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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-004062
	First-tier Tribunal No: PA/58740/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 17 February 2025

 

 

Before

 

UPPER TRIBUNAL JUDGE SHERIDAN

DEPUTY UPPER TRIBUNAL JUDGE HILLS

 

 

Between

 

IM

(ANONYMITY DIRECTION MADE)

Applicant

and

 

Secretary of State for the Home Department

Respondent

 

Representation :

For the Appellant: Mr Georget, Counsel instructed by Barnes Harrild & Dyer

For the Respondent: Ms Isherwood, Senior Home Office Presenting Officer

 

Heard at Field House on 7 February 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

 

1.              By a decision issued on 8 January 2025 a panel of the Upper Tribunal set aside the decision of the First-tier Tribunal. We now re-make that decision.

Introduction

2.              The appellant is a Kurdish citizen of Iran who claims to face a risk because:

1. he was a Kolbar/smuggler who fled Iran because he was discovered storing alcohol and political materials; and
2. since arriving in the UK in September 2021 he has been politically active in opposition to the Iranian regime by attending multiple demonstrations and posting material on Facebook, where he has an open account with over 4,000 friends.

3.              The First-tier Tribunal accepted that the appellant worked as a Kolbar but not that he had come to the attention of the authorities or faced a risk on account of his activity in Iran. This finding was preserved by the Upper Tribunal.

4.              The First-tier Tribunal did not accept that the appellant's sur place activities in the UK were as extensive as claimed or that he had come to the attention of the Iranian authorities because of them. It was also found that his activities in the UK were contrived and did not reflect a genuine belief. This aspect of the First-tier Tribunal decision was set aside.

5.              It was common ground that the issues for us to resolve are:

1. the extent of the appellant's sur place activities in the UK and whether these reflect a genuine belief;
2. whether, even if the appellant's sur place activities do not reflect the genuine belief - and were undertaken in order to bolster a contrived asylum claim - he would nonetheless face a risk of persecution on return to Iran because of an imputed political opinion.

The appellant's sur place activities and the genuineness of his claimed political beliefs

6.              The appellant claims that he strongly opposes the Iranian regime and that because of this he has (a) attended 23 anti- regime protests outside the Iranian embassy; and (b) created an "open" Facebook account which has over 4,000 "friends" where he (i) posts anti-regime material; (ii) "likes", comments on and shares anti-regime material created by others; and (iii) posts photographs of himself at demonstrations.

7.              The appellant's account of his activities in the UK are corroborated by documentary evidence showing his activity on Facebook and photographs showing him attending at least one demonstration outside the Iranian embassy.

8.              Ms Isherwood accepted that the appellant has a Facebook account with over 4,000 friends, where some anti-regime material has been posted. However, she noted that most of the material that had been submitted was not translated and appeared to be repetitive. She also noted that the appellant had not joined any Kurdish (or anti-regime) groups in the UK and submitted that the photographs of attendance at demonstrations do no more than indicate his presence and do not indicate any significant involvement.

9.              Mr Georget argued that the appellant's anti-regime activities have been extensive, and that this indicates that it reflects a genuine belief. He also submitted that the background evidence of how Kurdish Iranians are treated makes it entirely plausible that a Kurd in the UK would genuinely desire change in Iran.

10.          We find that the appellant has engaged in two types of sur place activity since arriving in the UK in September 2021. The first is attending demonstrations outside the Iranian embassy. We do not accept that the appellant has attended as many demonstrations as he claims given the absence of any evidence to corroborate this. For example, the appellant has not provided dated photographs demonstrating attendance at numerous - let alone 23 - different demonstrations; nor has he provided statements or letters from people organising (or even just attending) the demonstration in which he claims to have participated. We also keep in mind the preserved findings as to the appellant's credibility from the First-tier Tribunal, which make us less inclined to believe the appellant's unsupported assertion that he has attended 23 demonstrations. Nonetheless, based on photographic evidence provided, we are satisfied that the appellant has attended several demonstrations in front of the Iranian embassy, and in at least one of these has taken a photograph of himself with a sign demonstrating hostility to the Iranian regime and with a Kurdish flag.

11.          The second type of sur place activity engaged in by the appellant is creating a Facebook account and posting on it extensively regarding the Iranian regime. Some of the material he has posted - or "liked" - is highly critical of the Iranian regime, and uses inflammatory language. Based on the documentary evidence provided, we accept the appellant's claim that he has an open Facebook account with over 4,000 "friends" that expresses hostility to the Iranian regime.

12.          As highlighted by Ms Isherwood, a striking feature of this case is that the appellant has provided no evidence of having (and does not in fact claim to have) joined or participated in any Kurdish (or anti-Iranian regime) groups or organisations. The appellant went so far in his oral evidence as to state that he would not close his Facebook account on return to Iran because he wants a revolution. It is difficult to understand how a person with such a strong feeling, who spends a significant amount of time posting on Facebook about Iran (and attending demonstrations in London) has not joined any groups or organisations working towards the goal he claims to have. It is also notable that the appellant has not provided any witness statements or even letters of support from other Kurdish Iranians campaigning against the Iranian regime.

13.          In the light of this, and considering the preserved adverse credibility findings from the First-tier Tribunal, we have no hesitation in finding that it is not reasonably likely that the appellant's sur place activities represent a genuine belief. The appellant has, in our view, created the Facebook account and attended demonstrations for the sole purpose of bolstering his asylum claim.

14.          In summary, our findings of fact are:

1. the appellant did not give a truthful account of coming to the attention of the authorities in Iran when working as a Kolbar (this is a preserved finding from the First-tier Tribunal);
2. the appellant has attended several anti-regime protests outside the Iranian embassy and in at least one held a sign demonstrating hostility to the Iranian regime and a Kurdish flag;
3. the appellant has an "open" Facebook account with over 4,000 "friends", where a significant amount of anti-Iranian regime material is posted; and
4. the appellant's activities in the UK do not reflect a genuine belief and have been undertaken in order to construct a contrived asylum claim.

The appellant's risk on return to Iran

15.          The most recent country guidance case on Iran is XX (PJAK - sur place activities - Facebook) Iran CG [2022] UKUT 23 (IAC). It concerned an Iranian Kurd who, like the appellant in this case, was found to have posted extensively on Facebook and to have attended anti-regime demonstrations in the UK, but only in order to contrive a protection claim. XX was found to have a well-founded fear of persecution because there was a real risk that, as a consequence of his attendance at demonstrations (and a photograph he secured with a prominent person) there was a real risk that he had been subject to targeted surveillance by the Iranian state which would mean that the Iranian authorities would have downloaded and stored material concerning him from Facebook. The appellant therefore could not mitigate against the risk by closing his Facebook account. In paragraph 118 of XX it is stated:

On return to Iran, there is a real risk that he would be presented with that material, of a highly provocative and incendiary nature. The nature of the material, although contrived and even if seen as contrived, combined with his Kurdish ethnic origin, would result in a real risk of adverse treatment, sufficiently serious to constitute persecution. He is analogous to the appellant in the well-known authority of Danian v SSHD [1999] INLR 533.

16.          The appellant's circumstances are analogous to those of the appellant in XX, save that in this case the appellant, in contrast to XX, has not secured a photograph with a prominent person. Whilst the absence of such a photograph means that the appellant's case is weaker than that of XX, we are nonetheless persuaded by Mr Georget that, given that the standard of proof is "reasonable degree of likelihood", a different outcome to that in XX cannot be justified. Put another way, the appellant's significant efforts to make himself visible at pro-Kurdish and anti-regime demonstrations outside the Iranian embassy, as indicated by the photographs he has provided (including photographs posted on Facebook) means that there is a reasonable degree of likelihood that the Iranian authorities have identified him as an individual to be subjected to targeted surveillance and have, as a consequence, downloaded material from his Facebook page which, because of its provocative and incendiary nature, would place him at risk on return. In these circumstances, the appellant could not mitigate his risk by deleting the Facebook account because the incriminating material is already held by the Iranian regime.

17.          We are also persuaded by Mr Georget that the appeal should be allowed even if there is not a reasonable degree of likelihood that the appellant has already come to the attention of the Iranian authorities and therefore he could mitigate the risk of persecution by deleting his Facebook profile prior to it coming to the attention of the authorities.

18.          XX explains, in paragraph 4 of the headnote, that

4) A returnee from the UK to Iran who requires a laissez-passer or an emergency travel document (ETD) needs to complete an application form and submit it to the Iranian embassy in London. They are required to provide their address and telephone number, but not an email address or details of a social media account. While social media details are not asked for, the point of applying for an ETD is likely to be the first potential "pinch point, " referred to in AB and Others (internet activity - state of evidence) Iran [2015] UKUT 257 (IAC). It is not realistic to assume that internet searches will not be carried out until a person's arrival in Iran. Those applicants for ETDs provide an obvious pool of people, in respect of whom basic searches (such as open internet searches) are likely to be carried out

 

19.          Paragraph 9 of the headnote to XX states:

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 an ETD: HJ (Iran) v SSHD [2011] AC 596. Decision makers are allowed to consider first, what a person will do to mitigate a risk of persecution, and second, the reason for their actions. It is difficult to see circumstances in which the deletion of a Facebook account could equate to persecution, as there is no fundamental right protected by the Refugee Convention to have access to a particular social media platform, as opposed to the right to political neutrality. Whether such an inquiry is too speculative needs to be considered on a case-by-case basis.

20.          We have considered (applying a lower standard of proof) whether the appellant would delete his Facebook account prior to the application for an ETD, thereby avoiding the risk of the account being discovered when the Iranian authorities might undertake an internet search at the time of the application for the ETD. Our firm view is that the appellant would not delete the account, and therefore the risk would not be mitigated (even though, as XX makes clear, it could have been). This is because the appellant would still be in the UK when the ETD is applied for and would have no incentive to delete the Facebook account. By keeping the Facebook account in place when applying for the ETD the appellant would increase the risk of his Facebook account being identified by the Iranian authorities. This would serve to enhance his (contrived) protection claim. Given that the appellant has already made considerable efforts to contrive his asylum claim, it is difficult to see why he would undermine this effort by deleting his Facebook account at a time when he would still be in the UK and could enhance his position, in terms of establishing that he faces a risk on return, by keeping it in place.

21.          In conclusion, we find that, even though the appellant's asylum claim is contrived, there is a reasonable degree of likelihood that he will face persecution on account of an imputed political opinion on return to Iran because:

1. there is a reasonable degree of likelihood that the Iranian authorities have already subjected him to targeted surveillance due to his attendance at demonstrations and are already in possession of incriminating Facebook material; or
2. even if the appellant has not already been subject to targeted surveillance, there is a reasonable degree of likelihood that his incriminating Facebook material will be discovered by the Iranian authorities when he applies for an ETD, as there is a real risk he would not mitigate the risk of this occurring by deleting his Facebook account prior to making the application for an ETD.

Notice of Decision

22.          The appeal is allowed on asylum grounds.

 

D. Sheridan

 

Upper Tribunal Judge Daniel Sheridan

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

12 February 2025