Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005948

First-tier Tribunal No: PA/63007/2023
LP/10752/2024

THE IMMIGRATION ACTS

Promulgated
On 24th of June 2025

Before

UPPER TRIBUNAL JUDGE LODATO
DEPUTY UPPER TRIBUNAL JUDGE PAUL LEWIS

Between

SH
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr. Brown, counsel instructed by Parker Rhodes Hickmotts
For the Respondent: Mr. McVeety, Senior Home Office Presenting Officer

Heard at Manchester Civil Justice Centre on 6th June 2025

Order Regarding Anonymity

Anonymity was ordered on 28th March 2025 by the Upper Tribunal. No application to discharge was made. It remains in force in the terms below.

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
Background
1. The appellant is a national of Iran of Kurdish ethnicity. On 16th June 2021 he claimed asylum in the United Kingdom on the basis of his political opinion. His claim was refused by the respondent in November 2023. The appellant’s appeal against that decision was dismissed by a First-tier Tribunal Judge (the ‘judge’) in a decision promulgated on 14th November 2024.
2. Thereafter, the appellant appealed to the Upper Tribunal. At an error of law hearing (‘EOL’) on 28th March 2025, Deputy Upper Tribunal Judge Sternberg set aside the Judge’s decision. It is against that background that this matter came before us to determine whether the appellant faces a risk on return due to his sur place activities in the UK.
Preserved findings
3. At the EOL hearing, Judge Sternberg preserved findings at [1] to [18] and [24] of the Judge’s decision. In short, the findings rejected, as a contrivance, the appellant’s detailed account to have been engaged in anti-regime political activity and then been ‘ambushed’ by the Iranian authorities whilst engaged in political activity.
4. Having accurately recorded the appellant’s sur place activities including attending at demonstrations against the government in Iran and posting material on social media critical of the regime, The judge made no findings as to whether the events genuinely reflected the attitudes or opinions of the appellant. He simply described them as opportunistic. We heard submissions from the parties who were unable to agree or to assist us to determine whether the judge’s finding that the appellant was opportunistic was intended as shorthand for contrived, or more literally: that an opportunity arose. We consider it fairest to interpret this widely in the sense that the appellant seized an opportunity to engage in political activism in the UK and not that this activity was found to be disengenuous. However, it remained open to us to reach our own independent conclusion on the evidence as to whether this conduct was a manifestation of genuine political beliefs.
The matter in issue
5. The parties thereafter agreed that the single issue for us to determine as a matter of fact was whether the appellant’s sur place activity represented his genuinely held political views. If it did, the respondent agreed the appeal should be allowed. If not, Mr Brown now conceded that the appeal must fail because the other factors potentially relevant to risk as raised in his pleadings were not sufficient for us to find the appellant would be at risk on return to Iran because he could not be expected to lie about his genuinely held political opinion or to delete his Facebook account which echo those views.
The law
6. There was no material dispute about the law. Asylum law is based upon the 1951 Geneva Convention relating to the status of refugees and the 1967 Protocol. Domestic effect has been given to this by legislation and the Immigration Rules.
7. To succeed in an appeal on asylum grounds, an appellant must show a well-founded fear of persecution for a Convention reason which includes an imputed political opinion. The burden of proof is upon the appellant.
8. The appellant's claim for asylum and protection was made before 28 June 2022, so the provisions of the Nationality & Borders Act 2022 do not apply to this claim.
9. This means that the approach set out by the Court of Appeal in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 to the standard of proof in asylum and protection claims applies. Sedley LJ, agreeing with Brooke LJ, referred to proving facts "to a modest standard of likelihood is enough, given the special role and purpose of the Convention".
10. More recently, as was pointed out in MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216; [2023] Imm AR 3 a fear of persecution should be well-founded which means "a reasonable degree of likelihood". As Singh LJ noted in paragraph 51 of MAH, strictly speaking it was not accurate to refer to the standard of proof, because the applicant had to prove nothing, and it was more accurate to describe it as an assessment of risk.
11. It is important to take account of events in the context of conditions in the country from which the applicant for asylum or protection comes, the decision maker is not expected to suspend their own judgment. Claims for asylum and humanitarian protection require the most anxious scrutiny.
Evidence, findings, reasons
12. The appellant attended the hearing. He was supported by an interpreter in the Kurdish Sorani language. He gave evidence and was cross examined. We then heard helpful submissions from each advocate We have considered the evidence in this case and refer to aspects of it below in so far as it is necessary for us to reach our determination.
13. We agree with Mr. McVeety that our starting point should be to 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, we 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 only because his other claims were contrived.
14. The appellant’s sur place activities as summarised at [19] of the judge’s decision is agreed by the parties as accurate. The appellant attended two political demonstrations in the UK as a participant. He did not undertake a significant or leading role. The appellant has a social media profile. The appellant cannot read or write. He asks his friends to make the social media posts on his behalf.
15. The appellant adopted the contents of his supplementary witness statement dated 9th May 2025. When cross-examined, he stated that he has attended as many demonstrations as he says he can afford to do so. He estimated he had attended up to four demonstrations. He continues to post on Facebook with the assistance of his friends. The appellant describes his motivation for doing so as ‘the only way I can really have a voice against the Iranian regime.’
16. Mr. McVeety submits the appellant’s knowledge of pro-Kurdish politics is superficial. He has not joined a political party and is ‘not a member of any groups’. We have considered carefully the appellant’s knowledge of Kurdish-Iranian politics. In stark contrast to the detailed and contrived narrative crafted by the appellant in support of his asylum claim, we find his knowledge and account consistent with his literacy.
17. The appellant began to engage in political activity after he arrived. Whilst this might 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, we find it 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) Iran CG [2018] UKUT 00430 makes plain has long been discriminating against the Kurdish population. The proposition is also consistent with the appellant being exposed to discussion amongst his current friendship group as to the discrimination faced by Kurds in Iran and influenced by those discussions to form his own political opinion.
18. In support of his claim, the appellant relied on extracts from the download of his Facebook profile. The appellant, even with the assistance of his legal representative was not able to provide the full download.
19. Applying XX (PJAK – sur place activities – Facebook) Iran CG [2002] UKUT 00023, headnotes [7] and [8]; then [96] - we note that a it is easy for an apparent print out of an internet of an internet page to be manipulated by changing the page source data and that purported print outs from such an account may also have very limited evidential value. We find the print outs in this appeal do have evidential value. They were produced by the appellant’s legal representative from the source data. It is not suggested by the respondent that the print outs are anything other than what actually appeared on the appellant’s Facebook account.
20. The appellant has regularly and frequently posted (with the help of others) on Facebook both since at least August 2021. The subject matter supports the Kurdish Democratic Party in Iran, refers to human rights abuses and is broadly critical of the government of Iran. Mr. McVeety submits that the appellant is reliant on others to post on his behalf. By implication, it is submitted that the appellant does not carefully curate the content of his Facebook account personally and cannot be sure that the posts do represent his own view.
21. We find that the appellant’s literacy does is nothing about an illiterate person relying on friends. Many of the posts uploaded to the appellant’s account include photographs and pictures, the meaning of which is plain. His illiteracy did not undermine the notion that he used the tools available to him to express political opinions of this nature.
Discussion
22. XX 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 or social graph 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.
23. The above paragraph should, however, be read in conjunction with the fuller analysis between paragraphs [98] and [102]. It is clear 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”. We 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.
24. 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). We 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. We are 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
1. We allow the appeal on asylum grounds.

Paul Lewis

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

9th June 2025