Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003019 & UI-2024-003170

First-tier Tribunal No: PA/56717/2023
LP/02824/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 27th of March 2025

Before

UPPER TRIBUNAL JUDGE BULPITT

Between

SR
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Nadeem, Counsel instructed by Fountain Solicitors
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

Heard at Field House on 28 February 2025

Order Regarding Anonymity

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

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. The appellant is 19 years old. He is a citizen of Iran and is of Kurdish ethnicity. He arrived in the United Kingdom without permission on a small boat shortly before his seventeenth birthday on 21 September 2022 and immediately claimed asylum on the basis of his political opinion. The respondent refused his claim in August 2023 and the appellant appealed against that decision to the First tier Tribunal. On 15 May 2024, following a hearing in Birmingham First-tier Tribunal Judge French (the Judge) dismissed the appellant’s appeal.
2. The appellant then appealed against the Judge’s decision, with permission, to the Upper Tribunal. In a decision dated 17 January 2025 (the error of law decision) I found that the Judge’s decision involved an error of law and I set aside that decision. A copy of the error of law decision is attached to the end of this decision. In summary I found that the Judge erred by failing to consider whether the appellant would be at risk during two “pinch points” that would be involved in his return to Iran, namely the process of obtaining an emergency travel document (ETD) from the Iranian embassy to facilitate the appellant’s return, and his reception by Iranian state authorities on his arrival back in the country. I therefore directed that the matter be listed for a further hearing at which I would remake a decision with regards the appeal having considered the risk to the appellant during these two “pinch points”.
3. Although I had issued directions requiring they do so, neither party submitted further arguments in anticipation of this hearing and neither party sought to rely on additional evidence to that which was before the Judge. I heard evidence from the appellant and submissions from Mr Tufan and Mr Nadeem. At the conclusion of the hearing I reserved my decision.
The Legal Framework
4. The Refugee Convention is the 1951 Geneva Convention Relating to the Status of Refugees which defines a refugee at Article 1(A) as a person who:
“…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or, owing to such fear is unwilling to avail himself of the protection of that country”
5. Article 33 of the Refugee Convention prohibits a contracting state from expelling or returning a refugee to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
6. Section 6 of the Human Rights Act 1998 provides so far as is relevant that “It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”
7. Article 3 of the Convention provides that: “no one shall be subjected to torture or to inhumane or degrading treatment or punishment”. This is an absolute right and if a decision to return the appellant to Algeria will lead to a breach of the right then the decision will be incompatible with that right and therefore unlawful.
8. The appellant bears the burden of substantiating the primary facts of his protection claim. The standard of proof has been variously described as a reasonable degree of likelihood, or a reasonable chance or realistic possibility. It is also known as a “lower standard” of proof.
Analysis and Findings
9. Despite setting aside the Judge’s decision, I preserved the factual findings he made following a full evidential hearing. Those findings were set out at [15(1) – (6)] of the judge’s decision and for ease of reference I set them out below (having removed the Judge’s explanation for the findings he made and details which might lead to the appellant’s identification):
(1) I accept that the Appellant is an Iranian Kurd and that he …. is currently 18 years old.
(2) I accept that the Appellant arrived in the UK illegally.
(3) I conclude that the Appellant is not a reliable witness…
(4) I believe that the story about being recruited to hand out political leaflets and being reported to the authorities is an invention. I believe that the story about the authorities raiding the house and an arrest warrant being issued is also untrue. I am satisfied that the Appellant is not the subject of adverse interest from the authorities because of political activity in Iran. Accordingly there was no reason why the authorities would want to arrest him
(5) I do not believe that the Appellant has any political beliefs, and I do not believe that he had been politically active in Iran or after he came to the UK. He seemed to know little about history or the workings of the Komala party. I believe that he had wanted to bolster a weak asylum application by giving the appearance of being politically active in the UK so he created a Facebook account and has attended some demonstrations. In my view it is implausible that the Appellant would be able to make posts on Facebook, given the fact that he had was illiterate both in Kurdish and English. He agreed that other people had shown him how to post messages, which were posted from other people's accounts.
(6) The photographs provided by the Appellant seemed to indicate that he had attended demonstrations but did not show him to be acting in any leading capacity. I do not believe that simple attendance at a few demonstrations is sufficient to attract the adverse attention of the Iranian authorities, in the absence of any other reason.
10. During the hearing before me the appellant was asked about photographs of him attending demonstrations that appeared in his bundle of evidence, some of which have been posted on his Facebook account. The appellant denied that he had posed for the photographs or that his friends had taken them. Instead he claimed that the photographs had been taken by people that he did not know and that he had only discovered the photographs when he saw them on other people’s Facebook accounts. The appellant claimed that having seen the photographs he saved them and reposted them on his own Facebook account. I do not accept this account is reasonably likely to be true. The appellant is clearly shown posing for photographs, staring straight into the camera for some photos and making hand gestures to the photographer in others. It is quite clear that the photographs were taken of the appellant and for the appellant specifically and were taken for the explicit purpose of documenting his attendance at the demonstrations. I reject his suggestion that he came upon them by chance when he saw them on Facebook.
11. The appellant was also asked whether he had attended any further demonstrations following the hearing that took place before the Judge in May 2024 and he replied that he had attended one demonstration in London on 8 September 2024, though he was unable to say where in London the demonstration was held. He produced no evidence of that demonstration and no evidence of making Facebook posts after that hearing before the Judge nine months ago. The absence of evidence of ongoing political activity is entirely consistent with the finding made by the Judge that the appellant does not have a genuine interest in politics. There is no reason to deviate from the finding made by the Judge that the appellant’s activities in the United Kingdom have been for the sole purpose of establishing an asylum claim where one did not previously exist, indeed that conclusion is only strengthened by the appellant’s inactivity in the ten months since the hearing before the Judge.
12. When I asked him, the appellant said that he only uses Facebook for making political posts. He specifically accepted that he does not use Facebook to communicate with friends in the United Kingdom or with friends or family in Iran, and he repeated that the only thing he uses Facebook for is to make political posts about Iran. The appellant accepted that he had not provided a full download of his Facebook account, though he said he had provided what he had been asked by his lawyers to provide. The evidence of the appellant’s Facebook account that has actually been adduced is very sparse and unclear. It includes selected poorly photocopied screenshots of Facebook pages in no particular order and often with information such as the privacy settings and number of views missing. It includes only a fraction of the material that is available and it is adduced in a form that can be easily manipulated (see XX (PJAK – sur place activities – Facebook) headnotes [7] and [8]). I find these screenshots to be of very limited evidential value.
13. It is clear to me that the sole purpose of the appellant’s Facebook account is to provide support for his asylum claim and that the appellant does not use the account for any other purpose. As the Judge noted and the appellant accepts, posts made on the appellant’s Facebook account were made by his friends and not by the appellant himself. The appellant has displayed almost no knowledge or understanding of the account and no real interest in it. He has been found not to genuinely hold the political opinion expressed in posts made on the Facebook account. There is nothing to suggest that there have been any further posts since the hearing before the Judge nine months ago. It is clear that the Facebook account has already served it’s purpose in providing evidence for the asylum claim. There is therefore no continuing reason for the appellant to maintain the Facebook account and I find he would have no genuine interest in doing so once the claim is concluded.
14. I am satisfied that the appellant’s very limited insincere activity in the United Kingdom to date will not have come to the attention of the Iranian authorities. The appellant’s “social graph” includes his youth, him having no political interest in Iran, very limited activity in the United Kingdom which consists of attendance at a small number of demonstrations for the purpose of being photographed by his friends, and a small number of posts on a Facebook account which was opened for the sole purpose of constructing this claim. This is not reasonably likely to have caused the authorities to specifically monitor the appellant or his Facebook account. I turn then to the question of the two pinch points that would be involved if the appellant were to return to Iran, namely the application from the United Kingdom for an ETD and the applicant’s arrival in Iran.
15. I am satisfied on the basis of the country guidance provided in XX (PJAK – sur place activities – Facebook) Iran CG [2022] UKUT 00023, that when an application is made for an ETD on behalf of the appellant, the Iranian state authorities are likely to conduct basic searches including open internet searches relating to the appellant. The Tribunal found in XX (PJAK) that the timely closure of a critical Facebook account 30 days prior to an interview for an ETD neutralises the risk to an appellant in these circumstances if, as is the case here, the account was not specifically monitored prior to closure. The appellant claimed in his evidence that he will not close his Facebook account and will not deny having a critical Facebook account because the Iranian regime is his enemy. I do not consider this reasonably likely to be true. The Judge found the appellant’s political activities to be insincere. The appellant’s very limited activity since the Judge made that finding serves only to support that conclusion. I have found that the appellant’s Facebook account was created and operated for the sole purpose of supporting this protection claim and it is apparent that once the claim is concluded the appellant will have no genuine interest or containing reason to maintain the account. I do not accept that the appellant will make the principled decision to keep the Facebook account open in defiance of the Iranian authorities or that he would disclose his opportunistic activities in the United Kingdom as doing so would be inconsistent with the absence of any genuine interest in politics and the appellant’s opportunistic intentions that have been found on the evidence as a whole.
16. In his thoughtful submissions Mr Nadeem argued that the appellant is young, impressionable and under the sway of others and that in these circumstances the reality is that he might not close the Facebook account if that were to be the advise of those friends. I have regard to the age and apparent immaturity of the appellant and to the fact that it was his friends who opened the Facebook account and made the posts on the account on his behalf. I recognise that the appellant will need the assistance of those friends again to close the account, however I do not consider it reasonably likely that those friends will deter the appellant from doing so in the circumstances. The appellant has clearly been influenced and assisted in making an opportunistic protection claim but once that claim is disposed of, I consider the suggestion he will be influenced and persuaded to put himself in danger to be unrealistic.
17. In these circumstances I am satisfied that the appellant would, with the assistance of the friends that set it up for him, close his Facebook account prior to any application being made for an ETD and that he would not volunteer any information about the prior existence of that account or of his fleeting and opportunistic participation in demonstrations, to the Iranian authorities who would be involved in that process. Accordingly the redocumentation process will not create a real risk of the appellant facing persecution or ill-treatment.
18. Concerning the second pinch point and the appellant’s arrival in Iran, and applying the guidance provided at [98] of HB (Kurds) Iran CG [2018] UKUT 00430 (IAC), I am satiasifed that as a young man of Kurdish ethnicity who left Iran illegally the appellant is likely to be questioned by Iranian authorities on his return to Iran and that those authorities are likely to demonstrate a “hair-trigger approach” to any perceived political support for Kurdish rights. Having found that the appellant’s fleeting participation in a limited number of demonstrations will not have come to their attention, and that the appellant’s limited posts of Facebook will not have come to their attention because the appellant will have closed his account, I conclude that it is not likely that the Iranian authorities will have any pre-existing suspicion about the appellant when he arrives. The remaining question is whether they will form such a suspicion from the secondary questioning that is likely to occur on arrival?
19. The absence of any genuine political interest held by the appellant is highly significant to this question. The appellant will be able to honestly and openly answer that he has no interest in politics and has had no genuine involvement with those opposed to the Iranian state. I find that he will also in these circumstances not reveal the fact that he sought to construct an asylum claim by opportunistically being photographed at demonstrations and posting on a Facebook account that he did not otherwise use. Again, Mr Nadeem submitted that the appellant’s youth and vulnerability will militate against him being able to satisfy the Iranian authorities with his answers, however in all the circumstances I am satisfied that the appellant will be capable and willing to give a self-serving account, just as he did when giving evidence before me and previously before the Judge.
20. Overall therefore, I conclude that there is no current risk to the appellant of persecution or ill-treatment by the Iranian state authorities, because he does not genuinely hold a political opinion that will lead to such persecution and because the authorities will not be aware of the limited activities the appellant has been involved with in the United Kingdom in his attempts to establish a claim that would enable him to remain in this country. I further conclude that neither of the two pinch points the appellant will face in the process of being returned to Iran will give rise to a risk of persecution or ill-treatment of the appellant, because I am satisfied that the appellant will delete his opportunistic Facebook account and will not reveal his insincere participation in those activities.
21. In these circumstances, the appellant’s appeal against the refusal of his protection claim must be dismissed.

Notice of Decision
The appellant’s protection appeal is DISMISSED on all grounds.

Luke Bulpitt

Judge of the Upper Tribunal
Immigration and Asylum Chamber

25 March 2025

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003019 & UI-2024-003170

First-tier Tribunal No: PA/56717/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE BULPITT

Between

SR
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR TE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Williams – Counsel instructed by Fountain Solicitors
For the Respondent: Mr Walker – Senior Home Office Presenting Officer

Heard at Field House on 19 December 2024

Order Regarding Anonymity

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

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. The appellant appeals against the decision of First-tier Tribunal Judge French (the Judge) promulgated on 15 May 2024, in which the Judge dismissed the appellant’s appeal against the respondent’s refusal of his protection claim. Permission to appeal was granted on one ground only by First-tier Tribunal Judge Dainty. Permission to appeal on a second ground was granted by Upper Tribunal Judge Owens following a renewed application by the appellant. There are therefore two grounds of appeal that I must resolve.
2. The Judge made an anonymity direction when dismissing the appeal. In view of the fact this appeal relates to a protection claim, and lest anything is said or done in these proceedings that might give rise to a risk to the appellant, I maintain that order.
Background
3. The appellant is 19-years-old. He is a citizen or Iran and is of Kurdish ethnicity. He arrived in the United Kingdom without permission in a small boat shortly before his seventeenth birthday, on 21 September 2022 and immediately claimed asylum. The respondent refused that claim in a decision issued eleven months later on 25 August 2023.
4. The appellant’s asylum claim was made on the basis that he has a well-founded fear of persecution by the Iranian State authorities because of his political opinion in support of Kurdish independence. The appellant said that whilst in Iran he had distributed packages on behalf of a member of the Komala Party and that he had stored Party flyers and flash drives at his home address. One day while he was working as a shepherd, he received a call from his uncle to say that he could not return home as Iranian intelligence agency Etelat had raided the family home and arrested his mother. The appellant says he went into hiding for nine days before fleeing Iran, crossing the border into Turkey on foot and being transported by agents to Calais and then to the United Kingdom in a dinghy. Having arrived in the United Kingdom the appellant says he has been politically active, posting messages against the Iranian government on Facebook and attending demonstrations, and that this political activity is likely to have come to the attention of the authorities in Iran.
5. Although the respondent accepted the appellant’s account about his age, nationality and ethnicity, she did not believe the appellant’s account of events in Iran and did not accept that he had any genuine interest in politics. The respondent argued that the appellant’s political activities in the United Kingdom were minimal, involving him forwarding Facebook posts made by others and attendance at demonstrations of which he was not an organiser. This activity was, the respondent argued, an attempt to bolster a weak asylum claim and would not have come to the attention of the Iranian authorities. The respondent argued that the appellant would not be of interest to the Iranian authorities and could return safely to that country.
6. The appeal was heard in person. The Judge heard evidence from the appellant and submissions from representatives of the respondent and appellant. His reserved decision was promulgated five days after that hearing.
The Judge’s Decision
7. The Judge sets out the background to the appeal, the respondent’s decision and the appellant’s argument in the first four paragraphs of his decision before at [5] identifying the material he has considered before reaching his decision. At [6] the Judge sets out the account given by the appellant in his interview with immigration officers. Although this paragraph is predominantly a narrative of the account the appellant gave, as I discuss later, it is punctuated with the Judge’s opinion of that account. At [7] the Judge sets out the content of a Home Office review of the appeal and at [8] the Judge summarises the disputed issues that were before him. At [9] – [12] the Judge discusses the appellant’s evidence, including his witness statements and oral evidence. Again, this summary of the appellant’s evidence occasionally includes statements of the Judge’s opinion of that evidence. At [13] and [14] the Judge summarises the competing submissions of the advocates at the hearing, before at [15] he records his “Findings of Fact”.
8. At [15(3)] the Judge concludes that the appellant “is not a reliable witness” and that “his evidence has been implausible, inconsistent and occasion contradictory (sic).” At [15(4)] the Judges concludes that the appellant’s account of events in Iran “is an invention” and “untrue”. At [15(5)] the Judge states the conclusion:
“I do not believe that the Appellant has any political beliefs, and I do not believe that he had been politically active in Iran or after he came to the UK…I believe that he had wanted to bolster a weak asylum application by giving the appearance of being politically active in the UK so he created a Facebook account and has attended some demonstrations”
9. At [15(6)] the Judge concludes that the appellant’s attendance at demonstrations will not have attracted the adverse attention o the Iranian authorities and at [15(7)] he accordingly concludes that the appellant is not at risk in Iran as a result of his activities either in Iran or in the United Kingdom. At [15(8)] the Judges finds that the appellant would not face adverse consequences from the fact he left Iran illegally. The Judge then summarises his ultimate conclusion at [16] which is that the appellant is not credible and has tried to circumvent immigration rules. The Judge finds that “there is no merit in this appeal” and accordingly the appeal was dismissed.
The Grounds of Appeal
10. The first ground of appeal on which permission was granted is that the Judge erred by giving inadequate reasons for his finding that the appellant does not hold any political beliefs and that his activities in the United Kingdom were to bolster a weak case. Mr Williams argued that having summarised the appellant’s evidence the Judge failed to engage with that evidence in his decision and did not take account of the plausibility of the appellant’s claimed political beliefs given that as per HB (Kurds) Iran CG [2018] UKUT 00430 (IAC), Kurds in Iran face discrimination and the authorities in Iran demonstrate a “hair-trigger” approach to those suspected of or perceived to be involved in Kurdish political activities or support Kurdish rights.
11. The second ground of appeal on which permission was granted is that the Judge failed to apply the guidance in HB (Kurds) Iran including the fact that the appellant is likely to be questioned upon return to Iran and subject to the hair-trigger approach of the Iranian authorities. Mr Williams argued that the appellant should not be expected to lie about his activities in the United Kingdom when questioned, and that disclosing his attendance at demonstrations would expose him to persecution regardless of his motives in undertaking those activities.
12. Mr Walker contested the appeal and argued that the Judge had provided adequate reasons for dismissing what was a weak claim.

Analysis
Ground one
13. I begin my analysis of this ground of appeal by reminding myself of the extent of the requirement on the Judge to provide reasons for his decision. In MD (Turkey) v SSHD [2017]EWCA Civ 1958 Lord Justice Singh explained at [26] that the duty to give reasons requires that reasons must be proper, intelligible and adequate, continuing: “It is important to appreciate that adequacy in this context is precisely that, no more and no less. It is not a counsel of perfection. Still less should it provide an opportunity to undertake a qualitative assessment of the reasons to see if they are wanting, perhaps even surprising, on their merits. The purpose of the duty to give reasons is, in part, to enable the losing party to know why she has lost. It is also to enable an appellate court or tribunal to see what the reasons for the decision are so that they can be examined in case some error of approach has been committed.” In Lowe v SSHD [2021] EWCA Civ 62 Lord Justice McCombe gave further guidance concerning the reasons expected of a Judge, quoting at [29] Lewison LJ’s judgment in Fage UK Ltd v Chobani UK Ltd including:
“The primary function of a first instance judge is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. He should give his reasons in sufficient detail to show parties and, if need be, the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. His function is to reach conclusions and give reasons to support his view, not to spell out every matter as if summing up to a jury. Nor need he deal at any length with matters that are not disputed. It is sufficient if what he says shows the basis on which he has acted”
14. Applying that guidance to this case I am satisfied that contrary to the grounds of appeal, the Judge has provided adequate reasons for his finding that the appellant does not have any political beliefs, that he was not politically active in Iran and that his activities in the United Kingdom were to bolster a weak asylum claim.
15. The Judge explains his finding that the appellant was not politically active in Iran primarily at [15(3)] and [15(4)] of his decision. In those sub-paragraphs the Judge:
(i) identifies parts of the appellant’s account he considered to be implausible, including: the claim that the appellant did not know the man from his small village who recruited him and did not know the man in the same small village to whom he passed documents, the suggestion that the appellant’s uncle was able to contact the appellant and tell him not to return home, and the appellant’s evidence that no action was taken to arrest his uncle despite the discovery of political material in his house;
(ii) identifies parts of the appellant’s account he considered to be inconsistent, including the appellant’s shifting account about whether a warrant was issued for his arrest and the appellant’s account of the involvement of a man called “Khaled”.
16. These findings must also be considered in the context of the adverse comments about the appellant’s account the Judge made earlier in his decision when narrating the appellant’s interview account (at [6]), his witness statements (at [9]) and his answers in cross examination (at [10]). Those comments include reference to the appellant’s vague evidence and that “On lots of major issues the Appellant asserts that he does not know”
17. This explanation, when read as a whole is in my judgment adequate to enable the appellant and an appellate tribunal to understand the basis on which the Judge has concluded that the appellant’s account about events in Iran is not true.
18. Similarly, the Judge explains his finding that the appellant has no political beliefs and his limited activity in the United Kingdom was to bolster a weak claim throughout his decision, rather than in one part of the decision. At [6] when referring to the appellant’s interview account, the Judge comments on the appellant’s inability to name someone shown in a photograph he posted online, and his inability to explain a flag the appellant is photographed holding and says “In my opinion his lack of knowledge is indicative of a lack of any real interest in the Komala party and the political struggle.” When referring to the appellant’s witness statements at [9] the Judge comments that the appellant’s evidence that he never attended school was hard to reconcile with his internet posts criticising he Iranian regime.
19. It is in the context of these earlier comments that the Judge’s reasoning at [15(5)] must be considered. In this latter paragraph the Judge adds that the appellant seemed to know little about the history or workings of the Komala party and that “it is implausible” that the appellant would posts on Facebook when he was illiterate in both English and Kurdish.
20. I am not persuaded by Mr Williams’ suggestion that the Judge has failed to demonstrate engagement with the submissions made on behalf of the appellant at [14(c)] of the decision. As the passage from Fage UK Ltd v Chobani UK Ltd quoted at [14] above identifies, there was no requirement on the Judge to explicitly deal with every argument presented by counsel and it is clear from the Judge’s recitation of his arguments that counsel’s explanation was in the Judge’s mind when making his assessment. Neither am I persuaded by the argument that the Judge failed to consider the likelihood of an Iranian of Kurdish ethnicity having the appellant’s claimed political opinion given the discrimination faced by Kurds in Iran, an argument which reflects a rather reductive approach to the issue. While the country guidance is that Kurdish people are discriminated against in Iran it does not follow that the Judge was required to start his assessment on the basis that it is likely that the appellant as a Kurd would have a political interest in Kurdish separatism. On the contrary, the Judge’s assessment of the genuineness of the appellant’s activities in the United Kingdom came in the context of his earlier finding that the appellant was not politically active and showed no political interest while in Iran.
21. Overall, although it may have been clearer if the Judge had arranged his decision so that his comments and analysis of the evidence all appeared in the same section of the decision, when the decision is read as a whole I am satisfied that the reasons given by the Judge adequately explain why he found the appellant’s claimed interest in political parties promoting Kurdish separatism was not genuine but was instead an attempt to bolster his claim. The Judge’s reasons for rejecting the factual basis of the appellant’s claim were in my judgment adequate and this ground of appeal fails.
Ground 2
22. The complaint made in ground two is about the Judge’s assessment of the risk to the appellant on return to Iran, having made those findings of fact. This assessment is set out at [15(7)] and [15(8)] of the Judge’s decision in which the Judge sys that he does not believe the appellant is at risk because he had not attracted the attention of Iranian authorities and that the fact the appellant left Iran illegally will not lead to him suffering adverse consequences.
23. Whilst I am satisfied that in these paragraphs the Judge adequately deals with the likelihood of the appellant facing a risk of ill-treatment on the basis of his ethnicity alone and the fact he left Iran illegally, I agree with Mr Williams that the Judge’s analysis of risk in these paragraphs is inadequate.
24. In particular the Judge does not address in these paragraphs or elsewhere in his decision, the fact that, as per the guidance in SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC), HB (Kurds) Iran, and XX (PJAK – sur place activities – Facebook) Iran CG [2022] UKUT 00023, the process of redocumenting and returning the appellant to Iran is likely to involve “pinch points” when the appellant applies for a travel documents and on his arrival in Iran, where the appellant is likely to be questioned by the Iranian authorities, and some basic internet searches are likely to be carried out by those authorities.
25. The authorities indicate that at those pinch points, the Iranian authorities demonstrate a hair trigger approach to those suspected of, or perceived to be, involved in Kurish political activities and that even low level political activity or activity perceived to be political involves the risk of persecution or Article 3 ill-treatment if discovered. In these circumstances it was essential that the Judge considered whether the Iranian authorities would become aware of the appellant’s attendance at demonstrations and the Facebook posts at either of the two pinch points, since were they to do so there is a likelihood of ill-treatment even though the appellant engaged in that activity as the Judge found simply to bolster a weak case. This would involve consideration of whether the appellant would close his Facebook account before the pinch point occurred and whether or not the appellant would volunteer to those questioning him the fact of a previously closed Facebook account or his attendance at demonstrations (see [100] – [103] of XX (PJAK – sur place activities – Facebook) Iran CG)
26. It is apparent from the skeleton argument submitted, and from the Judge’s summary at the end of [14(c)] of the submissions made at the hearing on behalf of the appellant, that these issues were raised before the Judge in the hearing yet they have not been considered. As they are issues that go to the material matter of whether the appellant faces a real risk of persecution I am satisfied that this failure amounts to an error of law. The Judge was in the circumstances required to reach a decision on what would be reasonably likely to happen at the two identified pinch points and he has failed to do so.
27. I have gone on to consider whether the error is material and conclude that it was because, although the Judge made clear adverse findings about the appellant’s case it cannot be said that the Judge would inevitably have concluded that the appellant will close his Facebook account before reaching the pinch points and would not volunteer information about his attendance at demonstrations. As XX(PJAK – sur place activities – Facebook) Iran CG) makes clear at [102], the analysis of what the appellant is likely to do when faced with the pinch points of return needs to be considered on a case to case basis, having regard amongst other things the person’s history, social graph and social media activities. With no such analysis having taken place it is not possible to say that the conclusion would be inevitable.
28. Equally, I am unconvinced that the appellant would inevitably reveal his activity in the United Kingdom because he cannot be expected to lie when he is questioned. This is the suggestion made by the appellant, relying on RT (Zimbabwe) v SSHD [2012] 1 AC 152. As I pointed out in the hearing however, the factual circumstances that applied in RT Zimbabwe involved the likelihood of a person being persecuted because they were politically neutral. In those circumstances, it was found that a person who (like the Judge found of this appellant) was politically neutral could not be expected to lie about their neutrality and claim support for the ruling Zanu-PF party. As Lord Justice Jeremy Baker explained recently at [56] of S v SSHD the situation is different in Iran where the Iranian authorities do not persecute individuals because of their political neutrality and where, in the light of the findings made by the Judge as to the unlikelihood of the appellant having already come to the attention of the authorities and his lack of genuine political belief, the appellant would not be in the position of having to prove his political loyalty or indeed deny his neutrality.
29. The Judge has therefore made a material error of law such that his decision to dismiss the appeal must be set aside. The Judge’s findings of fact at [15(1)-(6)], which have either not been challenged or for the reasons already given are not tainted by an error of law, are however preserved.
30. What remains outstanding for a decision to be compliant with the law and the requirement to give anxious scrutiny to an asylum claim to be fulfilled, is a consideration of what would happen at the two pinch points the appellant would inevitably face in the process of being returned to Iran, and an assessment of whether there is a real risk of him facing persecution or article 3 ill-treatment at those pinch points. In my judgment it would be consistent with the Tribunal’s overriding assessment for that assessment to take place after a further hearing in the Upper Tribunal and following submissions from the parties.

Notice of Decision
The decision of First-tier Tribunal contained an error of law such that it is set aside.
The findings of fact made by the Judge and recorded at [15(1)] – [15(6)] of the decision are preserved.
There will be a remaking hearing at the Upper Tribunal on the earliest available date. No less than seven days before that hearing the parties must provide skeleton arguments addressing the outstanding assessment of risk identified in the paragraphs above

Luke Bulpitt

Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 January 2025