Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/02522/2020

THE IMMIGRATION ACTS

Heard at Cardiff Civil Justice Centre
Decision & Reasons Promulgated
On the 26 May 2022
On the 14 July 2022

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

km
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr M Hussain, Fountain Solicitors
For the Respondent: Ms S Rushforth, Senior Home Office Presenting Officer

DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or court directs otherwise, no report of these proceedings shall directly or indirectly identify the appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.
Introduction
2. This is the judgment of the Upper Tribunal re-making the decision of the First-tier Tribunal which was set aside by the Upper Tribunal (UTJ Grubb) by its decision dated 9 February 2022 (sent on 23 February 2022).
Background
3. The appellant is a citizen of Iran who was born on 12 July 1995. He is of Kurdish ethnicity. He arrived in the United Kingdom clandestinely in January 2017. He was apprehended and arrested on suspicion of being an illegal entrant on 25 January 2017. On that date, the appellant claimed asylum.
4. The appellant claimed that he was at risk on return to Iran on the basis of his political opinion because of activities he had undertaken in Iran on behalf of the Kurdish Democratic Party (“KDP”), including distributing KDP leaflets.
5. On 2 March 2020, the Secretary of State refused the appellant’s claims for asylum, humanitarian protection and under the ECHR.
6. The appellant appealed to the First-tier Tribunal and, in a decision sent on 7 December 2020, Judge Barker dismissed the appellant’s appeal on all grounds.
7. First, the judge made an adverse credibility finding and did not accept the appellant’s account of his involvement with the KDP in Iran.
8. Secondly, as regards the appellant’s sur place activities in the UK, the judge found that the appellant did not have genuine political convictions and that his activities, including attending demonstrations and placing posts on his Facebook account were opportunistic. The judge found that the appellant had not established that he would be at risk on return as a result of this sur place activity.
The Appeal to the Upper Tribunal
9. The appellant appealed to the Upper Tribunal with permission.
10. The grounds challenged Judge Barker’s decision on three bases:
(i) The judge failed to give adequate reasons for her adverse credibility findings;
(ii) The judge failed to give adequate reasons for concluding that the appellant did not hold a genuine political opinion; and
(iii) The judge failed properly to assess the risk to the appellant on return as a result of his sur place activities.
11. In my decision dated 9 February 2022, I rejected the appellant’s appeal on grounds (i) and (ii). I found that the judge’s adverse credibility finding was sustainable as regards the appellant’s activities in Iran and also the judge’s finding that the appellant’s sur place activities were opportunistic or disingenuous. However, on ground (iii) I concluded that the judge had erred in law in assessing the risk to the appellant as a result of his sur place activities. My full reasons are set out in my decision dated 9 February 2022.
12. The appeal was adjourned in order that the decision could be re-made in relation to the risk, if any, to the appellant as a result of his sur place activities in the UK.
The Resumed Hearing
13. At the resumed hearing, as a result of my earlier decision, a number of findings made by Judge Barker were preserved, specifically:
(i) the judge’s adverse credibility finding and her rejection of the appellant’s account of what he claimed occurred to him in Iran (see [55]);
(ii) the judge’s finding as to the nature and extent of his sur place activities in the UK including that he does not hold a genuine political belief and those activities were opportunistic (see [62]-67] and [73]); and
(iii) the judge’s finding that the appellant would not disclose his sur place activities on return to Iran and that, in doing so, he would not fall within the principle in HJ (Iran) (see {82(iii)]).
14. My decision identified that the principal issues in re-making the decision are:
(i) what, if any, knowledge the Iranian authorities would have of the appellant’s sur place activities on return; and
(ii) whether that knowledge would expose the appellant to a real risk of persecution or serious harm contrary to Art 3 of the ECHR.
The decision was to be re-made in the light of the most recent country guidance decision in XX (PJAK – sur place activities – Facebook) Iran CG [2022] UKUT 23 (IAC) (“XX”).
15. At the resumed hearing, the appellant was represented by Mr Hussain and the respondent by Ms Rushforth.
16. Mr Hussain indicated that the appellant would not give any evidence and no further evidence was relied upon; the decision was to be re-made in the light of the preserved facts. I heard oral submissions from both representatives.
The Applicable Law
17. The burden of proof is upon the appellant to establish to the lower standard, namely real risk or real likelihood, that he is at risk of persecution for a Convention reason or of serious ill-treatment contrary to Art 3 of the ECHR on return to Iran.
The Submissions
18. It became clear during the submissions that the principal issue was whether the Iranian authorities would have knowledge of the appellant’s sur place activities in the UK on return to Iran. The risk, if any, arose from his attendance at demonstrations in the UK and what had been posted on his Facebook account which was pro-Kurdish and anti- the Iranian government. The risk (if any) arose at Tehran Airport but, on the basis of the submissions, it was said that the discovery of the appellant’s activities might occur at two pinch-points, namely the EDP process in the UK and at Tehran Airport itself.
The Respondent
19. Ms Rushforth accepted in her submissions that if the Iranian authorities were, indeed, aware of the appellant’s sur place activities, then applying XX and BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC) (“BA”), then the appellant would be at risk.
20. Having accepted, in her submissions, that the appellant would be at risk on return if his sur place activities were known, Ms Rushforth’s submissions concentrated on whether the Iranian authorities would be aware of those activities.
21. Dealing with those chronologically, Ms Rushforth submitted that as a result of BA there was no general risk to the appellant on attending demonstrations in the UK. It was, she submitted, necessary to assess his involvement. In that regard, she relied upon the judge’s findings at [56]–[61] which were preserved. She submitted that although it was not clear how many demonstrations the appellant had attended, the judge had concluded that the appellant’s evidence about his attendance at a number of demonstrations between 17 September 2018 and 2 February 2020 (eleven in total) was inconsistent. She invited me to make findings in relation to that but, adopting the judge’s approach, not to accept that he had been involved to the extent that he claimed.
22. Further, she relied on [58] where the judge found that the appellant had taken no organising role in the demonstrations. She submitted that he was a member of a crowd and although he could be seen holding banners – as she put it sometimes being “active” and sometimes being “passive” - even if he had attended all eleven over the period he claimed, this was not regular participation as contemplated in BA and there was no evidence to support a finding that he had been subject to surveillance or photographed by the Iranian authorities.
23. Ms Rushforth submitted that it was now clear, in the case law, that the Iranian authorities did not use facial recognition technology but that there were people in Tehran Airport who had the capacity to identify up to 200 faces. Applying BA, Ms Rushforth submitted that it had not been established that his attendance at demonstrations would have come to the attention of the Iranian authorities before he returned to Iran.
24. Further, Ms Rushforth submitted that there was no reason for him to disclose his activities given the judge’s finding, which was preserved, that he had no genuine political opinion and that he was carrying out the sur place activities disingenuously.
25. As regards the appellant’s Facebook activity, Ms Rushforth relied upon the recent country guidance decision in XX. She submitted, on the basis of that decision, that there was no general surveillance of Facebook activity in the UK but only targeted surveillance of those who had a sufficiently high profile to attract the attention of the Iranian authorities. Ms Rushforth distinguished the circumstances of XX set out at [109] of the UT’s decision, where XX’s Facebook material included attendance at identified locations with banners or holding the PJAK flag and included photographs of him in close proximity to a prominent member of the PJAK. It was that, Ms Rushforth submitted, that led the Upper Tribunal in [118] to conclude that there was a real risk that XX was subject to targeted (as opposed to, if any, general) surveillance by the Iranian state of his Facebook account in the UK.
26. Ms Rushforth relied on the fact that the appellant’s Facebook account had been found by the judge at [67] to be one that it was unlikely that “the access level settings of the appellant’s account” was “public”. That, she submitted, significantly reduces the risk that any conducted surveillance would identify the appellant. She relied on the fact that there was little evidence that he had any particular number of friends and she pointed out that the number of “likes” on the submitted material was between three and 50. This was relevant as the UT made clear in XX at [83]. Ms Rushforth submitted, therefore, that bearing all these factors in mind I should conclude that the appellant had not established that he would be subjected to targeted surveillance in the UK prior to, for example, the EDP process.
27. Further, Ms Rushforth submitted that the appellant could, in accordance with XX, be expected to delete his Facebook account as he held no genuine political opinion. As XX made clear, provided he did this more than 30 days before the EDP process was invoked, then even if enquiry were made to identify any Facebook pages of the appellant’s, none would be discovered by the Iranian authorities.
28. Ms Rushforth submitted, in response to Mr Hussain’s submission, that there was no real risk that the appellant had shared or his friends had downloaded material from his Facebook account which could subsequently be discovered by the Iranian authorities even after deletion of his account.
29. For these reasons, Ms Rushforth invited me to dismiss the appellant’s appeal.
The Appellant
30. On behalf of the appellant, Mr Hussain submitted that there was a real risk that the appellant’s activities at demonstrations had been monitored in the UK. He relied upon the photographs showing the appellant at demonstrations. He submitted that the appellant might be the unlucky person who on any particular day had been monitored by the Iranian authorities, for example he might be standing next to a person in whom they were interested.
31. In that regard, Mr Hussain submitted that the appellant would be questioned on arrival in Iran as he had left illegally and was Kurdish. His sur place activities would expose him to a real risk of persecution or serious harm.
32. As regards the appellant’s Facebook activity, Mr Hussain again relied upon its contents and submitted that the appellant could not lie about postings on his Facebook account. He submitted that the appellant had no reason to lie about his Facebook activity or indeed his attendance at demonstrations.
33. Mr Hussain acknowledged the approach of the UT in XX to the deletion of a Facebook account, but he submitted that in any event there was a danger that others had saved or downloaded posts and that the Iranians would be able to discover his Facebook pages even after deletion. He suggested, for example, that the Iranian authorities might obtain material from one of the appellant’s “friends”.
Discussion and Findings
34. I remind myself that the judge found, and these findings are preserved, that the appellant was not telling the truth about his involvement with the KDP in Iran (see [49]-[55]). Consequently, he had no prior political activity before coming to the UK.
35. Further, as regards his sur place activities that was disingenuous, because the appellant does not have a genuine political opinion (see [73] and [82(iii)]).
36. The judge dealt with the appellant’s attendance at demonstrations in [56]–[61] as follows:

“56. Turning then to the sur place activities the appellant relies upon. When asked in his asylum interview, about his political activities in the United Kingdom, the appellant said that he went to some demonstrations. When asked when, he said ‘two or three weeks ago in Birmingham’, but moments later said the demonstration in Birmingham was in 2018. The appellant said that he attended ‘also in London as well.’ He said that he did not remember the specific dates but that ‘the one in London was two or three weeks ago', saying that that was when he burned the photograph of Iranian leader ‘Khomeini’. The appellant said that people taking part in the demonstration took his photograph, and that there were lots of cameras from the Iranian government ‘to know who was taking part in that’. When asked how he knew that the Iranian government had cameras, he said that ‘the cameras were taking pictures discreetly’ and that he had ‘seen my pictures in those cameras’.

57. I do not find that the appellant’s account about his attendance at demonstrations in the UK consistent, and in my view the evidence he has produced about this is vague and contradictory. The asylum interview where he initially claimed that the demonstration in Birmingham had been two or three weeks earlier, took place on 6th June 2019. It is a significant change in his account to then say that it took place in 2018, at least six months earlier. In fact, the appellant has provided a photograph that he says shows him at a demonstration in Birmingham (AB 28) and this is a photograph that he posted on his Facebook page. The photograph is not dated, but the post in which it appears is dated 17th September 2018-some nine months before the asylum interview. How he mistakes the passing of nine months time for two or three weeks is not clear to me. Simply because the post is dated 17 September 2018 does not lead to the finding that demonstration must have taken place contemporaneously in any event, for the reasons I will come back to below.
58. Whilst I am satisfied that the photograph is of the appellant, there is no reliable evidence that the photograph is of the appellant at a demonstration. It is simply a photograph of him in a room, with a flag of Kurdistan to his right and an image of the KDP’s emblem behind him. I have seen nothing that demonstrates, even to the lowest standard that this is evidence of the appellant’s attendance at a demonstration. The appellant claims that he was there assisting with the organisation of the demonstration, and that's why he says he was wearing what seems to be a high-visibility waistcoat, but again I only have the appellant’s word for this, and I have already identified issues in relation to his credibility. I find it reasonable that if you were present, particularly in the role of official helper, someone from the organisation would be able to corroborate this. I have seen nothing from anyone else confirming that the appellant attended or assisted in the way he describes. In any event, I find it implausible that someone who is not a member of the KDP as the appellant accepts, would be asked to assist with the organisation of such a demonstration. I do not accept the appellant’s account in this regard as credible.
59. Whilst there other photographs of the appellant at demonstrations (AB 15-31) many of these are duplicated, and none of them are dated. Whilst I accept the appellant appears to have attended some demonstrations, I do not accept that he has attended the volume that he describes. The appellant said that he had attended four or five each year since 2018, but in my judgement, the photographs he has produced do not demonstrate this level of attendance. Certainly by the time of his asylum interview in June 2019 the appellant himself only claimed to have attended two such demonstrations - one in Birmingham, and one in London, and this is clear from the answers he gave at that time, in particular the reference ‘I do not remember the exact date, but I remember the one (my emphasis) in London’, going on to give the details of where it was held, and who organised it.
60. Even if the appellant had attended many more demonstrations since this interview, I am deeply suspicious about his motive for doing so. He does not appear to have demonstrated any particular interest in the politics of Iran giving my findings above, and while I accept the appellant has provided some evidence of his interest from his Facebook account, again I am struggling to accept that these demonstrate a genuine political profile, or in any event, a profile of such level that would draw the adverse attention of the authorities in Iran.
61. The appellant claimed that photographs were taken of the people attending the demonstrations and these photographs were placed on the official KDP website, but I have seen no evidence that this occurred in relation to the appellant, and I find that if there were posts of him on the KDP website, they would have been produced by the appellant, in support of his claim that the authorities would be aware of his attendance.”
37. The appellant claimed to have attended eleven demonstrations between 17 September 2018 and 2 February 2020. Mr Hussain submitted that the lack of activity thereafter, prior to the First-tier hearing on 2 December 2020, was due to lockdown. That may well have impacted upon the appellant’s ability to attend demonstrations but the fact remains that his claim is based upon actual attendance and, he says, monitoring by the Iranian authorities. The judge did not make an explicit finding as to whether she accepted that the appellant had attended all eleven as he claimed. But, it is clear from her reasoning, especially at [56]–[59], that she had serious concerns about the veracity of the appellant based upon the evidence and inconsistencies in the evidence as to his claimed attendance. At [59], the judge did not accept that he had attended “the volume that he describes”. I see no reason to look behind that finding given the judge’s adverse credibility finding in relation to the appellant and her reasons at [56]–[59].
38. I, of course, heard no further evidence from the appellant or otherwise concerning these demonstrations. Following the conclusion of the representatives’ submissions, and indeed my indication that I was reserving my decision, the appellant (from behind Mr Hussain) indicated that he wished to say something to me. Mr Hussain consulted with him and indicated to me that he had advised the appellant that the appeal would be determined on the existing evidence and preserved findings but, nevertheless, the appellant said that he had been active and had attended demonstrations in 2020–2022. As I have said, Mr Hussain, acting on behalf of the appellant as his legal representative, did not call any evidence in relation to any further matters subsequent to the judge’s decision. The appeal must, therefore, be determined on the basis of the evidence that was before the judge. I am in no better position than the judge to make an explicit finding beyond that made by the judge at [59] that the appellant attended “some demonstrations” but not the eleven that he claimed.
39. The relevant CG decision is BA which, the Upper Tribunal in XX stated, continues accurately to reflect the position of returnees to Iran. The guidance in that case is as follows:

“1 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.

2 (a) Iranians returning to Iran are screened on arrival. A returnee who meets the profile of an activist may be detained while searches of documentation are made. Students, particularly those who have known political profiles are likely to be questioned as well as those who have exited illegally.

(b) There is not a real risk of persecution for those who have exited Iran illegally or are merely returning from Britain. The conclusions of the Tribunal in the country guidance case of SB (risk on return -illegal exit) Iran CG [2009] UKAIT 00053 are followed and endorsed.

(c) There is no evidence of the use of facial recognition technology at the Imam Khomeini International airport, but there are a number of officials who may be able to recognize up to 200 faces at any one time. The procedures used by security at the airport are haphazard. It is therefore possible that those whom the regime might wish to question would not come to the attention of the regime on arrival. If, however, information is known about their activities abroad, they might well be picked up for questioning and/or transferred to a special court near the airport in Tehran after they have returned home.

3 It is important to consider the level of political involvement before considering the likelihood of the individual coming to the attention of the authorities and the priority that the Iranian regime would give to tracing him. It is only after considering those factors that the issue of whether or not there is a real risk of his facing persecution on return can be assessed.

4 The following are relevant factors to be considered when assessing risk on return having regard to sur place activities:
(i) Nature of sur place activity
· Theme of demonstrations – what do the demonstrators want (e.g. reform of the regime through to its violent overthrow); how will they be characterised by the regime?
· Role in demonstrations and political profile – can the person be described as a leader; mobiliser (e.g. addressing the crowd), organiser (e.g. leading the chanting); or simply a member of the crowd; if the latter is he active or passive (e.g. does he carry a banner), what is his motive, and is this relevant to the profile he will have in the eyes of the regime(?)
· Extent of participation – has the person attended one or two demonstrations or is he a regular participant?
· Publicity attracted – has a demonstration attracted media coverage in the United Kingdom or the home country; nature of that publicity (quality of images; outlets where stories appear etc)?
(ii) Identification risk
· Surveillance of demonstrators – assuming the regime aims to identify demonstrators against it how does it do so, through, filming them, having agents who mingle in the crowd, reviewing images/recordings of demonstrations etc?
· Regime’s capacity to identify individuals – does the regime have advanced technology (e.g. for facial recognition); does it allocate human resources to fit names to faces in the crowd?
(iii) Factors triggering inquiry/action on return
· Profile – is the person known as a committed opponent or someone with a significant political profile; does he fall within a category which the regime regards as especially objectionable?
· Immigration history – how did the person leave the country (illegally; type of visa); where has the person been when abroad; is the timing and method of return more likely to lead to inquiry and/or being detained for more than a short period and ill-treated (overstayer; forced return)?
(iv) Consequences of identification
· Is there differentiation between demonstrators depending on the level of their political profile adverse to the regime?
(v) Identification risk on return
· Matching identification to person – if a person is identified is that information systematically stored and used; are border posts geared to the task?”
40. Applying this guidance, I accept Ms Rushforth’s submission that the Iranian government is not able to monitor all returnees who have been involved in demonstrations in the UK. I accept, of course, the general position set out in para 4(ii), that demonstrators may be subject to surveillance by the Iranian authorities. Those who may be identified, and consequently at risk, involves a consideration of the factors set out in para (4) of the headnote in BA. The ‘recognition technique’ is not “facial recognition technology” but by officials who may be able to recognise up to “200 faces at any one time”.
41. In this regard, I take into account that the appellant has failed to establish any previous political activity in Iran. The authorities, therefore, will have no previous interest in him. Further, I do not accept that the appellant played any significant role in the demonstrations. Judge Barker found, and her finding is preserved, at [58] that the appellant had not established that he played any organising role at a demonstration. In my judgment, it would be to indulge in pure speculation, if Mr Hussain’s submission were accepted, that there was a real possibility that the appellant had been unlucky by standing next to a person whom the authorities were interested in monitoring because of their involvement or that, on some basis, at any given demonstration he was randomly photographed and monitored by the Iranian authorities. It was accepted by Ms Rushforth that he was, in the photographs, sometimes “active” and sometimes “passive”. The judge did not accept, and her findings are again preserved, at [61] that any of the photographs were, as the appellant claimed, placed on the official KDP website.
42. In my judgment, the appellant has shown no more than that he was a member of a crowd at some demonstrations taking place which were anti-Iranian and pro-Kurdish. There is no direct evidence that he was subject to surveillance or photographed.
43. In my judgment, the appellant has failed to establish that, as a result of attendance at demonstrations, the Iranian authorities would have prior knowledge of that on his arrival at Tehran where he would (as he claims) be identified by officials who were tasked with identifying individuals of political interest on return.
44. I will return to the issue of whether, as Mr Hussain submitted, the appellant would be at risk because he would be questioned and was entitled to disclose his involvement at demonstrations below.
45. Turning then to the appellant’s Facebook activity, the judge dealt with this evidence at [62]–[67] as follows:
“62. Turning next to the appellants Facebook activities, in which the appellant claims that he posted material out of genuine political conviction. Close consideration of the Facebook posts reveals that they were all printed off at the same time, and whilst I am not critical of this, it is clear that they are off posts made on various dates between April 2019 and August 2019, with a very small number of posts placed this year. The Facebook material indicates that the appellant only first began posting comments about the Iranian regime in April 2019. I have seen no evidence of any involvement prior to this. Similarly, there is no real regularity in the posts. The majority of them are between April and August 2019, and then the next post is dated January 2020. There is no explanation for the gaps, and certainly no regular posting such as daily or weekly, that may indicate a strong political interest or genuine motive. In fact, there are no posts at all between February and April this year, and the post end on 29th April 2020, with nothing since.
63. I accept that at the time of printing the posts the appellant's account was set to public access, but as Ms Arif submitted and I agree, I cannot be satisfied that this wasn't simply done to alter the access shown as the posts were printed. I take judicial notice of the fact that such a procedure is possible on Facebook, in other words, the account access can be changed at anytime, to alter the level of access at the time of past posts, as well as future posts.
64. I also note at this stage, the appellant’s account in his asylum interview that he could not read. However, the appellant was asked about this in evidence, and it was not suggested that this affects the credibility of his account in relation to the Facebook posts, so I do not allow this to affect my judgement of his credibility, and I do not hold it against in further.
65. I was given no information about the number of followers or friends the appellant has on Facebook, but as I noted above, the appellant says that his account was being set for unrestricted public access. The appellant said a number of times that being even just a supporter of the KDP was risky and dangerous, yet he has no difficulty exposing himself to the risks that follow from the material he is posted on his Facebook account, and the unrestricted access he claims that his account is set at. I find it lacks credibility that a genuine activist would expose himself to such danger in such a way.
66. Miss Arif submitted, and I agree, that the account itself and the response to the appearance posts, seemed to indicate that in fact, at the time of posting the material the appellant’s account could not be seen publicly. For example, when posting material about demonstrations the comments in response range from just three to no more than 50. I would expect to see much larger responses given the range of potential viewers on such social platforms. Even the more emotive material, for example the image of a child grieving her father (AB 42), posted by the appellant does not receive any significant numbers of responses or comments from others. This indicates in my view, that the appellant’s posts are in fact only viewable to a limited number of people and are not in fact unrestricted, as he claimed.
67. Similarly, there is no evidence of any posts apart from those of the appellant and his friends, which also indicates, in my judgement that the access level settings of the appellants account is not public.”
46. The UT in XX dealt in some detail with the issue of risk on return as a result of Facebook activity in the UK. As regards “surveillance” the UT set out the relevant country guidance that I must apply at paras (1)–(4) of the headnote as follows:
“Surveillance
1) There is a disparity between, on the one hand, the Iranian state’s claims as to what it has been, or is, able to do to control or access the electronic data of its citizens who are in Iran or outside it; and on the other, its actual capabilities and extent of its actions. There is a stark gap in the evidence, beyond assertions by the Iranian government that Facebook accounts have been hacked and are being monitored. The evidence fails to show it is reasonably likely that the Iranian authorities are able to monitor, on a large scale, Facebook accounts.    More focussed, ad hoc searches will necessarily be more labour-intensive and are therefore confined to individuals who are of significant adverse interest.   The risk that an individual is targeted will be a nuanced one. Whose Facebook accounts will be targeted, before they are deleted, will depend on a person’s existing profile and where they fit onto a “social graph;” and the extent to which they or their social network may have their Facebook material accessed.
2) The likelihood of Facebook material being available to the Iranian authorities is affected by whether the person is or has been at any material time a person of significant interest, because if so, they are, in general, reasonably likely to have been the subject of targeted Facebook surveillance. In the case of such a person, this would mean that any additional risks that have arisen by creating a Facebook account containing material critical of, or otherwise inimical to, the Iranian authorities would not be mitigated by the closure of that account, as there is a real risk that the person would already have been the subject of targeted on-line surveillance, which is likely to have made the material known.
3) Where an Iranian national of any age returns to Iran, the fact of them not having a Facebook account, or having deleted an account, will not as such raise suspicions or concerns on the part of Iranian authorities.
4) A returnee from the UK to Iran who requires a laissez-passer or an emergency travel document (ETD) needs to complete an application form and submit it to the Iranian embassy in London. They are required to provide their address and telephone number, but not an email address or details of a social media account. While social media details are not asked for, the point of applying for an ETD is likely to be the first potential “pinch point, ” referred to in  AB and Others (internet activity - state of evidence) Iran [2015] UKUT 257 (IAC).   It is not realistic to assume that internet searches will not be carried out until a person’s arrival in Iran. Those applicants for ETDs provide an obvious pool of people, in respect of whom basic searches (such as open internet searches) are likely to be carried out.”
As the UT makes clear, the Iranian authorities do not, in general, monitor Facebook activity in the UK. Rather, targeted monitoring is carried out in relation to someone who is of “significant adverse interest”. Those whose Facebook accounts will be targeted on this basis will:
“depend on a person’s existing profile and where they fit onto a ‘social graph’; and the extent to which they or their social network may have their Facebook material accessed”.
47. Although the judge accepted that at the time that the Facebook posts before her were printed, the appellant’s account was set to “public access” ([63]), the judge did not accept that the appellant’s access settings were “public” but were only set in order that “friends” – who would be accepted therefore by the appellant – had access to his account.
48. In its guidance, the UT cautioned on the limited evidential value of printouts from an individual’s Facebook page which did not provide “full disclosure” of the Facebook activity and account. At (7)–(8) of the headnote the UT said this:
“7)     Social media evidence is often limited to production of printed photographs, without full disclosure in electronic format.   Production of a small part of a Facebook or social media account, for example, photocopied photographs, may be of very limited evidential value in a protection claim, when such a wealth of wider information, including a person’s locations of access to Facebook and full timeline of social media activities, readily available on the “Download Your Information” function of Facebook in a matter of moments, has not been disclosed.
8)        It is easy for an apparent printout or electronic excerpt of an internet page to be manipulated by changing the page source data. For the same reason, where a decision maker does not have access to an actual account, purported printouts from such an account may also have very limited evidential value. ”
49. I bear this cautionary approach in mind given the very limited material submitted relevant to the appellant’s Facebook setting etc.
50. In my judgment, there is no basis upon which I can go behind Judge Barker’s findings in relation to who would have access to the appellant’s Facebook account. There was, as Ms Rushforth submitted, little evidence about the number of “friends” he had on his Facebook account. She submitted that, as regards “likes”, the material showed between three and 50 which suggested limited access (or interest) in his postings.
51. In my judgment, the appellant has failed to establish that his Facebook account was, at any relevant time, set so that access could be obtained by the “public” as opposed to his “friends”.
52. Further, I do not accept, therefore, that the appellant’s account is likely already to have come to the attention of the Iranian authorities. He had no prior political involvement in Iran. I carry forward my findings made above about his involvement in demonstrates. I accept Ms Rushforth’s submission that the appellant’s activities in the UK are not analogous to those of XX whom the UT found to be at risk of being specifically targeted. The level of involvement set out at [109] including attendance at “identified locations” with “banners or holding the PJAK flag, and include photographs of him in close proximity to a prominent member of the PJAK”, together with “attendance at a demonstration celebrating the death of a prominent PJAK commander in January 2020” go well beyond the level of activity claimed by the appellant in attending demonstrations and in the photographs on his Facebook account upon which he relied. Applying para (1) of the headnote in XX, I am not satisfied that the appellant had a sufficiently prominent position on the so-called ‘social graph’ that his account would be (or has been) specifically targeted by the Iranian authorities.
53. In any event, the Iranian authorities could not directly gain access without either being one of his “friends” or by accessing shared or downloaded material from one of his “friend’s” accounts. There is no evidence that the Iranian authorities would have sufficient interest in the appellant in order to seek to become one of his “friends” and indeed had done so such as to have (with the appellant’s agreement) access to his account. Further, I do not accept Mr Hussain’s submission that there is a real risk that one of his friends – in relation to whom as I have said there is limited evidence – has downloaded material which has already been accessed by the Iranian authorities.
54. Further, even if the Iranian authorities sought to interrogate the internet and the appellant’s Facebook account at the EDP process, following XX, the appellant could avoid discovery of his “critical” Facebook account by deleting it more than 30 days prior to that approach. As the UT said in para (6) of XX:
“The timely closure of an account neutralises the risk consequential on having had a ‘critical’ Facebook account, provided that someone’s Facebook account was not specifically monitored prior to closure”.
55. In that latter regard, Mr Hussain submitted that the appellant could not be expected to delete his Facebook account or, when questioned about his Facebook or other sur place activities in the UK, lie and not disclose what was there or he had done. I do not accept that submission. The UT concluded at para (9), that an individual could be expected to delete his Facebook account if he had no genuine political opinion. The UT said this:
“9)             In deciding the issue of risk on return involving a Facebook account, a decision maker may legitimately consider whether a person will close a Facebook account and not volunteer the fact of a previously closed Facebook account, prior to application for an ETD: HJ (Iran) v SSHD [2011] AC 596. Decision makers are allowed to consider first, what a person will do to mitigate a risk of persecution, and second, the reason for their actions.    It is difficult to see circumstances in which the deletion of a Facebook account could equate to persecution, as there is no fundamental right protected by the Refugee Convention to have access to a particular social media platform, as opposed to the right to political neutrality.   Whether such an inquiry is too speculative needs to be considered on a case-by-case basis. ”
56. That, in my judgment, follows from a proper understanding of the scope of HJ (Iran) v SSHD [2011] AC 596. The decision of the Supreme Court recognises that a person who has, for example, a genuine political opinion (as applied in RT (Zimbabwe) v SSHD [2012] UKSC 38) cannot reasonably be expected to deny that political opinion in order to avoid persecution. That, in itself, is persecution and sufficient to engage the Refugee Convention. That reasoning does not, as the UT in XX concluded at [98]–[102], prevent (consistent with principle) the deletion of a Facebook account (and therefore of an individual’s claimed “political” opinion) where that Facebook account does not reflect genuine political opinion but is contrived and disingenuous.
57. That reasoning also, in my judgment, refutes Mr Hussain’s submission that the appellant cannot be expected to lie and fail to disclose either at the EDP process or on return to Tehran Airport that he has engaged in sur place activity (necessarily disingenuously on the judge’s finding).
58. There is, in my judgment, a complete answer to this, consistent with legal principle, set out in the judge’s preserved finding in [82(iii)] where she found that the appellant would not disclose his sur place activities on return and in doing so, would not offend the principle in HJ (Iran).
59. For my own part, given the judge’s adverse credibility finding in relation to the appellant and her explicit finding that the appellant does not hold a genuine political opinion (and is therefore disingenuous in his sur place activity), I am satisfied that the appellant would not ‘put himself in harm’s way’ by seeking to disclose to the Iranian authorities sur place activities which do not reflect any true or genuine political opinion. Contrary to Mr Hussain’s submission, the appellant has every reason to lie (or more accurately fail to disclose) his sur place activities.
60. For these reasons, I am not satisfied that the appellant would be at real risk of persecution for a Convention reason or serious ill-treatment contrary to Art 3 of the ECHR on return to Iran. There is no real risk that the Iranian authorities would be, or will become, aware of his activities in the UK.
Decision
61. The decision of the First-tier Tribunal to dismiss the appellant’s appeal was set aside by my decision dated 9 February 2022.
62. The judge’s decision to dismiss the appellant’s appeal under Art 8 was not challenged and stands.
63. As regards the appellant’s international protection claim and under Art 3 of the ECHR, I re-make the decision dismissing the appellant’s appeal on asylum and humanitarian protection grounds and under Art 3 of the ECHR.

Signed

Andrew Grubb

Judge of the Upper Tribunal
1, July 2022