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You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> UI2024005244 [2025] UKAITUR UI2024005244 (21 February 2025) URL: http://www.bailii.org/uk/cases/UKAITUR/2025/UI2024005244.html Cite as: [2025] UKAITUR UI2024005244 |
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI- 2024-005244 |
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First-tier Tribunal No: PA/61910//2023 LP/06671/2024 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 21 February 2025
Before
DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN
Between
AOA
(ANONYMITY ORDER MADE)
Appellant
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation :
For the Appellant: Mr Fazli, counsel instructed by London Solicitors
For the Respondent: Ms A. Ahmed, Senior Presenting Officer
Heard at Field House on 10 February 2025
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, [the appellant] ( and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) 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 ( and/or other person). Failure to comply with this order could amount to a contempt of court .
DECISION AND REASONS
1. The Appellant is a national of Iraq, of Kurdish ethnicity born in 1991. He arrived in the United Kingdom on 14 May 2021 and made a protection claim on the basis that he had been working as a teacher when on 19 August 2019 he was abducted by armed men who made him drive them to a village for essential supplies. An arrest warrant was subsequently issued by the Peshmerga on 22 August 2019 and two days later he received a call asking for the goods and his family home was raided and his belongings were confiscated. The Appellant fled to his uncle's house and was assisted to leave Iraq. His protection claim was refused in a decision dated 21 November 2023. The Appellant appealed and his appeal came before the First tier Tribunal for hearing on 18 September 2024. In a decision and reasons dated 23 September 2024 his appeal was dismissed.
2. The Appellant's representatives made an in time application for permission to appeal to the Upper Tribunal on the basis that the FtTJ erred:
(i) In rejecting the appellant 's account based on reliability issues with the warrant and the witnesses ' evidence;
(ii) In failing to put concerns about the warrant to the appellant for his comment;
(iii) in the approach to the supporting witnesses ' evidence;
(iv) in failing to consider the school letter;
(v) in failing to consider whether the appellant can return to Iraq without a CSID card;
(vi) in failing to consider the background evidence on the PKK;
(vii) in failing to consider exceptional circumstances in relation to a return to Iraq without a CSID card .
3. Partial permission to appeal was granted on 14 November 2024 in the following terms by a Judge of the First-Tier Tribunal:
"2. With regards to ground 1-4 and 6: the judge set out the reasons for finding the appellant 's claim not credible . Issues are necessarily written one after another. This does not mean that they were considered in isolation. At [33], the judge makes clear that they considered all the issues in the round. With regards to the journalist, the lack of any notes taken of the evidence is relevant to the reliability of the evidence, given that the claimed events took place some 5 years earlier. There is no requirement for the judge to record all the oral evidence in their decision.
With regards to ground 5 and 7: it is arguable that the judge failed to make any findings on the appellant 's claim to being without a CSID and any consequences this would have for his return to Iraq. Having found him not credible about the 2019 events, the judge goes on to dismiss the appeal without making any findings about the appellant ' s CSID.
Ground 1-4 and 6 do not disclose any arguable error of law.
Ground 5 and 7 are arguable."
4. In a rule 24 response dated 19 November 2024 the Respondent stated as follows:
"Grounds 5 & 7 - failure to consider material matters and make findings on CSID card
1. The appellant submitted seven grounds to challenge the decision of Judge Lewis ('FTTJ'), of which permission was only granted on grounds 5 (e, paras 15-22 of grounds) and 7 (g- para 24 of grounds) by Judge Veloso.
2. Based on the failure by the FTTJ to consider and make findings on documentation and whether the appellant has or could obtain a CSID/INID card for the purposes of avoiding an Article 3 ECHR breach under SMO, it is accepted that there is a material error of law in the decision of the FTTJ.
3. However, the grounds challenging credibility (a-d & f) did not raise any arguable errors of law and have not been granted permission to appeal. On that basis, it is submitted that the findings should be preserved, and the matter should be reheard in the Upper Tribunal on the sole limited issue of documentation.
4. The respondent requests an oral continuation hearing."
Hearing
5. At the hearing Mr Fazli informed the Upper Tribunal that the Appellant's solicitor had renewed the application for permission to appeal to the Upper Tribunal in time on 18 November 2024, but unfortunately no decision had been made in respect of that application. I proceeded to determine that application in the following terms:
"The Appellant's solicitors renewed the application for permission to appeal in time, albeit there was no need to make that application, given that the purported limitation on the grant of permission to grounds 5 and 7 limited to the Appellant's ability to return to Iraq without a CSID card is of no effect for the reasons given by the Upper Tribunal in Safi & Ors (permission to appeal decisions) [2018] UKUT 388 (IAC); [2019] Imm AR 437.
In case I am wrong in that analysis, I have nevertheless considered the grounds of appeal for myself. Ground 1 challenged the judge's findings on the Appellant's credibility based on inconsistencies within the arrest warrant and on the basis that it gave limited weight to the evidence of his witnesses, which was an incorrect approach as the judge failed to give reasons as to why he did not accept the Appellant's account of past events. Ground 2 asserts that the FtT failed to put concerns in respect of the arrest warrant to the A before making credibility findings. Ground 3 asserts that the FtT took an erroneous approach to the evidence of the witnesses and provided inadequate consideration of the evidence and also acted in a manner which was procedurally unfair in respect of the evidence of Wary Khalid Sadiq, which the judge considered only after finding the arrest warrant was not reliable, contrary to the approach in Mibanga. This ground further asserts that the FtT failed to provide adequate reasons for attaching little weight to the evidence of the witness Akram Kamil and adverse matters not put to the witness and the judge did not consider all aspects of the evidence as to why an article was not published .
Ground 4 asserts that the FtTJ further erred in failing to consider material evidence the letter from the primary school where the A worked confirming the incident took place F1-F2. Ground 6 asserts that the FtTJ failed to consider objective evidence set out in the CPIN and the Appellant's skeleton argument, relevant to the scope, activities and behaviour of the PKK, including in respect of recruitment and its involvement in violence.
I consider the remaining grounds of appeal, which raise procedural fairness and reasons challenges and a failure to take account of material considerations, to be arguable and accordingly grant permission to appeal to the Upper Tribunal."
6. I then heard submissions from Mr Fazli in respect of the remaining grounds of appeal. He submitted in respect of Grounds 1 and 3 that whilst at [12] the judge found that the Appellant was a teacher, he made no findings as to risk and what caused the Appellant to flee: see [21]. In particular, the judge seems to have found against the Appellant on credibility grounds based on the evidence of his witnesses: see [33] and the arrest warrant which he rejected at [23]. Consequently, the judge failed to provide adequate reasons for rejecting the Appellant's account.
7. In relation to Ground 2, Mr Fazli submitted that the Judge's approach was in contravention of the judgment in Maheshwaran [2002] EWCA Civ 173 and that concerns about the arrest warrant should have been put to the Appellant before the Judge reached his findings at [22]-[26].
8. I heard submissions in response from Ms Ahmed, who opposed the grounds of appeal other than those conceded in the rule 24 response, which related solely to the issue of documentation. She submitted that the Judge had made a sound and balanced decision and had considered all the evidence in the round, applying the lower standard of proof. She submitted that the Appellant was on notice of inconsistencies as the refusal decision at page 62 made clear that the SSHD had issues with the arrest warrant in that there was no penal code or receiving address attached to it and there was no evidence as to how the Appellant's brother's friend would know about the existence of the warrant before he did. It was further not considered credible that the Appellant would have access to the warrant as it was addressed to the authorities. Ms Ahmed sought to rely on the decision in Tanveer Ahmed [2002] UKIAT 00439 and had considered all the evidence in the round and was not required to list all the evidence.
9. In reply, Mr Fazli submitted that whilst some issues in relation to the arrest warrant had been raised in the refusal decision, issues relating to the language, grammar and translation errors had not been raised at any point and these had not been brought to the Appellant's attention in order to give him the opportunity to respond.
10. I reserved my decision which I now give with my reasons.
Decision and reasons
11. I have concluded that some of the grounds of appeal are made out whereas other are not. With regard to Ground 1, I find that there is merit in the challenge to the manner of the Judge's approach to the Appellant's credibility. Having found issues with the arrest warrant and with the evidence of the Appellant's witnesses the Judge then proceeded to find against the Appellant on credibility, rather than consider his credibility on a stand alone basis, requiring adequate reasons as well as assessing any damage to credibility as a consequence of the Judge's rejection of other aspects of the evidence.
12. With regard to Ground 2, the evidence in relation to the arrest warrant is confused in that there are two different translations of the warrant. It is not clear which translation was issued when and why there are two different translations. One is of very poor quality and clearly would not have assisted the judge. Moreover, the Kurdish version also contains some English. There is no authentication of the warrant, nor an expert report nor any explanation as to the fact that there are two translations. Whilst this is clearly unsatisfactory and unhelpful and it is unsurprising that the Judge at [23] rejected the warrant having set out the defects at [22]-[26], I do find that in these circumstances the Judge should have asked the Appellant if he had any explanation for the defects as a matter of procedural fairness before reaching his conclusions on it.
13. I find that Ground 3 has merit in that the Judge did reject the evidence of Mr Wary Khalid Sadiq, which sought at page 32 to corroborate the ability of the Peshmerga and Asayish authorities to issue an arrest warrant to someone suspected of involvement with the PKK, having already rejected the arrest warrant. I further find that inadequate consideration was given to the evidence of Mr Khalil at [32]. I find this is contrary to the approach in Mibanga [2005] EWCA Civ 367 that credibility findings should be made in the round, after consideration of all the evidence.
14. As to Ground 4, in light of the fact that the Judge accepted that the Appellant was a teacher, I find it was incumbent upon him to engage with the letter claimed to be from the school where the Appellant taught, confirming that the underlying incident of the Appellant being taken by armed men took place: see F1-F2. In the absence of any reference to the letter, which is of clear potential corroborative value, it is unclear whether or not the Judge accepted or rejected it.
15. However, I do not find that Ground 6 is made out. The CPIN in question was written with regard to Turkey. I accept that at 7.3.4. there is reference to the PKK aiming to get control of Kurdish areas of Iran, Iraq and Syria to advance Kurdish rights and recognition and that historically the PKK has maintained its headquarters in Iraq and that there is reference to the PKK's activities, these refer to attacks primarily against Turkish supported forces in northern Iraq. However, there is no reference to the PKK targeting civilians for assistance in the manner claimed by the Appellant. Consequently, I do not find that the failure by the Judge to take this document into consideration amounted to an error given it did not materially corroborate the Appellant's claim.
16. However, for the reasons set out above, I find that the Judge did materially err in law for the reasons set out in Grounds 1-5 and 7 (Grounds 5 and 7 having been conceded).
Notice of Decision