Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004413

First-tier Tribunal No: PA/57993/2023

LP/00940/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

17th March 2025

Before

UPPER TRIBUNAL JUDGE KEBEDE
DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

M E
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr T Hussain, Counsel
For the Respondent: Ms Newton, Senior Home Office Presenting Officer
Interpreter: Mr Hossein

Heard at Manchester Civil Justice Centre on 4 March 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, [the appellant] (and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) 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 (and/or other person). Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. The Appellant is an Iranian citizen. His claim for asylum had been refused by the Respondent on 29 September 2023 but the First-tier Tribunal allowed his appeal on Convention grounds in a decision promulgated on 12 August 2024. The Respondent appealed this decision. Following an oral hearing on 20 December 2024, Upper Tribunal Judge Kebede found there had been an error in law on 13 January 2025 and set aside the First-tier Tribunal’s decision.

2. The appeal was listed for a resumed hearing before ourselves on the above date. Upper Tribunal Judge Kebede made clear in her directions and reasons that the appeal would centre solely around the risk posed to the Appellant as a result of his sur place activities and his Kurdish ethnicity. We gave permission for further evidence contained in a supplemental bundle containing 147 pages to be admitted, together with a witness statement for an additional witness, KE, the appellant’s uncle.

3. The following findings of the First-tier Tribunal Judge were retained:

a. The Appellant’s account of what caused him to leave Iran lacked credibility for the reasons contained paragraph [10] of the First-tier decision.

b. The Appellant’s sur place activities were low level.

EVIDENCE TAKEN AT HEARING

4. The Appellant and his uncle, KE, adopted their statements contained in the supplemental bundle.

5. The Appellant reiterated that he shared posts which reflected his opinion on different political matters including his support for the KDPI. He maintained that as his Facebook account was public anyone could view his posts and comment on them. He stated he was unwilling to delete his Facebook account or modify his beliefs which included demonstrating against the government and attending KDPI meetings. He confirmed he had in the past attended demonstrations against the regime in Liverpool, Newcastle, Birmingham and London and since December 2023 he had attended one further demonstration in London in February 2025 and one in Manchester in December 2024.

6. With regard to his Facebook posts these were in either Farsi, Kurdish Sorani or English and he had posted photos as evidenced in the bundles. Although a full download of his Facebook account was not contained in the bundle he stated he had submitted the same to his solicitors.

7. The Appellant and KE confirmed their relationship as paternal uncle/nephew. The Appellant claimed in his oral evidence he was a child when he last saw his uncle in Iran which would explain why, when he met his uncle at a demonstration outside the Embassy in London, his uncle did not recognise him at first. However, the Appellant told us that he introduced himself to his uncle and thereafter his uncle remembered who he was. He had not asked his uncle to attend his previous appeal hearing because his solicitors explained there was a letter from the KDPI which was sufficient evidence and his attendance was therefore not necessary.

8. KE is a member of the KDPI who had been granted refugee status in September 2023. He confirmed the Appellant had attended multiple demonstrations and different meetings for the KDPI and was an active supporter of the KDPI.

9. We were also provided with a letter from the KDPI dated 30 November 2024 which confirmed the Appellant was a sympathiser of the Party and that he had been forced to leave Iran due to the oppression he had been subjected to in Iran.

SUBMISSIONS

10. Miss Newton submitted that the appellant’s attendances at demonstrations, since the last hearing, were limited to two attendances The photographs in the supplemental bundle simply showed he attended but there was no evidence he gave speeches or played a major role. His activities remained low level and the Tribunal previously found he had not come to the attention of the authorities and if anything he had attended less demonstrations since his appeal had been allowed. Ms Newton relied on what the Tribunal said in XX (PJAK - sur place activities - Facebook) Iran CG [2022] UKUT 00023 and submitted the Appellant was not a genuine supporter and had attended meetings and posted on Facebook to bolster his claim.

11. She argued that if the Tribunal accepted this argument then the principles of HJ (Iran) and HT (Cameroon) v SSHD [2010] UKSC 31 would not apply and it would follow the Appellant could delete his Facebook account before any pinch point and would therefore not face the issues highlighted in PS (Iran) CG [2020] UKUT 00046.

12. The Appellant could delete his Facebook account to safeguard any risk prior to applying for an emergency travel document as there was no evidence that he was of any interest or he would have come to the attention of the authorities. The Facebook download in the bundle were simply excerpts and not the full document and this should have been provided. Ms Newton argued what is in the bundle provided limited information about his posts and did not show who had seen them or who liked his posts by way of example. These posts were handpicked and following XX were of limited evidential value. Deleting his Facebook did not amount to persecution. The uncle claimed they were close family and last saw him in 2018 but their evidence does not prove that they were related.

13. Mr Hussain invited the Tribunal to allow the appeal. The Appellant had shown he was active politically in this country. Mr Hussain disagreed with the Respondent’s position and submitted the Appellant had shown he actively supported the KDPI and was involved in sur place activities and he would continue those activities on return were that possible. The lack of a full Facebook download did not mean no weight could be attached to his evidence. The email from KDPI suggested they do not give out letters lightly. Applying XX he would be quizzed about his social media activities and he had stated he would not delete Facebook or stop attending demonstrations. Supporting the Kurdish cause is problematic as is the process of applying for travel documentation. The Appellant does not need to show that he was high profile or that he has come to the attention of the authorities as his case is he would continue his behaviour on his return. Mr Hussain invited us to allow the appeal.

DISCUSSION AND FINDINGS

14. The parties agreed at the outset of the hearing that previous findings relating to the Appellant’s life, before he came to this country, would be preserved as would the finding the Appellant was a low level supporter of the KDPI who had attended a number of demonstrations and posted or shared supporting messages on Facebook.

15. The additional evidence can be summarised as follows:

a. The supplemental bundle included Facebook posts made by the Appellant and pictures on Facebook that showed the Appellant standing with unidentified people at demonstrations and also pictured him at least one meeting. We were also provided with what may have been messages from his Facebook (pages 45-77) but their contact was not visible to us. His Facebook posts were predominantly posts that others had made which he was sharing (see pages 78-142) and some (pages 95 to 142) pre-dated the previous appeal hearing.

b. The Appellant was, according to the recent KDPI letter and his uncle’s evidence, a supporter of the KDPI but neither the letter nor his uncle’s evidence suggested the Appellant had ever spoken at meetings or demonstrations.

c. The KDPI letter stated, “we, the Democratic Party of Iranian Kurdistan (PDKI), hereby confirm that (the Appellant) is a sympathizer of our party. (The Appellant) was forced to leave Iran due to the oppression he was subjected to by the Islamic Republic of Iran.”

d. The KDPI letter had been emailed from the KDPI’s identified email address and its contents must be considered against earlier findings:

i. It was not credible given the secrecy that attached to membership of KDPI that R, the Appellant’s friend, would disclose his own membership and that the Appellant would be given such high level of responsibility so quickly; and

ii. The earlier email from the KDPI simply repeated information provided by the Appellant and whilst it carried little weight it did not harm the Appellant’s credibility and was best described as a neutral piece of evidence.

e. Since the First-tier Tribunal decision was promulgated on 12 August 2024 the Appellant had attended two demonstrations in December 2024 and February 2025.

16. We have had to assess how much weight we should attach to this new evidence and in particular the supporting KDPI letter and whether the totality of this evidence would place the Appellant at risk of persecution especially given what the Tribunal have said in the case law of HB (Kurds) (CG) [2018] UKUT 430, PS, XX and FA (Iran) v SSHD [2024] EWCA Civ 149 and what is contained the May 2022 CPIN: Kurds and Kurdish political groups.

17. Headnotes 9 and 10 in HB make it clear Kurdish ethnicity is an additional risk factor which, when combined with other factors including presence on social media and attendance at demonstrations, may create a real risk of persecution. In particular, headnote 9 reads, "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."

18. The issue therefore was not whether the Appellant attended demonstrations or posted on Facebook but whether the authorities would be (a) interested in people who attend demonstrations; (b) whether he would be identified; (c) what would an investigation into his Facebook reveal and (d) would even a genuine low level supporter be at risk of persecution.
19. The Tribunal in PS reiterated the following:
i. All returning failed asylum seekers are subject to questioning on arrival, and this will include questions about why they claimed asylum.
ii. If he is detained and his detention becomes prolonged, the risk of ill-treatment will correspondingly rise. Factors that could result in prolonged detention must be determined on a case by case basis. They could include but are not limited to:
a) Previous adverse contact with the Iranian security services;
b) Connection to persons of interest to the Iranian authorities;
c) Overt social media content indicating that the individual concerned has actively promoted his activities.
20. Having considered the totality of the evidence we find as follows:
a. Prior to coming to the United Kingdom the Appellant, had no political profile on social media and was not known to the authorities.
b. The Appellant is entitled to open and operate a social media account. He has done this albeit his posts are mainly photographs of him at demonstrations and predominantly shared posts of what other people had posted. They do demonstrate that he is anti-establishment and supportive of Kurdish political activity.
c. His Facebook posts were viewable by anyone. The Tribunal in BA (Demonstrators in Britain-risk on return) Iran CG [2011] UKUT 36 (IAC) and in XX made it clear that the Iranian authorities did not have the means to identify all protesters and there was no evidence placed before us, that there were tagged pictures of the Appellant which could be identified by the Iranian authorities. According to the expert evidence given in XX the authorities do not use facial recognition so the only way he could be identified would be if he showed the evidence to the authorities.
d. It is arguable that if he did not delete the account and then on return he disclosed the existence of his account and password to the authorities this could create an actual or implied adverse profile especially as he is of Kurdish ethnicity and it is reasonably likely he would be interviewed at the point he applied for a travel document and on return. If an account is deleted it may possibly still be stored in the cloud.
e. Shared posts would not automatically create a real risk in light of the fact that the deletion or closure of his account would have the automatic effect of deleting such posts although we accept a deletion of the account would have no impact if the entries had been screen printed or converted into another format or had been seen by the authorities.
f. The Appellant was neither a blogger nor a journalist nor an online activist. The Appellant would be spoken to in the UK by the Iranian authorities for the purposes of obtaining travel papers. The decision of AB and Others (Internet activity – state of evidence) Iran [2015] UKUT 0257 is not an authority that persons returning to Iran, otherwise than with a regular passport, and who had anti-government Facebook accounts would be at risk.
g. The KDPI letter supports his claim that he is a longstanding sympathiser of the KDPI. Whilst the letter states he was forced to leave Iran due to oppression there was nothing in the letter to explain how the writer of the letter was aware of this claim.
21. It goes without saying that if the appellant’s activities in this country imply genuine support for the Kurdish political views then applying the principles established in HJ (Iran), which were applied in the context of political opinion in RT (Zimbabwe) v SSHD [2012] UKSC, [2013] 1 AC 152, we would have to find that the Appellant would be at real risk of persecution if removed to Iran given what the Tribunal in XX said about the interview process for an emergency travel document and what the Tribunal referred in AB and PS to as the “pinch point” as well as the observations of the Court of appeal in FA (Iran).
22. Whilst we find it unlikely the Iranian authorities would be aware of the Appellant’s activities in this country we cannot overlook the fact that the totality of the evidence, especially since he has been in this country, namely the attendance at demonstrations, the social media activity, the letter from the KDPI and the evidence of his uncle, would, when considered cumulatively, support his claim to be a genuine supporter and consequently the principles of HJ (Iran) would apply.

23. For the above reasons we therefore find that returning the Appellant would lead to a real risk of persecution and/or serious harm.

Notice of Decision

An error of law was previously found. We have remade this decision and allow the Appellant’s appeal on Refugee and Article 3 ECHR grounds.

SP ALIS

Judge of the Upper Tribunal
Immigration and Asylum Chamber

10 March 2025