant at risk as the activity was not pursuant to genuine political opinion and he would disclose the truth if asked, thereby negating any risk of harm. Those were findings reasonably open to the Judge and adequately reasoned.

 

69.   Ground 4 is therefore dismissed.

 

Ground 5

 

70.   Ground 5 is contained within paragraphs 9 and 10 of the written grounds as follows:

 

"9. At [40] of the decision, the gain the FtTJ finds that it has not been established that anyone from the IKR is one of his Facebook friends, or it would re-appear on his account. This is a flawed assessment of evidence. Anyone that comments, shares or likes the post, his post will appear on their feed or history (see XX (PJAK)). IN doing so, at [41] the FtTJ finds that there is no ill treatment, this finding is made on the basis of assumption and no consideration of objective evidence whatsoever.

 

10. At [45] of the decision, the FtTJ is assuming that because the appellant's cousin is of a similar age, he must have and or use a Facebook account. This is clear cut an assumption."

 

71.   In oral submissions, Mr Malik stated that looking through the profiles of all the Appellant's 'Facebook Friends' would not have assisted the Appellant in showing the location of them as they may say that they are located in one place when instead they are in the IKR. The Appellant could not therefore be faulted for not knowing the location of all of the people who follow him.

 

72.   Ms Young contended that the Judge had not expected the Appellant to know the locations of all of his followers but had noted that he did not know any of them.

 

73.   At paragraph 40 of his determination the Judge stated:

 

"As the views identified on Facebook are not genuinely held, he can deactivate his account. It has not been established it is reasonably likely that anyone in the IKR would have access to the Facebook servers. It has not been established it is reasonably likely anyone in the IKR is one of his Facebook Friends or that posts would be reasonably likely to reappear on their accounts."

 

74.   The Judge's conclusion that the Appellant does not have genuine anti-regime political views was a finding reasonably open to him and adequately reasoned, as was his finding that the Appellant would therefore likely deactivate his Facebook account when it is no longer needed to pursue an unmeritorious claim for asylum. The Judge noted that there had been no evidence put before him that anyone in the IKR would be able to access Facebook servers and therefore de-activated accounts.

 

75.   The Judge did not make a bold finding that none of the 1,400 'Facebook friends' were in the IKR, but he found, as he was entitled, that the Appellant had failed to show that it was reasonably likely that they were. Such evidence could have been sought by accessing any visible profiles of 'Facebook Friends' or by identifying people that the Appellant knows or believes to be located in the IKR. As detailed by the Judge, at paragraph 38, the Appellant "... has no idea who his 1,400 Facebook Friends are..." and I accept Ms Young's submissions that the Appellant could properly be expected to know who some of his followers are and where they are based.

 

76.   Even had the Judge been incorrect in his analysis of whether the Appellant's posts are viewable by people in the IKR, it would not constitute a material error of law as he reached the alternative conclusion that "... He can, if asked on return, say he lied to fabricate an asylum claim. As he had no profile in the IKR it is not reasonably likely anyone will ascribe any anti-government views to him.". As outlined above, that aspect of reasoning has not been subject to a ground of appeal.

 

77.   I do not accept that the Judge made improper assumptions about the Appellant's cousin's use of Facebook. His comment that the cousin was " likely" to use it given his age and the prevalence of Facebook was reasonable. In any event, even had he made an unsound assumption, it does not affect the point that was made in paragraph 45 that he does not accept that the Appellant has lost contact with his family in Iraq. That conclusion was not solely based on an assessment of contact with the cousin. He gave fulsome reasons in paragraph 45 of his determination and included that there was no cogent evidence for him to depart from the findings of the 2019 and 2022 judges:

 

"45. I do not accept he would not be in contact with his family via Facebook which he uses. He has first cousins of a similar age who, given its prevalence, are likely to use it despite the challenges within the IKR of occasional internet interference. I do not accept relatives would reject his Friend request or that if he saw people with their names he would not contact each of them, even those with spelling variations, to see if they are relatives and see how the family is. I do not accept it is reasonably likely he only found out about his father's death via an Instagram post from the local twin of deaths as I am satisfied he has remained in contact with his family throughout, there is no evidence of that Instagram account, there is no evidence from the local town of it. It is reasonably likely he would have had multiple ways to contact family whether by having phone numbers or social media contact details as there would be no good reason he would not. I am satisfied he has simply lied about losing his phone and not being in contact. I have no further cogent evidence to depart from those previous findings. Nor indeed is there any cogent evidence to justify departing from the previous findings regarding his ability to obtain his CSID documentation. I note the claim of Embassy visits, but this was before his previous appeal and there is no evidence of subsequent attempts to contact the Embassy."

 

78.   Ground 5 does not establish a material error of law and so that ground is dismissed.

 

Ground 6

 

79.   Ground 6 is contained within paragraphs 11-15 of the written grounds as follows:

 

"11. When considering re-documentation and return at [45-46], the FtTJ does not apply SMO 2, the FtTJ relies on perhaps the previous decision, which was in 2021, and post dating that, we have SMO 2.

 

12. The objective evidence provided is from Abdul Al-Shammari who states that CSID are no longer valid, this is not as the FtTJ points out that politicians often make statements that do not bear fruition. However, this is not a statement of intent but rather a declaration as the whole purpose of SMO 1 and SMO 2 is that CSID will phase out and that INID is the only document, this is made clear in the CG cases and yet the FtTJ does not consider it properly.

 

13. The Judge fails to consider any submissions made by the legal representative at the time regarding this matter. [3.1.1] says that many checkpoints manned by Shia militia. [3.2.3] says that: While a family may be able to provide support, it may not be possible for the returnee to access it. At [3.8.9] The UT held that a civil identity document (CSID or INID) is required to pass checkpoints and be admitted into Baghdad. The Judge fails to consider that there is a checkpoint outside Baghdad airport which will be difficult for the Appellant's family members if they are able to come to the airport (hypothetically) to assist with his documentations as [3.6.7] says that family members cannot assist with re-documentation which goes contrary to [45] of what help if any would the Appellant achieve even if (hypothetically), he was to be able to obtain contact.

 

14. [3.8.11] says that: Available evidence indicates that a civil identity document (CSID or INID) are required to pass checkpoints and be admitted into the KRI the presence of the checkpoint being clear. [6.15.1] says that: ... Upon entry to the KR-I (at either an internal border checkpoint or the airports in Erbil or Sulaymaniyah ) thereby indicating that there are checkpoints at the airport the Appellant cannot pass. [6.15.6] says that: The DIS report, published March 2023, considered security lists in Iraq and stated: 'In addition to the airport, the authorities at land borders all over Iraq and at checkpoints between KRI and Federal Iraq have access to the exit ban list. [9.2.1] states that: Upon entry to the KR-I (at either an internal border checkpoint or the airports in Erbil or Sulaymaniyah ). [10.1.1] says that: including Kurds, crossing into the IKR from central or southern regions were obligated to cross through checkpoints and undergo personal and vehicle inspection. The government imposed similar restrictions on IDPs from Ninewa Province and the disputed areas.

 

15. The evidence is clear that that there are checkpoints at Baghdad, Erbil and Sulaymaniyah, and as the Appellant is not from there and the Judge has accepted, he has no CSID with him, the Laissez Passer will be confiscated upon arrival. The Judges' reference to the Appellant can fly direct to Erbil, Sulaymaniyah is failing to consider the point made in SA (Iraq) [2022] UKUT about enforced returns. Furthermore, the reference to FAS can be returned to any federal area of Iraq is not supportive of the enforced or unenforced returnee as stated by the Annexes given that there have only been a handful of people returned over 1 year ago which highlights the point made earlier about enforced and unenforced returnees. There is no evidence before the Tribunal of the returnees as stipulated in the CPIN and as such cannot not follow judicial precedent of the UT in SA (Iraq)."

 

80.   I asked Mr Malik what evidence had been relied upon by the Appellant that he would no longer be able to use his CSID in Iraq, if it was returned to him. He told me that the evidence was from page 699 of the bundle, namely an article dated 27 th December 2023, which states:

 

"The ministry said that the only valid identification document will be the new nation ID card. Minister of Interior Abdul Amir al-Shammari said that the ministry had set March 2024 as the deadline for the implementation of the decision"

 

81.   Mr Malik submitted that this was supported by the contents of the CPIN, 'Iraq: Internal relocation, civil documentation and returns', dated October 2023, which outlines that CSID cards are no longer being issued. He accepted, however, that there is a material difference between CSIDs no longer being issued and no longer being valid.

 

82.   He argued that, even with a CSID, the Appellant would be unable to travel through checkpoints in Iraq.

 

83.   Ms Young contended that the Judge had expressly referenced the correct country guidance. She stated that the Appellant was requiring the Judge to depart from that country guidance which had found that returnees could travel internally with a CSID. She submitted that there was insufficient evidence for the Judge to have departed from that guidance.

 

84.   She argued that reference to SA (Iraq) does not assist the Appellant as there are now forced removals to the IKR, as outlined in the Home Office letter within Annex C to the aforementioned CPIN, dated 4 th January 2023, which states that:

 

"Between 30/09/2020 and 05/10/2022 the Home Office successfully enforced the removal of 8 Iraqi nationals to Erbil and 9 to Sulaymaniyah..."

 

85.   I am satisfied that the Judge applied the correct country guidance. He expressly cited it at paragraph 22 of his determination.

 

86.   Similarly, at paragraphs 23 and 24, the Judge identified that he had considered the appropriate Home Office Country Policy and Information Notes.

 

87.   The Judge analysed return at paragraph 46:

 

"I do not accept it has been established that the INID system has changed as the only evidence I have seen are newspaper articles saying the government was to bring it in on 1 March 2024, not that it has been brought in. I am judicially aware that politicians often make statements of intent that do not aways bear fruition. I am therefore satisfied he can be sent his CSID, and can be returned to the IKR or Baghdad and be met by family who can assist him through checkpoints or with onward flights to return to his local office to obtain whatever form of additional ID may assist him as previously found."

 

88.   The Judge's analysis is consistent with SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 110 (IAC) ("SMO2") which details, at headnote B7, that return of former residents of the IKR will be to the IKR and that entry will be allowed with a Laissez Passer and (B10) there will be no risk of serious harm at the point of return. At C11 it details that a person will need a valid CSID or INID to travel through checkpoints.

 

89.   The Judge concluded that there was not cogent evidence to depart from the findings of the 2019 and 2022 Judges that the Appellant could obtain his CSID through family. That was a finding reasonably open to him. His conclusions that, upon receiving that CSID, he could then travel through checkpoints to his local CSA office, is in accordance with the guidance in SMO2.

 

90.   Elias LJ in TM (Zimbabwe) and others v Secretary of State for the Home Department [2010] EWCA Civ 916, stated at paragraph 5:

 

"The AIT must treat as binding any country guidance authority relevant to the issues in dispute unless there is good reason for not doing so, such as fresh evidence which casts doubt upon its conclusions , and a failure to follow the country guidance without good reason is likely to involve an error of law."

 

91.   As such, it was reasonable for the Judge to find that the newspaper report provided by the Appellant was insufficient for him to depart from the country guidance. He gave adequate reasons for that conclusion.

 

92.   In SA (Removal destination; Iraq; Undertakings) Iraq [2022] UKUT 37 in was noted that forced removals were, at that time, only to Baghdad and not to the IKR. However, the Judge was entitled to accept that the Appellant would be forcibly removed to the IKR, given the contents of the Home Office letter outlined above.

 

93.   In any event, given the Judge's findings that the Appellant has access to his CSID, the Appellant would be able to safely travel through checkpoints from Baghdad to the IKR, as detailed within the guidance in SMO2.

 

94.   Ground 6 therefore shows no error of law.

 

Conclusion

 

95.   The Judge's determination demonstrates a thorough and detailed analysis of the evidence and contains findings of fact that were open to him and conclusions upon adherence to the relevant legal tests. As such, no error of law is made out, either material or otherwise.

 

Notice of Decision

 

The decision of the First-tier Tribunal did not involve the making of a material error on a point of law. The decision shall stand.

 

 

DUTJ Moxon

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

16 th April 2025

 

 

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