Tribunal decisions

The decision

IN THE UPPER TRIBUNAL

JR/10622/2016

Field House,
Breams Buildings
London
EC4A 1WR

9 August 2017

The QUEEN
(ON The application OF AN)
Applicant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Before

UPPER TRIBUNAL JUDGE PITT

- - - - - - - -

Ms K Olley of Counsel, instructed by Duncan Lewis Solicitors, appeared on behalf of the Applicant.

Mr Z Malik of Counsel, instructed by the Government Legal Department, appeared on behalf of the Respondent.

- - - - - - - - - - - - -
ON AN APPLICATION FOR JUDICIAL REVIEW

JUDGMENT
- - - - - - - - - - - - -
JUDGE pitt:
1. This is an application against a decision dated 28 June 2016 and a supplementary letter dated 7 February 2017 which refused to find that further submissions made by the applicant amounted to a fresh asylum claim.
Background
2. The applicant is an Iranian national born in 1982. He maintains that in 2000 and in 2001 he was arrested for short periods in Iran because of his anti-regime activities. The applicant also claims that in March 2007, whilst he was not at home, there was a raid on the accommodation he shared with friends and his cousin. They were all, including the applicant, involved in activities critical of the regime. His cousin was shot dead trying to escape from the raid. One of the friends who lived at the property was arrested and given the death penalty, later commuted to a life sentence in prison.
3. When the applicant heard about the raid he went into hiding for approximately six months in Iran and then to come to the UK via Greece. He maintains that he arrived in the UK in November 2007 and claimed asylum on 26 November 2007. As he had passed through Greece he was returned there under the Dublin Convention on 8 February 2008. He remained in Greece until 25 April 2010 when he returned to the UK.
4. After returning to the UK, the applicant made another asylum claim on 13 May 2010. That application was refused on 11 November 2010. The appeal against that refusal was heard by First-tier Tribunal Judge Miles on 16 February 2011. The First-tier Tribunal dismissed the appeal in a decision promulgated on 24 February 2011. The applicant's claim set out in paragraphs 2 and 3 above was not found credible. The applicant became appeal rights exhausted on 21 June 2011.
5. The applicant made further submissions in support of his asylum claim on 8 January 2013. Those submissions were originally refused by the respondent on 7 August 2015. After the applicant indicated that he intended to judicially review that decision the respondent agreed to reconsider on 8 October 2015. That reconsideration led to the decision currently under challenge dated 28 June 2016 that the further submissions did not meet the fresh claims test.
6. The applicant issued a pre-action Protocol letter on 26 August 2016. The respondent replied on 9 September 2016. This judicial review was issued on 28 September 2016. The application was given permission to appeal on the papers by Upper Tribunal Judge Blum in a decision dated 13 December 2016.
7. The respondent issued a supplementary decision on 7 February 2017 which is the second decision under challenge here.

Preliminary Issue
8. Following the supplementary letter of 7 February 2017 the applicant sought on 21 July 2017 permission to admit a witness statement dated 21 July 2017, a letter from a translator dated 13 July 2017 and a new translation of a court summons. Those documents sought to address points made by the respondent in the supplementary letter of 7 February 2017. The application for those documents to be admitted was directed to be made orally on the day of the hearing as a preliminary matter.
9. The applicant maintained that the question of admission of such documents in judicial reviews of this nature and where the Secretary of State has issued her supplementary decision was a "grey area" and that the Tribunal should exercise its discretion to admit the new documents. The respondent objected to those documents being admitted and taken into consideration in this matter so late in the proceedings.
10. My decision was that the documents provided on 21 July 2017 should not be admitted. Firstly, the general principle is that the lawfulness of the respondent's decisions should be assessed on the basis of the materials that were before her, that is on 28 June 2016 and 7 February 2017.
11. Secondly, if the applicant has new materials he considers material to his asylum claim, he can submit them to the respondent in support of a fresh claim.
12. Thirdly, even if those principles did not have sufficient force, the application to admit the new materials was made over 5 months after the decision of 7 February 2017, the decision they purport to address, and this is very late. The documents provided with the application suggest that the authority of the Legal Services Commission was required to incur costs for the new translation of the court summons but the matter only appear to have been raised with them in July 2017 and nothing explains delay in providing the witness statement or the letter from the translator over the period February 2017 to July 2017.
The Applicant's Further Submissions of 8 January 2013
13. The applicant's further submissions dated 8 January 2013 are at [52]-[124] of the application bundle. The new materials addressed the claim rejected by the First-tier Tribunal concerning events in Iran before the applicant left and the ensuing adverse interest in him and his family. I refer to this part of the applicant's claim as "the original claim"
14. The further submissions addressing the original claim included an undated witness statement from the applicant which is at [60]-[66].
15. At [72]-[73] there was what purported to be a court summons from Iran dated 25 June 2011. The applicant's case was that this document had been sent to him by his parents inside a birthday card, at [67], a copy of the envelope containing those documents being at [70]-[71].
16. The applicant also sought to rely on what he maintained was a death certificate of the cousin who was killed when their accommodation was raided in Iran in March 2007. A copy of that document is at [80] and the translation at [81].
17. The further submissions also included witness statements from the applicants' sisters. The witness statement of his sister, Z, is at [113] to [116] of the bundle. It states in paragraphs 6 to 15:
"6. Since [AN] fled Iran, I have visited Iran on four occasions to visit my parents. On the first occasion, I arrived in Iran on 17 June 2008. When I returned to my parents' house in Qazvin, things were turned upside down. My parents told me that members of the security services had regularly been coming to their house to search for Ali and for evidence that Ali had been living there.
7. As I had travelled back with my husband and young daughter, my husband said it was too dangerous for us to stay in my parents' house because of the regular raids from the security services. During the 4 weeks that I was in Iran, on two occasions when I was in my parents' house, members of the security services barged into the property without any warning.
8. On the first occasion, four plain-clothed members of the security services entered my parents' house. They said that they were looking for my brother Ali and just started looking through the house for him or for evidence that he had been there. They did not even give us time to cover our hair, which women are required to do if strangers come into the house. They searched through every room including all the cupboards, banging doors to scare us. My mother was very pale and scared and we were worried about her condition at the time.
9. Once they had searched the whole house, they told us do not think we are leaving, we can come back at any time. They said we will definitely find him, referring to my brother Ali. Even though we knew that Ali was safe out of the country at the time, it still scared us as the language they were using suggested they knew Ali's whereabouts and were going to get him.
10. As well as the security services who entered the house, uniformed soldiers waited outside the house when the plain-clothed people were raiding the house. This was very shameful for my family as all the people around the area saw the uniformed guards around the house, and assumed that my family must have done something terrible and shameful to make the authorities come.
11. On the second occasion, within a period of two weeks from the first raid, three plain-clothed members of the security services entered the house and quickly showed us a warrant, which they did not give us time to read. They searched the house in the same way, but this time once they finished, they gave my mother a handwritten piece of paper which said she was obliged to call the police if Ali returned home. It said that if she did not do this, she would be as guilty as Ali. They read this out to my mother and she was very scared so she signed it. They then took the paper with them and left the house.
12. I then left Iran with my family around a week after this raid. Before I left the country, a family friend of ours how had connections with the security services, showed us that the telephone conversations in my parents' house were being recorded. He did this by telling us that if there were a few beeps at the beginning of your conversation, this meant that your telephone was being heard by the security services. I checked this and there were beeps on the phone at the start of a call so I knew that this was happening.
13. Because of these raids, my mother has become very vulnerable as three of her children have left Iran and she has no-one other than my father living with her. She was very dependent on her neighbours, but because of all the raids that were happening, the neighbours didn't want anything to do with our family any more.
14. My parents initially hoped that the Iranian authorities would give up searching for Ali, but when it became clear that they were going to do so as the raids continued, they decided that they had to move to another area due to the shame caused by the constant raids. It took a long time for them to sell their house, but they were eventually able to move to another area.
15. When I went back to see my parents in later years, although I didn't see any raids myself, my mother told me that the authorities would still come to the house and would sometimes leave warrants for Ali's arrest with them. My mother told me when giving her the warrant that they would be able to arrest Ali whenever he entered or exited the country as all the border posts would know to arrest him. Because they said this, I assume that Ali is on a blacklist, so if he was to be returned to Iran, he would definitely be arrested and punished."
18. The applicant also relied on a witness statement dated 26 November 2011 from a second sister, sister, S, which is at [122]-[124] of the bundle. This sister did not have first-hand knowledge of events in Iran but maintained that she had heard from her cousin's family of the cousin's death in the raid in 2007 and of the arrest of the applicants' housemates. She maintained that she knew through her relatives in Iran that the authorities had raided the family home after the applicant had gone into hiding.
19. The further submissions also put forward a new aspect of the applicant's claim to be in need of international protection. He maintained that his internet activities in the UK, in particular a Facebook account in an assumed identity showed him to be at risk on return. I refer to this part of the applicant's case as the "sur place claim".
20. The applicant stated in paragraph 28 of his undated witness statement that he had set up a group on Facebook to express anger against the Muslim religion. At paragraphs 25-33 of the witness statement he gave details of this group. He stated that it had around 40 members. An internet search would show him to be the founder of the group.
21. The applicant included copies of pages from his Facebook account which are at [84]-[112] of the bundle. The applicant maintained that he was identifiable from a number of photographs on his Facebook profile. The photos would be considered anti-regime, for example a photo of him next to the flag of the former Iranian Shah and he also submitted that the Facebook account contained anti-regime statements. The applicant also indicated that he had a previous Facebook account which he was forced to shut down in June or July 2011 due to what appeared to be technical problems but which he suspected may have been some form of hack or technical interference by the Iranian authorities.
Respondent's Decision of 28 June 2016
22. The respondent's initial view of the further submissions is set out in the decision of 28 June 2016 and is contained at [153] to [157] of the bundle. The reasoning on the court summons, death certificate is as follows:
"You have submitted a court summons dated 25 June 2011 with translation and a photocopy of your cousin's death certificate.
You claim that these documents relate to your initial claim that you are still wanted by the authorities in Iran.
These documents have been considered in line with the case-law of Tanveer Ahmed IAT [2002] UKAIT 00439 STARRED. This means that it is for you to show that any documents you rely on to support your case can be relied on.
Your documents have not been viewed in isolation. This means that they have been considered as part of all the available evidence that they relate to.
The document from Ministry of Justice of Islamic Republic of Iran dated 25 June 2011 has been considered.
It has been noted that you have sent the document both in your native language and translated into English, however, the following issues have been taken into account when considering this document.
You have provided no proof that this is an official document.
The translation has been completed by Abdul Nishat, Universal Language Services LTD and I can find no record of anyone with that name working as a sworn translator.
You have provided an envelope that is post marked as coming from Iran (within the birthday card), however you failed to establish or prove that this document was in that envelope when it arrived.
The Adjudicator in the Appeal determination of 21 February 2011 rejected your account that you would face a real risk of persecution upon your return to Iran and found you to lack credibility.
The document is of poor quality.
The document has no official stamp.
Objective evidence suggests the document does not share similarities/characteristics of other court summons issued around that date.
Therefore taking these factors into consideration, it has been concluded that no weight should be attached to these documents and that you have failed to establish that the Court Summons is in fact a genuine document.
Your cousin, F's, death certificate has been considered.
It has been noted that you have sent a photocopy of the document in your native language and translated into English, however, the following issues have been taken into account when considering this document.
The document is a photocopy of an original.
The document is of poor quality.
You have provided an envelope that is post marked as coming from Iran (within the birthday card), however you failed to establish or prove that this document was in that envelope when it arrived.
The Adjudicator in the Appeal determination of 21 February 2011 rejected your account that you would face a real risk of persecution upon your return to Iran and found you to lack credibility
The court summons and the death certificate have been carefully considered but for the reasons given above they have not been found to assist your credibility. Having examined your claim as a whole and applying the principles stated, the documents do not support your fear of risk on return to your country of origin.
23. The respondent's view of the witness statements of the applicant's sisters was as follows:
"You have submitted a total of 3 witness statements which confirm your character and reiterate your claim. The statements from your siblings have been taken to be genuine statements from said people. However, the statements are considered self-serving and contain only personal opinion from people who know you and do not present any facts. Therefore, it is considered the statements add no weight to your claim."
24. The respondent also considered the sur place claim, relying on the country guidance case of BA (Demonstrators in Britain - risk on return) Iran CG [2011] UKUT 36 (IAC). The conclusion that the applicant's Facebook materials did not show a realistic prospect of success before a Tribunal was reached on the basis that:
"You have submitted Facebook extracts from your profile, dated 01 September until 13 September 2011 with English translations. However, it is considered that the nature and timing of these sur place activities are in order to establish a further right to remain in the UK. You have made the Facebook posts under an alias. You have submitted no evidence that the Iranian authorities would know about or have any interest in your claimed UK activities. You have not provided any evidence that you have attended demonstrations or activities that have been monitored by the Iranian authorities. It is therefore considered that these submissions do not demonstrate that you will be identified by the Iranian authorities upon return to Iran due to your claimed political activities in the UK."
Respondent's Supplementary Decision of 7 February 2017
25. The respondent's supplementary decision of 7 February 2017 is at [286]-[292] of the bundle. This letter gave further reasons for finding that the court summons, death certificate, and Facebook material could not found a fresh claim. At [288], [289], [290] and [291] the respondent made specific comment on those core aspects of the applicant's case as follows:
"Court Summons
You have provided a court summons dated 25/6/11 which you claim was received by your parents on 2/7/11. You have provided an undated English translation completed by Abdul Nishat of Universal Language Services LTD. You claim that you received this document on 17/10/11 and this was hidden inside a birthday card, the proof of postage from Iran has also been submitted.
The summons states the reason for accusation is 'Propaganda against state and religious values'. The summons is dated 25/6/11, although from the English translation it is unclear as to what the specific date for attendance at court is, no specific time is stated for which you must attend court. You claim it was handed to your parents on 2/7/11 when the security forces came into their house and looked for you.
It is noted that a warning appears on the bottom of the summons which states 'Warning will be issued in case of absence and if you do not attend the specific time for hearing a decision will be made in your absence'. However, although you now claim that the security forces gave this summons in person to your mother on 2/7/11, there is no evidence of the outcome of any charges you claim were made against you.
You have stated in your personal statement dated 8/1/13 that your parents have received many summonses but have not kept them due to their fear of the authorities. You claim that there are outstanding charges against you. However, the only evidence you have supplied of these claimed anti-government and anti-Islamic accusations is a summons which states that even if you do not attend court a decision will be made in your absence. You have not supplied any further evidence of this outcome despite you claiming that the security forces have searched your parents' home on many occasions.
You have also not explained why, when you claim that you received this document in the post on 17/10/11, you have waited until 8/1/13 to submit this to the Home Office. You now claim that this crucial piece of evidence demonstrates that there are outstanding charges against you and will place you at risk if returned to Iran. However, this document would have been in your possession for 1 year 3 months before you decided to submit this as further submissions. Also, when looking at your Home Office records, you were attending mandatory reporting events at Becket House Enforcement Office during this time and records show that you attended on 8/11/11, 10/1/12, 13/3/12 & 8/5/12. It is considered that had you been in receipt of a vital document such as a court summons on 17/10/11 you could have brought this to the attention of the Home Office when attending for immigration control purposes.
Therefore, when taking this document alongside the findings of fact made by the Immigration Judge in your appeal dated 24/2/11 and the long delay in submitting this to the Home Office, it is considered that you have submitted this false document in an attempt to enhance the credibility of your claims which had previously been dismissed at appeal.
Death Certificate
You have supplied a photocopy of what you claim is your cousin's death certificate, you claim that this was sent via email from your family friend in Iran 'Alireza Chegini' who received it from your mother, your mother received this from your uncle's wife. However, in the email from Alireza Chegini dated 14/9/11 it does not state how he managed to obtain this death certificate, furthermore, there is no mention whatsoever in this email of a death certificate and no evidence that it was attached to an email as you claim.
You claim at paragraph 23 of your witness statement that you originally asked your uncle's wife to send you this document, however, you have provided no evidence of this request. If this was by email, there are no explanations as to why you have not provided this.
Therefore, the claim that this is a copy of a claimed original document cannot be verified as being an original death certificate. Furthermore, you claim in your witness statement that the death certificate states that the cause of death was due to a blow to the back of the head. It actually states the cause of death was 'Trauma due to the skull bone', it does not mention the back of the head and trauma does not necessarily have to be caused by a blow. You claim that your cousin was shot in the head by the Iranian authorities and that they have attempted to cover this up. You have not provided any evidence or reasons why you assert why the government would try to cover up your cousins (sic) death.
In your witness statement (paragraph 20) you state that the death certificate states that your cousin died on 7/4/07. It does not. The death certificate actually states that the date of death was 3/4/07.
Therefore, when taking the delay in submitting this document alongside the credibility findings of the Immigration Judge, it is considered that this is not a genuine record of events and again you have submitted a false document to support a weak asylum claim.
You claim that your cousin was killed by the Iranian authorities on 7/4/07 (your statement is contradictory to the actual death certificate). However, you did not leave Iran until towards the end of 2007 and arrived in the UK on 26/11/07. You were returned to Greece after it was discovered that you had your fingerprints taken there prior to arriving in the UK, you failed to claim asylum in Greece despite your claim that you had to flee Iran as your life would be at risk. Had you genuinely been in need of international protection then it is considered that you would have claimed asylum in the first safe country you reached. You claim that you remained in Greece for 3 years before again travelling illegally to the UK on 25/4/10, you also failed to claim asylum on re-entering the UK but instead waiting for 3 weeks until 13/5/10 which the Immigration Judge noted also undermined your credibility of claiming to fear persecution in Iran.
Facebook Activity
You have supplied print outs of your Facebook profile and online activity, whilst an internet search does bring up the details of this account you have not provided any evidence to demonstrate how the Iranian authorities would be aware of this activity. The Immigration Judge has previously rejected your account of the reasons for leaving Iran and it was not accepted that you had been involved in any anti-government or anti-Islamic activity whilst in Iran.
You failed to claim asylum in Greece despite your claim to have remained there for 3 years when you were originally removed from the UK in 2007, had you genuinely been in need of protection it is considered that you would have taken the opportunity to claim asylum in Greece. You also failed to claim asylum on arrival in the UK on 25/4/10, but instead chose to wait 3 weeks before submitting your claim on 13/5/10. This delay and failure to claim asylum at the earliest opportunity in the first safe country all casts doubt on your credibility, as was found by the Immigration Judge in the appeal dated 21/2/11.
Your claimed online activism has been considered alongside the relevant case law BA (Demonstrators in Britain - risk on return) Iran CG [2011] UKUT 36 (IAC), this is taken into account when assessing the risk on return due to your claimed sur place activities. This caselaw, at paragraph 4, outlines the relevant factors to be considered when assessing risk on return having regard to sur place activities.
Nature of sur place activity
Identification risk
Factors triggering inquiry/action on return
Consequences of identification
Identification risk on return
The position of people who engage in political opposition in the UK was considered in the case of BA (Iran) CG (Demonstrators in Britain - risk on return) [2011] UKUT 36 (IAC). In this case it was held:
'Given the large numbers of those who demonstrate here and the publicity which demonstrators receive, for example on Facebook, combined with the inability of the Iranian Government to monitor all returnees who have been involved in demonstrations here, regard must be had to the level of involvement of the individual here as well as any political activity which the individual might have been involved in Iran before seeking asylum in Britain."
You have submitted Facebook extracts from your profile, dated from September 2011 with English translations. You have made the Facebook posts under an alias and whilst an internet search does bring up your name, you have submitted no evidence that the Iranian authorities would know about or have any interest in your claimed UK activities. You have not provided any evidence that you have attended demonstrations or activities that have been monitored by the Iranian authorities or that you are involved in any anti-government/anti-Islamic organisation. You have not been to Iran since 2007 and you have not provided any evidence to demonstrate why the authorities would monitor what you post on Facebook. It was not accepted by the Immigration Judge that you had been involved in any political/religious activities whilst in Iran and your evidence has not been accepted as reliable.
You claim at paragraph 33 of your witness statement 'I know that the Iranian government monitors what Iranians post on Facebook and I believe that because of my activism on Facebook, particularly because I set up the Anti-Islam group, this will create a further risk to my life'. However, you have provided no evidence that your Facebook account is monitored or that the authorities would have reason to monitor your online activity, therefore, this claim is just speculation and is not substantiated by any evidence.
It is therefore considered that these submissions do not demonstrate that you will be identified by the Iranian authorities upon return to Iran due to your claimed political/religious activities in the UK. This claimed online activism is also considered alongside recent Country Guidance noted on Iran country policy and information note: journalists and internet based media - October 2016. This updated guidance states the following in regard to claimed online activity in the UK:
'Since the Iranian Government is not able to monitor the activities of every individual, decision makers must consider the level of involvement of the person, in addition to any political activity that the person may have previously been involved with in Iran'. (Paragraph 2.2.4)
'Decision makers must be satisfied that persons claiming to be journalists or bloggers are able to demonstrate that their activities have brought, or will bring them, to the adverse attention of the Iranian authorities. Decision makers should give consideration to all relevant factors, including in particular:
the subject matter of the material in question;
the language and tone used;
the method of communication;
the reach of the publication (i.e. how many people are they communicating with);
the publicity attracted;
the frequency of such publications;
any past adverse interest by the authorities'. (Paragraph 2.2.5)
Therefore, you have provided no credible evidence to demonstrate that you have ever been involved in any political activity I interview and apart from your Facebook profile, there is no evidence of any significant activity in the UK. Your court summons is considered to be unreliable and you have provided no further evidence of any anti-government or anti-Islamic activity either in Iran or the UK. Therefore, when taking all these matters in the round with the negative credibility findings of the Immigration Judge, it is considered that you have failed to demonstrate that the Iranian authorities would have any adverse interest in you should you now return to your country of origin. The United Kingdom would not be in breach of its obligations under Articles 2 or 3 of the ECHR by removing you to Iran."
The Applicant's Submissions
26. The applicant brings a number of challenges to those decisions. Regarding the court summons, the comment that the applicant had provided no proof "that this is an official document" was difficult to understand and it was not clear what the respondent meant by this or how he could show it to be an official document other than by providing the original copy, which is what he had done.
27. The applicant also objected to the comment that the translations had not been done by a "sworn translator" where it was not clear what the respondent meant by this or where she found authority for this being a requirement for weight to afforded to a document.
28. The applicant also objected to the respondent's view that the envelope that he had provided could not be definitively linked to the documents he claimed were sent to him from Iran. He maintained that this position was irrational as the only way that he could have proved the link would have been to have had a witness to him opening the documents or to have videoed it and that this was not a rational requirement.
29. The applicant also submitted that the respondent's concerns that the court summons was of poor quality, had no official stamp and did not show similarities or characteristics of other court summonses was insufficiently particularised and so did not justify a conclusion that they could not show a realistic prospect of success before a Tribunal. The applicant also objected to the finding at [155] that the court summons was not "a genuine document".
30. The applicant made similar submissions on the respondent's view that the death certificate was a photocopy, not an original, that it was of poor quality, that there was no proof that it was an official document and nothing linking it to the envelope provided.
31. The applicant also objected to the statement on [156] that the witness statements of the applicant's sisters were self-serving. That might be the view of the respondent but it was irrational to conclude that a Tribunal would not consider their corroboration as inherently without merit as they were relatives. Further, the respondent's opinion that the sisters' witness statements contained "only personal opinion from people who know you and do not present any facts" was manifestly irrational. The witness statement of Z contained a very detailed first-hand account of raids on the family home in Iran as a result of the adverse interest in the applicant.
32. As regards the sur place claim, the applicant accepted that the case of BA (Demonstrators in Britain - risk on return) Iran CG [2011] UKUT 36 (IAC) would be relevant in any assessment by a Tribunal of the applicant's new claim. BA mainly concerned participation in demonstrations in the UK and whether internet coverage of those demonstrations would be known to the authorities, however. It did not provide determinative guidance on the sur place claim here which concerned anti-regime and anti-Islamic materials on a Facebook account which could be accessed publicly and linked to the applicant.
33. The applicant also maintained that the respondent's decision was irrational where it stated on [156] that the sur place claim was made purely "in order to establish a further right to remain in the UK". The case of Danian v SSHD [1999] EWCA Civ 3000 was authority for a sur place claim made in bad faith still retaining the potential to make out a protection claim.
34. The applicant relied in particular on the reported case of AB and Others (internet activity - state of evidence) Iran [2015] UKUT 0257 (IAC) by way of support for his submission that the sur place claim had to be found to show a realistic prospect of success before the Tribunal. The case was reported. That did not make it binding but the Presidential Guidance Note 2011 No 2 at paragraph 13 indicated that a case with this designation "may be of some general interest" or of "importance for other determinations" and of "persuasive value only on the facts". The list of issues addressed in that case, at paragraph 10, showed it to be highly relevant to this applicant's sur place claim. The evidence of the experts in that case was essentially unchallenged and found to be reliable; see paragraph 448.
35. In particular, AB contained evidence that the security forces infiltrated Facebook groups (paragraph 213), that substantial anti-regime or religious statements on website were monitored (paragraph 156), that a blog with a group of under thirty followers led to adverse interest (paragraph 112), that the Iranian authorities would not consider "insincerity" in such internet activity as of importance (paragraph 252). The evidence in AB also indicated at paragraph 122 that interview on return was a "near certainty" and that, as in paragraph 126, a high likelihood of "internet activity being discovered during background investigations even if the person being returned was not already known". Paragraph 155 of AB referred to a "high risk that critical web activity will be picked up on return".
36. The applicant had established the type of internet profile and group identified in AB as capable of leading to adverse interest, therefore. The materials from his Facebook account at [84] to [112] showed him making significantly anti-Islamic comments in the posts, for example at [97] and [101]. At [106] he made adverse comment on the Prophet Mohammed.
37. The applicant maintained that the similarity of his sur place claim to those found to have merit in AB and the accepted evidence of the experts in that case would be matters that a Tribunal would inevitably have to refer to and this point alone showed the sur place claim material was sufficient to meet the "modest" fresh claim test.
The Respondent's Submissions
38. For the Secretary of State, Mr Malik took me to the adverse credibility findings of the First-tier Tribunal which are contained at [45] to [49] of the applicant's bundle. It was argued that the Secretary of State had to consider the fresh claim against that background and that this was a significant factor where the applicant was found to lack any credibility as to having been of adverse interest for any reason in Iran prior to departure, the Tribunal's findings being to the effect that the entire claim was made up.
39. The respondent had also taken a correct approach to the new documents, assessing them correctly following Tanveer Ahmed.
40. The respondent had made three entirely sound points against the applicant's reliance on the court summons in the February 2017 decision at [288] of the bundle. The document was unreliable as it did not indicate the specific date for attendance at court or specific time. Secondly, the applicant had submitted the document over a year and a half after he had obtained the document from his parents in Iran. Thirdly, he had not explained why there had been no further progression of the case against him and this is what the court summons indicated would happen were he not to appear. Those matters when considered together with the previous adverse credibility findings manifestly entitled the Secretary of State to find the document not reliable and incapable of founding a fresh claim.
41. The respondent had also made five sound points against the death certificate, those points being set out on [289] of the bundle. Again, the applicant had delayed significantly in providing what could only be a critical document in support of his case from September 2011 until 8 January 2013 when it was provided to the respondent with the further submissions. The applicant had given insufficient details of how he had managed to obtain this document or how those in Iran had managed to obtain it. He had not provided evidence as to having tried to obtain the document from his uncle's wife. The translation did not show what he claimed, which is that his cousin had been shot in the back of the head. The fifth point which the respondent made validly against the applicant was that the applicant maintained that his cousin had died on 7 April 2007 but the death certificate stated that this was on 3 April 2007.
42. In addition to the previous adverse credibility findings there was also the overarching matter of the applicant having remained in Greece for three years without having made an asylum claim which was also manifestly something which went against the new material being capable of founding a fresh claim and supported the respondent's case that the applicant was not entitled to a further statutory appeal.
43. As regards the Facebook material and how this was treated by the respondent in her two decisions, it was maintained that she was obliged to follow the country guidance case of BA and not to go beyond it. This was obligatory upon her following the Practice Direction of the President to the effect that a country guidance case would be binding on a Tribunal hearing a fresh claim based on the new materials and it was pointed out that the new Tribunal would not be obliged in the same way to take into account the findings in AB. The respondent's case was that the Tribunal's position in BA was not disturbed by AB. There was express reference in BA to the importance of a Facebook account, the head note stating that given the large numbers of people who demonstrated and any publicity of that, "for example on Facebook", was not sufficient to make out a claim.
44. It was also pointed out for the Secretary of State that the assessment of any sur place activity had to be made on the basis of the level of involvement and of the activity. That was also a binding principle arising from the country guidance and it would have been an error of law for the respondent not to follow it. Even following AB it was not sufficient for an applicant to say that they had a Facebook account criticising the Iranian regime. The claim would have to make out more than that.
45. As regards the witness statement of the applicant's sisters it was maintained that the Secretary of State was entitled to find that they were not objective evidence but views of the applicant's siblings. They had to be considered in that context and also in the context of the previous adverse credibility findings. The respondent acted reasonably and rationally in finding that they were not capable of adding weight to his claim.
My Findings
46. I have considered carefully all of the material before me and the arguments made upon it by Counsel for whose well-ordered and focused submissions I was grateful.
47. I can give my decision on this matter relatively briefly given the degree of detail set out above. Certainly the respondent here was entitled to find that it was material to a fresh claim that adverse credibility findings were made against the applicant by the Tribunal on his original claim. The respondent also cannot be criticised for taking against him his failure to claim asylum in Greece from 2008 to 2010.
48. It was also my view that the respondent's assessment of the court summons and the death certificate were, in isolation, rational and open to her for the reasons set out by Mr Malik in paragraphs 40 and 41 above.
49. It remains the case those findings had to be reached alongside an assessment of the witness statements of the applicant's sisters. Firstly, the respondent's view that they did not contain specific facts was clearly incorrect. The witness statement of Z was a very detailed first-hand account of a raid on the family home and of other raids taking place whilst she was in Iran. Even when taken with the legitimate concerns of the respondent regarding the original claim and other new documents, my view was that this witness statement had the potential to be highly probative if placed before a Tribunal. Reference to the witness statements as "self-serving" does not act to reduce their potential importance. As in R (on the application of SS) v Secretary of State for the Home Department ("self-serving" statements) [2017] UKUT 00164 (IAC) the expression "self-serving", alone, says little.
50. It is also my conclusion that the respondent's approach to the applicant's sur place claim is irrational in seeking to rely solely on the ratio of BA and as if the extensive, relevant and potentially determinative expert evidence in AB and findings of the Tribunal in that case would not be taken into account by a judge assessing the claim now. Examples of relevant passages of AB are set out above and I do not need to rehearse them again here. They show that there would be a realistic prospect of success on the sur place claim notwithstanding any further adverse findings on the original claim and the respondent's position on the sur place claim was not a rational one.
51. For those reasons I grant judicial review.
Order
52. I make an order quashing the respondent's decisions dated 22 June 2016 and 7 February 2017.
Costs
53. The respondent is to pay the applicant's reasonable costs to be assessed if not agreed with reference to the applicant's Legal Services Commission funding.
Permission to Appeal to the Court of Appeal
54. I make a decision on an appeal to the Court of Appeal under Procedure Rule 44(4B) where the respondent has not applied for permission. The reasoning set out above does not show legal error and so permission is refused.

Signed: Dated: 21 September 2017
Upper Tribunal Judge Pitt

Applicant's solicitors:
Respondent's solicitors:
Home Office Ref:
Decision(s) sent to above parties on:
-----------------------------------------------------------------------------------------------------------------------------------------------------

Notification of appeal rights

A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.

A party may appeal against such a decision to the Court of Appeal on a question of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).

If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant's notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal's decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).