Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2021-000251

First-tier Tribunal No: PA/52302/2020
IA/02216/2020

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 2 September 2025

Before

UPPER TRIBUNAL JUDGE OWENS

Between

MM
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Joseph of Counsel, instructed by NLS Solicitors.
For the Respondent: Ms Rushforth, Senior Home Office Presenting Officer.

Interpreter: Kurdish Sorani.

Heard at Cardiff Civil Justice Centre on 21 March 2025

Order Regarding Anonymity

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

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant or any member of his family. Failure to comply with this order could amount to a contempt of court. This order is made on account of the fact that the appellant’s claim is for international protection.

DECISION AND REASONS
1. The issue before the Upper Tribunal in this case is whether the appellant would be at risk of serious harm on account of his “sur place” activities and therefore be entitled to protection under either the Refugee Convention or Article 3 ECHR. For the reasons which follow, I conclude that he would be at risk of persecution and allow his appeal under the Refugee Convention.
Introduction
2. The Appellant appeals against the Respondent’s decision dated 13 October 2020 refusing his asylum and human rights claim.
3. In an error of law decision dated 16 August 2023 (annexed to this decision at Annex 1), Upper Tribunal Judge Kamara set aside the decision of First-tier Tribunal dated 30 June 2021, dismissing the Appellant’s appeal because she found that the First-tier Tribunal Judge erred by failing to apply the authority of Danian [1999] EWCA Civ 3000 in which it was found that a person is not excluded from entitlement from protection of the Refugee Convention because they put themselves at risk because by way of activities carried out in bad faith. The judge failed to assess the risk to the appellant on the basis of his perceived activities in the light of AB and Others (internet activity – state of evidence) Iran [2015] UKUT 00257 (IAC).
4. The Appellant’s appeal now comes before me to be remade pursuant to s.12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.
Background of the appeal
5. The appellant first came to the UK in January 2011 and claimed asylum the following day. His claim was refused and his appeal was dismissed in March 2011. He lodged further submissions which were refused in 2018. He then lodged a set of further submissions in 2020 including evidence of “sur place” activities. The submissions were accepted as a fresh claim but the claim for asylum was refused on 13 October 2020. This is the decision which is the subject of this appeal.
6. There have been various delays during the course of this appeal. There were initial delays in hearing the error of law appeal because of the pandemic. The error of law decision was made on 16 August 2023 and it appears that there was a further delay because the matter was initially transferred to a different judge. The re-making appeal was first listed for 23 December 2023. That hearing was adjourned because counsel was ill. The next hearing on 12 July 2024 was also adjourned because the appellant lodged a large quantity of documents the day before the hearing and it was unfair for the appeal to proceed because the respondent had not had an opportunity to consider the documentation. Detailed directions were given on 9 July 2024 asking the appellant to explain which Facebook posts were said to have put the appellant at risk and asking for a schedule of posts. There was then a further adjournment on 7 November 2024 because of a failure to comply with directions and because by that stage the Tribunal had given guidance on the format of Facebook evidence. Detailed directions were issued 7 November 2024 alerting the appellant to the evidential requirements in XX.
7. To date the directions have not been complied with in full. Before me there was no detailed index, no schedule of which documents were before the original judge and which documents were new, nor was there a list of which posts are said to have brought the appellant to the attention of the Iranian authorities. Mr Jospeh was not able to supply any real explanation as to why the directions had not been complied with, apart from a reference to difficulties in contacting his instructing solicitors and a lack of instructions. He did not apply for an adjournment.
Issues in the appeal
8. The issues in this appeal are whether the appellant has a well-founded fear of persecution for a Convention reason in Iran or whether he is entitled to humanitarian protection. The standard of proof is whether there is a real risk or a reasonable likelihood of the appellant being subject to serious harm. Mr Jospeh did not seek to rely on Article 8 ECHR as a separate ground of appeal.
Documentary evidence
9. The appellant provided a 1841 page consolidated bundle. This included the original further submissions and Facebook attachments, a witness statement dated 22 August 2023, the skeleton argument, an updated witness statement dated 5 December 2024 and print outs of “mobile uploads”. I have had regard to all the evidence before me when making my decision.
Oral evidence
10. I heard oral evidence from the appellant who gave his evidence in Kurdish Sorani through a court appointed interpreter. He confirmed that he could understand the interpreter. He adopted his witness statements and confirmed that the contents were correct. He was cross examined by Ms Rushforth. His evidence is recorded in the record of proceedings and I will refer to it when making my findings below.
Submissions
11. Miss Rushforth submitted that the appellant’s “sur place” claim is not genuinely motivated and there was no new evidence to warrant going behind those findings. She submitted that the evidence submitted by the appellant is very limited and worthless evidentially. It is not possible to establish what the actual posts are, it is not possible to see photos or videos. It is not possible to see whether they are publicly viewable or viewable only to friends. There is no corroborative evidence that the appellant has almost 4000 friends and that his posts have been circulated.
12. XX(PJAK, sur place activities, Facebook) (CG)[2022] UKUT 00023 is authority for the proposition that someone who is not genuinely motivated could be expected to delete their account before returning to Iran. The appellant can be expected to close his account and not volunteer the fact of the previously closed account. He has been found to be dishonest and given that his political activity is not genuine he is likely not to volunteer this information. His presence at demonstrations is not genuinely motivated and he does not have genuine beliefs so he will not be lying.
13. Mr Jospeh apologised for the lack of compliance with directions and up to date skeleton. He asked me to accept the evidence in the appellant’s witness statement that he has attended a number of more recent demonstrations, although acknowledging that he could find nothing in the supporting Facebook material to support this evidence. He submitted that if I found that the appellant had attended several demonstrations and was an active participant that it would be more likely that the appellant had been identified because there is surveillance. The authorities would also be aware of him because of the Facebook posts. Mr Joseph acknowledged that he was hampered by a lack of evidence but submitted that the authorities could be aware of him because of his 3,000 Facebook friends. He could have been tagged in someone else’s post. He has done enough to bring himself to the attention of the authorities even though the activity is contrived.
14. He submitted that I could depart from the findings of the First-tier Tribunal that the appellant’s political activity is note genuinely motivated. The appellant has financial difficulties to travel to London on a regular basis. He is a Kurd and may well have sympathy with the Kurdish cause given how Kurds are treated in Iran and his political beliefs do not need to be sophisticated. The appellant may now have genuine views even if they were originally contrived.
15. If the authorities already know of him and he is already being monitored it would not matter if he closed his Facebook account.
16. He then referred me to paragraph 457 of AB. He submitted that the appellant would be asked about whether he had a Facebook account and that he could not be expected to lie. He would be expected to volunteer that he did have an account.
17. Ms Rushforth then clarified that her understanding of XX was that if asked directly the appellant would volunteer that he did have a Facebook account but that he had made false posts in order to claim asylum. Similarly she submitted that if the appellant was directly asked if he had been on demonstrations, he could not be expected to lie. He would say that he had attended demonstrations but that this had been to bolster a false claim for asylum.
18. Mr Joseph’s final submission were that if the appellant was questioned and informed the Iranian authorities that he had attended demonstrations and posted critical material but not out of any genuine political motivation, the Iranian authorities were unlikely to distinguish between genuine political dissent and contrived political dissent. The appellant would be perceived to hold anti Iranian opinion and to have participated in protests criticising the government. The appellant has been out of the UK for 15 years, he left illegally and he is of Kurdish ethnic origin. He is bound to attract suspicion and be questioned. Given the hair trigger approach of the Iranian authorities to those being involved in Kurdish political activity there is a real risk he would be detained and tortured.
Preserved Findings
The following findings are preserved from the decision of the First-tier Tribunal:
a) The appellant is an Iranian Kurd.
b) He did not come to the attention of the authorities prior to leaving Iran due to any political activities or for any other reason. He did not deliver leaflets for PJAK.
c) There was no warrant issued for his arrest in Iran.
d) The appellant attended demonstrations outside the Iranian Embassy in March and September 2020. He did not have a prominent role in the demonstrations. He attended a third demonstration in 2021. He posted pictures of his attendance at the demonstrations on Facebook.
e) The appellant has re-posted anti regime material on Facebook. He is illiterate.
f) The appellant does not have any genuine or tangible interest in Kurdish politics. He is not a member of a political organisation. His “sur place” activities have been undertaken in bad faith to create a claim for asylum.
Further findings and reasons
19. I state at the outset that the appellant was not an impressive witness and neither the appellant nor his representatives had complied with the detailed directions. This made it more difficult for the Tribunal to navigate the evidence.
20. In his witness statements, the appellant stated that he has continued to post materials that are against the Iranian regime because he wants equality for Kurdish people in Iran. He claims to have uploaded a video of him burning the Iranian flag. His evidence is that he has attended more demonstrations, two in 2024 and one in 2025 and that he had posted pictures of himself on-line attending these protests. He says that he would not delete his posts or profile. He says he has 3,500 Facebook friends.
21. In his oral evidence, he reiterated that he had attended further demonstrations, that he had posted evidence of his attendance on Facebook and that he has 4000 friends. He stated that the Iranian authorities are already aware of his activities in the UK because the material has been shared by his friends. He claimed that he attended demonstrations to support the Kurdish community and not to bolster his asylum claim. He passed the information about his Facebook including his password to his solicitor and expected then to obtain a complete download.
Assessment of risk
22. I have had regard to AB and Others (internet activity – state of evidence) Iran [2015] UKUT 00257 (IAC), HB(Kurds) Iran CG [2018] UKUT 00430 (IAC), BA (demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC) and XX (PJAK, sur place activities, Facebook) (CG)[2022] UKUT 00023, and when making my decision I also had before me the latest CPINs on Iran including Kurds and Kurdish political groups, Iran, May 2022; Social media, surveillance and sur place activities, Iran April 2025.
23. I consider firstly the appellant’s “social graph” and if he will have already have come to the attention of the authorities as a result of his Facebook posts and attendance at demonstrations to date.
24. I consider first the appellant’s attendance at demonstrations. The starting point is the preserved findings from 2021 which was that as of 2021 the appellant had attended a total of three demonstrations which in line with BA demonstrators would not have brought him to the attention of the Iranian authorities. (This finding was not challenged).
25. The appellant’s subsequent evidence in his witness statement is that subsequent to his previous appeal he has attended several further demonstrations in 2021, twice in 2022, four times in 2023 and twice in 2024. He also posted a picture of himself burning the Iranian flag on 4 December 2024. He was not however able to provide any supporting evidence that this was the case. He could not point to any material on the Facebook screenshots/print out, that he did produce, to corroborate his claim. There were no physical (as opposed to digital) or digital photos of him attending these later demonstrations, a complete lack of detail in his witness statements as to the arrangements to get to the demonstrations, who he went with and what he did and no other evidence such as coach tickets to London or other evidence of travel or statements from friends. I am satisfied that it would have been reasonably open to the appellant to obtain some supporting evidence of his attendance at further demonstrations. Given the lack of any detailed or corroborative evidence and given the preserved finding that the appellant is not genuinely motivated, I am unable to find even to the lower standard that the appellant has attended any further demonstrations which would have led to him coming to the attention of the Iranian authorities.
26. The Facebook evidence was not easy to navigate because of the volume and repetition of the material. In his original fresh claim the appellant provided evidence that he has a Facebook account in his own name, that he has Facebook friends and that he posted material to about 120 people and that his posts have been commented on. There is evidence that he posted pictures of himself attending at least two demonstrations outside the Iranian Embassy in respect of Kurdish opposition to the Iranian government. In 2021 the judge found that the Facebook evidence was unreliable because it consisted of screenshots of Facebook pages rather than a Facebook download. The point being that screenshots are not reliable because they can be manipulated.
27. Headnote 7 and 8 in XX reads as follows:
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.
28. The new material before me comprised of Facebook material described by his representative as a “print out” dated 6 August 2023 containing data from 1 January 2004 until the date of the print out, much of which comprised of images of the appellant taking “selfies” in places of natural beauty or with friends. This included the material before the First-tier tribunal in 2021.
29. The more recent documents provided shortly before the hearing come from a “mobile upload” site and also do not contain photographs. There are references to dates of protests including a reference to a demonstration on 6 August 2023 and 3 September 2023 in front of the Iranian Embassy and a reference to a mass demonstration against the killing and execution of Iranian Kurds in London on 23 June 2024 as well as references to the execution of Kurdish political prisoners. The posts have tiles indicating photographic attachments but the photographic attachments were not produced.
30. The appellant has been directed to provide a complete Facebook download compliant with XX. He has also been informed directly by this Tribunal at previously adjourned hearings that it is for him to evidence his claim and that he needs to take responsibility for providing evidence of his political activities. The appellant was not able to give a very satisfactory explanation as to why a full download was not available, apart to assert that he had given his login details and password to his solicitor and had expected his solicitor to provide it.
31. Mr Joseph for the appellant candidly admitted that the new Facebook material provided by the appellant is not a full or complete download in accordance with XX.
32. He acknowledged Ms Rushforth’s submission that it is not possible from the material produced to tell how many friends the appellant has, whether his pages are open or closed, whether his posts have been shared, who has viewed or commented on the posts and indeed it is not possible even to open the hyperlinked videos. There is no evidence apart from the appellant’s assertion that he has 3,500 to 4,000 friends.
33. There was insufficient evidence before me (despite detailed directions pointing the appellant to the kind of evidence he needed to adduce in line with XX) for me to be satisfied that his Facebook profile is public or open and whether and to what extent the material has been shared. I note that at the error of law hearing the appellant’s representative did not make detailed representations in this respect because he acknowledged that the posts had only been shared with friends.
34. From the evidence before me, I find that the appellant’s political profile is low level. In these circumstances, notwithstanding that the Iranian authorities are an authoritarian and repressive regime who does carry out targeted surveillance, I find to the lower standard that the appellant has not already been subject to targeted surveillance by the Iranian state. His “social graph” is insufficient to establish a risk that he has been subject to surveillance in the past that would have resulted in downloading and storing material held in his name. I find that he has not drawn enough attention to himself by the extent of his real world activities to have become the subject of targeted social media surveillance.
35. I was asked to depart from the previous finding that the appellant is not genuinely politically motivated. However there was insufficient evidence of the appellant’s further political activities for me to do so. There is not sufficient evidence to find that the appellant is a committed activist. I find that the appellant’s limited political activity is not as a result of genuinely held political views but was undertaken to bolster his claim for asylum.
36. When the appellant was asked if he would delete his Facebook posts, he responded that it was too late because the material would have already been seen by the Iranian authorities. He did not say that he would not delete his posts because these represented his genuine political views. In these circumstances in accordance with XX, I find that the appellant who does not hold a genuine political opinion will delete any Facebook material that he has prior to being interviewed by the Iranian authorities and that the Iranian authorities will not be able to access it.
37. I find from the caselaw that the appellant as a returning Kurd with no passport will have to apply for an Emergency Travel Document which will be the first “pinch point” referred to in AB and Others.
38. I find that because of the appellant’s lack of existing profile he will not come to the attention of the Iranian authorities at this stage as a suspected political opponent and therefore will not be flagged up as of interest prior to his return.
39. However I find that the situation will be different at the second pinch point on return which is when there is an enforced return of an individual who left Iran illegally. It is clear from AB and the subsequent Country Guidance that it is accepted that there is a high likelihood that these individuals will be interviewed and interrogated at the airport. They will be asked for their motivation for leaving Iran and will be asked about whether they have engaged in political activity or any other form of critical activity.
40. In AB the panel found at [457];
“We accept the evidence that some people who have expected no trouble have found trouble and that does concern us. We also accept the evidence that very few people seem to be returned unwillingly and this makes it very difficult to predict with any degree of confidence what fate, if any, awaits them. There is clear evidence that some people are asked about their internet activity and particularly for their Facebook password. We can think of no reason whatsoever to doubt this evidence. It is absolutely clear that blogging and activities on Facebook are very common amongst Iranian citizens and it is very clear that the Iranian authorities are exceedingly twitchy about them. We cannot see why a person who would attract the authorities sufficiently to be interrogated and asked to give account of his conduct outside of Iran would not be asked what he had done on the internet. Such a person could not be expected to lie, partly because that is how the law is developed and partly because, as is illustrated in one of the examples given above, it is often quite easy to check up and expose such a person. We find that the act of returning someone creates a “pinch point” so that returnees are brought into direct contact with the authorities in Iran who have both the time and inclination to interrogate them. We think it likely that they will be asked about their internet activity and likely if they have any internet activity for that to be exposed and if it is less than flattering of the government to lead to a real risk of persecution”.
41. I agree with Judge Kamara that XX does not displace the guidance in AB.
42. I refer to the headnote in HB Kurds;
(5) Kurdish ethnicity is nevertheless a risk factor which, when combined with other factors, may create a real risk of persecution or Article 3 ill-treatment. Being a risk factor it means that Kurdish ethnicity is a factor of particular significance when assessing risk. Those “other factors” will include the matters identified in paragraphs (6)-(9) below.
(7) Kurds involved in Kurdish political groups or activity are at risk of arrest, prolonged detention and physical abuse by the Iranian authorities. Even Kurds expressing peaceful dissent or who speak out about Kurdish rights also face a real risk of persecution or Article 3 ill-treatment.
(8) Activities that can be perceived to be political by the Iranian authorities include social welfare and charitable activities on behalf of Kurds. Indeed, involvement with any organised activity on behalf of or in support of Kurds can be perceived as political and thus involve a risk of adverse attention by the Iranian authorities with the consequent risk of persecution or Article 3 ill-treatment.
(9) Even ‘low-level’ political activity, or activity that is perceived to be political, such as, by way of example only, mere possession of leaflets espousing or supporting Kurdish rights, if discovered, involves the same risk of persecution or Article 3 ill-treatment. Each case however, depends on its own facts and an assessment will need to be made as to the nature of the material possessed and how it would be likely to be viewed by the Iranian authorities in the context of the foregoing guidance.
(10) The Iranian authorities demonstrate what could be described as a ‘hair-trigger’ approach to those suspected of or perceived to be involved in Kurdish political activities or support for Kurdish rights. By ‘hair-trigger’ it means that the threshold for suspicion is low and the reaction of the authorities is reasonably likely to be extreme.
43. I find in accordance with this headnote that the appellant is an Iranian national who is returning on an ETD because he left Iran through illegal means. He is not already known to the Iranian authorities. However, he has been residing in the UK for 15 years (the UK being perceived by Iran as a problematic/enemy country) and he is Kurdish. He is therefore likely to be interrogated. I find that there is a real likelihood that he would be asked why and how he left Iran and what he was doing in the UK including whether he took part in anti-regime activities and if he posted material on line.
44. I find in accordance with XX that he is not expected on interrogation to volunteer the existence of a Facebook account or that he posted material critical of the regime on-line and that he will mitigate any harm to him by virtue of the closure of his account. Since he no longer has an account, the authorities will not be able to access it.
45. Nevertheless, Ms Rushforth’s position appeared to be that the appellant could not be expected to lie. Therefore if directly questioned, he would not be expected to deny that he had claimed asylum in the UK on the basis of his opposition to the Iranian regime and that he had attended some demonstrations critical of the Iranian regime. Her position was that he would explain that he did not attend these activities out of any genuine motivation but as a way of bolstering his asylum claim. If directly asked about his Facebook activity he would explain that any posts on his Facebook account critical of the Iranian regime were similarly published in order to claim asylum.
46. I have found that the appellant will be asked these questions. I find that the Iranian authorities are highly unlikely to view these actions as “contrived” activities. I find that the authorities will make no distinction between activities carried out with the aim of claiming asylum and genuine activities as a result of genuinely held political views. I find that the Iranian authorities will perceive the appellant as being opposed to the regime. The background evidence is that the Iranian authorities continue to target actual or perceived affiliates to Kurdish political parties and even low level activity can result in a risk of arrest, prolonged detention and physical abuse. I find from the CPIN that the risk is heightened at times of political tension such as the present.
47. I find that this appellant is at real risk of treatment contrary to Article 3 ECHR on account of his perceived political opinion.
Conclusion
48. For the reasons above I find that removal of the Appellant would breach the UK’s obligations under the Refugee Convention.
NOTICE OF DECISION
The appeal is allowed on Refugee Convention grounds.

R Owens
Judge of the Upper Tribunal
Immigration and Asylum Chamber

1 September 2025

Annex 1

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI 2022 000251

First-tier Tribunal No: PA/52302/2020

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

MBM
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr H Dieu, counsel instructed by NLS Solicitor
For the Respondent: Ms S Rushforth, Senior Home Office Presenting Officer

Heard at Cardiff Civil Justice Centre on 11 August 2023

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. The appellant has been granted permission to appeal the decision of First-tier Tribunal Judge ID Boyes heard on 30 June 2021.
2. Permission to appeal was granted by Upper Tribunal Judge C Lane on 12 December 2021.
Anonymity
3. An anonymity direction was made previously and is reiterated because this appeal concerns a protection matter.
Factual Background
4. The appellant is a national of Iran, of Kurdish ethnicity and aged thirty-two. He arrived in the United Kingdom on 13 January 2011 and sought asylum soon afterwards, based on his association with PJAK. The appellant’s claim was refused and his appeals against that decision were exhausted as of 11 May 2011. He made further submissions during May 2017 which were rejected. The further submissions made by the appellant during February 2020 were refused by way of a decision dated 13 October 2020, which is the subject of this appeal.
5. The appellant’s further submissions were based on his earlier claim which had been rejected by the previous immigration judge. He also provided documents which were not before the previous Tribunal. The respondent refused the claim owing to the fact that the appellant had not been found to be a witness of truth and his documents were not accepted as reliable supporting evidence.
The decision of the First-tier Tribunal
6. At the hearing before the First-tier Tribunal, the appellant relied upon the claim previously advanced as well as his sur place activities which mainly concerned attendance at demonstrations and posts made on Facebook. The judge concluded that the appellant had put forward a false claim of events in Iran and that his political activity was contrived and would not put him at risk.
The grounds of appeal
7. The grounds of appeal argued that the judge erred in his application of the case law relating to sur place activity, specifically, AB and Others (internet activity – state of evidence) Iran [2015] UKUT 00257 (IAC).
8. Permission to appeal was granted on the basis sought, with the judge granting permission making the following remarks.
A number of the findings and comments made by the judge at [25] and addressing the appellant’s claimed sur place activities are arguably problematic and legally wrong (for example, the judge’s comments at [25(H)]. Moreover, at [25(I)], it is arguably not a question of whether ‘the appellant can and is expected to remove the falsehoods he has created’ but whether the Tribunal found as a fact that he would do so. Permission is granted on all grounds.
9. The respondent filed a Rule 24 response dated DD in which the appeal was opposed, with the respondent referring to XX (PJAK -sur place activities – Facebook) [2022] UKUT 00023 (IAC).
The error of law hearing
10. When the hearing commenced, it transpired that Mr Dieu had not seen the Rule 24 response. He perused my printed copy and confirmed that there was nothing therein to take him by surprise. I then heard submissions from both representatives which developed their respective written arguments.
11. At the end of the hearing, I informed the parties that I was satisfied that the decision of the First-tier Tribunal contained a material error of law and consequently that decision was set aside.
12. In terms of preserved findings, there was no challenge to the judge’s findings regarding the arrest warrant relied upon the appellant to support his fresh claim. Therefore, the findings set aside relate only to the appellant’s sur place claim. After hearing submissions from the representatives, I decided to retain the matter in the Upper Tribunal for remaking the decision.
13. Mr Dieu was not in a position to proceed immediately to remaking because the appellant was not in attendance to address the outstanding issues and it was also intended to obtain a ‘download information report’ in relation to the appellant’s Facebook usage.
Decision on error of law
14. The judge’s findings regarding the appellant’s reliance on a document purporting to be an arrest warrant are set out at paragraph [24A-G] and those are preserved. The findings in relation to the appellant’s sur place activities are at [25 A-J] are set aside for the following reasons. The judge found that the appellant’s attendance at three demonstrations and his Facebook posts were manufactured to support his asylum claim and there is no challenge to the reasons for these findings which appear at [25 A-D].
15. The grounds take issue with what the judge said at [25 C & E], that is that the appellant had not shown that his Facebook posts were open for all to see as opposed to being viewable only by his friends for a limited amount of time. It is argued that the appellant’s posts were in the public domain, evidenced by the ‘world’ icon. In addition, it was said that the judge was unreasonable in expecting the appellant to demonstrate that his posts remained public for any length of time. Mr Dieu did not have any submissions to make regarding this matter. I consider that he was right to do so, given the lack of evidence that these posts have been viewed by anyone other than his friends.
16. Where the judge went wrong was that he made remarks which went to the morality of the appellant being entitled to refugee status on the basis of political activities conducted in bad faith and the findings he reached as a consequence. At 25 H, the judge states.
It is simply not possible, nor correct morally or legally, to manufacture a claim and then seek to rely upon it as creating a risk. There is a world of difference between genuinely held beliefs and that which this appellant espouses. Genuine beliefs are capable and are worthy of protection. Falsehoods created for the purposes of seeking to remain in the UK are not.
17. The judge materially erred here. In Danian [1999] EWCA Civ 3000, it was found that a person was not excluded from entitlement to the protection of the Refugee Convention because they put themselves at risk by way of political activities carried out in bad faith.
18. That the judge took his misdirection into account in reaching his conclusions on the absence risk to the appellant is apparent from the next paragraph, [25I] where the judge concludes as follows.
The appellant is therefore not at any risk upon return as he can and is expected to remove the falsehoods he has created. If he chooses not to do so then that it is a matter for him but mendacity is not the key to the door of refugee status.
19. The judge failed to assess the risk to the appellant on return to Iran, notwithstanding that his activities were contrived. In addition, the judge suggested that the appellant was ‘expected’ to delete his Facebook profile. Yet there was no finding of fact as to whether the appellant would delete that profile or whether the authorities would be able to see the appellant’s posts if they were not already aware of them.
20. The errors made by the judge were relevant. It is not enough to argue that it is a matter for the appellant whether he deletes his Facebook profile. The appellant is an ethnic Kurd, with a Facebook profile which includes anti-regime postings who is facing removal to Iran as a failed asylum seeker. The decision in AB points to the approach of the Iranian authorities and the pinch-point on return. Those that come to the attention of the authorities face interrogation and will be asked regarding any internet activity and the nature of any asylum claim. In AB, the point was made that an appellant is not expected to lie. If the appellant was asked about his internet activity, he would state that he had a Facebook account and that he made an asylum claim based on an association with PJAK. I have carefully considered whether the decision in XX displaces the conclusions in AB and find that it does not. The judge did not refer to AB in his decision, there was no findings as to what the appellant was likely to do about his Facebook profile and there was no assessment as to whether there would be remnants of the appellant’s post in public which had been shared by others.
21. Indeed, while the first three headnotes in XX suggest that Facebook activity is unlikely to come to light unless a person is of interest, headnote four confirms the findings in AB as follows.
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 00257 (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.
22. It must be remembered that the appellant is not just relying on his internet activity but also his presence at three demonstrations, the photographs of which were posted on Facebook. It follows, that there needs to be further exploration of the Facebook posts and the appellant’s intentions.
23. Ms Rushforth submitted that the appellant could delete the Facebook profile and tell the Iranian authorities that he never had one. That submission is not supported by the following extract from AB at {457}.
We accept the evidence that some people who have expected no trouble have found trouble and that does concern us. We also accept the evidence that very few people seem to be returned unwillingly and this makes it very difficult to predict with any degree of confidence what fate, if any, awaits them. There is clear evidence that some people are asked about their internet activity and particularly for their Facebook password. We can think of no reason whatsoever to doubt this evidence. It is absolutely clear that blogging and activities on Facebook are very common amongst Iranian citizens and it is very clear that the Iranian authorities are exceedingly twitchy about them. We cannot see why a person who would attract the authorities sufficiently to be interrogated and asked to give account of his conduct outside of Iran would not be asked what he had done on the internet. Such a person could not be expected to lie…’
24. Fore the foregoing reasons, I am satisfied that the decision of the First-tier Tribunal contained a material error of law which had an impact on the outcome of the appeal.
25. I canvassed the views of the parties as to the venue of any remaking and Mr Dieu was of the view that the matter ought to be remitted to the First-tier Tribunal. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), I carefully considered whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statements. I took into consideration the history of this case and the nature and extent of the findings to be made as well. Given that the appellant’s pre-flight claim has been found to have been false by two judges of the First-tier and the limited remaining issues to be determined, it is appropriate that the matter be retained in the Upper Tribunal.

Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
The decision of the First-tier Tribunal in relation to [25 C, E, G, H and I] of the decision and reasons, is set aside.
The appeal is to be remade in the Upper Tribunal by any judge.

T Kamara

Judge of the Upper Tribunal
Immigration and Asylum Chamber

16 August 2023