Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004521

First-tier Tribunal No: PA/54965/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

28th April 2025

Before

UPPER TRIBUNAL JUDGE HOFFMAN
DEPUTY UPPER TRIBUNAL JUDGE RICHARDS

Between

AA
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr H Samara, solicitor
For the Respondent: Mr M Parvar, Senior Home Office Presenting Officer

Heard at Field House on 31 March 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The appellant, who is a citizen of Iran, appeals against the respondent’s decision dated 25 July 2023 refusing his asylum and human rights claim.
2. The appellant’s appeal was originally heard and dismissed by the First-tier Tribunal in a decision promulgated on 14 August 2024. However, on 10 January 2025 we set aside that decision on the basis that it contained a material error of law, preserving the findings made by the First-tier Tribunal in respect of the events that took place before the appellant left Iran. We reserved the remaking to ourselves. A copy of our error of law decision is appended to this decision.
3. The First-tier Tribunal made an order granting the appellant anonymity. No application has been made to set aside that order. While we take into account the strong public interest in open justice, we continue the anonymity order on the basis that the appellant’s claim relates to a fear of persecution at the hands of the Iranian authorities and, for that reason, the balance weighs in favour of protecting his identity.
Background
4. The background to the case is set out at [3] to [7] of our error of law decision and is not therefore rehearsed here.
The hearing
5. The remaking hearing took place on 31 March 2025.
Issues
6. The parties agreed that the sole issue to be determined is whether the appellant faces a real risk of persecution on return to Iran on account of his sur place activities in the UK.
7. Mr Samara confirmed that the appellant’s case based on Articles 2 and 3 of the European Convention on Human Rights (“ECHR”) would stand or fall with his refugee protection claim; and that the appellant was not seeking to rely on Article 8 ECHR.
Evidence
8. We had the following documents before us:
a. The appellant’s 653-page First-tier Tribunal evidence bundle (“AB1”);
b. The appellant’s 22-page further First-tier Tribunal evidence bundle;
c. The appellant’s 42-page supplementary bundle prepared for this hearing (“ASB”);
d. The respondent’s 107-page First-tier Tribunal bundle (“RB”);
e. The respondent’s review dated 19 February 2024; and
f. The respondent’s written response to the appellant’s further First-tier Tribunal evidence bundle.
9. We also heard oral evidence from the appellant who adopted his two witness statements, dated 29 November 2023 and 24 February 2025, and was cross-examined by Mr Parvar. We had some clarificatory questions for the appellant and gave both Mr Parvar and Mr Samara the opportunity to ask follow-up questions. The appellant’s evidence is recorded in the record of proceedings and is not rehearsed here unless where it is necessary to do so.
Legal framework
10. As his asylum claim pre-dates the introduction of the Nationality and Borders Act 2022, to succeed in an appeal on asylum grounds, the appellant must show a well-founded fear of persecution for a Convention reason (race, religion, nationality, membership of a particular social group, political opinion). To succeed on an appeal on humanitarian protection grounds the appellant must show a real risk of serious harm at the date of the hearing. The burden of proof rests on the appellant. The standard of proof is a reasonable degree of likelihood, which can also be expressed as a reasonable chance or a serious possibility.
Findings
11. It is not in dispute that the appellant has claimed asylum for a Convention reason. The appellant argues that he would be at risk on return to Iran because, since arriving in the UK, he has posted anti-regime messages on his Facebook account and he has attended anti-regime/pro-Kurdish rights demonstrations outside of the Iranian Embassy in London, photographs of which have also been uploaded to his Facebook account. He claims that his Facebook account is public and it is therefore likely that the Iranian authorities would have come across it as part of their work of monitoring overseas activists. Furthermore, he claims that the Iranian authorities also monitor protests outside of their embassy and will have identified him from them. He relies on an expert report written by Dr Anicée Van Engeland and the country guidance case of HB (Kurds) Iran CG [2018] UKUT 00430 (IAC) to argue that there is a real risk that he will be stopped by the Iranian authorities on return to his home country and detained and tortured on account of his sur place activities.
The Facebook account
12. We begin with the evidence from the appellant’s Facebook account.
13. We have taken into account the report of Dr Van Engeland dated 22 December 2023 [AB1/24]. Dr Van Engeland is an associate professor of security and international law at Cranfield University and states that she has an expertise in Islamic law and Iranian law. She writes at paragraph 60 of her report that the Iranian government has “cyber police monitoring all activities online” and, therefore, if there are photographs of the appellant “participating in demonstrations…posted online, it is likely that these photos have been viewed by FATA, the State Cyber police, and/or the Revolutionary Guards’ Cyber Unit” and that they “could be used as evidence against him if he was returned to Iran.” At paragraph 61, Dr Van Engeland states that if the appellant’s Facebook “profile is public () [sic], it is likely the authorities have already visited his social media and collected the relevant evidence. Changing the status now to private would not change his situation.”
14. While there was no challenge by the respondent to Dr Van Engeland’s expertise, Mr Parvar did submit that her opinions did not accord with the findings made in XX (PJAK – sur place activities – Facebook) Iran CG [2022] UKUT 00023 and that it was the country guidance case that should prevail. In XX, the Upper Tribunal found that there is a disparity between what the Iranian state claims as to its ability to control or access the electronic data of its citizens who are in Iran or outside it, and its actual capabilities and extent of its actions: see headnote (1). In fact, the Upper Tribunal found that the evidence before it failed “to show that it is reasonably likely that the Iranian authorities are able to monitor, on a large scale, Facebook accounts.” The Upper Tribunal went on to find that while the assessment of whether a person is at risk of being detected is a nuanced one, this “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.”
15. We find that Dr Van Engeland’s report does suggest that the Iranian authorities have a greater capability to monitor the social media accounts of its citizens than that found by the Upper Tribunal in XX. While she does initially appear to caveat this to some extent at paragraph 62 where she acknowledges that “the authorities do not have the capability to monitor everyone” she nevertheless does go on to say that “it is likely that any activist who may have posted photos of [the appellant] on social media, combined with his own postings on a social media account, would have been noticed.” If correct, that might be said to cover many, perhaps nearly all, of the appellants both the First-tier and Upper Tribunals frequently sees in asylum appeals brought by young Kurdish Iranian men. However, while we acknowledge her expertise, we do not accept that Dr Van Engeland’s report on its own amounts to a clear and cogent body of evidence to show that the decision reached in XX was wrong: see SG (Iraq) v Secretary of State for the Home Department [2012] EWCA Civ 940. We therefore proceed to consider the appellant’s case in line with the findings made in XX.
16. Turning to the facts of the present case, screenshots of various posts having been provided in all three of the appellant’s evidence bundles. By the appellant’s own admission, he has not posted anything since August 2024 which, as Mr Parvar submitted, does not sit well with the appellant’s claim to be continuously active on social media. We note that many of these posts feature photographs of the appellant on what he claims are anti-regime protests in London; others are messages critical of the Iranian regime and its treatment of opponents. Some of the posts have been translated into English, some have not. The posts in English appear to have been translated using Facebook’s built in translation tool and not by a certified translator, which we find lessens the weight we can attach to them. Moreover, we take into account the findings set out in the country guidance of XX, in particular headnotes (7) and (8) which say:
“7) Social media evidence is often limited to production of printed photographs, without full disclosure in electronic format. Production of a small part of a Facebook or social media account, for example, photocopied photographs, may be of very limited evidential value in a protection claim, when such a wealth of wider information, including a person’s locations of access to Facebook and full timeline of social media activities, readily available on the “Download Your Information” function of Facebook in a matter of moments, has not been disclosed.
8) It is easy for an apparent printout or electronic excerpt of an internet page to be manipulated by changing the page source data. For the same reason, where a decision maker does not have access to an actual account, purported printouts from such an account may also have very limited evidential value.”
17. Despite the First-tier Tribunal having found that only a limited degree of weight could be attached to this evidence as a result of the appellant having provided limited disclosure of his Facebook account data, we find that the appellant has not adequately rectified this deficiency before us. The appellant has sought to comply with the requirements of XX by stating at paragraph 5 of his most recent witness statement that he has used the Download Your Information function and saved his Facebook data to a USB drive which he is “willing to forward to the Home Office once they receive my statement”. He also includes a photograph of a USB drive in his supplementary bundle [ASB/43] and, during the hearing, Mr Samara showed that he had this in his possession, informing the tribunal that it had too many pages of data for him to go through.
18. We find that it is not adequate for appellants to seek to comply with the findings in XX by doing what the appellant had attempted to do in the present case. The burden of proof lies on the appellant to provide the evidence on which he seeks to rely to the Tribunal. An appellant cannot get around this by offering the respondent access to a USB drive so she can review the data herself and decide what should be admitted as evidence. That is especially the case where the offer to share the data, set out in a witness statement, is unlikely to be picked up by the respondent until the presenting officer prepares for the case shortly before – perhaps the day before – the hearing date. Furthermore, there are security reasons why the Tribunal is unable to access data from a third-party USB drive and we imagine the same is likely to apply to the Home Office.
19. During the hearing, Mr Samara also offered to show us the appellant’s mobile phone so that we could see that his Facebook account is active and public. We declined on the basis that this would be of little evidential value given that we and Mr Parvar would not have sufficient time to interrogate the account and doing so would provide only a snapshot of the account at that particular point in time.
20. The appellant has also provided a printout of his Facebook account which says that the default for “audience” and “stories” are both “Public” [ASB/41]. However, in the absence of the timeline or other data from his account we cannot be satisfied that this demonstrates that his account has always been public and not just at the moment that screenshot was taken. Mr Parvar submitted that there was insufficient evidence to prove that the account is public. He relied on the fact that while the appellant had claimed in cross-examination that his account had always been public, some of the posts provided by him clearly were not because they did not feature the globe icon and he referred the Tribunal to posts from 19 November 2021 and 22 November 2022 [RB/82 and 84]. Mr Parvar is correct that the appellant’s Facebook account does not appear to have been public on those two dates. While it is of course possible that the account has been public on other dates, we find this to be damaging to the appellant’s credibility given his claim that his account has always been public.
21. While we accept that most of the posts do feature the globe icon, and while we note that printouts suggest that the appellant has 3.1k friends, as the appellant has not properly disclosed all of his account data by using the Download Your Information function, we find that we can attach little weight to the Facebook material before us as evidence that the appellant publicly posts anti-regime messages or that he has a significant number of online friends.
22. We consider the extent to which the Iranian authorities are likely to have accessed the appellant’s Facebook account below at [30].
Attendance at demonstrations
23. According to paragraphs 8 to 15 of his most recent witness statement, the appellant says that he has attended seven demonstrations in London between 17 November 2021 and 9 June 2024. He has provided photographs of him purportedly at these demonstrations in his bundles, but it is difficult to tell which demonstrations they relate to or whether they cover all seven. Mr Samara argued that it was likely that the Iranian authorities monitored demonstrations outside of their embassy and he sought to rely on the case of YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 360. We accept that it is plausible that the Iranian authorities do monitor protests outside of their embassies, including in London, although that does not necessarily mean that they are able to identify each and every person who takes part. There is insufficient evidence before us that they are so able.
24. Mr Parvar submitted that the photographs provided by the appellant do not prove that he actually took part in any demonstrations. Mr Parvar is correct in saying that in all of the photographs, the appellant is posing for the camera, often with a small A4-sized poster which he claims displays an anti-regime message. The photos are held low, around the appellant’s stomach. He is not brandishing a placard held aloft. None of the photographs show the appellant within a crowd of protesters or, so far as we can tell, in front of the Iranian embassy. In many, he is far away from the crowd or no crowd can be seen: see, for example, [ASB/12, 13, 26, 33 and 35]. In many others, the appellant is merely adjacent to the protest. The photographs cannot tell us how long he was present at any of the demonstrations. While we accept Mr Samara’s submission that the presence of police officers and barricades in the photographs suggests that they have been taken at a protest, we are not satisfied, even to the lower standard, that the appellant took part in them in any meaningful way so as to have created a real risk that he would have stood out.
25. In reaching our finding, we have also taken into account that even if the appellant has attended seven demonstrations, this was over the course of three years and he has not attended any events for almost a year – according to him, because he has been busy with other things. We find that the lack of frequency coupled with his lack of profile militate against the risk of the appellant having being identified by the Iranian authorities.
Conclusions on risk
26. Having made the findings above, we turn to consider whether the appellant will be at risk on return to Iran. In doing so, we have had regard to the country guidance case of HB (Kurds) Iran CG [2018] UKUT 00430 (IAC).
27. As the Upper Tribunal made clear in HB, a person will not face a real risk on return to Iran on account of their Kurdish ethnicity alone, even where (as is the case here) they have left the country illegally: see headnotes (1) and (4). Nevertheless, Kurdish ethnicity is a risk factor when combined with certain other factors, including those set out in headnotes (6) to (9).
28. We note that Dr Van Engeland writes at paragraph 83 of her report that the appellant “could” be arrested on return and charged with the offence of leaving the country illegally. However, she does not say how likely this is to occur and, as with her findings on the authorities’ ability to monitor social media accounts, we do not find her evidence to be sufficient to depart from the country guidance.
29. As explained in our error of law decision, the First-tier Tribunal was entitled to find that the appellant had fabricated his claim to have come to the adverse attention of the Iranian authorities before he left the country. Those findings have been preserved. Therefore, this is not a case where the appellant is likely to be stopped on return to Iran on account of pro-Kurdish activities, real or perceived, within his home country.
30. Furthermore, while even low-level political activity can put a Kurdish person at risk, for the reasons given above, we are not satisfied to the lower standard that the appellant is likely to have come to the adverse attention of the Iranian authorities on account of his social media activities or through his attendance at demonstrations in the UK:
a. Given the appellant’s failure to properly disclose the information obtained through using the Download Your Information function, we are not satisfied from the evidence before us that he has published anti-regime material online or that his account is public. In reaching this finding, we take into account that contrary to the appellant’s claim that his account has always been public, some of his evidence suggests otherwise (see [20] above). We also take into account that he manufactured a claim to have been at risk in Iran before coming to the UK, which also means that his evidence should be treated with caution. Furthermore, noting that XX says that it is not reasonably likely that the Iranian authorities are able to monitor Facebook accounts on a large scale, and the likelihood of Facebook material being available to the authorities is affected by whether an individual has been of “significant interest” to them at any material time, given the appellant’s lack of profile, both here and in Iran, we are not satisfied to the lower standard that they will likely have come across his social media account even if it is public.
b. Additionally, his attendance at anti-regime demonstrators is, at its highest, occasional and peripheral. That is supported by, as Mr Parvar pointed out, the appellant’s vagueness when explaining what the protests he attended were about. Whether or not taken into account alongside his social media account, we are not satisfied from the evidence before us that his attendance at protests has likely brought him to the attention of the Iranian authorities.
31. We find that while as a Kurd the appellant likely disagrees with the discrimination faced by Kurdish people in Iran, there is insufficient evidence before us to show that he has a real interest in politics, something supported by the fact that he has not attended any demonstrations or posted anything online for some time and that he has not joined any political organisation. We find that his claims to have posted political messages on Facebook and attended demonstrations in the UK are designed solely to bolster his asylum claim rather than being manifestations of a genuine desire to be politically engaged.
32. At headnote (6) of XX, the Upper Tribunal found that the timely closure of a Facebook account will neutralise the risk of harm on return. We take into account that at paragraph 19 of his latest witness statement, the appellant claims that if he is returned to Iran, he would not close his Facebook account and, if asked by the authorities in Iran, he would volunteer the fact that he has a Facebook account. We do not find that to be credible. The First-tier Tribunal has found the appellant’s claim to have been persecuted in Iran to a fabrication and we have found the appellant’s claimed sur place activities to be no more than an attempt to bolster his claim. He is, therefore, a person willing to mislead authorities if he believes it will assists him. In that light, we are satisfied that the contents of paragraph 19 are a hopeless attempt by the appellant to contrive a further situation that he hopes will prevent his removal. As explained above, we are not satisfied to the lower standard that the appellant is genuinely politically engaged and we do no therefore accept that the deletion of his Facebook account would be a point of principle for him. Therefore, this is not a case where HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 applies. Furthermore, XX says at headnote (9):
“…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….”
We are not therefore satisfied, even to the lower standard, that the appellant would refuse to close his Facebook account or be willing to inform the authorities that he has one.
33. In summary, we find that while the appellant will be returning to Iran as a Kurdish male who left the country illegally, those things alone will not lead to a real risk of persecution, and he does not have any other risk factors that are reasonably likely to bring him to the attention of the Iranian authorities, even when one considers their “hair-trigger” approach to those suspected of involvement in Kurdish political activities.
Conclusion
34. For the reasons set out above, we find that the appellant has not established to the lower standard that he faces a real risk of persecution on return contrary to the Refugee Convention, that he is entitled to humanitarian protection, or that there is a real risk that he would face treatment contrary to Articles 2 and/or 3 ECHR.

Notice of Decision
The appeal is dismissed on Refugee Convention grounds
The appeal is dismissed on human rights grounds

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

16th April 2025

Appendix: Error of law decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004521

First-tier Tribunal No: PA/54965/2023
(LP/01436/2024)

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE HOFFMAN
DEPUTY UPPER TRIBUNAL JUDGE RICHARDS

Between

AA
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr H Samra, solicitor
For the Respondent: Ms S Nwachukwu, Senior Home Office Presenting Officer

Heard at Field House on 17 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, who is a citizen of Iran, appeals with permission against the decision of First-tier Tribunal Judge B Hughes (“the judge”) promulgated on 14 August 2024 dismissing his appeal against the respondent’s decision dated 25 July 2023 refusing his asylum claim.
2. The First-tier Tribunal made an order granting the appellant anonymity. No application has been made to set aside that order. While we take into account the strong public interest in open justice, we continue the anonymity order on the basis that the appellant’s claim relates to a fear of persecution at the hands of the Iranian authorities and, for that reason, the balance weighs in favour of protecting his identity.
Background
3. The appellant was born in 2005. He is of Kurdish ethnicity. He claims to have left Iran illegally in 2021 and travelled through Turkey, Italy, France and other unknown countries before entering the UK illegally by small boat on 14 June 2021. The appellant claimed asylum the same day.
4. The basis of the appellant’s asylum claim is that his uncle held a high position in the Kurdish Democratic Party of Iran (“KDPI”). The appellant says that he used to take food to his uncle and other members of the KDPI when they were having meetings and that, on two occasions, he was asked to put up KDPI posters on walls. On the second occasion, the appellant claims he was spotted and chased by the Pasdaran (also known the Islamic Revolutionary Guard Corps). Having evaded them, he went home for the night and the next day went to work as a shepherd. However, he claims that when he returned home from work, he saw the Pasdaran beating up his parents. The appellant says that he then ran to his uncle’s house and that his uncle arranged for him to flee Iran.
5. In her decision dated 25 July 2023 dismissing the appellant’s claim, the respondent accepted that the appellant was an Iranian Kurd who had left Iran illegally. However, she was not satisfied that he had faced adverse attention from the Iranian authorities for helping the KDPI. The respondent found that the appellant had given an inconsistent account of his story, including on the point about who had supplied him with KDPI posters: his uncle or other members of the KDPI.
The decision of the First-tier Tribunal
6. The appellant exercised his right of appeal to the First-tier Tribunal. However, in the decision promulgated on 14 August 2024, the judge dismissed the appellant’s appeal. The judge found that the appellant had given inconsistent accounts in relation to who had asked him to put up the KDPI posters and he had failed to provide any explanation as to why the authorities would have searched his home when he claimed that the Pasdaran had not recognised him when putting up the posters: see [24] to [26]. Neither did the judge find it plausible that the appellant would have returned home to sleep at his house if he feared the Pasdaran. The judge also rejected the appellant’s claim that he was no longer in contact with his family in Iran: see [29]. The judge took into account an expert report prepared by Dr Anicée Van Engeland and accepted her account of the difficulties Kurdish people face in Iran [35]. However, the judge found that Dr Van Engeland’s assessment of the risks posed to the appellant specifically was entirely dependent on the appellant’s account being true.
7. The judge also took into account the appellant’s sur place activities in the UK. The judge attached limited weight to screenshots of the appellant’s Facebook account on the basis that these could be manipulated [41]. The judge also found that the appellant’s surname was spelt differently on his account, which he found would be sufficient to evade a search on his name by the Iranian authorities [42]. In relation to the appellant’s claim that he attended anti-Iranian demonstrations in the UK, the judge found that while there were some photographs in evidence, there was no evidence that the appellant had attended any in 2020 or that he last attended one in 2024 [43]. At [50], the judge took into account the “hair trigger approach” of the Iranian authorities and, taking the appellant’s claim at its highest, found that the risk to the appellant would be “significantly greater if he were to be regarded by the authorities as a person with a much higher profile or substantial role with the KDPI, but that is not the case”. The judge also found that there was nothing in his social media posts that would have drawn him to the attention of the Iranian authorities; and that the appellant would likely close his Facebook account if returned to Iran and would not volunteer his political activities if questioned [52].
The appeal to the Upper Tribunal
8. In a decision sealed on 17 October 2024, Upper Tribunal Loughran granted the appellant permission to appeal. The appellant raises five grounds, which we summarise below:
a. The judge erred in placing too much weight on issues of credibility and inconsistency without having proper regard to the fact that the appellant was “an inexperienced asylum seeker”.
b. The judge acted unfairly in finding that the appellant had given inconsistent evidence about who had asked him to put up the KDPI posters without the appellant having been given the opportunity to address and clarify this.
c. The judge failed to attach sufficient weight to the expert report.
d. The judge should have attached more weight to the appellant’s argument that he could be identified through his photos on his Facebook account.
e. The judge accepted that the appellant is an Iranian Kurd who had left the country illegally, but erred by failing to consider whether the appellant could be forced to go through facial recognition on return to Iran and forced to log into his Facebook account.
Findings – Error of Law
9. Having heard from the parties at the hearing, we were not satisfied that the five grounds of appeal as advanced by the appellant identified a material error of law in the judge’s decision. However, we are satisfied that the appeal succeeds on an additional point that arose during the hearing relating to the judge’s findings at [50] regarding the appellant’s sur place activities.
Ground 1: Failure to take into account the appellant’s young age
10. At the hearing before us, Mr Samra, acting on behalf of the appellant, sought to frame his argument as the judge having failed to take into account that the appellant was a teenager at the time of the claimed events when making the adverse credibility findings against him. However, we are satisfied that the judge correctly had regard to the appellant’s young age and expressly made allowances for this when considering his evidence: see [6], [24] and [26].
Ground 2: Procedural unfairness
11. In respect of Ground 2, we are not satisfied that the judge acted unfairly in finding that the appellant had given an inconsistent account of who had asked him to put up the KDPI posters. According to the judge, the appellant had given three accounts of this: see [22] and [23]. In his asylum interview, the appellant said that his uncle had given him the posters and that nobody else knew about this. In his witness statement of 29 November 2023, the appellant said that the KDPI asked him to put up the posters. And during oral evidence, the appellant said that neither the uncle nor the KDPI had asked him to put up posters. At [24], the judge found that even taking into account the appellant’s youth and the passage of time, the differences in the appellant’s account undermined his credibility. There is no evidence before us that the appellant was not asked to explain these inconsistencies during the hearing. In any event, we are satisfied that the appellant could reasonably have expected his inconsistent evidence about who had asked him to put up the posters to be relevant to his appeal because (a) it has been expressly raised in the refusal decision; and (b) the respondent had raised the appellant’s failure to provide an internally consistent account as an issue to be determined at paragraph 5 of her review dated 19 February 2024. It was therefore open to the appellant to address this matter in his witness statement of 29 November 2023 (which he did in brief terms at paragraph 16) and, if appropriate, in evidence-in-chief or re-examination. Consequently, if the tribunal did proceed without drawing attention to this point, it was not unfair for it to do so: see Abdi & Others v Entry Clearance Officer [2023] EWCA Civ 1455, at [29] and [30].
Ground 3: Consideration of the expert evidence
12. We are not satisfied that Ground 3 discloses a material error of law. The judge considered the expert report of Dr Van Engeland at [32] to [39]. The judge accepted “the broad thrust” of the expert’s evidence regarding the general treatment of Kurds in Iran at [35] and at [36] found that her examples of the unduly harsh treatment of ethnic Kurds and the risks arising from surveillance and sur place activities was consistent with the contents of the respondent’s county policy information notes on Iran. At [37], the judge accepted the expert’s conclusion that the appellant’s account of the treatment of Kurds by the Iranian regime is correct. The judge goes on at [37] to say that the “conclusion that the Appellant’s parents were beaten by the authorities because families of individuals targeted by authorities are now ill-treated” relied upon the claimed targeting of them “as a fact, rather than assertion by the appellant. If the truth of the assertion falls away, then the consequential risk disappears”.
13. We do not take the judge’s statement at [37] to mean that they discounted the expert’s evidence because a finding had already been made in relation to the appellant’s credibility, which would have amounted to an error of law, and the appellant’s case was not advanced on such a basis. We are satisfied that the judge did consider the expert’s evidence holistically. What Mr Samra argued was that the judge erred in not placing sufficient weight on what he said was a carefully written report in which the expert took a step-by-step approach to answering each question put to her and that the expert was clear when she did not fully accept the appellant’s evidence (for example, at paragraph 41, where she says that “it is unusual but not unseen to have children putting up [KDPI] posters”). However, we are satisfied that the weight to be attached to that report was a matter for the judge and Ground 3 therefore amounts to little more than a disagreement with the judge’s findings.
Ground 4: Treatment of the Facebook evidence
14. At Ground 4, the appellant argues that the judge should have placed more weight on the point that he could be easily identified through his photos and that the judge failed to consider the number of friends he has on Facebook. Subject to what we say below at [15] to [23], we find that this ground as pleaded amounts to little more than a restatement of the appellant’s case before the Firs-tier Tribunal.
Ground 5: Risk on return
15. The appellant argues that because he is an Iranian Kurd who left Iran illegally, he would be more likely to attract the attention of the authorities who might force him to go through facial recognition and force him to log into his Facebook account. This ground as pleaded does not identify an error of law. In HB (Kurds) Iran CG [2018] UKUT 00430 (IAC), the Upper Tribunal held that the mere fact of being a returnee of Kurdish ethnicity, even if combined with illegal exit, would not create a real risk of Article 3 ill-treatment: see headnote (4). Furthermore, the judge’s findings at [52] that the appellant could be expected to delete his Facebook account before returning to Iran was in accordance with the country guidance case of XX (PJAK – sur place activities – Facebook) Iran CG [2022] UKUT 23: see headnote (9).
Application of the country guidance
16. We therefore turn to the additional point that arose during the hearing. In the course of her submissions, Ms Nwachukwu, acting for the respondent, made reference to [50] of the judge’s decision when responding to Ground 4. At this point, we expressed our view that the judge’s findings at [50] appeared to be contrary to the country guidance case of HB. At [50], the judge considers the risk on return arising out of the appellant’s claimed sur place activities and says as follows:
“Bearing in mind the risk presented by the “hair trigger approach” I have given anxious scrutiny to the question of what the Facebook posts reveal about the Appellant’s political affiliations and activity. I have noted my reservations about the weight that I should attach to such evidence, but I am prepared to take it at its highest in my consideration of the “hair trigger approach.” Even at its highest, the evidence is of a very small number of demonstrations, significantly less than the number put forward by the appellant, and in the images he is seen to be passively holding small posters. The risk presented to him would be significantly greater if he were to be regarded by the authorities as a person with a much higher profile or a substantial role with the KDPI, but that is not the case.”
17. We note that the judge does not make any clear findings at [50] about whether the Iranian authorities would be likely show any interest in the appellant on return. Instead, the judge says that because the appellant does not have a high profile or substantial role within the KDPI the risk is not as great. We are satisfied that finding is contrary to what is said in the following paragraphs of the headnote in HB:
“(7) Kurds involved in Kurdish political groups or activity are at risk of arrest, prolonged detention and physical abuse by the Iranian authorities. Even Kurds expressing peaceful dissent or who speak out about Kurdish rights also face a real risk of persecution or Article 3 ill-treatment.
(8) Activities that can be perceived to be political by the Iranian authorities include social welfare and charitable activities on behalf of Kurds. Indeed, involvement with any organised activity on behalf of or in support of Kurds can be perceived as political and thus involve a risk of adverse attention by the Iranian authorities with the consequent risk of persecution or Article 3 ill-treatment.
(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.”
As those paragraphs explain, the Iranian authorities employ a wide definition of what constitutes pro-Kurdish activities and that this encompasses low-level political activity.
18. We therefore invited the parties to make submissions on whether the findings at [50] amounted to a material error of law. Ms Nwachukwu argued that the findings at [50] were immaterial because, if that paragraph was removed from the decision, the judge had given other sustainable reasons for rejecting the appellant’s sur place claim. This included attaching little weight to the Facebook evidence and making adverse findings about the appellant’s evidence of his attendance at demonstrations, which included evidence of a demonstration that took place before he had even entered the UK. Mr Samra submitted that the error at [50] was material and that it did not sit well with [48] where the judge said,
“I note further that HB recognises the “hair trigger” approach to those suspected of or perceived of being involved in Kurdish political activities. The court noted that “hair trigger” means that the threshold for suspicion is low and the reaction of the authorities is reasonably likely to be extreme.”
19. We have given careful consideration to whether, in taking the appellant’s case “at its highest” at [50], the judge was making alternative, and therefore immaterial, findings. In doing so, we have not found the judge’s reasoning in the section of the decision relating to sur place activities to be particularly easy to follow. For example, at [41] the judge says that they attach “a limited degree of weight to the screenshots” of the appellant’s social media activity because they do not comply with the guidance in XX. But the judge then goes on to say “[e]ven if I take them at face value, which I am largely prepared to do, they do not suggest the appellant is taking any form of significant political role” at anti-Iranian regime protests in the UK. Therefore, despite having indicated that little weight was to be attached to the Facebook evidence, the judge then appears to have taken the evidence at its highest. In doing so, and finding that the appellant did not have a significant political role, the judge fell into the same trap that they did at [50] in ignoring the findings in HB that the threshold for suspicion is low and even low-level political involvement can put a Kurdish Iranian at risk of harm.
20. The judge then finds at [42] that because the appellant has spelt his surname differently on his Facebook account by substituting one vowel for another, this “would be sufficient to evade a search on his given name by the authorities”. That finding, however, appears to us to be based on speculation.
21. At [43], the judge takes into account the evidence of the appellant’s attendance at demonstrations in the UK. The judge says that at the hearing, they saw evidence from two demonstrations and that there was evidence of three further demonstrations, although one of these dated from March 2019, which was before the appellant arrived in the UK. It is unclear from reading [43] whether the judge accepted that the appellant had attended two or four demonstrations. Furthermore, it is unclear what the significance is of the judge’s finding that there was an absence of evidence of the appellant attending demonstrations in 2020: the appellant did not enter the UK until the following year.
22. We have also taken into account [51] and [52]. At [51], the judge says that by using “a slightly different name” for his Facebook account, this “suggests” that the appellant “is conscious of the need to “cover his tracks” and avoid scrutiny by the Iranian authorities”. It is unclear whether this point was ever put to the appellant in oral evidence. Furthermore, as explained above, we find that the suggestion that the Iranian authorities would be unable to find the appellant’s Facebook account (if they were looking for it) because he had slightly altered the spelling of his name is speculative.
23. At [52], the judge finds that (a) the screenshots of the appellant’s Facebook account “do not contain material that, in my judgment, would have caused the Iranian authorities’ attention to be drawn to the appellant” and (b) that it is “highly likely that upon return to Iran [the appellant] would take steps to delete his Facebook account”. As already explained in the context of Ground 5, we are satisfied that the latter finding is in accordance with what is said in XX. However, in respect of the former point, given that at both [41] and [50] the judge has misunderstood or overlooked the findings in HB about the low threshold for suspicion in Iran and that even low-level political involvement can put a Kurdish Iranian at risk of harm, we cannot be satisfied that the judge has not fallen into the same error here.
24. For these reasons, we are satisfied that the judge’s findings at [50] do amount to a material error of law. It cannot be said that were that paragraph to be excised from the decision that the judge’s other findings on the appellant’s sur place activities would have been sustainable. On consideration, we find that they would not be.
Remaking
25. Because the judge only erred in law in respect of their treatment of the appellant’s sur place activities, their findings in relation to the appellant’s claim to have come to the attention of the Pasdaran in Iran can be preserved. As a consequence, this is not a case where the extent of the judicial fact-finding requires the appeal to be re-heard by the First-tier Tribunal. The only issue that requires determination afresh is in respect to the appellant’s sur place activities. Therefore, applying paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal, we are satisfied that it is appropriate for the appeal to be retained by the Upper Tribunal.

Notice of Decision
The decision of the First-tier Tribunal involved the making of material errors of law.
The decision of the First-tier Tribunal is set aside with the findings relating to the events that took place before the appellant left Iran being preserved.

Directions
1. The remaking of this appeal is to be listed for the first available date at Field House with a time estimate of 3 hours.
2. Any updating evidence either party wishes to rely upon must be electronically filed with the Upper Tribunal and served on the other party 21-days prior to the remaking hearing.
3. The appellant is to file and serve a skeleton argument, if so advised, no later than 14 days before the resumed hearing.
4. The respondent is to file and serve a skeleton argument, if so advised, no later than 7 days before the resumed hearing.

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

20th December 2024