Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004379

First-tier Tribunal No: PA/62002/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

13th May 2025

Before

UPPER TRIBUNAL JUDGE MAHMOOD
DEPUTY UPPER TRIBUNAL JUDGE WILLIAMS

Between

AF
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms H Masih of Counsel, instructed by MH Solicitors
For the Respondent: Dr S Ibisi, Senior Presenting Officer

Heard at Manchester Civil Justice Centre on 7 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

Background

1. This is our remaking of the decision of First-tier Tribunal Judge Hillis (‘the Judge’) which was set aside in part by Deputy Upper Tribunal Judge Lewis in a decision promulgated on 14th February 2025.

2. The Appellant is a national of Iran whose protection claim was made to the Respondent on 19th November 2021. His claim was advanced on the basis that he was of adverse interest to the Iranian authorities because he was known to be involved in distributing leaflets for the Kurdish Democratic Party of Iran (‘the KDPI’), and also on the basis of his refugee sur place (‘sur place’) activity, which comprised of his attendance at demonstrations protesting the Iranian regime and posting political material to his Facebook account.

3. The Respondent refused the claim on 16th November 2023. Whilst she accepted the Appellant’s identity, nationality and Kurdish ethnicity, she did not accept that he was the subject of adverse attention from the Iranian authorities, nor did she accept his sur place activity was such that he would be at risk as a result.

The First-tier Tribunal Decision

4. The Appellant appealed to the First-tier Tribunal, and his appeal came before the Judge sitting at Manchester Piccadilly on 17th July 2024. The Judge heard oral evidence from the Appellant through an interpreter and heard submissions from the Presenting Officer for the Respondent and from Ms Masih of Counsel for the Appellant.

5. In his reserved decision promulgated on 29th July 2024, the Judge dismissed the appeal on all grounds. The Judge did not accept as credible the Appellant’s account of his involvement with the KDPI, on the basis of the inconsistencies between the Appellant’s narrative and the background evidence about the secrecy surrounding the activities of the KDPI. The Judge did not accept that the Appellant and his father had been followed to their home by the Iranian authorities.

6. In his conclusions concerning the Appellant’s sur place activity, the Judge considered the Appellant’s evidence that he had attended demonstrations, although he had not been interviewed by anyone at these demonstrations, nor had he been involved in organising them. His attendance was limited to chanting slogans.

7. The Judge considered the Appellant’s political engagement through Facebook and did not find his posts were a ‘true reflection of his committed political opinion’. The Judge took into account the fact the Appellant is illiterate and relied on friends to tell him what posts are in order to repost them. The Appellant could not explain how some of his posts were written in English when he could not read or write in English. The Judge found the Appellant had not submitted the ’Download Your Information’ file and had not shown his posts were not subject to manipulation.

8. The Judge found the Appellant had not shown that his Facebook would have been discovered by the Iranian authorities, and that the Appellant could be expected to delete his Facebook account prior to return. The Judge further concluded the Appellant would not be singled out for an ‘in-depth interrogation’ on return.

The Error of Law Hearing

9. The Appellant appealed to the Upper Tribunal with the permission of Upper Tribunal Judge Lodato. At the Error of Law hearing before Deputy Upper Tribunal Judge Lewis, the Appellant succeeded in one of the three grounds of challenge. That ground was that the Judge had made an error in finding the Appellant had not provided his ‘Download Your Information’ file, as he had done. The Judge therefore was mistaken in concluding the Facebook posts were not subject to manipulation, which in turn, affected the assessment of the risk to the Appellant on account of sur place activities.

10. Paragraphs 18 to 32 of the Judge’s decision were deemed unsafe and set aside. It is therefore the assessment of the Appellant’s sur place activity which are before us for determination.

The Resumed Hearing

11. Provided for the hearing before us was a bundle of 197 pages. Also provided, but only filed on the morning of the hearing, was a supplementary bundle of 71 pages. No explanation for the lateness was provided with the bundle, and so we asked Ms Masih to take instructions on the point. As we said at the hearing, we do not hold Ms Masih responsible for the lack of compliance, and we regret that as Counsel, it fell upon her to deal with the non-compliance of those instructing her.

12. The explanation provided by the solicitors was that the notice of hearing on 10th March 2025 with no specific directions. The Appellant’s statement finalised on 18th March 2025 and he sent his updated Facebook evidence on 19th March 2025. The evidence was then filed on 3rd April 2025 as the firm had a Legal Aid review on 19th March 2025, which required them to file the info regarding the matters under audit. They also had the specialist quality mark review on 20th March 2025 and a related meeting on 24th March 2025. A number of staff members were also said to have taken time off for Eid on 31st March 2025.

13. We rose briefly to consider whether to admit the supplementary bundle. We are not persuaded the issues raised provides a satisfactory explanation for lateness. Any solicitors’ firm ought to have systems in place to manage ad hoc events such as reviews, and staffing levels over Eid will no doubt have been anticipated. We did however note that the Appellant had provided the evidence to his solicitors two weeks before it was filed, and we did not think it fair to exclude the evidence on this basis.

14. The Appellant was present at the hearing and assisted by a Kurdish Sorani interpreter. The Appellant adopted his supplementary witness statement and was cross-examined by Dr Ibisi. We did not have any questions for the Appellant. We heard submissions from both advocates, summarised below. At the end of the hearing, we reserved our decision which we now give with reasons.

The Respondent’s Submissions

15. On behalf of the Respondent, Dr Ibisi relied on the reasons for refusal letter and the Respondent’s review which were both within the bundle. It was submitted the Appellant had not, even to the lower standard, established a profile which will have attracted the adverse attention of the Iranian authorities. With respect to his sur place activities, it was submitted they are no more than an opportunity taken to embellish his claim. In his supplementary witness statement, at [7] and [8], the Appellant continued to maintain an account of political activity in Iran which had already been rejected.

16. As far as his attendance at demonstrations was concerned, it was accepted he had indeed attended them. The Appellant had confirmed before the Judge that he had never been interviewed at the demonstrations and that his role was not a leadership or organisational role, but that he would attend and chant slogans with others. The Appellant was no more than a face in the crowd at these events and was only speculating that his presence had been noted by the Iranian authorities.

17. We were invited to consider paragraphs [121] to [129] of XX (PJAK - sur place activities - Facebook) Iran CG [2022] UKUT 00023, and to find that in the absence of any interest from the authorities whilst the Appellant was living in Iraq, it is not reasonably likely that he would now be ‘of significant adverse interest’ such that the authorities will have come to have viewed his Facebook profile.

18. The findings of the Judge in relation to the Appellant’s credibility concerning events in Iran had been preserved, and the Appellant had not become involved in sur place activity for almost a year after his arrival in the United Kingdom. We were invited to conclude the Appellant’s political activity was not an expression of genuinely held belief, was confected to bolster the claim, and subsequently there was no reason the Appellant could not delete his Facebook profile which would obviate any risk to him upon return.

The Appellant’s Submissions

19. For the Appellant, Ms Masih relied upon the skeleton argument provided to the Judge. Ms Masih submitted the starting point was that the Appellant had attended demonstrations and had posted on Facebook. That was not disputed by the Respondent. We were invited to consider the sur place activity distinctly from the findings made about events in Iran, with Ms Masih reminding us of what is said at [87] of WAS (Pakistan) v Secretary of State for the Home Department [2023] EWCA Civ 894:

It is a trite proposition that credibility is not 'a seamless robe', even if, on analysis, some, or most of the evidence proves to be incredible. Findings that some aspects of a witness's evidence are not credible should not, in a protection claim, be generalised to all his evidence.

20. Further, there was no cross-examination testing the Appellant’s motivation and, in any event, he had provided a detailed witness statement setting out his activities and explaining why they started a year after arrival. It was plausible that a person in a new country without friends would take time to become involved politically. The Respondent accepts his Kurdish ethnicity and it is plausible that the Appellant’s sympathies would lie with the Kurdish cause.

21. It was accepted the Appellant has no previous political profile, however his sur place activity would place him at risk upon return. The Appellant’s motivation is genuine and he has been candid and not sought to exaggerate his role in demonstrations. He has been posting over a long time, his posts are publicly accessible, and his photo appears not only on his profile, but those of friends. Even if the Appellant’s activities were not genuine expressions of political belief and he deleted his own profile, his photograph still appears online. The Appellant fits the profile of someone who would be questioned upon return to Iran and cannot be expected to lie. His profile would be examined and he would be at risk upon return.

The Law

22. To succeed in an appeal on protection grounds, the Appellant must show that he has a ‘well-founded fear of persecution’ for one of the reasons outlined in Article 1A of the 1951 Convention Relating to the Status of Refugees (‘the Refugee Convention’), i.e. his race, religion, nationality, membership of a particular social group, or political opinion. The standard of proof is that of a ‘reasonable degree of likelihood’, or a ‘reasonable chance’ or a ‘serious possibility’.

Analysis and Consideration

23. We start our consideration of the Appellant’s claim by looking at the risk which might flow from the Appellant’s attendance at demonstrations in the United Kingdom. In his supplementary witness statement at [16], the Appellant lists twelve demonstrations he claims to have attended. The first of these demonstrations was on 9th October 2022, and the most recent was on 23rd February 2025. Whilst there is no identification of where each of the demonstrations were, we note that before the Judge, the Appellant gave the locations as London, Manchester and Nottingham. This was not challenged before us and we accept that the Appellant attended these demonstrations as claimed at the locations which he identifies.

24. Having regard to BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36, we make the following findings. The Appellant, by his own evidence has not played any leadership or organisational role within these demonstrations. His involvement is limited to holding placards and chanting slogans with the rest of the crowd. It is not suggested that the Appellant’s attendance at these demonstrations has been the subject of media reporting either in Iran or the United Kingdom, or that his attendance would be publicised anywhere except the Facebook posts before us.

25. We do not consider that the Appellant’s presence at these demonstrations is reasonably likely to place him at risk upon return to Iran. In the photographs we have seen, the Appellant is no more than a face in a large crowd. There is nothing to suggest the Appellant has been noticed or identified by the Iranian authorities, his own evidence being that he has never received any threats as a result of his attendance at the demonstrations.

26. Turning to consider the Facebook evidence, it is prudent for us to deal first with the Appellant’s motivation in posting to Facebook. We accept the submission made by Ms Masih that there is nothing implausible about the Appellant, a Kurdish man, expressing sympathy for the Kurdish cause. We note however the credibility findings made about the Appellant’s activities in Iran. Those activities were rejected by the Judge and it follows that the Appellant has invented a false narrative in order to remain in the United Kingdom.

27. We remind ourselves that it does not necessarily follow that the Appellant is being disingenuous in his sur place activity. We have taken into consideration the Appellant’s delay in engaging politically in the United Kingdom. The Appellant was assisted by friends to set up his Facebook account and was initially simply reposting what they had posted. Whilst we accept the Appellant is likely to have a better command of Kurdish and English since his arrival, we do not find that alters the nature of the evidence. Looking at the photographs provided of the Appellant’s attendance at the demonstrations in his supplementary bundle, the majority of these photographs are of the Appellant facing the camera with his back towards the Iranian embassy. The nature of these photographs is such that they appear ‘staged’ for the purposes of evidence.

28. Taking these points together, we do not find that the Appellant’s sur place activity is an expression of genuinely held belief, but simply opportunistic in order to strengthen an incredible claim which has already been rejected. It is on this basis that we proceed to determine the risk flowing from the Appellant’s Facebook activity.

29. We note the Appellant did provide the ‘Download Your Information’ file referred to in headnotes [7] and [8] of XX (PJAK - sur place activities - Facebook) Iran CG [2022] UKUT 00023. We accept the Appellant has been active in posting to Facebook over a period of years. We further accept that his profile is public, and that there is engagement with his posts. We do not consider, when the Appellant’s profile is considered, that he would be a person of ‘significant interest’ to the authorities which would have prompted the targeted Facebook surveillance referred to at headnote [2] of XX.

30. There is no evidence before us that the Appellant has applied to the Iranian embassy for an Emergency Travel Document (‘ETD’), such that his Facebook profile would have been searched for by the authorities. We do not find that the Appellant has shown the contents of his Facebook profile are reasonably likely to already been known to the Iranian authorities, and there is therefore no risk to him on this basis.

31. Having found that the Appellant’s political activity is not genuinely motivated, and that he has not already attracted the attention of the Iranian authorities either in Iran or since coming to the United Kingdom, the Appellant could delete his Facebook profile before applying for an ETD which would obviate the risk to him upon return. We have taken into consideration the fact that images of the Appellant have been posted not only to his account, but to the accounts of other people.

32. We do not find the appearance of the Appellant on these other accounts would place him at risk. First, the evidence has been provided in ‘screenshot’ form and is therefore open to manipulation. Looking for example at the final page [70] of the Appellant’s supplementary bundle, whilst we recognise the Appellant in the photograph, he does not appear to have been ‘tagged’ in the photograph in a way which would identify him. Whilst the photograph is said to have been posted on 22nd December 2024, and has been ‘public’, we do not know whether this has been manipulated, i.e. posted to ‘Friends Only’ and subsequently amended to take the screenshot. There is no engagement by way of likes or comments with this photograph either.

33. None of those whose profiles the Appellant’s photograph appears on attended the hearing or provided any other evidence relating to the point. We were not provided with the ‘Download Your Information’ files for these accounts and as we have observed, we place limited weight on the evidence because screenshots are open to manipulation and do not necessarily provide an accurate reflection of what is contained on the profile. This is not a factor which we find would cause any risk to the Appellant.

34. We now turn to consider the Appellant’s return to Iran. Having regard to paragraph [98] of HB (Kurds) Iran CG [2018] UKUT 00430, the Appellant is likely to be questioned upon return to Iran by the authorities there. We bear in mind there is a “hair-trigger approach” to any perceived political support for the Kurdish cause. We have found the Appellant’s attendance at demonstrations will not have come to the attention of the authorities, and that the Appellant could delete his Facebook account before reaching the first ‘pinch point’ of applying for an ETD. In the absence of any pre-existing profile, the authorities are unlikely to have any adverse interest in the Appellant upon arrival in Iran.

35. We have considered what any questioning by the authorities is likely to reveal. We have considered what was said by the Supreme Court in RT (Zimbabwe) v SSHD [2012] UKSC 38, i.e. that the Appellant cannot be ‘expected’ to lie when he is questioned upon return. We note the Supreme Court were concerned with a scenario in which a person, despite their political neutrality, would be required to demonstrate their support for the ruling party. The Appellant would not be required to prove his loyalty or deny his political neutrality. As we have found the Appellant has no genuinely held political beliefs, he will not be required to deny them upon return to Iran (SR (Sri Lanka) v SSHD [2022] EWCA Civ 828 at [107]).

36. In the event the Appellant were asked about his activities in the United Kingdom, we conclude that the Appellant is a person who is willing to provide a false narrative to authorities when it is in his interests to do so. That is what he has done with the Respondent, with the Judge, and with this Tribunal. We find, having regard to that propensity, that the Appellant will not disclose any of the activities he has been involved in which have the potential to put him at risk upon return. Nor do we ‘expect’ the Appellant to lie. There is no need for him to do so because his activities were not genuine. Whether as displayed by him or others on their social media. Even on the lower standard, we are unable to accept the Appellant’s circumstances can lead to a successful appeal.

37. Drawing all of our findings together, we do not find the Appellant has shown that he would be at risk upon return to Iran, and his appeal against the Respondent’s refusal of his protection claim falls to be dismissed.

Notice of Decision

The decision of the First-tier Tribunal having been set aside in part, we remake the decision. The appeal is dismissed on all grounds.

CJ Williams

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

12th May 2025