United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-001456
	First-tier Tribunal No: PA/54252/2023

IA/00862/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

28 ^th March 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE PAUL LEWIS

 

Between

 

HR

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr. Winter, Advocate [Normal Lawson, Solicitors]

For the Respondent: Ms Arif, Senior Presenting Officer

 

Heard at Field House on 11 March 2025

 

Order Regarding Anonymity

The anonymity order made in the First-tier Tribunal remains in force.

 

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.              This is an appeal by the appellant against a decision of the First-tier Tribunal Judge (the 'Judge'), promulgated on 9 ^th February 2024, in which she dismissed the appellant's appeal against the respondent's decision to refuse his protection and human rights claim. The appellant is a national of Iran of Kurdish ethnicity who claimed protection of the basis of his political opinion and his ethnicity.

 

2.              Permission to appeal was granted by Deputy Tribunal Judge Shepherd on 9 ^th May 2024 as follows:

 

a. Ground 1: the Judge failed to consider how the Appellant would be perceived on return, whether or not his motives in carrying out sur place activity in the UK are genuine;

 

b. Ground 2: the Judge failed to take account of whether risk arises from the appellant's evidence of having 950 friends on Facebook, regardless of whether the appellant deletes his account in advance of return to Iran;

 

c. Ground 3: the Judge has failed to give adequate reasons as to why he considers the appellant, having attended demonstrations and having posted anti-government rhetoric, would not be perceived by the Iranian authorities as a person who supports Kurdish rights.'

 

3.                    The grounds on which leave to appeal was granted were summarised in slightly different terms to those pleaded on behalf of the appellant (which contained five grounds). It is clear that Judge Shepherd did not restrict the grounds on which permission to appeal was granted. Mr. Winter made submissions in respect of each ground.

 

4.                    The respondent did not file a Rule 24 Response. The respondent submitted the judge's findings as to the 'Facebook' evidence are clear. Further the judge clearly and properly determined the appellant would not be perceived as holding a political opinion if returned to Iran.

 

Discussion

 

Ground 2

 

5.                    It is convenient to consider ground two first. In XX (PJAK -sur place activities -Facebook) Iran CG [2022] 00023 (IAC), the Upper Tribunal set out the correct approach to ' Facebook evidence.' At [27], the Upper Tribunal considered the expert evidence of Dr Clayton: A key aspect of monitoring a social network platform is to map the 'social graph' (who knows who) and thereby to find new people it might be worth collecting data about. Posts made in groups may or may not default to only being visible to group members - and membership of the group may or may not be restricted. It is of course possible to determine what the situation might be, but the likely audience of a particular post will not be immediately apparent at the time it is made - albeit it is possible to delete or restrict the visibility of old posts. A nuanced assessment is required.

 

6.                    Mr. Winter on behalf of the appellant submitted that the number of friends alone was sufficient to create a real-world risk that the appellant's profile had been or would be discovered.

 

7.                    The judge considered [28] the number of friends the appellant had; that the did not know them and that the volume the posts was not numerous. Absent such information it is difficult to understand (as Mr. Winter conceded) what other proper inferences the judge could draw simply from the number of friends the appellant had on Facebook at that time.

 

8.                    Mr Winter sought to draw parallels between this appellant and the appellant in XX who had nearly 3,000 Facebook 'friends'. That comparison does not withstand scrutiny. XX was also photographed with a person of 'prominence' [XX §118] and attended at a greater number of demonstrations that his appellant. This was 'just sufficient' to have created a risk that XX was the subject of targeted surveillance. Each case requires a nuanced analysis. In assessing the mere existence of 960 Facebook friends, the judge made no error of law.

 

Ground one

 

9.                    Having established the correct factual basis for her findings. Mr. Winter developed his remaining grounds in oral submissions. He submits that the judge erred in taking into account an irrelevant factor (the appellant's motivation for his sur place activities) in assessing the risk to the appellant on return.

The Judge's findings

 

10.                The judge [64] the properly directed herself to XX PJAK at Headnote 9 and paragraphs [100] to [102] -

 

[9] '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 ETD : HJ (Iran) SSHD [2011] AC 596. Decision makers are allowed to consider first, what the person will do to mitigate the risk of persecution, and secondly the reason for their actions.....whether such an inquiry it too speculative needs to be considered on a case-by-case basis.'

 

11.                Thereafter, the judge found:

 

[68] 'I find that it is entirely reasonable for the appellant not to disclose he has attended demonstrations in the UK, given that his motive was only to remain in the UK. The appellant is not being asked to hide his political beliefs... I have found he has not been credible in his devotion to the Kurdish cause'.

 

[69] '...even if the appellant is specifically asked if he attended any demonstrations, and choose to answer that he has, despite having no interest in the purpose of the 2 demonstrations he attended, I find that he has not established that there is a reasonable risk that authorities will take that the Iranian authorities would not take an adverse interest in him amounting to persecution because he has only attended 2, was taken to them by a friend, and which he attended to obtain photographs to support an asylum claim.'

 

[70] 'I find on the evidence of this particular case that the appellant will not be perceived by the Iranian authorities as a person who has been involved in Kurdish political activities or who supports Kurdish rights. This leads me to the finding that there is not a reasonable risk that the appellant would face persecution on return.'

 

 

12.                Mr. Winter submits that the judge erred in having regard to an irrelevant factor (bad faith) in assessing the risk arising from the appellant's sur place activities. As a point of principle Mr. Winter is correct in observing that the perception of the Iranian authorities, rather than the motivation of an appellant is the basis for assessing risk.

 

13.                As [102] of XX (PJAK) recognises, it 'may' be permissible for a decision maker to ask what a returnee to Iran will do in relation to a contrived Facebook account or fabricated protection claim. Whether such inquiry is too speculative needs to be considered on a case-by-case basis. The key word is 'may'.

 

14.                The judge's findings at [68] consider what it may be reasonable for the appellant to disclose in respect of his attendance at demonstrations. It does not necessary follow that an appellant will act in a reasonable way. It is possible that an appellant with no genuinely held political opinion may have (good) reason for not deleting their Facebook account when faced with return. In so far as those circumstances exist, there must be a proper evidential basis raised before a finding of fact can be reached. No such evidential basis exists here.

 

15.                The judge's findings do not equate motivation with risk. They simply consider the appellant's motive in assessing what the appellant will do at return. There would be no risk to the appellant because his social media account is not known to the Iranian authorities and would be disclosed to them on the appellant's return.

 

Ground three

 

16.                Mr Winter submits that the Judge's findings as to risk [69] and [70] are based wholly, or at least materially, on the determination that the appellant's motive was not genuine political support. In his grounds (iv) and (v), Mr. Winter submits the judge failed to adequately reason why the appellant's attendance at demonstrations would not be perceived as supporting Kurdish rights, contrary to HB (Kurds) Iran CG [2018] UKUT 430 (IAC) , headnotes 9 and 10, below:

(9) Even 'low-level' political activity, or activity that is perceived to be political, such as, by way of example only, mere possession of leaflets espousing or supporting Kurdish rights, if discovered, involves the same risk of persecution or Article 3 ill-treatment. Each case however, depends on its own facts and an assessment will need to be made as to the nature of the material possessed and how it would be likely to be viewed by the Iranian authorities in the context of the foregoing guidance.

(10) The Iranian authorities demonstrate what could be described as a 'hair-trigger' approach to those suspected of or perceived to be involved in Kurdish political activities or support for Kurdish rights. By 'hair-trigger' it means that the threshold for suspicion is low and the reaction of the authorities is reasonably likely to be extreme.

 

17.                At [60] and [61] the judge directs herself as follows: ' I do not find that the background country information supports the conclusion that the numerous persons who have engaged in few and minor political activities purely for the purpose of bolstering a false asylum claim and unbeknown to the authorities in Iran would face persecution on their return.'

 

18.                The key part of the judge's determination is that a returnee's activities would remain ' unbeknown'.

 

19.                The judge's findings at [69] are not determinative of the appeal and must be read in the context of the preceding and subsequent paragraph. At [69], the judge simply speculates as to what might happen in circumstances if the appellant revealed his attendance at demonstrations.

 

20.                Mr. Winter is right to note that the judge [69] does not adequately reason why in this hypothetical scenario, the appellant's activities would not create an adverse interest in the appellant. Such error [69] is not material. It is clear on reading the decision as a whole, that [69] refers to an alternative factual scenario which is contrary to the judge's actual findings. Those findings do not reveal a material error of law for the reasons set out at ground (2) above.

 

21.                It is submitted at [70] the judge failed to give adequate reasons why having attended demonstrations and posted anti-government rhetoric the appellant would not be perceived as a person supporting Kurdish rights. The answer is clear from the preceding paragraphs: The Iranian authorities are, and would remain, unaware of the appellant's sur place activities.

 

Notice of Decision

 

The decision of Judge Agnew dated 9 ^th February 2024 contains no error or law. The appeal is dismissed.

 

 

Paul Lewis

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

26 ^th March 2025