Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER
Case No: UI-2024-001190

First-tier Tribunal No: PA/55036/2023
IA/00858/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 26 June 2025

Before

UPPER TRIBUNAL JUDGE MANDALIA

Between

AA
(ANONYMITY DIRECTION MADE)
Appellants
and

Secretary of State for the Home Department
Respondent

Representation
For the Appellant: Ms H Cosgrove, Solicitor, Latta & Co
For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer

Heard at Edinburgh Tribunal Centre on 28 January 2025
Decision and Reasons
An anonymity direction was made by the First-tier Tribunal (“the FtT”). As the appeal raises matters regarding a claim for international protection, it is appropriate for an anonymity direction to be made. Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.
Introduction
1. The appellant is a national of Iran and of Kurdish ethnicity. He arrived in the United Kingdom on 16 June 2022 and claimed asylum on 17 June 2022. His claim was refused by the respondent on 20 July 2023. The appellant’s appeal was dismissed by First-tier Tribunal (“FtT”) Judge Cowx (“the FtT judge”) For reasons set out in a decision promulgated on 20 February 2024.
2. The appellant was granted permission to appeal to the Upper Tribunal by FtT Judge Dainty on 19 March 2024. The appeal was heard by Upper Tribunal Judge Bruce on 5 September 2024 and for reasons set out in an ‘error of law’ decision issued on 25 October 2024, she set aside the decision of the FtT to the extent identified in her decision. She directed that the narrow issue of whether the appellant would be at risk on return to Iran for reason of his sur place activity alone, is to be determined by the Upper Tribunal.
3. It is in that context that the appeal was listed for hearing before me to remake the decision in the appeal.
The Background
4. There are two limbs to the appellant’s claim for international protection. First, he claims that he will be at risk upon because he had become involved in distributing leaflets on behalf of the KDPI, and that came to the attention of the Iranian authorities when another individual involved was arrested. Second, the appellant claims he has a well founded fear of persecution in Iran for reasons of his imputed political opinion, because since his arrival in the UK he has been involved in anti-regime protests outside the Iranian Embassy. He has also posted material online. This second limb, I refer to as the appellant’s sur place activities.
5. As far as the first limb of the appellant’s claim is concerned, the FtT judge was not satisfied that there was any truth in the story presented by the appellant. The FtT judge rejected the claim made by the appellant. The appellant did not challenge the findings made or the conclusions reached by the FtT judge.
6. As far as the appellant’s sur place activities are concerned, the FtT judge found that the appellant’s sur place activities are not genuine but had been adopted as a means of defeating his removal. The appellant applied for, and was granted permission to appeal to the Upper Tribunal regarding the judge’s analysis of the country guidance background material relating to the risk upon return by reason of the appellant’s sur place activities.
7. The appeal was heard by Upper Tribunal Judge Bruce and the decision of the FtT judge was set aside by her for reasons set out in her decision issued on 25 October 2024. This decision must therefore be read alongside the error of law decision of Upper Tribunal Judge Bruce. She directed that the decision will be remade in the Upper Tribunal. She said:
“15. I am not satisfied that remittal de novo is the right course of action. As I note above, the Tribunal rejected the Appellant’s historical claim to have come to the adverse attention of the Iranian authorities prior to his departure from that country, and there is nothing in the grounds as argued that is capable of infecting that part of the reasoning. I am therefore satisfied that it would be appropriate to retain the matter in the Upper Tribunal for the decision to be remade on the narrow issue of whether the Appellant would be at risk for reasons of his sur place activity alone.”
8. At paragraph [16] of her decision, Upper Tribunal Judge Bruce noted the FtT Judge did not believe that the appellant’s attendance at demonstrations, and his online activity, was motivated by anything other than a cynical attempt to stay in the country. She said that in its analysis of the appellant’s motivations, the FtT judge had failed to ask himself whether it is reasonably likely that this young Kurdish man would be politically opposed to the killing and imprisonment of other young Kurds. She was satisfied that the finding regarding the appellant’s motivation for his sur place activities should also be revisited by the Upper Tribunal.
The Re-Hearing of the Appeal Before Me
9. In advance of the hearing before me, on 15 January 2025, the appellant’s representatives applied for permission for additional evidence to be lodged in line with rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008. Specifically, the applicant relied upon additional evidence in relation to his sur place activities to demonstrate he has continued his sur place political activities following the hearing before the First-tier Tribunal. I was provided with what is described as the ‘Appellant’s Supplementary Bundle’ that comprises of some 62 pages. Mr Mullen, quite properly in my judgment, did not object to the appellant’s reliance upon the supplementary bundle.
10. The appellant attended the hearing before me and gave evidence with the assistance of a Kurdish Somali interpreter. He adopted his witness statement dated 15 January 2025 as being true and correct. He continues to rely upon the matters set out in his previous statements dated 2 November 2022 and 2 October 2023. He confirms that at the time of his appeal before the FtT he had attended three demonstrations in the UK (11 June 2023, 16 September 2023 and 21 January 2024). He has now attended a further three demonstrations on 25 February 2024, 29 September 2024 and 12 January 2025, outside the Iranian Embassy in London. As before, he took part by holding up banners and posters and by chanting slogans with the other demonstrators. He claims that at some of the demonstrations, media outlets were present and there had been people within the Embassy taking photos or videos of the demonstrators.
11. He states that he has also continued his activities on his Facebook account that has a ‘public profile’ and is in his own name. He states that as well as posting content against the Iranian authorities, he ‘posts’ about his own attendance at the demonstrations and to encourage others to attend. He claims it is his intention to continue with his political activities because he wants the world to know how badly “we are suffering at the hands of the authorities” and in the hope that something can be done to topple the Iranian government.
12. In his oral evidence, when asked by Ms Cosgrove why he had got involved in political activity he said that “we are intending to get Kurdistan autonomous.” Asked if there were any other reasons, he said that it was because it has taken many years and Persians are trying to kill them. He said they are participating in demonstrations to get autonomy and to prevent Kurdish youths being killed. Ms Cosgrove asked the appellant why he intends to continue with his political activity. He said that he would never stop and will continue, because “we are receiving a lot of torture and harassment from the Iranian regime.” When pushed and asked whether there are any particular events that have caused the appellant to get involved, he said that there are many things – “Massar Amini and many political activists that were executed in Iran.”
13. In cross-examination, the appellant confirmed he had not attended any demonstrations in Iran. He said that by attending demonstrations now he is trying to make others aware of the suffering of the Kurds. He said “we would like everyone to know how many hundreds of Kurds are being executed on a daily basis.” He said that they are trying to motivate Kurds and children to rise up against the regime. As to his Facebook account, the appellant said that his ‘profile’ is a public one that is visible to, and open to everyone to read. He was referred to the post regarding the demonstration he attended on 12 January 2025 that has ‘249 comments’. He said that the comments were made by a combination of people that were known to him and by strangers – “mostly strangers.” The comments made were “mostly supportive.” Mr Mullen asked the appellant whether there were any ‘threats’ made in the comments. The appellant said that he is illiterate and would be unable to read them so he does not know.
14. By way of clarification I referred the appellant to the photographs that appear on his Facebook ‘post’ regarding the demonstration on 12 January 2025. He explained that in one photographs he is holding a ‘Kurdistan flag,’ in another he is holding a photograph of Ayatollah Khamenei with an execution rope and in another he is holding a photograph of Mahsa Amini. The photographs are of a demonstration outside the Iranian Embassy and the photograph was taken so everyone would know that the demonstration was held outside the Embassy. I asked the appellant about his ‘post’ regarding the demonstration on 12 January 2025 which is in English despite his claim to be illiterate. The appellant said that he copied the post from his friend. He explained that his friend had put a ‘post’ on his Facebook account that the appellant had then copied and ‘posted’ onto his own Facebook account. He said that the ‘posts’ on his Facebook account that appear in English are generally copied from his friends’ Facebook accounts because he is illiterate. There are other ‘posts’ that are in his own words but that his friends translated into English for him.
15. In re-examination, the appellant said that during the demonstrations, for the majority of time, he was facing the Iranian Embassy building.
16. I went on to hear submissions from both Mr Mullen and Ms Cosgrove that are a matter of record and it serves no purpose to burden this decision with a full recital of those submissions. In summary, Mr Mullen submits the appellant is not a sophisticated individual, and that even to the lower standard, he has not established that any political opinion is sincere. He claims to be illiterate and relies on others without any real incite into what is published on his Facebook account. He is not someone who had a profile in Iran, and his attendance at demonstrations in the UK is limited to simple attendance. He will, Mr Mullen submits, do or say anything to increase his prospect of success in his claim.
17. Ms Cosgrove adopted the skeleton argument that was before the FtT. She submits the Tribunal has evidence of the appellant’s attendance at demonstrations and evidence of his activity on his Facebook account, which has a public setting with over 4800 ‘friends’. He first ‘posted’ on his account on 15 January 2023, and Judge Bruce has commented upon the reasons why someone like the appellant may wish to engage in political activity following the murder of Massar Amini. She submits I should find that the appellant has carried out his political activities in good faith and his motivation is entirely plausible. Ms Cosgrove submits that in AB and Others (internet activity – state of evidence) Iran [2015] UKUT 00257 (IAC), the Upper Tribunal said, at [467], that the Iranian authorities do not seem to be in the least concerned with the motives of the person making a claim but if it is interested it makes the situation worse, not better because seeking asylum is being rude about the government of Iran and whilst that may not of itself be sufficient to lead to persecution it is a point in that direction. Ms Cosgrove accepts that in AB and Others, the Upper Tribunal said: “The material put before the tribunal did not disclose a sufficient evidential basis for giving country or other guidance upon what, reliably, can be expected in terms of the reception in Iran for those returning otherwise than with a “regular” passport in relation to whom interest may be excited from the authorities into internet activity as might be revealed by an examination of blogging activity or a Facebook account.”
18. She submits the appellant’s case can be distinguished from the decision in BA (Demonstrators in Britain – risk on return) CG [2011] UKUT 36. She submits that in HB (Kurds) Iran CG [2018] UKUT 430 (IAC), the Upper Tribunal confirmed that since 2016, the Iranian authorities have become increasingly suspicious of, and sensitive to, Kurdish political activity. Those of Kurdish ethnicity are thus regarded with even greater suspicion than hitherto and are reasonably likely to be subjected to heightened scrutiny on return to Iran. The Tribunal found that even ‘low-level’ political activity, or activity that is perceived to be political, if discovered, involves the same risk of persecution or Article 3 ill-treatment. The Iranian authorities demonstrate what could be described as a ‘hair-trigger’ approach to those suspected of or perceived to be involved in Kurdish political activities or support for Kurdish rights. By ‘hair-trigger,’ it means that the threshold for suspicion is low and the reaction of the authorities is reasonably likely to be extreme.
19. Ms Cosgrove submits there is background material that establishes that the Iranian authorities do monitor the activity of those overseas, and that they collect data used to identify individuals. The caselaw demonstrates a pinch point. The authorities will be aware of the details of the appellant including where the appellant has travelled from. He is a young male and when put in context, the Iranian authorities will be able to use information to identify the appellant. The technical advancements in technology and use of cameras is such that someone facing the Embassy at a demonstration is capable of being identified, including by way of facial recognition technology. The appellant will, Ms Cosgrove submits, be at risk on return and his appeal should be allowed.
Remaking the Decision
20. The appellant has appealed under s82(1) of the Nationality, Immigration and Asylum Act 2002 against the decision of the respondent to refuse his claim for asylum and humanitarian protection. The appellant claims to be a refugee whose removal from the UK would breach the United Kingdom’s obligations under the 1951 Refugee Convention.
21. The appellant made his claim for international protection on 17 June 2022. Sections 31-36 of the Nationality and Borders Act 2022 only apply in an appeal where the claim for international protection was made after 28 June 2022, and do not apply here. The appellant therefore bears the burden of proving that he falls within the definition of “refugee.” In essence, the appellant has to establish that there are substantial grounds for believing, more simply expressed as a ‘real risk,’ that he is outside of his country of nationality, because of a well-founded fear of persecution for a refugee convention reason and he is unable or unwilling, because of such fear, to avail himself of the protection of that country.
22. It is uncontroversial that the appellant is an Iranian national, of Kurdish ethnicity. The appellant’s claim regarding the events that caused the appellant to leave Iran has already been considered and the adverse findings previously made, are preserved. There is nothing in the evidence before me that undermines the findings previously made that, even to the lower standard, the appellant has failed to establish that he is at risk as claimed, as a result of events that took place whilst he was in Iran.
23. The appellant’s evidence, which I accept, is that he had not attended any demonstrations whilst he was in Iran. The appellant had not, on the findings made, come to the adverse attention of the Iranian authorities in Iran and had no particular profile that would mean that he was of interest to the authorities when he left Iran.
24. In considering the evidence of the appellant, I recognise that there may be a tendency by a witness to embellish evidence. I also remind myself that if a Court or Tribunal concludes that a witness has lied about one matter, it does not follow that he/she has lied about everything. A witness may lie for many reasons, for example, out of shame, humiliation, panic, fear, distress, confusion, and emotional pressure.
25. As set out in the decision of Upper Tribunal Judge Bruce, the issue is whether the appellant would be at risk on return by virtue of his sur place activity. For the avoidance of doubt, I have considered the appellant’s sur place activities in the UK holistically, both by reference to the activity on his Facebook account and by reference to his attendance at demonstrations.
26. In reaching my decision I have had regard to all the evidence before me, whether or not it is referred to. I have had regard, in particular to the evidence set out in the bundles before me. I have heard oral evidence from the appellant, and I have had the benefit of seeing his evidence tested in cross-examination. The appellant is himself illiterate and it is clear that the appellant has ‘posted’ comments on his Facebook account and ‘posted’ photographs on that account of his attendance at demonstrations.
27. I begin by considering the appellant’s political opinion. It is useful to begin by considering the appellant’s claim that his sur place activities represent his genuinely held beliefs. I have had regard to the observations made by Upper Tribunal Judge Bruce at paragraph [16] of her ‘error of law’ decision, and I have considered for myself the appellant’s motivations for attendance at demonstrations in the UK and his online activities. Unlike Judge Bruce I have had the opportunity of hearing the evidence of the appellant and considering the wide canvas of evidence before me. I have considered the evidence of the appellant as set out in his witness statements and his oral evidence before me regarding his Facebook account and his attendance at demonstrations.
28. The appellant claims that he has become politically active in the UK and uses his Facebook account, which is public, “to get autonomy and to prevent Kurdish youth being killed.” Although he is illiterate, he ‘posts’ on his Facebook account, because he wants to make everyone aware of the suffering of the Kurds and the demonstrations he has attended outside the Iranian Embassy. I accept the appellant has attended demonstrations including demonstrations outside the Iranian Embassy both before and since his appeal before the FtT. I also accept he has posted photographs of his attendance at the demonstrations on his Facebook account.
29. There is however no reliable evidence before me as to the what the demonstrations were about or why the appellant had chosen to attend those particular demonstrations. The appellant’s evidence about the demonstrations is very general. In his witness statement dated 2 October 2023 that was before the FtT, the appellant claims that since making his statement dated 2 November 2022, the appellant had been “politically active in the United Kingdom”. He states he opened a Facebook account at around the end of 2022, initially to keep in contact with friends. He started seeing posts such as photos and videos about teenagers, adults and even children being targeted by the Iranian authorities. He decided it was a good thing to start sharing that on his Facebook account. He claims he attended his first demonstration outside the Iranian Embassy in London on 11 June 2023, demonstrating against the brutality of the Iranian government towards demonstrators in Iran. He states that he had found out the situation had got much worse since he had left Iran. He refers to another demonstration he attended on 16 September 2023 at the Glasgow Royal Concert Hall, to mark the one year anniversary of the killing of Zhini Amini.
30. The FtT judge states in his decision that the appellant had participated in three demonstrations. The appellant has provided further evidence of attendance at demonstrations since the decision of the FtT judge. I accept the appellant has attended demonstrations as he claims. Although that is on the face of it indicative of a political opinion, it is not of itself evidence that the appellant’s sur place activities represent his genuinely held beliefs. I turn to the wider canvass of evidence before me in the form of what he states in his witness statements and oral evidence, and his activity on his Facebook account.
31. I have been provided with a copy of the ‘profile page’ of the appellant’s Facebook account. It is in the name of the appellant and the ‘profile picture’ is of the appellant standing with another individual, attending a demonstration outside the Iranian Embassy. He is said to have “4.8k friends.” There is evidence before me that the appellant has chosen a “Public” setting for his default audience, albeit it is clear that the appellant “..can always change the audience for a specific post, story or reel” and that he can change the “public” setting at any time. The appellant has provided a download of the activity on his Facebook page (Pages 46 to 62 of the Supplementary Bundle) that was generated on 15 January 2025, and contains the data requested from 16 January 2022 to 15 January 2025. The first post by the appellant on his Facebook account is dated 15 January 2023.
32. The appellant’s account of why and how he became involved in his sur place activities is difficult to reconcile. The appellant arrived in the UK in June 2022. The prominent death of Mahsa Amini occurred in September 2022, three months after the appellant’s arrival. The appellant made a statement in support of his claim for international protection on 2 November 2022. The focus of the statement is understandably on the core of the appellant’s account but there is no reference whatsoever to the appellant having concerns regarding human rights abuses in Iran, Kurdish autonomy or any deterioration in the situation faced by young Iranians, or the Kurdish community. The first reference to the appellant engaging in sur place activities came when the appellant’s representatives sent some evidence to the respondent in June 2023 regarding the appellant’s attendance at a demonstration. The appellant’s representatives also sent what are described as ‘Amendments and additions to substantive interview” dated 7 July 2023 to the respondent in which the appellant clarified that he “now considers himself to be a sympathiser of the KDPI and he has grown to like the party”, without any further elaboration. Again, over a year after the appellant’s arrival in the UK and several months after the death of Mahsa Amini and following his attendance at a demonstration on 11 June 2023, the appellant provided no meaningful evidence of any insight into what had been going on in Iran and why he had become engaged in activities against the Iranian regime. Instead, on 7 July 2023, the appellant relied upon his support for the KDPI arising from the events that he relied upon as having occurred in Iran. As I have already noted that aspect of the appellant’s claim was comprehensively rejected by the FtT judge who was not satisfied that there is any truth to the story presented by the appellant as the basis for his alleged fear to be at risk upon return to Iran.
33. Furthermore a careful review of the download of the appellant’s activity on his Facebook account cannot be reconciled with his evidence regarding his sur place activities. The appellant appears to have opened a Facebook account in late 2022 (it seems the end of November 2022), several months after the death of Mahsa Amini, but he did not post anything on his Facebook account at all until 15 January 2023. A translation of the appellant’s first ‘post’ on his Facebook account on 15 January 2023 establishes that the ‘post’ concerns an Iranian journalist, Vida Rabani, who has been handed, inter alia, a seven-year prison sentence for removing her headscarf. Another ‘post’ on 15 January 2023 concerns the simultaneous execution of three brothers who were involved in protests in Balochistan. A further ‘post’ on 16 January 2023 concerns an incident involving a 16-year old who was working as a Kolber in the mountains in January 2022. There is then a gap in any activity until June 2023 when the appellant ‘posted’ about his attendance at a demonstration on 11 June 2023, which he claims was a demonstration “against killing, executing and taking Kurdish children in Iran to the Republic of Iran and cursing its co-workers”.
34. There is nothing in the record of the download of the appellant’s Facebook activity that supports his claim in paragraph [4] of his witness statement dated 2 October 2023 that he opened a Facebook account around the end of 2022 because lots of the friends he made in the United Kingdom were using it, and that he initially used his account to keep in contact with friends and share things with them. There is nothing in the evidence before me to demonstrate that the appellant has used his Facebook account, particularly at the beginning, to keep in contact with friends and share things with them. In his witness statement he also claims he started seeing other things on Facebook from back home, seeing posts such as photos and videos about teenagers, adults and even children being targeted by the Iranian and that he decided it was a good thing to start sharing that on his Facebook account so that more and more people would know about the Iranian authorities.
35. There are infrequent posts on the appellant’s Facebook account but all directed to events in Iraq and the demonstrations the appellant has attended, without any evidence of the appellant using his Facebook account to maintain regular contact with his friends. A review of the appellant’s activity paints a clear picture of an account that is simply used by the appellant to paint a picture of political activity with little evidence that the appellant genuinely uses his Facebook account as a form of social media to keep in touch with friends.
36. In his oral evidence before me the appellant initially claimed that he had got involved in political activity in the UK because “we are intending to get Kurdistan autonomous’ and then said that “it has been may years that the Persians are trying to kill us.” He went on to say that “we are participating in demonstrations to get autonomy and to prevent Kurdish youth being killed any more.” There is scant evidence of the appellant genuinely espousing such views of his own on his Facebook account, albeit there are vague references in his Facebook posts to opposition to the Iranian regime and other material that highlights human rights violations by the regime. I accept the appellant can be seen in the photographs that he has posted of his attendance at demonstrations including a photographs of the appellant holding a picture of the religious leader.
37. In XX (PJAK - sur place activities - Facebook) Iran CG [2022] UKUT 00023 (IAC), the Upper Tribunal provided some general guidance on social media evidence:
“127. 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.
128. It is easy for an apparent printout or electronic excerpt of an internet page to be manipulated by changing the page source data. For the same reason, where a decision maker does not have access to an actual account, purported printouts from such an account may also have very limited evidential value.
38. I have had regard to all the extracts from the appellant’s Facebook account that are relied upon by the appellant. The production of the material in the format that it appears in the appellant’s bundle is not entirely helpful. Some of the posts are in English and some are in Kurdish without any certified translation. If the download of the appellant’s Facebook account that is at pages 46 to 62 of the supplementary bundle is a comprehensive and complete record of the appellant’s activity, including the ‘full timeline of social media activities’, which would be readily available, his activity between January 2023 and January 2025 is limited.
39. There is scant evidence before me as to how the appellant operates his Facebook account. On his own account, the appellant is illiterate and he has to rely upon what is ‘posted’ by others other’s to ‘post’ material on his Facebook account. Those that assist the appellant or who he has particularly close ties with because he shares their views, have not come forward to provide evidence to support the appellant’s claims. There is little evidence of the appellant either ‘liking’ or ‘sharing’ ‘posts’ from the accounts of others.
40. Standing back and considering all the evidence before me, although I accept there is evidence of the appellant having a Facebook account, and there are photographs of the appellant having attended demonstrations, in my judgment the simple fact of attendance at demonstrations does not on its own demonstrate a real commitment to the Kurdish cause. I find the appellant’s evidence regarding his support for Kurdish autonomy is very vague and in the most general terms. Although I am prepared to accept that some of the material posted on the appellant’s Facebook account is critical of the Iranian authorities, I find, that the appellant’s sur place activities are an attempt to bolster what was a weak international protection claim.
41. Taking all the evidence before me in the round, the appellant has in my judgement failed to establish, even to the lower standard, that his posts on Facebook and his attendance at demonstrations reflect his genuine political opinion or his political beliefs. They are in my judgement a cynical attempt by the appellant to bolster his claim for international protection.
42. The ultimate question however is whether the behaviour of the appellant, no matter how cynical or manufactured, would result in a risk of persecution on return; if so then he may establish his right to protection. Having established the particular behaviour, the next question to be asked is whether that behaviour does place the appellant at risk.
43. There is relevant country guidance that I have considered in reaching my decision. The treatment of country guidance as a presumption of fact means that it is for the appellant, who seeks to persuade the Tribunal to depart from it, to adduce the evidence justifying that departure. Ms Cosgrove refers to a wealth of background material identified in paragraph [10] of the appellant’s ‘Appeal Skeleton Argument’, and a ‘Key Passage Index’ which she submits, specifically relates to the monitoring of demonstrations outside the Iranian Embassy. The ‘Key Passage Index’ draws upon a range of material. There is reference in an analysis by The Washington Institute for Ear East Policy dated 13 September 2023 to attacks and pressure in Iranian Kurdish parties intensifying after protests in Iran following the death of Mahsa Amini. There is evidence that the authorities ramped up repression on their civil society as the one year anniversary of that death approached. Human Rights Watch reported that the Iranian authorities increased their crackdown on peaceful dissent and expression through intimidation, arrests, prosecutions, and trials of activists, artists, dissidents, lawyers, academics, students, and family members of those who were killed during the 2022 protests. There is evidence that according to statistics compiled by the Hengaw Organization for Human Rights, during the month of September 2023, at least 463 individuals were detained by Iranian government security forces across the country, representing a 75% increase compared the previous month of August.
44. Ms Cosgrove refers to a Refugee Review Tribunal of the Government of Australia advice dated 15 April 2010, in which it was said that it is likely that the Iranian authorities would be aware of protests against the Iranian regime by overseas Iranian communities. A number of sources claim that the Iranian authorities monitor the activities of overseas Iranians via social network sites such as Facebook and YouTube and by directly filming overseas protests. Ms Cosgrove relies upon an article published in a British newspaper (The Times), in 2009 which described how an unmanned video recorder on the rooftop of the Iranian Embassy in London appeared to record the faces of a large crowd of protestors who had gathered there. According to the “2009 Wall Street Journal”, German intelligence had also identified 'Iranian intelligence agents' trying to intimidate protesters in Germany by videotaping them. The advice set out by the Refugee Review Tribunal, Australia, dates back to April 2010 and where it is at odds with what is set out in the country guidance decisions issued by the Upper Tribunal, I prefer the Country Guidance to which I have referred in this decision that is based upon background material from a range of credible sources.
45. The conclusions reached by the Upper Tribunal in XX (PJAK, sur place activities, Facebook) (CG) are summarised in the headnotes:
“The cases of BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC); SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC); and HB (Kurds) Iran CG [2018] UKUT 00430 continue accurately to reflect the situation for returnees to Iran. That guidance is hereby supplemented on the issue of risk on return arising from a person’s social media use (in particular, Facebook) and surveillance of that person by the authorities in Iran.
Surveillance
1) There is a disparity between, on the one hand, the Iranian state’s claims as to what it has been, or is, able to do to control or access the electronic data of its citizens who are in Iran or outside it; and on the other, its actual capabilities and extent of its actions. There is a stark gap in the evidence, beyond assertions by the Iranian government that Facebook accounts have been hacked and are being monitored. The evidence fails to show it is reasonably likely that the Iranian authorities are able to monitor, on a large scale, Facebook accounts.    More focussed, ad hoc searches will necessarily be more labour-intensive and are therefore confined to individuals who are of significant adverse interest.   The risk that an individual is targeted will be a nuanced one. Whose Facebook accounts will be targeted, before they are deleted, will depend on a person’s existing profile and where they fit onto a “social graph;” and the extent to which they or their social network may have their Facebook material accessed.
2) The likelihood of Facebook material being available to the Iranian authorities is affected by whether the person is or has been at any material time a person of significant interest, because if so, they are, in general, reasonably likely to have been the subject of targeted Facebook surveillance. In the case of such a person, this would mean that any additional risks that have arisen by creating a Facebook account containing material critical of, or otherwise inimical to, the Iranian authorities would not be mitigated by the closure of that account, as there is a real risk that the person would already have been the subject of targeted on-line surveillance, which is likely to have made the material known.
3) Where an Iranian national of any age returns to Iran, the fact of them not having a Facebook account, or having deleted an account, will not as such raise suspicions or concerns on the part of Iranian authorities.
4) A returnee from the UK to Iran who requires a laissez-passer, or an emergency travel document (ETD) needs to complete an application form and submit it to the Iranian embassy in London. They are required to provide their address and telephone number, but not an email address or details of a social media account. While social media details are not asked for, the point of applying for an ETD is likely to be the first potential “pinch point, ” referred to in AB and Others (internet activity – state of evidence) Iran [2015] UKUT 00257 (IAC).   It is not realistic to assume that internet searches will not be carried out until a person’s arrival in Iran. Those applicants for ETDs provide an obvious pool of people, in respect of whom basic searches (such as open internet searches) are likely to be carried out.
Guidance on Facebook more generally
5) There are several barriers to monitoring, as opposed to ad hoc searches of someone’s Facebook material. There is no evidence before us that the Facebook website itself has been “hacked,” whether by the Iranian or any other government. The effectiveness of website “crawler” software, such as Google, is limited, when interacting with Facebook. Someone’s name and some details may crop up on a Google search, if they still have a live Facebook account, or one that has only very recently been closed; and provided that their Facebook settings or those of their friends or groups with whom they have interactions, have public settings.   Without the person’s password, those seeking to monitor Facebook accounts cannot “scrape” them in the same unautomated way as other websites allow automated data extraction.    A person’s email account or computer may be compromised, but it does not necessarily follow that their Facebook password account has been accessed.
6) 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.
Guidance on social media evidence generally
7) Social media evidence is often limited to production of printed photographs, without full disclosure in electronic format.   Production of a small part of a Facebook or social media account, for example, photocopied photographs, may be of very limited evidential value in a protection claim, when such a wealth of wider information, including a person’s locations of access to Facebook and full timeline of social media activities, readily available on the “Download Your Information” function of Facebook in a matter of moments, has not been disclosed.
8) It is easy for an apparent printout or electronic excerpt of an internet page to be manipulated by changing the page source data. For the same reason, where a decision maker does not have access to an actual account, purported printouts from such an account may also have very limited evidential value.
9) In deciding the issue of risk on return involving a Facebook account, a decision maker may legitimately consider whether a person will close a Facebook account and not volunteer the fact of a previously closed Facebook account, prior to application for an ETD: HJ (Iran) v SSHD [2011] AC 596. Decision makers are allowed to consider first, what a person will do to mitigate a risk of persecution, and second, the reason for their actions.    It is difficult to see circumstances in which the deletion of a Facebook account could equate to persecution, as there is no fundamental right protected by the Refugee Convention to have access to a particular social media platform, as opposed to the right to political neutrality.   Whether such an inquiry is too speculative needs to be considered on a case-by-case basis.”
46. The respondent’s CPIN; Iran: Social media, surveillance and sur place activities (March 2022), 22 March 2022, post-dates the decision of the Upper Tribunal in XX (PJAK, sur place activities, Facebook) (CG) and includes information set out in a 2020 report by the Swedish Security Service regarding the monitoring of critics and targets in Sweden linked to opposition groups considered by Iran as being or potentially being destabilising to the regime. The CPIN refers to the monitoring of on-line activity abroad and states, at paragraph [6.4.1], that the Freedom on the Net 2021 report said that it remains unclear how thoroughly Iranian authorities can monitor the content of messages on foreign social media platforms, given that some apps encrypt their messages. All platforms and content hosted in Iran are subject to arbitrary requests by various authorities to provide more information on their users. The appellant’s Facebook account is not hosted in Iran, and so it has the protection offered by international counterparts. At paragraph [6.4.4] it is said that Freedom on the Net 2021 also indicated, 'State hackers often launch cyberattacks against activists and campaigners, including those in the diaspora. On the findings I have made, the appellant is not known to the Iranian authorities as an activist, campaigner or political opponent.
47. I have carefully considered the background material that is now relied upon by the appellant, however, on my finding that the appellant’s sur place activities, including the material on his Facebook account, do not reflect his genuine political opinion or his political beliefs, there is, in principle, no reason the appellant should not delete his Facebook account and not volunteer the fact of a previously closed Facebook account, prior to any application for an ETD. As the Tribunal confirmed in XX (PJAK, sur place activities, Facebook) (CG), at [103], the closure of a Facebook account 30 days before an ETD is applied for, will, make a material difference to the risk faced by someone returning to Iran, who has a “critical” Facebook account. The timely closure of an account neutralises the risk consequential on having had a “critical” Facebook account. For reasons that I will return to, there is no credible evidence before me to establish, even to the lower standard, that the appellant’s Facebook account has been specifically monitored, or will be, prior to closure.
48. The deletion of the appellant’s Facebook account, would not on the findings I have made, equate to persecution. As the appellant’s sur place activities do not represent any genuinely held beliefs, the appellant would not be expected to lie when questioned. The deletion of the Facebook account will not therefore contravene the principles established and set out in HJ (Iran) v SSHD [2011] AC 596. The closure of the Facebook account will have the effect of removing all posts he has created.
49. I have considered whether, to the lower standard, the appellant’s Facebook account might already have already come to the attention of the Iranian authorities. I have considered whether the appellant’s Facebook account might, to the lower standard, have been targeted and whether that may place the appellant at risk before his Facebook account is deleted. In XX (PJAK, sur place activities, Facebook) (CG), the Tribunal concluded that 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 such a case, 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. 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.
50. I have had regard to the appellant’s existing profile and where he fits onto a “social graph” and the extent to which he or his social network may have their Facebook material accessed. There is no evidence before me that even begins to suggest the appellant’s Facebook account has previously been hacked. The appellant has not applied for an ETD and so there will have been no cause for a search to have been conducted for any social media activity. If his appeal is dismissed the appellant will have sufficient opportunity to delete his account before any application for an ETD. I accept some of the material posted on the appellant’s Facebook account is critical of the Iranian authorities. The appellant has provided extracts of his ‘posts’ on his Facebook account and photographs that he has shared on his Facebook account. The appellant is said to have in excess of 4800 ‘friends’ on his Facebook account, but he has not provided evidence of his timeline of his ‘activities’, ‘comments’ and ‘likes’, if indeed there are any.
51. There is no evidence before me that any of his ‘friends’ have a significant profile that may be of interest to the Iranian authorities. There is no evidence before me to establish whether the appellant’s ‘friends’ have ‘public’ or ‘private’ settings. The appellant does not identify any post or photograph connecting the appellant to any individual that is of interest to the Iranian authorities or that has some form of official role, or profile. I find therefore that the appellant does not have a profile that would put him at greater risk than any other Kurd returning to Iran as a failed asylum seeker.
52. Ms Cosgrove submits the appellant’s circumstances can be distinguished to that in BA (Demonstrators in Britain – risk on return) CG [2011] UKUT 36 because here, the appellant is of Kurdish ethnicity. I reject that distinction. BA was an Iranian national who had entered the UK with a student via. BA had participated in five demonstrations outside the Iranian Embassy in London. I accept he was not of Kurdish ethnicity, but that is not to say that in its consideration of the evidence and the guidance provided, the Tribunal did not have regard to those of Kurdish ethnicity. The Tribunal had regard to the relevant country guidance cases at the time. The Tribunal said, at [10] that it had taken cognisance of the judgment of the Court of Appeal in SS (Iran) [2008] EWCA Civ 310, an appeal by an Iranian of Kurdish ethnicity who claimed to have been involved with Komala, a Kurdish political party, in Iran. In reaching its decision, the Upper Tribunal clearly had regard to the background in that case, which was relevant to its decision.
53. In BA, the Tribunal said it was persuaded that the Iranian authorities attempt to identify persons participating in demonstrations outside the Iranian Embassy in London. However, the Tribunal held:
“1. Given the large numbers of those who demonstrate here and the publicity which demonstrators receive, for example on Facebook, combined with the inability of the Iranian Government to monitor all returnees who have been involved in demonstrations here, regard must be had to the level of involvement of the individual here as well as any political activity which the individual might have been involved in Iran before seeking asylum in Britain.
2 (a) Iranians returning to Iran are screened on arrival. A returnee who meets the profile of an activist may be detained while searches of documentation are made. Students, particularly those who have known political profiles are likely to be questioned as well as those who have exited illegally.
(b) There is not a real risk of persecution for those who have exited Iran illegally or are merely returning from Britain. The conclusions of the Tribunal in the country guidance case of SB (risk on return -illegal exit) Iran CG [2009] UKAIT 00053 are followed and endorsed.
(c) There is no evidence of the use of facial recognition technology at the Imam Khomeini International airport, but there are a number of officials who may be able to recognize up to 200 faces at any one time. The procedures used by security at the airport are haphazard. It is therefore possible that those whom the regime might wish to question would not come to the attention of the regime on arrival. If, however, information is known about their activities abroad, they might well be picked up for questioning and/or transferred to a special court near the airport in Tehran after they have returned home.
3 It is important to consider the level of political involvement before considering the likelihood of the individual coming to the attention of the authorities and the priority that the Iranian regime would give to tracing him. It is only after considering those factors that the issue of whether or not there is a real risk of his facing persecution on return can be assessed.
4 The following are relevant factors to be considered when assessing risk on return having regard to sur place activities:
(i) Nature of sur place activity
Theme of demonstrations – what do the demonstrators want (e.g. reform of the regime through to its violent overthrow); how will they be characterised by the regime?
Role in demonstrations and political profile – can the person be described as a leader; mobiliser (e.g. addressing the crowd), organiser (e.g. leading the chanting); or simply a member of the crowd; if the latter is he active or passive (e.g. does he carry a banner); what is his motive, and is this relevant to the profile he will have in the eyes of the regime
Extent of participation – has the person attended one or two demonstrations or is he a regular participant?
Publicity attracted – has a demonstration attracted media coverage in the United Kingdom or the home country; nature of that publicity (quality of images; outlets where stories appear etc)?
(ii) Identification risk
Surveillance of demonstrators – assuming the regime aims to identify demonstrators against it how does it do so, through, filming them, having agents who mingle in the crowd, reviewing images/recordings of demonstrations etc?
Regime’s capacity to identify individuals – does the regime have advanced technology (e.g. for facial recognition); does it allocate human resources to fit names to faces in the crowd?
(iii) Factors triggering inquiry/action on return
Profile – is the person known as a committed opponent or someone with a significant political profile; does he fall within a category which the regime regards as especially objectionable?
Immigration history – how did the person leave the country (illegally; type of visa); where has the person been when abroad; is the timing and method of return more likely to lead to inquiry and/or being detained for more than a short period and ill-treated (overstayer; forced return)?
(iv) Consequences of identification
Is there differentiation between demonstrators depending on the level of their political profile adverse to the regime?
(v) identification risk on return
Matching identification to person – if a person is identified is that information systematically stored and used; are border posts geared to the task?
54. Although I am prepared to accept the appellant has attended demonstrations outside the Iranian embassy, the photographs of the appellant show him alongside a number of other individuals. His evidence is that he did not have any specific role at the demonstrations and he simply attended. I find his role in the demonstration was no more than as a member of the crowd holding a small picture/sign/flag with no genuine belief in the cause such that, in the absence of any evidence that his presence was noticed or publicised, no risk will have arisen from this attendance.
55. All that the appellant is left with is his exit from Iran. The appellant’s account of the events that caused him to leave Iran has been rejected by the FtT, and there is in my judgment no reason why the appellant should have left Iran illegally. The appellant is not at serious risk of ill treatment on account of his illegal exit or the fact that he is a failed asylum seeker. The appellant has now been out of Iran since May 2022, and if he is returned to Iran with an ETD, he will be considered by the Iranian authorities to be someone that illegally exited.
56. In SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC) (in which the appellants were also Kurds) the Upper Tribunal held:
“1. An Iranian male whom it is sought to return to Iran, who does not possess a passport, will be returnable on a laissez passer, which he can obtain from the Iranian Embassy on proof of identity and nationality;
2. An Iranian male in respect of whom no adverse interest has previously been manifested by the Iranian State does not face a real risk of persecution/breach of his Article 3 rights on return to Iran on account of having left Iran illegally and/or being a failed asylum seeker. No such risk exists at the time of questioning on return to Iran nor after the facts (i.e. of illegal exit and being a failed asylum seeker) have been established. In particular, there is not a real risk of prosecution leading to imprisonment.”
57. The Upper Tribunal said that it was not suggested to them that an individual faced a risk on return on the sole basis of being Kurdish. Being Kurdish was relevant to how the returnee would be treated by the authorities, but no examples had been provided of ill-treatment of returnees with no relevant adverse interest factors other than their Kurdish ethnicity. The Upper Tribunal concluded that the evidence did not show a risk of ill-treatment to such returnees, though they accepted that it might be an exacerbating factor for a returnee otherwise of interest.
58. In HB (Kurds) Iran CG [2018] UKUT 00430, the Upper Tribunal provided the following guidance:
“(1) SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 308 (IAC) remains valid country guidance in terms of the country guidance offered in the headnote. For the avoidance of doubt, that decision is not authority for any proposition in relation to the risk on return for refused Kurdish asylum-seekers on account of their Kurdish ethnicity alone.
(2) Kurds in Iran face discrimination. However, the evidence does not support a contention that such discrimination is, in general, at such a level as to amount to persecution or Article 3 ill-treatment.
(3) Since 2016 the Iranian authorities have become increasingly suspicious of, and sensitive to, Kurdish political activity. Those of Kurdish ethnicity are thus regarded with even greater suspicion than hitherto and are reasonably likely to be subjected to heightened scrutiny on return to Iran.
(4) However, the mere fact of being a returnee of Kurdish ethnicity with or without a valid passport, and even if combined with illegal exit, does not create a risk of persecution or Article 3 ill-treatment.
(5) Kurdish ethnicity is nevertheless a risk factor which, when combined with other factors, may create a real risk of persecution or Article 3 ill-treatment. Being a risk factor it means that Kurdish ethnicity is a factor of particular significance when assessing risk. Those “other factors” will include the matters identified in paragraphs (6)-(9) below.
(6) A period of residence in the KRI by a Kurdish returnee is reasonably likely to result in additional questioning by the authorities on return. However, this is a factor that will be highly fact-specific and the degree of interest that such residence will excite will depend, non-exhaustively, on matters such as the length of residence in the KRI, what the person concerned was doing there and why they left.
(7) Kurds involved in Kurdish political groups or activity are at risk of arrest, prolonged detention and physical abuse by the Iranian authorities. Even Kurds expressing peaceful dissent or who speak out about Kurdish rights also face a real risk of persecution or Article 3 ill-treatment.
(8) Activities that can be perceived to be political by the Iranian authorities include social welfare and charitable activities on behalf of Kurds. Indeed, involvement with any organised activity on behalf of or in support of Kurds can be perceived as political and thus involve a risk of adverse attention by the Iranian authorities with the consequent risk of persecution or Article 3 ill-treatment.
(9) Even ‘low-level’ political activity, or activity that is perceived to be political, such as, by way of example only, mere possession of leaflets espousing or supporting Kurdish rights, if discovered, involves the same risk of persecution or Article 3 ill-treatment. Each case however, depends on its own facts and an assessment will need to be made as to the nature of the material possessed and how it would be likely to be viewed by the Iranian authorities in the context of the foregoing guidance.
(10) The Iranian authorities demonstrate what could be described as a ‘hair-trigger’ approach to those suspected of or perceived to be involved in Kurdish political activities or support for Kurdish rights. By ‘hair-trigger’ it means that the threshold for suspicion is low and the reaction of the authorities is reasonably likely to be extreme.”
59. On a proper application of the country guidance set out in HB (Kurds) it is clear that those of Kurdish ethnicity are reasonably likely to be subjected to heightened scrutiny on return to Iran. However, the mere fact of being a returnee of Kurdish ethnicity with or without a valid passport and even if combined with illegal exit, does not create a risk of persecution.
60. I accept that even low-level activity, if discovered, involves a risk of persecution or Article 3 ill-treatment and that the Iranian authorities demonstrate a ‘hair-trigger’ approach to those suspected or perceived to be involved in Kurdish political activities or support for Kurdish rights. However, I find the appellant has failed to prove, even to the lower standard, that he is a prominent individual in Iran or that there is anything in his profile that increases the risk of his being identified on return or will lead to a discovery that the appellant has taken part in any sur place political activity.
61. I have had in mind throughout the “pinch point” at which the appellant will be brought into direct contact with the authorities in Iran and is likely to be questioned. Having carefully considered the appellant’s profile and the relevant risk factors, I find that the appellant has failed to establish, even to the lower standard that the Iranian authorities would have the ability or desire to access the appellant’s Facebook account and that, even if questioned at the “pinch point” of return, they would have any knowledge of those matters which the appellant claims will place him at risk. I have found his claimed political views do not represent a view genuinely held by him, but are matters created for the purposes of enhancing an otherwise non-existent asylum claim. The appellant will not have to lie if asked if he is opposed to the Iranian government; he is not. If he chooses to say he is opposed to the government, that itself is a lie and a matter for him.
62. The appellant has no reason to inform the Iranian authorities that he has been involved in anti-government activities because any social media activity and attendance at demonstrations is not predicated upon any genuine political involvement. To assert otherwise would be inaccurate. At its very highest, the appellant has demonstrated an interest, at the lowest possible level in the ’Kurdish cause’ but, I find, he is not an individual that has engaged in even ‘low-level’ political activity or activity that is perceived to be political.
63. I find the appellant will not be required to reveal to the Iranian authorities he previously had a Facebook account. I reject his evidence that on return he will continue his activities. He did not undertake any political activity, even at a very low level, when he was in Iraq. He does not have a genuine political belief and I find he would not reveal his sur place activities in any case, as his beliefs are not genuine; the ‘truth’ is that he has no genuine beliefs. I have found he can reasonably be expected to close his Facebook account. I am not satisfied, even to the lower standard that the Iranian authorities have the capacity or ability to access a Facebook account once it has been closed down. As the Tribunal said in headnote [6] of XX, the timely closure of the appellant’s account will neutralise any risk consequential on having had an account, provided that it was not specifically monitored prior to closure. I have found the appellant’s Facebook account will not have been monitored and that the appellant has not already come to the adverse attention of the authorities in Iran.
64. Standing back and having considered all the evidence before me, I find the appellant has failed to discharge the burden of proof upon him to the required standard to establish he is anything other than a failed asylum seeker. It follows that I find the appellant would not be at risk upon return and his appeal is dismissed.
Notice of Decision
65. I dismiss the appellant’s appeal on asylum, humanitarian protection and Article 3 grounds.
V. Mandalia
Upper Tribunal Judge Mandalia

Judge of the Upper Tribunal
Immigration and Asylum Chamber

29 May 2025