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

 

IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2024-005327

UI-2024-005328

First-tier Tribunal No: PA/58787/2023

PA/60719/2023

LP/05008/2024

LP/05009/2024

THE IMMIGRATION ACTS

 

Decision & Reasons Issued:

 

17 ^th February 2025

 

Before

 

UPPER TRIBUNAL JUDGE O'CALLAGHAN

DEPUTY UPPER TRIBUNAL JUDGE GIBBS

 

Between

 

FF

BF

(ANONYMITY ORDER MADE)

Appellants

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellants: Ms. Hasan, Counsel, instructed by Qays Dayton Rayleigh Solicitors

For the Respondent: Ms. Everett, Senior Presenting Officer

 

Heard at Field House by CVP on 27 January 2025

 

ANONYMITY ORDER

 

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

 

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

DECISION AND REASONS

Introduction

1.                   The appellants appeal a decision of the First-tier Tribunal. By his decision sent to the parties on 18 November 2024 First-tier Tribunal Judge Alis ("the Judge") dismissed the appellants' protection and human rights appeal.

Anonymity

2.                   The Judge issued an anonymity order. Neither representative requested that the order be set aside and we have decided to maintain the anonymity order. This is because the underlying claim involves international protection issues and we consider that at the present time the appellants' private life rights, protected by Article 8 ECHR, outweigh the public right to be informed that they are parties to these proceedings. The latter right is protected by Article 10 ECHR.

3.                   The anonymity order is detailed above.

Background

4.                   The appellants are Iraqi nationals and ethnic Kurds who were residing in the Kurdistan Region of Iraq ("KRI"). Their claim is that their father killed a person in the village and that consequently the appellants and their father had to flee to Sulaymaniyah where an uncle lived. The appellants' father joined the Patriotic Union of Kurdistan ("PUK") and the three of them were protected by an individual known as MS who was an influential person in the PUK. When the appellants refused to join the PUK they lost the protection of MS and also became at risk from their father. Their uncle helped them to flee Iraq.

5.                   In the United Kingdom, FF opened a Facebook account on which he expressed what he contends is his political opinion. He has also taken part in demonstrations. FF claims that he has been interviewed by Nalia Radio and Television and has received threats on Facebook. BF has been diagnosed with mental health issues. Their evidence is that they do not have any contact with anyone in Iraq and do not have their identity documents.

Grounds of Appeal

6.                   The grounds of appeal are not properly delineated into separate particularised complaints identifying legal error, as required: Nixon (permission to appeal: grounds) [2014] UKUT 368 (IAC). We consider that they can be properly formulated as follows:

i)                    That the Judge failed to resolve a conflict of fact regarding whether the appellants were threatened in Sulaymaniyah;

ii)                  That the Judge failed to make a finding with regards to whether a report had been filed against FF as threatened on Facebook. Following from this whether deleting his Facebook account before his return would mitigate any risk;

iii)                The Judge was wrong to find that there was no evidence of tagged pictures of FF on Facebook;

iv)                That the Judge was wrong to find that there was no evidence of FF being "live-streamed".

7.                   First-tier Tribunal Judge Nightingale granted permission to appeal by a decision sent to the parties on 18 November 2024.

8.                   The respondent did not serve a rule 24 response.

Discussion and Reasons

9.                   Ms. Everett properly conceded ground i). We agree that the Judge's findings omit reference to any threats to the appellants in Sulaymaniyah, although this formed part of their evidence. The Judge found that there were no threats without providing adequate reasons for this conclusion. The failure to resolve a material issue of fact in the appeal is an error of law.

10.               Despite this concession we have considered grounds ii)-iv). This is because these grounds are entirely separate from the first pertaining to FF's sur place activities i.e. the grounds do not stand and fall together.

11.               We can deal with ground ii) briefly. We find that at [59] and [65] the Judge clearly refers to FF receiving messages on Facebook. His does not accept that FF had received messages from anyone in authority or that the authorities would be interested in him. We are therefore satisfied that ground ii) does not disclose an error of law.

12.               With regards to ground iii) Ms. Hasan was unable to show us evidence that FF had been specifically tagged on Facebook. She sought instead to persuade us that he is present on his Facebook account and that this is what is important with regards to the assessment of his risk on return. We are however satisfied that the Judge makes clear findings [65-66] that the appellant's activities on Facebook would not have brought him to attention of the authorities. We do not therefore find that ground iii) identifies an error of law.

13.               Additionally, we find that Ms. Hasan sought to develop the grounds beyond that upon which permission had been granted. In accordance with the need for procedural rigour ( R.(Talpada) v SSHD [2018] EWCA Civ 841) we reminded her that we would only consider issues raised in the grounds of appeal and upon which permission had been granted.

14.               Ground iv) regarding the live-streaming is not, we find, substantiated on the facts. The evidence before the Judge was a photograph of what appears to be the appellant being interviewed, but there is no evidence that this interview was transmitted, by whom, on what medium or that the appellant was identifiable. The Judge was entitled to reach the conclusion that he did. We are not therefore persuaded that the Judge made any error in his assessment of this aspect of the evidence.

15.               In the circumstances, we conclude that the First-tier Tribunal is properly to be set aside for material error of law.

Disposal

16.               We have carefully considered whether to retain or remit this appeal, having regard to paragraph 7.2 of the Practice Statements and AEB v SSHD [2022] EWCA Civ 1512. We have decided that it is appropriate to remit the appeal. In light of our conclusions there will need to be a re-assessment of a number of contested factual matters which in turn concern the appellants' credibility. The nature of the fact-finding exercise will be extensive.

17.               We have considered whether any of the Judge's findings should be preserved. We bear in mind the guidance provided by AB (preserved FtT findings; Wisniewski principles) Iraq [2020] UKUT 268 (IAC) and the potential difficulties in "drawing a bright line" around particular findings of fact reached by the First-tier Tribunal.

18.               However, in the present case we are satisfied that such difficulties need not arise. The Judge has made a clear finding at [58i] that the appellants were involved in a blood feud by reason of their father killing a man in their village. This finding of fact is therefore preserved. Preserving that finding will not of course mean that all other aspects of the appellants' accounts should necessarily be accepted.

19.               The challenges to the Judge's findings about the appellants' sur place activities are dismissed. The Judge's findings on this issue are therefore preserved: [57], [59],[62-63],[65-67],[70] and [71].

20.               The appellants did not challenge the Judge's decision under Article 8 ECHR. Paragraphs [78-80] are preserved.

Notice of Decision

21.               The decision of the First-tier Tribunal dated 30 September 2024 is set aside for a material error of law save for the preserved findings above.

22.               The appeal is remitted to the First-tier Tribunal sitting in Manchester.

23.               To be heard by any First-tier Tribunal Judge other than Judge Alis.

 

L K GIBBS

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

8 February 2025