Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2025-000210
First-tier Tribunal Number: PA/51690/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued

13th May 2025

Before

UPPER TRIBUNAL JUDGE RUDDICK
DEPUTY UPPER TRIBUNAL JUDGE WOODCRAFT

Between

SI
(Anonymity order made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Z Nasim, Counsel
For the Respondent: Mr E Terrell, Home Office Presenting Officer

DECISION AND REASONS

Heard at Field House on 1 May 2025

Order Regarding Anonymity.

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity, and is to be referred to in these proceedings by the initials SI. 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.

The Appellant
1. The appellant is a citizen of Iran of Kurdish ethnicity born on 1 January 1998. He appeals against a decision of the First-tier Tribunal dated 23 October 2024 which dismissed the appellant’s appeal against a decision of the respondent dated 23 February 2023. That decision in turn was to refuse the appellant’s further submissions made on 8 September 2022 which had been made in support of an application for international protection.
2. The appellant entered the United Kingdom on 24 April 2016 and claimed asylum on 28 April 2016. The asylum claim was originally refused by the respondent on 25 November 2019 and an appeal to the the First-tier Tribunal was dismissed on 11 February 2020. The appellant’s onward appeal to the Upper Tribunal was heard on 29 March 2022 when it was dismissed. The appellant became appeal rights exhausted on 25 May 2022. The appellant made fresh representations on 23 February 2023 the refusal of which on 23 October 2024 led to the present proceedings before us.
The Appellant’s Case
3. The judge summarised the appellant’s case at [4] of the determination stating:
“The appellant asserts that they would be at risk on return due to their Kurdish ethnicity, and/or political opinion, and/or illegal exit, and/or lack of military service and/or their sur-place activity, or alternatively that they are entitled to humanitarian protection. The appellant claims that he was involved with the KDPI [Kurdish Democratic Party of Iran] opposition party in Iran by distributing leaflets. His sur-place activities in the UK consist of posting on Facebook and attending demonstrations against the Iranian regime.”
4. At [17] the judge added that the appellant claimed to have attended more than 15 anti-government demonstrations and now had 4964 friends on Facebook. The appellant produced a letter from the KDPI dated 3 May 2023 confirming that he was a sympathiser of the party. The letter stated that “due to the oppression exercised by the regime of the Islamic Republic of Iran against [the appellant] he was forced to [leave] Iran, his return to the country would put his life in danger.”
The Decision at First Instance
5. The judge’s starting point was the finding of the previous tribunal that the appellant was not politically active. The judge gave little weight to the letter said to be from the KDPI, see [19] to [21] as the letter had come from Paris whereas the CPIN of May 2019 said such letters were issued in Koye (in the Kurdish region of Iraq). The appellant had said he had now attended more demonstrations than when he had previously given evidence to the Tribunal. There was no evidence the judge found however beyond the appellant's own assertion that the organisers of the demonstrations had asked the appellant to take a role in them. Although there was CCTV outside the Iranian embassy the judge did not accept that the appellant would be observed and no one had contacted the appellant on his Facebook about his attending demonstrations.
6. The judge directed himself in accordance with the country guidance authority of BA [2011] UKUT 36 that there was no real risk to an appellant on return from having illegally exited Iran in the first place or from being returned from Britain, see [28]. BA set out the relevant factors when assessing risk on return. Since the tribunal had previously rejected the appellant’s claim of involvement in anti government demonstrations in Iran the judge in the instant appeal was only concerned with the appellant’s claims of anti government activities in the United Kingdom. As far as the judge was concerned the appellant was merely a member of the crowd when there was a demonstration. The appellant had undermined his case that he had attended such demonstrations because he had failed to produce a coherent summary of his attendance [32]. Although low-level activity could expose a person to risk of persecution, given the authorities’ “kair-trigger” approach to Kurdish political activity as described in HB (Kurds) there was nothing to indicate that this appellant would be at risk of being identified [34].
7. The judge also directed himself in accordance with the country guidance authority of XX (PJK) [2022] 00023. The appellant had produced copies of posts on his Facebook account but they were in Kurdish and not translated and so the judge disregarded them. The number of likes and comments on the posts was not significant. XX had shown that the authorities were unable to monitor all the Facebook entries of Iranians. The judge found the appellant was not of particular interest and therefore his Facebook pages would not be proactively monitored: [41]. The rate of increase of the number of people who were his friends on Facebook indicated to the judge that this part of the appeal had been contrived [42]. The appellant did not attend KDPI meetings which undermined the genuineness of his beliefs: [43].
8. Prior to return the appellant could delete his Facebook entries. The appellant’s claim to be at risk because he had evaded military attendance was not accepted by the judge. Firstly the appellant had not made this claim before, for example in the previous proceedings. Secondly and in any event the background information suggested that following prosecution the most likely punishment if convicted was a fine which would not amount to persecution.
9. The judge summarised his conclusions at [47] to [49]:
“47. Assessing the evidence in the round, I accept that, taking the appellant’s claim at its highest, the convention reason of political or imputed political opinion is engaged. I do not accept that the appellant, on the balance of probabilities, fears persecution for a convention reason. Even if I did accept that, I do not accept that it is reasonably likely that the appellant would be persecuted for that Convention reason.
“48. There is no evidence before me which justifies departure from the previous findings in respect of the appellant’s credibility, lack of genuine political belief and his low-level role in sur-place activity being one not reasonably likely to have brought him to the attention of the Iranian authorities. It is not reasonably likely that the appellant’s ethnicity, failure to undertake military service nor his activity in the UK mean that he would be detained at the airport upon return, either separately or cumulatively. Nor is it reasonably likely that a political opinion would be imputed to the appellant.
“49. I find that the appellant’s continued activity in the UK is a continuation of him attempting to bolster a non-existent asylum claim. He had no political profile before he left Iran. He can delete his Facebook page in advance of an EDT being obtained, without contravening the principles in HJ Iran and his UK activity does not place him at risk of already coming to the attention of the Iranian authorities so that he would be at risk at either the pinch points of applying for an EDT or upon return.“
The Onward Appeal
10. The appellant appealed against this decision on five grounds arguing:
Ground 1: The FtTJ failed to consider risk on return as a result of the KDPI letter which was sufficient to show the appellant’s political activities in Iran,
Ground 2: The FtTJ erred in considering the CCTV evidence. In BA it was said: there was a strong possibility that the Iranian authorities had been taking steps to identify from camera evidence and other sources the identities of persons participating in demonstrations outside their Embassy.
Ground 3: The FtTJ erred in considering risk on return arising from the appellant’s sur place activities. The Court of Appeal had recognised in WAS (Pakistan) v SSHD [2023] EWCA Civ 894 that there would not necessarily be direct evidence of recognition bye foreign governments. HB had found that Kurdish ethnicity was a risk factor. According to XX it could take up to 90 days to delete Facebook entries. “It was unrealistic to suppose that anyone who has shared information has managed to keep that information out of the hands of regimes who view them as enemies.” Even if the appellant’s sur place activities were contrived that could still lead to a risk upon return which had not been considered by the judge.
Ground 4: The FtTJ erred in law in stating that the first pinch point when the appellant would have to dispose of his Facebook entries was upon return. Rather it was when application was made for a returned document.
Ground 5: The FtTJ erred in respect of military service. The appellant was at risk of going to prison and prison conditions might well breach Article 3.
11. The First-tier tribunal refused permission to appeal but on renewal to the Upper Tribunal, UTJ Rintoul granted permission stating:
“It is arguable (ground 3) that the FtT erred in failing to consider the risk to the appellant on return as a result of his accepted activities in the UK, given the “hair-trigger” approach of the Iranian authorities and the questions he is likely to be asked either as part of the documentation process or on return to Iran - see HB (Kurds) Iran CG [2018] UKUT 00430 at [97] in particular and SSH & HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308.”
The other grounds were said by Judge Rintoul to have less merit but permission was nevertheless granted on all grounds.
The Hearing Before Us
12. In consequence of the grant of permission the matter came before us to determine in the first place whether there was a material error of law in the decision of the First-tier Tribunal such that it fell to be set aside. If there was then we would make directions on the rehearing of the appeal. If there was not the decision at first instance would stand.
13. At the outset of submissions counsel for the appellant sought to raise a preliminary issue arising out of the previous appeal proceedings, in particular the determination of the Upper Tribunal dated 3 May 2022 dismissing the appellant’s onward appeal. We explained to counsel however that it was too late to raise such a point now, it was not in the grounds of onward appeal before us and there had been no onward appeal from the decision of the UT in 2022. We therefore rejected the appellant’s application to amend the grounds of appeal and/or seek an adjournment as the application had no merit.
14. Counsel indicated notwithstanding the wording of the grant of permission by the UT that he was pursuing all grounds not just ground 3. He argued that the judge’s treatment of the KDPI letter was in error. The judge had not rejected the letter but had said it was inadequate. There was a CCTV camera outside the Iranian embassy and this part of the grounds relied upon the authority of BA. The judge was unsure of the basis of the appellant’s assertion that there was no doubt that he would be seen at demonstrations. However that came from the authority of BA itself. It was a requirement for the judge to go on to consider risk upon return. The judge had failed to consider the appellant’s Kurdish ethnicity as a risk factor upon return, even if other parts of the claim were contrived.
15. In reply the presenting officer said he would deal with grounds one and two briefly in the light of the contents of the grant of permission. Ground 1 was a fundamental misreading of what the judge was seeking to do. It was clear what the judge’s finding about the KDPI letter was, it did not add sufficient weight to the claim. There were problems with the origin of the letter see [21].
16. As to ground 2 (the CCTV evidence), at [25] to [26] the judge was responding to an assertion that there was “no doubt” the appellant would be seen at a demonstration. The judge’s point was that that did not necessarily follow. Just because someone attended the demonstration did not mean that they would be filmed. There was no evidence from Facebook that the appellant had been filmed. The question was would the acts of the appellant come to the attention of the Iranian authorities? The judge held it against the appellant that the appellant had no evidence to show any adverse interest in him taken by the authorities. The judge found that the appellant was not an individual with a high profile indeed the appellant had never said he was. HB referred to a hairtrigger approach but this appellant was someone who had no genuine motivation and the judge’s finding was consistent with the authority of HB. The Upper Tribunal had come to the same conclusion in the previous appeal.
17. The argument that it would take 90 days to close his Facebook account was not a good point for the appellant, the guidance in XX was clear. Whilst the Facebook account was being deleted it would not be accessible to other Facebook users. There was no evidence that the Iranians could get into the Facebook servers. Ground 4 seemed not to be pursued by the appellant and there was no merit to it. We indicated to the presenting officer that we did not need to hear argument in relation to ground four. Continuing, the presenting officer said that it was difficult to understand the appellant’s point on military service. Overall it was clear that the judge was applying all relevant country guidance in dismissing the appeal. In conclusion counsel had nothing to add and we indicated that we reserved our decision.
Discussion and Findings
18. This is a reasons based challenge to what is a detailed consideration by the judge of the various claims put forward by the appellant. The judge found there was no merit to the appeal and that the appellant was not a credible witness. In the light of the grant of permission the focus of attention in this appeal necessarily falls upon ground three, the fear that the Iranians authorities would take an adverse interest in the appellant as a result of his activities in the United Kingdom. That the appellant might have carried out activities solely to bolster his claim (as the judge suspected the appellant had), is not itself the test. The question is what is the attitude of the authorities to those who take part in anti-government demonstrations or post anti-government material on the Internet? Furthermore what do those authorities know of such persons?
19. The judge accepted at [34] that the Iranian authorities take a hairtrigger approach to Kurdish political activity and this is confirmed in the country guidance. The judge indicated he was aware of the country guidance by quoting extensively from it both from the decided authorities and also the CPIN issued by the respondent. The judge’s view was that the appellant was merely a member of the crowd when it came to the demonstrations. The appellant had provided no supporting evidence that he organised or participated in the administration of the demonstrations. The judge took the view that such supporting evidence if it existed would have been reasonably easy to obtain. The failure therefore to obtain it was a point to be taken against the appellant’s credibility. That approach in law is correct, see TK Burundi [2009] EWCA Civ 40.
20. The appellant counters that he the appellant would not necessarily have proof of his identification by the Iranian authorities in taking part in demonstrations. The judge was aware of the CCTV camera installed outside the Iranian embassy and took that into account along with other factors in deciding whether the appellant could show he would be seen. The judge’s conclusion at [34] was expressed thus:
“There is no evidence before me that the appellant’s attendance at demonstrations has been noticed or publicised. His role has not changed since his previous appeal. I accept that even low-level activity can expose an appellant to a risk of treatment contrary to Article 3 or persecution. I accept that the Iranian authorities take a hair-trigger approach to those suspected or perceived to be involved in Kurdish political activities or who support Kurdish rights. The position in respect of this appellant remains that, the appellant has failed to prove that he is a prominent individual in Iran or that there is anything in his profile that increases the risk of his being identified on return or discovered to have taken part in any political activity. “
These were conclusions open to the judge on the evidence.
21. The burden of proof lay on the appellant to show that the authorities would take an adverse interest in him on return. The judge held that the appellant could delete his Facebook account so that whatever queries the authorities might have when the appellant applied for documents to return, there would be no risk from his Facebook account. As the judge put it, it was not a breach of the appellant’s right to freedom of expression that he should delete a Facebook that had been brought into existence to bolster a false asylum claim.
22. In essence the appellant’s case boils down to the fact that he says he attended approximately 15 demonstrations. The authorities would have been able to recognise him and would have an adverse interest in him on his return. The judge was concerned that the appellant had not produced coherent evidence regarding the attendance at demonstrations and the number could not be verified. Even if it was accepted that the appellant had attended some demonstrations he could not show even to the lower standard that the attendance was noted and would bring him to the adverse attention of the authorities upon return.
23. Return on its own as SSH & HR [2016] UKUT 00308 (cited by the UT when giving permission to appeal), makes clear is not in itself a risk factor. Whilst Kurdish ethnicity might be a risk factor and can cause the hairtrigger approach described in the country guidance, the judge for the reasons given did not find that applied in this case because the Iranian authorities would not have monitored or identified the appellant, given the nature of his political activities.. We remind ourselves that the judge had the benefit of seeing the appellant give evidence and be questioned on his account and was thus in the best position to assess the crewdibility of the appellant’s claims. Beyond the appellant’s own assertion that he would be recognised by the authorities there was no supporting evidence as the judge pointed out that he had been. He had not been contacted through his Facebook page for example.
24. Ultimately it was a matter for the judge to decide on the basis of the evidence before him. For the cogent reasons given by the judge which we have set out above, it was open to find that the appellant’s claim of attending demonstrations did not mean that the appellant could show he was at risk on return. The argument that the judge did not go on to consider risk on return has no merit. The judge refers in specific terms to the risk on return claim at [34] which we have cited above, see paragraph 20.
25. The judge did not find the appellant’s claim was credible and did not find that there was evidence to show that that the authorities would recognise the appellant. As to the remaining issues, it is fair to say that they have even less merit than ground three. The position regarding the consequences for those who evade military service as set out in the background material with which the judge was familiar and which was relied upon in the determination. There is thus no merit in that ground.
26. The claim that the KDPI had written a letter supporting the appellant also had no merit. Leaving aside the fact that the appellant had been found in earlier proceedings not to have undertaken any anti-government activities in Iran before leaving, the letter itself was seriously deficient, for example from whence it was said to have originated and the judge was entitled to place no weight on it.
27. Overall the grounds of onward appeal in this case amount to no more than a disagreement with the cogent findings of the First-tier judge. They do not demonstrate any material error of law in the judge’s part. We therefore dismiss the appellant’s onward appeal.
Notice of Decision
The decision of the First-tier Tribunal did not involve the making of an error of law and we uphold the decision to dismiss the Appellant’s appeal
Appellant’s appeal dismissed

Signed this 7th day of May 2025
……………………………………………….
Judge Woodcraft
Deputy Upper Tribunal Judge