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-2024-005686
	First-tier Tribunal No: PA/68153/2023

LP/06944/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

25 ^th February 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE P. LEWIS

 

Between

 

AM

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr. Saddiq, Solicitor

For the Respondent: Mr. Walker, Senior Presenting Officer

 

Heard at Field House on 12 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

 

Background

1.               The appellant is a citizen of Iraq of Kurdish ethnicity who claims to fear persecution from the 'Iraqi authorities' in particular the PMF militia. The respondent refused the appellant's application because she did not accept the credibility of his account. That decision was upheld by First-tier Tribunal Judge Malik ['the judge'], in a decision promulgated on 12 ^th October 2024.

2.               Thereafter, the appellant was granted permission to appeal against the Judge's decision by First-Tier Tribunal Judge Shepherd on two grounds:

(1)            The Judge errs by assessing the credibility of the appellant's account on the basis of plausibility.

(2)            The judge mis-applies the case of XX [2022] 000 223, when assessing the appellant's sur place political activity.

As noted, when granting permission to appeal, the second ground is parasitic upon the first.

3.               The criticism of the judge's findings as to credibility in ground (1) relate specifically to paragraph 10 (a) -(d) of the Judge's decision. It is specifically submitted that the judge's findings are all based on plausibility rather than credibility.

4.               It follows that it must be implicitly understood from the grounds that the judge's use of the expression 'not credible' must be understood as meaning 'not plausible' and that the judge erred by relying upon what he perceived as inherently improbable.

Summary of evidence before the judge

5.               The appellant's case is that he fears ' Hash'd Al Shabbi [referred to by the judge and hereinafter as AHAS] and the Iraqi authorities on return to Iraq.'

6.               This is because in June 2021 a group of ISIS fighters stole livestock from the appellant's family farm. He reported the theft to the AHAS who investigated. When the AHAS investigated they were ambushed by ISIS. The appellant says that he and his brother were present at the time. The appellant escaped but his brother was shot. The appellant says that AHAS believe that the he led him into an ambush. Thereafter AHAS sought him out. His mother was killed by them. The appellant is at risk of persecution and/or serious harm if he is returned to Iraq.

7.               The respondent rejected the appellant's account. It is important to note that the respondent's rejection of the appellant's account was based on what the respondent assessed as inconsistency and lack of detail in the appellant's account. As to plausibility, the respondent concluded that there were;

' some (my emphasis) elements of your account that were implausible and inconsistent with external information'

8.               The appellant prepared more than one witness statement. In his witness statement dated 18 ^th July 2023 prepared in support of his application (rather then appeal), the appellant said (§14-15):

' There were four masked men who approached the farm and they stole the sheep by force. One of the members asked my brother whether we were sunni or shia muslims and we said sunni and they accused use of being ISIS because ISIS are not allowed to kill ISIS unless we commit heinous crimes'.

9.               When later interviewed by the respondent (8 November 2023) the appellant said (§34-36) that the thieves did not say who they were, but 'wore black clothes and masks and looked like Isis....they said Allahu Akbar when we said we are sunii and they said they will not kill us'.

Discussion

The Judge's findings

10.           It is convenient to reproduce the relevant passages of the judge' findings below:

...

[10] Having considered the appellant's account, I find he has fabricated the core of his claim to form what I find to be a false asylum claim, for the following reasons:

(a) Even accepting there may have been remanets ( sic.) of ISIS in the appellant's home area in 2021, he claims the people who stole his sheep where ISIS as they had weapons, asked his religion, said 'Allahu Akbar', wore black clothes/face masks. Yet if these people were ISIS, there is no reasonable explanation as to why they just did not tell him this in the first place - more so if they already had a presence and supporters in the locality. Just based on their appearance, carrying weapons and saying Allahu Akbar alone, even to the lower standard, I find does not suggest they were ISIS.

(b) If as claimed the appellant reported the theft to AHAS, he would have also told them his belief that the thieves were ISIS. That being so, I do not find it reasonably likely or credible that AHAS would think he was in some way complicit with ISIS. I also do not find it reasonably likely that if AHAS had subsequently gone to the location where the claimed theft occurred that they would not have prepared for potentially the presence of ISIS given the appellant's account of the individuals he claims stole the sheep. I do not find it reasonably likely or credible AHAS would have just walked into an ambush and consequently do not find the appellant account credible that he was or is at risk from them, that his brother was killed in the manner claimed or that AHAS have killed his mother as an act of revenge. Further I do not find it credible that if there had been a gun fight between ISIS and AHAS, when the appellant's brother and three AHAS members were killed, that the appellant was able to run away without coming to harm.

(c) The appellant claims he left Iraq using his own passport. Yet he did not, on his account, return home before he claims to have left Iraq on 24/96/21 through Erbil airport. He claims his boss Tariq assisted him in leaving and that his passport was with Tariq because his mother had told him to leave it there. I do not find this credible, if his CSID/voting card/biometric card were kept at his own home. This causes me to find his departure from Iraq has all the hallmarks of a pre-planned trip and not one made in haste to escape persecution.

(d) I also do not find it reasonably likely that if his CSID was at home that he would have been able to pass through checkpoints from his home area in the Mosul region to Erbil without it.

...

11. This is a challenge to adequacy of reasons and to findings of fact. Neither ground permits the Upper Tribunal to simply disagree with the result or the way in which it was reached. As held in South Bucks County Council v Porter [2004] UKHL 33, reasons must:

36. [...] enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision.

12. In Volpi v Volpi [2022] EWCA Civ 464, at [2], the Court of Appeal reiterated the caution with which an appellate tribunal must approach findings of fact:

i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.

ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.

iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.

iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.

v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.

vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.

13. The appellant asserts over-reliance by the Judge on what he considered to be plausible. In HK v SSHD [2006] EWCA Civ 1037, Neuberger LJ:

[28]. Further, in many asylum cases, some, even most, of the appellant's story may seem inherently unlikely but that does not mean that it is untrue. The ingredients of the story, and the story as a whole, have to be considered against the available country evidence and reliable expert evidence, and other familiar factors, such as consistency with what the appellant has said before, and with other factual evidence (where there is any).

[29]. Inherent probability, which may be helpful in many domestic cases, can be a dangerous, even a wholly inappropriate, factor to rely on in some asylum cases. Much of the evidence will be referable to societies with customs and circumstances which are very different from those of which the members of the fact-finding tribunal have any (even second-hand) experience. Indeed, it is likely that the country which an asylum-seeker has left will be suffering from the sort of problems and dislocations with which the overwhelming majority of residents of this country will be wholly unfamiliar. The point is well made in Hathaway on Law of Refugee Status (1991) at page 81:

"In assessing the general human rights information, decision-makers must constantly be on guard to avoid implicitly recharacterizing the nature of the risk based on their own perceptions of reasonability."

[30]. Inherent improbability in the context of asylum cases was discussed at some length by Lord Brodie in Awala -v- Secretary of State [2005] CSOH 73. At paragraph 22, he pointed out that it was "not proper to reject an applicant's account merely on the basis that it is not credible or not plausible. To say that an applicant's account is not credible is to state a conclusion" (emphasis added). At paragraph 24, he said that rejection of a story on grounds of implausibility must be done "on reasonably drawn inferences and not simply on conjecture or speculation". He went on to emphasise, as did Pill LJ in Ghaisari, the entitlement of the fact-finder to rely "on his common sense and his ability, as a practical and informed person, to identify what is or is not plausible". However, he accepted that "there will be cases where actions which may appear implausible if judged by...Scottish standards, might be plausible when considered within the context of the applicant's social and cultural background".

14. At the hearing, Mr Saddiq on behalf the appellant adopted the submissions made in his written skeleton argument.

15. Mr. Walker, for the respondent, conceded that the judge had made (adverse) credibility findings against the appellant and ' not given clear reasons'. He agrees that the Judge made a material error of law.

16. The Upper Tribunal is not bound by the respondent's concession that the decision involved a material error of law. However, the fact that there is no dispute between the parties necessarily functions as an important factor in the assessment of whether there was a material error of law.

17. Although the judge did not explicitly reject the appellant's account as implausible it is clear the judge made findings which were not based in evidence or reasoned. At [10(a)] the judge rejected the notion that the thieves were ISIS because they did not identify themselves and their appearance did not suggest they were ISIS. The judge does not explain how she reached the decision as to what ISIS look like or say when greeting farmers in Iraq. At [10 (b)], the judge finds that AHAS would not have walked into an ambush. Given that ambushes are by definition a surprise, the judge gives no proper reason for dismissing the possibility of an ambush.

18. Given my findings above, the parties agreed it was unnecessary to determine ground two.

Disposal

17. It was common ground between the parties that the appropriate disposal was for the matter to be remitted to the First-tier Tribunal to be decided de novo with no findings of fact preserved. As Mr. Walker for the respondent put it: 'nothing can be saved'.

 18. Section 12 of the Tribunals, Courts and Enforcement Act 2007, gives the Upper Tribunal an unfettered discretion to remit the case to the First-tier Tribunal or to remake the decision in the Upper Tribunal.

19. The UT's discretion pursuant to section 12 is the subject of Practice Directions and Practice Statements of the Immigration and Asylum Chambers of the FtT and the UT, which explain how the UT will normally exercise the discretion conferred by section 12 (2 ).

20. Paragraph 7 of the current Practice Statements provides:

Disposal of appeals in Upper Tribunal 

7.1 Where under section 12(1) of the 2007 Act (proceedings on appeal to the Upper Tribunal) the Upper Tribunal finds that the making of the decision concerned involved the making of an error on a point of law, the Upper Tribunal may set aside the decision and, if it does so, must either remit the case to the First-tier Tribunal under section 12(2)(b)(i) or proceed (in accordance with relevant Practice Directions) to re-make the decision under section 12(2)(b)(ii). 

7.2 The Upper Tribunal is likely on each such occasion to proceed to re-make the decision, instead of remitting the case to the First-tier Tribunal, unless the Upper Tribunal is satisfied that:- 

(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or 

(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal. 

7.3 Remaking rather than remitting will nevertheless constitute the normal approach to determining appeals where an error of law is found, even if some further fact finding is necessary.

21. The purpose of the Practice statements is to provide guidance and not more, per Stuart-Smith LJ [§11], AEB and Secretary of State for Home Department [2022] EWCA Civ 1512.

22. I am not bound by the agreement of the parties and must ultimately consider whether or not the decision of the judge deprived the appellant of a fair hearing. Having regard to the broad and unreasoned findings of the Judge I agree with Mr. Walker: Nothing can be saved.

23. The nature and extent of the judicial fact finding is such, that having regard to the overriding objective it is appropriate to remit the case to the First-tier Tribunal.

Notice of Decision

1.        The decision of Judge Malik 12 ^th October 2024 contained a material error of law and is set aside.

2.        This matter is to be remitted to the First-tier Tribunal de novo before a judge other than Judge N. Mailk.

 

 

Paul Lewis

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

17 ^th February 2025