Asylum Appeal Set Aside Due to Legal Errors

OUTCOME: Allowed

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-000543 First-tier Tribunal No: PA/61229/2023 LP/08084/2024 THE IMMIGRATION ACTS Decision & Reasons Issued: On 11 September 2025 Before UPPER TRIBUNAL JUDGE NEVILLE DEPUTY UPPER TRIBUNAL JUDGE [APPELLANT] Appellant and SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent Representation: For the Appellant: [redacted] For the Respondent: [redacted] Heard at Field House on 28 July 2025 Order Regarding Anonymity Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and his family members are 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 and his family members. Failure to comply with this order could amount to a contempt of court.

DECISION AND

REASONS 1. This is an appeal brought with permission, by the appellant against the decision of the First-tier Tribunal dated 2 October 2024 in which the appellant’s protection and human rights appeal was dismissed. © CROWN COPYRIGHT 2025

Appeal Number: UI-2025-000543 2. In summary the appellant’s case is that he is a national of Iraq, he is from the Kurdish Region of Iraq (KRI) and arrived in the United Kingdom, together with his wife on 11 November 2021 and claimed asylum on 15 December 2021. The appellant claims to be at risk of honour killing due to the illegitimate relationship starting with his now wife, the daughter of powerful KDP member.

3. First-tier Tribunal Judge Beg (“the Judge”) did not find the appellant and his wife to be credible witnesses.

4. The appeal was dismissed on all grounds. Summary of grounds and submissions 5. Ms [APPELLANT] for the appellant relied upon five grounds of appeal. There was no rule 24 response, but it was confirmed by Ms [RESPONDENT] that the respondent resisted the appeal. We heard submissions on behalf of both parties in respect of all grounds of appeal.

6. The first ground contends that the Judge failed to adequately consider or make adequate findings on the CCTV evidence relied upon by the appellant to demonstrate that his shop was attacked. The Judge concluded [33] that there was no credible evidence that the appellant’s shop was damaged and he was assaulted by people sent by his wife’s father. However, the respondent’s refusal decision had already accepted the CCTV evidence as credible evidence that there was an attack on the barber shop just not the identity of the attackers and whether it was related to the appellant’s relationship. Ms [APPELLANT] submitted that this is a material error because it demonstrates a lack of anxious scrutiny, it concerned a core event in the factual matrix and the Judge should have grappled with the evidence. 7. [NAME] echoed what was said by Upper Tribunal Jackson in the grant of permission decision dated 12 March 2025, namely that although the point was arguable, it was not material because there was no evidence or concession about who attacked the shop or why. Furthermore, by reference to [NAME] and another v [NAME] [2022] EWCA Civ 464; [2022] 4 WLR 48, §57, just because the Judge has not mentioned a piece of evidence does not mean it was overlooked. The Judge was correct to say that there was no corroborative evidence of the attackers or their motive, therefore the CCTV evidence was not material to the credibility findings overall.

8. The second ground contends that the Judge placed weight on immaterial matters, for example, the Judge concluded that it was not credible that the appellant would leave his barber shop business in order to cut the hair of one or more customers at the university [24]. Another example being that the Judge noted that the appellant’s wife attended the hearing wearing a hijab and that she wore a hijab in Iraq and [APPELLANT] the following finding “I find that a practising [NAME] she would not have sex with the appellant before marriage, let alone at her grandparents’ house, whilst they were asleep in the house.” [31] [NAME] [APPELLANT] the point that the Judge’s inference from the fact that the witness wore a hijab was an unsafe basis for her conclusion. People do break religious, cultural and social norms and as particularly and specifically corroborated in this case by the CPIN Iraq: Blood feuds, honour crimes and tribal violence, July 2024, 11.5.1- 11.5.2. 2

Appeal Number: UI-2025-000543 9. Ms [APPELLANT] maintained that issues such as why the appellant was at the university went to the core of the claim of how the appellant and his wife met, which is why his customers not attending his barber shop was a material issue going to credibility. She submitted that the sex before marriage finding was not material when considering the findings more widely.

10. The third ground contends that the Judge unfairly or unreasonably required corroborative evidence. The Judge noted that the appellant claimed that his [NAME] kidnapped him and he was severely beaten but there was no corroborative evidence of his injuries and he [APPELLANT] no mention of seeking any medical treatment [29]. The appellant’s position is that the Judge’s approach was unfair and out with the Istanbul Protocol guidelines regarding the absence of physical evidence does not mean the harm did not occur. The second strand to this ground being that the absence of photographs, text messages and [NAME] messages [26] or the wife’s birth certificate [37] was not a matter raised by the Respondent as one going to credibility and the explanation, namely that the agent demanded that they hand over all their documents and phones, provided at the hearing (as set out in the grounds for permission to appeal submitted to the First-tier Tribunal dated 16 October 2024 drafted by counsel at that hearing §12) was not considered by the Judge. [NAME] drew attention to the fact that this explanation was noted by Upper Tribunal Judge Jackson granting permission to appeal, to be relatively commonplace.

11. By reference to [NAME] and others v [NAME] [NAME] [2023] EWCA Civ 1455 §29, which states: As an expert body, the tribunal is entitled to reject evidence notwithstanding that the evidence has not been challenged before it. Fairness may, however, require it to disclose its concerns about the evidence so as to afford the parties an opportunity to address them (see [8]). There is, on the other hand no general obligation on the tribunal to give notice to the parties during the hearing of all the matters on which it may relay in reaching its decision (see [10]). Where an applicant can generally be expected to be aware that the tribunal will have to assess their credibility, there will generally be no unfairness in a tribunal proceeding without drawing attention to a point which the applicant could reasonably expect to be plainly relevant to that assessment (at [11]-[12]). [NAME] submitted that the Judge was entitled to reject the appellant’s evidence even if it had not been directly challenged by the respondent. There is not necessarily unfairness when points are not put to an appellant when they are represented and the points are obvious ones ([NAME] §32)

12. Although the Judge had used the term ‘corroborative evidence’, it was not the case that she was requiring corroboration. In relation to the injuries the Judge found the account to be implausible and noted there was no medical evidence to support the account. As for the text messages and [NAME] evidence, the Judge found the lack of effort to explore whether that evidence was available to be the damaging issue. The appellant was on notice that the fact having formed a relationship with his wife in secret was not accepted. As per MAH Egypt v Secretary of State for the Home Department [2023] EWCA Civ 216, § 86, the failure to make reasonable endeavours with no good reason may be matter to which the tribunal can give appropriate weight. 13. [NAME] submitted that the Judge did take account of the appellant’s explanation that he handed his phone and documents to the agent but rejected it [26]. We also noted that the appellant was on notice that the respondent found it 3

Appeal Number: UI-2025-000543 implausible that the appellant would hand over their CSID to a [NAME] because it was raised in the refusal decision.

14. The fourth ground concerns an allegation of over reliance on speculation or inherent probability [28]-[33]. The appellant relies upon MAH §63, which in summary provides that adverse findings must be based on reasonably drawn inferences and not conjecture and speculation. Inferences concerning plausibility must have a basis in the evidence. An example emphasised in the grounds is that the Judge speculates [30] as to the possible response of the wife’s parents after the appellant and his wife had been seen together, but the [NAME] at § 10.5.1 provided objective support that was consistent with the appellant’s evidence.

15. Another is that the Judge’s conclusion at [33] is not only speculative but also based on an incorrect understanding of the facts. The Judge found it incredible that the appellant’s wife’s parents would allow her to return to university rather than marry her off when they discovered she was pregnant outside of marriage. The appellant’s case is that he and his wife fled upon discovery of the pregnancy not that she proposed to return to university.

16. Ms [NAME] submitted that there were a significant number of credibility findings [24]-[37] more than the points extracted in the grounds of appeal. She disputed whether some of the findings could be properly described as speculation, whereas, for example, the Judge doubted the plausibility of some of the appellant’s and his wife’s actions.

17. There was some debate at the hearing before us whether the passage in the CPIN referred to at paragraph 14 above was before the Judge. The reason is that [NAME] took us to the current version of the CPIN Iraq: Blood feuds, Honour crimes and Tribal violence, dated July 2024 but [NAME] submitted that the version in the bundle before the Judge was dated March 2021 and did not contain the same passage.

18. We can deal with that point quite shortly at this stage. The respondent is under the clearest obligation to ensure that relevant country material is before the Tribunal (see UB (Sri Lanka) v Secretary of State for the Home Department [2017] EWCA Civ 85 §16-19). The updated [NAME] in Iraq was plainly material to the issues. It is clear from the decision that the [NAME] on other topics such as state actors, security situation, internal relocation and identity cards were referred to by the Judge and in light of the hearing being heard by an experienced Judge and together with the duty of the respondent to bring the current country evidence to the Judge’s attention we proceed on the basis that the Judge was referred to the latest [NAME]. If in fact, the Judge was not referred to the latest [NAME], she should have been, and it is appropriate for us to consider the passage relied upon.

19. The fifth and final ground is based on errors of fact. The appellant’s initial grounds of appeal to the First-tier Tribunal drafted by counsel who appeared in the First-tier Tribunal contended that the Judge’s findings were based an inaccurate recording of the evidence or a failure to take account of the oral evidence given. The Judge did not find it credible that the appellant would leave his barbers shop to cut the hair of customers at the university and stated that there was no explanation why they didn’t attend the barber shop or why they had asked him to attend the university [24]. The grounds dispute this and state that in answer the Judge’s questions the appellant explained that he was friends with 4

Appeal Number: UI-2025-000543 those whose hair he was cutting, it was common practice for him to go to the campus to cut hair and he had also stayed to have dinner with them. The Judge was also wrong to proceed on the basis that he stayed the night at the university when his evidence was that he had returned the next day to attend a picnic he had been invited to and that is where he met his wife.

20. Ms [APPELLANT] submitted that the appellant had not discharged the burden of proving what had happened and what was said at the First-tier Tribunal. The appellant had indicated an intention to obtain a witness statement from counsel who attended the hearing, but none had been produced. At the outset of the hearing, the Tribunal had asked the parties to consider the decision of the Court of Appeal in [NAME] and to address us on the relevance of the rule 24 response or lack of one on this issue. We were particularly concerned with the following passage of the judgement §20: “A Rule 24 notice ought then to be served identifying whether that factual basis is in issue, and if so, highlighting the nature of the controversy. Only in that way can any dispute be identified in a way which enables orderly preparations to be [APPELLANT] for it to be resolved at the appeal hearing, if necessary by evidence, so as to avoid unnecessary delay and expense. If resolution of any dispute necessitates a witness statement from counsel, that will give rise to particular consequences which may include [NAME] being instructed to conduct the appeal: see [NAME] v Secretary of State for the Home Department [2014] UKUT 00568 (IAC) at [5]. No such Rule 24 notice was served in response to the grounds of appeal in this case.” 21. Ms [NAME] relied upon [NAME] and asked us to consider what was contained in trial counsel’s grounds of appeal to the First-tier Tribunal and that in the absence of a r.24 response in this case, those grounds should be taken as an undisputed description of what happened at the hearing below. Ms [NAME] submitted that this principle was confined to procedural unfairness on the facts before the court. She further submitted that in any event, the misstatement of any evidence was immaterial because there was a wealth of other credibility findings not affected by the points cited in the grounds and the Judge had [APPELLANT] alternative findings [37]. We note at this stage that the alternative finding at [37] concerns whether the appellant’s [NAME] is a bodyguard for a [NAME], which is a slightly different point to whether there was clandestine relationship subsequently discovered.

22. We reserved our decision. Conclusions 23. In reaching our conclusions we have taken account of the general principles regarding the restricted jurisdiction of the Upper Tribunal to errors of law set out in [NAME] v Secretary of State for the Home Department [2024] EWCA Civ 201 at §26.

24. We find that there are material errors of law identified in grounds of appeal for the following reasons.

25. Just as Upper Tribunal Jackson identified in the grant of permission decision, we consider one of the most significant issues raised by the second ground of appeal is the Judge’s assumption that a [NAME] would not have sex before marriage. The Judge’s whole approach is problematic because there is no reference to the objective material and it is plainly irrational to find that because the witness wore a hijab, her religious convictions were such that she would not 5

Appeal Number: UI-2025-000543 have sex before marriage. It is not even the case that the issue was raised with the witness in evidence but the Judge [APPELLANT] a bold and irrational wide-ranging assumption based on her clothing, which was at odds with the objective evidence. This alone is enough in our view to undermine the safety of the whole decision because it discloses a completely irrational approach to the whole basis of the case. However, there are other points [APPELLANT] out in the grounds which leave us in no doubt that this decision must be set aside in its entirety.

26. The Judge’s expectations as to how people would react in the context of this claim, rather than what is rooted in the evidence is revealed in the fourth ground. Again, without reference to the objective evidence the Judge rejected the account of how the [NAME] reacted [30]. In addition to the Judge relying upon her own opinion again, rather than the evidence [33] about what the woman’s parents would do if they discovered she was pregnant outside marriage, the Judge further makes a crucial mistake of fact about the chronology of the events. The appellant’s case was not that his wife’s parents found out about the pregnancy but were prepared to allow her to return to university but rather he and his wife found out about the pregnancy and fled.

27. The first and fifth grounds are also [APPELLANT] out and further show an overall lack of anxious scrutiny. There was clearly a failure to take account of the CCTV evidence related to the attack on the appellant’s shop. Although we agree with the respondent to a certain extent that the concession was limited to the fact of the shop being attacked, we consider the point is relevant to the overall credibility assessment. The reason is that the Judge rejected the whole event, and it was plainly wrong for the Judge to go behind a concession of fact. The error is material because if the appellant is accepted to be credible on some aspects of his claim, that is necessarily relevant to the global assessment of credibility. The Judge did not address this evidence at all or the fact that there was a partial concession.

28. In the absence of a r.24 response disputing the submissions contained within the initial grounds of appeal, applying [NAME] we treat those submissions as undisputed in relation to what was said in hearing below. We do not accept Ms [NAME] submission that the principle was confined to the facts of that case. The Judge states that there were no explanations in regard to several areas of concern to her, when in fact there were but she had not dealt with that evidence. In any event, the Judge’s approach to much of the evidence such as, why the appellant would go to a university campus to cut customer’s hair was unduly speculative and peripheral to the key issues.

29. We are not persuaded that the Judge fell into error for the reasons advanced in the third ground. We agree with [NAME] that the Judge was not requiring corroborative medical evidence but that she was noting the fact that there was no evidence to corroborate that injuries were caused in circumstances where the Judge had reason to question the plausibility of the account. Furthermore, the Judge was entitled to note, as per MAH that the appellant had [APPELLANT] no effort to retrieve digital material contained within social media accounts or even explore the possibility of doing so. However, for the reasons identified in the other grounds the decision is unsustainable. Notice of Decision 30. The decision of the First-tier Tribunal contains material errors of law and is set aside in its entirety. 6

Appeal Number: UI-2025-000543 31. Given the extent of the fact-finding required, the appeal will be remitted back to the First-tier Tribunal for remaking to be heard before a different Judge. E Daykin Judge of the Upper Tribunal Immigration and Asylum Chamber 11 August 2025 7