Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004821

First-tier Tribunal Nos: PA/67915/2023
LP/04632/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

13th June 2025

Before

UPPER TRIBUNAL JUDGE KEITH

Between

‘DP’ (IRAN)
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms E Rutherford, Counsel instructed by AB Solicitors
For the Respondent: Ms S Simbi, Senior Home Office Presenting Officer

Heard at Birmingham Civil Justice Centre on 12th May 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. These written reasons reflect the full oral reasons which I gave to the parties at the end of the hearing.
2. I do no more than summarise the gist of the judgment of the First-tier Tribunal, the grounds of appeal and the grant of permission before coming on to the respective parties’ submissions. I only cite them where it is necessary to explain my decision, but I have considered them in full. I am grateful to both representatives for the clarity of their submissions.
The Judge’s decision under challenge
3. The appellant appeals against the decision of a Judge of the First-tier Tribunal, who following a hearing held on 31st July 2024, dismissed the appellant’s appeal on the basis of his being a refugee or seeking humanitarian protection and under Articles 2 and 3 ECHR. The Judge proceeded on the basis that the appellant is an Iranian national of Kurdish ethnic origin who worked as a ‘kolbar’, or smuggler, in Iran. The appellant had claimed, as a result, to have come to the adverse attention of the authorities, within the context of being a kolbar but also because of his support for the Kurdish group, the ‘KDPI.’ In response to adverse attention, he claimed to have had to flee Iran. In addition, the appellant claimed to be at risk because of ‘sur place’ activities in the UK, namely setting up a Facebook page and having attended physical demonstrations at which he was photographed. The Judge noted that the appellant was illiterate but that his friends had helped set up the Facebook account. The Judge also noted that the respondent accepted that the appellant had worked as a smuggler and had left Iran illegally. However, the Judge rejected the appellant’s account of the adverse interest prior to leaving Iran illegally, at §§18 to 23 of the judgment.
4. In relation to sur place activities, the Judge had rejected the appellant’s claim of genuine political motivation. There were only a few Facebook posts while in the UK over a three-year period, and they only began after his asylum interview in 2021. There appeared to be a record of his attendance at demonstrations and the Judge recorded that the appellant’s Facebook profile was public (§25). However, the Judge did not accept that the appellant had a significant political profile or that he was likely to come to the attention of the authorities on return. He had only shared photographs from articles others had written. The Judge found it reasonable for him to delete his account prior to return. The Judge went on to consider photographs of attendances at demonstrations in the UK. The Judge noted that the appellant had submitted photographs of himself at demonstrations but other than being pictured holding some printed photographs, none of the images indicated that he had any active involvement in the demonstrations. There was one photograph of holding a megaphone, but the Judge did not accept that this was determinative of political activity. It was uncertain where the photograph was taken or for what purpose. In some photographs the appellant was wearing a ‘hi-vis’ jacket but underneath his own jacket. The Judge did not find there to be evidence of his having an organisational role in the demonstration. The photographs themselves were undated, with no direct evidence as to where and when the demonstration had occurred. Despite the claims to be politically active since arrival in the UK the appellant had not joined any political organisations. The Judge concluded at §27 that there was no evidence that the appellant had come to the adverse attention of the Iranian authorities because of his Facebook posts or attendance at demonstrations.
5. The judge directed himself to the cases of BA (Demonstrators in Britain – Risk on return) Iran CG [2011] UKUT 36 and XX (PJAK - sur place activities - Facebook) Iran CG [2022] UKUT 00023 (IAC)), and noted that although he may have held a placard, he was one of many others. On his own evidence he had attended only a handful of demonstrations and there was no evidence of any Iranian government interest in them. He did not have a significant political profile in the UK and his low-level political activities were unlikely to come to the attention of the Iranian authorities, nor was he likely to meet the profile of an activist on return. In relation to social media, even on his own account he was unlikely to have been an individual of significant interest since setting up his Facebook account in the UK and therefore was unlikely to have been the subject of targeted Facebook surveillance. Although a basic internet search might be conducted upon his return, the timely closure of his account before applying for an emergency travel document would neutralise the risk. The Judge was not persuaded, even to the lower standard, that the appellant would have a well-founded fear of persecution. The Judge dismissed the humanitarian protection claim for similar reasons, and the Judge also considered risk factors as a result of the appellant as a person of Kurdish ethnic origin having left Iran illegally, citing HB (Kurds) Iran CG [2018] UKUT 00430 (IAC), but noted that the appellant’s ethnicity and illegal exit did not alone create a risk of persecution. The Judge accordingly dismissed the appellant’s appeal.
The Appellant’s Appeal and the Grant of Permission
6. Whilst the appellant had sought permission to appeal the part of the judgment rejecting prior adverse interest and credibility, that application for permission had initially been rejected, as part of a rejection in its entirety by the First-tier Tribunal and then rejected again by the Upper Tribunal. Ms Rutherford specifically accepted that I was not being asked to consider challenges to the rejection of pre-exit interest and genuineness of political belief. Instead, I was asked to consider the two other grounds. These were both in the context that the appellant was Kurdish, had left Iran illegally, had previously worked there as a smuggler, and that his sur place activities in the UK had been contrived, in the sense that he had engaged in them not because of any genuine political belief, but to bolster an asylum claim.
7. The appellant argued that the Judge had failed to consider adequately, even if contrived, that the activities would still have created a real risk of persecution, based on the principles of Danian v SSHD [1999] INLR 533 (referred to at §118 of XX (PJAK), either because of sur place activities alone, or in the context of the other risk factors (including being a former smuggler, etc). Alternatively, the decision was perverse.
8. The appellant said that the Judge had erred in the assessment of his political activities in the UK, dismissing the image of him holding a megaphone, based on an uncertainty as to when and where it was taken, when the appellant had provided evidence of this in his statement, explained it was taken outside the Iranian Embassy in London, and he had led the crowd by shouting the names of people murdered by the Iranian authorities and that he did play an active role. Further, although the Judge concluded that there was no evidence of the Iranian government’s interest in the demonstrations which the appellant had attended, it was an established fact in BA (Demonstrators) that the Iranian authorities filmed demonstrators outside the London embassy. Whilst the Judge found that the appellant could delete his Facebook account, this did not engage with the points raised in the appellant’s skeleton argument as to why it would either be speculative. There was no guarantee that he could rely safely on friends to delete the account.
9. Further, the Judge had erred by failing to consider the fact of his having previously been a smuggler, in combination with his ethnicity and illegal exit, would put him at risk.
The Appellant’s submissions at the hearing
10. In oral submissions elaborated on before me, Ms Rutherford reiterated that even if he had attended a limited number of demonstrations, it was accepted that he had done so. Moreover, the question of his activities as a smuggler had specifically been raised in the appellant’s skeleton argument and although not identified as a risk factor in HB (Kurds) nevertheless in the Country Policy and Information Note - Iran: Smugglers (February 2022), at §§2.4.4 to 2.4.7, being a smuggler may be a risk factor, while each case would need to be considered on its own facts.
11. Separately, whilst I canvassed with Ms Rutherford whether the Country Policy and Information Note - Iran: Social media, surveillance and sur place activities (April 2025), in particular §3.2.3 might be relevant, namely a person who participates in demonstrations infrequently and who plays no particular role in demonstrations and where that participation is not highlighted in the media would not be at relevant risk, Ms Rutherford indicated that this did not rule out the social media postings outlined and would need consideration in a further remaking hearing.
The Respondent’s Position
12. The Respondent filed a Rule 24 response and argued that the Judge had applied BA (Demonstrators) correctly. The risk factors in that case related to the type of sur place activity involved and the risk that a person would be identified as having engaged in, and the factors which might trigger questioning of the person on return to Iran. At §26, the Judge had specifically considered the role that the appellant claimed to have had in these demonstrations, having considered the evidence. The Judge had assessed the extent of participation and the lack of detail in the evidence. By assessing the risk of exposure because of posts and attendance at demonstrations in the context of the appellant’s personal circumstances, which included his illiteracy and non-political motivation, the Judge had been entitled to arrive at the conclusion that there was not a relevant risk.
13. In oral submissions Ms Simbi made two additional points. First, although the list of risk factors in BA (Demonstrators) was not exhaustive, there was a distinction between where someone had been a smuggler but had not been identified as such by the Iranian authorities and where he had come to the attention of the Iranian authorities on that basis. It was not, for example, analogous to the situation in HJ (Iran) & Anor v SSHD [2009] EWCA Civ 172 where the appellant would feel compelled to be discrete for fear of persecution for a convention reason, in the event of questioning at Tehran Airport.
14. Second, although conscious that each case must be decided on its facts, Ms Simbi pointed to the facts of another appellant, a Kurdish Iranian national with had had dealings with a kolbar, attended a limited number of demonstrations in a ‘hi-vis’ vest in the UK and also had a limited Facebook profile, in the case of ‘S’ v SSHD [2024] EWCA Civ 1482 as described at §§49 to 50, which were similar to this case. The Court of Appeal had confirmed that the Upper Tribunal had been entitled to remake the decision in the way it did.
Discussion and Conclusions
15. I turn to the starting point in this appeal and the undisturbed findings. The undisturbed findings are that although the appellant had previously been a smuggler and he is somebody of Kurdish ethnic origin who left Iran illegally, he did not come to the adverse attention of the Iranian authorities before leaving Iran in the way that he claimed. The Judge also found that he has no genuine political motivation in his sur place activities. His Facebook account has been written by or with the help of others, as he is illiterate.
16. Taking the appeal grounds in reverse order, I accept Ms Rutherford’s submission that BA (Demonstrators) is not an exhaustive list of risk factors and the fact of the appellant having been a smuggler was raised before the Judge. However, I also accept the respondent’s position that the Judge reiterated that he considered the evidence in round (§13), that the appellant was Kurdish, had worked as a smuggler and had left Iran illegally (§15) and that he had not encountered adverse attention as he claimed (§23), in evaluating the so-called ‘pinch points’ on return. While not expressly referred to in the conclusion section at §32, that conclusion must be read in the context that the Judge had considered the facts in the round, as he had earlier identified them. It was one factor in the overall assessment of risk, which the Judge had considered.
17. Next, the Judge also did not err in ignoring an evaluation of risk based on sur place activities, even if the appellant’s activities were contrived in the ‘Danian’ sense. The Judge was entitled to find, and did not impermissibly speculate in finding, that the appellant’s friends would help close his Facebook account (§29), in the context that it was those same friends who managed the account, as the appellant is illiterate (§24) and the appellant did not hold genuine political beliefs.
18. On the evidence of attendance at demonstrations and the evidence in relation to it, whilst it is true that the Judge accepted the appellant’s attendance at demonstrations and the appellant had claimed in evidence to have led chanting at those demonstrations, the Judge’s findings, when read in context, were clear that while the appellant may have held a placard, and there was a photograph of him holding a megaphone, that was not determinative of his activity, when a photograph was taken and for what purpose. The Judge had found that the appellant was not an active leader at the handful of demonstrations he attended (§28). His account of a leading role in his witness evidence was, in terms, rejected. The reference in an excerpt of Facebook material to a claim that a demonstration was London does not undermine the Judge’s analysis. The Judge was simply indicating that it was far from clear where the photographs were in fact taken, even if the appellant himself had described them as having been taken in London.
19. This was all part of the wider findings that the appellant’s attendances at demonstrations were limited and that the Facebook posts received few comments or shares.
20. I am satisfied that the Judge’s conclusions were open to him to reach; and that he adequately considered the risk factors holistically, including the appellant having worked previously as a smuggler, applying BA (Demonstrators) and that his reasons were sufficient, when read as a whole. The appellant’s appeal therefore fails and is dismissed.
Notice of Decision
21. The judge did not err in law such that his decision is not safe and cannot stand. The appellant’s appeal against the Judge’s decision fails and is dismissed.

J Keith

Judge of the Upper Tribunal
Immigration and Asylum Chamber

15 May 2025