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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2025-000837 |
|
First-tier Tribunal No: PA/68277/2023 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 2 nd of May 2025
Before
UPPER TRIBUNAL JUDGE HANSON
DEPUTY UPPER TRIBUNAL JUDGE SILLS
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
SSA
(ANONYMITY ORDER MADE)
Respondent
Representation :
For the Appellant: Mr McVeety, a Senior Home Office Presenting Officer.
For the Respondent: Ms Dingley instructed by Hallmark Legal Solicitors
Heard at Phoenix House (Bradford) on 25 April 2025
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the above respondent 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 above respondent. Failure to comply with this order could amount to a contempt of court .
DECISION AND REASONS
1. The Secretary of State appeals with permission against a decision of a judge the First-tier Tribunal ('the Judge') who allowed the appeal challenging the Secretary of State's decision of 11 December 2023, which refused the above respondent's claim for international protection.
2. The above respondent is a citizen of Iraq born on 26 November 1992 who claimed to be a at risk of an honour killing in Iraq, that he did not have access to his CSID which was left in Iraq, and that he did not have any contact with his family there.
3. The Judge identifies the issues in dispute at [10] in the following terms:
10. I sought to clarify the issues with Ms Coen. It was agreed that I would need to resolve the following issues:
a. Is it reasonably likely that the appellant had a relationship with X;
b. Is it reasonably likely that the relationship came to the attention of X's family;
c. Is there a sufficiency of protection available to the appellant;
d. Is there an internal relocation;
e. Convention reason;
f. Is it reasonably likely that the appellant does not have access to his original CSID.
4. The Judge's findings are set out from [13] under the headings reflecting the individual issues highlighted above. In relation to (a) and (b) the Judge writes at [19]:
19. Drawing the strands together and reminding myself of the lower standard, I accept that the appellant was in a relationship with X outside of marriage and this brought adverse attention to them both which caused them to flee.
5. In relation to (c) Judge at [20] accepts there is not a sufficiency of protection available to the Appellant.
6. In relation to (f), which the Judge takes out of turn, the Judge at [21] finds:
21. I have taken this issue out of turn as it is also disposes the issue if internal relocation. I accept that the appellant does not have access to his CSID. I accept that it was left in Iraq and because of the shame that the appellant has brought upon he respective families he is unable to have someone provide it to him. This has a direct impact on issue (d) as the appellant would be someone who is not able to redocument within a reasonably timescale upon return to Iraq. This is due to him being from an area operating the INID terminal and thus redocumentation could not be facilitated at the Embassy in the UK (see Country Policy and Information Note Iraq: Internal relocation, civil documentation and returns Version 14.0 October 2023 3.3.4, 3.7.11 and 3.6.7) [sic].
7. In relation to (e) the Judge at [22] writes:
22. The 2024 CPIN addresses the issue of PSG. It acknowledges that male victims of honour crimes do share a common characteristic. The 2024 CPIN applies the conjunctive approach. As this is a pre NABA appeal, the disjunctive approach applies. Put another way sharing a common characteristic would be sufficient to bring the appellant within a PSG.
8. This lead to the conclusion at [23] that as the Judge had resolved issues (a) -(f) in the above respondent's favour he had demonstrated a well-founded fear of return to Iraq, leading to the appeal being allowed on asylum and human rights grounds.
9. The Secretary of State sought permission to appeal asserting the Judge had failed to take into account or resolve the conflict of fact or opinion on material matters on the basis it is said:
2. At [17], [the Judge] has made reference to the latest CPIN of 2024, finding that 'the country evidence does point towards men being victims of honour crimes as well.' And, further that 'the 2024 CPIN addresses the issue of PSG. It acknowledges that male victims of honour crimes do share a common characteristic' [21(e)].
3. However, judge has misdirected themselves in this finding, having relied on the most recent CPIN of 2024 in their findings, which is material to the outcome of this appeal. The recent CPIN of July 2024 under Blood Feuds, Honour Crimes and Tribal violence clearly states at :
2.2 - Honour Crimes
2.2.3 - 'Male potential victims of 'honour' crimes (based on their involvement in a premarital or extramarital relationship with a female) are not considered to form a particular social group (PSG) within the meaning of the Refugee Convention. This is because while they do share a common background that cannot be changed in that they have compromised the familial 'honour' of the family, they do not have a distinct identity. This is due to differing notions of male and female honour, the patriarchal nature of Iraqi society and a lack of evidence to suggest that male potential victims of 'honour' crimes are as being different by the surrounding society.'
And at :
2.2.5 'Where a male is at real risk of serious harm as a result of a premarital or extramarital relationship, they may qualify for Humanitarian Protection.
4. Although judge found the appellant to be credible, the appellant does not fall within a Particular Social Group as per the current CPIN cited, yet concluded 'The 2024 CPIN addresses the issue of PSG. It acknowledges that male victims of honour crimes do share a common characteristic. The 2024 CPIN applies the conjunctive approach. As this is a pre NABA appeal, the disjunctive approach applies' [22].
5. In the absence of any relevant evidence to support judge's conclusion, given their reliance on the most recent country guidance, it is submitted judge has misdirected themselves and made a material error therefore the decision should be set aside.
10. Permission to appeal was granted by another Judge of the First-tier Tribunal on 17 February 2025 the operative part of the grant being in the following terms:
2. The grounds of appeal assert that the Judge erred in the assessment of membership of a PSG.
3. The conjunctive approach applied and it is arguable that the Judge erred in the assessment for the reasons provided in the application.
4. Those reasons need no amplification or elucidation from me. They speak for themselves.
11. The appeal is opposed by the above respondent in a Rule 24 response dated 7 April 2025, the operative part of which reads:
7. The essence of the Appellant's case is that the Judge's finding is materially flawed in that she applied a disjunctive approach to the test for the convention reason, PSG, when with reliance of the Country Policy and Information Note - Iraq: Blood feuds, Honour crimes and Tribal violence (July 2024) [the CPIN] she should have applied a conjunctive approach.
8. However, the date of Respondent's the claim in which the appeal arose was, 5th January 2022. As per JCK (s.32 NABA 2022) (Botswana) [2024] UKUT 100 (IAC), headnote para 1;
1. Sections 31-36 of the Nationality and Borders Act 2022 apply in an appeal where the claim for international protection was made after 28 June 2022.
9. The relevant test, as applied correctly by the FTTJ was, does A have an innate characteristic, or a common background that cannot be changed, or shares a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce.
10. The case of DH (Particular Social Group: Mental Health) Afghanistan [2020] UKUT 223 (IAC) sets out clearly within the headnote the in respect of establishing a PSG;
1. The Geneva Convention relating to the Status of Refugees 1951 provides greater protection than the minimum standards imposed by a literal interpretation) of Article 10(1)(d) of the Qualification Directive (Particular Social Group). Article 10 (d) should be interpreted by replacing the word "and" between Article 10(1)(d)(i) and (ii) with the word "or", creating an alternative rather than cumulative test.
11. Further in-depth discussion is found at paragraphs 57 - 72 of the determination and provides a clear analysis of how a disjunctive approach to the test for membership of a particular social group can be considered.
12. Furthermore, reference is made to the discussion within EMAP (Gang violence - Convention Reason) El Salvador CG [2022] UKUT 335 (IAC), as to the conjunctive or disjunctive approach to the particular social group test, discussed at paragraphs 90 - 111. Following both authorities, it is submitted the FTTJ was entitled to apply the disjunctive approach that she did. As such the A did not need to meet the social perception test, distinct identity, as well. The extant appeal arises from a claim made pre-Nationality and Borders Act 2022 [NABA 2022], as such, it is submitted the FTTJ could take a disjunctive approach to the particular social group test and to not apply the conjunctive test is not an error law.
13. The FTTJ found that as asserted within the CPIN, the Respondent acknowledges that males in Iraq share a common background that cannot be changed [22];
2.2.3 Male potential victims of 'honour' crimes (based on their involvement in a premarital or extramarital relationship with a female) are not considered to form a particular social group (PSG) within the meaning of the Refugee Convention. This is because while they do share a common background that cannot be changed in that they have compromised the familial 'honour' of the females' family, they do not have a distinct identity . This is due to differing notions of male and female honour, the patriarchal nature of Iraqi society and a lack of evidence to suggest that male potential victims of 'honour' crimes are perceived as being different by the surrounding society. [ emphasis added ].
14. It is submitted the CPIN is founded on a conjunctive approach to membership of particular social group as its publication post-dates NABA 2022, however the principle is clearly outlined that a male in Iraq who has compromised the honour of the female has a common characteristic that cannot be changed.
15. Furthermore, it is submitted that the FTTJ was aware of the relevant case law and applied, there is no need to refer to them specifically in the decision making, it is clear from the language of the decision that the disjunctive approach was understood and applied.
Conclusion
2. The FTTJ applied the correct legal test in respect of her finding for convention reason. The grounds of appeal are misconceived. The determination does not contain an error of law, material or otherwise.
Discussion and analysis
12. The application for permission to appeal seeks to rely on a legal principle that has no application in law on the facts, namely the conjunctive approach mandated in Nationality, Asylum and Borders Act 2002, which has no application in light of the relevant dates applicable to this appeal. At the hearing before us, Mr McVeety for the Secretary of State accepted that the single ground of challenge was wrong.
13. A person challenging a decision of Judge of the First-tier Tribunal must have regard to the guidance provided by the Court of Appeal in Volpi v Volpi [2022] EWCA Civ 462 at [2], Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 at [26], and Hamilton v Barrow and Others [2024] EWCA Civ 888 at [30-31]. We have done so.
14. The Judge clearly considered the evidence with the required degree of anxious scrutiny, has made findings supported by adequate reasons, and applied the correct legal test relevant to the specific facts of this appeal.
15. We do not find Secretary of State has established any legal error material to the decision of the Judge to allow the appeal. The Judge correctly applied the applicable law. The findings made are within the range of those reasonably open to the Judge on the evidence and have not been shown to be rationally objectionable. Mr McVeety did not seek to persuade us otherwise.
Notice of Decision
16. No material legal error is made out. The determination shall stand.
C J Hanson
Judge of the Upper Tribunal
Immigration and Asylum Chamber
25 April 2025