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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2025-000404
	First-tier Tribunal No: PA/53953/2023 LP/09026/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 3 ^rd of April 2025

 

Before

 

UPPER TRIBUNAL JUDGE SHERIDAN

DEPUTY UPPER TRIBUNAL JUDGE LAY

 

Between

 

IP Turkey

(Anonymity Order made)

Appellant

v

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Ms S Panagiotopoulou, instructed by Montague Solicitors

For the Respondent: Ms S Mckenzie, Senior Home Office Presenting Officer

 

Heard at Field House on 28 March 2025

 

­ Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the anonymity of the Appellant is maintained.

 

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

 

1.              The Appellant is a Turkish national of Kurdish ethnicity whose asylum appeal was dismissed in a First-Tier Tribunal determination promulgated on 10 December 2024. He claimed to be at risk on return to Turkey, as the Appeal Skeleton Argument articulated at paragraph 4, owing to his membership of the Kurdish People's Democratic Assembly in the UK, his attendance at demonstrations in the UK and political activism on Facebook. First-Tier Judge Juss rejected the account, including a document purporting to be an arrest warrant issued against the Appellant in Turkey which accuses him of supporting the Kurdistan Workers' Party (PKK), a banned group.

2.              Permission to appeal to the Upper Tribunal was granted by First-Tier Judge Dainty on 28 January 2025.

3.              While a Composite Bundle was served by the Appellant, it was in three parts and did not include the Home Office bundle. Bundle references in this determination are in the following format: [CBB: XX]: [Composite Bundle Part B: PDF page number]; [RB: XX]: [Respondent's Bundle: PDF page number]. There was no Rule 24 reply served.

The refined grounds of appeal

4.              While the grounds of appeal dated 23 December 2024 were somewhat loosely structured, Ms Panagiotopoulou agreed that there were, in essence, two aspects to her challenge: (i) that the FTJ had erred in his application of Devaseelan [2002] UKAIT 702 and the overall assessment of credibility since the Appellant's latest claim for protection arose from facts post-dating a previous FTT determination dated 2 October 2018, a chronology that needed to be taken into account; and that (ii) the FTJ "failed to give any or adequate reasons for his finding that the arrest warrant was "not genuine".

5.              While the grant of permission was on all grounds, Ms Panagiotopoulou acknowledged at the outset of the error of law hearing that her criticisms of the FTJ at paragraph 4 of her grounds were not maintained. The FTJ had in fact been right to make reference to the previous determination of FTJ Landes being dated October 2018. The earlier determination of FTJ Young-Harry, dated April 2017, was wholly set aside and was therefore no longer of any relevance to these proceedings.

6.              Further, Ms Panagiotopoulou, while maintaining her ground of appeal relating to the arrest warrant, did not seek to advance her contention at paragraph 3(ii) of the grounds that the FTJ had specifically erred in labelling the arrest warrant as "not genuine" such that the label implied an allegation of deception which "required a different burden of proof to be considered". Rather, as refined at the oral hearing before us, her ground of appeal as regards the arrest warrant was limited to the adequacy of the path the FTJ took in reaching the view that it was not of evidential value, applying Tanveer Ahmed.

Submissions

7.              Ms Panagiotopoulou submitted that FTJ Juss cited, in part, the Devaseelan principles at paragraphs 21 & 22 of the determination but then failed to apply the appropriate guidelines to the present case. The FTJ had failed to take into account that the arrest warrant, itself dated 25 March 2019 [CBB: 16], specifically related to alleged "crimes" said to have occurred in 2018; and the Appellant had not been made aware of the document until it was handed to his parents in May 2019, leading to his fresh claim for asylum submitted in November 2019. The appropriate Devaseelan guideline, reflecting this Order of events, was therefore paragraph 39(2):

"Facts happening since the first Adjudicator's determination can always be taken into account by the second Adjudicator. If those facts lead the second Adjudicator to the conclusion that, at the date of his determination and on the material before him, the appellant makes his case, so be it. The previous decision, on the material before the first Adjudicator and at that date, is not inconsistent".

8.              Relatedly, Ms Panagiotopoulou argued that, at paragraph 23 of the determination, the FTJ had erred in criticising the Appellant for failing to mention during his previous appeal in 2018 (the hearing was on 3 September 2018, leading to a determination on 3 October 2018) that he had begun to involve himself with the Kurdish People's Democratic Assembly (KDPA) in July 2018. She submitted that the 2018 appeal hearing was a "completely different factual matrix" and that it was reasonable for the Appellant not to have raised it at that stage.

9.              As to the arrest warrant, Ms Panagiotopoulou submitted that, first, the FTJ made an error at paragraph 23 when stating that the warrant was dated "March 2018". The FTJ did so by reference to Facebook posts proffered in evidence by the Appellant, most of which were dated 2019 (albeit they were untranslated). The implication was that if sur place activity had generated risk for the Appellant from March 2018 onwards, it did not fit the evidence of his political activity which appeared to date from, at the earliest, the summer of 2018 and/or 2019. This echoed a line of cross-examination by the Home Office Presenting Officer at the First-Tier hearing which is noted at paragraph 14 of the determination and also misdates the arrest warrant as "March 2018".

10.          Second, Ms Panagiotopoulou submitted that there was a failure to give adequate reasons for dismissing the evidential value of the arrest warrant. In particular, at paragraph 23, the FTJ states that "much reliance is now placed on the arrest warrant, which I do not find to be genuine (with its e-signature)...". She submitted that there was no evidence in front of the FTJ as to the use or otherwise of e-signatures in documents of this kind in Turkey. She also argued that the approach to the arrest warrant was infected by the flawed approach to credibility more generally: if the FTJ had held in his mind the correct date of the warrant, and the other dates contained in the document, then that was material to evaluating both the credibility of the Appellant's account and the degree to which reliance could be placed on the document.

11.          Ms Mckenzie, on behalf of the Secretary of State, submitted in reply that the FTJ had applied Devaseelan correctly. He was entitled to have regard to the adverse 2018 determination in assessing credibility and also expressly, at paragraph 22, reminded himself that any previous adverse findings were not a "legal straitjacket". He did not place "undue emphasis" on the 2018 determination when evaluating the latest protection claim and its evidence, much of which he plainly found to be weak. He was also entitled to have given weight to the failure to mention the KDPA in the hearing of September 2018.

12.          As to the arrest warrant, Ms Mckenzie acknowledged that there was an "error" at paragraph 23, dating the document as March 2018 rather than March 2019, but that this was not a material legal error because the Facebook evidence was in any event weak, partial and untranslated. There was no clear evidence that the Appellant had engaged in social media activity in the UK prior to March 2019 in any event, such that it would have brought him to the attention of the Turkish authorities. The error of fact by the FTJ did not otherwise affect the main thrust of his reasoning, which was that the Facebook posts were not sufficient evidence to establish the Appellant's claim to have come to adverse attention and that the Appellant was not credible more generally.

Our Conclusions

13.          It is expedient, in our view, to focus on issue (ii), identified at paragraph 4 above. We do so because the core of the problem is that the determination does not adequately provide reasoning for having rejected the arrest warrant as a document upon which reliance could be placed. As part of that failure of reasoning, there is the mistake over the date of the warrant, which has tainted the FTJ's approach to whether or not it was reasonably likely that the Appellant came to the adverse attention of the authorities in 2019 for activities in the UK from 2018 onwards.

14.          The warrant itself states that it is concerned with alleged crimes said to have been committed in 2018 - which is consistent with the Appellant's account that his political activity began in July 2018 - and thereafter included attendance at events and demonstrations in addition to, as of 2019, Facebook posts, as per his witness statement [CBB: 13-14]. Rather than engage with this, the FTJ explicitly stated that the arrest warrant is not genuine "given that it was dated March 2018, but the Facebook posts are after that date". It may well have been open to the FTJ to deprecate the Facebook evidence of 2019 - the posts are limited, unclear and untranslated - but a core part of the Appellant's claim was that he had engaged in political activity more generally since the summer of 2018 in the Kurdish community in London and that an arrest warrant dated 25 March 2019, making reference to 2018, had made its way to his family following a raid on his home.

15.          We cannot assume that the FTJ bore in mind the correct date of the arrest warrant, and indeed its contents, when there is both an express mistake of fact as to the date and an absence of reasoning more generally on that strand of the Appellant's claim.

16.          Further, we consider there to be force in the Appellant's submission that the reference made by the FTJ at paragraph 23 to the "e-signature" simply begs the question of whether or why that was deemed adverse to the Appellant, absent any evidence on that matter.

17.          It is worth noting the Senior President's Practice Direction, "Reasons for decisions", dated 4 June 2024, which reminds the IAC that "adequate reasons for a substantive decision may often be short. In some cases a few succinct paragraphs will suffice... a challenge based on the adequacy of reasons should only succeed when the appellate body cannot understand the Tribunal's thought process in making material findings."

18.          Unfortunately, we have struggled to discern the reasoning of the FTJ on the face of the determination.

19.          A correct appreciation of the date of the warrant, and the context of its contents, is at the very least capable of having made a difference to the outcome. The error is material.

20.          In light of the centrality of the arrest warrant in the account (and the evidence), it has in our view tainted the determination such that it is not possible to preserve the other findings.

21.          Having found a material error of law, and one which requires the setting aside of the determination, we do not consider it proportionate to go on to resolve issue (i), ie. the precise approach taken to Devaseelan. Had we done so, we would have likewise faced the challenge of inadequacy of reasons, since the FTJ has cited parts of the guidance at paragraph 21 & 22 but has not then made clear which categories he considers applicable when making his findings of fact.

22.          We have had regard to Section 7 of the "Senior President's Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal" (SPT Ryder, 11 June 2018) and Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC). Remittal is not the usual course but it is appropriate in the circumstances of this appeal, having regard to the nature and extent of the factual finding.

Notice of Decision

The decision of the First-tier Tribunal, which dismissed the appeal, is set aside and the appeal is remitted to the First-Tier Tribunal to be heard afresh.

 

 

Taimour Lay

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

31 March 2025