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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005753
	First-tier Tribunal No: PA/61949/2023 LP/09780/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

25 ^th February 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE P. LEWIS

 

Between

 

A.A.

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr Wood, Legal representative.

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 appeals with permission against the decision of First-tier Tribunal Judge Swinnerton ['the judge'] promulgated on 29 ^th October 2024.

2.               The appellant is a citizen of Iraq of Kurdish ethnicity. He claimed asylum on the basis of his political opinion in Iraq. The appellant's case is that he is at risk of persecution on return from the PMF because he refused to join then to fight against ISIS. The judge rejected his claim in this respect, and no complaint is raised against the judge's decision in this regard.

3.               In the alternative, the appellant says that his sur place activities in the United Kingdom place him at risk of persecution on return.

4.               Following the refusal of his appeal, he applied for and was granted permission to appeal against the judge's decision on two grounds summarised as:

(1)           The judge failed to make findings [20-21] on material matters: whether the appellant's sur place activities represented his genuinely held political opinion and how the appellant would conduct himself on return to Iraq; and

(2)           The judge's findings [22 & 24] as to whether the appellant was in contact with family members in Iraq who could assist him in obtaining documents to enable him to travel within Iraq were insufficiently reasoned or based on a generalised assessment of the appellant's credibility.

The Judge's findings

5.               The relevant findings in the judge's decision are set out below:

...

[20] In relation to the sur place activities of the appellant, the letter from the Dakok Support Centre details that the appellant has only been a full member of the organisation since March 2024 which is for about 7 months. I find that the appellant became a full member of the Dakok Support Centre about four months after the refusal of his protection claim. Based upon the available evidence including photographs and the appellant's own account, I find that the appellant has taken part in activities and demonstrations. That said, I find that the appellant did not have any specific role in the activities and demonstrations in which he took part. I find that the appellant was an attendee at such activities and demonstrations. I find that the appellant played no more significant role than that.

[21] In respect of the social media activity of the appellant, by his own account the appellant opened his current Facebook account in July 2023. He has provided a number of images from his Facebook account. At the hearing, the respondent queried whether the appellant cut and pasted content or whether he wrote any of the content himself that he had posted. The appellant stated that, mostly, he wrote the content himself. I find, based upon the available evidence including the social media postings of the appellant, that the appellant has a very limited public profile. I find that sur place activities of the appellant would not lead to his being of any adverse interest to the authorities in Iraq.

[22] The appellant states that his father and brother were kidnapped and that his mother is now deceased. He stated in his asylum interview that he has no family in Iraq. He stated at the hearing that the last contact that he had with any member of his family was in Turkey in 2021 when he spoke with his maternal uncle. I did not find the appellant to be a credible witness generally and also in respect to his claim that he no longer has any family members in Iraq. In relation to his maternal uncle, it was his maternal uncle who arranged his passage out of Iraq. I see no reason why the appellant would not have made efforts to contact his maternal uncle after the appellant's mobile phone was confiscated in Turkey given that took place more than three years ago and the appellant has had another mobile phone for a considerable period of time since then. I find that it is more likely than not that the appellant remains in contact with his family in Iraq

...

[24] In respect of his ID documentation, the appellant stated in his asylum interview that his ID documentation was taken from him by the agent. At the hearing, the appellant gave evidence on cross-examination that the agent took his passport and Iraqi ID card but did not return it to him. I have not found the appellant to be a credible witness. I find it more likely than not that the appellant has access to his original ID documentation. I have found that the appellant remains in contact with his family. I see no reason why the family of the appellant cannot assist the appellant to facilitate access to his original documentation or to obtain replacement ID documentation.

Discussion

Ground one

6.               The risk relating to the appellant's sur place activities was identified by the judge [5 (c)] as one at the principle issues in dispute issue in the appeal. The appellant's skeleton argument before the judge, referred the First-tier Tribunal to county guidance, HJ( Iran) [2010] UKSC 31, and the requirement for the judge to direct his mind as to the appellant's likely behaviour on return.

7.               Mr. Walker, for the respondent, conceded the judge had made an obvious material error of law. He submitted it would be 'foolish' for the respondent to resist (ground one) advanced by Mr. Wood because:

(i)             The findings at [20-21] failed to make it clear whether the appellant's sur place activities were found to be a genuine reflection of his political opinion or simply that the activities occurred.

(ii)           The judge's findings are limited only to whether the appellant's activities at the time of the hearing had themselves come to the attention of the Iraqi authorities: There was no assessment of future risk undertaken by the judge.

8.               Although the respondent concedes an error of law has been made, the matter for me to determine. In this matter, I agree that such concession is properly made. It is clear that the Judge failed to properly analyse whether the appellant's sur place activities in the UK are genuine, and if they are, what the consequence of that behaviour might be on return. The judge did not apply HJ (Iran) [2010] UKSC 31, per Lord Hope §35. The judge did not to examine a group of questions which are directed to assess what the situation will be for the appellant on his return.

Ground two

9.               Ground two challenges the sufficiency of the judge's reasons and generalised approach to credibility. Here, Mr. Walker on behalf of the respondent submits that the judge has succinctly, but adequately brought together the reasoning behind his findings.

(i)             In terms, he submits that the judge has done no more than bring together different strands of the appellant's evidence regarding the assistance received from his family in leaving Iraq and used that as (proper) basis to infer that the appellant's account about having lost contact with his family now was not reliable.

(ii)           The respondent submits that the judge's finding [21] ' I did not find the appellant to be a credible witness generally and also in respect to his claim that he no longer has any family members in Iraq' is not a generalised credibility finding. Although the word 'generally' is used by the judge, Mr Walker says that is it sufficiently clear that the judge made a distinct finding regarding the contact between the appellant and his family in Iraq.

10.           I do not agree with Mr. Walker's submissions.

(i)             It is clear from reading the judge's specific findings, as his global decision that judge used his generalised credibility findings as the foundation for his more specific finding on the contact between the appellant and his family;

(ii)           At [24] the single reason advanced for finding that the appellant has access to his original documentation (and that the explanation that it was taken by an agent is not reliable) is that the appellant has not been found to be generally credible.

11.           As to the significance or materiality of the judge's findings, it is important to note that despite the judge's categorisation of the appellant as not credible is at odds with the judge's findings that the sur place activities the appellant say he undertook were accepted by the Judge as having taken place, therefore: credible.

Disposal

12.           The parties agreed that if I found both grounds made out, that it would be difficult to preserve any findings or bring the two separate parts of the determination together.

13.           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.

14.           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 ).

15.           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.

16.           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.

Notice of Decision

1.        The decision of Judge Swinnerton, 29 ^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 Swinnerton.

 

 

Paul Lewis

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

21 ^st February 2025