UI-2023-000777

• Status of case: Unreported
• Hearing date: 25 Jun 2026
• Promulgation date: 27 Aug 2026
• Publication date: 11 Sep 2026
• Last updated on: 11 Sep 2026

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2023-000777
First-tier Tribunal No: PA/54163/2022
IA/10232/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

27th August 2026

Before

UPPER TRIBUNAL JUDGE KEITH
DEPUTY UPPER TRIBUNAL JUDGE FRANTZIS

Between

‘AAS’ (Iran)
(ANONYMITY ORDER CONTINUED)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S Khan, instructed by Parker Rhodes Hickmotts Solicitors
For the Respondent: Mr J Anderson, instructed by the Government Legal Department

Heard at Phoenix House (Bradford) on 25 June 2026

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. This is because the subject matter of this appeal is an asylum claim.


DECISION AND REASONS
1. This is a decision remaking the appellant's appeal on the basis of his claim to fear persecution as a refugee or, alternatively, Article 3 of the European Convention on Human Rights ("ECHR"). The appellant has confirmed that no appeal is pursued in respect of Article 8 ECHR. This decision was reserved following a hearing on 23rd June 2026. Both judges contributed to the writing of this judgment. The decision follows an earlier error of law decision, which is annexed to this judgment.
Litigation History
2. There have been a number of decisions in respect of this appellant, and we set these out below.
Judge Caswell’s decision
3. The first was a decision of FtT Judge Caswell, heard at Bradford and promulgated on 30th January 2017. The appellant did not attend, but FtT Judge Caswell decided that it was appropriate to proceed with the hearing as the appellant had been aware of it. She analysed the appellant’s claim to have been born on 22nd May 2000 and to be an Iranian national, having arrived in the UK illegally in June 2016. Thereafter, he had claimed asylum and humanitarian protection and leave to remain on human right grounds, which the respondent had refused on 7th December 2016.
4. Judge Caswell recorded at [3] that the appellant was of Kurdish ethnic origin, had worked as a shepherd on family land and claimed to have fled Iran because of a land dispute. It was claimed that his father had killed another family’s eldest son, resulting in a blood feud. At [4] Judge Caswell recorded that the appellant claimed to fear return because he would be found and killed by the other family. Judge Caswell analysed the asylum claim, the asylum interview records and the respondent’s decision to refuse the appellant’s claim, but no other documents were provided by the appellant. Judge Caswell recorded that it was accepted the appellant was Kurdish but that he had lied about his age and nationality. Judge Caswell noted at [11] of her analysis that in relation to the dispute over nationality (since resolved) the appellant had failed to answer simple questions such as the name of the Iranian currency. At [12], she accepted the respondent’s contention that the appellant’s account of events was vague and contradictory and, whilst the standard of proof was low, found at [15] that the appellant had not shown he was an Iranian national; or that he was under the age of 18; or that he feared being caught up in a blood feud. Judge Caswell found that his claim for protection was a fabrication and dismissed his appeal. There was no appeal against that decision.
Judge Hands’s decision
5. The next judicial decision was of FtT Judge Hands, promulgated on 7th December 2020. Judge Hands found that the appellant was born on 22nd April 1998 ([2]). She noted at [2] that there had apparently been an application for judicial review which had been refused, and following the unsuccessful asylum claim, further submissions on 16th April 2018 and December 2019, which were refused with a right of appeal, which is why the matter came before Judge Hands. At the hearing before Judge Hands, the appellant did give evidence and relied on ‘sur place’ activities. Judge Hands also considered what was described as an original Iranian birth certificate. Judge Hands had a number of concerns about the appellant’s credibility. The first was in relation to how he had apparently obtained an Iranian identification document, received without a covering letter, via a smuggling ring and vaguely referring to somebody putting him in telephone contact with the smuggler. This was despite the fact that the appellant had remained in contact with his family from whom he claimed not to have obtained any identity documents. That said, Judge Hands accepted the original Iranian birth certificate at [19] and accepted that the appellant was an Iranian national.
6. Judge Hands evaluated the appellant’s claim at [20] that he feared persecution from the Iranian government, as opposed to a blood feud. He claimed to have experienced suppression of Kurdish people and many of his friends had been taken away and murdered in Iran; that he supported the KDP and Komala party; and further, that he feared persecution because of his attendance at demonstrations outside the Iranian Embassy in London, on many occasions, at which he had been photographed and photographs of them posted on his Facebook page, which would have come to the attention of the Iranian authorities.
7. Judge Hands noted at [21] that the appellant had not previously referred to any political activities in claiming to fear persecution but had instead relied upon the family feud. Judge Hands first evaluated the appellant’s claim of having been the subject of attention by the Iranian government before leaving Iran and noted that he had made no reference to his friends being arrested or killed by the Iranian government or a case against him in his initial asylum interviews in 2016 or in his further submission statement in November 2019. Indeed, when asked in oral evidence if he was politically active in Iran, he replied, "No."
8. Judge Hands found at [23] that the appellant had not been politically active in Iran prior to leaving and he had not seen any of his friends being arrested or killed, and there was no case built up against him by the Iranian government. The appellant would not have been known to the Iranian government prior to leaving Iran.
9. Judge Hands turned to the question of the ‘sur place’ activities. She analysed the submission that the appellant’s Facebook postings were quite phenomenal, with 5,000 friends, photographs attending demonstrations, inflammatory photographs of events with inflammatory texts, all shared and liked by hundreds of people. On the appellant’s behalf, it was submitted that he was a supporter of the Kurdish cause and that all Kurdish parties had a common aim. Moreover, whether the appellant were credible or interested in the Kurdish cause or not, if returned to Iran, the Judge needed to consider whether the appellant’s activities required him to be granted refugee status. In other words, that the appellant would have attracted attention because of these activities, even if contrived. FtT Judge Hands found as follows at [30]:
“(a) The Appellant had not provided evidence from the KDP or the Komala party that would confirm he was involved in handing out leaflets on their behalf or that he attended any of their meetings.
(b) The Appellant has not provided copies of any publication by the KDP or the Komala party that contained his photograph.
(c) The Appellant did not organise or lead any of the demonstrations he attended. In fact, it was his friends who told him about these activities about a year ago, as he had no knowledge of them personally before then.
(d) The Appellant claimed he attended about twelve or fifteen demonstrations in London with his friends. There are photographs of him standing with others outside the Iranian Embassy in London. In each photograph in which he is visible he is facing away from the Embassy so it is unlikely his face would be captured on the CCTV on the Embassy walls or that he would be identified because of it.
(e) … there are photographs that are posted on his Facebook page and are of him with many others holding various posters facing away from a building flying the Iranian flag, plus another of him with others in front of a Komala flag, and another of him standing in the street facing the camera. The date is shown as 9 July 2019. ...there are some more pictures of him standing separately from the crowd with a couple of other people. The date is not translated ... one photograph shows the appellant standing behind a bus facing the camera. At page 9, dated September 2019, he is well away from the embassy holding a flag with another person or amongst crowds of people holding pictures, the contents cannot be seen clearly on the copies but I presume they are of the same nature as those on the other Facebook posts in his bundle. [A photograph] dated 8 September 2019 shows more of the same but once again the photograph of the Appellant shows him standing at the opposite side of the road from the crowd and clearly separate from them. [Another photograph] dated 20 November 2019, again shows the Appellant and the crowd or facing away from them. [On further photographs] dated 5 January 2020 and…dated 15 February 2020, he is again shown some distance away from the building flying the Iranian flag and facing in the opposite direction. I accept the Appellant attended the demonstration that were taking place outside the Iranian Embassy on the dates shown, but his interest and his participation in them is shown to be minimal and unlikely to have been captured on any CCTV attached to the Embassy building from which captions could be retrieved for future reference by Embassy officials.
(f) The Facebook posts involve various other matters including photographs of Kolbars, information about Nazarin Radcliffe and the many images with crosses through them that can be found on various pages of his bundle, do not have any link to the Appellant shown on them as his name and details about his Facebook profile are not shown on the page as it is on the pages where his photograph demonstration is displayed. It is not sufficient to demonstrate that these are actual posts on his Facebook page.”
10. Judge Hands stated at [31]:
[31] "Whilst the genuineness or otherwise of the thoughts behind the social media profile is not a concern as it is the mere fact of their existence and the likelihood of them coming to the attention of the Iranian authorities that matters, I do not find that I can ignore the evidence of the Appellant in relation to his Facebook account. When I questioned him about whether it was a private account or not, he was not aware of the difference. With the assistance of Ms Cornfoot, I was able to establish that where a globe is shown on the post that it means it is a global post. The globe is seen on all of the posts where he is photographed in London but cannot be seen in the post where he is sharing information about issues against the Iranian Government. Further the Appellant’s knowledge of English is not proficient to the extent he is able to read or write in English and he is also unable to read Kurdish Sorani unless it is written in the English alphabet. This would mean he is largely unaware of what he has written on his Facebook pages unless his friends who helped him open the Facebook page and set his password keep him advised of what it says. He would therefore be unable to direct the Iranian authorities to his Facebook page should he face questioning on return to Iran."
11. At [35] Judge Hands continued:
"….As I have said, the evidence presented in the bundle does not make it clear that it was the Appellant’s Facebook page that shared or commented on the various articles that were against the Iranian regime, and those posts that were did not show anything other than the Appellant amongst the crowd outside the Iranian Embassy in London."
12. The Judge found at [36] to [39]:
"36. The Facebook page is said to have nearly 5,000 friends and up to less than a tenth of that number make comments. Having listened to the Appellant’s evidence and his general lack of knowledge of Facebook, the English language and the work of the Kurdish parties, I do not accept that he is the author of the Facebook page in his name. There is no evidence of any activity on that Facebook page between February 2020 and the date of the hearing. Whilst I accept that the hearing was adjourned several months because of Covid-19 restrictions, it did not prevent him from using his Facebook page and providing me with screenshots of it such as those included in his bundle. There is, therefore, no recent material to attract the attention of the Iranian authorities.
37. I can accept that there is some monitoring of activities outside Iran and that it occurs but there is no evidence of the circumstances in which this occurs or what circumstances would enhance or dilute the risk to the person partaking in such activities. The Appellant knows little about Kurdish politics. All he knows is that, as a Kurd, he supports their causes. He said he handed out leaflets for the KDP and that he supports the Komala party. There is no evidence from the KDP, he explains, because he was doing it voluntarily but that is not a reason for not obtaining some support from the KDP for his involvement with the party. His support for the Komala party appears to amount to him holding their flag at a demonstration in London that he turned up at along with his friends. He is not a member of any party as he states he is a supporter only. I do not accept that he will come to the attention of the authorities in Iran should he return there.
38. Further, the huge discrepancy in his written and oral evidence about political activity in Iran seriously damages his credibility about any interest he has in Kurdish politics.
39. In summary, considering all of the appellant’s evidence in the round, I do not find that he has provided sufficient satisfactory evidence to establish that his attendance at any demonstration in London will have come to the attention of the Iranian authorities or that he would be recognised as someone who had attended such demonstrations and meetings in the United Kingdom. His lack of interest in Kurdish causes whilst living in Iran and, as I have found, he did not come to the attention of the Iranian authorities before he left, means that it is unlikely that he would be of added interest to them on his return."
13. The Judge went on to make findings in respect of Article 8, but it is unnecessary to recite these in light of this aspect not being pursued.
14. The appellant made further submissions, which were considered by the respondent as a fresh claim and rejected in a decision dated 13th September 2022. It is that decision which results in this appeal before us. The respondent considered the further submissions in the context of the previous findings of Judge Caswell and Judge Hands, and the authority of Devaseelan [2003] UKIAT 00053. These Judges’ findings of fact were the starting point, rather than a ‘straitjacket’. The respondent accepted that the appellant was a citizen of Iran, and assessed a single letter from the Komala party in the United Kingdom translated into English. However, beyond this, the respondent asserted that apart from his witness statement, limited additional evidence had been provided. The letter of support from the Komala party had been provided in English only, had not disclosed the details of people involved in the translation of the documents and the credentials of the person involved in translating remained unknown. The appellant had not set out how he had obtained the document, such as an envelope, postmark, nor who had sent the document to him. The respondent once again considered the appellant’s personal Facebook profile and social media posts. In the context of the previous findings, they added little to the earlier assessment that the appellant did not have a well-founded fear of persecution. The appellant appealed.

Case Management
15. Following a subsequent decision of Judge Cox, which we do not repeat as it was set aside without preserved findings, the Upper Tribunal retained the appeal and was invited to consider the following principal controversial issues:
(i) How Facebook evidence is to be adduced and any practical difficulties in doing so.
(ii) Whether there is a duty to mitigate risk by deleting a Facebook account.
(iii) How the Tribunal’s guidance on monitoring by the Iranian authorities of Facebook set out in XX (PJAK, sur place activities, Facebook) Iran (CG) [2022] UKUT 23 should be considered in the context of WAS (Pakistan) v SSHD [2023] EWCA Civ 894.
(iv) Whether the appellant’s sur place activity is motivated by genuine political opinion on his part.
(v) The risk on return to the appellant, taking account of the two pinch points identified in XX (PJAK).
16. In canvassing these principal controversial issues, the parties were in fact in agreement that in relation to issue (ii), there was no duty to mitigate, similar, for example, to somebody under an obligation to mitigate their loss in the event of a tort being committed against them. Instead, the question for a judge in assessing risk is the extent to which an individual would seek to mitigate risks against them, and their reasons for so doing. This is consistent with [102] of XX (PJAK), where the Tribunal noted that it was perfectly permissible for a decision maker to consider what a returnee to a country of origin will do in relation to a contrived Facebook account. Whether such an inquiry was too speculative needed to be considered on a case-by-case basis, but factors which may point to that question not being impermissibly speculative included: where a person has a past history of destroying material, such as identification documents, or deception or dishonesty in relation to dealing with state officials; whether the government has well-established methods of questioning; and whether the risks around discovery of social media material prior to account deletion are minimal because a person’s social graph or social media activities are limited.
17. General issue (ii), therefore, is whether an inquiry about account deletion would always yield the same answer for a ‘bad faith’ actor or be impermissibly speculative.
The Parties’ submissions
18. We do no more than summarise the parties’ position statements and the oral submissions made at the hearing before us. We have nevertheless considered them in full.
The appellant’s submissions on Facebook evidence (general issue (i))
19. The appellant sought guidance on the presentation of Facebook material, following XX (PJAK). Such guidance would need to take into account that it might be used by someone who does not use Facebook, (because their account is created or curated by a third party) or does not understand the scope of data which is stored and may be accessed from Facebook. This may include judges, representatives, presenting officers and litigants in person, all of whom may have varying skills, with varying access to IT support.
20. Access could be affected by the device on which someone is viewing the data, for example if a phone had an inaccurate date or time set up In regard to full ‘download your information’ or ‘DYI’ data referred to in XX (PJAK), the appellant submitted that downloading this was beyond the capabilities of many appellants and some legal representatives and was not readily available, in contrast to this Tribunal’s conclusions in XX (PJAK). Downloading could instead take days or longer and could require multiple appointments between the appellant, caseworkers and interpreters.
21. Moreover, the respondent was unable to accept ‘zip’ files, the condensed format in which Facebook provided access to DYI. When ‘unzipped’, the files were so large that they could be very difficult to upload and create further issues for legal representatives’ servers.
22. The data produced was still liable to manipulation. Full disclosure also created privacy issues. The appellant submitted that he should not be required to disclose all his DYI data in the first instance, some of which could be highly personal, and instead the respondent should adopt an incremental approach, as suggested by the Court of Appeal in R v Bater-James & Anor [2024] EWCA Crim 790, where the Court suggested an incremental approach to accessing mobile phone evidence. This was a perfectly acceptable way to do so in criminal cases, where seizing a device and full digital downloads were only to be done where necessary. The appellant suggested that screenshots should be provided and then the appellant’s live Facebook account be made available at the hearing, so that all parties could view it. If, on initial production of the evidence, the respondent had concerns, it was for them to identify them, and if there were an allegation of manipulation, that needed to be particularised.
The respondent’s position on Facebook evidence
23. The guidance on disclosure of Facebook evidence should remain as set out by the Presidential panel in XX (PJAK). The guidance reflected that partial disclosure of social media evidence created an inherent risk of distortion. The deficit was not merely procedural but went to the heart of the risk assessment. The burden of adducing reliable social media evidence lay with the appellant. It was for the appellant to decide what evidence to provide and to ensure it was produced in an accessible format. Where Facebook material was relied on, that meant a format that enabled the decision maker to consider whether the account had been created, amended or curated for the purposes of the claim rather than a pattern of genuine political activity; whether the posts were published to a restricted audience; whether the identity of the author could reliably be established; and whether the timeline and frequency of posts could be verified.
24. The appellant’s arguments about difficulties in accessing and disclosing DYI material had been overstated. Indeed, this was no longer a live issue in the appellant’s appeal, as a mutually acceptable form of disclosure of his Facebook account had been identified through software called ‘Digest’. To the extent that representatives and parties without representation asserted that there remained issues, these would be specific to peoples’ IT capabilities and not amenable to general legal guidance.
25. The appellant’s suggestions were inappropriate. Disclosure difficulties should not be addressed by lowering the standard of procedural rigour. Attempting live access to Facebook accounts, particularly in hearings, gave rise to a range of practical and legal issues, with Facebook not accessible from the respondent’s devices and the difficulties in reviewing, in a Tribunal hearing, and possibly for the first time, a Facebook account which may have been active for many years. In assessing a live account, there was also an inability to access ‘back-end’ data showing edits to posts, such as date changes. Bearing in mind the need to identify principal controversial issues (see Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC), at the date of disclosing the appellant’s skeleton argument, the appellant should disclose within the appellant’s bundle the relevant Facebook material, in a ‘DYI’ standard export format; and provide a written indication of which parts of the material were relied upon, so that the bundle related to the disputed issues, as per the Senior President’s Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal, November 2024, in particular paras [7.1] and [7.5] to [7.6]. By the time of the respondent’s review, the respondent would have had sufficient time meaningfully to engage with that evidence as per [7.11] of the 2024 Practice Direction and hearing be confined to matters in dispute.
The evidence in relation to Facebook evidence
26. We heard live witness evidence from a solicitor as well as being provided with a number of statements from solicitors referring to difficulties with Facebook material. Once again, we do no more than summarise the various statements, but we have considered them in full.
27. The live witness evidence was of Mr Thomas Thrower, a solicitor with Broudie Jackson Canter. We should say at the beginning that Mr Thrower was an impressive witness who did everything that he could to assist this Tribunal. We accept, without qualification, that he was an honest witness. He also clearly identified where there were gaps in his knowledge.
28. He is a solicitor and senior caseworker and has had regular involvement in obtaining ‘DYI’ evidence to support his clients. He was aware of ‘zip’ files (a form of compressing large files so they can be sent via email, for example), which, when ‘unzipped’ or extracted from the compressed format, create files of significant size. Due to the size of the files (compressed or otherwise), they can only be shared via a separate file-sharing system and the Tribunal and the respondent’s Presenting Officers Unit have indicated that they are unwilling to accept those documents via a file-sharing system, because of the security risk. It had been suggested that files could be split up and send in multiple emails. Mr Thrower said that this would be unworkable in multiple emails. DYIs data could be between 50 to 200 pages of Facebook posts. He also explained that the cost of translating DYI could be significant.
29. In giving live evidence, Mr Thrower outlined that what he typically did was to go through the DYI material, and look at the ‘posts’ and so-called ‘friends’ or ‘connections’ rather than plainly irrelevant subdirectories of the DYI evidence, such as adverts. He would save the relevant material as PDF files (as this Tribunal did during the hearing) and include these within the bundle of documents. On disclosing the files to the respondent, the respondent might initially take issue with the evidence by virtue of the pdf format (rather than it being the entire DYI evidence in standard export format) but often, by the morning of the Tribunal hearing, Presenting Officers then accepted the genuineness of the evidence. In his second statement, he refers to typically providing an accompanying witness statement referring to the steps undertaken to identify and disclose in pdf format the DYI evidence. He added concerns as to how the respondent or the FtT could assess DYI in standard export format if the parties were appearing via CVP. There were further difficulties in viewing ‘engagement’ of others to an appellant’s particular posts. The only way to demonstrate such engagement was to provide a direct website link. Moreover, relying on a Facebook post from a third party such as a political organisation was also difficult to ascertain, unless identified on the live account, which was rarely viewed prior to the Tribunal hearing.
30. There were a number of written statements before us and we have considered them all. Ms Caroline Clark, is a senior immigration caseworker at Broudie Jackson Canter. She referred to individuals forgetting their password details; or not having the same telephone number; or not having originally set up the account themselves; or the fact that it could take several days to receive the DYI data; the ‘zip file’ issue, and the process of converting documents into a PDF bundle, which the respondent rarely reviewed. Ms Ferial Saada, is a solicitor and director of Ferial Solicitors. She referred to the extensive and unwieldy DYI data, not organised in a chronological or user-friendly manner, which was time consuming to review. Ms Sarsi Koomsom is a barrister working for Liberty Solicitors, who had not used to Facebook herself, but her clients attempted to access and provide the DYI data via internet cafes, which were fewer in number. Victoria Fostery, a qualified solicitor at the same firm, with a large active practice, had experienced difficulties in obtaining the DYI evidence and, having obtained it, her clients were not able to email the information because it was too large. Some clients wished to give her the username to sign and obtain it, but she declined this request. In addition, she did not feel comfortable having the details of someone’s password to access their account. Suzannah von Strandmann is an associate solicitor at Luqmani Thompson. She indicated that prior to XX (PJAK), the majority of her clients simply obtained or provided screenshots, which were then translated. She prepared ‘how-to’ guides for clients to obtain their DYI data. On occasion having successfully obtained the data, it was not reviewed by the respondent, for security reasons relating to photographs. In their evidence, Kreeti Shah of Shawstone Associates indicated the process of obtaining historic DYI evidence was not simple, and many of their clients were illiterate.
Conclusion in general issue (i) – disclosure of Facebook evidence
31. We start by reminding ourselves that in contrast to applications for judicial review, where there is a duty of candour, there is no general duty of disclosure in a statutory appeal (see Nimo (appeals: duty of disclosure) [2020] UKUT 88 (IAC); [2020] Imm AR 894, in contrast to the judicial review case of R (BG) v London Borough of Hackney (social media; candour; disclosure) [2022] UKUT 00338 (IAC)). It follows that a party may therefore withhold part of the DYI evidence in a statutory appeal, even if it is harmful to their case, provided that they do not knowingly mislead. For example, a party may legitimately withhold the fact that they made only sporadic ‘posts’ on Facebook, provided that they do not mislead by asserting that they post regularly. It is for the appellant to prove their case.
32. This Tribunal discussed the weight to be attached to partial, as opposed to full disclosure of the evidence, in XX (PJAK) when it said at headnote (7):
“(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.”
33. The appellant invites us to depart from that guidance, for the reasons set out. We decline to do so, and conclude that the guidance remains accurate. True it may be that it takes a few days for the link to the DYI evidence to be sent from Facebook to the account holder, but it is simply a question, as an account holder, of requesting that link. Access to the link provides the full standard data, and the wealth of evidence therein, as discussed in XX (PJAK). It may also be correct that a party might face challenges in accessing DYI if they are not the account holder (because it was set up by someone else); or have limited literacy (despite claiming to use social media which requires some literacy to use); or for it to require translation. The latter point highlights the general principles, set out in Tanveer Ahmed v SSHD (Documents unreliable and forged) Pakistan * [2002] UKIAT 0043):
“33. It is for the individual claimant to show that a document is reliable in the same way as any other piece of evidence which he puts forward and on which he seeks to rely.
34. It is sometimes argued before Adjudicators or the Tribunal that if the Home Office alleges that a document relied on by an individual claimant is a forgery and the Home Office fails to establish this on the balance of probabilities, or even to the higher criminal standard, then the individual claimant has established the validity and truth of the document and its contents. There is no legal justification for such an argument, which is manifestly incorrect, given that whether the document is a forgery is not the question at issue. In only question is whether the document is one upon which reliance should properly be placed.
35. In almost all cases it would be an error to concentrate on whether a document is a forgery. In most cases where forgery is alleged it will be of no great importance whether this is or is not made out to the required higher civil standard. In all cases where there is a material document it should be assessed in the same way as any other piece of evidence. A document should not be viewed in isolation. The decision maker should look at the evidence as a whole or in the round (which is the same thing).
36. There is no obligation on the Home Office to make detailed enquiries about documents produced by individual claimants. Doubtless there are cost and logistical difficulties in the light of the number of documents submitted by many asylum claimants. In the absence of a particular reason on the facts of an individual case a decision by the Home Office not to make inquiries, produce in-country evidence relating to a particular document or scientific evidence should not give rise to any presumption in favour of an individual claimant or against the Home Office.
38. In summary the principles set out in this determination are:
1. In asylum and human rights cases, it is for an individual claimant to show that a document on which he seeks to rely can be relied on.
2. The decision maker should consider whether a document is one on which reliance should properly be placed after looking at all the evidence in the round.
3. Only very rarely will there be the need to make an allegation of forgery, or evidence strong enough to support it. The allegation should not be made without such evidence. Failure to establish the allegation on the balance of probabilities to the higher civil standard does not show that a document is reliable. The decision maker still needs to apply principles 1 and 2.”
34. The principles set out in Tanveer Ahmed apply, some 24 years later, to social media evidence, just as they did to arrest warrants or prosecution documents. Social media evidence is not a special category of evidence. It is not correct that is it for the respondent to show deficiencies in the evidence, and only then for there to be fuller disclosure. Practically the respondent could not do so, in the absence of full disclosure, as it cannot prove deficiencies or identify concerns about what it does not know. In any event it may not be asserting a ‘forgery’, merely that the pattern of use of social media evidence is obscured through partial disclosure, and an appellant has not proved their case, when they could have provided fuller disclosure. While accessing the automated link or disclosing the standard DYI evidence may prove a challenge for some parties, this Tribunal must take the world as it finds it in terms of how social media evidence reflects people’s lives. It is the appellant’s evidence and up to them what they seek to rely on. The burden of proof is on them. The need for translations (and associated cost) applies to other evidence. Disclosure in a series of emails may be possible, if ‘zip’ files cannot be accessed. Moreover, it was possible in this case for the appellant’s full DYI to be shared via document sharing software (just as bulk document-sharing software is provided for other courts, such as ‘Case Centre’ in the Family Courts) and the fuller DYI evidence proved important in this case, when considered in the round. We were only able to assess it at the hearing having read it in advance. To have attempted this exercise ‘live’ would have been impracticable. The answer to resolving practical difficulties, if evidence is relied on (not limited to DYI evidence), is for the party relying on it to liaise with the other party at the earliest possible stage, with a view to assisting the Tribunal. Such attempts may then shed light on the extent to which a party has chosen not to provide disclosure, as opposed to being willing to do so.
35. Where an appellant relies on DYI evidence, it is entirely unhelpful and contrary to the Procedure Rules of both Chambers, in particular Rule 2, common to both and entitled “Overriding objective and parties' obligation to co-operate with the Tribunal”, to simply download all the DYI data and provide the full download in a bundle, without more. It is not for the respondent or the Tribunal to trawl through hundreds of pages of evidence to find what is potentially relevant. Rather, the expectation is that where an appellant relies upon Facebook activity, they will, in their bundle of evidence, produce the screenshots relied upon with reference to a schedule of relevant pages where they can be found in the full DYI bundle which is made available in the bundle of evidence and cross-referenced. The Tribunal thereafter would expect the respondent to review that evidence and provide her written position on the same.
The parties’ submissions on general issue (ii) – the ‘bad faith actor’ and ‘impermissible speculation’
36. As set out above, the parties accept that the correct question is not whether someone ‘ought’ to delete their Facebook account, but whether they will do so in future. This is clear from paras [99] to [102] of XX (PJAK):
“99. ... In our case, a decision maker is not falling into the trap of applying a test of what a claimant "ought to do," in cases of imputed political opinion. That was counselled against by Beatson LJ in SSHD v MSM (Somalia) [2016] EWCA Civ 715.
100. Instead, 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 the 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. If the person will refrain from engaging in a particular activity, that may nullify their claim that they would be at risk, unless the reason for their restraint is suppression of a characteristic that they have a right not to be required to suppress, because if the suppression was at the instance of another it might amount to persecution. It is difficult to see circumstances in which the deletion of a Facebook account could equate to persecution in this sense, because 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.
101. The second part of our answer relates to Lord Kerr's concern about whether an analysis of what a person will do is too speculative or artificial an exercise. We accept Mr Jaffey's submission that there may be cases where the exercise is too speculative, particularly in the context of a volatile militia. That is not the case here.
102. We consider that it may be perfectly permissible for a decision maker to ask what a returnee to Iran will do, in relation to a contrived Facebook account or fabricated protection claim. Whether such an inquiry is too speculative needs to be considered on a case-by-case basis, but factors which may point to that question not being impermissibly speculative include: where a person has a past history of destroying material, such as identification documents, or deception or dishonesty in relation to dealings with state officials; whether the government has well-established methods of questioning (in the Iranian state's case, these are well-documented and therefore predictable); and whether the risks around discovery of social media material, prior to account deletion, are minimal, because a personal's social graph or social media activities are limited.”
The appellant’s submissions on general issue (ii)
37. Ms Khan submitted that practically, a person acting in bad-faith, who has contrived Facebook activities to bolster an asylum claim, will always ‘double-down’ and maintain the account and not close it, thereby ensuring that a protection appeal succeeds. Alternatively, it would always be impermissibly speculative, because the Tribunal must assess risk to an appellant based on facts at the date of the hearing, and an appellant may not need to delete their account for many years. This position, we note, contrasts with S v SSHD [2024] EWCA Civ 1482, OM v SSHD [2025] EWCA Civ 1585 and FA (Iran) v SSHD [2024] EWCA Civ 149, which judgments were based on findings by the FtT that the appellant would delete his account.
The respondent’s submissions on general issue (ii)
38. Mr Anderson rejected a suggestion that a bad faith, rational actor would always keep open their Facebook account until an emergency travel document was applied for, thereby frustrating their removal. Instead, it was open to a Tribunal to assess what a rational, ‘bad faith’ actor, would do, if faced with the application for an emergency travel document which they believed was part of a removal process, as part of a number of factors, such as their willingness to have deceived state officials in the past. Moreover it was not impermissibly speculative to do so. XX (PJAK) has been upheld and applied by the Court of Appeal in ‘S’ and ‘OM’, without qualification.
Conclusion on general issue (ii) – the ‘bad faith actor’ and ‘impermissible speculation’
39. If a party has a genuine political motivation in making a post which would attract adverse state risk, then ‘HJ Iran’ confirms that if deletion is because of fear of that risk, a protection claim would succeed. However, for the rational but bad-faith actor in the sense of Danian v SSHD [1999] INLR 533, we do not accept Ms Khan’s proposition that such an actor will necessarily choose to keep open their account and thereby frustrate removal at the first “pinch point”. Each assessment will need to be carried out on a case-by-case basis and the question of whether such an evaluation involves impermissible speculation will include not only somebody’s ‘bad faith’, but their willingness to have concealed matters; destroyed documents; or lied to authorities in the past. We reiterate again that this will be case specific. We can see there will be cases where somebody might have a particular mental illness, for example, which causes them disinhibition, which would mean that an assessment of whether or not they will close their Facebook account is speculative, but this is far removed from many cases.
40. We also do not accept that, by virtue of there being no removal directions at this stage, it is too speculative to consider what an appellant will do in the future. The nature of an assessment of a protection claim is in part based on the past, but also of the risk of future events, as confirmed as far back in Karanakaran v SSHD [2000] EWCA Civ 11, if not earlier. Once again, the question of what an appellant will do with their Facebook profile requires an assessment that does not depart from that basic principle. This is so even though the assessment is made at the date of the hearing. Such a forward looking assessment is entirely consistent with, and indeed envisaged by, HJ Iran.
The appellant’s submissions on general issue (iii) – whether XX (PJAK) is consistent with WAS (Pakistan) v SSHD [2023] EWCA Civ 894
41. The Court of Appeal’s comments in WAS (Pakistan) on surveillance were relevant not only to surveillance outside embassies but also to the monitoring of social media activity. In particular, the Court had said at [84] and [85]:
“84. I paraphrase a question which Phillips LJ asked Mr Holborn in argument, 'What evidence did the UT expect?' It is very improbable that there would be any direct evidence of covert activity by the Pakistani authorities, whether it consisted of monitoring demonstrations, meetings and other activities, monitoring social media, or the use of spies or informers. I do not consider that Sedley LJ was suggesting, in paragraph 18 of YB (Eritrea), that a tribunal must infer successful covert activity by a foreign state in the circumstances which he described. He was, nevertheless, making a common-sense point, which is that a tribunal cannot be criticised if it is prepared to infer successful covert activity on the basis of limited direct evidence. Those observations have even more force in the light of the great changes since 2008 in the sophistication of such methods, in the availability of electronic evidence of all sorts, and in the ease of their transmission. To give one obvious example, which requires no insight into the covert methods which might be available to states, it is very easy for an apparently casual observer of any scene to collect a mass of photographs and/or recordings on his phone, without drawing any adverse attention to himself, and then to send them anywhere in the world.
85. I consider that, on this aspect of the case, the UT erred in law by losing sight of the fact that direct evidence about 'the level of and the mechanics of monitoring' in the United Kingdom is unlikely to be available to an asylum claimant or to a dissident organisation, and by imposing too demanding a standard of proof on A. The UT repeatedly said that A had not 'established' things, that 'cogent evidence' of something was absent, and that parts of A's evidence were not supported (see further, the next paragraph).”
42. It was argued that this Tribunal had erred in XX (PJAK) by seeking direct evidence of social media monitoring, actual information to show the capabilities of the Iranian authorities to monitor Facebook and direct evidence of the claim by Iranian authorities to have monitored 8 million Iranian Facebook users. This was separate from the specific issue as to identification at demonstrations, with filming and the like. In XX (PJAK), the experts accepted that there was no clear evidence that Iran has implemented facial recognition technology and Mr Marchant was unable to comment in detail on how surveillance equipment purchased from a Chinese company, ZTE, (para [65]) might work. However, the appellant argues that in seeking such direct evidence, the analysis in XX (PJAK) was flawed and elevated the standard of proof on appellants.
The respondent’s submissions on general issue (iii)
43. The respondent argued that the Tribunal’s approach in XX (PJAK) was not inconsistent with anything said in WAS (Pakistan). The Court of Appeal in MH (Bangladesh) v SSHD [2025] EWCA Civ 688 indicated that common sense was required in an assessment of risk of surveillance, necessitating a fact-sensitive consideration of the capabilities of particular states. That was the nature of the exercise undertaken in XX (PJAK). The appellant had not sought to introduce any further evidence to depart from the expert evidence in XX (PJAK) and there was no basis on which the appellant could argue that XX (PJAK) elevated the evidential threshold or the standard of proof on him.
Conclusion on general issue (iii) – is XX (PJAK) consistent with WAS (Pakistan)?
44. We conclude that nothing in XX (PJAK) contravenes the point made in WAS (Pakistan) that direct evidence about 'the level of and the mechanics of monitoring' in the United Kingdom is unlikely to be available to an asylum claimant or to a dissident organisation nor, we find, does XX (PJAK) place too high a standard of proof on an appellant. It is true that Mr Marchant was not a technology expert himself and, on that basis, he had been unable to comment on the ZTE technology. As the Tribunal noted at [59] of XX (PJAK), Mr Marchant had not claimed to be a computer expert at all, but rather had expertise in reviewing, over many years, publicly available material about the Iranian authorities’ attempts to control freedoms and liberties. This was relevant to his inability to comment on how ZTE equipment might work or its ability to be used to monitor communications, at [65]. However, the reference to absence of clear evidence at [65] is taken out of context. It ignores the wealth of other evidence and the assessment of Dr Clayton, a computer expert, at [38] was that there was no evidence (as opposed to direct evidence) that Facebook’s website and storage facilities themselves may have been hacked or that they could be accessed on a bulk automated basis through crawler searches, but instead at [39] access could be obtained, to varying degrees, by one of the three other means. We do not recite all of these other means. The analysis of ‘crawler’ software resulted in Dr Clayton’s further comments at [45] and [46]. Facebook employed considerable resources in trying to stop ‘crawler’ access. At [50], his expert evidence was that human input was needed to consider where to look for a proverbial needle in a haystack. All of this was a nuanced assessment far removed from the suggestion that the Tribunal in XX PJAK had erred by requiring direct evidence. We therefore reject the contention implicit in the criticism, that this Tribunal’s conclusion in XX (PJAK), namely that risk was dependent, in part, on someone’s ‘social graph’, was erroneous.
Specific issue (iv) – the genuineness of the appellant’s political belief in his ‘sur place’ activities
45. While we have considered all of the evidence in the round, we must start somewhere in our analysis.
The appellant’s submissions
46. The appellant continued his sur place activity over many years and there would be little point in doubling down on contrived activity if it were untrue. The previous dismissals of the appellant’s asylum claims by Tribunals would have removed the incentive to continue with the activity of attending demonstrations, if it were manufactured for the purposes of gaining status. The appellant had demonstrated an ability to read and write in English at the Tribunal hearing and was in control of his Facebook account. His demonstration of his English proficiency was his ability to write a sentence and then read it out loud as, "I am going to work today." His writing was, "I am going to work today." He relied on the photographs of his attendances at demonstrations outside the Iranian embassy and his numerous posts to 5,000 friends.

The respondent’s submissions
47. The respondent began by relying on the previous adverse findings of Judges Caswell and Hands. The appellant had been found to have contrived claims in the past. The appellant had not been politically active in Iran. While he had attended demonstrations, it was unlikely that images of him had been taken by the Iran authorities or that he could be identified. His ‘social graph’ was low. He was largely unaware of what was written on his Facebook unless his friends kept him advised of the same. His level of English was not proficient. He was not the author of the Facebook page in his name. He knew limited amounts about Kurdish politics and would not come to the attention of the Iranian authorities. The new evidence which the appellant had provided since Judge Hands’ judgment was of the same kind – photographs of him at a limited number of demonstrations in a crowd, with his back to the Iranian embassy; no or limited evidence (and certainly no witness evidence) from any fellow demonstrators or policial party or organisation members; and posts of a generic oppositional nature which appeared to have been created by someone managing his account.
Our findings on the genuineness of the appellant’s political belief (issue (iv))
48. We start with the prior adverse credibility findings in respect of the appellant’s account. We bear in mind Para 339L of the Immigration Rules, as discussed by the Court of Appeal at [75] of MAH (Egypt) v SSHD [2023] EWCA Civ 216. Corroborative evidence is not required, and we have considered the appellant’s claims on the basis of a reasonable degree of likelihood, as an evaluation of risk, considering all the evidence in the round. We are conscious that just because the appellant was found to have contrived claims in the past, does not mean he is being untruthful as to his motives now. We also caution ourselves that Judge Caswell had only evaluated the appellant’s claim of a blood feud on the papers, without hearing live witness evidence; and that she had found that the appellant had not even shown he was Iranian, which has since been accepted.
49. Judge Hands’ assessment was far more detailed, which is why we have set it out so extensively. Her findings that the appellant’s claims lack credibility are relevant to our assessment, as are her findings on the appellant’s sur place activities. These included no evidence from the KDP (para [30a]); his limited role in demonstrations ([30b]); the claims of attendance at 12 to 15 demonstrations, with his back to the London embassy, in a crowd ([30d] and [30e]); his limited proficiency in English and lack of knowledge of what is written on the Facebook account ([31]); a finding of sporadic posting and that the appellant was not the author of the Facebook account in his name ([36]). It was found that the appellant knew little about Kurdish politics and all he knows is that as a Kurd, he supports their causes ([37]).
50. We acknowledge the fact that the respondent accepted in her Position Statement dated 9th March 2026 that:
“… the evidence provided appears to conform to what she would generally expect to see from a full facebook readout provided properly and in line with the XX guidance” (para [7]).
51. Importantly, however, the respondent went on to state:
“As to authenticity, the Respondent’s present position is that she cannot necessarily accept in a blanket manner that all the facebook evidence provided by the Appellant is authentic / reliable. Though she accepts that the evidence generally appears to look as it should, she would suggest that the regular Tanveer Ahmed/ QC (China) principles continue to apply as normal.” (para [9])
52. Having taken Judge Hands’ findings as our starting point (but no more than that), we have considered the appellant’s witness statements, supplemented by his oral evidence and the updated Facebook material. He had also produced a letter from the Komala Party of Kurdistan at [1174] of the bundle before us, but the letter was unsigned. The author did not attend the hearing and, although they assert that the appellant was a member of the party and referred to him having attended demonstrations, there was no further detail whatsoever. Whilst we emphasise that we take the evidence in the round, the respondent had taken issue with the reliability of this document and the appellant’s claim that he was not aware that he needed to call anybody to give witness evidence to discuss his activity with the Komala Party lacks credibility. We find that the letter carries very limited weight before us.
53. In terms of the appellant’s witness statements, these are limited in their factual details. He refers to the photographs of him on his Facebook page, which he had shared to encourage fellow Kurds and to show his attendance at demonstrations. He referred to a friend who had set up his Facebook account and organised the email and password, which the appellant had then changed to his own details after it had been set up. He still used his Facebook account to post information against the Iranian government, he had 5,000 friends on Facebook but had only asked a few people to be friends and posted mainly once a week, sometimes once every two weeks (para [5] of the second witness statement at page [1156]). When cross-examined by Mr Anderson, the appellant accepted that there were frequently many months when he made no posts at all and that in fact he had received few friend requests. The appellant said that ‘mainly once a week’ was a turn of phrase and he could not be expected to remember all of the details. The Tribunal also asked him about two particular photographs said to have been taken 19 minutes apart, in which he appeared to be wearing entirely different clothes. This was illustrative, in our view, of the importance of DYI evidence. He claimed to have a dropped a drink down himself, necessitating the change of clothes. Mr Anderson submitted that this was evidence of the photographs being staged, to give the impression of attendance at multiple demonstrations. Taken in the round with what we set out below, the appellant’s vagueness about the frequency of his posting and his change of clothing in photographs taken in such a short time frame, leads us to the view that we cannot accept, even to the lower standard of proof, that the Facebook evidence before us is reliable evidence of the appellant’s genuine political motivation. We go further and find that the photographs taken 19 minutes apart are undoubtedly staged.
54. Of the photographs on which the appellant relied, the dates to which the appellant referred in his witness statement appeared to be contradictory. He referred to one photograph as evidence of events on 14th July 2024 at page [25] of the bundle, whereas it was taken on 11th December 2022. That was not the only example that was put to him in evidence. The appellant’s explanation (at para [4] of his second statement at page [1164]) was that he had,
“thousands of photographs and I do not know what happened, but I most likely uploaded the wrong demonstration photo on some of the demonstration posts. I have attended all of the demonstrations mentioned in my previous statement. However clearly some photos got mixed up with different demonstration dates when I was posting them on Facebook.”
55. We find when considered in the round that the uploading of old photographs, only revealed by DYI evidence, was part of a pattern of creating a false impression of more recent activity and not because of any confusion about dates. We agree with the point put to the appellant by Mr Anderson that it is simply not plausible that the appellant would mistake what photograph related to the events on the day he was posting about.
56. Moreover, the photographs now relied on, post-dating Judge Hands’ decision, are similar to those previously considered by Judge Hands. The photographs show the appellant holding up a small sheet with images on it some distance away with his back to a building ([21] and [22] of the bundle), in a significant crowd, once again with his back to an embassy ([23] and [24]), a further distance away at [25]; in an unknown location at [26]; apparently some distance away from a building at [27]; and in a crowd, with his back to a building and some distance from it at [28]. The location of where he stands in a crowd at [29] (i.e., whether it is near to the Iranian embassy) is not clear, nor is it at [30] or [31]. He appears to be simply standing in a street. In no way can the appellant be seen as a lead demonstrator or facing the Iranian embassy from which CCTV might be taken. We return to considering this evidence in the round. We have found that at least one photograph has been staged, in terms of different clothes. Others have been misdated. The remaining photographs suggest that the appellant has, at times, attended demonstrations outside the Iranian Embassy, but not in any leading role, instead as part of a crowd, sometimes a distance away from the Embassy itself and with his back turned.
57. We have also considered more generally the obvious option for the appellant to ask friends who attend demonstrations with him to give evidence as to the detail of his attendance and involvement. The appellant said that he had no idea that he needed to do so and that he could have asked friends to give evidence. We reject that explanation, as being untruthful. The appellant has been legally represented for many years and his claim not to have known of the importance of adducing readily available evidence from others is so implausible, in this case, as to defy belief.
58. We take the previous findings as the starting point and note that there are stark gaps in attendances at demonstrations, between March 2020 (before Judge Hands’s decision) and April 2021 (just after it); between April 2021 and March 2022 ([178] of the bundle); then a gap from December 2022 to November 2023; a period of more sustained attendance between March to 20 to September 2024, after this Tribunal’s error of law decision sealed on 2nd February 2024 and the appellant knew that this Tribunal would be assessing his sur place activities, and four attendances thereafter.
59. Given the gaps in the evidence which could have been adduced, which we have identified above, the sporadic nature of attendances at demonstrations (with a pattern of greater regularity since the error of law hearing) what is left are the appellant’s scant witness statements, with limited details, referring to the number of demonstrations attended and photographs which, on the face of them, appear to show the appellant within a large crowd, some distance away from an Iranian embassy, or in other places in unknown locations, with his back to the building and holding a small A4-sized material at his waist height. There are also some Facebook posts attracting some likes and some adverse comments, which the appellant says that he has deleted.
60. The appellant’s sporadic attendance at demonstrations is in the context of his social media posting. The nature of the posting and the quality of comments give every indication that they have been written by someone else. Judge Hands had previously found that the appellant was not proficient in English or Kurdish. One obvious possibility was for the appellant to read out some of the posts but instead what was suggested by Ms Khan was that the appellant wrote down on a piece of paper some basic English. To his credit, the appellant did write a very basic sentence, albeit misspelling it, but in reading it out loud did so with marked hesitancy and stumbling as he did so. He stated that he had used ‘Google Translate’ to produce some of the material and with the help of friends but we assessed that this in itself is not an honest answer and that, in reality, the nature of the posts are far beyond, in their syntactical complexity, the basic sentence that the appellant was able to write, misspell and only just able to read out loud.
61. Ultimately, it was put to the appellant by Mr Anderson that he did not post as he claimed to, or if he did, the posts did not show the truth about what he was doing. We find there was no satisfactory answer from him. Standing back, we are quite satisfied, having considered all of the evidence before us, that the Facebook account is curated by someone or some others on the appellant’s behalf.
62. In this context, we have no hesitation in concluding that the appellant has failed to demonstrate that he is genuine in his belief in the Komala Party or that he is genuinely politically motivated. We have no doubt that his sur place activities (attending the demonstrations and the photographs and posting on Facebook) are all contrived for the purposes of fabricating an asylum claim.
Specific issue (v) the risk on return to the appellant, taking account of the two pinch points identified in XX (PJAK)
The appellant’s case
63. The appellant’s case is that even as a ‘bad faith’ actor in the ‘Danian’ sense, he will have attracted the attention of the Iranian authorities already, or that he will not close his Facebook account on learning that an emergency travel document may be being applied for in his name. He says that he will not close his account (although for reasons we have rejected, namely the genuineness of his political opinions). It is said on his behalf that it is impermissibly speculative to consider that he would close his account. He had not done so in 2020 and he would not do so now. Judge Hands had not made any finding as to whether the appellant would delete his Facebook account, merely that somebody other than he had set it up and he would not be able to direct the authorities to the Facebook account.
The respondent’s case
64. The respondent’s case is that the appellant will not have attracted the attention of the Iranian authorities through his attendance at demonstrations or his Facebook posts. His ‘social graph’ is minimal. He will close his Facebook account on learning of steps to proceed with an emergency travel document, given the pattern of his previous behaviour in attempting to deceive the respondent and Tribunals, when faced with the prospect of return and having failed in his latest claim of asylum. His literacy remains limited and that is an explanation he can give (truthfully) to the Iranian authorities.
Findings on specific issue (v)
65. Whilst we reiterate our consideration of all of the evidence in the round, we address first the risk because of the appellant’s attendance at demonstrations and online posting activities, before an emergency travel document is applied for. We have already described the limited nature of the photographic evidence, the absence of evidence about the role that the appellant plays in demonstrations and, in the context of the Facebook posts, our finding that the account is curated by someone other than the appellant. Unlike the appellant in XX (PJAK), there is no evidence that the appellant has been photographed in close proximity to a prominent member of any Kurdish political party or individual and nor are there any negative or threatening messages as a result of his posts before us. Given the wealth of Facebook evidence before us and how important it would be to his claim to protection, we reject the appellant’s evidence that he deleted the threats that he had received.
66. We attach limited weight to the ‘likes’ that the posts may have attracted. Given the contrived nature of the account under curation, there is no reason to suppose that any responses or ‘likes’ are not similarly curated or contrived. In doing so we are conscious of the risk of seeking direct evidence, but where the social media evidence is so compromised (as it is in this case) the weight we attach to it, in assessing risk based on the ‘social graph’, is limited. The Iranian authorities’ knowledge of the appellant’s posts requires human intervention by them (because Facebook cannot be ‘scraped’) and the resources dependent on the appellant’s social graph. We find that the appellant has no ‘social graph’, in terms of oppositional activities. He is an opportunistic bystander, whose posts are written by others.
67. Mere attendance at the demonstrations, in the terms we have described as photographed, is not reasonable likely to have attracted the attention of the Iranian authorities. We reiterate the context of the appellant’s sporadic attendance, standing in a crowd, without prominence, frequently some distance from the embassy and holding a small placard with his back to the embassy.
68. In summary, the Appellant has not established that, through his contrived activities, his social graph has become the subject of targeted social media surveillance by the Iranian Regime or that his attendance at anti-regime demonstrations is known to them.
69. We do not accept Ms Khan’s suggestion in this case that it is impermissibly speculative of us to consider whether the appellant will close his Facebook account, before an emergency travel document is applied for, once he knows that this is in prospect. We are entitled to be forward-looking and even if the appellant has not closed his Facebook account in the past, if there were any real possibility to which the appellant was alerted of an application for an emergency travel document we have no doubt that just as the appellant has maintained a pattern of deception over many years, he would ask those curating the social media account to close it, if he thought that there was a realistic prospect of his removal.
70. This Tribunal found in XX that “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.” (headnote (6)). There is no reason why this appellant, on the facts as found, could not close his Facebook account and not volunteer the fact of a previously closed Facebook account, prior to the application for an emergency travel document, given that the postings were not a reflection of any genuinely held political belief. Given our findings, it is not reasonably likely that the appellant’s Facebook account was or would be monitored prior to its closure and a basic internet search in the appellant’s name at the emergency travel document ‘pinch-point’ would not yield any information of concern to the Iranian Regime (applying headnotes (4) and (6) of XX). The appellant’s sur place activities are not, we find, reasonably likely to come to the attention of the Iranian regime at the emergency travel document application stage.
71. The country guidance in PS (Christianity - risk) Iran CG [2020] UKUT 00046 (IAC) shows that the appellant would be questioned as a Kurd returning from the United Kingdom and is reasonably likely to be asked questions about why he claimed asylum.
72. The Court of Appeal have had cause to consider the position of the risk to ethnic Kurds returning to Iran having conducted contrived sur place political activities in the United Kingdom in both S and OM. The Court of Appeal in S found as follows [54-56]:
“54. … In my judgment, bearing in mind the retained finding that the appellant's activities whilst in the UK were opportunistic and not genuine, the judge was entitled to find that the appellant would not be required to volunteer information about those activities. Furthermore, that as the appellant had no involvement in PJAK or politics before he left Iran, there would be no other reason for the Iranian authorities to have any suspicion about the appellant, such that on his return to Iran, there would be no risk to the appellant either of persecution or Article 3 ill-treatment either by reason of second-stage questioning or otherwise.
55. In the course of oral submissions, Ms Patel on behalf of the appellant brought to our attention RT (Zimbabwe) v SSHD [2012] 1AC 152, ("RT") and submitted that it was necessary for Judge Kebede to have considered the type of issues which Lord Dyson mentioned at [57] before being properly able to reach a view as to the risk to the appellant on his return to Iran, including what the appellant might be asked by the authorities on his return and how well he would be able to lie to them. However, as was pointed out in XX at [98], the issues which the Supreme Court were considering in RT, arose in a very different context, namely the return of a non-political Zimbabwean to an area in which it was likely that he would have to provide a convincingly false account of his allegiance to the ruling party when stopped and questioned by ill-disciplined militia at roadblocks.
56. In contrast, as was pointed out in XX at [99] the Iranian authorities do not persecute individuals because of their political neutrality. Moreover, in the present case, and in the light of both the retained findings and those made by Judge Kebede as to the unlikelihood of the appellant having already come to the attention of the authorities and his lack of genuine political belief in the PJAK, the appellant was not in a position where he would have to prove his political loyalty, rather it would be one in which, as Judge Kebede found, the appellant would not be required to volunteer information about his activities in the UK.”
73. The Court of Appeal held in OM [53-55] that:
“53. The country guidance demonstrates that a Kurd returning from the UK as a failed asylum seeker would be questioned. However, those factors would not lead to second stage interrogation unless something of concern to the Iranian authorities arose during the initial questioning. On the findings of Judge Power, such concern would only emerge if the appellant disclosed his attendance at the UK demonstrations to the authorities. The truth, as found by Judge Power, was that the appellant was not politically motivated but had attended demonstrations to secure evidence to use in his asylum claim.
54. The appellant claimed that he would not delete his Facebook page and would wish to continue to protest if he returned to Iran. Judge Power did not believe him. It is apparent that the question of what the appellant might say during questioning has only been brought into sharp focus during the hearing before this Court. Although Judge Power did not expressly find that the appellant would not volunteer the fact of his attendance at demonstrations when questioned, it is clear from reading the judgment as a whole that the judge would inevitably have reached that conclusion given the unassailable findings of fact she had made. Given the findings that the appellant’s activities were contrived and not genuinely motivated, it is reasonable to infer that he would not disclose them on return.
55. On that basis, his position is not materially distinguishable from the appellant in S.”
74. The question of what the appellant will say on return to Iran when questioned is acutely fact sensitive. We have found that the appellant’s activities in the United Kingdom are contrived and not genuinely motivated. We find that it is not reasonably likely that the appellant would, nor would he be required to, volunteer information about those activities. The appellant has already fabricated the facts of a claim to remain in the United Kingdom. As was pointed out in XX (PJAK) at [98], the issues which the Supreme Court were considering in RT (Zimbabwe), arose in a very different context and the Iranian authorities do not persecute individuals because of their political neutrality.
75. It follows that the appellant’s sur place activities are not reasonably likely to come to the attention of the Iranian authorities at the pinch point of applying for travel documents and/or on his return to Iran.
76. We also considered the risk to the appellant on his return to Iran as a Kurd, without any genuine engagement in oppositional activities, and not having experienced any adverse interest in Iran, but having lived in the UK since 2016. In 2020, Judge Hands had carried out a detailed analysis of the risk factors, including by reference to HB (Kurds) Iran CG [2018] UKUT 00430 (IAC). The appellant may face discrimination (headnote (2), but will not speak out about the treatment of Kurds or dissent (headnote (7)), nor is he at risk because of ‘low-level’ activity in Iran or the United Kingdom. The appellant remains a person with limited literacy, limited knowledge and interest in Kurdish oppositional politics and was a shepherd, living outside the KRI, before he left Iran as a young adult. He will be perceived by the Iranian authorities (correctly) as an economic migrant to the United Kingdom. We conclude that there is not a reasonable degree of likelihood that he will be at risk on return to Iran.
Summary
77. In summary:
(1) The guidance at headnote (7) of XX (PJAK) remains accurate. We decline to depart from it. In this appeal, the appellant disclosed the DYI evidence, and it was cross-referenced and accompanied by a witness statement from a solicitor which confirmed the nature of the searches. Clearly, in the context of a 24-week time period in which many appeals to the First tier Tribunal must be determined, an appellant will need to have disclosed the DYI evidence at the earliest possible stage of the process, but there is no reason why they cannot be expected to do so, just as they might rely on other evidence. The principles of Tanveer Ahmed apply. Facebook evidence does not constitute a separate kind of evidence. The expectation is that where an appellant relies upon Facebook activity, they will, in their bundle of evidence, produce the screenshots relied upon with reference to a schedule of relevant pages where they can be found in the full DYI bundle which is made available in the bundle of evidence and cross-referenced. The Tribunal thereafter would expect the respondent to review that evidence and provide her written position on the same.
(2) The correct question in cases considering the risks as a result of social media posts is not whether the appellant ought to delete their account so as to mitigate the risk to them, but rather whether it is impermissibly speculative, on the individual facts of a given case, to consider that an appellant will do so. The Upper Tribunal already considered this in XX (PJAK) at paragraph [102]. We have applied that guidance to this case and concluded that not only was it not impermissibly speculative, but also in this case that the appellant indeed would close his social media account.
(3) We reject the assertion that XX (PJAK) is inconsistent with WAS, on the basis that XX (PJAK) invited a search for direct evidence. Instead, the Tribunal in XX (PJAK) evaluated nuanced evidence about the ability of Facebook to be ‘scraped’ and the steps that Facebook had taken to stop this in the context of the discussion of the ‘Cambridge Analytica’ scandal. What the experts discussed was hacking a Facebook account by other means but which would require, in the computer expert view, human agency, which was why the question of somebody’s social graph was relevant. We reject that this is unreliable. In particular, it has been endorsed on a number of occasions by the Court of Appeal.
(4) Motives for generating a social media account are relevant. If genuine, then HJ (Iran) would be a relevant principle, namely that if a person would close an account for fear of persecution, then they will be likely to succeed in an asylum claim. In this case, the appellant’s motivation is contrived.
(5) We do not, on the evidence before us and the facts we have found, regard there as being any real risk that the appellant would face persecution on return from the Iranian authorities, notwithstanding the appellant being a Kurd and a failed asylum seeker.
Costs
78. By an application dated 14th May 2026 the respondent claims that the appellant’s legal representatives, Parker Rhodes Hickmotts (“PRH”), caused it “wasted costs by acting improperly, unreasonably and/or negligently, in particular by failing to comply with the Tribunal’s clear directions and by the late disclosure of evidence.” We are concerned, therefore, with an application for wasted costs against a legal representative. We are not concerned with the conduct of the appellant himself.
The Law
79. Section 29(4) of the Tribunals Courts and Enforcement Act 2007 provides that:
“(1) The costs of and incidental to—
(a) all proceedings in the First-tier Tribunal, and
(b) all proceedings in the Upper Tribunal shall be in the discretion of the Tribunal in which the proceedings take place.
(2) The relevant Tribunal shall have full power to determine by whom and to what extent the costs are to be paid.
…
(4) In any proceedings mentioned in subsection (1), the relevant Tribunal may—
(a) disallow, or
(b) (as the case may be) order the legal or other representative concerned to meet, the whole of any wasted costs or such part of them as may be determined in accordance with Tribunal Procedure Rules.
(5) In subsection (4) “wasted costs” means any costs incurred by a party—
(a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative, or
(b) which, in the light of any such act or omission occurring after they were incurred, the relevant Tribunal considers it is unreasonable to expect that party to pay.
(6) In this section “legal or other representative”, in relation to a party to proceedings, means any person exercising a right of audience or right to conduct the proceedings on his behalf.”
80. The power to award costs is expressly subject to the Tribunal Procedure Rules. The Tribunal Procedure (Upper Tribunal) Rules 2008 provide that:
“10. (1) The Upper Tribunal may not make an order in respect of costs (or, in Scotland, expenses) in proceedings [transferred or referred by, or on appeal from,] another tribunal except—
(aa) in a national security certificate appeal, to the extent permitted by paragraph (1A);
(a) in proceedings transferred by, or on appeal from, the Tax Chamber of the First-tier Tribunal; or
(b) to the extent and in the circumstances that the other tribunal had the power to make an order in respect of costs (or, in Scotland, expenses).
…
(3) In other proceedings, the Upper Tribunal may not make an order in respect of costs or expenses except—
(a) in judicial review proceedings;
…
(c) under section 29(4) of the 2007 Act (wasted costs) and costs incurred in applying for such costs; ...
(d) if the Upper Tribunal considers that a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings;”
81. In R (on the application of SN) v SSHD [2015] UKUT 227 Mr Justice McCloskey, then President of the Upper Tribunal, stated at [38] that:
“The approach to be adopted by both the FtT and the Upper Tribunal in exercising their respective powers to make either a wasted costs order under section 29(4) of the Tribunals, Courts and Enforcement Act 2007 (the "2007 Act"), or (in the case of the Upper Tribunal) rule 10(3)(d) of the 2008 Rules has been set out in extenso in the recently reported decision in Cancino (Costs - First-Tier Tribunal - New Powers) [2015] UKFTT 59 (IAC). Wasted costs are defined as costs incurred by a party as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative. Neither misconduct nor gross neglect has to be demonstrated. The power is discretionary and the overriding objective must be considered. It is not a disciplinary power. It is compensatory rather than punitive. I refer to, without repeating, the principles rehearsed in Cancino”.
82. A test of “a reasonable explanation” is derived from Ridehalgh v Horsefield [1994] Ch 205, CA, in which the word “unreasonable” was described as follows ([232E]):
“’Unreasonable’ also means what it has been understood to mean in this context for at least half a century. The expression aptly describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case, and it makes no difference that the conduct is the product of excessive zeal and not improper motive. But conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting on a practitioner’s judgment, but it is not unreasonable.”
83. We note that in respect of conduct said to be “improper” or “negligent” the Court of Appeal stated ([232D]):
“Improper” means what it has been understood to mean in this context for at least half a century. The adjective covers, but is not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalties. It covers any significant breach of a substantial duty imposed by a relevant code of professional conduct. But it is not in our judgment limited to that. Conduct that would be regarded as improper according to the consensus of professional (including judicial) opinion can be fairly stigmatised as such whether or not it violates the letter of a professional code.
…
“The term “negligent” was the most controversial of the three … We are clear that “negligent” should be understood in an untechnical way to denote failure to act with the competence reasonably to be expected of ordinary members of the profession.”
84. The Court of Appeal’s judgment in Distinctive Care Ltd v Revenue and Customs [2019] EWCA Civ 1010 referred, at [19], to the following:
“bringing, defending or conducting the proceedings” is “an inclusive phrase designed to capture cases in which an appellant has unreasonably brought an appeal which he should know could not succeed, a respondent has unreasonably resisted an obviously meritorious appeal, or either party has acted unreasonably in the course of the proceedings, for example by persistently failing to comply with the rules or directions to the prejudice of the other side.”
85. Finally, we remind ourselves that in Cancino (at headnote (10)) it was anticipated that:
orders for costs … will be very much the exception, rather than the rule, and will be reserved to the clearest of cases”.
The Conduct
86. The appeal in this matter was listed for remaking before the Upper Tribunal on the 24th April 2026. It was listed for a day of court time in front of a senior panel. It was necessary for the Panel to adjourn that hearing for the detailed reasons given in Judge Keith’s Directions dated 30th April 2026 (Order sealed on 1st May 2026). The remaking hearing had previously been listed on 25th March 2025 but was adjourned for entirely understandable and unrelated reasons.
87. The following provides a summary of the relevant events:
a. by directions sent to the Parties on 27th January 2026, service of the appellant’s full Download Your Information (“DYI”) evidence by the Appellant was to be on the Respondent only, and a position statement on that evidence from the Respondent was to follow, then “6. The parties shall then agree and create a single electronic bundle, paginated, indexed and text searchable and which shall include witness statements comprising all the evidence-in-chief of the two proposed witnesses. The witnesses will be tendered for cross-examination only and examination-in chief will not be permitted, absent a good explanation. The parties shall file (via CE-File) the agreed bundle not later than 14 days before the resumed hearing” (the underlining is our emphasis);
b. on 13th February 2026 PRH served on the respondent, what was considered to be the material parts of the DYI;
c. by the morning of the hearing on 24th April 2026, the appellant’s most recent witness statement remained that dated 4th November 2022. Despite the direction above, no witness statement updating the appellant's position had been provided. Furthermore, there was no updated Facebook evidence at all in the consolidated bundle. In other words, the only posts that the panel had seen predated and were up to the appellant's last witness statement in November 2022;
d. The respondent had outlined her position on 9th March 2026, when she had stated that (our emphasis): “9. As to authenticity, the Respondent’s present position is that she cannot necessarily accept in a blanket manner that all the Facebook evidence provided by the Appellant is authentic / reliable. Though she accepts that the evidence generally appears to look as it should, she would suggest that the regular Tanveer Ahmed/ QC (China) principles continue to apply as normal. 10. In terms of the weight to be given to the evidence overall and any specific comments upon particular aspects of it (such as specific posts, any editing, etc) the Respondent would suggest this can be particularised in submissions by either party at the remaking as normal“(again, the underlining is our emphasis). The genuine nature of the appellant’s sur place political activity and the risk flowing therefrom is directly in issue in this appeal. The panel canvassed with the representatives how it could make an assessment of weight and risk in circumstances where there was no updated witness statement and, to the extent that any additional Facebook activity as to which there had been no witness evidence was relied upon, how we were to do that in the absence of the Facebook evidence not being adduced to us;
e. Ms Khan, who appeared for the appellant on 24th April 2026, ultimately confirmed that the appellant was relying upon political activity that post dated November 2022 and she accepted that in order to do so, evidence of that activity required to be produced, and an application made to rely upon it;
f. In granting Ms Khan’s application to rely upon a further witness statement produced on the morning the 24th April 2026, and acceding as a result to the application on the part of the Respondent to adjourn the hearing, the panel observed as follows (as set out in Judge Keith’s Directions of 30th April 2026):
“there was a clear breach and indeed Ms Khan makes a reference to the ‘failing’. It is correct that there was no direction that DYI evidence should be filed with this Tribunal as well as served. However, that is not to the point. In this case, in a remaking hearing where the last witness evidence was in 2022 and the hearing is in 2026, it was quite clear from the directions that to the extent that any witness evidence relied on post-dated 2022, the witness statements needed to comprise all of the evidence-in-chief and be included in the bundle. They have not been. Even if there were a misappreciation as to whether DYI evidence needed to be filed, that does not in any way go to the basic point that on remaking, there is an expectation of updated witness evidence, or if no updated witness evidence is provided, an assumption that none is relied upon. The converse is true here, namely the appellant does wish to rely upon recent witness evidence but has not adduced it in a written statement. The explanation provided, without criticism of Ms Khan personally, is plainly not a good one. We do not know precisely where the fault lies for the default, (and it is important we do not reach a firm view absent the consequential directions in relation to a ‘notice to show cause’ direction in relation to costs), but the explanation is said to be of one caseworker leaving and somehow not appreciating the need to have sought an updated witness statement and the incoming caseworker likewise not having appreciated the need to have done so upon the case file handover. We say no more about this at this stage because that may need to be a matter for the Compliance Officer for Legal Practice to comment on, or if to the extent that there is any default by him, for the appellant to do so. To the extent that an explanation has been provided, it is not a good one.” [12]
g. In adjourning the hearing, the panel observed that Ms Stinga, appearing for the Respondent, had been placed in an impossible position.
88. In response to consequential directions following the adjourned hearing, the Compliance Officer for Legal Practice at PRH, Margaret Shinner, provided a witness statement dated 15th May 2026 wherein it is said:
a. Ms Shazia Yousaf, Solicitor, accredited at Level 2 under the Immigration and Asylum Accreditation Scheme, took over care and control of the case file in this instant matter from Christopher Cole on 29th January 2026;
b. Referring to a statement prepared by Ms Yousaf, Ms Shinner records that Ms Yousaf had failed to note that Mr Cole had himself produced a witness statement dated 11th March 2025, which had been filed and served along with DYI evidence. The relevant emails from Mr Cole are exhibited to Ms Shinner’s witness statement;
c. Ms Shinner states that the omission of Mr Cole’s evidence from the consolidated bundle was human error and records that the Respondent also failed to draw the witness statement and DYI evidence received from Mr Cole to the Tribunal’s attention.
89. We pause to note here that in fact Mr Cole had not filed and served the full DYI evidence, rather, he had filed and served PDF extracts.
90. Ms Yousaf’s witness statement is also dated 15th May 2026. There are a number of Exhibits thereto, a number of which involve the waiving of litigation privilege. Ms Yousaf states that:
a. Mr Cole had formed the view in March 2025 that further witness evidence on the part of the Appellant would not be of benefit given that he been found to lack credibility in the past;
b. Mr Cole had provided a witness statement dated 11th March 2025 along with screenshots of the relevant Facebook posts of the Appellant which he filed with the Upper Tribunal on 17th March 2025 by E-filling and served by email on the Respondent on the same date;
c. It was an oversight on her part not to include Mr Cole’s witness statement and the Facebook evidence in the consolidated bundle;
d. Ms Yousaf concludes:
“I apologise for my oversight in failing to include in the agreed consolidated bundle the screenshots of the Facebook evidence and Mr Cole’s witness statement dated 11 March 2025. I also accept that, with hindsight, Mr Cole and I should have followed Counsel’s advice that an up-to-date witness statement would be necessary in this appeal, despite our reservations on this issue. Our decision was made in light of the previous adverse findings against the Appellant which indicated that only the Facebook material was necessary. It would not have presented any difficulty for us to prepare an updated witness statement from the Appellant, particularly given the substantial work undertaken to comply with the remainder of the Upper Tribunal’s Directions.”
Discussion
91. The first question we must ask of ourselves is whether PRH has acted improperly, unreasonably or negligently.
92. In advance of the previously listed hearing, Tribunal records show that Mr Cole, on 17th March 2025, filed a short witness statement and 157 pages of Facebook evidence in three parts. That evidence was not DYI. As Mr Cole states in his witness statement, he had: “highlighted the Appellant’s Posts, Friends and Photos and then saved them as PDFs”. We note that Mr Cole had, in his professional judgement, formed the view that a further witness statement from the appellant himself would not benefit the appellant’s case.
93. In the file transfer note from Mr Cole to Ms Yousaf dated 21st January 2026, Mr Cole states, where relevant, as follows (with our emphasis):
“Previously, I have just done screenshots. These will need updating probably as well. You will note how I did it back in March last year. You will see my witness statement and then the three PDFs of photos, friends and posts. I thought I was the most effective way of showing everything but I’m not sure. The last time I spoke to Shazia she wasn’t aware of my statement of 11th March 2025 and the exhibits, but I assume I must have submitted them to the Tribunal. In fact, yeah, I have just found it, I submitted them to the Tribunal on 17th March via CE file and then emailed them to the Home Office on 17th March. You will note there were some issues with sending them because they were too big, but I think they all got there eventually.”
94. We observe that the existence of Mr Cole’s witness statement from 11th March 2025 and the need for updating evidence was, therefore, drawn directly to Ms Yousaf’s attention.
95. We remind ourselves that Judge Keith’s Direction following the case management hearing on 6th January 2026 refers expressly to:
“a single electronic bundle, paginated, indexed and text searchable and which shall include witness statements comprising all the evidence-in-chief of the two proposed witnesses. (The underlining is our emphasis). The witnesses will be tendered for cross-examination only and examination-in chief will not be permitted, absent a good explanation.” The reference to two witnesses in those Directions is expressly to the appellant and a solicitor (not the instructed solicitor).
96. It is regrettable that in light of Mr Cole’s clear Transfer Note referring to his own witness statement of March the previous year, his own statement did not appear in the consolidated bundle along with updated evidence of what was said to be the appellant’s Facebook account, if that is what was to be relied upon. Oversight is not a good reason given the lengthy history of this appeal, the clear directions of the Upper Tribunal and the Principal Controversial Issues.
97. Furthermore, the failure to provide an up to date witness statement from the appellant referencing his claimed ongoing sur place activity such that it could be cross referenced to the DYI that had been served on the respondent, following the case management hearing on 6th January 2026, is unfortunate. A short time following the case management hearing, conduct of the appeal passed to Ms Yousaf who aligned herself with the view taken by Mr Cole. As Ms Khan herself accepted before the Panel on 24th April 2026, however, because the appellant was relying upon activity that post dated November 2022, evidence of that activity required to be produced.
98. Whilst reference has been made to the Tribunal’s direction that the Appellant’s full DYI need not to be provided to the Tribunal, that is not to the point, for the reasons set out in the Directions of Judge Keith dated 30th April 2026 [12].
99. The question we must ask is whether Ms Yousaf’s conduct was improper, unreasonable and/or negligent. We direct ourselves in accordance with the caselaw above. In addition to the facts that we set out above, we take the following factors into account:
a. Mr Cole had filed and served a witness statement dated 11th March 2025 which contained evidence in pdf format of the appellant’s Facebook account. Neither Party appears to have appreciated this evidence when agreeing the consolidated bundle;
b. Mr Cole had formed the view, and communicated this to Ms Yousaf, that updating evidence from the appellant himself would not assist his case. Mr Yousaf adopted this view and whilst that is, perhaps, a surprising approach and not one favoured by Counsel, it is not a view that can be described as improper, unreasonable or negligent;
c. Although the respondent complains in her application for costs that:
“the Appellant purported to have served his full DYI Facebook Download on 13/02/2026, both he SSHD and the Tribunal were left with the understanding that this constituted the complete disclosure. It was not made clear until the hearing on 24/04 that the full download has in fact no been provided” (para [5])
that is not, in fact, the case.
d. Ms Yousaf, when serving the DYI on the respondent, wrote in her covering email:
“We have provided all relevant material only. For completeness, the first attachment includes sample pages illustrating the numerous folders and sub-folders automatically generated when attempting to download the entirety of a Facebook account. This is intended to demonstrate the complexity and volume of material produced by the download process, and the practical difficulty in isolating only specific posts and interactions.”
The respondent did not, at the time, raise any objection to the express reference to service of “all relevant material only.”
e. PHR and Ms Yousaf have complied meaningfully with the other directions of the Tribunal in preparation of the appeal and have, thereby, evidently engaged with and furthered the litigation process;
f. At the hearing on 26th April 2026, significant progress was made in respect of case management, in particular, meaningful discussion took place in respect of the filing, service and presentation of the Appellant’s DYI file and the use of AI.
100. Drawing all of the above together, whilst we have found the conduct of Ms Yousaf to have been deeply regrettable, we do not find it to have been improper, unreasonable and/or negligent and in our discretion, make no order for costs.
Notice of Decision
101. For the above reasons, the appellant’s asylum claim fails and is dismissed.
102. The appellant’s claim under Article 3 ECHR, which Ms Khan accepted, stood or fell with his asylum claim, also fails and is dismissed.
103. The application for wasted costs is refused.


Judge Keith

Judge of the Upper Tribunal
Immigration and Asylum Chamber
26th August 2026


ANNEX



IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2023-000777


THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE LANE
UPPER TRIBUNAL JUDGE BRUCE

Between

AAS
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:

For the Appellant: Mr Richards
For the Respondent: Mr McVeety, Senior Presenting Officer

Heard at Phoenix House (Bradford) on 15 January 2024


DECISION AND REASONS

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 him. Failure to comply with this order could amount to a contempt of court.
1. The appellant, a male citizen of Iran, was born on 22 May 1988. He entered the United Kingdom clandestinely in June 2016 and claimed asylum. His application was refused and First-tier Tribunal Judge Caswell dismissed his appeal on 30 January 2017. In 2019, the appellant was given a right of appeal following the respondent’s refusal of his further submissions. His subsequent appeal to the First-tier Tribunal was dismissed by First-tier Tribunal Judge Hinds on 7 December 2020. On 13 September 2022, the respondent refused a further fresh protection claim. The appellant’s appeal against that decision was allowed by First-tier Tribunal Judge Cox by a decision dated 9 February 2023. The Secretary of State now appeals, with permission, to the Upper Tribunal.
2. Permission to appeal was granted by Upper Tribunal Judge Macleman:
The appellant was not generally credible or politically motivated, but the tribunal thought at [48] that it had to be taken that he would tell the Iranian authorities that he had been politically active in the UK to support a fabricated claim.
The grounds raise an interesting and perhaps unresolved point. Does authority require that assumption to be made, or should tribunals base their findings on what is likely to happen? Put another way, is a person acting in bad faith entitled to a presumption that they will tell the truth to their national authorities?
The tribunal found in the alternative at [49-51] that although he would not be considered “a committed opponent or someone with a significant profile” he had a “social graph” on Facebook which presented a” real risk of … serious harm … because of a perceived political opinion”. The grounds also raise a debate on the foundation for that conclusion.
3. At the initial hearing, the appellant was represented by Mr Richards. He filed a skeleton argument shortly before the hearing. Mr McVeety, a Senior Presenting Officer, appeared for the Secretary of State.
4. Mr McVeety submitted that the judge had erred by wrongly applying HJ (Iran) [2010] UKSC 31. The judge had wrongly found that an appellant who had sought to project a political profile solely to bolster an asylum claim may legitimately be expected to mitigate a risk of persecution. He also submitted that a correct application of the relevant country guidance would have led to the judge to find that the appellant’s Facebook activities would not have come to the attention of the Iranian authorities. Mr Richards submitted that the judge’s decision was legally sound.
5. We find that the judge has fallen into legal error for the following reasons.
6. First, the parties are agreed that the judge erred in law in his application of HJ (Iran) although Mr Richards submitted that any error was not material. The Secretary of State’s grounds details the error as follows:
Whilst [it is] accepted that anyone with a genuinely held political belief would be protected by HJ Iran, in that they should not be expected to lie about that belief, it is asserted that someone in the appellants position whose activity has been found to be disingenuous and simply used as a method to remain in the UK, cannot be said to be protected in the same way. It is respectfully submitted, that the appellant has been found to have no allegiance to any political party nor any true political profile, as such to state that he has not been politically active if asked, cannot be considered a lie, and would not in any way compromise his position or moral conscience (as per HJ Iran). As it has been found that he did not attend those demonstrations as an activist, rather than someone who wished to remain in the UK for economic reasons, he is not someone who has been politically active in the UK, therefore answering in the negative if asked, cannot be said to be in contravention of HJ Iran.
The judge at [47-48] wrote:
47. … the difficulty with the Respondent’s position becomes apparent. Although, the Appellant would not be expected to volunteer any information about his activities in the UK, if he is asked a direct question, it is not reasonable to expect him to lie (see HJ Iran). If he is asked a direct question about the March 2022 demonstration, then given Judge Hind’s decision, the Appellant can reasonably be expected to say yes, he publicised the event and attended at the protest, but he does not support the views of those present, he was just trying to bolster a fabricated claim for asylum. At this point, he could show the decision by Judge Hinds.
48. If instead of a direct question, the Iranian authorities ask more generally whether the Appellant has been politically active in the UK, he will have to answer yes and once again explain that this was to support a fabricated claim for asylum.
We consider that the question whether an individual, who has been found not to hold the political views he claims to hold or the characteristics he claims to possess, is likely to lie in order to avoid harm is one of fact. Not only did the judge incorrectly find that the appellant should not be expected to lie; he also failed to make a finding as to whether he would, as a matter fact, be likely do so. In many cases, a judge may need to find, depending on the questions which may be asked, whether an incredible appellant would provide such answers to an interrogator as the appellant might consider minimised the likelihood of his being harmed. In other words, the appellant may be found likely to tell lies if doing so reduced the possibility of his being harmed. We find that an inaccurate application of the HJ (Iran) has led the judge find a risk to the appellant where none may exist; the judge has not carried out the more nuanced assessment of what the appellant is likely to do assuming that he may lie to reduce risk.
7. Judge Cox erred by assessing risk on the basis of questions which may never be asked and answers which the appellant will be unlikely to provide. Indeed, at [50] the judge considered that:
If instead of a direct question, the Iranian authorities ask more generally whether the Appellant has been politically active in the UK, he will have to answer yes and once again explain that this was to support a fabricated claim for asylum.
The appellant had not been ‘politically active’ in the United Kingdom in any meaningful sense; rather, he had disingenuously feigned support for a political party which he did not support. In short, the judge should have considered whether the appellant would have answered the question ‘have you been politically active in the United Kingdom?’ in the negative, knowing (as we explain below) that his interrogators would have no reason to believe that he had.
8. Secondly, the judge erred in his application of the relevant country guidance, namely XX (PJAK - sur place activities - Facebook) Iran CG [2022] UKUT 23 (IAC) . The judge set out the headnote of XX in full. At [3] of the headnote, the Upper Tribunal wrote: ‘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.’ The appellant manifestly did not fall into that category of returnee. Consequently, it was not likely that the Iranian authorities would be aware of him at the time of the First-tier Tribunal hearing, the date at which the judge needed to assess risk. The appellant may be investigated by those authorities after he has applied for an ETD (Emergency Travel Document) and that investigation may pre-date the appellant’s arrival in Iran (See XX headnote [4]). The judge at [46] wrote:
Although I share the respondents concerns in respect of the Facebook page, there are some extracts that give risk to potential risks for the Appellant. Firstly and most significantly, on 9 March 2022, the Appellant publicised a protest on 22 March 2022. I note that every year, there is a Kurdish protest on or around Newroz. In my judgement the Iranian authorities are likely to closely monitor this demonstration. It seems to me it would be relatively easy in the days leading up to and after the protest to search via Google (or another search engine) for posts or messages about the demonstration. In these circumstances, there is a reasonable degree of likelihood that his post has already come to the attention of the Iranian authorities.
The judge’s analysis is not supported by XX. The country guidance stresses that ‘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.’ Whilst the judge may be right to note the significance of the celebration of the Kurdish festival of Newroz, it is clear from XX that only known opponents of the regime can, given the resources available, be actively monitored across social media; an individual such as the appellant will in reality only be checked after he has applied for an ETD. However, that is not what the judge found. The judge fails to explain why and how, given the limitations on its resources highlighted in XX, the Iranian state would be able to identify the appellant as an opponent from links to a Newroz celebration. It is possible, following XX, that the Iranian authorities would first become aware of the appellant after he applies for an ETD by which time it is likely that he will have deleted his Facebook account. We find that for the judge to find that the appellant would already have come to the attention of the Iranian authorities before he has applied for an ETD was contrary to country guidance and consequently wrong in law, as the Secretary of State’s grounds assert.
9. The judge noted [45] the respondent’s view (supported by XX - see headnote [9]) that the appellant could be expected to help himself by deleting his Facebook account before applying for an ETD. He made no specific finding as to whether the appellant will delete the account, presumably because doing so was not necessary to his reasoning that (i) the Iranian authorities would already have investigated the appellant’s account and; (ii) the threat to the appellant lay in the answers he would provide at interrogation. For the reasons we have given, both aspects of that reasoning are legally flawed.
10. Thirdly, at [50], the judge wrote:
Overall, although the Appellant has not established that the Iranian authorities may consider him as a committed opponent or someone with a significant profile, his ‘social graph’ is such that there is nonetheless a real risk that they are aware of his political activities, and in particular his Facebook page, given that he publicised the demonstration in March 2022.
11. The phrase ‘social graph’ is taken from XX (‘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.’). We find that we agree with the respondent that, on the evidence, the judge misapplied the country guidance by finding that the appellant would appear on any ‘social graph’ of interest to the Iranian authorities. We note also the judge’s use of the present tense (‘they are aware of his political activities’); as we have noted above, nothing in XX suggests that would be the case.
12. We find that the judge has erred in law such that his decision should be set aside. We consider that the decision should be remade following a resumed hearing in the Upper Tribunal and have made Listing Directions accordingly. None of the findings of fact of Judge Cox shall stand. The earlier findings of Judges Caswell and Hinds shall stand.
Notice of Decision
The decision of Judge Cox is set aside. None of the findings of fact shall stand. The decision will be remade in the Upper Tribunal following a resumed hearing.


C. N. Lane

Judge of the Upper Tribunal
Immigration and Asylum Chamber


Dated: 15 January 2024