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

 

IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2024-005237

First-tier Tribunal No: PA/51408/2024

LP/07643/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

14 ^th February 2025

Before

 

UPPER TRIBUNAL JUDGE O'CALLAGHAN

DEPUTY UPPER TRIBUNAL JUDGE GIBBS

 

Between

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

DAO

(ANONYMITY ORDER MADE)

Respondent

Representation :

For the Appellant: Ms. A Everett, Senior Presenting Officer

For the Respondent: Ms. Efurhievwe, Counsel, instructed by Barnes, Harrild and Dyer

 

Heard at Field House on 27 January 2025

ANONYMITY ORDER

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.                   For the purposes of continuity, we shall refer to the parties as they were before the First-tier Tribunal: the Secretary of State is "the respondent" and DOA is "the appellant."

2.                   The respondent appeals a decision of the First-tier Tribunal. By her decision sent to the parties on 2 September 2024 First-tier Tribunal Judge Suffield-Thompson ("the Judge") allowed the appellant's protection appeal.

3.                   The hearing before the panel was conducted remotely. We confirm at the outset our gratitude to Ms. Efurhievwe and Ms. Everett for their helpful and constructive submissions.

Anonymity

4.                   The Judge issued an anonymity order. Neither representative requested that the order be set aside. As the appellant currently seeks international protection we consider that at the present time his private life rights, protected by Article 8 ECHR, outweigh the public right to be informed that he is a party to these proceedings. The latter right is protected by Article 10 ECHR. In the circumstances we consider it appropriate that the anonymity order continue.

5.                   The anonymity order is detailed above

Background

6.                   The appellant is an Iraqi national and an ethnic Kurd who was residing in the Kurdistan Region of Iraq ("KRI") before he travelled to the United Kingdom. His claim is based upon a purported fear of persecution arising from a family land dispute. He asserts that his father and uncle are senior members in the Kurdistan Democratic Party and the Patriotic Union of Kurdistan and so he cannot therefore access state protection. Further, he states that since his arrival in the United Kingdom he has undertaken political activities that place him at risk on return to the KRI.

7.                   The respondent accepted by her decision letter that the appellant was engaged in a land dispute with his father and paternal uncle. However, the Judge concluded at [31] of her decision that the appellant had not shown to the required standard that he is at risk from his family because of the land dispute.

8.                   She did however find that the appellant would be at risk on return because of his sur place activities. Although the appellant's Counsel had accepted [32] that his Facebook activities did not reach the standard required in XX (PJAK - sur place activities - Facebook) Iran CG [2022] UKUT 23 (IAC) the Judge concluded that the Iraqi authorities had the ability to identify him from his attendance at protests in the United Kingdom and that because these had also been posted on his Facebook account the appellant would be at real risk on return. She also concluded that the appellant would be asked on return if he had a Facebook account and he could not be expected to lie [38].

9.                   The Judge also found that the appellant does not have a Civil Status Identity Document and is not in contact with any family members who could assist him to obtain this document [41]. She did not however allow the appeal on Humanitarian Protection grounds or Human Rights grounds. The appeal was allowed solely on asylum grounds.

Grounds of Appeal

10.               The respondent's grounds can be distilled into 3 challenges:

i) The Judge failed to consider whether the appellant should be required to close down his Facebook account before he returned to Iraq;

ii) That the Judge ignored the guidance in XX in making her finding that that the appellant's activities in the UK may have come to the attention of the authorities;

iii) That she failed to give reasons as to why she found the appellant's Facebook would have been monitored prior to his return.

11.               First-tier Tribunal Judge Dixon granted permission to appeal, with no restriction, by a decision sent to the parties on 12 November 2024.

12.               The appellant did not serve a rule 24 response.

Discussion and Reasons

13.               We emphasise the need for appropriate judicial restraint before interfering with a decision of the First-tier Tribunal, particularly where the fact-finding Judge has considered evidence from a variety of sources and has undertaken an evaluation of it, set in the applicable legal framework. We remind ourselves that no decision will be perfect, that such decisions must be read holistically and sensibly, and that there is no requirement to give reasons for reasons.

14.               With all of this in mind, we consider that the lack of adequate, or lawful, reasoning is a material error of law. That conclusion is based on the following reasons.

15.               It was agreed at the start of the hearing that despite the Judge making findings in the appellant's favour at [41] the appeal had only been allowed on asylum grounds and that the issues before us were limited to the asylum decision. Ms. Efurhievwe confirmed that the appellant is satisfied with the decision in its current form, and both parties agreed that if the Judge's decision was set aside, all matters should be reconsidered including Humanitarian Protection and Human Rights.

16.               Our focus is ground ii. It is not disputed that the Judge referenced both the KRI authorities and the Iraqi authorities in her decision. Ms. Everett submitted that the Judge did not differentiate between these two authorities and that consequently there is a lack of clarity as to why she concluded the appellant would be at risk on return to Iraq and from whom.

17.               Ms. Efurhievwe acknowledged that the Judge had used different terms in her decision. She submitted that the Judge's references to the Iraqi authorities should be seen as typos with the decision as a whole being written with reference to risk from the KRI authorities. She drew our attention to the respondent's grounds of appeal which contain errors such as references to Iran instead of Iraq and submitted that for us to ignore these but place weight on typos in the Judge's decision would be unfair.

18.               We acknowledge that the respondent's grounds of appeal contain mistakes (references to Iran). We are not however persuaded that these are comparable to those in the Judge's decision. Firstly, the grounds of appeal are simply part of a set of documents drafted in the course of proceedings, and secondly, and more importantly, we find that even with the errors, the meaning of the grounds of appeal remain obvious whilst the Judge's does not. In our view the Judge's decision is a document of a different calibre and weight to the grounds of appeal, and whilst we recognise that no decision will be perfect it must at the very least be unambiguous.

19.               We find that the Judge's failure to consistently refer to one authority when assessing risk to the appellant on return renders her decision unclear and consequently unreliable. For example, the Judge has moved from consideration of country background material pertaining to the KRI authorities to a conclusion that the appellant would be at risk from the Iraqi authorities [36-37] without any explanation or clarification as to how or why she has reached this conclusion. The Judge has also relied on photographs of the appellant at demonstrations in the United Kingdom to underpin her assessment of his risk from the Iraqi authorities. However, given that the demonstrations are against the KRI authorities we find that the Judge has not provided reasons as to why this would lead to a risk to the appellant from the Iraqi authorities.

20.               We find that the use of these various terms, which refer to entirely different authorities, and occur more than once, cannot reasonably be read as a typo. We find that we are left without clarity as to which of authorities the appellant's activities in the United Kingdom have come to the attention of and how / why. Consequently, there is also a lack of certainty regarding who the Judge concluded the appellant was at risk from on return to Iraq.

21.               We conclude that the failure to provide adequate and lawful reasons adversely infects the entirety of the decision. We do not therefore need to consider the other grounds of appeal.

Disposal

22.               The parties expressed no view as to where the next hearing should take place.

23.               We are mindful of paragraph 7.2 of the Practice Directions and having due regard to what was said by the Court of Appeal in AEB v SSHD [2022] EWCA Civ 1512. Consequent to the nature and extent of any judicial fact finding which is necessary in order for the decision in this appeal to be remade, we consider that it is appropriate to remit the case to the First-tier Tribunal.

Directions

24.               The appeal is remitted to the First-tier Tribunal in Manchester for a rehearing before any Judge other than First-tier Tribunal Judge Suffield-Thompson. No findings of fact are preserved.

Notice of Decision

25.               The decision of the First-tier Tribunal dated 2 September 2024 is set aside for a material error of law.

L K GIBBS

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

6 February 2025