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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-002013
	First-tier Tribunal Nos: PA/53288/2023 LP/01074/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 19 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE McWILLIAM

DEPUTY UPPER TRIBUNAL JUDGE KIRK

 

Between

 

LKH

(ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Ms F Faran, Counsel instructed by Middlesex Law Chambers

For the Respondent: Ms A Ahmed, Home Office Presenting Officer

 

 

Heard at Field House on 23 January 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

Show cause notice

1.               Despite a composite and hyperlinked bundle having been lodged shortly before the hearing by the solicitors, we still have concerns. We therefore issue the following show cause notice:

The sole director, Ms H Choudhery, is to submit a statement of truth, within 28 days of sending this decision, setting out the system in place for supervision while she is unwell and the name of the supervising solicitor.

Introduction

2.               The Appellant is a citizen of Iran. His date of birth is 10 May 2004. He appeals against the decision of the Respondent, on 18 May 2023, to refuse his asylum claim, made on 12 October 2021.

3.               The Appellant was anonymised by the First-tier Tribunal. There is no reason for us to interfere with that order.

4.               In a decision which was promulgated on 26 March 2024, following a hearing in the First-tier Tribunal on 13 March 2024, Judge Hickey ("the judge") dismissed the Appellant's appeal against the Respondent's decision to refuse his claim for asylum. The Appellant was granted permission to appeal against the decision of the judge.

Error of Law

5.               The matter came before Deputy Upper Tribunal Judge Malik KC on 21 June 2024. In a decision which was promulgated on 8 August 2024, Judge Malik found that the First-tier Tribunal had materially erred in law. He set aside the decision to dismiss the appeal. His decision can be summarised. He found that the judge made no reference to the case HB (Kurds) Iran (illegal exit: failed asylum seeker) CG [2018] UKUT 430 in his decision. He was not satisfied that the judge assessed risk caused by the Appellant's low level political activity in the UK in the context of the "hair-trigger" approach of the Iranian authorities as to those suspected of or perceived to be involved in Kurdish political activities or support for Kurdish rights. The judge at paragraph 18 of his decision found that that there was no risk of the authorities in Iran finding the Appellant to be of "significant interest" and Judge Malik concluded that the use of "significant" indicated that the judge did not have the "hair-trigger" approach in mind. Judge Malik also said that if the Appellant's low level political activity in the UK is premised on his genuinely held political beliefs, then questions arise as to how he would conduct himself on return and whether he would continue low level political activity in Iran and, if so, whether it would place him at risk because he cannot be expected to lie about his political beliefs in order to avoid persecution.

The findings of the First-tier Tribunal

6.               The judge made findings which are maintained. They can be summarised as follows:

(1)            The core of the Appellant's account was found not credible concerning his account of anti-regime activity in Iran before coming to the UK. His evidence was found to be vague and inconsistent. The judge found that the Appellant had fabricated his evidence.

(2)             In respect of sur place activity, the judge noted that the Respondent accepted that the Appellant had been involved in some political activity at a low level. The judge accepted that he had attended two demonstrations and at least one of them was outside the Iranian embassy. The last demonstration was on 20 March 2022. The Appellant provided photographs, and the judge said that some of these show him carrying a placard or a banner and in others he is wearing a high visibility vest.

(3)             The judge considered the Facebook evidence. He found that there were three posts with a low number of likes. He said that there was a post of the Appellant dated 20 March 2022. He is one of three holding a poster stating "down regime of Iran" and there are four likes. The judge said that there is a post from the same day with additional photographs and extra text in English and five photographs. In two of the photographs the Appellant is wearing a high visibility vest. The post is liked by nineteen people and there are forty eight comments. The judge said that there are several photographs of the Appellant attending the demonstration and standing by a banner.

(4)             The judge said that that the Appellant in his asylum interview stated that he did not know the purpose of the demonstrations. The judge found that he was not an organiser and he did not play any part in encouraging people to attend.

(5)             The judge said that he was mindful that the Appellant had not provided a full download of his Facebook material. He found that on the material provided the Appellant has been engaged in low level political activity for a brief period of time and that there was no evidence that he had continued this activity after March 2022.

Preliminary Issue

7.               The Appellant's solicitors have repeatedly failed to comply with directions of the Upper Tribunal which resulted in a Hamid direction ( R (Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin). There have been a lot of emails received by the solicitors regarding this and a number of further directions issued by the Upper Tribunal. We excused the attendance of the sole director of Middlesex Chambers on the basis that she is sadly unwell. In order to resolve the issue we issue a further show cause notice (see para 1 of this decision). We are mindful that our primary task is to fairly determine the Appellant's appeal and we explained to him that his solicitor's conduct will not interfere with this.

Issues

8.               The representatives relied on skeleton arguments. Ms Faran resiled from her skeleton argument in so far as it seeks to re-litigate the Appellant's asylum appeal on the basis of his evidence about events in Iran. The representatives agreed that the issue was risk on return as a result of sur place activities. In addition, the Appellant relies on Article 8.

Case law

9.               There is no need for us to set out the case law at length. We will summarise the guidance.

BA (Demonstrators in Britain - risk on return) [2011] UKUT 36

10.           Iranians are screened on arrival and a returnee who meets the profile of an activist may be detained. It is important to consider the level of involvement before considering the likelihood of an individual coming to the attention of the authorities. To consider the nature of sur place? activities there are relevant factors to consider; the theme of demonstrations; the role of the individual, the extent of participation and the publicity attracted; the regime's surveillance of activities and the capacity of the regime to identify individuals. A committed opponent or someone with a significant profile and an appellant's immigration history are factors that may trigger enquiry.

HB (Kurds) Iran CG [2018] UKUT 430

11.           Kurds in Iran face discrimination which does not amount to persecution or ill-treatment contrary to Article 3. Since 2016 the authorities have become increasingly suspicious of and sensitive to Kurdish political activity and Kurds will be regarded with greater suspicion. The mere fact of being a returnee of Kurdish ethnicity does not create a risk on return, but combined with other factors, may create a risk. The other factors include a period of residence in the KRI, involvement with Kurdish political groups or activities, involvement with any organised activity on behalf of Kurds, even low-level political activity may put someone at risk. The Iranian authorities exercise a "hair-trigger" approach to those suspected of or perceived to be involved in Kurdish politics.

XX (PJAK, sur place activities, Facebook) Iran (CG) [2022] UKUT 23

12.           The evidence fails to show that the Iranian authorities are able to monitor on a large scale Facebook accounts. Whether an individual is targeted will depend on their existing profile. The likelihood of Facebook material being available to the Iranian authorities is affected by whether the person is or has been at any material time a person of significant interest because, if so, they are in general reasonably likely to have been the subject of targeted Facebook surveillance and, if so, the risk would not be mitigated by the deletion of a Facebook account because there is a real risk that that person would already have been the subject of targeted on line surveillance. Where an Iranian national returns to Iran the fact that they do not have a Facebook account or have deleted a Facebook account will not, as such, raise suspicions or concern by the authorities. There is no evidence that the Facebook website has been hacked by the authorities. Someone's name and details may crop up in a Google search, if they still have a live account or one that has recently been closed provided that the settings are public. The timely closure of an account neutralises the risk, provided that the account was not monitored prior to closure.

13.           Production of a small part of a Facebook account for example photocopied photographs may be of limited evidential value in the absence of disclosure of further evidence, for example, a full timeline of social media activities available on the "Download your Information" function of Facebook. It is easy to manipulate a printout by changing the page source data. In deciding whether someone is at risk as a result of a Facebook account, it is legitimate to consider whether a person will close the account prior to the application of an Emergency Travel Document (EDT). A decision maker is permitted to consider; first, what a person will do to mitigate risk and, secondly, the reason for their actions.

The Appellant's Evidence

14.           The Appellant gave evidence before us and adopted his witness statement of 18 October 2024. In evidence he said that he has attended one demonstration in May 2024 since his last appeal. It was a demonstration against the Islamic regime in Iran. He would have attended more demonstrations but for the cost of travelling to London. The price of a rail ticket from Reading, where he lives, to London is £25 to £30. He receives £60 every week and cannot afford a train ticket.

15.           In cross-examination the Appellant produced evidence of screen shots of his Facebook account on his mobile phone. Ms Ahmed did not object to the evidence being admitted. He said that the settings on his Facebook account are public and the posts relate to his attendance at one demonstration on 25 May 2024. He did not know who organised the event, but he knew about it because it was posted on Facebook. He does not have that many followers on Facebook and he thinks that people are scared to "like" or comment on posts.

16.           The Appellant said that he is not in contact with his parents in Iran. They do not have a contact number or access to social media. They live in a remote area. If he returns to Iran, he would want to continue his activity against the regime. The authorities are already aware of his activities in the UK and Facebook account.

Submissions

17.           Ms Ahmed said that the Appellant's activities are limited. The Appellant was not politically active in Iran. She relied on case law and the Country Policy and Information note (CPIN): social media, surveillance and sur place activities, Iran March 2022, paras 2.4.10 and 2.4.15, concerning the extent that the authorities monitor activities and their ability to do so. The Appellant attended two demonstrations in 2022 and one only since then. He has attended three demonstrations in total. This would not result in the "hair trigger" response. The Appellant does not have a role that would make him stand out. He has no political profile in Iran. The Appellant can reasonably be expected to close down his Facebook account. He does not have a genuinely held belief. Ms Ahmed relied on Judge Hickey's findings.

18.           Ms Faran submitted that the Appellant is credible. He accepts that his profile is low level. He has fifty eight likes and forty eight comments in one of his Facebook posts before the First-tier Tribunal. His account is public. This is the only way he can show his resentment of the regime. He was forced by the regime to leave Iran and his family. Ms Faran relied on the CPIN, Iran Kurds and Kurdish Political Groups, May 2022 , para 2.4.12.

19.           Ms Faran accepted that the Appellant does not meet the requirements of the Immigration Rules (IR); however, he has been in the UK since he was aged 17. He has friends in the UK. He has not had contact with his family in Iran

Findings and reasons

20.           We do not find the Appellant's account to be credible. He was found not credible by the judge in the First-tier Tribunal and his evidence before us does not establish that we should go behind that finding, in the light of the absence of cogent evidence that the Appellant has a genuine belief in the Kurdish cause.

21.           The Appellant's activities, on his own account, are low-level. We appreciate that this is not determinative of whether the Appellant would be at risk. However, he has attended one demonstration only since the last hearing and before then the last demonstration he attended was in March 2022. We appreciate that the train fare to London is expensive in relation to his modest income; however, we find that if the Appellant was genuine in his belief, he would have looked for other means of travel and or participated in other events or increased on-line activity.

22.           Ms Faran did not address us on XX. However, we reject her submissions concerning the Appellant's Facebook activity. The screen shots of the Appellant's Facebook account which he produced at the hearing support his attendance at one demonstration and some of the pictures are duplicates. They show the Appellant at times wearing a high visibility vest, holding a placard, pictures or a flag. They were posted on 26 May 2024 (eight likes and twelve comments), 6 June 2024 (fifty likes and fifty two comments and the second post of that day received one like) and 9 June 2024 (fourteen likes and seventeen comments).

23.           We find that the Appellant's Facebook activity is limited. We take into account that his evidence of activities in Iran prior to coming to the UK was rejected by Judge Hickey. We find that there is no reason why the authorities in Iran would have targeted his Facebook account despite public settings. The Appellant had not downloaded a full time-line of activities and, in any event, the Facebook evidence before us supports the Appellant's attendance at one demonstration post the decision of Judge Hickey which is in accordance with the Appellant's evidence.

24.           There is no evidence to support that the authorities would have identified the Appellant through surveillance or that his limited anti-regime activity would have come to the attention of the authorities.

25.           There is a dearth of evidence of genuine or meaningful sur place activity. We find that his limited activity does not support that he has a genuine belief in the Kurdish cause. We find that the Appellant will close his Facebook account and not volunteer this prior to the application for an ETD. He will not disclose Facebook activity to the authorities in Iran. The factors in HJ (Iran) v SSHD [2011] AC 596 do not apply.

26.           We find, taking into account the risk factors identified in HB, that the Appellant's ethnicity and the fact that he left Iran illegally will not put him at risk on return. The paragraphs of the CPIN on which Ms Faran relied do not add to the case law. Applying the low standard of proof, we find that the Appellant has not established that he would be at risk on return to Iran.

27.           The Appellant does not meet the requirement of the IR. He has no family in the UK. In his favour he has been here since he was aged 17. He arrived on 21 October 2021. We have taken into account that evidence in his most recent witness statement. He has made friends in the UK. He has competed a course at Reading College and he wants to continue with his studies. He plays football every week with a group of friends. He attends the gym. We do not find that he has a significant private life. However, the determinative issue is proportionality. We do not find it credible that he is not in contact with his family. We do not accept that a connection with the Appellant would put his family at risk. Taking into account s117B of NIAA 2002, the maintenance of effective immigration is in the public interest. Little weight should be given to a private life established when a person's immigration status is precarious. We conclude that the decision does not breach the Appellant's rights under Article 8.

Notice of Decision

28.           The appeal is dismissed on asylum grounds.

29.           The appeal is dismissed under Article 3 ECHR.

30.           The appeal is dismissed under Article 8 ECHR.

 

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

Joanna McWilliam

17 February 2025