Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004967

First-tier Tribunal No: PA/61712/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

15th May 2025

Before

UPPER TRIBUNAL JUDGE HANSON
DEPUTY UPPER TRIBUNAL JUDGE COLE

Between

AH
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms G Patel instructed by the Jackson Lees Group Limited.
For the Respondent: Mr A Tan, a Senior Home Office Presenting Officer.

Heard at Manchester Civil Justice Centre on 6 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. The Appellant, an Iranian citizen of Kurdish ethnicity born in 1975, applied for asylum on 6 September 2021 which was refused by the Secretary of State on 8 November 2013.
2. The Appellant’s appeal against the refusal came before a judge of the First-tier Tribunal sitting at Manchester on 2 September 2024. In a determination promulgated on 15 September 2024 the First-tier Tribunal dismissed the appeal.
3. An application for permission to appeal to the Upper Tribunal was granted and a material error of law found by the Upper Tribunal sitting at Field House in London as a result of which the matter comes before us today, following the making of a judicial transfer order, to enable us to substitute a decision to either allow or dismiss the appeal.
4. Notwithstanding the determination having been set aside the factual findings of the First-tier Tribunal have been preserved. These read:

12. Having considered the appellant’s account, I find he has fabricated the core of his claim to form what I find to be a false asylum claim, for the following reasons:

(a) I do not find it reasonably likely or credible that if, as the appellant claims, his father was involved in the KDPI, had been imprisoned and eventually killed in a car accident whilst being followed by the authorities, that he would have willingly put himself and his family at risk by agreeing to hold and/or hide a parcel(s) at his home, which he suspected contained political materials. Given the appellant claimed not to be politically active in Iran, it makes his decision to embark on such activity incredible.

(b) Whilst the appellant claims he had not had problems with the authorities for years, so he felt it safe to keep the parcels in his home, he claims his father died because of his KDPI background, K had two uncles who were Peshmergas in the KDPI who had been killed in action and he had to report for six months after his father died. Further the appellant claims he did not become involved with the KDPI as the authorities were monitoring him (paragraph 17 AWS). That being so, I do not find it reasonably likely that at the point he embarked on working as a Kobler that he would take the added risk of agreeing to hold the parcels at his home.

(c) The appellant claims he did not know for certain what was in the parcels as he did not ask K for cultural reasons. I do not accept this as credible, as again he claims “deep down” he knew the parcels contained political materials. That being so, this would have influenced his decision on whether he should take the risk.

(d) I also do not if it reasonably likely that K would not have explained to the appellant the nature of the contents of the parcel(s) and so the need to hide them in a place where they could not be found. Whilst the appellant now claims “deep down” he knew the parcels contained political materials without K having told him this - if this was so, I do not find it credible that he would, as claimed, placed the final parcel on top of his TV set because he did not think something suspicious was inside (AIQ65). When this discrepancy was put to him in the asylum interview, he sought to rationalise it by saying ‘placing/putting/hide/keep it’, meant the same to him. Nonetheless, if he kept the parcel on top of his TV/at the back of the TV, clearly, he did not fear the contents would place him at harm. This contradictory account causes me to find the appellant has provided an untruthful account of the reasons he claims he left Iran.

(e) The appellant claims K’s house was raided after his goods had been seized in a smuggling trip. The appellant claims K asked him to come to his house and pick up a parcel. Yet, if K had genuinely been caught smuggling goods, there is no reasonable explanation as to why the authorities waited a number of days to then raid K’s house, as this would have given him the opportunity to remove any incriminating goods from his home - or why K held onto the parcel until the appellant came to see him, as this too would place him at risk if caught in possession of the parcel. Given the appellant claims K had an orchard where he was able to hide for a month without being detected, there is no reasonable explanation as to why K did not just hide the parcel(s) there in the first place and not trouble the appellant.

(f) The appellant claims his own house was raided - not because of anything to do with K or his work as a Kolber, but because of a dispute between his mother's relatives, at a time when he was out shopping. He claims the police raided the house looking for his mother’s paternal uncle; they found this uncle and some inheritance papers and, in the process, found the parcel. The appellant claims this uncle was released after a couple of days - but I do not find it reasonably likely that if this uncle was arrested during a claimed raid on the appellant’s home, in circumstances where it is claimed the parcel was found, that the authorities would not have sought to hold the uncle as well, but merely let him go. Further as the appellant had only gone out shopping, and if the authorities had found the parcel in a raid and wanted to capture the appellant because of it, there is no reasonable explanation to why they just did not wait for the appellant to return home from his shopping trip and apprehend him there and then. That they did not causes me to find the appellant has fabricated his claim to have come to the adverse attention of the Iranian authorities.

(g) The appellant claims he hid in a farmhouse/orchard belonging K. In his statement he claims they both walked there. In his AI he says he went by car. Either way, if as he claims the authorities had found KDPI materials in his house and were looking for him, I do not find it reasonably likely or credible that he and K would have merely been able to travel there without the authorities seeking to apprehend them.

(h) Further, as per the CPIN ‘Smugglers, Iran, February 2022, paragraph 3.3.3, a Danish Refugee Council report cited that “... representatives from the Kurdish Democratic Party - (KDP-I) and Komala KZK, who said that flyers were produced in the Kurdistan Region of Iraq (KRI), then sent electronically to Iran and distributed by members or sympathisers of the party”. Given that the KDPI has the option of sending such materials electronically, I do not find it reasonably likely or credible that there would be any need in the first place for K to have parcels containing KDPI materials for the appellant to hold/hide. This too causes me to find the appellant has not provided a truthful account of the reasons he claims he left Iran.

(i) The appellant claims the authorities have further returned to his home, but given I find his claim of coming to the adverse attention of the Iranian authorities to lack credibility, I find the authorities would have no need to go looking for him.

(j) Whilst the respondent accepts the appellant worked as a Kolber for a couple of years, the appellant claims he did not come to the attention of the authorities because of this work, nor has he been prosecuted. The CPIN ‘Smugglers, Iran, February 2022 speaks of no explicit law criminalising Kolbers and at times of permits being issued. It also speaks of several arrests, beatings and shootings. The appellant says the items he smuggled were tea, satellite boxes, car batteries and fabrics. These are not illegal commodities. The appellant also worked as a decorator in Iran and there is nothing to suggest he could not do so again on return.

13. The respondent relies on Section 8 considerations. The appellant will have passed through a few safe countries on route to the UK. He had the opportunity to seek protection, for example, in France and did not. I do not find it reasonably likely, if he genuinely feared for his life in Iran, that he would not have used the first available opportunity to seek protection - but gone to the added cost and added risk of clandestinely smuggling himself into the UK. This I find impacts on his overall credibility and causes me to find he was not and is not fearful of return to Iran, but that it was always his intention to come to the UK for reasons other than protection.

14. Given my credibility findings, I find it is not reasonably likely that the appellant will embark on any political activity on his return to Iran. Further, having exited Iran in of itself does not place the appellant at risk of harm on return. It is accepted he is a Kurd - and even though Kurds are reasonably likely to be subjected to heightened scrutiny on return, I find he does not meet any of the risk factors set out in Iran HB (Kurds) Iran CG [2018] 430. Even in the context of the Iranian authorities' attitude towards Kurds and the low threshold for suspicion, I do not find these factors, on their own, would place him at risk. I accept returning as a Kurd, if he has no passport, is likely to mean the authorities would question him, but as I have rejected his reasons for seeking protection and that he has not, I find, evidenced that he has come to the adverse attention of the authorities, he would only be returned as a failed Kurdish asylum seeker, who left illegally; he would have no adverse profile which would interest the authorities and he would not face persecution; he may be detained briefly, but I am satisfied, in the absence of any other adverse reasons known about him, that such detention would not breach Article 3.

5. The Upper Tribunal considered the issue of disposal at the error of law hearing but found at [34]:

34. We have carefully considered whether we can remake the decision. In our view we are not in a position to do so. As set out above, the fundamental issues to be determined are (i) what information the Appellant will, in fact, reveal were he to be returned to Iran. (As this is not an HJ (Iran) type case the reasons why the Appellant chooses to act in this way will not be relevant). And (ii) whether, on the facts, answering this question will be impermissibly speculative.

6. The Appellant in his latest witness statement dated 15 April 2025 states that although the First-tier Tribunal did not accept the facts claimed he continues to maintain that his father had a previous profile with the Iranian authorities and that when his father passed away he reported to the Ettela'at, that his house was raided on 20 June 2021, and that he had to leave Iran despite his wife being pregnant.
7. Repeating a claim that has been found to lack credibility, and in relation to which the Appellant’s challenge to the credibility findings failed, does not warrant us going behind the findings of the First-tier Tribunal.
8. We do not dispute that Kolbar exist in Iran and that the Appellant had worked in this capacity. It is not disputed that those relying upon cross-border trade for their livelihoods suffer hardship and can be killed or injured by Iranian border guards. Economic hardship and soaring unemployment have made life even more difficult for residents in the border areas in Iranian Kurdistan leaving few with many options for survival other than to join the Kolbari trade.
9. The Appellant’s evidence is that the authorities are unaware that he has undertaken such activities, and that such activities had only happened for a limited period of time, as before that he was able to earn enough in his primary employment as a painter and decorator.
10. There is reference in the papers to [100 - 101] of the country guidance case of XX (PJAK, sur place activities, Facebook) CG [2022] UKUT 00023. Whilst that case is not specifically on point with the issues we have to consider in this appeal, in those paragraphs the Tribunal found:

100. Instead, 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 the 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. If the person will refrain from engaging in a particular activity, that may nullify their claim that they would be at risk, unless the reason for their restraint is suppression of a characteristic that they have a right not to be required to suppress, because if the suppression was at the instance of another it might amount to persecution. It is difficult to see circumstances in which the deletion of a Facebook account could equate to persecution in this sense, because 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.

101. The second part of our answer relates to Lord Kerr’s concern about whether an analysis of what a person will do is too speculative or artificial an exercise. We accept Mr Jaffey’s submission that there may be cases where the exercise is too speculative, particularly in the context of a volatile militia. That is not the case here.

102. We consider that it may be perfectly permissible for a decision maker to ask what a returnee to Iran will do, in relation to a contrived Facebook account or fabricated protection claim. Whether such an inquiry is too speculative needs to be considered on a case-by-case basis, but factors which may point to that question not being impermissibly speculative include: where a person has a past history of destroying material, such as identification documents, or deception or dishonesty in relation to dealings with state officials; whether the government has well-established methods of questioning (in the Iranian state’s case, these are well-documented and therefore predictable); and whether the risks around discovery of social media material, prior to account deletion, are minimal, because a personal’s social graph or social media activities are limited.
What difference does a critical Facebook account (whether deleted or not) make to the risk faced by someone returning to Iran?

11. It is accepted this is not a case similar to those in which the guidance provided in HJ (Iran) is being considered, as that is relevant in a case in which a person may have a fundamentally held belief which if expressed would result in persecution but, which they feel unable to express, and do not do so solely because they wish to avoid such consequences.
12. The issue in this case is whether, as they do not have current knowledge of the Appellant’s previous activities, the Iranian authorities would ever become aware of his Kolbar activities and, if so, how.
13. We find the fact the Appellant worked in the past as a Kolbar to supplement his income is not something that reflects a fundamental right that he holds.
14. We accept the submission made by Ms Patel that the Appellant is not a person who is claiming to have attended demonstrations or done things within the United Kingdom that create an actual risk for him on return to Iran. He did not make such a claim as he has not done any of those things, and we give him credit for not trying to produce a further fabricated element of his claim for international protection. It is the case, however, that the First-tier Tribunal has found that that is precisely what he did in relation to the other matters relied upon.
15. It is also the case that the Appellant has not undertaken such activities in the UK as he does not want to create a real risk for him on return to Iran if the authorities became aware of the same. This is a clear example of a risk averse individual which gives rise to the question of why he would tell the authorities on return of anything that will create a risk for him. Such an approach is perfectly understandable. We find the Appellant will not volunteer evidence to the Iranian authorities if he believes that that would cause harm to him. The suggestion otherwise is pure speculation. We find that not doing so will not infringe the HJ (Iran) principle.
16. Ms Patel in her submissions referred to the country information available in relation to Iran, smugglers, and Kurds, all of which we have considered.
17. In HB (Kurds) (CG) [2018] UKUT 430 the Upper Tribunal considered the situation for Iranians and Kurds. The headnote to that decision, which reflects the findings made within the body of the determination reads:

(1) SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 308 (IAC) remains valid country guidance in terms of the country guidance offered in the headnote. For the avoidance of doubt, that decision is not authority for any proposition in relation to the risk on return for refused Kurdish asylum-seekers on account of their Kurdish ethnicity alone.

(2) Kurds in Iran face discrimination. However, the evidence does not support a contention that such discrimination is, in general, at such a level as to amount to persecution or Article 3 ill-treatment.

(3) Since 2016 the Iranian authorities have become increasingly suspicious of, and sensitive to, Kurdish political activity. Those of Kurdish ethnicity are thus regarded with even greater suspicion than hitherto and are reasonably likely to be subjected to heightened scrutiny on return to Iran.

(4) However, the mere fact of being a returnee of Kurdish ethnicity with or without a valid passport, and even if combined with illegal exit, does not create a risk of persecution or Article 3 ill-treatment.

(5) Kurdish ethnicity is nevertheless a risk factor which, when combined with other factors, may create a real risk of persecution or Article 3 ill-treatment. Being a risk factor it means that Kurdish ethnicity is a factor of particular significance when assessing risk. Those “other factors” will include the matters identified in paragraphs (6)-(9) below.

(6) A period of residence in the KRI by a Kurdish returnee is reasonably likely to result in additional questioning by the authorities on return. However, this is a factor that will be highly fact-specific and the degree of interest that such residence will excite will depend, non-exhaustively, on matters such as the length of residence in the KRI, what the person concerned was doing there and why they left.

(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.

(10) The Iranian authorities demonstrate what could be described as a ‘hair-trigger’ approach to those suspected of or perceived to be involved in Kurdish political activities or support for Kurdish rights. By ‘hair-trigger’ it means that the threshold for suspicion is low and the reaction of the authorities is reasonably likely to be extreme.

18. This is not a case in which there is any credible evidence that the Appellant will be of concern as a result of any form of Kurdish political activity. His claim in that respect was found to lack credibility by the First-tier Tribunal for the reasons set out above.
19. In HB (Iran) the agreed facts were that the Appellant was of Kurdish ethnicity who claimed that his parents disappeared because they were arrested by the authorities for involvement in Kurdish nationalist activities. The Appellant claimed he could not live undocumented and would be discriminated against in Iraq, where he did not have citizenship or a right to reside and to where he was taken by his uncle, and could not return to Iran given his family’s involvement with pro-Kurdish separatist groups. The Appellant had left Iran illegally on 1 September 2015 reaching the United Kingdom in July 2016.
20. In HB (Iran) it was found that a returnee without a passport is likely to be questioned on return and that a person will be asked whether they had a Facebook page that would be checked. There is no evidence this Appellant has. At [117] it was found there are a cluster of factors that would lead to significant adverse reaction to the appellant in that case by the Iranian authorities, quite apart from his Facebook material, which would be sufficient on its own. It was found that material on HB’s Facebook pages contained political content and support for Kurdish rights which would dovetail in the minds of those questioning him with what he is reasonably likely to reveal under questioning about his parents support for Kurdish groups and his own support for Kurdish rights, and the fact that the appellant had lived in the IKR in Iraq for many years. None of these individual factors are present in this appeal.
21. Further differences are reflected at [120] where in HB (Iran) it was found the resolution of the appellant’s appeal did not depend upon what he would say if asked about his political opinions when questioned, given that they would in any event be discovered. The Tribunal found if HB had to answer the questions as to what he would say they would conclude that, following RT (Zimbabwe), he is reasonably likely to be directly questioned given his particular circumstances and could not be expected to lie.
22. That distinguishes the facts of HB (Iran) from the current case in which there is no protected right revelation of which will give rise to persecution of the Appellant, there is no evidence of political activity in support of the Kurdish political party either in Iran or in the UK, no evidence of the Appellant being of interest to the Iranian authorities, no evidence the Iranian authorities are aware of his activities as a Kolbar, no adverse social media presence, and nothing to indicate he will be anything other than a failed Kurdish asylum seeker in the eyes of the Iranian authorities at the point of return.
23. If questioned about his views in relation to Kurdish politics there is no evidence anything the Appellant would say would give rise to a real risk on return.
24. The Appellant has not established that a result of being a Kurd who left Iran illegally he will face a real risk of persecution or Article 3 ill-treatment per se.
25. The Appellant’s case is that he falls within the body of individuals who possess other factors which will give rise to a real risk on return, but headnote (6) referring to periods in the KRI does not apply to this Appellant who has been in the UK, headnote (7) does not apply to the Appellant as he has not been involved in Kurdish political groups or activity and has not been involved in any groups or activities on behalf of Kurds.
26. The Appellant’s action was undertaken for the economic betterment of his own family, rather than this ethnic group as a whole. In this regard it also the case the Appellant will be able truthfully to tell the authorities he is a painter and decoration in relation to which no real risk will arise.
27. We find the Appellant has not provided any credible evidence to show he undertook any political activity or activities that will be perceived by any potential persecutor as being contrary to the interests of the Iranian state sufficient to support a claim that he is entitled to succeed under (8) or (9) of the headnote.
28. It is accepted on return the Appellant will be questioned by the authorities. Ms Patel submitted that at that ‘pinch point’, and in light of the hair-trigger approach to those suspected or perceived to be involved in Kurdish political activities or support for Kurdish rights, the Appellant will face a real risk of arrest and detention and torture or ill-treatment in custody sufficient to entitle him to a grant of international protection.
29. We do not find, however, that there is any reason why the Appellant would be suspected or perceived as being involved in Kurdish political activities or to be a supporter of Kurdish rights on the facts.
30. His claim to be so involved was found to lack credibility and there is insufficient evidence to warrant us finding any different.
31. Both advocates referred us to the Country Policy and Information Note: Smugglers, Iran, Version 4.0, February 2022, which was updated on 10 April 2025. The history of smuggling is set out at 2.4.1 which shows that it is widely viewed locally as a form of trade in essential items.
32. At 2.4.2 it is written:

2.4.2 Although there is no explicit state law criminalising kolbars and, at times, permits have been issued, the practice is considered smuggling and subject to prosecution (see Legal context). However, border officials, including the Revolutionary Guards (IRGC), have been known to ignore smuggling operations and are reported to be complicit and/or reliant on smuggled goods, not always illegal items themselves, but which international sanctions are making increasingly difficult for people to obtain or afford (see Border control and Anti-smuggling operations). Illegal commodities such as alcohol, weapons and illicit drugs, are also smuggled across the border making their movement a more dangerous, criminal activity. Evidence on the smuggling of political material is limited (see Commodities and contraband).

33. Whether a Kurd involved in smuggling will face a real risk of persecution is a fact sensitive issue. It is also stated in the CPIN that:

2.4.7 Persons who have been involved solely in smuggling are likely to face prosecution. It is lawful for the authorities to prosecute those engaged in smuggling illegal items, or goods which would be subject to import tariffs. However, those prosecuted for such crimes may face a trial which does not meet international standards of fairness. Smuggling can incur a range of penalties, from fines to flogging, or the death penalty (see Penalties and prosecution).

34. In relation to a Kolbar encountered by the authorities, in relation to whom the question of penalties and prosecution arises, the extent of any penalties depends on the value of the goods, see section 4.2 CPIN Penalties and prosecution, but we accept there are a number of issues raised in that section of the document which are not relevant on the facts of this appeal.
35. Taken at its highest, the Appellant only undertook such activities for a limited period of time, does not claim to have smuggled prohibited goods, with no evidence that the value of those goods places him in a higher category facing any greater risk. There is insufficient evidence on the basis of what the Appellant claims he did to indicate that he will be suspected of antiregime activities. At its highest he will be viewed as a normal smuggler undertaking such work for economic gain.
36. It is not made out on the evidence before us that if the Appellant was to be prosecuted by the Iranian authorities, that the act of prosecution will be sufficient to amount to persecution, or that any sanction that he would receive would be excessive.
37. We note the Appellant claims in his witness statement that he believes he is at risk but that is reference to matters found to lack credibility. We do not find he has an established he will face a real risk on return per se or as a result of his interview on return.
38. There is no evidence of any pending prosecution on return, nor of anything that a search of the Iranian authority’s records would show the Appellant as being of interest to them, as a result of events that arose in Iran or since he came to the UK.
39. We do not accept the submission made by Ms Patel that the Appellant’s profile is such that he will be detained and interviewed and face a real risk of ill-treatment, as it has not been established that the Appellant falls within the scope of those who face a real risk of ill-treatment identified in the country material or case law.
40. The two issues that required further consideration identified in the error of law finding are:

(i) what information the Appellant will, in fact, reveal were he to be returned to Iran. (As this is not an HJ (Iran) type case the reasons why the Appellant chooses to act in this way will not be relevant).
(ii) whether, on the facts, answering this question will be impermissibly speculative.

41. We find no real risk made out to the Appellant in relation to the first aspect we are required to consider. We do not find the Appellant will be forced to reveal any information that will give rise to a real risk on return to Iran, even considering his ethnicity and illegal departure from that country.
42. In relation to the second issue, in light of our findings on the first issue, we do not need to comment upon it further.
43. In conclusion, we do not find the Appellant has established any real risk on return sufficient to give rise to an entitlement to a grant of international protection and/or on any other basis.

Notice of Decision

44. Appeal dismissed.

C J Hanson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

13 May 2025