Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004292

First-tier Tribunal No: PA/00234/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 18 July 2025

Before

UPPER TRIBUNAL JUDGE LANDES

Between

M H
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Villau, Counsel, instructed by Barnes Harrild & Dyer
For the Respondent: Mrs Arif, Senior Home Office Presenting Officer

Heard at Birmingham Civil Justice Centre on 29 April 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. This is the remaking, under section 12 (2) (b) (ii) of the Tribunals, Courts and Enforcement Act 2007 of the decision of the First-Tier Tribunal promulgated on 29 July 2024, dismissing the appeal of the appellant, (a national of Iran of Kurdish ethnicity) against the respondent’s decision of 14 December 2023 dismissing his international protection and human rights’ claims made on 1 January 2021.
2. The remaking follows the setting aside of the First-Tier Tribunal’s decision by Upper Tribunal Judge Ruddick on 6 March 2025 (see error of law decision annexed). Judge Ruddick considered that the First-Tier Tribunal had made a material error of law about the potential risk to the appellant for reasons of his sur place political activities and set aside the decision to that extent.
3. I have concluded, for the reasons I explain in full below, following the country guidance cases of BA (demonstrators in Britain – risk on return – Iran) CG [2011] UKUT 36, XX (PJAK – sur place activities – Facebook) Iran CG [2022] UKUT 23 (IAC) and the case of S v Secretary of State for the Home Department [2024] EWCA Civ 1482 that there is a reasonable degree of likelihood that the appellant’s political activities in the UK and on Facebook have already come to the attention of the Iranian authorities and so (see HB (Kurds) Iran (illegal exit: failed asylum seeker) CG [2018] UKUT 430 (IAC)) he would be at risk on return.
The hearing
4. The appellant had served further evidence (updated Facebook posts and logs of activity) since the error of law hearing. Mrs Arif had seen that evidence and did not object to its inclusion. I gave Mr Villau leave to ask the appellant questions about his activities in evidence in chief, as there was no further witness statement. Mrs Arif raised with me that there was now a new CPIN (April 2025) on social media, surveillance and sur place activities to which she wished to refer.
5. The evidence before me therefore and which I have taken into account is the evidence in the error of law bundle (“EOL bundle”) (which is not quite all the evidence before the First-Tier Tribunal, as the grounds of appeal suggest the appellant prepared a supplementary bundle which has not been copied in the error of law bundle), two Facebook activity logs (“comments and reactions”) for 2024 and 2025 respectively and a file of Facebook posts made after May 2024. I have also considered the recent CPIN.
6. I discussed with the representatives what the issue was to be decided which seemed to me to be whether the appellant would be at risk because of his sur place activities which had been found to be opportunistic. Mr Villau said that he appreciated UTJ Ruddick’s comments in respect of the general tenor of the submissions, but they were difficult to reconcile with her finding setting aside the decision.
7. It is important to appreciate what the issues were before Upper Tribunal Judge Ruddick. She explained that counsel appearing before her (not Mr Villau) only pursued the first ground of appeal (which I observe explained at [4] that whether the appellant’s political motivation was genuine or not was irrelevant) and expressly abandoned the second ground which was said to amount to nothing more than a disagreement with the First-Tier Tribunal’s credibility findings ([12]). I observe that the only challenge in the grounds to the First-Tier Tribunal’s credibility findings was to the findings of political activity in Iran. The grounds did not challenge specifically the First-Tier Tribunal’s conclusion that the sur place activity was opportunistic. The respondent’s representative before her stressed that the adverse credibility findings had not been challenged [21], UTJ Ruddick repeated that at [27], and continued to direct herself in law to the approach to asylum claims brought by someone whose political activity had been opportunistic. She referred to the approach to be taken in the recent Court of Appeal case of S and concluded at [35] “I conclude that the FTT did not engage in the careful scrutiny of the whole history of the appellant’s sur place activity that is required, or take into account the authorities’ “hair trigger” approach to Kurdish political activity described in HB “.
8. So although UTJ Ruddick set aside the decision with regard to the potential risk to the appellant for reasons of his sur place political activities, whilst explicitly preserving only the findings with regard to the appellant’s account of the reasons he left Iran, it was in the context that the First-Tier Tribunal’s findings that the sur place activities were not genuinely motivated was not challenged, even in the grounds. Accordingly, it is not an issue which arises for re-determination before me.
9. I then heard evidence from the appellant through a Kurdish Sorani interpreter. He confirmed the truth of his original witness statement and his witness statement of May 2024, gave details about his recent Facebook activity and attendance at demonstrations, was cross-examined and re-examined and I asked him a couple of questions.
10. Following the evidence I heard submissions from the representatives, which I summarise below.
11. Mrs Arif reminded me that the appellant’s activities were opportunistic. She said it was not clear when the appellant had attended demonstrations, as some pages carried the date of the post and some carried the date of the demonstrations. She submitted that the date of the demonstrations in the post at p 13 of the Facebook posts bundle had been changed. It was not clear when the appellant had attended demonstrations, and his evidence put forward in the Facebook accounts was not reliable. The appellant had not been an organiser, he had only spoken at one demonstration, he had held standardized placards and there was no evidence the demonstrations he was at were covered by the media. He had posed for a few photographs for the purposes of his claim standing in the middle of a crowd, there would be nothing to show he would come to the active attention of the authorities in Iran anyway. Mrs Arif agreed that we had the appellant’s activity log, but she said we did not have a log of the likes and comments on the appellant’s Facebook page, and we did not have the full disclosure in electronic format. She agreed that editing posts would show up on an activity log, but we did not know if editing settings (e.g. private/public) would turn up on an activity log and that diminished the value of the information we had. She submitted that the appellant would not already have been identified by the Iranian authorities, and he could close his Facebook to avoid further risk.
12. Mr Villau said that following S I needed to have regard to the whole history of the appellant’s attendance at demonstrations and his activities on social media bearing in mind the appellant’s ethnicity and with HB (Kurds) in mind. The authorities showed that even appellants who had been opportunistic could be at risk on return. The appellant said he was a member of a sizeable Kurdish Facebook group and that would be likely to be of interest to the authorities. The appellant had attended various demonstrations during the time he was in the UK and there were photos of him at demonstrations. I could be satisfied that he had genuinely attended multiple demonstrations and not just one or two but fourteen or so. He was not a leader, but he had addressed the crowd with a speaker phone or microphone. He had given evidence that the authorities in the Iranian embassy had taken pictures; we knew photos were taken of the crowd and given the numbers he attended and that one he had been a speaker in a high visibility jacket there was a real risk photographs had been taken. There was also a risk that his social media would have come to the attention of the authorities. We had full activity logs rather than simply printed photographs. We could see that most of the appellant’s activity was public; it was not put to the appellant that he had a private Facebook at any time, and it had always been his evidence that his posts and the like were public. We could see that he made comments going back and forth and we could see that other people had liked his posts. The nature of the posts was fairly inflammatory. For all those reasons there was a real risk he would come to the attention of the authorities even though his political activity was relatively low-level.
Discussion and findings
13. The appellant must show a well-founded fear of persecution for his (in this case) perceived political opinion. Although the burden of proof is on an appellant, I remind myself that the standard of proof is low, below the balance of probabilities, namely a reasonable degree of likelihood, which can also be expressed as a reasonable chance or a serious possibility.
14. Although the appellant has only produced the “comments and reactions” part of his Facebook “download your information” post the hearing before the First-Tier Tribunal, the error of law bundle already contained his full Facebook activity logs for 2021 to 2024 (up to 22 April 2024). Most activities were public (except for occasional likes which were only visible to his friends and visits to other people’s pages which were only visible to himself) and there was no evidence of any editing of posts. The most recent screenshots of his account suggested he continued to post publicly, and the “comments and reactions” section showed that his likes and comments continued to be mostly public. The appellant maintained in his witness statement that his account was public and it was not put to the appellant that he had changed his Facebook account settings to private.
15. I am satisfied that the appellant did attend the nine demonstrations he claimed to before the hearing in the First-Tier Tribunal. Whilst I understand Mrs Arif’s point about the unreliability of the evidence of someone who has been found to be opportunistic, there is not only evidence in the error of law bundle of screenshots of public postings showing the appellant at those demonstrations outside the Iranian Embassy, but also evidence of relevant activity in the Facebook activity log for those dates. I do not consider that the fact that it looks from the appellant’s post sharing a poster promoting a demonstration in June 2024 as if the date had been altered (the appellant said that the font had been increased in size) undermines his attendance at demonstrations on other dates where, as I have said, there is evidence linking those screenshots and activities on the appellant’s activity log. In any event, as I discuss below, there was a demonstration on 23 June 2024.
16. The appellant has described the activities he carried out at the nine demonstrations (see paragraphs 36 and 37 of his witness statement) and I am satisfied that he did carry out those activities, including holding anti-regime placards, waving the Kurdistan flag and, on one occasion, holding a microphone and chanting against the regime. I am satisfied he carried out those activities because the photographs (ps 42, 44, 50, 52, 55, 57, 59, 63 and 64 of the EOL bundle taking the page numbers from the pdf reader) show him carrying out these activities and he has not sought to exaggerate what he did for example he only claimed to have been speaking and wearing a high-visibility jacket at one demonstration, when he said he spoke for about one minute, and there were also many other people speaking. I note that the appellant’s activity log suggests he made live videos on Facebook at four of the earlier demonstrations. It is right that some of the photographs show the appellant in the middle of the crowd, turning towards the camera, but there are other photographs which show him as a demonstrator, participating in that demonstration, rather than simply having his photograph taken.
17. The appellant said in evidence that he had probably attended 5 more demonstrations since May 2024; he identified himself at a demonstration on 6 April 2025 (p 4 posts bundle), 15 September 2024 (p 6 posts bundle where he can be seen holding a Kurdistan flag at a protest in Trafalgar Square), 23 June 2024 (p 11 posts bundle holding anti-regime posters). He said that a picture of him (p 14 posts bundle) posted on 6 June 2024 at a demonstration was from a demonstration earlier that year – given his clothing and that he was in a high visibility jacket it looks as if it is one of the pictures taken at the demonstration in January 2024. I am only satisfied that the appellant has been on 3 additional demonstrations in the past year rather than 5; there are only pictures of him at 3 additional demonstrations and there is nothing in his activity log which suggests that he has been on more than 3. I observe that from the photographs the appellant posted on 23 June 2024 and from his activity log where he liked other people’s posts about the demonstration on that date, there does indeed seem to have been a demonstration on 23 June 2024 which is an indication, contrary to Mrs Arif’s submissions, that there was nothing sinister about the date alteration on the post advertising the demonstration.
18. I am therefore satisfied that the appellant has attended 12 demonstrations during the time he has been in the UK.
19. The appellant has also been active on Facebook. His activity log on Facebook goes back to February 2021, and since then he has been very regularly liking other people’s anti-government posts with the odd comment and making regular anti-government posts himself. His recent posts have attracted fewer likes and comments (after May 2024 between 9 and 46 likes and between 9 and 50 comments, some with a couple of “shares”) whereas a few of his earlier posts in 2021 and 2022 received over 200 likes and of the order of 300 comments. His posts are not sophisticated, mostly advertising protests, anti-regime photographs and reports which have the look of being copied from others or from news items of what the regime have done, but he has been active and prolific. He has over 4,900 Facebook friends.
20. Mr Villau submitted that the appellant was a member of a sizeable Kurdish Facebook group. That would certainly be consistent with the appellant’s activities of obtaining and reposting materials about demonstrations, but he could easily have exhibited the group activity section of the activity log. He has not. As the appellant’s Facebook settings mean that others cannot see what pages of individuals he has visited (the visits to other people’s pages on his activity log are numerous but are set to “only me” with a padlock rather than “public”), I am not satisfied that any visits to group pages would be public and therefore readily accessible by anyone who was monitoring Facebook or searching for publicly visible activity.
21. Putting together my findings, the appellant does not claim to have been an organiser of demonstrations or that he has been at demonstrations which have been filmed by the media or seen next to famous activists. Nevertheless, he has been a regular and frequent attender at anti-government demonstrations over the few years he has been in the UK and has spoken briefly at one. He has held up posters which the regime would consider offensive, and also full-size Kurdistan flags. He said that he saw people at the demonstrations taking photographs from the top of the Iranian Embassy. Although the appellant has not been found to be a credible witness, I accept that it is likely that photographs are taken of those at demonstrations; I have certainly seen in other cases photographs of people inside the Embassy taking photographs of demonstrators.
22. Following S (see [46] – [47] in particular), I have regard to the whole history of the appellant’s attendance at demonstrations and the whole history of his usage of social media since arrival and I consider its significance in relation to the risk to the appellant in accordance with the relevant country guidance.
23. The case of BA explains that relevant factors to be considered are the nature of sur place activity (how will demonstrators be characterised by the regime, role in demonstrations and political profile, extent of participation, publicity attracted), the identification risk (surveillance of demonstrators, regime’s capacity to identify individuals), factors triggering inquiry on return (person’s profile, immigration history), consequences of identification, identification risk on return.
24. That case explains (and the relevant paragraph [65] is repeated in the CPIN at 3.2.9) that the fact that the appellant’s participation in demonstrations is opportunistic, is unlikely to be a major influence on the perception of the regime. The demonstrations outside the Embassy are very much anti-regime with anti-regime chants, and posters and banners which would be very offensive to the regime, insulting regime leaders or the nation’s flag for example. To the official of the regime watching the demonstrations or viewing a photo, the appellant would look like someone who is genuinely interested in campaigning for the downfall of the regime; although not an organiser, he is not a bystander but an active and regular participant. The demonstrations the appellant has attended have not obviously attracted significant media coverage. The regime does conduct surveillance of demonstrators (as I have noted above) and there are officials who are able to recognise hundreds of faces at a time but the processes for identification are still haphazard (paragraph 3.2.7 of CPIN quoting BA). The appellant has no past profile with the Iranian authorities (given the preserved adverse credibility findings), but he left illegally and so at the pinch point of return is liable to be questioned. HB (Kurds) explains that the 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, in that the threshold for suspicion is low and the reaction of the authorities is reasonably likely to be extreme.
25. BA explains at [66] and again this paragraph is quoted in the CPIN that “for the infrequent demonstrator who plays no particular role in demonstrations and whose participation is not highlighted in the media there is not a real risk of identification and therefore not a real risk of consequent ill-treatment, on return”. Bearing in mind my findings above and the frequency with which the appellant demonstrates, although he does not play a particular role and has not been highlighted by the media, I consider that there is some risk that the appellant will already have been identified simply because of the regularity of his participation.
26. The CPIN accepts that a person who is “sur place” openly critical of the Iranian regime online may be subject to persecution on return (3.3.1). The Iranian State monitor social media although, as explained in XX (the first and second paragraphs of country guidance) there is a disparity between what the state claims it can monitor and what it can actually do:
“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.
27. Importantly XX explained (see [95]) that social media activity cannot be considered in isolation. Other sur place activities such as the role of an individual in demonstrations and the factors considered in BA are relevant to where an individual fits on the “social graph”.
28. Even considering the appellant’s Facebook activity in isolation, although not sophisticated it is regular, he has many friends, has made public anti-regime posts attracting significant numbers of likes and comments and very regularly publicly likes other friends’ anti-regime posts. He does not claim to know particular activists, but given the relatively long term (4 years) and regular nature of the appellant’s activities, even if he and his friends are just opportunistically liking and recirculating each other’s posts, the size of his friend group and the extent of his activities are such that there is some risk that his “social graph” is such that he has already come to the attention of the authorities.
29. Putting together the appellant’s regular relatively frequent attendance at demonstrations and his continuing frequent social media activities (as the Iranian authorities would do when they were making connections between the various pieces of evidence they are looking at, such as photographs of regular demonstrators and of names which come up regularly on anti-regime social media) I have described above, I consider that there is a real risk (which I remind myself is of course the lower standard below the balance of probabilities) that the Iranian authorities would already be aware of the appellant’s activities and therefore closing his Facebook account in a timely manner before return would not avoid the risk to him.
30. I am satisfied therefore that there is a reasonable degree of likelihood that the appellant would have already been identified as of interest to the Iranian authorities. Someone who has been so identified, even though the activity was opportunistic, is at real risk of persecution.
31. As the persecution would be because of imputed political opinion, the appellant’s asylum claim succeeds.

Notice of Decision
On remaking, I allow the appellant’s appeal on asylum grounds

A-R Landes

Judge of the Upper Tribunal
Immigration and Asylum Chamber

15 July 2025
Annex (Error of law decision)

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004292

First-tier Tribunal No: PA/00234/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

06/03/2025

Before

UPPER TRIBUNAL JUDGE RUDDICK

Between

M H
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: S Jegerajah, Counsel, instructed by Barnes Harrild & Dyer
For the Respondent: S Cunha, Senior Home Office Presenting Officer

Heard at Field House on 20 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
Introduction
1. The appellant appeals with permission against the decision of the First-tier Tribunal (“the FTT”) dismissing his appeal against the respondent’s refusal of his protection and human rights claim.
2. It is accepted that the appellant is a Kurdish citizen of Iran and that he engaged in at least some low-level political activity in opposition to Iranian regime after he arrived in the UK in December 2020. He argues that, in light of the country guidance caselaw on Iran, the FTT was wrong to decide that that political activity would not put him at risk of persecution if he were forced to return to Iran now.
3. For the reasons explained below, I have concluded that the FTT did err, and that part of the decision must be set aside and remade.
4. An anonymity direction was made by the First-tier Tribunal because the appellant has made a claim for international protection. I have not been asked to lift that order and I see no reason to do so unless and until the appellant’s protection claim is finally determined.
The appellant’s asylum claim
5. The appellant is a Kurdish citizen of Iran, born in Iran in 2001. He arrived in the UK on 31 December 2020 and claimed asylum the following day. In accordance with the respondent’s practice at the time, he was not asked about the basis of his asylum claim at his screening interview. On 19 April 2021, he submitted a witness statement setting out that he feared persecution by the Iranian authorities because he had smuggled pro- KDPI leaflets into Iran and because of his pro-Kurdish political activity since his arrival in the UK.
6. The respondent interviewed the appellant about his asylum claim in November 2023, and on 14 December 2023, she refused it. The respondent rejected the appellant’s account of events in Iran on credibility grounds. She then considered the appellant’s UK-based political activities with reference to XX (PJAK – sur place activities - Facebook) Iran CG [2022] UKUT 23 (IAC) and BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC) and found that they were too low-level to put him at risk on return. The respondent then considered the risk to the appellant based on his accepted Kurdish ethnicity and illegal exit, with reference to HB (Kurds) Iran CG [2018] UKUT 430 (IAC) and SSH and HR (illegal exit: failed asylum seeker) Iran (CG) [2016] UKUT 308 (IAC) and found that he would not be at risk because of the combined effect of these two factors.
7. The appellant appealed. In support of his appeal, he submitted 325 pages of personal evidence, including an appeal statement, a selection of Facebook screenshots, and Facebook Activity logs from February 2021 through April 2024.
8. The appeal then came before the FTT for hearing on 18 July 2024, and in a decision promulgated on 29 July 2024, the FTT dismissed the appeal on all grounds.
The challenged decision
9. In the challenged decision, the FTT summarised the parties’ cases, listed the evidence before it and summarised the appellant’s evidence at the hearing. It then concluded that the appellant’s account of events in Iran was not credible. The FTT noted a number of internal inconsistencies in the account at [19-21] and at [22-25] also put significant weight on the fact that appellant said that his family members in Iran had not been harmed, which the FTT considered inconsistent with the guidance in HB (Kurds).
10. With regard to the appellant’s sur place political activity, the FTT noted at [27] that the appellant “has attended demonstrations in the UK, albeit not in a leading role, and has a Facebook page.” Given his limited literacy in Farsi, he said he needed help to operate his Facebook page, and this was found to suggest that “he would not know the full contents of the posts being made.” At [28], the FTT noted that “If the Appellant is known to the authorities in Iran and is wanted by the them then these activities would increase the risk” for his family.
11. The FTT set out its conclusions as to the risk on return at [29]:
“Taking the points made in the Refusal Letter and the above into consideration I do not accept that the Appellant's account of events in Iran is credible. The inconsistencies in the narrative and the background evidence and guidance from HB (Kurds) are such that I do not believe that the Appellant was carrying political material, that he handed it over or dropped it or that his group was ambushed leading to his departure for the UK. I do not accept that the Appellant's sur place activities are genuinely motivated and I do not accept that they are known to the authorities. The Appellant can delete his Facebook account or relevant posts before returning to Iran”.
The appellant’s grounds of appeal
12. The issue before me is whether the FTT erred in its assessment of the risk to the appellant arising out of his political activities in the UK. The FTT granted the appellant permission to appeal on two grounds, but it noted that the second ground appeared to amount to nothing more than a disagreement with the FTT Judge’s credibility findings, and Ms Jegarajah expressly abandoned this ground at the hearing before me. I say no more about it.
13. The grounds set out that the appellant had submitted evidence that he had been politically active on Facebook for more than three years prior to the hearing, that he had 4,992 Facebook friends, and that his posts had generated comments and likes. In addition, he had submitted photographs of himself at demonstrations outside the Iranian Embassy in London, in some of which he was wearing a hi-vis jacket, and his uncontested evidence was that he had seen someone recording the demonstration from inside the Iranian Embassy.
14. Given this evidence, the FTT was said to have erred in three principle ways:
(i) By failing to take into account the extent and public profile of the appellant’s political activities in the UK; and
(ii) By failing to give adequate reasons for finding that this activity would not have come to the attention of the Iranian authorities; and
(iii) By treating the genuineness of the appellant’s beliefs as relevant to the risk on return.
15. There was no Rule 24 response.
The hearing before the Upper Tribunal
16. The appeal came before me for hearing on 20 December 2024 at Field House. Both representatives appeared by CVP videolink.
17. Ms Jegerajah clarified at the outset of the hearing that she was pursuing only the first of the two grounds on which the appellant had been granted permission to appeal, relating to the potential risks arising out of the appellant’s political activities in the UK.
18. After the parties confirmed that they had all of the papers they needed in order to proceed, Ms Jegerajah made her submissions. She submitted that the risk to the appellant had to be assessed within the context of the guidance in Iran that HB (Iran) that the Iranian authorities take a “hair trigger” approach to Kurdish political activity. She acknowledged that in the recent case of S v Secretary of State for the Home Department [2024] EWCA Civ 1482, the Court of Appeal had upheld the dismissal of an asylum claim by a Kurdish citizen of Iran who, like this appellant, had been found not to be credible with regard to his claimed political activities in Iran but had submitted photographs of himself attending demonstrations outside the Iranian Embassy in London. She stressed, however, that the Court of Appeal had not overturned HB (Iran), and further argued that the Upper Tribunal’s dismissal of S’s claim was based on specific findings about the nature of his sur place political activity – in particular, that he had not actually participated in any demonstrations but had stood apart from them merely in order to pose for photographs.
19. She then took me to this appellant’s evidence of his political activities and submitted that it was sufficient to put him at risk, in light of the Iranian authorities’ “hair trigger” approach.
20. There were several interruptions when Ms Cunha’s internet connection collapsed and we paused until she reconnected. Each time this happened, either I or Ms Jegarajah recapped the latter’s most recent submissions, in order to ensure that Ms Cunha was aware of everything that had been said. Proceeding in this manner, Ms Jegerajah was able to complete her submissions in full.
21. Ms Cunha began her submissions by stressing that the FTT’s adverse credibility findings had not been challenged. She then argued that although it was accepted that the appellant had attended demonstrations in the UK, it was not accepted that he had played a leading role in them and that the decision of the Court of Appeal in S meant that mere attendance at demonstrations outside the Embassy was not sufficient to put a Kurdish citizen of Iran at risk on return.
22. Unfortunately, at this point Ms Cunha’s internet connection became completely unstable. She froze or dropped out so often and in such rapid succession that it became clear that the hearing could not continue.
23. Ms Jegerajah then indicated that she would be content for the hearing to be adjourned, and for the respondent to be invited to make her submissions in writing. Due to Ms Cunha’s inability to communicate with the Tribunal, her response to this proposal could not be obtained.
24. I therefore adjourned the hearing and made the following directions:
(i) In the event that the appellant’s solicitors have not previously served the appellant’s error of law bundle of 18 December 2024 on the respondent, they are to do so by no later than 7 days after these directions are sent.
(ii) By no later than 14 days after these directions are sent, the respondent is to write to the Tribunal, copying in the appellant, indicating whether she agrees to the error of law stage of this appeal being decided without a further oral hearing. If no response is received, the Tribunal may conclude that she does not oppose it being so decided.
(iii) If the respondent informs the Tribunal that she does not agree to the error of law stage of this appeal being decided without a further hearing, the matter will be listed for a further hearing, for one hour, for the hearing of the respondent’s submissions on Ground One only, and the appellant’s response to those submissions. At that hearing, both representatives will be presumed to be familiar with the submissions made by Ms Jegerajah at the hearing on 20 December 2024, and those will not need to be repeated.
(iv) If the respondent does agree to the Tribunal deciding the error of law stage of this appeal without holding a further oral hearing, no later than 28 days after these directions are sent, the respondent is to file and serve her written reasons for opposing the appellant’s appeal, addressing Ground One only.
(v) If the respondent files such a written response, the appellant may respond in writing no later than 14 days after that response is sent.
25. The above directions were served on the parties on 13 January 2025. The appellant’s representatives filed a composite error of law bundle in accordance with these directions. There has been no response from the respondent. As it has now been six weeks since the directions were sent, in accordance with Direction (ii) above, I conclude that the respondent has agreed to the error of law stage of this appeal being determined without either a continuation of the adjourned hearing or further written submissions.
Discussion
26. In deciding whether the Judge’s decision involved the making of a material error of law, I have reminded myself of the need for restraint by appellate courts when deciding whether to interfere with a First-tier Tribunal decision. See: Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201, at [26], Yalcin v SSHD [2024] EWCA Civ 74, at [50] and [51], Gadinala v SSHD [2024] EWCA Civ 1410, at [46] and [47], and Volpi & Anor v Volpi [2022] EWCA Civ 464, at [2-4].
27. As Ms Cunha rightly pointed out, the appellant has abandoned his challenge to the FTT’s adverse credibility findings. That does not, however, resolve the matter. In Danian v Secretary of State for the Home Department [1999] EWCA Civ 3000, Lord Justice Brooke, with whom Lord Justices Buxton and Nourse agreed, endorsed UNHCR’s approach to asylum claims brought by someone whose political activity has been opportunistic:
“an asylum-seeker who can establish that he/she has a well-founded fear of persecution on Convention grounds should fall under the scope of the inclusion clauses [i.e. be recognised as a refugee], irrespective of whether the actions giving rise to such fear have been carried out in good or in bad faith. Accordingly, even if the applicant has created a claim to refugee status by resorting to opportunistic post-flight activities, it would not be right to deprive him of international protections and return him/her to his/her country of origin if it is established that the consequences of such return may result in persecution for one of the reasons enumerated in the 1951 Convention.
“We realise that this may encourage the misuse of the asylum system by persons who, without having real protection needs, want to create a refugee claim for themselves through irresponsible/ opportunistic actions. This consideration is, no doubt, an important one, as the misuse of the asylum system may eventually be detrimental to the interests of bona fide asylum-seekers and genuine refugees. For this reason, UNHCR would not object to a more stringent evaluation of the well-foundedness of a person's fear of persecution in cases involving opportunistic claims.
“In this connection, it should be borne in mind that opportunistic post-flight activities will not necessarily create a real risk of persecution in the claimant's home country, either because they will not come to the attention of the authorities of that country or because the opportunistic nature of such activities will be apparent to all, including to those authorities."
28. In other words, it is appropriate to scrutinise such claims carefully, but a fact-sensitive and country-specific analysis is still required. In this case, that analysis must be informed by the specific country guidance on Iran set out in the caselaw listed above at [6]. The appellant relies in his grounds on HB and on two points made in BA at [65}:
(i) “[T]he Iranian authorities attempt to identify persons participating in demonstrations outside the Iranian Embassy in London. […] There is insufficient evidence to establish that the regime has facial recognition technology in use in the UK, but it seems clear that the Iranian security apparatus attempts to match names to faces of demonstrators from photographs. […] the information gathered here is available in Iran.”; and
(ii) The Iranian regime’s perception of whether a demonstrator is a threat is unlikely to be influenced by whether their participation was opportunistic.
29. As pointed out by the Court of Appeal in S at [40], however, the guidance in BA was not that everyone who participated in anti-regime demonstrations in the UK would be identified or persecuted. On the contrary, in general, “for the infrequent demonstrator who plays no particular role in demonstrations and whose participation is not highlighted in the media there is not a real risk of identification and therefore not a real risk of ill-treatment, on return.”: BA at [66]
30. BA was promulgated in 2011 and was focussed on the regime’s response to the anti- government protests that followed the disputed elections of 2009. It must therefore be read together with the more recent case of HB, which deals specifically with the Iranian regime’s treatment of its Kurdish citizens, both in general and combination with specific risk factors, including illegal exit, residence in the Kurdish region of Iraq and anti-regime political activity. As set out in the headnote:
(4) […] 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 […]
(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.
31. As noted in S at [46-47], this means that a Tribunal considering an asylum claim by a Kurdish citizen of Iran must “have regard to the whole history” of both the appellant's attendance at demonstrations outside the Iranian Embassy and his usage of social media “since his arrival in the UK”, and “consider its significance in relation to the risk to the appellant, in accordance with the relevant country guidance […] cases”.
32. Having read the FTT’s decision in this case with care, and reminding myself of the principles of restraint outlined in the cases cited at [27] above, I conclude that the FTT did not do this. Although the FTT was clearly aware of HB, it considered it with regard to two issues only: the credibility of the appellant’s account of events in Iraq and the risk to him on return for reasons of his ethnicity and his illegal exit.
33. Although FTT judges must be assumed to know and apply relevant caselaw, the FTT’s reasoning in this case leads me to conclude that HB did not inform the assessment of the risks potentially arising out of the appellant’s political activities. Given that even “low level” political activity by Kurdish citizens of Iran can create a real risk of persecution, that the “threshold for suspicion is low and the reaction of the authorities is likely to be extreme”, it was not reasonably open to the FTT to accept at [27] that the appellant had engaged in political activities in the UK but then to find at [29] that those activities would not come to the attention of the authorities and would not place him at risk on return without explaining why.
34. Bearing in mind the principle that the FTT should not be required to set out every step in its reasoning in full, I have looked for indications of what the underlying reasons for this crucial finding might be. There are only three potential reasons mentioned: that the appellant did not have a “leading role” in the protests he attended in the UK ([27]), that he would not know the full content of what he had posted on Facebook (Id.), and that his activities were not genuinely motivated ([29]). Given what is said in HB about low level activity and in BA about opportunism, the first and third reasons would appear to be inconsistent with the country guidance. The relevance of the second reason is hard to understand, given that the risk on return would arise not from the appellant’s own political opinions, but from how they would be perceived by the regime.
35. I conclude that the FTT did not engage in the careful scrutiny of the whole history of the appellant’s sur place activity that is required, or take into account the authorities’ “hair trigger” approach to Kurdish political activity described in HB.
36. For these reasons, I find that the FTT’s decision involved the making of a material error of law.
Notice of Decision
The decision of the First-tier Tribunal involved the making of a material error of law with regard to the potential risk to the appellant for reasons of his sur place political activities. It is set aside with regard to that issue. The FTT’s findings with regard to the appellant’s account of the reasons he left Iran have not been challenged and are preserved.
Directions
1. I direct that the appeal be re-made in the Upper Tribunal on a date to be fixed, with a time estimate of 3 hours.
2. If either party wishes to adduce any further evidence, this must be served in electronic format on the other party and the Upper Tribunal at least 10 working days before the next hearing, accompanied by an application made pursuant to rule 15 (2A) of the Tribunals Procedure (Upper Tribunal) Rules 2008.
3. If the appellant wishes to give oral evidence, he must provide a witness statement capable of standing as evidence in chief, to be served in accordance with direction [2] above, and he must state if an interpreter is required and, if so, in which language.

E. Ruddick

Judge of the Upper Tribunal
Immigration and Asylum Chamber

24 February 2025