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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-003104
	First-tier Tribunal Nos: PA/51024/2023 LP/01479/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 1 ^st April 2025

 

Before

 

UPPER TRIBUNAL JUDGE KEITH

 

Between

 

'SK' (IRAQ)

(ANONYMITY ORDER continued)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr R Ahmed, Counsel, instructed by Hanson Law Limited

For the Respondent: Mr P Lawson, Senior Home Office Presenting Officer

 

Heard at Birmingham Civil Justice Centre on 5 ^th March 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. The reason is that the appeal concerns a protection claim.

DECISION AND REASONS

1.               This decision relates to the re-making of the appellant's appeal against the respondent's refusal of his asylum and human rights claims. The appellant's claim was made before 28 ^th June 2022, so the provisions of sections 32 to 36 of the Nationality and Borders Act 2022 do not apply.

2.               The re-making raises two questions.

3.               The first issue is whether the appellant's posts on Facebook and other social media material, critical of the authorities in the autonomous Kurdistan Region of Iraq ('KRI'), and attendance at demonstrations in the UK were contrived so as to bolster a previously rejected asylum claim?

4.               The second issue is whether, even if the posts and attendance at demonstrations were contrived, would that make any difference to the risk which the appellant claims to fear if he were returned to the KRI?

Background

5.               The appellant had brought an asylum claim which was refused by the respondent in a decision of 6 ^th February 2023. This was on the basis of both claimed adverse interest in the KRI, and the appellant's 'sur place' activities in the UK, having arrived here in 2020. A Judge of the First-tier Tribunal had dismissed the appellant's appeal following a hearing on 28 ^th March 2024. The appellant appealed against that decision and the hearing to consider whether the FtT Judge had erred in law was considered by Upper Tribunal Judge Lindsley. In her decision, which is annexed to these reasons and which was dated 15 ^th October 2024, she allowed the appellant's appeal on a limited basis. She did not accept that the Judge had erred in law in rejecting in its entirety the appellant's account of having suffered any adverse interest in Iraq. However, she accepted that part of the appellant's claim had been that he also feared persecution based on his sur place activities in the UK and that the Judge had failed to provide reasons for rejecting that part of his claim. She therefore allowed his appeal on that limited basis. In doing so, she preserved specific findings made by the FtT Judge, namely §§22 to 31. At §22, the FtT Judge had concluded that the appellant was not at risk on return. At §§23 and 24, he recited the parties' cases, to put his findings in context. These findings are at §§25 to 31, which I set out below. Remaking was directed to be retained in this Tribunal. Mr Ahmed did not argue before me that remaking ought not to be retained in this Tribunal.

The Preserved Findings

6.               The FtT Judge found as follows:

"25. I have weighed up all of the evidence in the round and having done so I am not satisfied that the Appellant has given a credible account. I am troubled most of all by his inconsistent evidence on who had killed his father. In SCR he said that it was the girl's family. In fact, he was asked further what would happen to him upon return and he said that the family of the girl would kill him. Asked then whether the police could protect him, he said that the family will want revenge. He said this was the only reason why he could not return but then said that he was also wanted by the Iraq state and the PMF. It is very clear to me that his suggestion is that a real assault did take place and that the victim's family are blaming him. This is different to in his AIR where he said that it was the PMF who killed his father, under the name of a made-up family and that the scenario is created against him. It is argued that he was tired at his SCR and so the discrepancies ought to be overlooked. I am not satisfied however that that can adequately explain away the very significant contrast in narrative. It is not a difference arising out of one single question but a series. If as the Appellant has later said, there was in fact no family and this has all been made up by the PMF, it is not credible why the Appellant would not have said this at his SCR. Over the several questions asked in his SCR he identifies the 'family' and that they would seek revenge and that he feared them. If none of this was true, and it was in fact the PMF I find that the Appellant would have said so from the very outset. Furthermore, the Appellant has told me that the family of the victim were members of the PMF, but that makes no sense if there was no family/ victim in the first place. I am not satisfied that his tiredness and the timing of the SCR is capable of explaining such a significant and maintained incorrect account. It is more likely that the Appellant has later altered his account in an attempt to bolster it.

26. As such, I find that the Appellant has given a confused and conflicting account on a core part of his narrative. I also bear in mind the s.8 point and the Appellant's failure to claim asylum in France as damaging his credibility. The ASA points to human rights violations by France and that the Appellant was under the direction and control of an agent. In his AIR the Appellant only speaks of being under the control of an agent as the reason. But this is just a vague assertion with no further detail. He was in France for at least 8 days. I am not satisfied that on his mere comment that he did not have opportunity or ability to be able to make himself known to the authorities in France. I find that the Appellant has failed to provide a reasonable reason to rebut the engagement of the s.8 provision.

27. I reject his account of adverse interest from the PMF.

Re-Documentation

28. The Appellant has a CSID which is held in Iraq by his family. The ASA para. 66-69 argues that since March 2024 CSID's or any other documents are no longer valid and that only the new national ID card is recognised. There is no further detail about how this has operated on the ground, and in particular in circumstances as set in SMO2:

'29. If P has neither a CSID nor an INID there is a real risk of P being detained at a checkpoint until such time as the security personnel are able to verify P's identity. It is not reasonable to require P to travel between Baghdad and IKR by land absent the ability of P to verify his identity at a checkpoint. This normally requires the attendance of a male family member and production of P's identity documents...'

29. SMO2 is a country guidance case and so there needs to be cogent evidence of a durable change to depart from it. I am not satisfied simply upon the references that the interior minister has said in a speech that the INID is now the only official document, that in reality all other documents are rejected without more and that there are no exceptions or opportunity afforded to get an INID post 1st March 2024. More is needed to depart from SMO2. Here, I am satisfied that the Appellant is not without family support upon return. He has an uncle. He can be met with the Appellant's CSID and nationality certificate and his own documents to vouch for the Appellant. I have no evidence that in those circumstances that would not be enough.

Humanitarian Protection

30. Bringing forward my findings I can see no basis that the Appellant can succeed on humanitarian protection otherwise.

Article 8 - private life

31. Mr Ahmad conceded that this would stand or fall with the protection claim. Given that I have found against the Appellant on that, there is no basis of success under private life."

Issues

7.               I confirmed at the beginning of the hearing the issues on re-making. This was following the previously adjourned hearing where at the last moment, the appellant had disclosed additional evidence of Facebook posts and photographs of his attendance at demonstrations in Birmingham and also apparently his giving some form of video interviews. The two issues were therefore as follows:

(1)            The respondent, having accepted that the Facebook posts and the recordings and the appellant's attendance at the demonstrations have in fact occurred, says that the appellant has no genuine political belief in opposing the KRI authorities. Instead, these claims are contrived to bolster a weak asylum claim in the context of preserved adverse credibility findings.

(2)            Assuming that the activity is contrived, whether there is any evidence to suggest that the KRI authorities monitor political activities outside the KRI and whether as a consequence the appellant would be at risk on return. The respondent says that the appellant is neither a prominent political figure or a journalist. He would not face harm and could remain neutral in the KRI as he did so prior to leaving that country.

The Appellant's Witness Evidence

8.               The appellant gave witness evidence with the benefit of a Kurdish Sorani interpreter. I checked the understanding of the appellant and interpreter and apart from needing to clarify specific questions which were not because of any language difficulties, there were no apparent language difficulties nor were any raised by the appellant or his representative. I should add in this context that I have borne in mind that the appellant has limited literacy. He cannot read or write in English. He is able to read and write Kurdish Sorani, having been educated up to year six (primary school level) in Iraq but his education ended at that stage and before leaving Iraq aged around 31, he was a labourer. He adopted a witness statement, a copy of which was in his bundle. For the remainder of these reasons, where I refer to a page number in that bundle, I do so in the following notation: 'X/B'.

9.               I summarise the gist of his evidence although I have considered it in full. The appellant is an Iraqi citizen of Kurdish ethnic origin, from Jalawla. That was where his identity documents were issued. His family later fled to another part of the KRI, Dharbandikhan. After the Iran/Iraq war the family returned to Jalawla. Before he came to the UK he was not aware of social media. Upon arriving in the UK, he made friends and discussed a lot of the problems back home in Kurdistan, particularly people being arrested and with no freedom to talk. He elaborated in oral evidence that he had had political opinions which were critical of the Kurdish authorities when he was in the KRI but was unable to express or act upon these in the KRI for fear of what the authorities there would do. He did not initially express these views in the UK as he had arrived at the beginning of Covid in 2020 and it was only in around 2022 that he met people of Kurdish ethnic origin in Coventry, in a restaurant, when they became good friends. One friend told him that he was politically active in the UK and had used Facebook to highlight the atrocities committed against the Kurds in Iraq and had told the appellant that by using Facebook his message would go to 'different corners of the globe'. The same friend told him about demonstrations taking place in Birmingham. The friend set up a Facebook account for the appellant and the appellant was amazed to see that he was able to post comments critical of the KRI authorities without facing any problems in the UK. He had not previously believed it possible to be critical of the KRI authorities in the UK, without there being consequences.

10.           The appellant started posting political opinions on Facebook against the KRI government and the 'Popular Mobilisation Forces' militia or 'PMF' in 2023. The appellant clarified in oral evidence that his Facebook account had been opened on 16 ^th October 2023 by his friend and that he had not in fact written his own posts until 5 ^th May 2024, some six months later. Before that, his friend had written the posts on his behalf. Even after that stage, both that friend and others had helped him make his Facebook posts. He had accepted that he sometimes copied and pasted from friends who shared similar opinions and asked friends to check what he posted in public. He wrote about the killing of innocent journalists, Kurds not being allowed to express political opinions and large scale corruption and assassinations within the KRI. He started attending demonstrations and was photographed, with photographs posted on Facebook. He attended eight demonstrations between October 2023 and most recently February 2025, all in the centre of Birmingham. He had given two interviews on some form of news media channel and one of the videos had received 31,900 views and he therefore he believed he was a high profile activist. He was not able to comment on whether the KRI authorities had looked at his Facebook account or had photographed him when he was attending demonstrations but he believed that there was a real risk of this. He referred to and reiterated the fact of political violence in the KRI.

11.           The appellant also relied upon a letter from the 'Dakok Support Centre', a registered charity based in the UK, of 4 ^th December 2024, at 16/B which had referred to the appellant being a member of its organisation from November 2024, having participated in numerous community events including litter picking initiatives and asserting that if the appellant were returned to the KRI, he would be at risk. The appellant was asked why none of his supporters with whom he claimed to have been engaged in various community initiatives had provided witness statements or had attended to give evidence on his behalf at the hearing. He said that he had not known that he had needed to ask them do so. The appellant was also asked about pamphlets or posters which he appeared to be holding at demonstrations and he was asked whether he had a printer or a laptop. He explained that he had no laptop but a mobile phone and an iPad and that the small posters that he held up had been provided to him by friends within the organisation that he supported.

The Appellant's Submissions

12.           I have considered the skeleton argument at 6/B. The appellant refers to WAS (Pakistan) v SSHD [2023] EWCA Civ 894 for the proposition that aspects of evidence may not be credible but that a fact-finder must consider the intrinsic likelihood to the lower standard. Asylum seekers did not need direct evidence that they were being covertly monitored. The appellant also referred to YB (Eritrea) v SSHD [2008] EWCA Civ 360 for the proposition that direct evidence of covert monitoring and its mechanics was unlikely to be available. The appellant in WAS did not need to show that he had definitely come to the adverse attention, only that there was a real risk. The appellant cited the Iraqi Penal Code about insulting the National Assembly or government and also various open source reports about fears arising from monitoring of social media posts. I do not recite them all but have considered them in all and pause to note that a number of them refer to the Iraqi government as opposed to the KRI authorities, which are autonomous from the Iraqi government. The skeleton argument cites headline principles from various open source reports, and which also include allegations of civil society and organisations reporting social media pages being monitored, although they do not explain how. There is one reference in a Freedom House Report of 2022 at 10/B, which refers to the use of spyware software, called 'Pegasus' although the appellant does not claim that he has been the subject of this. The same report refers to militias, specifically backed by the Iranian government, being able to conduct surveillance of their own although how this differs from other general assertions is not explained. There is, at 11/B, a further reference to internet service providers in the KRI having technicians being able to access old Facebook accounts belonging to customers and monitoring how many times they were logged in or out and how many devices were logged in or out. That of course ignores the issue that the appellant has not claimed to have conducted any of his internet activity in the KRI.

13.           The appellant also argued that as per the authorities of ' HJ' (Iran) [2010] UKSC 31 and ' RT' (Zimbabwe) [2012] UKSC 38, he could not be expected to lie about his political opinion on return, because his political beliefs were genuine. Alternatively, even if it were contrived, the appellant was still at risk as per the authority of Danian v SSHD [1999] EWCA Civ 3000.

14.           The appellant also relied on the authority of XX (PJAK - sur place activities - Facebook) Iran CG [2022] UKUT 23 (IAC) and the fact that deletion of material did not prevent friends still having access to messages that a user had sent and there were limits on the ability to delete all relevant material without an ability to leave a digital footprint.

15.           In summary, Mr Ahmed argued that by virtue of the number of views of the appellant's video footages and the fact of his open access Facebook account, the appellant was something of a 'media superstar,' and even if he were to close the account, it would not mitigate any relevant risk. There was no reason also to suppose that merely because he had attended demonstrations in Birmingham rather than London this materially reduced the risk. Just as those who had engaged in civil disorder in the UK in the previous year had been identified using social media footage there was every possibility that the appellant could be identified in the UK given the number of photographs and CCTV in the UK. Mr Ahmed invited me to consider that the appellant was a genuine witness whose credibility should be accepted. He had provided an account which explained why he had not previously been critical of the KRI government. It was perfectly credible that having entered the UK, and having felt a greater sense of freedom he now felt able to share those views. There was no reason he should be expected to not to express those views in future. Even if this were not the case, it was mere speculation to assess that contrived material would not attract a similar risk of adverse treatment in the KRI.

The Respondent's Position

16.           The respondent referred to the CPIN (Opposition to the government in the Kurdistan Region of Iraq (July 2023)). There was no evidence suggesting that the KRI authorities monitored political activists outside the KRI in the same way that the Iranian government had the ability to do so. Moreover, the appellant was neither a prominent figure nor a journalist and there was no indication that the KRI authorities had any interest in him. Given the lack of credibility regarding his political engagement he would not face harm and could remain neutral in Iraq.

17.           Mr Lawson reiterated that the appellant had only opened the Facebook account after he had received the respondent's decision in February 2023 to refuse his asylum claim. His family had not been involved in politics in the KRI in contrast to his sudden embrace of it in the UK, after the adverse asylum decision. It was clear that the activities were contrived to bolster a weak claim and just as the FtT Judge had concluded that the appellant was willing to embellish his account, there was no reason to expect that he would not embellish this account. He had only attended events in Birmingham, there was no evidence of a real risk of being identified by the KRI authorities and the fact of his posts that did not indicate a high profile activist or a journalist. It was also notable that no one from the organisation with which he was involved had provided a witness statement. The appellant could, as someone who had contrived his claim, be expected to close his Facebook account and to return to the KRI.

Discussion and Conclusions

18.           I do not recite the law in any detail. As the appellant's claim predated the change in the law on the assessment of risk under section 32 of the 2022 Act, the test is therefore one of a genuine fear of persecution, and that there is a real risk or reasonable degree of likelihood of such persecution, for a convention reason, namely actual or imputed political opposition to the KRI authorities and/or the PMF. I bear in mind that the assessment of risk is a relatively modest threshold as reiterated by the Court of Appeal in MAH (Egypt) v SSHD [2023] EWCA Civ 216, in particular §52. The remainder of the legal propositions relied on by the appellant are not disputed, which include that even if the appellant has contrived his claim it might be possible in principle for the appellant nevertheless to remain at risk, because of political belief being imputed. Touching briefly on XX (PJAK), that case confirmed there is no evidence that Facebook can be "hacked" (headnote (5)) but confirmed there may be means of monitoring someone's Facebook account on a targeted ad hoc basis. Those seeking to monitor Facebook accounts cannot "scrape" them in the same unautomated way as other websites allow automated data extraction.

19.           I start by considering the issue of whether the appellant has contrived his activities and whether he has any genuine political opposition to the PMF militia or the KRI authorities more generally. I remind myself of the general uncontroversial position that merely because somebody has lied or exaggerated their evidence in one respect does not mean that they are similarly lying in all respects. I remind myself of that proposition, because the FtT Judge previously rejected the Appellant's account of adverse interest when in the KRI, in its entirety, and did not find him to be credible.

20.           I also bear in mind that the appellant's activities on Facebook and his attendance at demonstrations are not themselves disputed. The question is why the appellant has done so.

21.           First, I may consider that the FtT Judge had previously found that the appellant was willing to alter his account in an attempt to bolster it in relation to who was responsible for his father's death. The Judge had also borne in mind Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 which remains a relevant factor. The Judge had assessed the appellant as providing vague assertions as to the reason for not claiming asylum earlier.

22.           Turning to the appellant's narrative of his interest in opposition or political affairs, the appellant begins by discussing his oppositional beliefs when he was in KRI itself but his inability to act upon that when he was there. However, Mr Ahmed has not taken me to any passage in the witness statement or the Statement of Evidence Form when he was interviewed which relates to that assertion. That damages his credibility.

23.           Coming on to the timing of the appellant's activities in the UK, on the one hand I am prepared to accept that there may have been a period when by virtue of the Covid pandemic the appellant was isolated in the UK and it was not until a couple of years afterwards that he met people of fellow Kurdish ethnic origin and with whom he discussed political matters in the KRI. I accept Mr Ahmed's submission that the letter in support from the Dakok charity has not been challenged and the appellant is a member of that group. That is therefore a genuine one. On the other hand, the appellant already claimed to be opposed to the KRI authorities on his arrival in the UK in 2020, notwithstanding Covid isolation, and left it many months after the adverse asylum decision in 2023 (and years after the end of the Covid lockdown periods), before engaging in any sur place activities. To the extent that this might be explicable because it was not until 2023 that he met others who shared his views, what is notable is that, although there is no requirement of corroboration, there is obviously evidence that could have been adduced by the appellant, but has not been. His explanation is that no one had advised him, despite having legal representation. I do not accept that is a credible explanation. The evidence that he could have adduced includes a witness statement of his friend who set up and made repeated posts in his name on his Facebook account, and witness statements from any other supporters with whom he has claimed to have been involved in the local Kurdish community group in Coventry and attended demonstrations in Birmingham. This damages the appellant's credibility.

24.           The Dakok charity letter instead refers in very brief terms to the appellant's activities for the charity, but in unspecified terms. The appellant claims to be a person of higher profile, so as to attract risk, but without any witness evidence beyond his own vague assertions for his actions, together with the evidence on Facebook and at demonstrations, to which I now turn.

25.           I anticipate that the appellant's literacy in Kurdish is relatively limited, having had only six years of schooling in Iraq, and he is entirely illiterate in English. That being the case, what is startling is that the majority of the evidence in the bundle before me (in particular 112 to 130/B, from the Facebook excerpts at 106/B onwards) was written in the time period when he says his friend wrote that material, ie. not by him. I accept his account that he was relatively unsophisticated in his social media use and therefore he was a little uncertain how to do so. I further accept that he has been candid about the fact of his friend having produced the posts on his behalf and in his name, rather than in the friend's name. However, I do not accept further that the posts were because of the appellant's genuine political beliefs. The obvious alternative inference is that the 'friend' produced the posts to contrive and support the appellant's protection claim. The posts in many cases are detailed, (I do not recite them), and make complex and nuanced criticisms of the KRI authorities. In contrast, nowhere beyond his generalised assertions about his 'dreams' of 'freedom' does the appellant explain such complex criticisms of the KRI authorities and the PMF. In summary, his claimed oppositional beliefs are vague, in contrast to the detailed posts that have been prepared, even on his own account, by his friend who has not provided a statement nor attended to give evidence. Even applying the lower standard, as per MAH, I do not find that the posts have been prepared because of the appellant's genuine oppositional views but rather have been contrived.

26.           The same is true of the appellant's attendance at demonstrations. He has attended around eight and was unwilling to travel beyond Birmingham because of the cost to do so and his limited financial means. While I do not criticise him for that, he accepted that he has held up posters that have been produced by friends and supporters, none of whom have provided evidence. Even on his own account he had been photographed so that he can be known and he wishes his messages to be 'broadcast to the world'. However, beyond general assertions about desiring 'freedom,' the appellant has provided no detail as to the basis of his oppositional activity. I do not accept the appellant's credibility as to his motives in engaging in sur place activity.

27.           I then consider the consequences of the appellant's activities being contrived in the sense that he does not have a genuine oppositional belief and would not continue such activities in KRI. I find that prior to applying for any laissez-passer or passport, he would close his Facebook account and any other social media that he has. I bear in mind XX (PJAK) and accept that any messages sent to friends may still be viewable by them. I have carefully considered the Country Policy and Information Note that talks of risks to journalists and those prominent in oppositional activities within the KRI. As already outlined, the appellant has referred to monitoring of those within the KRI, for example, through internet service providers. However, there is no reliable evidence before me beyond Mr Ahmed's general assertion that 'of course the authorities must have monitored' and his reliance on the proposition that there need be no direct evidence as to the KRI authorities' willingness and ability to monitor people outside the KRI. I do not accept that there is evidence of monitoring of social media activities outside the KRI in the same way, for example, as by the Iranian authorities, or a 'pinch point' on return, similar to in Iran, and referred to in AB and Others (internet activity - state of evidence) Iran [2015] UKUT 257 (IAC). I also do not accept that the appellant is of such prominence, notwithstanding views of footage taken of him, to attract attention from the KRI authorities or the PMF as an activist or commentator. His expressed views (which I have found to be contrived) are vague and generalised. There is no witness evidence from his fellow activists about his activities. The majority of the more detailed social media posts were written by a friend, who has not given evidence, and there is no reliable evidence that even detailed posts, copied from other material, would result in ad hoc searches or monitoring by the KRI authorities or the PMF. Given the stark gaps in the witness evidence that could have been adduced, I am not prepared to accept that the social media posts, photographs and footage are evidence which would result in imputed political opposition, or have attracted government, or government sponsored interest, even on the modest assessment of risk set out in MAH.

28.           For the above reasons, I find that the appellant does not have a genuine, let alone a well-founded fear of persecution on return to the KRI as a result of sur place activities in the UK. The activities themselves are contrived and do not support an assessment that the appellant would be perceived as being opposed to the KRI authorities of the PMF.

Notice of Decision

29.           I re-make the decision on the appellant's appeal against refusal of his protection and human rights claim by dismissing the appellant's appeal.

 

J Keith

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

27 March 2025

ANNEX - ERROR OF LAW DECISION

 

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-003104
	First-tier Tribunal No: PA/51024/2023

THE IMMIGRATION ACTS

 

Decision & Reasons Issued:

 

15/10/2024

 

Before

 

UPPER TRIBUNAL JUDGE LINDSLEY

 

 

Between

 

SAK

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

Representation :

For the Appellant: Mr L Singh, of Counsel, instructed by Hanson Law Ltd For the Respondent: Mr P Lawson, Senior Home Office Presenting Officer

 

 

Heard at Field House on 8 October 2024

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

 

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

 

 

DECISION AND REASONS

Introduction

1.                The appellant is a citizen of Iraq born in 1988. He came to the UK and made an asylum and human rights claim to remain on 17 ^th January 2020. The application was refused on 6 ^th February 2023. The appellant's appeal against this decision was dismissed by First-tier Tribunal Judge Dieu after a hearing on the 28 ^th March 2024.

2.                Permission to appeal was granted by Judge of the First-tier Tribunal Pickering on 4 ^th July 2024 on the basis that it was arguable that the First-tier judge had erred in law for the reasons set out in the third ground: namely that the skeleton argument for the appellant had identified that he wished to rely upon sur place activities and it is arguable that the First-tier Tribunal had not reached findings on this material matter. Permission was refused on grounds 1-4.

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

Submissions - Error of Law

4.                In the grounds of appeal it is argued in ground three, in short summary, that the First-tier Tribunal erred in law as follows: the First-tier Tribunal erred by failing to consider the appellant's sur place activities in the UK despite these being outlined in the skeleton argument and there being evidence of the demonstrations that he attended at pages 33 to 52 of the appellant's bundle. This was a key part of the claim the appellant put forward and needed to be considered.

5.                The respondent filed no Rule 24 notice and Mr Lawson conceded that the First-tier Tribunal had erred for the reasons set out in the grounds. It was agreed by both parties that this issue could be remade in the Upper Tribunal. The remaking will only be on the point of sur place activities and the findings of the First-tier Tribunal on other issues (the credibility of his claimed history of persecution in Iraq, redocumentation, humanitarian protection, and Article 8 ECHR) at paragraphs 22- 27, 28-29, 30, 31) are preserved.

Conclusions - Error of Law

6.                From the decision of the First-tier Tribunal it is clear that sur place activities were to be considered as at paragraph 19 of the decision it is said that the Home Office representative, Mr Boateng: " confirmed that consent was given for the sur place activities to be considered." But there is absolutely no mention of the sur place activities after this point in the decision. It is clear from paragraphs 13-14 of his statement that the appellant has said that he is politically active in the UK and gives details of demonstrations he has attended in Birmingham and states that he believes that he can be identified from his Facebook post and profile, and that he will be attract adverse attention from the KRG authorities as a result. There are photographs in the appellant's bundle of him at demonstrations to support this statement This is also set out as an issue at paragraphs 9, 32 - 45 of the skeleton argument. A material error is therefore found on this point by consent.

Decision:

1.       The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.

2.       I set aside the decision of the First-tier Tribunal but preserve the findings at paragraphs 22 to 31 of the decision.

3.       I adjourn the remaking of the appeal which will deal solely with the claim that the appellant will be at real risk of serious harm on return to Iraq due to his sur place activities in the UK.

Directions:

1. Any evidence on which either party wishes to rely, and which is relevant to the issue being remade, namely risk arising to the appellant from sur place activities, must be electronically filed with the Upper Tribunal and served on the respondent within 28 days of the date this decision is received.

 

 

Fiona Lindsley

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

8 ^th October 2024