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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI- 2024-005930 First-tier Tribunal No: (PA/59009/23) |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
22 nd May 2025
Before
UPPER TRIBUNAL JUDGE BRUCE
Between
BM (IRAQ)
Appellant
AND
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation :
For the Appellant: Mr Greer, Counsel instructed by direct access
For the Respondent: Mr McVeety, Senior Home Office Presenting Officer
Heard in Manchester Civil Justice Centre on 19 May 2025
DECISION AND REASONS
1. The Appellant is a national of Iraq born in 2001. He appeals with permission against the decision of the First-tier Tribunal dated 21 October 2024 to dismiss his appeal on both protection (asylum) and human rights grounds.
2. The basis of the Appellant's protection claim was that he has come to the adverse attention of a powerful military leader in Iraqi Kurdistan, where he lives. He avers that in 2018 he met and fell in love with a young woman, N. His uncle approached her family to ask if they could be married. He was refused. The young woman's family subsequently arranged for her to be married to a peshmerga colonel affiliated to the PUK. She continued her relationship with the Appellant, and they planned to elope together. Before they could put their plan into action the colonel discovered the affair; the Appellant became aware that he was searching for him, and fearing that he would be killed or subject to other serious harm, he fled Iraq in October 2020. The Appellant contends that his feared harm brings him within the scope of the Refugee Convention because part of the reason that N's family rejected him, and now pursue him with impunity, is that he is from a minority religious group (Kakai). Further and in the alternative he asserts that he is a member of a particular social group, those who are perceived to have offended the 'honour' of others/acted outwith social norms.
3. The Respondent refused the claim on the grounds that it did not engage the Refugee Convention. Although the Respondent accepted that the Appellant is of the Kakai faith, she did not accept that this played a part in him being rejected and now pursued by N's family. Although the factual claims that the Appellant is Kakai, and that he did have a forbidden relationship outside of wedlock, were accepted, the Respondent did not accept that there was any current risk of serious harm. The Respondent noted that the Appellant had failed to substantiate his claim by producing any evidence relating to the peshmerga colonel.
4. The Appellant appealed to the First-tier Tribunal. He gave oral evidence, and relied on a bundle of documents which included country background material, and some photographs of a man in military fatigues whom the Appellant identified as the Colonel (presumably adduced in response to the reasons for refusal letter). The Tribunal considered the Appellant's evidence that N had contacted the Appellant and asked her to come to Kirkuk where she was living with her husband. The plan was for him to go from there to Sulaymaniyah and wait there for N. The Tribunal found this evidence to "lack credibility" on the grounds that this entire area was controlled by the PUK: the couple could have planned their escape from an area not under PUK control. Further he had been inconsistent in respect of the date that the colonel is said to have found out about the plan. In his asylum interview he had said that his last contact with N was on 20 September 2020 but in his oral evidence to the Tribunal said it was the beginning of October. As to whether the Appellant had the requisite identity documents to be able to live in Iraq, the Tribunal noted the Appellant's evidence that he had once been in possession of a CSID but this had been lost in 2017. The Tribunal questioned how he had managed to live in Iraq without a CSID for three years and found this evidence to "impact his credibility". Finally the Tribunal noted that the Appellant could have claimed asylum in France on his way to the UK and that his failure to do so was a matter engaging section 8 of the Asylum (Treatment of Claimants etc) Act 2004. The Tribunal concluded that the claim did not fall within the Convention, rejected it on the facts, and dismissed the appeal.
5. The Appellant, who at that stage was not legally represented, drafted his own grounds of appeal. Bearing that in mind, and giving the grounds the broadest and fairest possible reason, I record that he challenged the decision of the First-tier Tribunal on the following grounds:
i) The Tribunal took too narrow a view in respect of whether the Refugee Convention is engaged;
ii) The decision is flawed for a lack of adequate reasoning;
iii) The Tribunal erred by imposing too high a standard of proof;
iv) The Tribunal failed to have regard to relevant country background information such as that contained in the Country Policy and Information Note: Iraq blood feuds honour crimes and tribal violence (July 2024) which reads: "local police and security agents are unwilling to get involved with what they see as a family matter. As such protection from the state or from the tribe is unlikely to be available for victims or potential victims of blood feuds and those fleeing honour crimes or revenge for honour-related transgressions, as the federal security system is weak, particularly with regards to tribal matters"
6. Permission to appeal was granted, upon renewed application, by Upper Tribunal Judge Owens on 28 February 2025. Judge Owens considered it arguable that the First-tier Tribunal erred in finding it inherently implausible that the couple would plan to elope; she noted that the decision does not appear to reflect any consideration of the Appellant's evidence about this plan. Nor was there any finding in the decision about whether the colonel in fact existed, or if he would pose a threat to the Appellant. In this regard she noted that the decision does not address photographs submitted in evidence, said to be of the Colonel.
7. On the 13 May 2025 the Appellant filed Amended Grounds of Appeal, drafted by Mr J. Greer of Counsel. Mr Greer adopts Judge Owens' commentary in her grant of permission, and further submits the decision to be flawed for:
v) Impermissible reliance on peripheral/irrelevant matters in the credibility assessment;
vi) Failure to have regard to material evidence, viz the Appellant's detailed witness statement;
vii) Misdirection in respect of section 8 AI(TC)A 2004/ failure to consider material evidence;
viii) Failure to consider whether the Appellant is a member of a particular social group.
8. At the hearing before me Mr McVeety accepted that ground (viii) is made out, but submitted that this did not matter if the credibility findings were reasonably open to the Judge, which he said they were. The central criticism of the Appellant's evidence was, he submits, a reasonable point to make: why would the couple arranged to meet and embark on their elopement within PUK-controlled territory? Mr Greer relied on his written grounds.
My Findings
9. I am aware that judges of the First-tier Tribunal are being encouraged to write short decisions, a notoriously difficult task. I also accept that a judge is not required to explicitly mention each and every part of the evidence before them in their reasoning, and that where a judge says that they have read all of the relevant material, this should be taken at face value. That said, in this case I am satisfied that the decision cannot stand.
10. When this claim was refused by the Respondent, two substantive reasons were given for doubting the overall credibility of the claim.
11. One was that the Appellant had not produced any supporting evidence of his claim that the Colonel exists. As I have noted, it would appear that on appeal the Appellant sought to answer this concern by the production of a series of screenshots downloaded from the Facebook page of somebody with the Colonel's name. Some of the screenshots contain photographs of a man identified as the individual with the Colonel's name, who is dressed in military fatigues; in one image he is inspecting a parade of soldiers. On the one hand, it might be said that these screenshots might relate to any military man in Kurdistan, conveniently appropriated by the Appellant to support a fabricated claim. When one considers, however, that these images were not produced until a date sometime after March 2023 (a date of one of the posts), and that the Colonel is named in the Appellant's asylum interview in May 2022, that possibility begins to look more remote: it now might be said that this was potentially significant evidence, providing some answer to a one of only two substantive reasons given for rejection of his credibility. Unfortunately, what the First-tier Tribunal might have said about these images we cannot know, since they are not mentioned at all in its decision. Whilst I bear in mind that the law does not require the Tribunal to deal with each and every piece of evidence, it is required to make findings on key issues in dispute between the parties. This was a matter specifically raised by the Respondent, and answered by the Appellant: it should have been addressed.
12. A second ground for refusal related to the Appellant's evidence about the plan he and N hatched in order to leave Iraq. They had agreed to meet in Sulaymaniyah, and from there travel to Iran together. The Respondent had queried why they would agree to meet in an area controlled by the PUK when there were other, less risky places, that they could have had their rendevouz. This reason is adopted by the First-tier Tribunal at paragraph 21 of its decision, and in fact forms the centrepiece of its reasoning. Like Judge Owens, I find this logic hard to square with the actual evidence, which was that the couple assumed that they would be travelling to meet each other without the knowledge of the Colonel. That being the case, was it not irrelevant that they were in a PUK controlled area of the IKR? This explanation should have been at least considered. The decision further fails to take into account the evidence that the intention of the couple was to elope to Iran, and this is why they were headed to Sulaymaniyah, rather than, for instance, Baghdad or anywhere else in Iraq.
13. This brings me to the ground accepted as made out by the Respondent. This was a claim made in 2021 and as such it is not subject to the conjunctive reading of the definition of 'particular social group' adopted by the Nationality and Borders Act 2022. Whether a male target of honour-based violence could, in these circumstances, bring himself within the definition of a particular social group was therefore simply a question of assessing whether or not there were here immutable characteristics: see 2.2.3 of the current CPIN. The Appellant submitted that his immutable characteristic was the fact that he had been in an extramarital affair, contrary to the social norms in Iraqi Kurdistan, and offending the 'honour' of N's family and husband. The First-tier Tribunal deals with this submission very shortly at its paragraph 33 by noting that while similarly situated women are accepted as falling within the Convention, men "are not at risk to the same extent". Given the lower standard of proof, it was incumbent on the Tribunal to determine what that "extent" actually was.
Decisions
14. The decision of the First-tier Tribunal is set aside.
15. The decision in the appeal must be remade de novo by a different judge of the First-tier Tribunal. A Sorani interpreter is required, and there will be only one witness, the Appellant himself.
16. There is an anonymity order in this ongoing protection appeal.
Upper Tribunal Judge Bruce
Immigration and Asylum Chamber
19 th May 2025