Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10089/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 September 2016
On 23 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

rm
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss E Heikkila, Counsel, instructed by Simman Solicitors
For the Respondent: Mr I Jarvis, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Iran born on 21 June 1998. He is an Iranian Kurd. He arrived in the United Kingdom and claimed asylum on the basis that he had helped his father distribute leaflets on behalf of the Kurdish Democratic Party of Iran (KDPI).
2. In July 2014 the appellant's father came home and told him that he must leave the country because the Iranian authorities had found out that he had been distributing leaflets and the appellant had been assisting him. The appellant's father left the same day and the appellant's mother and his paternal uncle then made arrangements for the appellant to leave Iran, which he did two days later, travelling through a number of European countries prior to reaching the UK.
3. Since his arrival in the United Kingdom the appellant has attended meetings of the KDPI and also posted material on his Facebook account. He fears return to Iran on the basis that he will be persecuted by the authorities because of his association with the KDPI both in Iran and since he came to the United Kingdom.
4. His asylum application was refused on 30 June 2015. His appeal came before Judge of the First-tier Tribunal Dean for hearing on 7 June 2016. In a Decision and Reasons promulgated on 24 June 2016, Judge Dean dismissed the appeal. He made a number of findings including at [11] that the appellant in interview had said that he himself was not a supporter of the KDPI, it was just his father. That relates to questions 80 and 85 of the asylum interview.
5. At [12] the judge found:
"The appellant's father is nothing more than a very low level supporter of the KDPI and it is implausible that the Iranian authorities would be interested in the appellant because he was a minor who was merely acting at the behest of his father."
6. The judge went on to find, in respect of screen prints from the appellant's Facebook account at [26] and [27], that the evidence on Facebook i.e. an event of the UK KDPI in Manchester on 23 January 2016 which showed the appellant with posters of the founder and secretary general of the KDPI "this may or may not have been taken at the event in Manchester".
7. At [27] the judge said
"Other posts on his Facebook account are of photographs the appellant has placed there and are not comments or political statements which the appellant has made. Other posts are not translated so it is not possible to evaluate their content although the KDPI logo can be seen. Looking at this evidence in the round, I find that at its highest it shows an interest in Kurdish matters but consider that this is not unusual given that the appellant is Kurdish."
8. And the judge went on to find that
"The appellant has not made adverse comments but merely posted material from other people which I find does not demonstrate to the required standard that the appellant is involved in Kurdish political activities."
9. At [29] the Judge found that the appellant would not be at risk or attract the adverse attention of the authorities and he would not be at risk on return.
10. An application for permission to appeal was made to the Upper Tribunal on a number of bases: ground 1: that the judge unlawfully relied on the concept of plausibility; ground 2: the judge failed to take into account material evidence and country evidence, in particular, the manner in which the judge dealt with the Facebook evidence essentially failed to recognise that the appellant was plainly identifiable on line as someone supportive of Kurdish political rights and the political aspect of his Facebook feed demonstrates someone with much more than an interest in Kurdish matter and given that the KDPI is banned in Iran and given the findings of the Upper Tribunal in AB and Others (Internet activity - state of evidence) Iran [2015] UKUT 0247 (IAC) and the evidence that the Iranian authorities employ sophisticated techniques when investigating internet activities, the appellant's online profile is sufficient for the authorities to impute to him a political opinion antagonistic to the current regime; Ground 3 asserte that the judge misdirected himself regarding opportunism and sur place activities and failed to take into account the decision in Danian [2000] ImmAR 96 (per Brooke LJ at [557]) and YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 360 per Sedley LJ at [13] to [15]. See also RT (Zimbabwe) v Secretary of State for the Home Department [2012] UKSC 38.
11. Permission to appeal was granted by Upper Tribunal Judge MacWilliam on 10 August 2016 on the basis that it is arguable that the judge did not understand the potential significance of the Facebook photographs.
Hearing
12. At the hearing before me Mr Jarvis for the Home Office accepted that the judge had erred materially in law in his approach to the appellant's material history and the distribution of KDPI leaflets. He submitted it was unsafe for the judge to find that the authorities would not have an adverse interest in a minor, and this was indeed the judge's finding at [12] of his decision. Mr Jarvis also submitted that the judge had erred in his approach to the appellant's sur place activities in the United Kingdom.
13. I agree with Mr Jarvis' concession, which I find was properly made. I find that the First-tier Tribunal Judge materially erred in law with the consequence that his decision no longer stands.

Notice of Decision
14. The appeal is remitted back to Taylor Houses Hearing Centre for a hearing de novo.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Deputy Upper Tribunal Judge Chapman