Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004761

First-tier Tribunal No: PA/64423/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 09 April 2025

Before

UPPER TRIBUNAL JUDGE LODATO

Between

RK
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Selway, counsel instructed by Primus solicitors
For the Respondent: Mr McVeety, Senior Presenting Officer

Heard at Manchester Civil Justice Centre on 24 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

Introduction

1. I have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal because the underlying claim involves international protection issues in that the appellant claims to fear persecution or serious harm on return to Iran. In reaching this decision, I am mindful of the fundamental principle of open justice, but I am satisfied, taking the appellant’s case at its highest for these purposes, that the potential grave risks outweigh the rights of the public to know of his identity.

2. This decision follows the resumed hearing for this appeal, heard on 24 March 2025. In their error of law decision dated 14 February 2025, Upper Tribunal Judge Perkins and Deputy Upper Tribunal Judge Skinner allowed the appellant’s appeal against the decision of the First-tier Tribunal (‘FTT’) to dismiss his international protection and human rights grounds of appeal. While a material error of law was found in the FTT decision, it was only the analysis which went to the sur place dimension of the claim which was set aside on the basis that the judge had not fully assessed whether the political opinions expressed by the appellant at demonstrations and on Facebook were genuine. If they were not genuine, the question would arise as to whether the appellant could be expected to delete his Facebook account and simply not disclose the false political activity in the UK to the Iranian authorities. The FTT findings, which rejected the appellant’s claim to have already come to adverse attention of the Iranian authorities as a smuggler of sex toys, were preserved.

Legal Framework

3. Article 1A(2) of the Refugee Convention 1951 defines a refugee as an individual who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

4. The appellant bears the burden of substantiating the primary facts of a protection claim. The standard is a reasonable degree of likelihood (sometimes referred to as a realistic possibility).

5. I have considered BA (Demonstrators in Britain – risk on return) [2011] UKUT 36, SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308, HB (Kurds) (CG) [2018] UKUT 430, PS (Christianity – risk) (CG) [2020] UKUT 46 and XX (PJAK, sur place activities, Facebook) (CG) [2022] UKUT 00023.

Appeal to the First-tier Tribunal

6. The appellant appealed against the refusal of his protection and human rights claim dated 19 November 2023. The appeal was heard by the FTT judge on 29 July 2024 before dismissing the appeal on all grounds in a decision promulgated on 14 August 2024. For the purposes of the present proceedings, in which findings of fact have been preserved, the following key matters emerge from the decision:

• The appellant provided inconsistent evidence about the number of boxes he smuggled and the extent of his involvement with the KDPI in Iran. [12-13]

• The circumstances in which it was claimed that the authorities had identified the appellant from material he had left behind was found to be implausible. [15]

• The appellant’s accounts seeking to explain why he did not first claim asylum in Italy undermined his credibility. [16]

• Overall, the appellant was found to have fabricated the events which were said to have forced him to flee Iran. [17]

• Between [18] and [26] the FTT judge considered the appellant’s case that he had engaged in sur place political activism in the UK. It was not doubted that the appellant had attended a number of demonstrations, but he was found to have been a low-level figure, “at most a face in a large crowd” ([26]).

Appeal to the Upper Tribunal

7. The Upper Tribunal panel which found that the FTT decision involved a material error of law explained the reasons why they reached this conclusion between [4] and ]6] of their decision:

The judge has not made any clear findings on appellant’s claim that he has come to the attention of the authorities in Iran because of sur place activities in the United Kingdom rather than because of things that did or did not happen in Iran. In particular, the Judge made no finding as to whether the appellant would have come to the authorities’ attention by virtue of his attendance at various demonstrations (which attendance the Judge accepted) outside the Iranian embassy.

Further, the judge has decided that the appellant could delete incriminating Facebook entries without actually deciding whether in fact he would delete them. This is an error: see XX (PJAK – sur place activities – Facebook) Iran CG [2022] UKUT 00023 (IAC) at [98]-[102]. The appellant’s willingness to delete them is probably related to whether or not he is sincere in his sur place activities. There has been a finding that he has taken part in sur place activities and that finding must be preserved, but there has been no finding about whether those activities would have come to the attention of the authorities and whether the Facebook account would be deleted (and, if so, why).

This appeal has to be redetermined albeit on a relatively narrow point. We have decided it should be redetermined in the Upper Tribunal with the preserved findings that we have indicated. For the avoidance of doubt, it is established that the appellant was not involved in political activity in Iran but he has been involved in sur place activities in the United Kingdom. It has not been determined if his activities in the United Kingdom have come to the attention of the authorities in Iran, his motive for taking part in those activities or if he would delete his Facebook accounts before his return (and, if so, why).

8. At the error of law hearing, I heard oral evidence from the appellant and submissions from both parties. I address any evidence or submissions of significance in the discussion section below.

Discussion

9. At the outset of the hearing, I asked Mr McVeety whether it was agreed that the appeal should succeed on asylum grounds if I were to conclude that the appellant’s political activity on Facebook was genuine. Taking account of all the country guidance authorities cited above, he rightly recognised that the appeal should succeed if he were found to have engaged in the sur place activity in good faith because he could not then be expected to delete his Facebook account or lie about his genuine political opinions.

10. I agree with Mr McVeety that my starting point must be that I should approach the appellant’s evidence with a degree of caution because he is a man who has been found to have contrived an elaborate and false narrative about the events he claims caused him to flee Iran. However, I must also keep in mind that credibility can be nuanced and multi-faceted in that a witness may lie about, or exaggerate, certain matters while remaining truthful about others. It would be wrong to adopt an overly blunt approach that his evidence about his motives for expressing political opinions in the UK are false because he has borne false witness about other claims.

11. Turning to the nature and quality of the appellant’s political activity in the UK, it is worth noting that the FTT judge did not doubt that the appellant had attended the public demonstrations he had claimed. Instead, the conclusion was reached that he was not so prominent within those protests that he would have already come to the attention of the Iranian authorities. I have no cause to doubt that the appellant attended the demonstrations he referred to in his witness statements. At my count, this amounts to attendance at no fewer than nine demonstrations outside the Iranian Embassy in London. This is supported by photographic evidence which shows the appellant among crowds of demonstrators holding various placards openly and demonstrably critical of the regime. While it would be difficult to disagree with the FTT judge’s findings that the appellant could not be described as a central or prominent figure among these crowds, what this pattern of conduct does tend to show is that the appellant has been committed to protesting against the Iranian regime over a period of almost 4 years since soon after he arrived in the UK. The respondent argued that the fact that the appellant began to engage in political activity so soon after he arrived tends to align with a fabricated claim which was being bolstered by false sur place activity from the outset. When looking at this pattern of behaviour through the lens of the standard of a reasonable degree of likelihood, it strikes me as far more likely that the appellant has conducted himself in this way as soon as he was free to do so, and has continued to do so, because he was motivated by a genuine sense of political grievance. This proposition coheres with the broad plausibility of a Kurdish Iranian man being inclined to be politically active against a regime which HB (Kurds) makes plain has long been discriminating against the Kurdish population.

12. In support of his claim, the appellant relied on a full download of his Facebook profile in accordance with the guidance provided by XX. I have examined this data with care. It reveals a consistent and committed outpouring of political opinion over a considerable period. From page 73 of the download, it can be seen that the appellant has been posting anti regime and pro-Kurdish rhetoric on a regular basis since October 2021. Under questioning, the appellant indicated that he posted every two weeks which aroused concern because such regular intervals did not suggest the kind of organic political commentary which was integral to his claim. However, when this was explored further, he asserted that he misspoke under pressure. As a result, I have carefully considered the timing of his posts to assess whether his political opinions betrayed the mechanical and routine postings which might be expected of a metronomic and cynical excise designed to bolster a false asylum claim. I could discern no such patterns. Instead, the frequency resonated with a more natural engagement with political social media of this nature. Mr McVeety made much of the admitted fact that the appellant is illiterate. It was suggested that such a man was hardly likely to assiduously post political commentary of this nature if he could not independently search for content and check for himself whether what he was posting reflected his views. I agree with Mr Selway’s response that there is nothing outlandish about an illiterate person relying on friends and the broad impression he might form of the pictures which accompany many such posts to underpin such activity. His illiteracy did not undermine the notion that he used the tools available to him to express political opinions of this nature.

13. Overall, the parties were agreed that the central and potentially decisive question to be resolved in remaking this appeal is whether the appellant’s political activity is genuine. I find to a reasonable degree of likelihood that it is.

14. Paragraph 4 (i) of the headnote of PS (Christianity – risk) Iran CG goes beyond returnees claiming to be Christians. It is clear from this guidance that all failed asylum seekers will be questioned about their reasons for seeking protection at the pinch point of arrival in Iran.

15. XX (PJAK – sur place activities – Facebook) Iran CG offers guidance as to the approach to be taken to sur place activities. There is nothing to suggest that the appellant has the kind of profile drawn from his sur place activities which might have caused the Iranian authorities to devote the necessary resources to monitor the appellant’s Facebook profile. The absence or known deletion of a Facebook account will not, in and of itself, create a risk of adverse interest or suspicion at the pinch points of applying for an ETD or on arrival in Iran. The timely closure of a critical Facebook account would neutralise any consequential risk which derives from this activity unless previously monitored. Paragraph 9 of the headnote states the following:

In deciding the issue of risk on return involving a Facebook account, a decision maker may legitimately consider whether a person will close a Facebook account and not volunteer the fact of a previously closed Facebook account, prior to application for an ETD: HJ (Iran) v SSHD [2011] AC 596. Decision makers are allowed to consider first, what a person will do to mitigate a risk of persecution, and second, the reason for their actions. It is difficult to see circumstances in which the deletion of a Facebook account could equate to persecution, as there is no fundamental right protected by the Refugee Convention to have access to a particular social media platform, as opposed to the right to political neutrality. Whether such an inquiry is too speculative needs to be considered on a case-by-case basis.

16. The above paragraph should, however, be read in conjunction with the fuller analysis between paragraphs [98] and [102]. It is clear to me that the panel were not suggesting in the headnote that an asylum seeker such as this appellant was expected to delete a genuine Facebook profile manifesting political opinions expressed in good faith. Paragraph 102 talks of “a contrived Facebook account or fabricated protection claim”. I do not read XX as any encouragement to find that an appellant such as this should be required to delete a genuine Facebook account and conceal his political opinion when he is inevitably questioned on arrival. This would not be a case of volunteering a false sur place claim at the pinch point of arrival.

17. HB Kurds remains the touchstone for deciding this appeal. It is not disputed that the appellant is an ethnic Iranian Kurd. This alone would not be sufficient for his claim to succeed. However, this, in combination with committed and vociferous political opposition to the Iranian regime, should it become known to the authorities at a pinch point, would be productive of a real risk of persecution (see paragraph 7, 9-10 of the headnote). I find that the appellant would be questioned on arrival as a failed asylum seeker. He could only avoid adverse interest by lying about the sur place activity he has pursued in good faith and by deleting a genuine Facebook account critical of the Iranian regime. I am satisfied that he would wish to continue his political activism upon return to Iran and would only refrain from doing so because of the persecution he would be likely to endure as a result. Applying the country guidance and HJ (Iran) v SSHD [2010] UKSC 31 principles, the appeal succeeds on Refugee Convention grounds solely on account of the sur place dimension of the claim.

Notice of Decision

I allow the appeal on Refugee Convention grounds.

Paul Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

2 April 2025