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

A black background with a black square Description automatically generated with medium confidence

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2024-003450 First-tier Tribunal No: PA/53389/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 24 March 2025

 

 

Before

 

UPPER TRIBUNAL JUDGE O'BRIEN

DEPUTY UPPER TRIBUNAL JUDGE ANTHONY

 

Between

 

SM

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Ms H Masih of Counsel, instructed by Primus Solicitors

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

 

Heard at Birmingham Civil Justice Centre on 17 February 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

1. This is the re-making of the decision in the appellant's appeal, following the setting aside of the decision of First-tier Tribunal Judge Parkes ('the Judge'), who had dismissed the appellant's protection and human rights appeal. The decision of Upper Tribunal Judge Pinder setting aside the Judge's decision is appended to this decision as a separate annex.
2. We have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal because the underlying claim involves international protection issues in that the appellant claims to fear persecution or serious harm on return to Iraq. In reaching this decision, we are mindful of the fundamental principle of open justice, but we are satisfied, taking the appellant's case at its highest for these purposes, that the potential grave risks outweigh the right of the public to know of his identity.

Background

3. The appellant is a national of Iraq whose date of birth is 1 January 1980. He most recently entered the United Kingdom in or around April 2019, having previously entered and unsuccessfully claimed asylum on 16 February 2000 and having been returned to Iraq in 2009.
4. The appellant made further submissions on 23 December 2022 which were refused on 22 May 2023. It is an appeal against that decision which came before the Judge, who dismissed the appeal on all grounds. The appellant was given permission to appeal against the Judge's decision on 2 grounds: that the Judge erred in his assessment of the appellant's political activities; and that the Judge erred in his assessment of the appellant's ability to re-document himself.
5. Judge Pinder found for the appellant on the second ground only. She set aside the Judge's decision (and in particular his findings at [31]), with his findings at [15]-[30] preserved. Thus the matter comes before us to remake the Judge's decision within those parameters.

Analysis and Conclusions

6. It is the appellant's case that he does not have any Iraqi identification documentation. Instead, he claims that he gave his CSID to the agent arranging his escape from Iraq, upon leaving the country.
7. It is useful to set out in full those findings preserved by Judge Pinder, as well as the immediately preceding paragraph for context:

14. At the start of the hearing Ms Bhachu raised whether the Home Office were questioning the genuineness of the Appellant's sur place activities. For the Home Office Ms Newton submitted that the Home Office did not accept the Appellant's activities were genuinely motivated and that no amendment to the Refusal Letter or review was needed.

15. That is difficult to square with paragraph 33 of the Refusal Letter, page 26, which states "In considering this principle and as outlined above whilst it is accepted that you have expressed your political opinion, and it is reasonably likely that you would continue to do so, simply expressing your political opinion is not considered in general to put you at risk of persecution and/or serious harm."

16. Similarly in paragraph 52 of the Refusal Letter, page 30, the view of the Home Office was expressed as follows: "The following has been considered as on a sliding-scale assessment against your personal circumstances: You have raised opposition or criticism of the Government of Iraq, the Kurdistan Regional Government or local security actors..." The review refers to the Refusal Letter but does not add to the assessment of the Appellant's motivation.

17. The determination in the Appellant's first claim is at page 931. The Appellant's claim was that in his work he had access to members of the KDPI, he was asked to plant explosives to kill members of the KDPI but refused to do so as he was against any form of violence and could not do such a thing. He was imprisoned and released on condition of carrying out the killings although he had not intention of doing so. On a visit to Arbil a number of members of the KDPI had been killed and he was arrested but managed to run away. Alternatively he had not been arrested and found out a day later when the hotel manager told him that the KDP had come to arrest him, page 939.

18. In that determination the Adjudicator, Mrs M Gurung-Thapa, rejected the Appellant's credibility finding that he had fabricated the account. There were significant discrepancies in the Appellant's accounts of events including how many members of the KDPI had been killed. It was not accepted that the Appellant's brother had been killed. The Appellant had not been a member of any political party in Iraq. The fact that Mrs Gurung-Thapar rejected the Appellant's credibility is a factor relevant to the assessment of the credibility aspects of this appeal but is not automatically determinative of those issues.

19. The rejection of the Appellant's credibility is supported by the complete absence of any problems for the Appellant in the years after his return to Iraq. His evidence was that he was detained for his identity to be confirmed and he was then released. The KDPI and the other organisations still existed and while the balance of power may have shifted over time it does not appear that any interest, adverse or otherwise, was shown to the Appellant, his release after the confirmation of his identity is significant. The account now relies on an argument between Kolbars with no political connotations.

20. The account before Adjudicator Gurung -Thapar was different but it does have similarities with the facts of the Appellant's claim in this appeal. In the first the Appellant was asked to kill people and in this he threated to do so. However, in both the people involved were killed by others and the Appellant fled to avoid being blamed.

21. There is no supporting evidence for the Appellant's account of events. All the information about the death and the Appellant's being blamed came from Ali. There is no evidence from him although the Appellant has remained in contact with him and had spoken to him briefly recently. Although the Home Office may object to evidence from such a source as being self-serving or unreliable as the writer would not have been available for cross-examination the assessment of such evidence is for the Tribunal taking into account the submissions received from both parties.

22. The Appellant's explanation for the brevity of the conversation he last had with Ali was that he did not want to put Ali in danger. On the Appellant's account Ali is not of interest to the authorities, simply the Appellant's source of information. It is not clear how it would put Ali in danger and a written account of events could have been requested and sent through one of the many international companies that provides those services. The absence of any supporting evidence from Ali undermines the Appellant's case.

23. The Appellant maintains that his brother has been killed but there is still no supporting evidence for that. He said that his uncle was living in the house and had retained his CSID which was returned to him when he was removed to Iraq in 2009. The Appellant said that it was taken off him while on his way to the UK, it is not clear an agent would do that. One explanation is that it would be needed to confirm to the person paying for the Appellant's journey that a payment needed to be made. There is case law that agents are not paid in full up front as there is little trust in the arrangements made.

24. Taking all of the above into account and bearing in mind the lower standard that applies I find that the Appellant's account is not credible. I do not believe that the Appellant was involved in an altercation with a fellow Kolbar who later died or that the Appellant is of any interest to anyone in the IKR including the Police. In rejecting the Appellant's account it follows that the claim made is not true and the Appellant can return to the IKR without difficulty on these findings.

25. The Appellant's sur place activities raise different issues as the Appellant's case is that he would be identified as an opponent of the government. That he has undertaken social media posts and attended demonstrations is clear from the documentary evidence. It is also clear that the Appellant does not have a political profile from his time in Iraq and did not have a Facebook account when in the country.

26. The Appellant was asked if he is literate in Sorani and said that he has very little, others write the posts and he downloads them on his page. He had been told by friends in the UK about posting on Social Media and he confirmed that they were individuals who had asylum status, he did not accept that the posts were to bolster his asylum claim. The Appellant said he had not posted about his previous experiences in Iraq and said that he was a peaceful man. He maintains that he has no family in Iraq.

27. The Appellant's claimed experiences in Iraq, if true, would be relevant material to be posted on the internet as a challenge to vested interests and the power of those with connections. The fact that no posts of that kind have been made is, given the Appellant's claimed opposition to the regime, a feature which calls into question what he said about events there.

28. Asked about his role the Appellant said that he helped in organising and would hold banners, there are pictures of him doing so and these had been posted on his friends pages. He had spoken to journalists and NRT but there was no evidence of the Appellant's comments or observations having been published in any way.

29. It is suggested that the Appellant will be seen as a journalist. I do not accept that the re-posting of content created by others would be seen as such. The Appellant has not posted about what he claims happened to him and there is no investigative element to anything he has done.

30. With no profile in Iraq, low level involvement in the protests and simply re-posting content created by others I do not accept that the Appellant's activities would place him at risk in Iraq. The CPIN on Opposition to the government in the KRI at section 3, page 6, makes it clear that playing a low level role in in protests against the KRG does not create a real risk.

8. The Judge records at [18] that the judge hearing the appellant's previous appeal in 2002 found him to have fabricated his account. The Judge goes on at [24] to make his own adverse credibility findings about the appellant's account of events in Iraq. Whilst these findings do not in themselves necessarily render incredible the appellant's claim to have given his CSID to his agent, they are relevant to our assessment of that issue.
9. As for the appellant's evidence on that exact point, he claimed that the agent had taken the CSIDs from everyone in his party (around 6 of them). He suggested that it was commonplace for agents to take the identification documents of those transporting out of Iraq as soon as they were no longer needed, that is to say once the individual was over the border. When asked if the agent had done the same when the appellant had previously left Iraq, he confirmed that the agent had done so, but that he had been able to obtain a replacement CSID when he had returned to Iraq in 2009.
10. The problem with this evidence is that the appellant told the Judge (see [23]) that his uncle had retained his CSID when he previously left and returned it to him when he was removed to Iraq in 2009. When asked by Ms Masih to explain the obvious inconsistency, the appellant claimed that his uncle had attended the airport with his own identity documentation to secure the appellant's entry into the country. He did not give any explanation for why he had told the Judge that which is recorded at [23].
11. This, we find, is a significant inconsistency in the appellant's evidence going to the key issue of whether he had given his CSID to the agent. Taking this together with the other preserved adverse credibility findings, we are unable to accept that it is even reasonably likely that the appellant did so. Instead, we find that the appellant either has retained or has access to his CSID.
12. We should add that we were similarly unimpressed with the appellant's evidence when it was suggested to him that he had his CSID with him in the United Kingdom. He said that he could not have it because he had been searched and detained by the UK police. However, he accepted that he had had a mobile phone with him on arrival which was returned to him on his release from detention. Therefore, it is overwhelmingly likely that any identity documentation he had on him at the time of his detention would similarly have been returned to him on his release.
13. Even if the appellant does not have his CSID with him in the United Kingdom, we find that he left it, as he did before, with a relative. The appellant's claim that his uncle no longer speaks to him because of the trouble he has caused we reject as a false attempt by the appellant to invent barriers to his return to Iraq. The appellant's uncle was willing to assist him when he returned to Iraq in 2009 and would do so again. Moreover, the Judge's rejection of the appellant's account of trouble in Iraq has been preserved. Therefore, we have been given no satisfactory reason why the uncle's attitude to the appellant would be any different on this occasion of his return.
14. In summary, the Judge's findings that the appellant would not be at risk on return, either because of events in Iraq or because of his sur place activities, are preserved. The only remaining basis upon which it is said he would be at risk on return, because he does not have possession of nor have access to his CSID, we find to be false. Consequently, the appellant's appeal on protection and human rights grounds fails.

Notice of Decision

15.    Pursuant to Upper Tribunal Judge Pinder's decision, the decision of the First-tier Tribunal involved the making of an error of law.

16.    We remake the decision by dismissing the appellant's appeal on all grounds.

 

 

Sean O'Brien

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

13 March 2025

 

ANNEX

A black and white emblem with lions and unicorns AI-generated content may be incorrect.

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-003450
	First-tier Tribunal No: PA/53389/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

.......................................

 

 

Before

 

UPPER TRIBUNAL JUDGE PINDER

 

Between

 

S M

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr S Hingora, of Counsel, instructed by Primus Solicitors.

For the Respondent: Mr E Terrell, Senior Presenting Officer.

 

Heard at Field House on 14 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

1.               The Appellant appeals with the permission of First-tier Tribunal Judge G Clarke against the decision of First-tier Tribunal Judge Parkes. By his decision of 6 ^th June 2024, Judge Parkes ('the Judge') dismissed the Appellant's appeal against the Respondent's decision to refuse his protection and human rights claims.

Background

2.               The Appellant is an Iraqi citizen, of Kurdish ethnicity. In summary, the Appellant first came to the UK in 2000 and claimed asylum. That first claim was refused and following his appeal being dismissed, the Appellant was removed from the UK to Iraq in 2009.

3.               The Appellant returned to the UK in 2019 and submitted further submissions on 11 ^th January 2023. Those submissions were refused on 23 ^rd May 2023 by the Respondent and it is against this decision that the Appellant appealed to the First-Tier Tribunal ('FtT'). The basis of the Appellant's current claim is three-fold. First, that as a Kolbar, which was accepted by the Respondent, he had an altercation with another Kolbar. This, together with subsequent events, led the Appellant to fear for his life and to flee Iraq for the second time. Secondly, the Appellant has been active politically whilst in the UK against the Iraqi and IKR authorities and he fears serious harm on return for that reason also. Lastly, the Appellant maintained that he did not have the necessary documentation to enable his return and/or to enable him to travel internally and live in Iraq or the IKR without encountering treatment contrary to Article 3 ECHR.

4.              Before the Judge, the Appellant was represented by Ms Bachu, of Counsel, and the Respondent by a Presenting Officer. The Judge heard oral evidence from the Appellant and submissions from the advocates before reserving his decision.

The Decision of the First-tier Tribunal Judge

5.               The Judge considered the first aspect of the Appellant's protection claim relating to events in Iraq prior to him leaving in 2019 and relating to his work as a Kolbar. At [17]-[24], the Judge did not accept this account largely as a result of the previous adverse credibility findings reached as part of the first set of proceedings ensuing from the Appellant's first asylum claim in 2000.

6.               With regards to the Appellant's political activities in the UK considered by the Judge at [25]-[30], the Judge did not accept that the Appellant would be perceived on return as a journalist as a result of his social media posts. The Appellant had not posted about what he claimed to have happened to him and there was no investigative element to anything he had posted. The Judge also recorded the Appellant's evidence that he had no political profile or involvement prior to leaving Iraq and that as a result of his low literacy, he would largely re-post content written by his friends. The Judge concluded at [30] therefore, having considered the relevant CPIN information, that the Appellant's activities would not place him at risk on return in Iraq. This was because he no profile in Iraq, low level involvement in protests here in the UK and had simply re-posted content created by others.

7.               The Judge returned to the issue of documentation at [31] and had regard to the Appellant's overall lack of credibility, pursuant to the previous adverse findings in the Appellant's first set of proceedings, as mentioned above. The Judge concluded that the Appellant had not shown that he had no family in the IKR or that he would be without support on return. The Judge added at [31] that the Appellant had not shown that he would not have access to a CSID or other relevant form of identification or that he would be unable to obtain them if required. In an earlier part of his determination, the Judge also recorded at [23] the following:

The Appellant maintains that his brother has been killed but there is no supporting evidence for that. He said that his uncle was living in the house and had retained his CSID which was returned to him when he was removed to Iraq in 2009. The Appellant said that it was taken off him while on his way to the UK, it is not clear an agent would do that. One explanation is that it would be needed to confirm to the person paying for the Appellant's journey that a payment needed to be made. There is case law that agents are not paid in full up front as there is little trust in the arrangements made.

8.               As a result of the various findings as summarised above, the Judge was satisfied that the Appellant could be returned to the IKR and would have access to the necessary documentation and services upon return there, finding no breach of Article 3 ECHR in the Respondent's decision.

The Appeal to the Upper Tribunal

9.               Permission was granted on all grounds pursued by First-tier Tribunal Judge G Clarke. Judge Clarke did observe however that the first ground had less merit than the second ground, the latter concerning the issue of documentation. The first ground of appeal pursued by the Appellant concerned the Judge's assessment of his political activities in the UK and whether this would place him at risk on return. It was argued that the Judge had not been clear as to which CPIN report he was referring to when supporting his findings and that he had failed to consider all of the objective evidence before him relating to the position of political activists in the IKR. It was also submitted that the Judge had failed to consider whether the Appellant may have already come to the attention of the authorities because of his online activities and the background evidence supported the claim that such activities were monitored by the authorities.

10.           Judge Clarke otherwise agreed in relation to the Appellant's second ground that it was arguable that the Judge's findings were unclear and contradictory in relation to the Appellant's access to documentation and in particular, his CSID. Judge Clarke noted the passage at [23], that I have cited above at §7, and stated that it was arguable that the Judge's findings on the issue of documentation were contradictory and that the Judge had failed to give any reasons for concluding - if that is what he concluded - that the Appellant was not forced to hand over his CSID to the agent.

11.           Whilst Judge Clarke had not limited the grant of permission, the weaknesses in the Appellant's first ground were very fairly also acknowledged by Mr Hingora before me. Mr Hingora did not make any positive submissions seeking to argue otherwise and he limited his submissions to the Appellant's second ground of appeal relying largely on the pleadings in writing.

12.           In reply, Mr Terrell relied on the Respondent's Response filed and served pursuant to Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and opposed the appeal. He submitted that the Judge was effectively considering at [23] the plausibility of the Appellant's CSID being retained by the agent, as claimed by the Appellant. Mr Terrell emphasized that that approach was open to the Judge, who also considered the rest of the Appellant's evidence in the round together with the adverse credibility findings reached as part of the earlier determination as the Judge's starting point.

13.           With regards to the Appellant's first ground, Mr Terrell expressly referred me to the Respondent's Rule 24 response since no submissions on this ground had been made before me orally. Mr Terrell reiterated that it was not necessary for the Judge to rehearse and refer to every piece of background evidence relied upon.

Analysis and Conclusions

14.          I am satisfied that the Appellant has demonstrated, pursuant to his second ground of appeal, that the Judge has erred in law in his approach to the issue of documentation. There is considerable force in Mr Terrell's submission that the Judge has effectively disposed of this issue having taken into consideration the lack of credibility to the Appellant's claims more widely and as found by the previous Judge in the Appellant's earlier asylum proceedings. However, the Appellant's claim to have had his CSID card retained by the agent who brought him back to the UK in 2019 was a new claim, not one that was before the earlier Judge. It is also a claim that on the face of what the Judge himself stated at [23] was found to be plausible. Where the Judge has erred is in failing to make a finding thereafter on whether, on the lower standard of proof that applies, the Appellant's CSID was so retained.

15.          I am satisfied that this is problematic since the Judge went on to find at [31] that the Appellant had not shown that he had no family in the IKR or that he would be without support on return. In addition, the Judge stated that the Appellant had not shown that he would not have access to a CSID or other relevant form of identification or that he would be unable to obtain them if required.

16.          The country guidance contained in SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 110 (IAC) is clear: it is no longer possible to apply for an INID by proxy. Thus, the Judge's findings at [31] implying family support and/or assistance, including on the issue of documentation, would only be relevant if the Judge had rejected the Appellant's claim to have had his CSID taken from him by the agent. However, it is not possible to discern from any of the relevant passages in the Judge's decision that the Judge has rejected this aspect of the Appellant's claim or, in the alternative, the reasons for that rejection. General adverse credibility findings are not sufficient in my view in light of this aspect of the Appellant's claim being capable of standing on its own, separate to the Appellant's Kolbar-related and sur place claims.

17.          Considering the centrality of the Appellant's claim in this respect to the issue of re/documentation and the centrality of this issue to Iraqi appeals, I am satisfied that the Judge's finding at [23] is equivocal and that this is a material error of law.

18.          I do not otherwise find that the Judge has erred as argued by the Appellant within his first ground of appeal. I am satisfied that the Appellant's written submission under this ground amount to no more than a disagreement with the Judge's findings, which were, contrary to what was argued in writing, reasonably open to him and supported in the evidence before him, including the subjective and background evidence.

19.           In light of the above, I am satisfied that the Judge has materially erred in law and the Judge's decision to dismiss the appeal is therefore set aside pursuant to s.12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. As the material error of law only concerns the Judge's findings on the issue of documentation, the Judge's findings at [15]-[30] relating to the Appellant's Kolbar and sur place claims are preserved. For completeness, I confirm that the findings at [31] are set aside.

20.           In the event that I only found in favour of the Appellant on his second ground of appeal, both parties were agreed that the fact-finding that would remain would be sufficiently limited to enable the matter to be retained in the Upper Tribunal for re-making. In light of the above, I have considered the Joint Practice Statement of the First-tier Tribunal and Upper Tribunal concerning the disposal of appeals in this Tribunal at [7.2] and I am satisfied that it is appropriate for the appeal to remain in this Tribunal for re-making since the sole issue that remains to be determined is whether the Appellant has a CSID card, or access to one, and if not, whether such a lack of documentation would place him at risk of treatment contrary to Article 3 ECHR.

Notice of Decision and Directions

21.           The decision of the First-tier Tribunal is set aside with the findings at [15]-[30] preserved.

22.           The parties are to have careful regard to the following directions:

(1) The appeal is to be re-listed in the Upper Tribunal before Judge Pinder on the first available date at least four weeks after the date of the sending of this decision on error of law. The provisional time estimate for the hearing should be 2 hours, subject to any alternative view by the parties.

(2) Any further evidence relied on by either party is to be filed and served no later than seven days before the next hearing.

(3) In respect of any other person whom it is proposed to call to give oral evidence, there must be a witness statement drawn in sufficient detail to stand as evidence-in-chief such that there is no need for any further examination-in-chief. Any such further witness statement must be filed and served no later than seven days before the next hearing.

(4) All further evidence relied on by either party must be contained within a consolidated, paginated and indexed bundle.

(5) There must be a skeleton argument on behalf of the Appellant, filed and served no later 7 days before the hearing.

(6) A Kurdish Sorani interpreter shall be booked for the re-making hearing.

 

 

Sarah Pinder

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

15.11.2024