Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005147

First-tier Tribunal No: PA/01607/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 10 March 2025

Before

UPPER TRIBUNAL JUDGE FRANCES
DEPUTY UPPER TRIBUNAL JUDGE GRAVES

Between

I S
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Fathers, Barnes Harrild & Dyer Solicitors
For the Respondent: Ms Everett, Senior Home Office Presenting Officer

Heard at Field House on Monday 3 February 2025

DECISION AND REASONS

Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant (IS) 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.

BACKGROUND

1. The Appellant appeals against the decision of First-tier Tribunal Judge Hussain (“the Judge”) promulgated on 16 September 2024 (“the Decision”) dismissing the Appellant’s appeal against the Respondent’s decision dated 13 March 2024, refusing the Appellant’s protection and human rights application made on 19 October 2022.

2. The Appellant made a protection claim on the basis of being at risk of persecution by reason of imputed/actual political opinion in Iran. The Judge accepted that he is Kurdish and worked as a ‘kolbar’, smuggling goods across the border between Iran and Iraq, and that he had been involved in ‘low level’ sur place political activities after his arrival in the UK, but found his account of an ambush by the authorities and subsequent raid on his home to be incredible. The Judge found the Appellant had not demonstrated he had come to the adverse attention of the Iranian authorities before or after his arrival in the UK and would not be of adverse interest on return, since his political profile was ‘low level’ and was not sufficient to have already attracted interest. His activities were found to have been pursued in order to bolster his asylum claim and were not motivated by genuinely held political beliefs.

GROUNDS FOR PERMISSION TO APPEAL TO THE TRIBUNAL

3. By way of a decision dated 30 October 2024 Judge Robinson of the First-tier Tribunal granted permission to appeal on the following grounds:

Ground 1

That the Judge erred in his approach to credibility and plausibility.

Ground 3

That the Judge erred in his assessment of risk on return, including failure to sufficiently consider the evidence, country guidance and objective evidence.

4. Permission to appeal was not granted in respect of Ground 2, which was that the Judge erred in failing to make findings of fact on material matters that were insufficiently reasoned and wrong.

5. In granting permission to appeal, Judge Robinson found it was arguable that the Judge made an error of law in basing his credibility findings largely on plausibility without reference to the country guidance in Iran, including the risk factors set out in HB (Kurds) Iran CG [2018] UKUT 00430 (IAC).

6. We had before us a bundle running to 515 pages containing the documents relevant to the appeal and the Appellant’s and Respondent’s bundles before the First-tier Tribunal.

7. We heard oral submissions. In summary, Ms Everett acknowledged that there were areas where the Judge focussed on plausibility, but said that this was not material and did not undermine the overall assessment of credibility, since the Judge made other findings about credibility that were sustainable, sufficiently reasoned and demonstrated the Judge had applied the relevant factors in HB, and considered country information. She referred to findings about the Appellant’s account being vague, where he could not provide detail that could be reasonably expected of him, and elsewhere where he had embellished his account and had been inconsistent. It was argued that if there was no error in law with regard to the assessment of credibility, then the findings about risk on return were also sustainable, because the Appellant’s motivations to pursue political activity were found not to be genuine, even applying the factors in HB. Furthermore, the principles identified in HJ (Iran) and HT (Cameroon) v SSHD [2010] UKSC 31 did not apply as he would not be required to subvert genuinely held political beliefs.

8. Ms Fathers sought initially to pursue Ground 2 relied on in the application for permission to appeal. Since permission had not been granted in respect of that ground she was asked whether she now sought to apply to amend the grounds but said she would rely on Ground 1 and Ground 3.

9. In relation to Ground 1, Ms Fathers submitted that the Judge relied on matters of plausibility, identifying aspects of the Appellant’s account said to be ‘remarkable’ or ‘inherently implausible’ and similar. Ms Fathers submitted that there was also a failure to consider the appellant’s account in light of country guidance and information, which meant the approach to credibility was flawed. Country guidance demonstrated that the Appellant’s account was not implausible, but consistent with what was contained in information about the situation in Iran and the perception of the Iranian authorities that Kurds were political. It was well documented that kolbars did carry political material, and that the authorities in Iran operate a ‘hair trigger’ approach, with a low threshold for adverse interest, triggering an extreme response. The use of torture to extract confessions featured in the CPIN and supported the plausibility of the Appellant’s account. It was also said that the Judge’s reliance on areas where the account was said to be vague, but at the same time had been embellished, did not stand up to scrutiny. The finding that the absence of past political activity undermined the Appellant’s genuine intentions and political motivations was also not sustainable.

10. In relation to Ground 3, it was accepted this was closely linked to Ground 1, but it was argued that regardless of adverse credibility findings, the Judge was required to apply the risk factors in HB, but failed to do so. It was disputed that the Judge found the Appellant’s political activities in this country were not motivated by genuine beliefs. Ms Fathers submitted that even if the Appellant did not succeed on Ground 1, the findings on risk on return were not sustainable because risk factors applied, such as the Appellant’s Kurdish ethnicity, the increased suspicion of Kurds, the fact of his sur place activities, that he was being returned as a failed asylum seeker from the United Kingdom and his illegal exit from Iran.

CONCLUSION AND REASONS

Ground 1

11. In relation to the credibility assessment, we do find the Judge set out with some care the credibility issues identified by the Respondent, and appropriately identified the relevance of factors to the assessment of risk set out within HB [17 and 18], as well as guidance in XX (PJAK – Sur Place Activities – Facebook) Iran CG [2022] UKUT 00023 [62] including the nature and impact of sur place political activities on the assessment of risk on return. The Judge also set out at the start of the credibility assessment the aspects of the account accepted by the Respondent and where the account is consistent with country information, for example, in finding that the account of smuggling as a means of earning a livelihood is well documented.

12. We accept that there are areas where the Judge’s reasoning appears to stray into matters of plausibility, rather than credibility. However, we are mindful that as part of the holistic assessment of credibility, where the Judge was required to take all evidence in the round, areas where the account lacked plausibility might be relevant to that assessment.

13. We acknowledge that sole reliance on matters that are ‘inherently implausible’, ‘remarkable’ or ‘astonishing’, would not by themselves necessarily form sufficiently reasoned findings to support an adverse assessment of credibility, but we found, however, that the Judge’s assessment of credibility was not confined to, or reliant only on matters of plausibility and that sufficient reasons were given to support adverse credibility findings to the extent that these issues did not undermine the overall assessment.

14. We consider it was open to the Judge to rely on areas where the account lacked detail that might reasonably be expected and was vague. These include the account of the ambush, aspects of which the Appellant said in interview he could not remember, despite it being at the core of his account; how the Appellant came to know about the raid on his home, which he had not explained even by the date of hearing [56]; the reasons why he was motivated to undertake political activities in the way that he did; and why there was no contact with family [at 50, 52, 53, 56].

15. We also do not agree with the submission that the Judge’s findings on aspects of the account that are vague, and simultaneous reliance on other aspects where embellishment has been identified, are mutually exclusive and therefore undermine the Judge’s assessment of credibility. When read as a whole, the Decision identifies aspects of the Appellant’s account where the Appellant was unable to provide adequate detail in his interviews and the Judge then found he embellished his account with new details not previously relied upon, but only after these issues were raised in the Respondent’s decision or at the hearing. For example, why he would be motivated to carry political literature, when it would place him at such risk [52], and when he did not know what it contained or would be used for. The Appellant was asked about this at interview on a number of occasions. He denied any political motivations or activities when in Iran and said he smuggled things across the border for economic reasons, despite having relied on a history of political beliefs and speaking against the Iranian government in his questionnaire. Then in his appeal statement he again raised political motivations but with no detail. It was also open to the Judge to have regard to the late explanation about why the Appellant was confident the authorities in Iran knew he had been carrying political material. He was unable to address these questions in the interview, and the detail that he had left his backpack behind with the material in it only appeared in his witness statement, dated a month before the hearing. Similarly, it was only at the hearing, for the first time, that the Appellant said all the kolbars carried such documentation, and that they all knew that he was carrying political documents. This evidence was found to amount to embellishment, which was only raised in response to the Respondent’s reliance on areas where the account was vague and lacking in detail.

16. The Judge also gave consideration to the Appellant’s explanation for the late emergence of details, which was that he was told to keep answers short at the screening interview [51] but found that did not adequately address the issue of the late inclusion of various key details in his account, that he could not explain at the substantive interview.

17. We find it was also open to the Judge to rely on internal inconsistencies within the Appellant’s evidence as being capable of undermining the Appellant’s credibility. The Judge attached little weight to more peripheral inconsistencies, such as his account at the screening interview and in the questionnaire of smuggling goods only from Iran to Iraq, and then at interview from Iraq to Iran or vice versa. The Judge placed reliance on more central inconsistencies, such as the Appellant’s account at interview that he returned to his home after the ambush, but in his appeal statement, he said he never returned home. The Appellant was also inconsistent about his political motivations when in Iran, between what was said in the questionnaire about long term political motivations and speaking out against the Iranian government, to the interview where he denied any history of political beliefs or activities, to his appeal statement and hearing, where he again relied on long term political motivations but no history of activism. We find the Judge’s reliance on inconsistencies within an account of the Appellant’s own motivations for his actions, and his difficulties giving a clear and consistent account of them at hearing, does stand up to scrutiny and goes towards the overall assessment of credibility.

18. There were other credibility issues relied upon where the Judge addressed aspects of the account that were simply not accepted, where plausibility is not referenced, such as why the Appellant would have told all the kolbars he was carrying political literature, if he knew his life would be at risk if it were discovered. Again in relation to the lack of contact with the Appellant’s family, while language such as ‘astonishing’ or ‘unfathomable’ is not helpful, we consider the findings made about the Appellant’s explanations [at 57 to 58], that he could not contact them because he did not have their phone number, or had not thought to use social media, despite claiming to be a political activist on social media, do not relate to plausibility alone, but do also go towards the overall assessment of credibility.

19. Similarly, the Judge had regard to the credibility of the Appellant’s claim to have told the other kolbars that he was carrying political material, despite the risk of it being discovered being so great that he was not told what the papers were and was told not to open the envelope they were in.

20. Ms Fathers submitted that the Judge’s reliance on a lack of historical activism in Iran is not a sustainable finding in light of what the country guidance and CPIN says about restrictions on any anti-government political activism in Iran. However, we consider the Judge was arguably referring to inconsistencies within the Appellant’s own account, cited above, where he claimed in the questionnaire to be ‘inspired’ by his uncle, to hold political beliefs in Iran which motivated him to speak out against the government, but at the interview he said he knew nothing about his uncle’s politics or the documents he carried, and could not say which political movement or party his uncle was involved with. The Judge also found the Appellant’s claim to be politically motivated to undertake activities, but then not doing so until December 2023, well over a year after his arrival here, to be inconsistent. While not specifically cited in the section of the Decision that addresses findings, the Judge also set out aspects of oral evidence regarding motivation to post on Facebook, which referenced evasive and inconsistent answers about why he did so and who he intended his posts to reach [40-42]. We therefore find the Judge’s reasoning about whether the Appellant’s political beliefs are genuinely held is not predicated on whether he had a history of activism in Iran.

21. In relation to Ground 1, we find that, while some aspects of the findings did potentially stray into matters of plausibility rather than credibility, these issues were not material and they do not undermine the overall assessment of the Appellant’s credibility. The judge found there was a lack of detail where it was to be expected, and there were inconsistencies and embellishments which went to the core of the claim. These findings were open to the judge on the evidence before him and he gave sufficient reasons for his conclusions.

Ground 3

22. Given we find there was no material error of law in the Judge’s assessment of credibility, the Judge’s finding that the Appellant was not motivated by genuine political beliefs was open to him on the evidence before him and his reasons were adequate.

23. As above, we find the Judge did consider relevant guidance in the risk assessment, in both HB and XX(PJAK), and had plainly read that guidance and had regard to relevant factors identified. Factors relied upon included the lack of previous adverse interest that would identify him as a ‘person of significant interest’ that would then trigger Facebook surveillance [63], and that he had been involved only in ‘low level’ sur place activities here, comprising three demonstrations and posts on Facebook. The Judge did not accept that the Appellant’s claimed political motivations were the reason behind his activities [60] and instead found if he were genuinely fuelled by political consciousness, he would have engaged in activities earlier.

24. We accept that the Judge did not clearly set out all of the risk factors addressed in country guidance in the ‘My Findings’ section of his decision, but we find that is not material, because he had regard to those factors and their impact on the assessment of risk in return elsewhere in the Decision [at 13 to 18]. There the Judge identified that those with no previous adverse interest, and with only low level activism in the UK, would not be at risk of persecution solely as a consequence of illegal exit, being returned as a failed asylum seeker, and by reason of Kurdish ethnicity.

25. For completeness, we also note that a copy of the Appellant’s bundle from the First-tier hearing has been provided to us by his representatives. The witness statement asserts a direct link to the Appellant’s social media account is contained within, however no such link appears in the copy of the statement within our bundle or in the skeleton argument for the First-tier Tribunal hearing. That bundle also appears to include only a partial copy of the Appellant’s Facebook profile page and partial copies of some limited posts from a Facebook account made between 17 December 2023 and 24 June, presumably 2024. We have not been provided with, for example, the full download document, to address the guidance in paragraphs 7 and 8 of the headnote of XX (PJAK). We have not been provided with full copies of ‘friends’ or any followers lists or ‘comments’, or of the profile, and it has not been put to us that this evidence was before the Judge. As was identified in XX (PJAK) it is a matter for the Judge what weight to place on social media evidence and the absence of this evidence can affect the weight to be placed on it. The Judge did not take issue with whether the evidence of social media activism complied with the guidance in XX (PJAK), and so this does not form part of our decision. However, we do find we have not been directed to any evidence that would lead us to depart from the Judge’s assessment of the Appellant’s political activism being at best ‘low level’ and not capable of demonstrating that the Appellant’s activities had or would have already come to the attention of the Iranian authorities.

26. Read as a whole, we find the Judge’s findings do stand up to scrutiny and are sufficiently reasoned, in that they identify that an Appellant with no previous profile or history of interest, who has been involved only in low level activities, would not be at risk on return as a consequence of illegal exit, Kurdish ethnicity and being returned from the United Kingdom as a failed asylum seeker.

27. We further consider that given the Judge’s findings about the Appellant’s motivations, the HJ (Iran) principle does not arise.

CONCLUSION

28. For the reasons set out above, the Decision does not contain an error of law. We therefore dismiss the appeal.

NOTICE OF DECISION
The appeal is dismissed.

H Graves
Deputy Upper Tribunal Judge Graves
Judge of the Upper Tribunal
Immigration and Asylum Chamber

3 March 2025