Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-003299
First-tier Tribunal No: PA/57218/2024
LP/12595/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 16 March 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE MERRIGAN

Between

[S M]
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr E. Banham, Counsel
For the Respondent: Mr E. Tufan, Senior Home Office Presenting Officer

Heard at Field House on 25 November 2025

DECISION AND REASONS

1. The appellant, a citizen of Iran, appeals against the decision (“the decision”) of First-tier Tribunal Judge Swinnerton (“the judge”) dated 28 May 2025. That decision dismissed the appellant’s appeal against the respondent’s decision dated 5 March 2024 to refuse the appellant’s protection claim made on 21 October 2022.

2. The background to the claim does not need to be set out in detail: the salient points are as follows. The appellant claimed asylum on arrival in the UK in October 2022. He claimed to be born in July 2005 and was, therefore, 17 years of age on arrival in the UK. That much is accepted by the respondent; the rest of his account, however, is not. The appellant claimed that he had worked as a kolbar with his father since the age of 13. Around May 2022, the appellant says he was asked repeatedly by a friend to transport boxes of political materials of the Komala Party of Iranian Kurdistan from Iraq into Iran. Eventually, without the knowledge of his father, the appellant agreed; and did so on a total of five occasions. In September 2022, his friend had a car accident; and in that car the police found two boxes of Komala materials that the appellant had brought into Iran. The appellant was told that his friend had given his name to the Iranian authorities. Shortly afterwards, the appellant left Iran.

3. The appellant’s protection claim was refused on 5 March 2024. As I have already stated, the respondent considered the appellant’s account of being a kolbar and how he came to leave Iran incredible. The respondent viewed the appellant’s explanations as lacking in detail, even considering his young age; and contradictory. Fundamentally, the respondent did not accept that the appellant had adequately explained why he would take the risk of transporting banned political materials into Iran where he had said he was not a member of the Komala Party; nor why, if he were a kolbar, why he would have agreed to transport them, without his father’s knowledge, for no remuneration.

4. The judge concurred with the respondent’s concerns as to the credibility of the appellant’s account. He went on to consider the sur place activities on which the appellant also relied: comprising Facebook posts critical of the Iranian regime and attendance at demonstrations. In that regard, the judge set out at [4] and [5] that while he did not consider 459 pages of Facebook posts that the respondent had not had the opportunity to review, he did admit 10 pages of Facebook posts, plus an additional witness statement dated 15 May 2025, which spoke to those sur place activities. The judge concluded at [29], having weighed up the appellant’s account of both his activities pre- and post-arrival in the UK, that “I do not accept the account of the Appellant. I find that the Appellant has fabricated an account”.

5. The appellant’s grounds are dated 3 July 2025 and may be summarised as follows:
a. Ground 1: in circumstances where the judge has made no actual finding as to whether the appellant was, in fact, working as a kolbar, his finding at [29] that he has fabricated his account is not sustainable.
b. Ground 2: not having found that the appellant was working as a kolbar, the judge could not assess the particular risks of acting as a kolbar; and the judge’s finding that the appellant does not have a profile that would attract the attention of the authorities is flawed.
c. Ground 3:
i. in finding that the appellant’s sur place activities served only to bolster his claim, the judge failed to take into account D8 (Exclusion: Substantive) [2023] UKSIAC 1 SC 179 2020; and
ii. the judge failed to take the appellant’s age into account.

6. Permission to appeal on all grounds was granted out of time by First-tier Tribunal Judge Burnett on 18 July 2025.

7. Turning to the first ground, it is accepted by Mr Tufan (for the respondent) that the judge never explicitly makes a finding that the appellant was or was not a kolbar; it is argued however that the judge’s credibility assessment overall was sufficiently robust that the lack of an explicit finding does not undermine it. Mr Banham’s (for the appellant) fundamental submission on this ground is that it must follow that if the judge made no explicit finding, he was not entitled as he did at [29], to disbelieve the appellant’s assertion that he worked as a kolbar.

8. It is common ground between Mr Tufan and Mr Banham that the closest the judge comes to making such a finding is the final sentence of [21], which it is agreed expresses the judge’s incredulity that the appellant would have transported political materials for free. I reproduce [21] in full.

“The Appellant’s account is also that the problem with the authorities arose on what would have been the fifth occasion on which he had made the journey with [his friend] to collect the political materials from Iraq and bring them back to Iran. On each of those five occasions, the Appellant would have faced the same danger and the same grave consequences if caught. On none of those five occasions was he paid anything at all. That is given the context that his role as a kolbar was his sole source of income and that he carried out such dangerous work to be able to help provide for his family.”

9. That final sentence is to be read in the context of findings made in [22] and [23]:

“…The claimed acts of the Appellant in transporting the political materials, therefore, not only endangered his own life but also endangered the lives of all of his family. I do not find it in any way credible that the Appellant would have decided to put himself and his whole family at grave risk in that manner and to hide his activity from his father and family as claimed.” [22]

“…The Appellant’s account is that the role of a kolbar brought with it substantial personal risk and that he carried out that role to help out his family financially. For that reason, he had been taken out of school at the age of 13. I find that transporting political materials on five separate occasions and receiving no income at all on any of those occasions, when income should have been forthcoming if the transported items were clothes, would have resulted in his father making serious inquiries into what activity the Appellant was engaged in instead of, as claimed, making no inquiry at all.” [23]

10. It is abundantly clear that the judge disbelieved the appellant’s account of having transported political materials. I consider the judge gave clear reasons for doing so. But the question remains whether the reasons given are sufficient for the much wider adverse credibility finding reached at [29]:

“For the reasons stated above, I do not accept the account of the Appellant. I find that the Appellant has fabricated an account.”

11. Taking the decision as a whole, I do not see that there are adequate reasons, explicitly expressed, for rejecting not just the appellant’s account of transporting political materials, but also his account of being a kolbar. I accept the submission that there is a tension between disbelieving that the appellant, if he were a kolbar, would transport political materials without payment on the one hand; while also implicitly finding that the appellant was not a kolbar at all. It cannot be had both ways. By not giving explicit reasons for finding why the appellant was (or was not) a kolbar, this tension goes unexplained. I do not consider that the judge’s finding at [24] that the appellant’s account of not being in touch with his family is incredible, albeit carefully made with close reference to the appellant’s asylum interview, can provide a bridge to a global adverse credibility finding where there is no finding as to whether the appellant was a kolbar. Moreover, whether the appellant was a kolbar is plainly relevant to any overall assessment of the appellant’s claim. As such, I do consider that ground 1 is made out, and that it constitutes a material error of law.

12. Given the close similarity between grounds 1 and 2, it is inevitable that ground 2 succeeds as well. It must be right that if there is no clear finding as to whether the appellant is a kolbar, there cannot be any safe assessment of the risk to the appellant’s working – or not working – as a kolbar.

13. Turning to ground 3, I consider the second limb first: whether the judge failed to take the appellant’s age into account. Mr Banham contends that the judge never explicitly makes allowance for the fact that when the appellant gave his asylum, he was only seventeen years of age, and therefore a minor. Turning to [24] of the decision, Mr Banham says that while the judge notes the appellant’s age, as he does elsewhere in the decision, he does not go on to factor it into his credibility assessment. In sum, it is suggested that the judge should have considered whether to give the appellant the benefit of the doubt.

14. Here I do not find an error of law. I have already said that I consider the finding at [24] to be carefully made. The judge refers to the appellant’s age elsewhere in [12] and [13]. It is at [16] however that the judge is most explicit:

“I have taken into account the age of the Appellant when he entered into the UK, that he was a minor at that time and that he is now still a young adult.”

15. I do not consider, as Mr Banham urges, that the judge nonetheless again needed to set out in [24] – or indeed elsewhere – that he made an adverse credibility finding notwithstanding the appellant’s minority. He is amply clear.

16. I turn finally to the other limb of ground 3: the decision lacking any reference to D8 (Exclusion: Substantive) [2023] UKSIAC 1 SC 179 2020. I am referred to paragraph 242 of that decision by Mr Banham, which concludes:

“…In any case, for the purposes of both his asylum and human rights claim the issue is not the genuineness of his political beliefs but how they would be perceived by Iran, were they to be discovered.”

17. The judge’s finding at [28] is unequivocal: “I find that the Appellant is claiming to be a political activist for the sole purpose of bolstering his protection claim”. The reasons behind this conclusion as to the appellant’s sur place activities are at [26] to [30]. I set out [27] and [28] in full:

“The Appellant gave evidence at the hearing that he played no role at all in organising any of the demonstrations that he claims to have attended. When asked why he had not attended any demonstrations prior to being informed that his protection claim had been rejected, the Appellant answered that he did not know that there were any organised activities against the Iranian regime. I do not find that to be a credible explanation.

The Appellant provided a number of Facebook posts as well as some updated Facebook posts. It was readily acknowledged at the hearing on behalf of the Appellant that the Facebook activity of the Appellant was not the strongest aspect of his claim. Some of those Facebook posts bore a date. None of the Facebook posts bearing a date bore a date prior to the date of the refusal letter. I have also taken into account that the Appellant, as confirmed at the hearing, is illiterate and that he made no mention previously (or in his most recent witness statement of 15.5.2025) of not having written any of the Facebook posts himself nor of having been assisted by a friend to do so. I find that the Appellant is not a political activist. I find that the Appellant is claiming to be a political activist for the sole purpose of bolstering his protection claim.”

18. There are, says Mr Banham, a number of problems with this analysis that fall into two categories: a failure to consider all of the evidence; and a failure to take into account relevant D8 (Exclusion: Substantive).

19. As to the former category, the appellant was only 17 when he entered the UK: as confirmed in his age assessment dated 11 November 2022 and the fact that he was placed in foster care on arrival. His evidence was that he was not then aware that there were demonstrations that he could attend in the UK. The appellant was clear in his minor asylum interview dated 25 January 2024 (at question 173) that he had not been politically active since entering the jurisdiction. The appellant’s evidence, at paragraph 14 of his statement dated 27 May 2024, that “I am a political activist in the UK since 19.03.24”. In support of this contention, I have already reflected that the appellant exhibited Facebook posts critical of the Iranian government. The appellant’s statement dated 15 May 2025 claims that he continued to post and attend demonstrations, exhibiting photographs on his Facebook account showing him to be present. Mr Banham argues that in the circumstances of the appellant’s age, it is not implausible that the reason for the appellant’s being initially inactive in the UK was exactly what he claimed: that until he changed solicitors around that time, he was unaware that there were demonstrations for him to attend. That the judge did not grapple with this explanation when making his adverse credibility finding at [27] is a failure to take relevant evidence into account.

20. Mr Banham says however that it is the latter category – a failure to take into account D8 (Exclusion: Substantive) – that constitutes the more fundamental error. The judge had before him D8 (Exclusion: Substantive) which, as quoted above, makes the point that it is the objective consideration of how sur place activities would be perceived that is key, rather than the subjective intention behind those activities. The judge records at [26] that the appellant claimed to have attended ten demonstrations; and specifically found “…that the Appellant engaged in no political activity at all in the UK prior to being informed of the refusal of his protection claim”. It follows that there was sur place activity; and the failure to apply D8 (Exclusion: Substantive) renders the judge’s findings on risk of return unsustainable.

21. Mr Tufan does not accept that there is a failure on the part of the judge to take all the evidence into account: he says that [26] to [30], in the context of the decision as a whole, are sufficient analysis for the judge to reach the adverse credibility finding that he did, notwithstanding the appellant’s age. It is conceded by Mr Tufan that there is no reference to D8 (Exclusion: Substantive) in the decision, albeit he contends that the judge implicitly had relevant case law in mind at [27]. It is not conceded however that this undermines the judge’s analysis. The height of what the appellant has evidenced, says Mr Tufan, is that when the appellant attended demonstrations, he was merely standing there. The appellant is no ring leader. On any analysis of XX (PJAK, sur place activities, Facebook) Iran (CG) [2022] UKUT 23, the appellant would not, on the findings made by the judge, have come to the attention of or been of interest to the Iranian authorities.

22. Returning to the decision, the material error of law I find in ground 3 is the failure to consider and make findings as to whether the appellant had, through his activities, come to the attention of the Iranian authorities. The decision of D8 (Exclusion: Substantive) was before the judge. Nonetheless, the judge did not engage with the question of whether, even if the sur place activity was only self-serving in respect of his asylum claim, that it would place the appellant in danger on return as he argued. The appellant did not dispute that his sur place activities only commenced on 19 March 2024; and the judge was unquestionably entitled to find that they all post-dated the refusal of his protection claim a fortnight earlier. The judge was justified in his scepticism of the authorship of the Facebook posts where the appellant was apparently illiterate. The judge was, in my view, entitled on the evidence to find that the appellant was claiming to be a political activist for the sole purpose of bolstering his protection claim. But the judge was not entitled to find at [30] that the appellant had failed to show a reasonable likelihood of being persecuted for a convention reason on return, nor a real risk of suffering serious harm in Iran. That finding required the judge to consider whether the Iranian authorities would discover and how they would view those sur place activities irrespective of the appellant’s motivation; and that analysis was not undertaken.

Notice of Decision

1. The judge’s decision involved the making of errors of law and is set aside.
2. I do not preserve any findings of the decision.
3. The matter is remitted to the First-tier Tribunal to be heard by a different judge.

D. Merrigan

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

16 March 2026