Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005198
First-tier Tribunal No: PA/67824/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 2 March 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE I A LEWIS

Between

AQ
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Eaton, Counsel instructed by Barnes Harrild & Dyer
For the Respondent: Mr A Tan, Senior Home Office Presenting Officer

Heard at Field House on 9 January 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, [the Appellant] (and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) 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 (and/or other person). Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. This is an appeal against a decision of the First-tier Tribunal refusing the Appellant’s appeal against a decision of the Secretary of State for the Home Department dated 15 December 2023, refusing his application for protection.
2. The Appellant’s initial claim was based on a land dispute with the Khidirsyan tribe. This claim was rejected by the Secretary of State as lacking credibility and in any event it was the Secretary of State’s view that state protection would be available to the Appellant. The Appellant persisted in this claim before the First-tier Tribunal, but again his basis of claim in this regard was rejected. No issues have been raised before the Upper Tribunal in respect of this aspect of his claim.
3. The issue before the Upper Tribunal relates to sur place activities.
4. Curiously, the Appellant’s Skeleton Argument before the First-tier Tribunal, dated 2 August 2024, does not plead sur place activities, or raise any issue in respect of political opinion: e.g. see paragraph 1 of the summary in the Appellant’s Skeleton Argument. This is curious because the Appellant’s Skeleton Argument was filed at the same time as the Appellant’s First-tier appeal bundle, albeit the Appellant’s bundle contains statements that post-date the Skeleton Argument, in which the Appellant raises matters in respect of political activity in the United Kingdom. He also included in his appeal bundle photographs of him attending demonstrations, and a number of social media posts.
5. I pause to note that the evidence indicates that the first demonstration attended was on 28 December 2023, approximately two weeks after the refusal of the asylum claim. However, the Facebook posts appear to pre-date the refusal of the asylum claim. (Without being definitive, and with the caveat that there has been no detailed discussion of these matters before me because of the helpful approach taken by the Respondent, it appears that the earliest Facebook posts date from 2022.)
6. The Respondent’s Review acknowledged that the Appellant was raising a ‘new matter’ notwithstanding the absence of any reference to such matters in the ASA. Paragraphs 22-28 of the Respondent’s Review are in these terms:
“22. Whether the Appellant has a well-founded fear of persecution due to his sur place political activity in the UK.
23. Despite not being raised as an issue for consideration at appeal in the ASA, the R notes that the A claims to have been politically active in the UK. As such, and because the A did not raise this matter at his substantive asylum claim, the A’s political opinion has been considered below as a New Matter.
24. The R notes that the A claims to have been politically active in the UK, which engages the Refugee Convention under political Opinion.
25. Although it is not clear what the A’s political opinion is, the A states he strongly disagrees with the ‘current ruling parties and partners’. The A states he has attended 5 demonstrations in the UK, from 28/12/2023 to 30/08/2024, and has submitted photographs which appear to show the A attending various demonstrations. Although it cannot be verified that the photographs correspond to the dates of the demonstrations given by the A, there is no reason not to accept that the A attended these demonstrations as claimed. The A has also submitted evidence which indicates that he has posted comments against the current government in Kurdistan.
26. Considering A’s case in line with the principles of BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC) it is submitted that the A has not established that he possesses a profile that would attract the attention of the Kurdistan authorities. The A has given no indication that he was politically active in Kurdistan, held opinions opposing the Kurdistan government, or came to the attention of the authorities for holding anti-government views.
27. As it is not accepted that the A had or has a political profile which would bring them to the adverse attention of the Kurdistan authorities, the principles of XX (PJAK - sur place activities - Facebook) Iran CG [2022] UKUT 23 (IAC) is relied upon with specific reference to paragraphs 121-129. It is submitted that the A is not a person with whom the Kurdistan authorities would have a pre-existing interest which would warrant the authorities accessing his Facebook material [XX paragraph 121].
28. Due to the above, although it is acknowledged that the A has been politically active in the UK, it is not accepted that the A has a well-founded fear of persecution due to these activities”.
7. Subsequent to the filing of the Respondent’s Review, which is dated 28 November 2024 and appears to have been uploaded on that date, the Appellant filed further bundles in his appeal: he filed three supplementary bundles on 12 December 2024, 6 March 2025 and 12 September 2025, the last approximately eleven days before the hearing before the First-tier Tribunal. Each of those bundles were similar in format, containing a brief witness statement identifying further sur place political activities - specifically demonstrations which the Appellant had attended, accompanied by various photographs of such matters. Significantly, also amongst these materials the Appellant made reference to, and produced, supporting evidence in respect of having spoken at two events. His witness statement of 11 September 2025 includes the following:
“14. On 5 August 2025, I attended another demonstration in front of the KRG representative office in the United Kingdom for the same purpose. This protest was organised by the 17 Shubat organisation and was attended by approximately 30-50 people. During the demonstration, I delivered a speech and recited a poem, which activists described as excellent. A video recording of my speech was published on the Facebook pages of 17 Shubat [a weblink is then included] and Brave Voices [together with a further Facebook weblink]. I am providing a transcript of the relevant video extracts as supporting evidence.
15. On 13 August 2025, I attended a demonstration organised by the 17 Shubat organisation in front of the KRG representative office in the United Kingdom. The purpose of the protest was to commemorate the ninth anniversary of the assassination of journalist and activist Wedat Hussain, who was killed on 13 August 2016. The demonstration was attended by approximately 30-50 people. During the protest, I delivered a speech, which was later shared on the Facebook page of 17 Shubat [again a hyperlink was provided and the paragraph of the statement concluded] I am providing a transcript of the relevant video extract as evidence”.
8. The First-tier Tribunal’s Decision in addressing sur place activity does so broadly in line with the submission made by the Respondent in the Review. The relevant paragraph is paragraph 25, which is in these terms:
“25. I turn now to consider the sur place claim. I find that this was created to boost the already weak asylum claim and the Appellant has now turned to attending protests against the regime but this is calculated to avoid removal. The key is how he would be perceived upon return and I find that the Appellant has no profile, he is but one of many protesting and in the case of this Appellant, it is staged, he is trying to draw attention to himself for photographs. The Appellant holding no profile let alone any political profile means the authorities have no interest in him pre-existing or current and they would not make any enquiries of him, nor would they want to see any online accounts, and in any event, I find the whole sur place claim is calculated to avoid removal and the Appellant would simply delete anything such as photographs should he hold them on a phone or other device”.
9. It is worth observing that apart from paragraph 5, where the Judge identifies that the Respondent “consented to the new issue of political opinion by way of sur place activities to be considered in the appeal”, paragraph 25 is the only reference to the Appellant’s sur place claim in the 5-page Decision. The rest of the Decision, and in particular the portion of it dealing with ‘Findings of Fact and Conclusions’ (paragraph 10-24) is concerned with the initial claim as presented based on a dispute with a particular tribe arising from plans to build on land.
10. The grounds of challenge to the Upper Tribunal essentially argue that the consideration of the First-tier Tribunal Judge with regard to the Appellant’s sur place claim is inadequate for a number of reasons set out in those grounds.
11. Mr Tan, on behalf of the Secretary of State, has helpfully – and, with respect, realistically - accepted that there is substance to the challenge.
12. In my judgment what is of particular concern is that there is no real engagement with the substance of the materials provided by the Appellant, and in particular the fact that he had been more than a mere attender at the demonstrations but had seemingly spoken. There is no evaluation of that aspect of his narrative, and therefore no reasoned consideration of how that might impact upon the issue of ‘profile’. It seems to me that the error in failing to address the substance of the Appellant’s case in this regard is plainly material. The only option is to set aside the decision of the First-tier Tribunal insofar as it relates to the sur place claim.
13. For the avoidance of any doubt, the grounds of appeal make it absolutely clear that there is no challenge to the conclusion in respect of the claim as initially presented. Indeed, in discussing disposal of the appeal, and the possibility of the matter being returned to the First-tier Tribunal to re-make the decision in the appeal, Mr Eaton was clear that there could be no realistic expectation of anything other than the re-making exercise being limited to the sur place activity.
14. Accordingly, there was brief discussion before me as to the appropriate forum for the re-making process or forum, the Upper Tribunal or the First-tier Tribunal. It seems to me that there is much in this case that requires further careful analysis, and in all of the circumstances I am persuaded that the appropriate forum is before the First-tier Tribunal. Whilst Mr Tan suggested the exercise could be conducted before the Upper Tribunal, he was somewhat guarded in pushing that with any vigour.
15. There is of course quite a lot of guidance in this area. I have already indicated that the case of BA was referenced in the Respondent’s review. Most recently there has been guidance in the case of MH (Bangladesh) [2025] EWCA Civ 688. Much of the discussion in the jurisprudence focuses around issues of surveillance of diaspora activists and demonstrations. It is to be recalled that in the earlier jurisprudence and in particular YB (Eritrea) [2008] EWCA Civ 360 the concept of a hanger-on is identified as somebody who might be on the edges of activism, and whose involvement might not excite the attention of any particular authority. There is of course a very real issue in this case as to the extent to which the Appellant is to be perceived as a hanger-on in circumstances where he has prior coming to the United Kingdom not been involved in any form of political activism, or seemingly expressed any particular political viewpoint; and that his particular activism by way of attending demonstrations only post-dates the decision in his asylum claim. Balanced against that is the possibility that an individual with the Appellant’s background who has been educated at university is likely to have some opinion about what is going on in his country and that he may have found some way of expressing that with the relative freedoms enjoyed in this country. How this might inform the nature and extent, and genuineness, of any activism is likely to involve careful and nuanced fact-finding.
16. Moreover, it is to be noted that the Appellant’s activities involved both attending at KRG offices, as well as the embassy of the Iraq government. Up until now there does not appear to have been any attempt to distinguish between the targets of his activities, and the extent to which those who are the subject of his protests would, or would not, be concerned by the particular activities. In this regard again there are some instructive passages to be gleaned from the guidance in MH (Bangladesh), in particular at paragraph 40:
“What an applicant for asylum can be expected to produce is evidence to put news media coverage, social media posts and the like into context”.
An illustration is then given.
17. It is difficult to see that there was any attempt to do undertake any such exercise before the First-tier Tribunal in this case. The expectation will be that on the next hearing there will be some further articulation and clarification of such matters - including, as I say, distinguishing between the targets of the protests, and in particular any risk arising in circumstances where the Appellant is likely to be able to return directly to the Kurdish Autonomous Regions rather than having to enter Iraq via Baghdad.
18. All these matters are open to debate. Anything I have said above is not intended to indicate any firm view one way or the other, but rather to identify the potential issues - which reinforce the notion that there is still much to explore in this case, making remittal to the First-tier appropriate.
19. One other brief observation is that it did not appear to be identified before the First-tier Tribunal that in circumstances where the sur place claim was not raised until the filing of the Appellant’s materials in the appeal in September 2024, that the sur place claim would fall to be considered under the NABA section 32 ‘regime’, and therefore references to the previous jurisprudence in respect of standard of proof were not appropriate. Again, this is a matter that will require consideration on rehearing.
20. Specific directions can be a matter for the First-tier Tribunal in due course. It is likely that standard directions will suffice, but the parties are alerted to the likely necessity of addressing the matters that I have highlighted above. In this regard it is to be noted that there was no second Appellant’s Skeleton Argument filed before the First-tier Tribunal previously, notwithstanding that the first ASA did not address the sur place claim at all.

Notice of Decision
21. The Decision of the First-tier Tribunal contained a material error of law, and is set aside insofar as it relates to the issue of sur place activities.
22. The decision in the appeal is to be remade, limited to the issue of sur place activities, before the First-tier Tribunal by any Judge other than Judge SJ Clarke.

The above represents a corrected transcript of ex tempore reasons given at the conclusion of the hearing.

I. Lewis

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

22 February 2026