Tribunal decisions

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IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000180

First-tier Tribunal No: PA/56059/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

7th May 2025

Before

UPPER TRIBUNAL JUDGE REEDS
DEPUTY UPPER TRIBUNAL JUDGE SAFFER

Between

MK
(Anonymity order made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Gibson a Solicitor
For the Respondent: Mr Diwnycz a Senior Home Office Presenting Officer

Heard at Phoenix House (Bradford) on 7 April 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 was born on 27 March 1991. He is a citizen of Iran. He appealed against the decision of the Respondent dated 26 August 2023, refusing the claim for international protection made on 20 April 2021. He appeals against the decision of First-tier Tribunal Judge (FtTJ) Hands, promulgated on 7 November 2024, dismissing the appeal.
Permission to appeal
2. Permission was granted by FtTJ Loke on 2 January 2025 who stated that:
“It is arguable that the Judge’s reasons at [13-15] are inadequate. Given these are factual findings, they impact on Ground 2 as well and permission is granted on that ground also.
Permission is granted on all grounds.”
The First-tier Tribunal decision of 7 November 2024
3. In summary FtTJ Hands found that:
“11. … the Appellant is a national of Iran, is of Kurdish ethnicity and has been politically active in the United Kingdom…
13. … I do not accept that he would agree to drive three unknown people to the border without making the necessary enquiries as to why and who they were. I do not accept this account of the days prior to the Appellant’s departure from Iran.
14. The Appellant is an intelligent man, educated to degree level in business administration who worked as a photographer using his own studio. He is able to understand the implications of being caught in such an action and the jeopardy it would put his life in not only in respect of his business but with his wife...I find it incredible that he would place himself in danger for three complete strangers when the only outcome for him, with no financial incentive should his mission succeed, would be adverse attention from the authorities.
15. … I do not believe this happened and the whole account of coming to the attention of the authorities, which was, conveniently, after he had dropped off his passengers, is a figment of his imagination to provide a reason for him leaving Iran. It follows, that I do not believe he carried leaflets in his car outside of the times he was travelling to distribute them. That said, his account of distributing 300 or 350 leaflets in ten minutes in areas of Sardasht and Rabat that would be unfamiliar to him when it was dark is, I also find, beyond the realms of possibility.
16. … As the Appellant is in regular contact with his wife, there is no reasonable excuse for him not being able to provide the details of how his uncle helped him and the cost to him for the Appellant’s journey to the United Kingdom.
17. The Appellant’s ability to leave Iran in such a short space of time is, in my judgement, indicative of the Appellant fabricating an account of being a supporter of the KDPI while he was in Iran and, in fact, he was planning his departure from Iran for some time and is an economic migrant.
18. The letter of support from the KDPI for the Appellant … makes it quite clear that it has been issued to support the Appellant’s claim for asylum and nothing more. There is no expression of where the information originates or what weight can be placed upon it. I attach little evidential weight to the letter…
25. … the Appellant had no political profile prior to leaving Iran, he opened a Facebook account and began reposting political material thereon when he arrived in the United Kingdom, there is no material on that Facebook account that could be said to be emanating originally from the Appellant and he has, in fact, merely used it to re-post the opinion of others and show photographs of him standing with other people who may or may not be part of a demonstration. The Iranian authorities would have no reason to search for him on Facebook because they would have no knowledge of his existence either in Iran or in the United Kingdom.
4. Having identified and summarised the guidance contained within SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 308 (IAC) and HB (Iran - Kurds) CG [2018] UKUT (430) the FtTJ continued;
29. If he is interrogated on his return to Iran, he would be able to say that he claimed asylum for political reasons but he was found not to be credible and that it was decided he was not a politically minded person but used a Facebook account to bolster his false claim for asylum. It is also open to him to delete that Facebook account and it would then not be available for anyone to see.
30. I find the Appellant would not face a real risk of serious harm or persecution because of a genuinely held political opinion and the authorities would not be aware of any of his activity in the United Kingdom.
31. In determining the Appellant’s credibility in terms of Section 8 of the Asylum & Immigration (Treatment of Claimants, etc.) Act 2004, I can take the behaviour of the Appellant into account. The Appellant has a duty to claim asylum in the first safe country in which he arrives. The Appellant travelled through several European countries on his way to the United Kingdom. He was arrested and detained in Greece but claims he did not seek asylum there because he was under the control of the agent and did not speak the language. I do not find this to be a reasonable excuse as, if he was in fear for his life and was now in detention under the control of the Greek authorities, it would be important for him to advise the authorities as to why he had entered their country illegally. Speaking the language is not the issue as he is using an interpreter at the hearing. He was fingerprinted so would not be supervised by the smuggler at all times.
32. Mr Gibson advised me that while the United Kingdom was in the European Union, transfers to Greece were suspended and that it would make sense that he was told to go away. However, the Appellant does not claim that the Greek authorities refused to accept a claim for asylum, just that he was told not to claim by the smuggler, who by the nature of the role he was carrying out, is a person involved in criminal activity. That position of itself, does not mean Greece is not a safe country for people who have fled their country in fear of for their life.
33. I find Section 8 when assessing credibility, pursuant to #339N of the Immigration Rules, is applicable in this case and the Appellant’s failure to claim asylum in any of the European countries in which he found himself, materially damages his credibility.”
The Appellant’s grounds seeking permission to appeal
5. We set out the grounds dated 19 November 2024, including emphasis, in full as they are repeated in the skeleton argument dated 19 March 2025 and oral submissions with minor additions and page references:
“Ground 1: i) Making perverse or irrational findings on a matter or matters that were material to the outcome (“material matters”);
1. At Paragraph (from here forth, “Para”) 15 of the Determination (shortened to highlight point in dispute), the IJ stated that:
“15. … That said, his account of distributing 300 or 350 leaflets in ten minutes in areas of Sardasht and Rabat that would be unfamiliar to him when it was dark is, I also find, beyond the realms of possibility”
2. This ruling is perverse. The Appellant, during cross examination, said that the number of leaflets varied and that it was “around” 100 leaflets per person. The Appellant confirmed in cross examination that he worked in a group of 2-3 people including himself.
3. 100 leaflets in 10 minutes equals 10 per minute. This is entirely plausible. The Appellant stated that he distributed them in houses, public places, letterboxes and courtyards. A courtyard is usually a space used by multiple dwellings.
4. When making the above determination in Para 15 (and in addition to the fact that information recited was wholly incorrect), the IJ failed to take into account the fact that the Appellant was able-bodied.
5. Further, the IJ was incorrect in stating that Sardasht would be “unfamiliar to him”. The Appellant is from Sardasht and so he would be familiar with the area. The Appellant’s place of birth was not disputed.
6. The IJ, with respect, failed to take into account the Appellant’s answers during cross examination and the basic (uncontested) facts of his claim and therefore made a perverse finding against him.
Ground 2: i) Making perverse or irrational findings on a matter or matters that were material to the outcome (“material matters”);
7. At Para 27 and Para 28 of the Determination, the IJ considered the country guidance cases of SSH and HB. This consideration was with regard to assessing the risk of the Appellant’s possible return to Iran.
8. The IJ, at Para 29 of the determination, ruled that:
“29. If he is interrogated on his return to Iran, he would be able to say that he claimed asylum for political reasons but he was found not to be credible and that it was decided he was not a politically minded person but used a Facebook account to bolster his false claim for asylum. It is also open to him to delete that Facebook account and it would then not be available for anyone to see.”
9. The IJ made a perverse finding in ruling that “IF” the Appellant were to be interrogated. CG confirmed that it is NOT an “if”; it will happen. Further, the IJ made another perverse finding in what would happen during the interrogation.
10. The Country Guidance (CG) case of PS, which was mentioned during closing arguments as well as included in the bundle (page 471 onwards of the “Stitched” Appeal Bundle), states that (shortened to highlight point in dispute):
“4. In cases where the claimant is found to be insincere in his or her claimed conversion, there is not a real risk of persecution ‘in-country’… Decision-makers must nevertheless consider the possible risks arising at the ‘pinch point’ of arrival:
i) All returning failed asylum seekers are subject to questioning on arrival, and this will include questions about why they claimed asylum;
ii) A returnee who divulges that he claimed to be a Christian is reasonably likely to be transferred for further questioning;
iii) The returnee can be expected to sign an undertaking renouncing his claimed Christianity. The questioning will therefore in general be short and will not entail a real risk of ill-treatment;
iv) If there are any reasons why the detention becomes prolonged, the risk of illtreatment will correspondingly rise. Factors that could result in prolonged detention must be determined on a case by case basis. They could include but are not limited to:
a) Previous adverse contact with the Iranian security services;
b) Connection to persons of interest to the Iranian authorities;
c) Attendance at a church with perceived connection to Iranian house churches;
d) Overt social media content indicating that the individual concerned has actively promoted Christianity”.
11. The IJ made a perverse finding in determining that being proved insincere (regarding one’s claim) would prevent further questioning, or any harm at all.
12. The IJ should have assessed the risk upon return and the “pinch-point” of arrival in line with CG of PS. Furthermore, part of that assessment would need to include the low threshold under the CG of HB, which also made mention to “perceived” political activity.
13. Further, for the reasons below, the IJ erred in that deletion of a Facebook profile could prevent further questioning or harm, given the fact that his images and videos are on other profiles.
Ground 3: i) Making perverse or irrational findings on a matter or matters that were material to the outcome (“material matters”);
14. At Para 31, 32 and 33 of the Determination, the IJ found that the Appellant fell foul of Section 8 of the Asylum & Immigration (Treatment of Claimants, etc.) Act 2004. This was because he did not claim asylum in Greece.
15. Greece has been subject to criticism for their asylum system, procedures and treatment of asylum seekers. The leading case law on this is found at M.S.S. v. Belgium and Greece (Application no. 30696/09).
16. The IJ erred and made a perverse finding in failing to accept the well-known criticisms of Greece. Therefore, it is reasonable to assume that the Appellant would have been at the mercy of agents and possibly other criminal elements due to the systematic failure of Greece to adequately process and accommodate asylum-seekers.
17. The IJ failed to consider the practical difficulties (even though theoretically, it is possible) for the Appellant in claiming asylum from the viewpoint of Greece. Further, even if the Appellant did claim asylum, consideration would have had to be given due to the ruling of M.S.S and the conditions.
Ground 4: ii) Failing to give reasons or any adequate reasons for findings on material matters;
18. At Para 13 of the Determination (shortened to highlight point in dispute) the IJ stated that:
“13. … I do not accept that he would agree to drive three unknown p[people to the border without making the necessary enquiries as to why and who they were. I do not accept this account of the days prior to the Appellant’s departure from Iran”.
19. Further, at paragraph 14 of the Determination (shortened to highlight point in dispute) the IJ stated that:
“14. … find it incredible that he would place himself in danger for three complete strangers when the only outcome for him, with no financial incentive should his mission succeed, would be adverse attention from the authorities.”
20. Further, at paragraph 15 of the Determination (shortened to highlight point in dispute) the IJ stated that:
“15. … Frankly, therefore, I do not believe this happened and the whole account of coming to the attention of the authorities, which was, conveniently, after he had dropped off his passengers, is a figment of his imagination to provide a reason for him leaving Iran”.
21. The Judge erred in failing to stipulate her reasons for this decision. It is reasonable, for the reasons given by the Appellant, that there would be secrecy among other activists.
22. Surely, ruling that the Appellant’s credibility was reduced so far as to claim he has an overactive imagination warrants significant reasoning.
Ground 5: ii) Failing to give reasons or any adequate reasons for findings on material matters;
23. At Para 26 of the Determination, the IJ stated that:
“26. Mr. Gibson has argued that his political profile would come to the fore because of his presence on Facebook pages belonging to others. Those Facebook pages presented to me do not provide the Appellant’s name and the only photographs are as I have narrated above. There is insufficient evidence to establish this submission”.
24. This is a perverse finding and one we believe should be determined by a new case law. Such an issue (an Appellant featuring on other profiles) is not considered under the current CG cases.
25. The IJ should have made an assessment on the profiles of those people who have the Appellant featured on their Facebook page. The IJ should have made an assessment on the likelihood that those people may have come to the attention of the authorities at some point.
26. The lack of consideration of the profiles resulted in this perverse finding.
Ground 6: iii) Failing to take into account and/or resolve conflicts of fact or opinion on material matters;
27. The IJ failed to resolve the Respondent’s reasons for Refusal as stated in their Refusal (pages 657 and 658 of the Stitched Appeal Bundle).
28. There continues to be significant points of contention, led by the Respondent, which are not considered and ruled upon.
29. It is worth noting that the Appellant was cross-examined and, clearly, apart from two issues the IJ found concerning (leaflets and Greece), he performed well and this should have been viewed favourably.
Ground 7: iv) Giving weight to immaterial matters;
30. At paragraph 16 of the Determination, the IJ stated that:
“16. The Appellant claims not to know how much his journey cost despite the fact he has been in touch with his wife, who would be able to contact his uncle to find out the details in order to assist the Appellant in 5 his asylum claim. His wife has told him about his home being raided and his documents and laptop being taken. His wife has told him when he speaks to her through WhatsApp, that his father has been taken for questioning and the authorities are still looking to arrest him. However, he is not aware of any warrant being issued for his arrest. He tells me his wife is currently being maintained by his parents and by her own parents as she is unemployed. As the Appellant is in regular contact with his wife, there is no reasonable excuse for him not being able to provide the details of how his uncle helped him and the cost to him for the Appellant’s journey to the United Kingdom.”.
31. We would submit that the cost of a trip from Iran to the United Kingdom is immaterial to the assessment of the Appellant’s credibility. If it is material, then it forms a minor part of the overall assessment of his credibility; however, in this appeal, it clearly forms a much larger part of the assessment than it should.
Ground 8: iv) Giving weight to immaterial matters;
32. At paragraph 17 of the Determination, the IJ stated that:
“17. The Appellant’s ability to leave Iran in such a short space of time is, in my judgement, indicative of the Appellant fabricating an account of being a supporter of the KDPI while he was in Iran and, in fact, he was planning his departure from Iran for some time and is an economic migrant. The Appellant’s ability to leave Iran in such a short space of time is, in my judgement, indicative of the Appellant fabricating an account.”.
33. The IJ erred in giving weight to a matter which was not subject to criticism or contention previously. The issue identified was not featured in the Respondent’s Refusal.
34. Further, the length of time between an incident giving raise to interest from the authorities and fleeing is not normally an issue, unless that length of time is significantly longer (for example, the Appellant lived in Iran for a year despite being wanted by the authorities).
35. We would submit it would be reasonable that, in the event a person is facing arrest and serious harm, his departure from the country in question would be incredibly swift. It is reasonable to assume that a person who wishes to leave their country for false reasons - for the ultimate aim of economic betterment - would surely take a significant amount of time to plan their flight (both in terms of travel and concocting a story).
Ground 9: vii) Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the Appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.
36. At Para 18 of the Determination, the IJ stated that:
“19. The letter of support from the KDPI for the Appellant refers to him as a ‘sympathiser’ of the party. Not a member or a supporter. A sympathiser does not necessarily take any action on behalf of the party and would only have sympathy for their cause. The letter also refers to the Appellant coming to the attention of the authorities in Iran but the only provenance for this information, is the Appellant himself so it adds nothing to his testimony. The letter makes it quite clear that it has been issued to support the Appellant’s claim for asylum and nothing more. There is no expression of where the information originates or what weight can be placed upon it. I attach little evidential weight to the letter.”.
37. The IJ erred significantly in this ruling.
38. There was documentation, in the Appellant’s appeal bundle (Page 31 of the Stitched Appeal Bundle), which confirms that the KDPI letter in question was emailed from the KDPI to the Appellant’s legal representative at the time. There was provenance to the letter. The IJ erred in failing to consider this document. The location and consideration of this document is likely to have had a material impact on the ruling found at Para 19 above.
39. As of the provenance of the letter should not be in question, naturally, it follows that (unless evidence suggests otherwise) the organisation would not seek to deceive or mislead the Tribunal.
40. Lastly, the word “sympathiser” appears on all such letters from the KDPI. Consideration should be given to the fact that English is not indigenous to that region and that even sympathising is likely to fall afoul of the hair-trigger approach as per HB.
Ground 10: vii) Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.
41. At Para 20 of the determination (shortened to highlight point in dispute) the IJ stated that:
“20. The Appellant has provided screenshots of a Facebook page in his name, in his original bundle, and of Facebook pages in the name of others, in the supplementary bundle. In the original bundle the Facebook screen shots run from page 34 to 195. The posts have not all been translated into English so I am unable to assess the content. An article about Kolbars and the death of Asmina have been translated. The latest post shown is dated 12 July 2023. There is a photograph of the Appellant kissing a flag and another that shows him holding a flag. Other than that, the page could belong to anyone as there is no heading or photograph to show who actually owns the Facebook account from which these pages have been taken. When searching the Facebook pages presented, there is reference to several other people with the exact same name as the Appellant so I do not find that he can be easily identified from the Facebook information presented to me.”.
42. The IJ, again, erred significantly with this ruling.
43. The Appellant, in line with the CG of XX, provided a download of his Facebook. By providing this download, it prevents any “manipulation” of his profile.
44. The Appellant’s posts, which span from page 34 to 195 (of the Stitched Appeal Bundle) show the Appellant at various demonstrations (see, for example, pages 46, 47, 68, 78, 79, 83, 125, 153, 162, 181, 182 and 188).
45. The IJ erred in that:
a) She gave no consideration to the fact that the Appellant downloaded his Facebook in line with XX. This prevents manipulation and shows provenance.
b) The Download shows that it belongs to the Appellant (for example, see the top right of page 47 of the Stitched Appeal Bundle).
c) She ruled that the Appellant’s activities were as minimal as two photographs of his activities despite many photographs to the contrary.
d) She ruled that the Appellant’s Facebook cannot be found despite evidence confirming it can easily be found (please see page 456 of the Stitched Appeal Bundle).
46. There was ample evidence in the Appeal Bundle(s) which, if viewed, was likely to have altered the ruling found at Para 20.
Ground 11: vii) Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.
47. At Para 21 of the determination, the IJ stated that:
“21. Scrutiny of these pages reveals that there is one photograph of the Appellant in the crowd, which also appears on his own Facebook page as having been uploaded in January 2022, and, but for the fact the Appellant has circled his face, you would not know he was there. This photograph appears on three different pages of the Appellant’s bundle. There are pages from two other gentlemen which do not show a connection to the Appellant. The KDPI Facebook page claims to have over five thousand followers and yet there are only four or five comments on the posts shown.”.
48. The IJ erred in failing to consider and understand the evidence before the Tribunal.
49. Some photographs that were circled were not photographs per se; they were screenshots of videos which could be viewed by anyone. The links to those videos were clearly stated at page 436 (of the Stitched Appeal Bundle).
50. Consideration should have been given to the fact that the Appellant featured in videos and to the length of time he was visible.
Ground 12: vii) Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.
51. At Para 23 of the determination, the IJ stated that:
“23. The Appellant’s own Facebook pages do not reveal how many followers he has, but the other Facebook pages belonging to other people, which claim to have in excess of 4,000 followers, state there are only six mutual friends between that person and, I presume, the Appellant. A search for the Appellant brings up in excess of ten people by the same name, none of which have his photograph.”.
52. There was evidence, at page 456 of the Stitched Appeal Bundle, that the Appellant’s Facebook can be easily found and noticed.
53. Ruling that the Appellant’s Facebook cannot be found is a significant error of fact.
Ground 13: vii) Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.
54. At Para 24 of the determination, the IJ stated that:
“24. Looking at the Facebook posts that have been presented, and I bear in mind the guidance in XX (PJAK -sur place activities – Facebook Iran [2022] UKUT 23 (IAC) in respect of Facebook evidence, the only evidence of the Appellant attending a demonstration is the Appellant being photographed in the background with others. I do not find there is sufficient evidence before me that would enable me to find that the Appellant’s claim that his political profile is such that he will come to the adverse attention of the Iranian authorities should he return there or that he already has because of that activity.”.
55. Again, this is a significant error by the IJ.
56. Evidence was submitted to the Tribunal, and not disputed, showing that the Appellant was not a mere face in the crowd. Evidence shows him alone in photographs and engaged with the demonstrations (please see pages 46, 47, 68, 78, 79, 83, 125, 153, 162, 181, 182 and 188).
57. The failure to note and consider this evidence clearly affected the decision of the IJ in determining that the Appellant’s activities are not of sufficient interest to the authorities.
Ground 14: vii) Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.
58. At Para 25 of the determination (shortened to highlight point in dispute) the IJ stated that:
“25. In my judgement, the Appellant had no political profile prior to leaving Iran, he opened a Facebook account and began reposting political material thereon when he arrived in the United Kingdom, there is no material on that Facebook account that could be said to be emanating originally from the Appellant and he has, in fact, merely used it to re-post the opinion of others and show photographs of him standing with other people who may or may not be part of a demonstration. The Iranian authorities would have no reason to search for him on Facebook because they would have no knowledge of his existence either in Iran or in the United Kingdom.”.
59. The ruling that the Appellant has not posted material originally from him is false.
60. The Appellant has written his own posts and uploaded his own photographs onto his Facebook. This can easily be confirmed by viewing his downloaded Facebook. Therefore, as it came from him (no evidence has been provided confirming otherwise), it confirms that he has a political opinion.
61. Additionally, the Appellant could not have built an online political profile in Iran. Facebook has been banned in the country for many years, such is the weight the website carries.
Conclusion
62. Although it may be dismissed as a reason for permission to appeal, it is worth noting that the IJ Concluded, at Para 37 and 38, that the Appellant (who is Iranian and male) can locate to IRAQ and is FEMALE. This is an error and may give pause to the idea that other parts of the determination are remnants of previous decisions.
63. We would like the Tribunal to be aware that the Appellant is on £42 a week from Asylum Support and has not seen his wife for almost 4 years. The Appellant’s classification as an “economic migrant” is unjustified and disproportionate.”
The Respondent’s Rule 24 notice of 4 April 2025
6. The Rule 24 notice asserted, excluding direct quotes from the Grounds which are set out in full above, that:
2) “It is … appropriate to restate the findings of the UT in Dasgupta (error of law – proportionality – correct approach) [2016] UKUT 00028 … at its paragraph 17, as below ( my emphasis in bold):-
“ 17 . Alternatively, bearing in mind that this is an error of law appeal and not a challenge on the merits, we apply the Edwards v Bairstow [1956] AC 14 prism. It is timely to recall these principles. There, in an error of law appeal, the House of Lords applied the standard of “the true and only reasonable conclusion” open to the Commissioners [at p10] and, notably, in doing so, employed the language of “perversity” [at p 6]. They defined the latter as a case in which -
“….. the facts found are such that no person acting judicially and properly instructed as to the relevant law could come to the determination under appeal.”
[per Lord Radcliffe at p 10]
In the language of Viscount Simonds [at p 6]:
“For it is universally conceded that, although it is a pure finding of fact, it may be set aside on grounds which have been stated in various ways but are, I think, fairly summarised by saying that the court should take that course if it appears that the commissioners have acted without any evidence or upon a view of the facts which could not reasonably be entertained.”
The enduring application and pedigree of the Edwards v Bairstow principles is not, so far as we are aware, in question.”
3) It is trite, but nonetheless true to state that perversity has a high threshold.
In R and Others v SSHD (2005) EWCA civ 982 ( found here R (Iran) & Ors v Secretary of State for the Home Department [2005] EWCA Civ 982 (27 July 2005))
Lord Justice Brooke noted that perversity represented a very high hurdle. It embraced decisions which were irrational or unreasonable in the Wednesbury sense., as at its part4 paragraphs 11 and 12 as below ( my emphasis in bold):-
“Part 4 Perversity, the failure to give reasons, and proportionality
11. It may be helpful to comment quite briefly on three matters first of all. It is well known that “perversity” represents a very high hurdle. In Miftari v SSHD [2005] EWCA Civ 481, the whole court agreed that the word meant what it said: it was a demanding concept. The majority of the court (Keene and Maurice Kay LJJ) said that it embraced decisions that were irrational or unreasonable in the Wednesbury sense (even if there was no wilful or conscious departure from the rational), but it also included a finding of fact that was wholly unsupported by the evidence, provided always that this was a finding as to a material matter.
12. We mention this because far too often practitioners use the word “irrational” or “perverse” when these epithets are completely inappropriate. If there is no chance that an appellate tribunal will categorise the matter of which they make complaint as irrational or perverse, they are simply wasting time – and, all too often, the taxpayer’s resources – by suggesting that it was.”
4) … the grounds of appeal … do not establish any perversity...
5) …Ground 1…
This assertion and those following it have not been the subject of objective evidence or expert opinion. In bald terms, it would require the appellant to distribute on leaflet on average every six seconds. It is neither perverse nor irrational for the Judge to have found that to be beyond the realms of possibility. No evidence was provided regarding the nature of the terrain, geography or layout of the area being targeted…
Judge Hands was clearly referring to Sardasht and Rabat collectively. It might well be the case that the appellant has a degree of familiarity with his avowed home town of Sardasht, but that does not necessarily hold true for Rabat, which is a separate municipality some distance away. Judge Hands was entirely within bounds to find as she did at paragraph 15.
6) Ground 2: i) Making perverse or irrational findings on a matter or matters that were material to the outcome (“material matters”)…
The appellant’s return in general at the point of the decision was in itself conditional, those conditions being his appeal failing and his return to Iran as a result. It is not perverse to refer to something which is yet to occur by using the conditional tense. Indeed, it would seem to be grammatically and syntactically correct to so do.
7) Ground 3: i) Making perverse or irrational findings on a matter or matters that were material to the outcome (“material matters”)
Notwithstanding the ratio in M.S.S., and the general judicial awareness of conditions in Greece, it is not accepted that Judge Hands’ factual finding that the appellant did not claim asylum in Greece to be perverse. It is a simple statement of facts, facts reported by the appellant. A finding open to any Judge faced with that set of facts. Those facts render themselves capable of being dealt with by the provisions of statute in s.8 of the Asylum & Immigration (Treatment of Claimants, etc.) Act 2004. The drafter’s assertion that
“…it is reasonable to assume that the Appellant would have been at the mercy of agents and possibly other criminal elements…”
is no more than speculation. It would be more correct to assert that the appellant might have been so at risk. To assert it as definite outcome without more is disingenuous.
8) Ground 4: ii) Failing to give reasons or any adequate reasons for findings on material matters…
It is not accepted that Judge Hands erred in any way in disbelieving the appellant’s account of the putative driving incident. The reasoning is self-explanatory and contained within the finding itself, in particular at her paragraph 13, as above. The findings contain a sufficiency of reasoning and do not require a separate “signpost” to show them as such. Judge Hands does not assign an “overactive imagination” to be the reasoning behind this finding, as suggested by the drafter. She characterises his narrative of events carefully as a “figment of his imagination”. Read correctly, and in context, that finding and phrase is a reflection of the Judge not believing that the narrative occurred as related by the appellant. It could therefore only be a fabrication, to wit, something imaginary.
9) Ground 5: ii) Failing to give reasons or any adequate reasons for findings on material matters…
Yet again, any assertion of perversity on the part of the Judge is not accepted. The ground does not argue that the facebook pages as presented to the Judge are anything other than as she described them…Judge Hands was under no duty to assess the likelihood of any sequelae which may or may not have ensued for those individuals mentioned by the drafter. They did not have extant, coincident, linked appeals before Judge Hands. To suggest that she deal with issues which were not within her jurisdiction is in of itself not a sustainable argument.
10) Ground 6: iii) Failing to take into account and/or resolve conflicts of fact or opinion on material matters…
Unfortunately, the numbering quoted by the drafter in the skeleton does not correspond with the numbering of the bundle as it assembled before this officer. The footnotes do not seem to be “clickable” and do not take the reader to the page intended, or indeed, anywhere. That is not an inherent criticism of the drafter, but it is argued that it would have been helpful had the actual “bones of contention” from the refusal decision been cited in whole or in part. The Tribunal is cordially invited to request that the appellant’s representative, should one be appearing at the hearing, take the court to the relevant passages in order that the SofS’s SPO may deal with them ad hoc on the day. For the avoidance of any doubt, no acceptance of any putative error by Judge Hands on this issue at the time of drafting.
11) Ground 7: iv) Giving weight to immaterial matters;…
The SofS does not accept this is an immaterial matter. The drafter argues that the Judge ought not to have found that there “ is no reasonable excuse for him not providing details…” The Tribunal is politely reminded of the ratio in (TK (Burundi) v SSHD (2009) EWCA Civ 40) ( found here TK (Burundi) v Secretary of State for the Home Department [2009] EWCA Civ 40 (04 February 2009) ), which in short states that if information is easily discoverable, and would assist the courts, then it should be made available , its paragraph 16, as below ( my emphasis in bold):-
16.“Where evidence to support an account given by a party is or should readily be available, a Judge is, in my view, plainly entitled to take into account the failure to provide that evidence and any explanations for that failure. This may be a factor of considerable weight in relation to credibility where there are doubts about the credibility of a party for other reasons….”
12) Ground 8: iv) Giving weight to immaterial matters;…
It is argued by the SofS that Judge Hands was entitled, in the “Robinson obvious” sense to take a matter of her own volition, if indeed she so did. The drafter’s assertions that this is an issue of immaterial matters is misconceived. If indeed the Judge did take the matter of her own volition, and did not give both sides the opportunity to comment upon it, then it would be a matter of procedural fairness. It has not been argued as such. The drafter has not asserted any impropriety on the part of the Judge in conducting the hearing. The SofS is not aware of any request to have the Judge’s record of proceedings adduced as evidence, or the recording of the hearing to be listened to substantiate any such putative error. The SofS argues this ground as it stands at present is wholly-misconceived and ought to be rejected outright.
13) Ground 9: vii) Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the Appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made…
Once more, it is trite but nonetheless true to state that the appellant and his advisers and representatives bear responsibility for the method and manner of presentation of evidence in his cause. To subsequently claim exceptionality from that responsibility in the face of an adverse tribunal decision is disingenuous. At the drafter’s paragraph 40, as above, a bare assertion is made regarding the use of the word “sympathiser” in letters from the organisation in question. Absent any expert, or even quantitative evidence to support such an argument, the SofS does not accept that Judge Hands erred in any way in her treatment of the letter. Weight given to evidence is always the prerogative of the Judge. She chose to give it little weight. That was her prerogative, and not erroneously exercised as such.
14) Grounds 11.12.13.and 14 ... The footnotes do not seem to be “clickable” and do not take the reader to the page intended, or indeed, anywhere. This officer is therefore not able to address these grounds substantively as they stand at present... The SofS will further rely on the legal maxim coined by Ward J (as he then was), who memorably made the point that ‘judges are not forensic ferrets’ (B-T v B-T [1990] 2 FLR 1 at p.17). The SofS argues that maxim is equally applicable in this matter.”
Oral submissions
7. Mr Gibson made no additional oral submissions regarding Grounds 1 to 8, and 10, and merely summarised or repeated that already stated.
8. Regarding Ground 9, he asserted that English is not the first language of the author. In Iran the KDPI was known as KDP. They came together. The letter came from the KDPI. It is also sometimes known as the PDKI.
9. Regarding Ground 11, he asserted that there were links to the videos which the Judge could have watched.
10. Regarding Ground 12, he asserted that it is not clear where the evidence of a search against the Appellant’s name producing more than 10 other people comes from. His Facebook page can be found by a search of his name.
11. Regarding Ground 13, he asserted that there were photographs from more than 1 demonstration. The more demonstrations the greater the risk.
12. Regarding Ground 14, he asserted that the Appellant has written his own posts. There is nothing on the post of 11 February 2023 at page 242 of the stitched bundle to say it was a repost. The fact that the English date in the post is given as 25 April 2019 whereas he arrived in the United Kingdom on 19 April 2021 may be due to him posting the date using the Iranian calendar and that being translated by Facebook incorrectly.
13. Mr Diwnycz submitted additionally that in relation to Ground 10, the onus was on the Appellant to prove his case to the relevant standard. The FtTJ had been shown evidence she found to be inconclusive and did the best with what was presented. There was an extensive Facebook download with one post having a material error within of a post being 2 years before the Appellant’s arrival here. A typographical error on gender does not amount to a material error of law. The grounds are nothing more than an attempt to relitigate what was before the First-tier Tribunal.
14. Mr Gibson submitted in response regarding Ground 10 and [26] of the decision that there were posts from the Appellant and a plethora of information the Judge did not see. This affected her decision. It is an error to say something was not there when it was.
Discussion
15. We are grateful for the assistance given by each of the advocates when presenting their respective cases before the Tribunal.
16. When undertaking an assessment of the grounds, we take into account the matters set out in the decision in Volpi v Volpi (supra) when reviewing a first instance judge's findings of fact as per Lewison LJ as follows:
"2. The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled:
(i)An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
ii) The adverb 'plainly' does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.”
17. Further, when assessing the Grounds, we acknowledge the need for appropriate restraint by interfering with the decision of the FtTJ bearing in mind its task as a primary fact finder on the evidence before it and the allocation of weight to relevant factors and the overall evaluation of the appeal. Decisions are to be read sensibly and holistically; perfection might be an aspiration but not a necessity and there is no requirement of reasons for reasons. We are concerned with whether the Appellant can identify errors of law which could have had a material effect on the outcome and have been properly raised in these proceedings. To avoid duplication we will not repeat the extracts from Dasgupta or R (Iran) referred to above in the Respondent’s skeleton argument.
18. There are 14 grounds of challenge and for ease of reference we shall group the Grounds as activity in Iran (Grounds 1, 4 and 6), the journey (Grounds 3, 7 and 8), the sur place activity (Grounds 5, and 9 to 14), and what is reasonably likely to happen on his return (Ground 2).
19. Dealing with Grounds 1, 4 and 6, they seek to challenge the FtTJ’s assessment of the events in Iran. The FtTJ’s reasoning is set out between paragraphs [10 – 17] of her decision and as with any decision those paragraphs should not be read in isolation but should be read together.
20. Contrary to the general submission made in the grounds, none of that reasoning can be viewed as either perverse or irrational. As submitted on behalf of the Respondent, there is a high threshold to demonstrate perversity, and we are satisfied that the FtTJ gave adequate and sustainable reasons for her decision within those paragraphs which were neither perverse nor irrational.
21. The FtTJ’s assessment of his claim to be involved with the distribution of leaflets was in accordance with the evidence that had been given and as recorded at paragraph [11], that he worked in a group of 2 to 3 people distributing between 300 and 350 leaflets in 10 minutes by putting them into the backyard of people’s homes or through the letter boxes and in public places. The activity was carried out under the cover of darkness. The FtTJ considered this part of his account when considering the factual claim assessed at paragraph [15] of her decision.
22. Having heard the evidence the FtTJ set out that she did not believe that the Appellant had carried leaflets in the car outside of the times he was travelling to distribute them, nor did she accept his account of distributing the leaflets as he had claimed. The FtTJ set out her finding that his account of distributing 300 or 350 leaflets in 10 minutes in areas of Sardasht and Rabat that would be unfamiliar to him when it was dark, as “beyond the realms of possibility.”
23. The grounds assert that the Appellant was with 2 to 3 people and that 100 leaflets in 10 minutes equals 10 per minute and this account “was plausible”. It is also asserted that the FtTJ failed to take into account that he was able-bodied and that as he was from Sardasht he would not be unfamiliar with the area.
24. None of those grounds demonstrate that the findings of fact made by the FtTJ were not open to the Judge to make. They do no more than pose alternative scenarios and are no more than a disagreement with those findings of fact. The FtTJ was entitled to take into account the circumstances in which the leafleting was undertaken and that it was in 2 particular areas and also in the dark. The FtTJ was aware that the Appellant was from Sardasht but that does not demonstrate that the FtTJ’s finding was either in error or alternatively perverse that he would not be familiar with all places in those areas he claimed to be leafleting.
25. Dealing with the other grounds advanced, insofar as it is asserted that the FtTJ failed to give reasons for her decision that is not made out. The FtTJ assessed his claimed activities in the context of his individual personal characteristics and in the context of the claim made as to how activities for the KDPI are viewed in Iran (we refer to the findings at paragraphs [13 – 14]). It was open to the FtTJ to find that in the light of the Appellant’s evidence that any involvement with the KDPI could bring him to the adverse attention of the Iranian authorities that she did not accept that he would agree to drive 3 unknown people to the border without making necessary enquiries as to why or who they were. The FtTJ set out her reasoning at paragraph [14] and that in view of the seriousness of such conduct, set against the Appellant’s personal characteristics as an intelligent educated man that such conduct which would put in jeopardy not only his own safety but his livelihood and safety of his family members. The FtTJ concluded that she did not find it credible that he would place himself in danger for these 3 complete strangers.
26. We conclude that there is no merit in Grounds 1 or 4 as the findings were plainly not perverse or irrational. Whilst a different Judge may have made a different decision, the FtTJ gave adequate reasons for her decision (see paragraphs [13 to 15]).
27. With regard to Ground 6 the FtTJ does not have to give reasons for reasons or deal with every issue raised. The FtTJ dealt with the party initials at paragraph [10] in the Appellant’s favour and did not have to separately resolve a discrepancy arising from the screening interview. The FtTJ did not have to make findings on the Respondent’s concerns over the Appellant’s motivation, or the apparent discrepancy regarding his contact with Youssef, or regarding what apparently happened at the border having found he was not politically active as claimed in Iran.
28. We turn to Grounds 3, 7 and 8 which relate to the journey, and having considered the grounds we do not accept that the FtTJ materially erred in law for these reasons.
29. In relation to Ground 3, the jurisprudence noted in 2011 that Greece did not have an effective system for determining asylum appeals as explained in MSS. However Safaii v Austria (App 44689/09) ECtHR (First Section) in 2014 notes there would be no violation of Article 3 in returning an Appellant to Greece under the Dublin II convention for consideration of his asylum request. This postdated MSS. The Appellant did not however claim to have not sought asylum in Greece due its asylum system. His claim was based on being under the control of the agent and lack of linguistic ability. The Judge did not materially err in making the findings she did that he was not under the control of the agent at all times or did not have access to an interpreter, as explained in paragraph [32] of the decision above.
30. In relation to Ground 7, paragraph [16] of the FtTJ’s decision is challenged on the basis that the cost of the trip from Iran to the United Kingdom is immaterial to the assessment of the Appellant’s credibility. The FtTJ made reference to his factual account of travelling straight to his maternal uncle’s house and 2 nights later leaving Iran on a journey arranged and paid for by his uncle. The FtTJ assessed the credibility of that part of his account and was entitled to take into account that the Appellant claimed not to know how much his journey cost despite being in touch with his wife who would be able to contact his uncle. The FtTJ set that finding in the context of the Appellant’s evidence that he claimed his wife had told him about his home being raided and documents and laptop being taken, they had communicated through WhatsApp, and he was in regular contact with his wife. The FtTJ was entitled to conclude from that evidence that there had been no reasonable excuse for him not being able to provide details of how his uncle helped him or the cost to him for the Appellant’s journey to the United Kingdom. In our view, the finding made at paragraph [16] was a finding of fact that was open to the FtTJ to make on the evidence and was relevant and thus material to the credibility of his claim.
31. As regards Ground 8, which seeks to challenge paragraph [17] of the FtTJ’s decision, that was also a finding of fact that was open to the FtTJ to make. The grounds and submissions made amount to no more than a disagreement with that finding of fact. In summary the details of assistance he received, the cost of the journey, and timeframe of leaving are relevant to the general credibility of the claim and are not therefore immaterial and were findings of fact to open to the FtTJ to reach.
32. Regarding Ground 9, the FtTJ addressed the letter of support from the KDPI at paragraph [18] of her decision. Whilst the grounds assert a mistake of fact, the grounds misread paragraph [18]. In this respect the grounds identify the use of the word “provenance” without taking into account what the FtTJ had said in its full context.
33. The FtTJ stated as follows:
“The letter of support from the KDPI for the Appellant refers to him as a ‘sympathiser’ of the party. Not a member or a supporter. A sympathiser does not necessarily take any action on behalf of the party and would only have sympathy for their cause. The letter also refers to the Appellant coming to the attention of the authorities in Iran but the only provenance for this information, is the Appellant himself so it adds nothing to his testimony. The letter makes it quite clear that it has been issued to support the Appellant’s claim for asylum and nothing more. There is no expression of where the information originates or what weight can be placed upon it. I attach little evidential weight to the letter”.
34. In our view it is clear that what the FtTJ was saying was that where the contents of the letter referred to the Appellant as “forced to leave Iran due to the oppression he was subjected to by the Islamic Republic of Iran“ there had been no indication given in the letter itself how the author of the letter had obtained such information or where the information had originated from.
35. The Grounds at [40] assert that “the word “sympathiser” appears on all such letters…”. However there was no evidence of that before the FtTJ. Even if the letter had been sent from the email address identified above and to the appellant’s former representatives, we are not satisfied that the assessment made by the FtTJ and by reference to the contents of the letter were not open to the FtTJ to make and the weight given to the letter was a matter for the FtTJ to determine as she did.
36. When assessing the events he claimed to have occurred in Iran the FtTJ considered that the Appellant's account as to what had taken place in Iran was internally inconsistent and implausible such that she did not accept that the Appellant had come to the adverse attention from the Iranian authorities based on his factual account of being involved with the KDPI. The FtTJ’s assessment of that part of his claim is set out at paragraphs [10-18] and included her assessment of the letter which the Appellant claimed to have been sent from the KDPI.
37. For those reasons we have reached the conclusion that the grounds taken cumulatively and as addressed above, do not demonstrate any error of law in the assessment of the evidence relevant to the events in Iran.
38. We turn to the grounds that are relevant to the assessment of the sur place activity.
39. When assessing his sur place activities, whilst the Appellant claimed in interview had set up a face book account in Iran, we have not been directed to any evidence that was before the FtT in this regard. The FtTJ accepted that he had opened a Facebook account in the United Kingdom and that he had attended demonstrations.
40. The FtTJ addressed his sur place claim between paragraphs [20-26] of her decision. The grounds challenge the assessment undertaken between Grounds 10-14.
41. Whilst we note that the Appellant provided the download of his account in accordance with the decision in XX (PJAK) (PJAK – sur place activities – Facebook) Iran CG [2022] UKUT 23 (IAC) ("XX (PJAK)”) (see page 251 of the Upper Tribunal bundle which is the bundle we shall refer to below unless states otherwise), the findings of fact made at paragraph [20] were reasonably open to the FtTJ on the evidence before her.
42. A careful reading of paragraph [20] of the FtTJ’s decision demonstrates that it addressed evidence in the original FTT bundle pages 34 to 195, which was the Facebook material that covered the period 2021 – July 2023. This is found also in the Upper Tribunal bundle between pages 63 – 221. The FtTJ correctly identified that save for an article about Kolbars and the death of Amina (see page 158), the posts had not been translated into English and that she was unable to assess that material.
43. The FtTJ also identified that the last post shown was dated 12 July 2023. Again that relates to the 1st tranche of the untranslated Facebook posts (see page 221).
44. As to the content, the FtTJ correctly identified that there was a photograph of the Appellant kissing a flag and another holding a flag. Those pictures are at pages 73 and 94 and there is also a picture of the Appellant with a flag at page 151. The FtTJ stated “other than that, the page could belong to anyone as there is no heading or photograph show who actually owns the Facebook account from which these pages have been taken”. Again that is an assessment made of those earlier pages and at page 94 (picture kissing the flag) sets out the name “M K” and a small round picture. The finding made at paragraph [20] that he could not be easily identified from that Facebook information was consistent with the material. We note that in the later material (the translations of the posts from July 2023- January 2024 between pages 235- 267) at page 241, there is a copy of his face book page.
45. In his oral submissions, Mr Gibson submitted that the characterisation of lack of activity was in error and that the Appellant was “involved in a lot more” by reference to paragraph [20 – 21] of the decision. Mr Gibson was invited to identify what pages of the material that submission. He directed us to the posts on the pages at page 265, 266, 267, 214 and 151.
46. The post at page 265 (February 2023) shows the Appellant holding a flag; it corresponds with his profile picture. The post at page 266 shows two pictures of the Appellant holding flags. One picture is the same as the picture at page 265. Page 267 shows a post of him again holding a flag. There appears to be a video. At page 214 (March 2023) the Appellant is holding a flag with others and standing with flags behind him. Page 151 (August 2022) shows 7 pictures with the Appellant standing by a flag with a flag behind him and another man, with 2 unidentified men standing with him. Those are the pictures that look like they are taken in a field. The last pictures are those referred to by the FtTJ at paragraph [21] (the reference to 2 other gentlemen which do not show a connection to the Appellant).
47. It was also submitted on behalf of the Appellant that the FtTJ erred at paragraph [21] as there is not just one photograph of the Appellant (we refer to the oral submissions made). That submission misreads paragraph [21]. The FtTJ is not saying that there is just one photograph - what the FtTJ is identifying is that in respect of one photograph relied on it shows the Appellant in a crowd. The FtTJ then goes on to say, “but for the fact the appellant has circled his face, you would not know he was there. This photograph appears on 3 different pages of the appellant’s bundle.”
48. The FtTJ was not in error and the material in the Facebook posts on pages 491, 492 and 493 are consistent with the description of the Appellant as a “face in the crowd”. Those photographs show him as one of many. That it was necessary to circle him in red supports the FtTJ’s assessment of the Appellant’s lack of visibility and prominence.
49. Whilst the grounds and the oral submissions made on behalf of the Appellant referred to there being videos generally in the Facebook material, we note that the Appellant did not provide a transcript of these videos or commentary, and it does not appear that the FtTJ was asked to view all the videos on Facebook pages. We do not accept that it is incumbent on the FtTJ to watch the videos and it is for the Appellant to identify to the FtTJ what material is relied upon and how that is to be presented.
50. The FtTJ identified the video that she was directed to at paragraph [22] of her decision and gave a description of what she had viewed which had led her to find at this material “for all intents and purposes the appellant is a face in the crowd”. The grounds do not challenge that assessment.
51. As to the challenge made to paragraph [23] (Ground 12), it is submitted that the FtTJ made a significant error by saying that a search for the Appellant brought up in excess of 10 people by the same name, none of which had his photograph. In his oral submissions Mr Gibson submitted that when the Appellant is searched it is possible to find him. Whilst we think it unlikely that they would only be one person with the name of this Appellant, in the light of his 1st name being a popular name, we have not been shown any evidence to support the submission that it is possible to search for the Appellant in the way suggested or what is available on Facebook.
52. As regards the other references at paragraph [23], two Facebook pages belong to others where there are 6 mutual friends, which the FtTJ took to mean between the person and the Appellant. This is consistent with the material at page 485.
53. Whilst the submissions advanced on behalf of the Appellant in essence seek to challenge each paragraph of the FtTJ’s decision (save paragraph [22]), those paragraphs should be read together and not in isolation. The FtTJ undertook an analysis of the 1st part of the Facebook posts from 2021 to July 2023, which were untranslated, not shown under any proper heading, and were limited in the depiction of the Appellant as set out earlier in our assessment and as the Judge set out at paragraph [20]. By reference to paragraph [21], where the FtTJ undertook an assessment of the Appellant’s profile of the demonstrations, the FtTJ identified from that material that had it not been for the fact that his face was circled in red (for the Tribunal) you would not have known that he was there. As we have set out that was supported by the material pages 491, 492 and 493 and that all photographs show him as 1 of the many. That it was necessary to circle in red supports the FtTJ’s assessment of his lack of visibility and profile. At paragraph [21] the Judge referred to the small number of comments, and at paragraph [22] the Judge addressed the video which she was directed to view and upon which she made her findings which are not challenged.
54. At paragraph [24] of the decision (Ground 13), the FtTJ referred to the assessment of Facebook posts and to the guidance in XX (PJAK) and in the context of what is said about the demonstrations that the Appellant had attended but that ”there was not sufficient evidence before me to find his claim that his political profile is such that he will come to the adverse attention of the Iranian authorities should return there or that he already has because of that activity.”
55. In that decision and as set out in the headnote, there was no evidence to show that the Iranian authorities monitor Facebook accounts on a large scale, and that more focused searches will be confined to individuals of significant adverse interest. In this regard, whether an individual's Facebook account will be targeted, before it is deleted, will depend on the individual's existing profile, and whether they fit into a "social graph."
56. Thus simply having a Facebook account upon which materials is posted, is not sufficient to place a person at risk of persecution or serious harm.
57. XX (PJAK) identified that more focused ad hoc searches would be more labour-intensive and would be confined to individuals who are of significant adverse interest. Whose Facebook account will be targeted before being deleted will depend on the person’s existing profile. This was the assessment made between paragraphs [24 -26] and in accordance with the earlier findings that she had made. He had no political profile before leaving Iran based on her factual findings made as to the events in Iran (see paragraphs [10-18] and paragraph [25]).
58. Thus the FtTJ found it was not reasonably likely that the Appellant was a demonstrator who the Iranian authorities would wish to identify, nor did she find that it was reasonably likely that the Appellant's attendance at demonstrations had already come to the attention of the Iranian authorities given her assessment of him as a face in the crowd. The witness statement (page 53) sets out that he attended 4 demonstrations in London and the rest were in places outside of London.
59. We see no error in the FtTJ’s assessment of his profile at the demonstrations for the reasons we have given as the material is consistent with that assessment.
60. Whilst it is submitted on behalf of the Appellant that there are photographs showing the Appellant individually, and the FtTJ was in error to state that it was only photographs showing him in the background with others, those photographs were taken in the context of the demonstrations and were put on as a post. Thus the assessment of him being a face in the crowd at the demonstrations is not changed or altered by a post of an individual picture of him taken at the demonstrations.
61. Even taking into account the photographs, they do not show the Appellant taking any particular role in the demonstrations, they show him holding a flag and on other occasions a photograph. The assessment made by the FtTJ of his profile at the demonstrations is not inconsistent with that overall analysis.
62. In so far as Ground 5 submits that paragraph [26] of the Judge’s is a perverse finding, and that the FtTJ should have made an assessment of the profiles of those people and the likelihood of those people coming to the attention of the authorities at some point, that ground is not made out. The FtTJ did address the argument advanced before her that the Appellant’s political profile would come to the fore because of his presence on Facebook pages belonging to others. The FtTJ stated that, “those Facebook pages presented to me do not provide the appellant’s name and the only photographs are as I have narrated above. There is insufficient evidence to establish this submission.” The fact the Appellant’s name may appear on the accounts of others does not mean it is reasonably likely the Iranian authorities will search for those accounts when considering whether there was any adverse interest in the Appellant. The Judge was given no opportunity to assess those accounts through downloads of them, reading statements from the owners, or hearing them give evidence. It is not for the FtTJ to speculate as to what adverse interest the Iranian authorities may have in those individuals.
63. Regarding Ground 14, the FtTJ stated that “there is no material on that Facebook account that could be said to be emanating originally from the Appellant…”. There are pages stating “[MH] shared a post” for example on page 92 of the bundle before us in an entry dated 1 December 2021. It has not been established that sharing a post is the same thing as a post “emanating originally from the Appellant”. Likewise the many references to “Mobile uploads” such as on page 145 dated 18 July 2022 do not identify who the upload emanated from. The pinned post of 11 February 2023 at page 242 (and 266) of the bundle before us stated to “today, Saturday, date 24/4/2019…” and below that stated “See original – Rate this translation” does not have the original Farsi version attached. Nor is there evidence regarding inaccurate translations or calendar conversions being an issue.
64. In summary, in terms of the FtTJ’s assessment it was in accordance with XX (PJAK) and it was reasonably open to the FtTJ to find that his political profile was such that he had not already come to the adverse attention of the Iranian authorities because of his attendance at the demonstrations, or by his Facebook posts.
65. When addressing the posts, the FtTJ was not in error by stating that the Appellant reposted material and that there was a repetition of photographs. By way of example at page 242, where reference is made to a demonstration on 25 April 2019, the Appellant did not enter the United Kingdom until 2021 therefore he could not have been present at that demonstration. The pictures at page 242 are pictures which are posted on another occasion at page 208 relating to 11 February 2023. The pictures at page 258 are the same as at page 256. Pictures at page 263 showing the Appellant with a flag is the same picture at page 214. The pictures at page 266 showing the Appellant holding a flag are the same as the pictures at page 207.
66. The FtTJ’s analysis at paragraph [25] is not in error. What the FtTJ was stating was that the Appellant could use Facebook to post material which was the opinion of others. When looking at the posts the material in general terms refers to times and dates when demonstrations are taking place (see page 244, 252, 261). Page 245 is reporting a factual account rather than stating any original opinions. At its highest, page 247 refers to “it is going to be a fascist government” is an original opinion. Even if the posts could be said to be emanating from the Appellant, we have considered the materiality of any error. In the light of the FtTJ’s assessment of his profile of the demonstrations which we have found to be consistent with the evidence, it has not been demonstrated that the FtTJ’s assessment that he had any profile so that he would be the focus of any targeted surveillance by the Iranian authorities was in error. Thus it is not demonstrated that the material on the Facebook accounts would already be known to the Iranian authorities or consequently that the Judge materially erred.
67. There is no error of law in her assessment of risk on return in Ground 2 for these reasons.
68. The FtTJ reminded herself of the guidance in HB (Kurds) Iran CG [2018] UKUT 430 (IAC) at paragraph [28]. This also sets out that the Iranian authorities are suspicious of Kurdish political activity and that Kurds involved in even "low-level" political activity, if discovered, are at real risk of persecution or Article 3 ill-treatment.
69. The FtTJ took into account his Kurdish ethnicity as a factor of particular significance when assessing the Appellant's risk, and the FtTJ also referred to exiting Iran illegally and being without a valid passport, but those factors did not of itself create a risk of persecution or Article 3 ill-treatment (see paragraph [28]).
70. When assessing risk on return, the FtTJ was entitled to take into account her previous findings and that he had no political profile before leaving Iran based on her factual findings made as to the events in Iran (see paragraphs [10-18 and 25]).
71. The FtTJ’s assessment was that he had no political profile prior to leaving Iran and his attendance at demonstrations was not such to bring him to the attention of the Iranian authorities and thus to demonstrate that he had any significant profile so that he fell within the category of people who would become the target of surveillance.
72. The FtTJ found that the Appellant could delete his Facebook account which is consistent with the country guidance in XX (PJAK) (see paragraphs [31-36] and at paragraph [126 and 129])
"126. The timely closure of an account neutralises the risk consequential on having had a 'critical' Facebook account, provided that someone's Facebook account was not specifically monitored prior to closure."
73. By reference to Ground 2, we do not accept the submission made that at paragraph [30] the FtTJ erred in respect of applying the country guidance decisions by reference to the word “if “. When the paragraph is read sensibly and as a whole, it is tolerably clear that the FtTJ does consider the circumstances at the “pinch point” and that when questioned he would be able to say that he claimed asylum for political reasons but was found not to be credible.
74. It is tolerably clear also that the FtTJ did not accept that the Appellant had genuinely held political views (see paragraphs [29, 30] of her decision). That being the case when assessing risk on return, there is no error in finding that there was no reason why the Appellant could not close his Facebook account prior to the process for an EDT nor why he should disclose the existence of it, which on the FtTJ’s analysis would not have previously been known to the authorities, as she had also found in respect of his attendance at demonstrations, and that conduct did not reflect any genuinely held belief by the Appellant.
75. Regarding the typographical errors in [37 and 38] of the decision we do not accept that this has any material bearing on the decision as it was plainly simply a minor error. It is inappropriate to take such a minor point and does not “give pause to the idea that other parts of the determination are remnants of previous decisions”.
76. Regarding the Appellant’s classification as an “economic migrant”, this was plainly a comment open to the FtTJ bearing in mind the findings made.
Notice of Decision
77. The Judge did not make a material error of law. The decision of the FtTJ shall stand.

Laurence Saffer

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

6 May 2025