UI-2024-003978

• Status of case: Unreported
• Hearing date: 25 Jul 2025
• Promulgation date: 5 Sep 2025
• Publication date: 23 Sep 2025
• Last updated on: 23 Sep 2025

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003978

First-tier Tribunal No: PA/55944/2023
LP/04057/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 5th of September 2025

Before

UPPER TRIBUNAL JUDGE RASTOGI

Between

AZ
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms A. Sepulveda, Legal Representative, Fountain Solicitors
For the Respondent: Ms S. Simbi, Senior Home Officer Presenting Officer

Heard at Birmingham Civil Justice Centre on 25 July 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. By way of a decision promulgated on 24 February 2025 I found an error of law in the decision of the First-tier Tribunal which had dismissed the appellant’s appeal against the respondent’s refusal of his protection claim. I directed the appeal be re-made in the Upper Tribunal (see the error of law decision at Annex 1 below).
2. There was no application to discharge the anonymity order, first made in the First-tier Tribunal and which I subsequently continued. I do so in order to preserve the importance of fulfilling the UK’s obligations under the Refugee Convention.
3. The sole factual issue for me to consider at the re-making stage was the question of whether or not the appellant will delete his Facebook account in light of his account at para. 18 of his witness statement that he would not do so, and given the preserved findings of the First-tier Tribunal which were summarised at [24] of the error of law decision as follows:
“a) the appellant’s usage of his Facebook account was opportunistic [56(vii)] to support a fabricated asylum claim [60];
b) that it is not reasonably likely the appellant’s social media postings have come to the
attention of the Iranian authorities [60];
c) that he is not a genuine political activist [61];
d) that the materials on his account are not an integral part of his political freedom [61];
e) there is no reasonable likelihood his Facebook account has been specifically monitored as he is not a person of significant interest to the authorities [61].”
4. As per [25] of the error of law decision, once factual findings on the Facebook account have been made, the findings on risk on return will also need to be revisited.
5. The appellant did not file any additional or updating evidence prior to the error of law hearing. The evidence before me was contained within the 971 page error of law bundle. The respondent also submitted an unreported case of the Upper Tribunal UI-2024-004821 on which she relied, noting that permission to the Court of Appeal had been granted. She also relied on S v Secretary of State for the Home Department [2024] EWCA Civ 1482. I heard evidence from the appellant through a Kurdish Sorani interpreter whom he confirmed he understood. I heard submissions from both parties and at the end of the hearing I reserved my decision.
The Legal Framework
6. The appellant has the burden of proving the underlying facts on which he relies. Given the date of his claim for protection (9 July 2021), he is to do so to the lower standard of proof, namely a ‘reasonable degree of likelihood’. I then have to decide whether it is reasonably likely the appellant would be persecuted for a Convention reason in respect of which there is neither sufficient protection nor a safe and reasonable internal relocation alternative. In this appeal, as noted in the refusal letter, it is accepted there would be neither of the latter if the appellant’s fears are well-founded.
7. The operative country guidance in this appeal is found within XX (PJAK, sur place activities, Facebook) (CG) Iran CG [2022] UKUT 00023 (IAC); HB (Kurds) (CG) [2018] UKUT 430 and SSH and HR (illegal exit: failed asylum seeker) (CG) [2016] UKUT 308, the relevant parts of which I discuss in further detail below.
Discussion of Evidence and Submissions
8. At para. 18 of his witness statement the appellant said:
“In relation to sur place activities I am unable to delete my account and return to Iran as there is a possibility that the authorities are already aware of my activities”.
9. As noted at [12] of the error of law decision:
“This was the only reference in the appellant’s witness statement to the reason why he says he is unable to delete his Facebook account. It is pertinent to note that the appellant maintained in his witness statement that the reason he operated his Facebook account was to support and share information relevant to the Kurdish cause. However, as set out above, the judge did not find the appellant’s account about that to be credible and found expressly that his Facebook account was opportunistic to support his false asylum claim.”
10. In his oral evidence at the re-making hearing, the appellant said that he still attends demonstrations and operates his Facebook account, although he has not provided updating evidence about that. He now maintains his Faceboook account himself rather than relying on friends as he did previously. He confirmed that he opened the account himself and that the details recorded therein include his allocated date of birth (his age was disputed on arrival) and his personal email address (a gmail account). He only has that email address. He was asked what he whether he would delete his Facebook account on return to Iran and he said he would not because he is in contact daily with his friends and that is his right. He says Facebook is the only mechanism available to him to communicate with his friends as it is through Facebook that he knows them. He does have Whatsapp. He knows most of his friends on Facebook in real life and sees them at demonstrations or because he goes out with them. They talk about daily life together. In re-examination, the appellant said that official communication, such as from the respondent, is sent to him at his gmail account.
11. This is the extent of updating evidence before me. It is for the appellant to satisfy me that it is reasonably likely that he will not delete his Facebook account despite not holding genuine political opinions.
12. Notwithstanding the issue for re-making, Ms Simbi submitted that it is enough to decide what is reasonable for an appellant to do in light of the preserved findings as it is not possible to say what he would in fact do. I reject this submission largely for the reasons I found an error of law in the judge’s approach to this issue and which I set out at [18] to [23] of the error of law decision. The case before me now is that there is a claim by the appellant that he would not delete his Facebook account and I have to evaluate the credibility of that claim in light of the preserved findings to decide if the appellant can satisfy me that it is reasonably likely he will not do so. I do not find that impermissibly speculative for the reasons set out in the error of law decision.
13. Ms Sepulveda’s submissions focused more on the appellant’s explanation in his oral evidence as to why he will not delete his account, which she says amounts to a private life breach. She made further submissions as to his risk on return if he did not delete it in light of the country information in HB (Kurds) as to the type of treatment and questions the appellant could expect on return to Iran. She further submitted that even if he were to delete it, he is likely still to be questioned as a returning Kurd and, under that sort of pressure, how would he react. She further submitted that given his email address remains the same as the one linked to his Facebook account, even if he deleted it, he would still be at risk.
14. I raised with Ms Supelveda that there is no evidence before me to support the latter submission. In my judgment in order to advance an argument on this basis, expert evidence would be required as to the interplay between an email address and a deleted Facebook account, particularly in light of para. [84] of XX in which the Upper Tribunal was emphatic that, once deleted, a Facebook account is not traceable after 30 days.
15. Ms Sepulveda agreed there is an evidential deficit on this issue. Nevertheless she maintained that the appellant cannot be expected to lie on return particularly if he was asked directly if had ever had a Facebook account.
Findings of Fact
16. I am not persuaded that the appellant will not delete his Facebook account at the relevant pinch point prior to his return to Iran. I say that for a number of reasons.
17. Firstly, the appellant has been found not to be a genuine political activist. His use of his Facebook account was opportunistic.
18. Secondly, the reason the appellant gave in his witness statement for not deleting his Facebook account has fallen away in light of the findings of the First-tier Tribunal.
19. Thirdly, in his oral evidence, the appellant no longer raised political opinion as a reason that he requires his Facebook account. Instead, it enables him to keep in contact with his friends. Whilst he may currently only use Facebook for that purpose, that does not mean to say it the only way he can do so. He confirmed he has access to Whatsapp and that is an alternative method for those he wishes to maintain contact with.
20. Fourthly, there is no medical evidence before me to suggest the appellant is deficient in his cognitive thinking or has some other medical condition to justify a conclusion that he might put himself at risk by failing to take action which will mitigate the risk of him coming to the adverse attention of the Iranian authorities on return to Iran.
21. Fifthly, the appellant appears to have progressed to being able to manage his Facebook account on his own and there is no evidence before me that he would be unable to close it. In any event, as his evidence previously was that his friends assisted him to open the account, I am not persuaded the appellant would be unable to avail himself of that opportunity should he require assistance to close it.
22. For the same reasons, it follows that there is also no reason to think the appellant would volunteer the fact of his activities in the UK nor the fact of his deleted Facebook account and I do not find he will do so.
Risk on Return
23. The appellant did not file any updating country information on the issue of risk, particularly on the issue of risk in the event that he does delete his Facebook account.
24. As set out above [13] and [15] above, some submissions were made to this effect applying the country guidance in HB (Kurds).
25. Turning to the country guidance, the issue of risk pertaining to sur place activities and Facebook was considered most recently in XX.
26. At [91] the Upper Tribunal said about the pinch-point of an application for a laissez passez or an emergency travel document (ETD):
“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, we nevertheless accept that 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 257 (IAC).”
27. Also of particular relevance is the following at [84]:
“The evidence about Facebook closure is unequivocal. It may reversed before 30 days, but not after that time, and after deletion, the data of the Facebook account is irretrievable, even if their password is later discovered.”
28. There were two exceptions to the above statement, but not in relation to access via Facebook or the user. Notwithstanding those exceptions, the country guidance as set out at headnote [6] of XX is:
“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”.
29. Therefore, I am satisfied that providing the appellant deletes his account earlier than 30 days before the first pinch-point, it is not reasonably likely that his previous Facebook account will be located by the Iranian authorities.
30. As to Ms Supelveda’s submissions about what might be reasonably likely to happen to the appellant on return even if he deleted his Facebook account, the first point to note is what the Upper Tribunal said at [97] of XX:
“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 the Iranian authorities”.
31. Next, it is necessary to turn to where the Upper Tribunal considered this issue under a separate heading from [98] – [102]. I set this out in full in the error of law decision which appears below at Annex 1 below.
32. However, of particular relevance, is the following at [100]:
“Decision makers are allowed to consider first, what a person will do to mitigate a risk of persecution, and second, the reason for their actions. If the person will refrain from engaging in a particular activity, that may nullify their claim that they would be at risk, unless the reason for their restraint is suppression of a characteristic that they have a right not to be required to suppress, because if the suppression was at the instance of another it might amount to persecution. It is difficult to see circumstances in which the deletion of a Facebook account could equate to persecution in this sense, because there is no fundamental right protected by the Refugee Convention to have access to a particular social media platform, as opposed to the right to political neutrality.”
33. In my judgment, these two passages are the answer to Ms Sepulveda’s submission at [13] and [15] above. The appellant will, on my findings, delete his Facebook account and by the same rationale, will not volunteer the fact of it. He can be expected to do that, without offending the HJ (Iran) principles, as there is no fundamental right protected by the Refugee Convention to have access to a particular social media platform and because he was found not to be a genuine political activist. In light of what the Upper Tribunal said at [97], the absence of a Facebook account has no significant consequence, so it follows that it is not reasonably likely the appellant will be asked about whether he has previously had one, so he need not lie.
34. For these reasons, I see no basis to depart from the judge’s findings [62]-[68] as far as his asylum claim is concerned, [69] as far as his humanitarian protection claim is concerned and [70]-[76] as far as his human rights claim is concerned. I have read these findings carefully and endorse and adopt them here with the addition of the foregoing as to the lack of risk arising from the appellant’s deleted Facebook account.
35. In summary on the protection issue, applying the totality of the country guidance referred to at [7] above, the appellant is not reasonably likely to be at risk arising from his Kurdish ethnicity and illegal exit of Iran, even taken together. He was not found to have done anything in Iran to have come to the attention of the authorities there and he has not been found to have already come to the attention of the Iranian authorities since being in the UK as a result of his sur place activities. He will have deleted his Facebook account in a timely fashion. Whilst the underlying factors of his ethnicity and illegal exit may heighten the scrutiny toward him on return, and whilst he is likely to face questioning, and with due regard to the hair-trigger approach of the Iranian authorities, the country guidance cases do not reveal that there is a reasonable degree of likelihood he will face treatment amounting to persecution upon his return to Iran on the basis of his political opinion or otherwise. For the same reasons, he is not at real risk of suffering serious harm so he does not qualify for humanitarian protection and nor does the respondent’s decision amount to a breach of his Article 2 or 3 rights.
36. The appellant’s claim on Article 8 grounds was not actively pursued before me. Nevertheless, in part for the same reasons as in the asylum claim, the appellant cannot show very significant obstacles to his reintegration into Iran, given that is where he lived for most of his life and he has family there. He has no family life in the UK although I am prepared to accept he has developed a private life over the time he has been here. There is little evidence about that life save that he has some friends he has here but I am prepared to accept that removal to Iran interferes with his private life to the extent that Article 8 is potentially engaged. The respondent’s decision is lawful and made in pursuit of the legitimate aim of effective immigration control. Applying the factors set out in section 117B of the Nationality, Immigration and Asylum Act 2002, there is significant weight attached to that legitimate aim particularly as the appellant does not meet the requirements of the Rules. There is no evidence before me that the appellant can speak English or is financially self-sufficient so these are also factors to be placed on the respondent’s side of the balance sheet. Little weight can attach to the appellant’s private life given that his residence here has been precarious throughout and there are no other factors individually or cumulatively about the appellant’s situation which outweigh those factors on the respondent’s side of the balance sheet or which render the respondent’s decision unduly harsh upon the appellant or anyone else. Accordingly, the respondent’s decision is proportionate and lawful under section 6 of the Human Rights Act 1998.
Notice of Decision
The appeal is dismissed on protection and human rights grounds.

SJ Rastogi
Judge of the Upper Tribunal
Immigration and Asylum Chamber
19 August 2025
Annex 1 – The Error of Law decision

DECISION AND REASONS
1. An anonymity order was made in the First-tier Tribunal. Neither party invited me to discharge it. I have maintained it because the importance of fulfilling the UK’s obligations under the Refugee Convention outweighs the principle of open justice.
2. The appellant appeals with permission the decision of a judge of the First-tier Tribunal (“the judge”) who dismissed his protection and human rights appeal by way of a decision dated 4 July 2024.
3. Permission was granted by Upper Tribunal on 2 October 2024. Upper Tribunal Judge Sheridan found it arguable:
“that the judge erred by failing to consider, in addition to whether the appellant could reasonably be expected to delete his Facebook account, whether he would in fact do so, given his claim that he would not. See paragraph 9 of the head note of XX (PJAK, sur place activities, Facebook) (CG) Iran CG [2022] UKUT 00023 (IAC), which refers to whether a person will close his account. Arguably, if the appellant (for whatever reason, however disingenuous) were to refuse to mitigate the risk of persecution by deleting the account, he would face a risk on return. It was therefore arguably necessary for the judge to make a finding of fact on whether he would delete it.”
4. The error of law hearing came before me today and both representatives attended. I had the benefit of a 971 page hearing bundle which both representatives had access to one or way or another. I heard submissions from both representatives and at the end of the hearing I reserved my decision.
The Position of the Parties
5. At the hearing, Mr Hussain confirmed that he was broadly relying upon the basis of the grant to argue the appellant’s appeal. The grounds themselves only ever challenged the judge’s findings on the risk arising from the appellant’s sur place activities. The appellant’s political activities in Iran were rejected for want of credibility and those findings were not challenged by way of the grounds. Mr Hussain’s primary submission was that it was incumbent on the judge to make a finding of fact as to whether or not the appellant would delete his Facebook account given paragraph 18 of his witness statement in which he said he would not.
6. The respondent filed a Rule 24 notice dated 9 October 2024. The respondent’s position was that applying headnote 9 of XX, the Tribunal was permitted to consider what somebody would do to mitigate the risk of persecution, although such an enquiry may be speculative. Any reasonable or rational adult would mitigate the risk by deleting their Facebook account before the application for emergency travel documents (“ETD”) was made and any alternative position would be incredible. In this instance there was no evidence (such as poor mental health) to suggest the appellant would not act reasonably. In any event, the respondent argued that it was never put before the judge that in the event the appellant was found to lack credibility in terms of his political opinion, he would nevertheless not delete his Facebook account and come to the attention of the authorities as a result. Accordingly, having not raised it before the First-tier Tribunal he should not now be permitted to succeed on this basis at the Upper Tribunal (Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC)) applies). Ms Simbi added to this in submissions, contending that the it would be speculative to ask the appellant at this stage as what he says now is likely be different to how he would act at the pinch point of applying for an EDT.
The Judge’s decision
7. The findings of fact start at paragraph 56. Of significance to the error of law hearing, the judge found as follows:
“(vii) The appellant arranged for a Facebook account to be opened in his name in May 2022. With help from friends, he posted anti-government material, as an opportunistic measure, to support his claim to be at risk on return to Iran.
(viii) The appellant has not been politically engaged in the UK, save at a very low level from mid-2022, informally attending a small number of demonstrations, and posting on Facebook with help from others.
(ix) The appellant could arrange for deletion of his Facebook account, or any entries which would otherwise cause the Iranian authorities to take an adverse interest in him on the basis of his apparent political activity in the UK.
(x) The appellant could reasonably be expected not to disclose the basis of his asylum claim when he returns to Iran. As a Kurd, he is likely to be sympathetic to the aims of the KDPI, but he has no firm political conviction which falls to be protected. He would not be obliged to tell the Iranian authorities the basis of his asylum claim, especially given that his claim is not credible.”
8. At paragraph 57, the judge noted the Iranian authorities take a “hair-trigger” approach to those suspected or perceived to be involved in Kurdish political activities. At paragraph 59, the judge reminded himself of the Country Guidance as set out in XX; HB (Kurds) (CG) [2018] UKUT 430 and SSH and HR (illegal exit: failed asylum seeker) (CG) [2016] UKUT 308. At paragraph 60, the judge found that as the appellant did not come to the authority’s attention before he left Iran “there is no reasonable likelihood that his social media postings would have come to the attention of the Iranian authorities”. Then at paragraph 61, the judge found as follows:
“As I have found that he is not a genuine political activist, I find that the appellant could reasonably be expected to delete his Facebook account. The materials on the account are not an integral part of his political freedom. It was not argued that, once the account is deleted, there would be any possibility of recovering the posts that were in the account, or that it would be otherwise accessible to the Iranian authorities. The effect of deleting his Facebook account would be that, if he were questioned by the authorities on his return to Iran, the political material posted since 2022 would be inaccessible to the authorities, and any potential risk to him would be neutralised, as there is no reasonable likelihood that it has been specifically monitored, as he is not a person of significant interest to the authorities”.
The judge then moved on to consider the various risk factors that might arise by virtue of the appellant being a Kurd.
9. From paragraphs 65-67, the judge applied the relevant Country Guidance and at paragraph 65, the judge found the appellant was likely to be stopped and questioned by the authorities. However, as he can be expected to delete his Facebook account, the judge concluded that the appellant does not have any characteristics “which would give the authorities cause to suspect his activities or perceive his actions in Iran or in the UK to have been political”. At paragraph 66 the judge decided that the risk posed by virtue of being an Iranian Kurd who exited illegally is not such as to give rise to a well-founded risk of persecution even though he would be, in those circumstances, subjected to heighted scrutiny.
10. At paragraph 67, the judge reminded himself of the low level of suspicion in Iran and that the appellant therefore would be subjected to questioning on return, but repeated his findings that the combination of risk factors do not give rise to an objectively well-founded risk of persecution. Accordingly, the judge dismissed the appeal on Refugee Convention, humanitarian protection and human rights grounds.
Discussion and Conclusions
11. At paragraph 18 of his witness statement the appellant said the following:
“In relation to sur place activities I am unable to delete my account and return to Iran as there is a possibility that the authorities are already aware of my activities.”
12. This was the only reference in the appellant’s witness statement to the reason why he says he is unable to delete his Facebook account. It is pertinent to note that the appellant maintained in his witness statement that the reason he operated his Facebook account was to support and share information relevant to the Kurdish cause. However, as set out above, the judge did not find the appellant’s account about that to be credible and found expressly that his Facebook account was opportunistic to support his false asylum claim.
13. Therefore, I can see the force in the argument that as the underlying reason for the appellant’s objection to deleting his Facebook account had fallen away, the judge was entitled to conclude, as he did at paragraph 56(ix) that it was reasonable to expect the appellant to delete his Facebook account.
14. In terms of whether XX requires a Tribunal to make findings of fact about what an appellant would do with their Facebook account in circumstances where they were found not to be credible, the parties are in disagreement.
15. For different reasons, both parties relied on XX, in particular paragraph 9 of the headnote which says as follows:
“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-bycase basis”.
16. The guidance at headnote 9 is lifted from more detailed discussion on these issues starting at paragraph 99 of the decision in XX and, for ease of reference, I set that out in full as follows:
“99. The key differences in our case are that the Iranian authorities do not persecute people because of their political neutrality, or perceived neutrality; and a returnee to Iran will not face an unpredictable militia, but a highly organised state. In our case, a decision maker is not falling into the trap of applying a test of what a claimant "ought to do," in cases of imputed political opinion. That was counselled against by Beatson LJ in SSHD v MSM (Somalia) and UNHCR [2016] EWCA Civ 715.

100. Instead, in deciding the issue of risk on return involving a Facebook account, a decision maker may legitimately consider whether a person will close a Facebook account and not volunteer the fact of a previously closed Facebook account, prior to the application for an ETD: HJ (Iran) v SSHD [2011] AC 596. Decision makers are allowed to consider first, what a person will do to mitigate a risk of persecution, and second, the reason for their actions. If the person will refrain from engaging in a particular activity, that may nullify their claim that they would be at risk, unless the reason for their restraint is suppression of a characteristic that they have a right not to be required to suppress, because if the suppression was at the instance of another it might amount to persecution. It is difficult to see circumstances in which the deletion of a Facebook account could equate to persecution in this sense, because there is no fundamental right protected by the Refugee Convention to have access to a particular social media platform, as opposed to the right to political neutrality.

101. The second part of our answer relates to Lord Kerr's concern about whether an analysis of what a person will do is too speculative or artificial an exercise. We accept Mr Jaffey's submission that there may be cases where the exercise is too speculative, particularly in the context of a volatile militia. That is not the case here.

102. We consider that it may be perfectly permissible for a decision maker to ask what a returnee to Iran will do, in relation to a contrived Facebook account or fabricated protection claim. Whether such an inquiry is too speculative needs to be considered on a case-by-case basis, but factors which may point to that question not being impermissibly speculative include: where a person has a past history of destroying material, such as identification documents, or deception or dishonesty in relation to dealings with state officials; whether the government has wellestablished methods of questioning (in the Iranian state's case, these are welldocumented and therefore predictable); and whether the risks around discovery of social media material, prior to account deletion, are minimal, because a personal's social graph or social media activities are limited.”[my emphasis]
17. The question of whether or not the appellant in XX would as a matter of fact delete his Facebook account, did not need to be answered in light of the fact that the Upper Tribunal found his political activities would reasonably likely have already come to the attention of the Iranian authorities and therefore he had a well-founded fear of persecution.
18. I have italicised at paragraph 100 of XX, a sentence which not only permits the Tribunal to ask an appellant about what they would do to mitigate the risk pf persecution but arguably requires them to do so. At paragraph 102, the Tribunal again reiterates the permissibility of asking an appellant, who is found to have a contrived Facebook account or fabricated protection claim, what they would do. But then, the Tribunal continued to consider whether such an enquiry is too speculative. This is to Ms Simbi’s point about the potential discrepancy in the evidence an appellant may give before a Tribunal when the prospect of removal is not imminent and the reality of what they might do (remembering they were found to have fabricated the basis for their asylum case and not be genuinely politically active) at the actual point of return or proposed return when applying for ETDs. She said on that basis the enquiry would be too speculative and she urges the Tribunal not to find that a failure to ask this question is an error of law.
19. Addressing the second half of paragraph 102, the appellant before me does not have a documented history of destroying material or dishonesty (save of course the adverse findings of the judge), but it is a case where the Iranian government has well-established methods of questioning and there is a judicial finding that the appellant’s Facebook activity and other sur place activity have not come to the attention of the Iranian authorities. Following what is said in paragraph 102 of XX, I am satisfied it would not be too speculative to ask the appellant whether, by the time of the pinch-point, he would delete his Facebook account.
20. Having established such a question would not be impermissibly speculative, I turn to whether a such a finding is required not just permissible. I derive assistance from the leading judgment of Lord Hope in HJ (Iran). It is clear from paragraph 35 that on the question of whether or not someone can take steps to mitigate their risk of persecution, a individual and fact-specific inquiry is required. At paragraph 35 Lord Hope set out the well-established test to be applied. Stage (b) was expressed as follows:
“(b) The next stage is to examine a group of questions which are directed to what his situation will be on return. This part of the inquiry is directed to what will happen in the future. The Home Office's Country of Origin report will provide the background. There will be little difficulty in holding that in countries such as Iran and Cameroon gays or persons who are believed to be gay are persecuted and that persecution is something that may reasonably be feared. The question is how each applicant, looked at individually, will conduct himself if returned and how others will react to what he does. Those others will include everyone with whom he will come in contact, in private as well as in public. The way he conducts himself may vary from one situation to another, with varying degrees of risk. But he cannot and must not be expected to conceal aspects of his sexual orientation which he is unwilling to conceal, even from those whom he knows may disapprove of it. If he fears persecution as a result and that fear is well-founded, he will be entitled to asylum however unreasonable his refusal to resort to concealment may be. The question what is reasonably tolerable has no part in this inquiry.”
21. Although in a different context, what is patently clear from this analysis is that it is incumbent on the Tribunal to establish what the factual situation on return will be. It is only by undertaking that analysis, that the next stage of the inquiry can be considered. That was set out at paragraph 35(d) and involves consideration of why someone will act in the way that they say (assuming they say they will conceal their activity) and then evaluate the reasons given to establish if those reasons include fear of persecution and then (at 35(d)) whether those fears are well-founded.
22. Furthermore, in his judgement at paragraph 109 of HJ (Iran), Sir John Dyson SJC said:
“It is well-established that in asylum cases it is necessary for the decision-maker to determine what the asylum-seeker will do on return: see Ahmad v Secretary of State for the Home Department [1990] Imm AR 6”
23. In my judgement, following XX when read in light of HJ (Iran) it was not sufficient for the judge to have decided what is reasonable for the appellant to do, it was incumbent upon him to determine what he would, in fact, do when presented with the reality of return to Iran. I am satisfied the judge fell into error here by failing to make a material finding. The error is patently material because it is only once that question is resolved that the Tribunal can determine what, if any, risk the appellant may face on return to Iran and whether or not the Refugee Convention is engaged.
Disposal
24. The decision of the First-tier Tribunal contains an error of law such that it is to be set aside pursuant to section 12(2)(a) of the Tribunal, Courts and Enforcement Act 2007 (“the 2007 Act”). The judge’s findings of fact are to be preserved as they are not challenged or infected by the error of law. For the avoidance of doubt that includes the following findings:
a) the appellant’s usage of his Facebook account was opportunistic [56(vii)] to support a fabricated asylum claim [60];
b) that it is not reasonably likely the appellant’s social media postings have come to the attention of the Iranian authorities [60];
c) that he is not a genuine political activist [61];
d) that the materials on his account are not an integral part of his political freedom [61];
e) there is no reasonable likelihood his Facebook account has been specifically monitored as he is not a person of significant interest to the authorities [61].
25. Once findings are made about whether or not the appellant will delete his Facebook account together with any necessary follow-up findings, risk on return will need to be re-visited in light of those findings.
26. Although Mr Hussain argued that the appeal should be remitted to the First-tier Tribunal, in light of the Court of Appeal’s decision in AEB v SSHD [2022] EWCA Civ 1512, the decision in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) and para. 7.2 of the Senior President’s Practice Statements, and having regard to the extent of the preserved findings, I find the appropriate course is for the appeal retained for re-making in the Upper Tribunal pursuant to section 12(2)(b)(ii) of the 2007 Act.
Decision
1. The decision of the First-tier Tribunal contained an error of law and is set aside.
2. It is to be re-made by the Upper Tribunal