Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000710
First-tier Tribunal No: PA/57224/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 6th of June 2025

Before

UPPER TRIBUNAL JUDGE LANE

Between

Secretary of State for the Home Department
Appellant
and

BF
(ANONYMITY ORDER MADE)
Respondent

Representation:

For the Appellant: Mr Mullen, Senior Presenting Officer
For the Respondent: Mr Winter

Heard at Edinburgh on 28 May 2025

DECISION AND REASONS

1. I shall refer to the appellant as ‘the respondent’ and to the respondent as ‘the appellant’ as they respectively appeared before the First-tier Tribunal.

2. The appellant is a male citizen of Iran. He appealed to the First-tier Tribunal against a decision of the Secretary of State dated 27 February 2023 refusing his claim for international protection. The First-tier Tribunal allowed his appeal. The Secretary of State now appeals to the Upper Tribunal.

3. There are four grounds of appeal. Permission to appeal was granted by Resident Judge Phillips on 31 January 2025 on all grounds.

Ground 1

4. Ground 1 reads as follows:

It is respectfully submitted, that in allowing the appeal, [the First-tier Tribunal] errs in that they completely fail to assess the reasons the appellant advanced for fleeing Iran [41]. It is submitted, that the credibility of the appellants account of events in Iran go to the core of any claim that he is in fact truly politically motivated, and therefore whether his online activities since arriving in the UK are as a result of genuinely held beliefs, or in the alternative, a mechanism to bolster his initial claim for asylum. It is respectfully asserted, that the FTTJ’s complete disregard of the originally advanced claim, appears to border on irrationality, or in the alternative fails to provide adequate reasoning, and has therefore caused any conclusion to be flawed to the extent that it is unreliable.

5. The judge at [3] records the appellant’s account of his political activities in Iran:

The background to this appeal is set out in the documentation contained on myHMCTS. The Appellant claims a fear of return to Iran based on political grounds due to his activities in Iran and sur place activities the UK. He claims that he burned a picture of the Ayatollah Khomeini that was hanging on a wall in a school he had previously attended, that action was caught on CCTV and viewed by a teacher who reported it to the Iranian authorities. He also claims to be at risk on return because of the pro-Kurdish, anti-Iranian messages he has posted on Instagram.

6. At [4-5], the judge records respectively ‘Issues not in dispute’ (a. the Appellant is an Iranian Kurd; b. the Appellant was a minor when he arrived in the UK and claimed asylum; c. if the Appellant had burned the picture as claimed, along with his Kurdish ethnicity, he would be at risk on return.) and ‘Issues in dispute’ (a. whether the Appellant’s account is credible; b. whether the Appellant would be at risk on return on account of his sur place activities).

7. In his Rule 24 response, the appellant says this as regards Ground 1:
(i) neither the refusal letter nor the appellant’s review suggested that if the claimant [appellant] was found not be credible in relation to events in Iran that that would have any impact on the sur place activities;
(ii) in any event it was not suggested in the refusal letter or in the appellant’s review that the claimant’s sur place activities were being done in bad faith (even on the appellant’s position in the refusal letter that the events in Iran had been disbelieved).

8. In his oral submissions, Mr Winter, for the appellant, said that the respondent was for the first time seeking to assert that the appellant was acting in bad faith. Bad faith had never been an issue raised in the refusal letter or Secretary of State’s review.

9. Before granting permission to appeal, Resident Judge Phillips had issued a notice under Rule 25 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. Having considered the responses of the parties, he stated as follows:

In my rule 35 Notice I observed:

“The judge fails to consider the Appellant’s social media activity within the context of XX (PJAK -sur place activities - Facebook) Iran CG [2022] UKUT 00023 (IAC). In particular, judge fails to consider whether the appellant’s real-world activities or the extent of his social media profile was sufficient to draw the adverse attention of the Iranian authorities such that they would have been aware of the appellant social media posts. The Judge does not give adequate reasons why the appellant’s assertion that he would not be politically active in Iran for fear of persecution is accepted. The judge does not consider the appellant’s accounts of events in Iran. This is material to the assessment of the appellant’s credibility which would in turn inform whether the Appellant’s political beliefs were genuinely held such that he could be expected to delete his social media profile prior to return. These are material errors of law.”

3. The Appellant has submitted detailed representations in response to my Notice. Having considered those representations I am satisfied that it is arguable that the errors of law I identified are not material.

Discussion

10. I am satisfied that the judge has erred in law for the reasons advanced in Ground 1. First, the judge has not properly completed the analysis of the issues which he states he will determine at [4-5] (see [4] above). The third ‘issue not in dispute’ is expressed in conditional terms (‘if the appellant had burned a picture…’). There is nothing in the papers to indicate that that the Secretary of State accepts that the appellant did burn a picture as claimed. For that issue to make any sense, therefore, it was necessary for the judge to determine on the evidence whether the appellant had burned the picture. The fact that the judge did not simply allow the appeal on that part of the appellant’s evidence alone seems to indicate that he did not accept that this part of the appellant’s evidence was credible. A reader of the decision should not be left to make such assumptions and to fill in the gaps in the judge’s reasoning in this way. A decision should provide clear and cogent reasons for the outcome reached by the Tribunal. Here, the judge has posed himself questions which he has then failed to answer. I find that an informed reader of the decision would be left in real and substantial doubt as to why the judge has reached the decision he did.

11. Mr Winter argues that such assumptions are irrelevant because the judge has found that the appellant’s sur place activities are sufficient to establish a real risk of harm on return without the Iranian authorities having any knowledge of the appellant’s claimed political activities in Iran. The appellant’s sur place activities are a free-standing source of risk unaffected by other parts of the appellant’s claim.

12. With respect, I disagree. There will be cases where the credibility of an appellant’s account are irrelevant to the question of real risk on return. For example, an individual having an immutable characteristic (eg. they are of a particular race) may unarguably be at risk on return to country X; that the individual has given a wholly incredible account of events in X would be irrelevant to the question of risk. However, the position of the appellant in the instant appeal is different. I am well aware that sur place activities undertaken in bad faith may still expose an individual to risk on return. However, the assessment of risk by reason of sur place activities may turn on whether an appellant is credible. For example, if a judge considers that an appellant has not given a truthful account of past events in X, that finding may properly lead to further investigation and findings as to whether an appellant would or would not delete social media accounts before return to X and whether the appellant would or would not (as a finding of fact) lie in answer to questions put him on return by the authorities of X (in this context, I note that determining whether an individual genuinely holds a particular political opinion may be relevant to the application of the test in HJ (Iran) [2010] UKSC 3). In the instant appeal, the judge’s analysis of the risk posed to the appellant by his sur place activities lacks the basis of a necessary factual matrix. The judge has not considered whether the appellant genuinely holds the views he espouses or how the appellant may or may not act prior to or on return to Iran. We do not know why the judge has proceeded as he has because the fact finding is incomplete. In short, the assessment of risk is flawed because the fact finding is incomplete. For this reason and for the reason I give at [8] above, I find that the judge’s error as identified by the respondent’s Ground 1 is material.
Grounds 2-4

13. I shall deal briefly with the remaining grounds. Grounds 2 and 3 follow on from the error identified in Ground 1 and, in light of what I say above, are made out. Ground 4 complains that the appellant’s social media posts have very limited value (see XX (PJAK - sur place activities - Facebook) Iran CG [2022] UKUT 00023 (IAC)). The ground has merit but would not, without the other material errors identified above, lead me to set aside the Tribunal’s decision.
Conclusion

14. As the errors in law which I have identified go to the core of the judge’s assessment of the evidence, it will be necessary for there to be a fresh fact finding hearing which is better conducted in the First-tier Tribunal. The decision of the First-tier Tribunal is set aside. None of the findings of fact shall stand. I direct that the appeal is returned to that Tribunal for it to remake the decision following a hearing de novo.

Notice of Decision

The decision of the First-tier Tribunal is set aside. None of the findings of fact shall stand. The appeal is returned to the First-tier Tribunal for that Tribunal to remake the decision following a hearing de novo.

C. N. Lane

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 28 May 2025