UI-2025-000784

• Status of case: Unreported
• Hearing date: 22 Sep 2025
• Promulgation date: 12 Nov 2025
• Publication date: 28 Nov 2025
• Last updated on: 28 Nov 2025

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000784

First-tier Tribunal No: PA/55578/2024
LP/08101/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

12th November 2025

Before

UPPER TRIBUNAL JUDGE MAHMOOD
DEPUTY UPPER TRIBUNAL JUDGE ATHWAL

Between

DA
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Gayle, Counsel instructed by Elder Rahimi Solicitors
For the Respondent: Mrs Arif, Senior Presenting Officer.

Heard at Birmingham Civil Justice Centre on 22 September 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. The parties may apply on notice to vary this order.

DECISION AND REASONS
1. This is the re-making, under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 of the First-tier Tribunal’s decision of 17 December 2024 to dismiss the Appellant’s asylum appeal, made under s82(1)(a) Nationality, Immigration and Asylum Act 2002 (“2002 Act”). The decision of Upper Tribunal Judge Rastogi, which set aside the decision of the First-tier Tribunal is appended to this decision as a separate annex.
2. We have maintained the Anonymity Order in favour of the Appellant. We consider that, on the specific facts of this appeal, the importance of facilitating the discharge of the obligations of the United Kingdom (‘UK’) under the Refugee Convention is such that an Anonymity Order is a justified derogation from the principle of open justice.
Background
3. The Appellant is an Iranian citizen, who is of Kurdish ethnicity. He claimed that he was forced to leave Iran after the Iranian authorities discovered his assistance to Kurdish Peshmergas. He arrived in the UK on 12 July 2022 and claimed asylum. Since arriving in the UK, he claims that he has been involved in activities criticising the Iranian regime. He has participated in demonstrations outside the Iranian embassy in London, and he has posted anti-regime material on his Facebook social media account.
The appeal hearing in the Upper Tribunal
4. Following the making of a transfer order, this appeal was listed before us for re-making on 22 September 2025 on the issue of the Appellant’s sur place activities and the risk he may face in Iran. Upper Tribunal Judge Rastogi preserved the findings relating to the claimed events in Iran, as they were not infected by the errors of law.
5. The following findings of fact from the First-tier Tribunal’s appeal determination were preserved (see [8] of the Upper Tribunal’s error of law decision):
(a) the Appellant’s claim taken at its highest engages the Refugee Convention;
(b) the Appellant fabricated his account of the events that occurred in Iran to bolster his asylum claim [35]; and
(c) the Appellant did not come to the attention of the Iranian authorities when living in Iran.
6. Following a preliminary discussion with both parties’ representatives at the hearing, the issues that we are to determine are as follows:
(a) whether on balance the Appellant’s sur place activities were contrived to bolster his protection claim;
(b) whether it is reasonably likely the Appellant’s Facebook posts have, or are likely to come to the attention of the Iranian authorities;
(c) whether it is reasonably likely that the Appellant’s attendance at demonstrations in the UK have, or are likely to come to the attention of the Iranian authorities;
(d) whether it would be unreasonable to expect the Appellant to cease his sur place activities;
(e) whether it is likely that the Appellant’s sur place activities would come to the attention of the Iranian authorities either on his application for an Emergency Travel Document (“ETD”) or if returned to Iran.
7. In relation to the appeal on humanitarian protection grounds, we must consider the substance of the Appellant’s asylum claim applying the lower standard of proof.
8. Mrs Arif clarified that if the Appellant was genuinely politically active, or in the alternative, his sur place activities were contrived but had or were likely to come to the attention of the Iranian authorities, then in either situation he would not be able to obtain protection from the state or internally relocate to another part of Iran.
9. We heard oral evidence from the Appellant and oral submissions from both advocates. At the end of the hearing, we reserved our decision. We do not propose to rehearse the oral evidence and submissions heard but will consider and address these as part of our analysis set out below. We have considered the appeal bundle relied upon by both parties comprising of 639-pages, which was prepared for the error of law hearing in these proceedings, and the Appellant’s supplementary bundle of 454-pages.
Legal Framework
10. To succeed in an appeal on asylum grounds, the Appellant must show a well-founded fear of persecution for a Convention reason (race, religion, nationality, membership of a particular social group, political opinion). The burden of proof rests on the Appellant. As the asylum claim was made after 28 June 2022, pursuant to s32 of the Nationality and Borders Act 2022 Act, in considering whether the Appellant qualifies as a refugee, we must apply a two-stage test. We must first determine the following matters on the balance of probabilities: whether the Appellant fears persecution in Iran as a result of his political activities.
11. If we are satisfied on the balance of probabilities that the Appellant does have such a characteristic, and fears persecution as a result of that characteristic, we must go on to determine whether, applying the lower standard of proof, there is a reasonable likelihood that: the Appellant would be persecuted for a Convention reason on return.
12. To succeed on an appeal on humanitarian protection grounds the Appellant must not be a refugee; they must show substantial grounds for believing that they would face a real risk of suffering serious harm in their country of origin. Similarly, any Article 3 ECHR claim is considered on the ‘lower standard’ of proof.
Risk on Return to Iran
13. We have taken into consideration the country guidance cases of HB (Kurds) Iran CG [2018] UKUT 00430 (IAC), SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 308 (IAC), BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC), XX (PJAK - sur place activities - Facebook) Iran CG [2022] UKUT 00023 (IAC), and S v SSHD [2024] EWCA Civ 1482.
Analysis and conclusions
(a) Whether the Appellant’s sur place activities are contrived
14. We have carefully considered the evidence in the round and even to the lower evidential standard which applies to the Appellant’s humanitarian protection claim, we find that the Appellant’s political activities are contrived. Our reasons for coming to this conclusion are as follows.
15. Mr Gayle relied on his skeleton argument dated 22 July 2024, which addresses this issue at [26]-[27]. It is asserted that the Appellant’s anti-regime views are genuinely held and it would not be reasonable to expect him to delete his Facebook account because he has provided a consistent, credible, and plausible account. There is no reference to the particulars of the Appellant’s evidence. Mr Gayle maintained that the Appellant’s evidence was consistent, credible, and plausible.
16. We take into account Mr Gayle’s submission that the Appellant’s lack of political activism in Iran should not be held against the Appellant. We are mindful of the fact that as a Kurd living in Iran the Appellant has first-hand experience of the discrimination perpetuated by the Iranian regime. We also agree that a Kurd who is politically active in Iran and who comes to the attention of the authorities, would risk persecution. We therefore accept that there is a plausible explanation for the Appellant’s lack of political activity in Iran, however, when assessing the evidence as a whole, this factor alone carries limited weight.
17. The Appellant provided an inconsistent account of when his political activities started. Mrs Arif submitted that when interviewed by the Home Office on 12 January 2023, the Appellant was asked whether he had been “politically active at all whilst you have been here” (question 195) to which the Appellant answered “no”.
18. However, in oral evidence, the Appellant stated that he had been politically active since 28 September 2022, that being the date when he first posted political material on Facebook. He confirmed that his Facebook account was only used for political purposes and he used other “apps” to communicate with friends.
19. Mr Gayle submitted that the Appellant in his asylum claim questionnaire, dated 6 December 2023, disclosed that he posted anti-regime material on social media and attached an extract from his Facebook account which showed him at a demonstration held on 17 December 2023. We are not satisfied that the disclosure of his political activity in December 2023 offers a reasonable explanation for the material inconsistency in his evidence. The Appellant’s second statement confirms that he started to post material on Facebook on 28 September 2022 and that he has continued to post material since then. If this was true then, at the time of his asylum interview the Appellant had been posting political material on Facebook for approximately 4 months. The Appellant’s failure to mention this in his interview is a material inconsistency in his evidence and supports the Respondent’s claim that the Facebook account has been contrived to bolster the Appellant’s asylum claim. Mr Gayle’s reference to 2023 does not assist with what was said to have occurred in 2022.
20. The Appellant has not provided records from of his Facebook activities from “Download Your Information.” Mrs Arif submitted that this was further evidence of the Appellant’s attempt to manufacture an account. Mr Gayle confirmed that this evidence had not been provided but invited us to view the Appellant’s Facebook account at the hearing. We did not view the Appellant’s live account because it would not have assisted us in our decision. In accordance with the decision in XX, social media evidence limited to print-outs of posts may be of very limited evidential value, it is the “Download Your Information” section that would establish when the account was opened, when material was posted and who had access to it. The Appellant should have provided a copy of it but he did not. It is for the Appellant to establish his case, it is not for the judge to wade through the Appellant’s Facebook account and interrogate it. We note that the Appellant has been represented for years by competent and experienced solicitors and counsel. We were not provided with a good reason for the failure to provide material evidence, reasonably available, and we therefore draw an adverse inference. We conclude that this information was not provided because it would likely undermine the Appellant’s account of when he opened the account, when he posted material, and whether it was always publicly accessible.
21. Nor are we satisfied that the Appellant’s attendance at demonstrations reflects his genuine political beliefs. The Appellant was asked questions about why he needed to take photographs of himself at the demonstration. He initially stated that it was to show the Kurdish community that he was supporting them against the Iranian regime by attending demonstrations with others. He further stated it was to prove to the court that he was opposing the Iranian regime. It is possible that he was taking photographs for both of these reasons, but we are not satisfied that is the case. We refer to the following in coming to this view;
i. The Appellant provided photographs of himself wearing a high visibility vest and he stated that he was asked by the organisers to supervise the event. His role was to ensure that people stayed in the correct place and were safe. He proceeded to provide a vague account; he was unable to say who the organisers were or which party they belonged to, nor did he provide details of how he came to be chosen. We are not therefore satisfied that the Appellant was a steward at these demonstrations, as he claims he was.
ii. Whilst we are well aware that corroboration or supporting evidence is not required, as we set out below, it is remarkable that there is nothing to support the Appellant’s claims of being a steward, or that he was asked by the organisers to assist, or indeed from anyone else at the events. Again, we note that the Appellant has been represented for some years by competent solicitors and counsel.
iii. We turn to the other photographs that the Appellant has provided. He gave evidence that there were between 1000 to 3000 people at the demonstrations. In September, at events to mark the death of Mahsa Amini, that could increase to 6000. The photographs provided do not evidence this claim. There is only one photograph that shows the Appellant with more than a small group of people. The majority of the photographs are of the Appellant posing for the camera with posters, with no sign of a large demonstration taking place around him. When asked to explain why the photographs did not show the large demonstration he described, he stated that it was too crowded to take photographs and so he moved away in order to take better pictures. This is not consistent with his claim that he photographed himself at demonstrations so that the Kurdish community could see that they had support against the Iranian regime. If that were his intent he would have photographed himself as being part of the demonstration. The photographs provide clear evidence that he took them as evidence to present to the Tribunal. We are not satisfied that the photographs show the huge numbers of people that the Appellant claimed attended. In any event, the best that Mr Gayle could do was to refer to some photographs with more people in them, but even then at most there are less than 100 people depicted, even if one looks beyond the frame of the photographs.
22. The Appellant’s political activity is limited to attending protests and posting on Facebook. He has not provided any cogent evidence and nor do we accept that he has engaged in any other political activities in the UK. He gave oral evidence that he spoke to Mr Kawa, who is in charge of the “democratic party, UK branch,” at a demonstration. He asked to join Mr Kawa’s party but was told that they had stopped taking members. The Appellant named other Kurdish political parties in the UK but we were not referred to evidence that he has been unsuccessful in joining them. This lacuna in the Appellant’s evidence is yet a further reason why we have no alternative but to conclude that the Appellant’s sur place activities are contrived. We have been very careful to ensure that we do not seek corroboration or supporting evidence which breaches the principles revisited in MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216; [2023] Imm. A.R. 713 Singh LJ with whom Warby and King LJJ agreed. It was made clear that corroboration is not required. His Lordship said,
“86. It was common ground before this Court that there is no requirement that the applicant must adduce corroborative evidence: see Kasolo v Secretary of State for the Home Department (13190, a decision of the then Immigration Appeal Tribunal, 1 April 1996). On the other hand, the absence of corroborative evidence can, depending on the circumstances, be of some evidential value: if, for example, it could reasonably have been obtained and there is no good reason for not obtaining it, that may be a matter to which the tribunal can give appropriate weight. This is what was meant by Green LJ in SB (Sri Lanka) at para. 46(iv).
23. In this Appellant’s case, the absence of such easily obtainable evidence of various strands, including videos, witnesses, a witness statement for example, from leaders of parties and other matters (as set out below) were clearly and obviously necessary in this case. The Appellant’s failure to produce such evidence, even now, at a remaking hearing when there has been plenty of time for it to be obtained means it is a factor we cannot ignore. It affects the weight we can attach to the other evidence from the Appellant. There will be varieties of cases in which Appellants are without legal representation, but in this case the Appellant is represented by experienced solicitors and counsel.
24. We have also taken into account, as we must, that the previous Judge with the retained findings, found that the Appellant fabricated an account of persecution in Iran in order to bolster his asylum claim. We have considered the case in the round.
25. Having attached little weight to the Appellant’s account, his Facebook posts, and photographs, we turn to consider what other evidence he has provided in support of his claim. The Appellant has chosen not to provide evidence from any of the organisers or the friends that attended the demonstrations. We have not been referred to any videos that show him actively participating in any demonstration. Nor, therefore, can we ‘see’ the demonstrations beyond the stills photographs/images and we are not able to see for ourselves how the Appellant ‘fits in’ at the demonstrations. Given the Appellant’s claim that he was asked to assist during the demonstrations, the frequency with which he claims to have attended, it was clearly with some ease that he could have provided such evidence. For example, from others he said he attended with to support his appeal. The Appellant was asked why he had chosen not to provide additional evidence and he stated that he did not think it was necessary to do so. He said he thought the evidence he provided was sufficient and he had spoken to other asylum seekers about their appeals and they had not called witnesses. We have considered the Appellant’s evidence on this against the background of the Appellant having been legally represented throughout the proceedings. We are not satisfied that the Appellant has provided a good reason for not providing evidence, which on his account was more than reasonably available to him. Indeed, we remind ourselves that this was an issue at the heart of the appeal and well known to both the Appellant and his legal advisers.
26. We have considered the evidence as a whole and for the reasons set out above we find that the Appellant has contrived his sur place activities in an attempt to bolster his claim.
(b) Whether he is at risk as a result of his Facebook posts
27. In accordance with XX the issue before us is whether the Appellant has been, or before the Appellant deletes his account, is likely to be, the subject of more focussed, ad hoc searches because he is an individual of significant adverse interest. In reaching a decision we must consider the Appellant’s existing profile, where he fits on the social graph, and the extent to which he or his social network may have their Facebook material accessed.
28. Mr Gayle submitted that the fact the Appellant had 5000 Facebook friends, was regularly active on Facebook and had a number of his posts liked were all factors when considered together raised his profile so that it would attract significant adverse interest. Furthermore, the number of his friends increased the prospect of his data having been captured.
29. We have carefully considered where on the social graph the Appellant’s profile fits and the extent to which his Facebook material or that of his social network may be accessed. We are not satisfied that the Appellant is of significant adverse interest for the following reasons;
i. The Appellant was not politically active in Iran and he was not of interest to the authorities when he left.
ii. At [83] of XX, guidance was issued that in assessing the publicity the Appellant’s account has generated one must examine the number of meaningful interactions the appellant has with people on Facebook and their interaction in the real world. In oral evidence the Appellant confirmed that he was not a member of any Kurdish separatist/dissident organisation in the UK. His “real world” activities at their highest, are that he attended demonstrations where he was a steward or an active member of the crowd. He does not write his own posts, but re-posts messages that have been posted by his friends. He has never seen the media at demonstrations he attended and nor has he seen anyone recording or photographing him at these demonstrations (other than he relied on the old images of the Iranian Embassy windows with photographers inside, which we take judicial notice of appears frequently in many Applicants’ cases). His “real world” activities do not present him as an individual who would be of significant interest to the authorities so as to prompt targeted Facebook surveillance.
iii. We must next consider the fact that the appellant may have garnered many friends but whether the interaction with them has attracted publicity, attention or raised his online profile. The Appellant claims to have 5000 friends but we were not referred to any printouts that establish this, we only have the Appellant’s account. Even if that is correct, the highest number of likes attracted by a post was 276 and that relates to a post dated 17 December 2023, which he claims is the first demonstration he attended. His limited popularity decreased after that initial event, thereafter very few of his posts attract more than 100 likes. For someone with 5000 friends, such a comparatively small number of likes does not demonstrate a meaningful interaction with 5000 people. We therefore have no hesitation in concluding that the Appellant has not established that he has a Facebook account that attracts publicity/online traffic and would therefore come to the attention of the authorities.
iv. The Appellant has not provided evidence that he is friends with people who are of significant political interest to the Iranian authorities. We have not been referred to evidence that any of the Appellant’s posts have been shared onto the sites of people who are likely to be of significant interest to the Iranian regime.
v. The Appellant confirmed that he had not received any threats or harassment from people purporting to be part of the Iranian regime, nor had he received adverse comments to his posts. This indicates that he has not come to the attention of the authorities to date.
vi. The Appellant has provided print outs from his Facebook account. He has not provided material from the “Download Your Information” function of Facebook. In accordance with XX we accept that it is easy for an apparent printout to be manipulated by changing the page source data. The printouts provided are therefore of limited evidential value. We do not therefore accept that the printouts establish the dates of the posts or the privacy settings of the posts.
30. We are satisfied that the Appellant has not come to the adverse attention of the Iranian authorities and that he would not raise the Iranian authorities’ suspicions or concerns upon return by not having or deleting his account. The timely closure of his Facebook account would neutralise the risk consequential on having had a “critical” Facebook account.
(c) Whether he is at risk as a result of his attendance at demonstrations in the UK
31. We have applied the principles established in BA and we are not satisfied that it is likely that the Appellant came to the attention of the Iranian authorities or that tracing him would be a priority for them for the following reasons;
i. Theme of demonstrations- the Appellant provided two statements and in neither has he specified the aim and purpose of those demonstrations. In oral evidence he made generalised comments about why the demonstrations were held. He only provided specific detail about the September demonstration which marked the death of Mahsa Amini.
ii. Role in demonstrations and political profile- The Appellant asserts that he was asked to be a steward on three occasions and wore a high visibility vest. Following our question for clarification, Mr Gayle confirmed that in fact there were only two photographs that showed him dressed in this way. For the reasons already provided above, we are not satisfied that the Appellant was asked to be a steward. Mr Gayle referred to a photograph of the Appellant with a megaphone, which he submitted, showed the Appellant was a “mobiliser” because he was leading the chants. We attach significant weight to the fact that there are approximately five people in the photograph, not the thousands claimed, and no one appears to be chanting with him. We find that these photographs were taken for the sole purpose of bolstering his claim and do not reflect his role during the demonstrations. We turn to the photographs of the Appellant holding posters and banners and again the Appellant is posing for the camera away from the main demonstration and cannot be seen to actively participate in it. We are satisfied that the Appellant was no more than a passive member of the crowd. For the reasons already provided we are satisfied that his sur place activity is contrived.
iii. It is obviously very easy for anyone to put on a high visibility jacket, to hold a megaphone and to get a few people around them in readiness for a photoshoot for a short period of time. In reality, that is what the Appellant’s photographs and images show. Therefore, even when there have been genuine demonstrations which can be proved with dates, we do not accept that the Appellant’s actual and truthful involvement was more than staged photoshoots. The Appellant had the opportunity to provide video evidence of the real scenarios.
iv. Extent of participation- The Appellant asserts that he has attended 20 demonstrations. We attach some weight to the Appellant’s claim but we must temper that with the findings that on two occasions he has fabricated evidence to bolster his claim. Mr Gayle referred us to the Appellant’s Facebook printouts which he submitted demonstrated that he had attended demonstrations on the following dates; 17.12.2023, 25.2.2024, 25.3.2024, 21.4.2024, 5.5.2024, 7.7.2024, 12.1.2025, 23.2.2025, 6.4.2025, 25.5.2025, 22.6.2025 and 3.8.2025. For the reasons set out above we are not satisfied that the Facebook posts establish the actual dates the Appellant attended the demonstrations. However, we accept that the Appellant has attended some 12 demonstrations over a period of nearly two years because the photographs show him with anti-regime posters on what are clearly 12 separate occasions. We are satisfied that he is a regular participant. The weight we attach to this is reduced by his claim that the demonstrations he attended had between 1000 to 3000 participants on average and the September demonstrations had approximately 5/6000 participants. If that is correct, then it is not clear how the Appellant could have been flagged as a regular attender when he was amongst so many people. In any event, it is necessary to separate what being at the ‘lead’ or the ‘front’ of the demonstrations means. The Appellant confirmed that he was at static demonstrations and not those processing along streets which therefore had a ‘lead’. It is clear from the photographs that it is easy to be at the static demonstrations across the street from the Embassy in London and to thereby be ‘at the front’. People are moving about and so the fact that the Appellant has some photographs where he is across the road near metal barriers is not the same as him leading a protest through the streets. Therefore, there is little weight that we can provide to the Appellant’s claim that he was seen ‘leading’ or at the head of the demonstrations. There is a qualitive difference.
v. Publicity attracted- this was not addressed in the Appellant’s statements. In oral evidence he confirmed that he had not seen people from the media at the demonstration and nor had he seen anyone filming or photographing the demonstration. We have not been referred to any evidence that establishes that the demonstration attracted media attention in the UK or Iran. This is therefore a significant factor. It tends to lend support for the Appellant’s activities being opportunistic, relatively brief, contrived, staged. We accept that there were a number of times that he did this (at least 12), but that of itself is not sufficient for us to conclude that he will have come to the attention of the Iranian authorities or that his profile will be linked to others which causes him to also be identified.
32. In accordance with BA, we have taken into consideration that the Iranian authorities attempt to identify people demonstrating outside the Iranian Embassy in London by filming and photographing them. We also note that Iranian security apparatus attempts to match names to faces of demonstrators from photographs. However, we are not satisfied that the Iranian authorities have the Appellant’s name- he was not of interest to them in Iran. For the reasons set out above, we are not satisfied that his Facebook activities have come to the attention of the authorities. It has not been explained to us how, in the manner set out in BA, photographs of the Appellant at a demonstration could be used to identify him. We have already referred to the old photographs of the Iranian Embassy with someone taking photographs from the inside. As we have said and which Mr Gayle confirmed, these are the photographs which one sees and has seen in these cases for years.
33. We note the guidance in BA that as a result of the large number of people who demonstrate in the UK, the Iranian government is unable to monitor all returnees who have been involved in these demonstrations, and the lack of evidence that the authorities have facial recognition technology at Iman Khomeini International Airport that would detect people of interest.
34. The main thrust of Mr Gayle’s argument was that time has moved on since BA was handed down and technology has advanced. Mr Gayle reminded us of MH (Bangladesh) v Secretary of State for the Home Department [2025] EWCA Civ 688 and of WAS (Pakistan) v Secretary of State for the Home Department [2023] EWCA Civ 894. He submitted that it was inherently unlikely that the Appellant would be able to adduce direct evidence of the use of facial recognition technology in covert surveillance and monitoring by a foreign state and that tribunals are required to use their common sense.
35. Mr Gayle relied on [9] of the Freedom House, Freedom on the Net 2024 -Iran report of 16 October 2024 which records that Tehran purchased surveillance technology from other authoritarian governments. The report at [9.1] states, “According to reports, authorities plan to increase the use of facial recognition technology for those appearing unveiled online to enforce the HCB.” There is no reference to it being used either at airports or to monitor demonstrations.
36. We accept the submission that Iran is now likely to have access to facial recognition technology. That however is not the issue, the real question is whether facial recognition technology has the capacity to register the faces in demonstrations, when thousands of participants attend, and then at a later date, notify the user that the person is in the vicinity. The consistent thread through BA and XX is that such technology is available but it does not have the capacity to conduct mass surveillance which is why the authorities target specific individuals. We accept of course that the Iranian authorities use surveillance technology, HB (Kurds), BA and XX all establish that the state does. As the Appellant and his legal advisers are well aware, what was required was that the face recognition technology and AI has the capacity to monitor and subsequently identify people like the Appellant who are not known to the authorities, have not attracted targeted surveillance, and who are no more than passive (which we conclude that the Appellant in reality was, despite his staged events) members of a crowd. The 2024 report from the Freedom House does not assist us in answering this question.
37. We therefore find that the Appellant has not established that his attendance at demonstrations in the UK has come to the attention of the Iranian authorities or is likely to do so. In accordance with [66] of BA we are satisfied that the Appellant is not at real risk of identification and therefore not at real risk of ill-treatment on return because he would not be identified as a frequent demonstrator, he played no particular role in demonstrations, and his participation was not highlighted in the media. The Court of Appeal’s important decision in MH does not assist the Appellant in this important regard.
(d) Whether it would be unreasonable to expect him to cease his sur place activities
38. In regard to his Facebook activities, the guidance provided in XX is clear; “In deciding the issue of risk on return involving a Facebook account, a decision maker may legitimately consider whether a person will close a Facebook account and not volunteer the fact of a previously closed Facebook account, prior to application for an ETD: HJ (Iran) v SSHD [2011] AC 596. Decision makers are allowed to consider first, what a person will do to mitigate a risk of persecution, and second, the reason for their actions. It is difficult to see circumstances in which the deletion of a Facebook account could equate to persecution, as there is no fundamental right protected by the Refugee Convention to have access to a particular social media platform.”
39. The same reasoning we have provided can be repeated in respect of the Appellant’s attendance at demonstrations. We are not satisfied that he has attended the demonstrations to express his genuinely held political beliefs. We find that the Appellant attended demonstrations to bolster his protection claim. In these circumstances it is not unreasonable to expect the Appellant to stop attending demonstrations.
(e) Whether it is likely that his sur place activities would come to the attention of the Iranian authorities when applying for an ETD or if returned to Iran
40. We have reminded ourselves of the guidance provided in HB that Kurdish ethnicity is a risk factor because Kurds are regarded with greater suspicion by the Iranian authorities and are likely to be subjected to heightened scrutiny on return to Iran. This when combined with other factors, may also create a real risk of persecution or Article 3 ill-treatment. The mere fact of being a returnee of Kurdish ethnicity with or without a valid passport and even if combined with illegal exit does not in itself create a risk of Article 3 ill-treatment. Being Kurdish is a risk factor, which when combined with other risk factors, such as involvement in low-level political activity, if discovered, involves the risk of persecution or Article 3 ill-treatment. Moreover, that the Iranian authorities demonstrate a “hair-trigger” approach to those suspected of or perceived to be involved in Kurdish political activity or support for Kurdish rights, such that the threshold is low and the reaction by the authorities is likely to be extreme.
41. We have also reminded ourselves that in accordance with BA when considering the risk on return to Iran it is the authorities’ perception of the individual’s political activities which is important, the appellant’s motivation is irrelevant. If discovered, the appellant faces a real risk of persecution or Article 3 ill-treatment in Iran due to his political activities in the UK. We are of course mindful of the low test which applies to Article 3.
42. Mr Gayle directed us to background material, including recent reports about the attack by Israel on Iran. The thrust being that the Iranian authorities will be even more vigilant about outsiders than they were previously. We also note the other updating background material set out within the Appellant’s schedule which we have taken into account.
43. We conclude to the required test that the Appellant’s sur place activities have not come to the attention of the authorities and a timely closure of his Facebook account would neutralise the risk it presents. We note that as a Kurd who is returning without a passport, and who exited illegally, the Appellant is likely to be questioned on entry into Iran. We also accept Mr Gayle’s submission that the Human rights Watch, Iran report of 2 September 2025 establishes that the Israeli hostilities against Iran in June 2025 have resulted in an increased scrutiny of Kurds. Against that background is the question of whether the Appellant could reasonably be expected to disclose his sur place activities when questioned by the authorities.
44. At [98]-[100] of XX it is established that the law does not prevent a decision maker from asking if a person will volunteer to the Iranian authorities the fact of a previous lie to the UK authorities, such as a protection claim made on fabricated grounds, or a deleted Facebook account. This was distinguished from RT (Zimbabwe) and others v Secretary of State for the Home Department [2012] UKSC 38; [2013] 1 AC 152 on the basis that the Iranian authorities do not persecute people because of their actual or perceived political neutrality; a returnee to Iran will return to a highly organised state, and the decision maker is not applying a test of what a claimant ought to do.
45. At [102] XX states that the Tribunal is permitted to ask what a returnee to Iran would do in relation to a contrived Facebook account or fabricated protection claim provided the inquiry is not too speculative. On the facts of this case, it is not too speculative. The Appellant has practiced deception and/or dishonesty in relation to dealings with state officials in the making of his protection claim; the Iranian government has a well-establish method of questioning and are therefore predictable; and the risks around discovery of social media material, prior to account deletion are minimal because the persons social graph and/or social media activities are limited as are the risks of him being identified at a demonstration.
46. This issue was further considered by the Court of Appeal in S v Secretary of State for the Home Department [2024] EWCA Civ 1482 and it was confirmed that the guidance provided in XX was correct. We have the Court of Appeal’s decision firmly in mind including when it was made clear at paragraphs 46 and 47 that,
“46. Undoubtedly, it was necessary for the judge to have regard to the whole history of the appellant's attendance outside the Embassy since his arrival in the UK, and to consider its significance in relation to the risk to the appellant, in accordance with the relevant country guidance in the cases to which both she and we have referred.
47. Likewise in relation to the evidence concerning the appellant's use of social media, it was necessary for the judge to take into account the whole history of his usage of social media since his arrival in the UK, and to consider its significance in relation to the risk to the appellant in accordance with the relevant country guidance.”
47. The Court of Appeal went further and applied the same legal rationale to the attendance of appellants at demonstrations who are not expressing genuine political views.
48. We therefore find that the Appellant is likely to be questioned because of his ethnicity, lack of passport, and illegal exit but he would not be required to volunteer information about his activities in the UK. The Appellant is not at risk on return because of his Kurdish ethnicity and illegal exit alone as noted in SSH and HR and accordingly he does not face a real risk of persecution.
49. In respect of any other human rights grounds, including Article 8 ECHR, there were no specific separate arguments put before us and nor are we able to discern any for ourselves. On the facts of this case therefore, the Appellant’s claim based on human rights also fails.
Notice of Decision
The Decision of the First-tier Tribunal contained a material error of law.
We remake the decision.
The Appellant’s appeal is dismissed on asylum, humanitarian protection and human rights grounds.


Signed H. Athwal
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

3 November 2025

Annex 1



IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000784

First-tier Tribunal No: PA/55578/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

04/08/2025

Before

UPPER TRIBUNAL JUDGE RASTOGI

Between

DA
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr K. Gayle, Solicitor from Elder Rahimi solicitors
For the Respondent: Mr P. Lawson, Senior Home Officer Presenting Officer

Heard at Birmingham Civil Justice Centre on 22 July 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 appeals, with (limited) permission, the decision of a judge of the First-tier Tribunal (“the judge”) who, on 17 December 2024, dismissed the appellant’s appeal against the respondent’s refusal of his protection and human rights claims (“the decision”).
2. Although the appellant challenged the decision on three grounds, on 8 April 2025 Upper Tribunal Judge Hirst limited permission to grounds 1 and 3 only. Ground 1 contends that the judge failed to properly consider the risk on return arising from the appellant’s sur place activity and that the judge’s findings were not consistent with the parts of the appellant’s account which he accepted. Ground 3 contends that the judge failed to properly consider the significance of the appellant’s Facebook activity.
3. At the hearing before me, Mr Lawson conceded that the judge did fall into error and accepted the decision should be set aside and the decision re-made.
4. As there was no Rule 24 notice, I probed the basis of the respondent’s concession so that I could understand the basis on which it was made and also to assess the best arrangements for the ultimate disposal of the case. Having done so, and in line with the concessions, I indicated that the judge’s decision was infected by an error of law necessitating the setting aside of the decision. I decided that the remaking of the appeal could take place in the Upper Tribunal with the judge’s findings rejecting the appellant’s claim about events in Iran being preserved (these were the subject of Ground 2 in which permission to appeal was not granted). I set out my fuller reasons below.
5. The appellant’s claim insofar as it relates to Grounds 1 and 3 centres on his Kurdish ethnicity in the context of his sur place activities. The judge noted at [36] that the respondent accepted that the appellant had attended some protests and had an active Facebook account but did not consider them sufficient to put the appellant at risk on return. At [13] of the decision, the judge identified this was the issue for him to decide. Having rejected the appellant’s fears arising from events which took place in Iran prior to his departure, the judge moved on to consider the appellant’s sur place activities. At [38] the judge noted that the appellant attended his first protest on 17 December 2023 and thereafter he had attended five or six others. The judge set out in brief terms what the appellant said about his role at those protests and what was obvious from the photos and the Facebook posts, noting his first activity then was on 23 November 2023 [39]. The judge noted the appellant’s claim that he wore high- visibility jackets at three protests, that he held a banner, that he chanted slogans and led chanting crowds and that he had photos of staff inside the Embassy purportedly filming the protest although the judge did not accept those photos were taken at protests which the appellant actually attended. Nevertheless, the judge accepted they supported the general position that Iranian embassy staff do monitor demonstrations. The judge noted there was no suggestion the appellant had manipulated his Facebook account and that the evidence was sufficient on the face of it to show he attended protests and posted anti-Iranian regime posts [40]. The judge concluded at [41] that the appellant’s role at the protests was not such that he is likely, on balance, to have brought himself to the attention of the Iranian authorities and at [42] that his Facebook activity does not arise from a genuine political opinion.
6. I agree that the concessions are rightly made given that the judge failed to make a finding as to whether or not the Facebook posts, which the judge acknowledged included anti-regime content, are sufficient to mean the appellant has come to the attention of the Iranian authorities already, notwithstanding the absence of his views being genuinely held. The judge fell short of making express findings about some claims the appellant made about his role at the protests but did not appear to reject his evidence about that. This means it is difficult to understand the basis on which the judge decided the appellant had not come to the attention of the Iranian authorities as a result of his role at the protests. There is no assessment of where the appellant’s role at the protests, taken together with his Facebook activity, place him on the social graph. Accordingly, a proper assessment of risk on return could not be carried out, bearing in mind the hair trigger approach of the Iranian authorities.
7. For these reasons I am satisfied the judge failed to make findings on material matters and failed to apply the country guidance on risk on return to other established facts of the case.
8. It follows that the decision contains errors on points of law and the decision is to be set aside pursuant to section 12 of the Tribunal, Courts and Enforcement Act 2007. The findings relating to events in Iran are to be preserved as they are not infected by the errors of law. The decision is to be remade in the Upper Tribunal on the issue of the appellant’s sur place activities and the risk he may face in Iran. As oral evidence may be required and no interpreter was present at the hearing before me, the appeal is to be re-listed for remaking in accordance with the directions below.
Notice of Decision
The decision of the First-tier Tribunal contains errors on points of law and is set aside.
The decision is to be re-made by a judge of the Upper Tribunal.


SJ Rastogi
Judge of the Upper Tribunal
Immigration and Asylum Chamber
31 July 2025

Directions
1. The appeal is to be listed for remaking before the Upper Tribunal with a time estimate of 3 hours.
2. A Kurdish Sorani speaking interpreter will be booked for the hearing.
3. Any updating evidence on which the parties rely to be served and uploaded to CE File no later than 21 days prior to the next hearing.