Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003821

First-tier Tribunal No: PA/60849/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 4th of March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE SAFFER

Between

AM
(Anonymity order continued)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Puar of Counsel
For the Respondent: Mr Thompson a Senior Home Office Presenting Officer

Heard at Phoenix House (Bradford) by CVP on 17 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 was born on 1 January 2005. He is a citizen of Iran. He appealed against the decision of the Respondent dated 27 October 2023, refusing his application for international protection made on 25 November 2021. He appeals against the decision of First-tier Tribunal Judge Napier, promulgated on 28 June 2024, dismissing the appeal.
Permission to appeal
2. Permission was granted by Upper Tribunal Judge Reeds on 3 September 2024 who stated:
“5. The only arguable issue identified from the grounds is that set out at paragraphs 8 and 9 of the grounds which relate to the assessment at paragraph 18(v). On the face of the decision the FtTJ appears to have accepted the sur place activities as genuine. Whilst the FtTJ found that they would not have brought him to the attention of the authorities in Iran, it is arguable that the FtTJ failed to address the issue of what would happen at the “pinch point” of return based on the social media posts, albeit they were limited and low level ( applying HB (Kurds) CG [2018] UKUT 420).”
3. EH (PTA: limited grounds; Cart JR) Bangladesh [2021] UKUT 0117 (IAC) guides me to the view that Rule 22(2)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008 has the effect that in the absence of any direction limiting the grounds which may be argued before the Upper Tribunal, the grounds contained in the application for permission are the grounds of appeal to the Upper Tribunal, even if permission is stated to have been granted on limited grounds.
4. I am satisfied that in using the phrase “the only arguable issue” Upper Tribunal Judge Reeds limited the grounds which may be argued. Neither representative sought to argue to the contrary.
The grounds seeking permission to appeal
5. The grounds asserted that:
“8. If the approach in XX is to be followed:
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.
9. The Judge finds that the Appellants activity is low level. The Judges errs in determining that low level activity would not place the Appellant at risk, as per HB (Kurds) Iran CG [2018] UKUT 00430 (IAC), which states (emphasis added):
           (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.”
The First-tier Tribunal decision
6. Judge Napier made the following findings relevant to this hearing:
       “ 15. The Appellant has a sur place claim. The Respondent accepts the Appellant has attended demonstrations (the photos of which are in the bundle). The Appellant said he had attended a number of demonstrations but was not an organiser of them. He has not joined any political parties either before arriving here or whilst here. The photos provided show the Appellant attending a demonstration and participating in burning medium sized photos of Iranian figures with other men. He is not shown as speaking or leading the group in any way.
           16. The Appellant has also supplied a number of Facebook post he said he has made. They are not screenshots of the Facebook pages as is usually presented. They do not show where they were posted on Facebook, whether they can be publicly seen, and who his Facebook ‘friends’ are who may have shared or liked the posts further. In short, the evidence does not show any kind of extensive social media reach or activity.
           Discussion
           17. Based on these findings, there are no additional risk factors which, when combined with the general discrimination against Kurds in Iran, would place the Appellant at real risk of persecution: HB (Kurds) Iran CG [2018] UKUT 420 (IAC). The mere fact of an illegal exit, even combined with Kurdish ethnicity, it not enough to meet the standard of proof in this case. The incident in his village did not happen and I find he has not been brought to the attention of the authorities.
           18. Concerning the sur place claim, BA (Demonstrations in Britain – risk on return) Iran CG [2011] UKUT 36 and XX (PJAK – sur place activities – Facebook) Iran CG [2022] UKUT 00023 (IAC) require that a number of factors be considered. I am not persuaded it is reasonably likely the Appellant would be at risk on return to Iran for the following reasons:
           (i) I accept the theme of the demonstrations was to promote and seek the downfall of the Iranian Government. That is a theme which has the potential to elevate the risk to the Appellant. It is also a factor in the Appellant’s favour that he has attended a number of demonstrations.
           (ii) Importantly, the Appellant had a low key and minor profile at the demonstrations. He did not organise them, nor did he speak at them. He was a member of the crowd who has carried pictures or burned them. He provided no evidence that any member of the Iranian Embassy staff or other elements of the Iranian Government may have seen him protesting.
           (iii) No evidence has been provided that the demonstrations attracted any media coverage either in this country or Iran.
           (iv) The Appellant does not have a political profile and is not a member of any political party, either in this country or Iran. He is not a political activist who would be subject to ongoing monitoring by the Iranian Government.
           (v) It is correct the Appellant left Iran unlawfully and he is Kurd, but I have found he has not previously come to the attention of the authorities and his social media presence is very limited. Even if he did not delete his Facebook profile, the evidence before the Tribunal does not demonstrate its scale or reach and why it is reasonably likely it would come to the attention of the authorities in the event of a return.
           19. Taking these factors together, I am not persuaded there is a well-founded fear of persecution on return on account of the Appellant’s sur place activities.”
The Respondent’s position
7. The Rule 24 notice dated 16 September 2024 asserted that:
“4. …the FTTJ has adequately dealt with risk on return in line with the caselaw of HB (Kurds) Iran CG [2018] UKUT 420 (IAC) at paragraph 17 and throughout the determination.
5. It is submitted that it is clear that the Judge has engaged with all of the factors in assessing the appellant’s risk on return in line with case of BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC) and XX (PJAK – sur place activities – Facebook) Iran CG [2022] UKUT 00023 (IAC) at paragraph 18.
6. The Judge sets out at paragraph 15 that the appellant’s evidence is that he attended a number of demonstrations but was not an organiser of them. He has not joined any political parties either before arriving here or whilst here. The photos provided show the Appellant attending a demonstration and participating in burning medium sized photos of Iranian figures with other men. He is not shown as speaking or leading the group in any way.
7. The Judge notes at paragraph 18 (ii) the Appellant had a low key and minor profile at the demonstrations. He did not organise them, nor did he speak at them. He was a member of the crowd who has carried pictures or burned them. He provided no evidence that any member of the Iranian Embassy staff or other elements of the Iranian Government may have seen him protesting. Further at paragraph 18 (iii) Judge highlights that no evidence has been provided that the demonstrations attracted any media coverage either in this country or Iran.
8. These findings are clearly addressing the factor ‘role in demonstrations and political profile’ [BA]. The Judge acknowledges that the appellant claims to have attended demonstrations in the UK and therefore considers the ‘extent of participation’. The Judge also considers that it was not suggested that any of the demonstrations the appellant has attended had attracted media coverage in the UK or Iran which is considering the factor of ‘publicly attracted’.
9. The Judge also considers the appellants Facebook activity before finding that the appellant’s activities in the UK would not put him at risk on return.
10. The judge gave adequate reasons why he did not find the appellant’s claim that he had a political profile in Iran before he left, credible. Although it was accepted that the appellant attended some demonstrations in the United Kingdom, the judge did not find the appellant had a profile that would put him at risk on return and he was entitled to reach that finding based on the evidence before him.”
Oral submissions
8. Mr Puar submitted additionally that there was a lack of findings on what would happen at the “pinch point” of return based on the social media posts, albeit they were limited and low level. There was genuine sur place activity. The Appellant had been politicised to a degree while here. HB (Kurds) Iran CG was not engaged with on this factor. The Judge has not engaged with the Appellant not being required to deny his activity here.
9. Mr Thompson submitted additionally that the Judge looked at the facts cumulatively. This discharged his responsibility.
10. Mr Puar made no submissions in response.
Discussion
11. In assessing the Grounds, I acknowledge the need for appropriate restraint by interfering with the decision of the First-tier Tribunal Judge bearing in mind its task as a primary fact finder on the evidence before it and the allocation of weight to relevant factors and the overall evaluation of the appeal. Decisions are to be read sensibly and holistically; perfection might be an aspiration but not a necessity and there is no requirement of reasons for reasons. I am concerned with whether the Appellant can identify errors of law which could have had a material effect on the outcome and have been properly raised in these proceedings.
12. I accept that the Judge materially erred in law for these reasons. The Judge asked the pinch point question of what would be reasonably likely to happen on his return to Iran. He did not however address the question of whether the Appellant should be required to lie about his sur place activities here, and what impact the disclosure of those activities would be reasonably likely to have when aligned with his ethnicity and illegal departure. Nor did he consider whether the Appellant would be reasonably likely to carry on in Iran with the activity he has engaged in here, and if not why not (HJ (Iran) [2010] UKSC 31).
13. I agree with the representatives that the appeal needs to be remitted to the First-tier Tribunal as evidence is required as to what the Appellant is reasonably likely to do on his return, and to apply the correct test to the findings to that when combined with those regarding his sur place activity.

Notice of Decision
14. The Judge made a material error of law. I set aside the decision.
15. I remit the appeal to the First-tier Tribunal to be heard by a Judge other than Judge Napier with findings relating to his lack of activity and profile in Iran, and his sur place activity here preserved.

Laurence Saffer
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
18 February 2025