Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001383

First-tier Tribunal No: PA/68849/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 24th November 2025

Before

UPPER TRIBUNAL JUDGE LODATO

Between

MS
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Islam, counsel
For the Respondent: Ms Rushforth, Senior Presenting Officer

Heard at Cardiff Civil Justice Centre on 10 November 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
Introduction
1. I maintain the anonymity order originally made in these proceedings by the First-tier Tribunal because the underlying claim involves international protection issues in that the appellant claims to fear persecution or serious harm on return to Iran. In reaching this decision, I am mindful of the fundamental principle of open justice, but I am satisfied, taking the appellant’s case at its highest for these purposes, that the potential grave risks outweigh the rights of the public to know of his identity.
2. This remaking decision follows a previous decision to set aside the decision of the First-tier Tribunal (‘FTT’) because it involved a material error of law in failing to deal with the risk which the appellant may face on return to Iran on account of his undisputed Kurdish ethnicity, his previous work as a kolbar in Iran and his unlawful exit. Otherwise, all of the findings of fact reached by the FTT were preserved. It follows that the remaining unresolved risk issue falls to be determined against the backdrop that he has fabricated his claim to have been ambushed by the Iranian security forces while smuggling sensitive material and that the political activities he pursued since his arrival in the UK were both disingenuous and opportunistic. The findings that he is not at risk on return on account of these claims therefore stand.
Legal Framework
3. Article 1A(2) of the Refugee Convention 1951 defines a refugee as an individual who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
4. The appellant bears the burden of substantiating the primary facts of a protection claim. The standard is a reasonable degree of likelihood (sometimes referred to as a realistic possibility).
5. I have considered BA (Demonstrators in Britain – risk on return) [2011] UKUT 36, SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308, HB (Kurds) (CG) [2018] UKUT 430, PS (Christianity – risk) (CG) [2020] UKUT 46 and XX (PJAK, sur place activities, Facebook) (CG) [2022] UKUT 00023.
Appeal to the Upper Tribunal
6. In the error of law decision, the narrow parameters for the remaking decision were set out in the following terms:
While we take the view that the appellant’s protection claim is now a challenging one because the centrepiece of his case has been roundly and lawfully rejected, there remains a formulation of his case which might carry favour. It follows that we are unable to conclude the error we have found under ground two is immaterial to the overall outcome. However, in order to ultimately succeed in his case that he is at risk on account of his Kurdish ethnicity, work as a kolbar and illegal exit, he will need to overcome the obvious hurdle of how the Iranian authorities will come to know of his smuggling activities. It may be argued in due course that while a returnee cannot be expected to lie about matters which touch upon a Refugee Convention reason (in accordance with HJ (Iran) v SSHD [2010] UKSC 31 principles), the same is not necessarily true of other matters such as working as a kolbar. If the Iranian authorities would only be reasonably likely to come to know of the appellant’s Kurdish ethnicity and illegal exit, the country guidance authorities appear to be tolerably clear that these factors alone would not place him at risk on return. However, these are matters which will need to be ventilated and finally resolved after a further hearing.
7. In view of the narrow and objective issue to be determined at the remaking hearing, the parties were agreed that there was nothing to be gained by hearing oral evidence from the appellant. Accordingly, the hearing proceeded solely on the basis of oral submissions. I address any submissions of significance in the discussion section below.
Discussion
8. As alluded to above, a critical question which underpins whether the appellant would be at risk on return is whether it is reasonably likely that the Iranian authorities will learn of his previous work as a kolbar. This is critical because the country guidance is tolerably clear that the remaining factors of being Kurdish and having exited the country illegally will not, without more, raise an objectively well-founded risk of persecution or serious harm. This much is evident from headnote [(4)] of HB Kurds: “[…] 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 create a risk of persecution or Article 3 ill-treatment”. It follows that I must ask myself the question of whether there is any prospect of the Iranian authorities being reasonably likely to discover the appellant’s accepted previous work as a kolbar in circumstances where his claim to have been ambushed while undertaking such work stands as rejected.
9. PS (Christianity) is clear that failed asylum seekers will be questioned by the Iranian authorities at the pinch point of return at the port of entry. The appellant will, in all likelihood, be questioned about the basis on which he sought to remain in the UK. The FTT found that he need not volunteer information about his sur place activities because these were not reflective of genuinely held, and therefore protected, political opinion. Similarly, his previous work as a kolbar – which did not involve the smuggling of politically sensitive articles – is not a protected characteristic. It follows that this part of his background is not related to a Refugee Convention reason about which he cannot be expected to lie if he would, at least in part, only do so out of fear of persecution. There is no legal barrier to the appellant either simply not disclosing these activities on questioning, or even to lie if pressed. I have no reason to think that the appellant would not be entirely able to conceal his former work. He has shown his ability to maintain elaborate lies over time as demonstrated by his fabricated claim to have been ambushed by the Iranian security forces and in maintaining disingenuous sur place activity in the UK. I conclude that it would not be difficult for him to at least withhold his previous work as a kolbar at the pinch point of arrival.
10. In his oral submissions, Mr Islam attempted to reintroduce the issue of how the Iranian authorities might view the appellant’s sur place activities if they came to learn, or were already aware, of these activities. I reminded him that this discrete risk factor had been resolved against the appellant by the FTT in unchallenged, and now settled, findings of fact. On the strength of the preserved findings of fact, which roundly rejected the appellant’s motivation for pursuing these activities and the suggestion that the Iranian authorities might already be aware of these acts (see paragraph [24] of the FTT decision), it was not appropriate to seek to reopen this issue given the narrow scope of the remaking proceedings.
11. For all of these reasons, I conclude that there is not a reasonable degree of likelihood that the appellant will be at risk of persecution or serious harm on return to Iran.

Notice of Decision
On remaking this appeal decision, I dismiss the appeal brought on Refugee Convention and humanitarian protection grounds.

P Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

19 November 2025