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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005233
	First-tier Tribunal No: PA/51252/2023

 

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 14 ^th of March 2025

 

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE R THOMAS KC

 

 

Between

 

SM

(ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPATMENT

Respondent

Representation :

For the Appellant: Ms H Masih of counsel, instructed by MH Solicitors

For the Respondent: Mr A Mullen, Home Office Presenting Officers

 

Heard at Field House on 3 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.              The appellant is a citizen of Iran of Kurdish ethnicity. He claimed asylum on 13 ^th September 2021 and was, at that time, aged 16 years and 8 months. He was interviewed on 23 ^rd November 2022, and on 14 ^th February 2023, the respondent refused his asylum and international protection claim. It was not accepted that he had been involved in political activity in Iran.

2.              His appeal was heard on 28 ^th September 2023 before FtTJ McClure. The appellant relied on evidence of his political activity in the UK post-dating the refusal decision. This evidence included Facebook posts containing comments critical of the regime and pictures of the appellant at demonstrations.

3.              The appellant's case before the FtTJ was, in summary, that he lived in a farming village and was uneducated as his father did not want him to be taught in Farsi. He assisted his father in distributing leaflets, memory cards/USBs, and other publications on behalf of an organisation called "Komola" which the appellant believed was the "Kurdish Democratic Party of Iran". His father was arrested for this activity and his family targeted. Ultimately, arrangements were made for the appellant to flee Iran. The appellant further relied upon his sur place political activity as evidence of his political opinion and because there was a risk it had already come to the attention of the Iranian authorities (and therefore the position could not be mitigated by deletion of the account). The appellant's position was that if returned to Iran he would be at risk because in addition to his Kurdish ethnicity and his illegal exit, the authorities would be aware of his political beliefs because of events in Iran and/or the UK, and, in any event, given his genuinely held beliefs, he should not be required to deny those belief when interrogated.

4.              In dismissing the appeal, the FtTJ held:

(i)                  That the appellant's claims that he and his father were involved in disseminating materials in Iran was not true.

(ii)                That the appellant's attendance at demonstrations in the UK and his Facebook posts were an attempt to bolster his asylum claim and his claims to be committed to a political cause were not true.

(iii)              That the appellant could delete his Facebook posts and avoid coming to the attention of the Iranian authorities.

(iv)              The appellant was not at risk of being questioned either at the point of return or otherwise.

5.              The grounds of appeal raised various criticisms of the FtTJ's credibility assessment. In granting leave however, UTJ Ruddick did so principally on something not raised in the grounds of appeal:

 

The grounds fail to raise what is arguably a Robinson obvious error. The judge accepts at [23-24] and [44] that the appellant has been attending pro-Kurdish demonstrations in the UK, but he fails to make an finding as to whether the appellant would be at risk on return to Iran for this reason. He refers to Danian at [34] and HB(Kurds)(Iran) 2018 UKUT 430 (IAC) at [42] but at [56] he considers risk on return only on the basis of ethnicity and illegal exit. It is clearly arguable that, having found that the appellant had attended demonstrations in the UK, it was necessary to make a finding on risk on return on this basis, regardless of the findings at [50-51] that the appellant played no leadership role at the protests and was not genuinely motivated. It is clearly arguable that the guidance in HB regarding the Iranian authority's "hair trigger" approach to Kurdish political activity means that being low profile or insincere does not preclude a risk on return.

6.              Leave was also granted on the grounds that:

 

(i)                  The FtTJ erred by failing to take into account the appellant's age (he was under 18 at that stage) when finding his credibility was damaged by his failure to attend demonstrations in the UK prior to the refusal decision.

(ii)                That the FtTJ imposed his own views on how politics should be conducted when finding that the appellant's credibility was damaged by his failure to make prompt contact with a political party on arrival in the UK.

7.              Before me, it was agreed by both parties that the FtTJ had erred in his failure to conduct an adequate assessment of the risk on return arising from the appellant's sur place political activity, and this assessment was required regardless of whether or not such activity was found to be credible. It was also agreed that, in particular having regard to the appellant's age, the judge had erred in his approach to the credibility assessment. The parties pointed me to the FtTJ's expectation (at paragraphs [47-48]) that the appellant would understand the doctrinal differences between the various factions of the Komala party and as between them and the KDPI. I was invited to find there was an error of law and to remit the case with no preserved factual findings.

8.              In those circumstances, it is possible to dispose of the appeal succinctly: In XX (PJAK - sur place activities - Facebook) Iran CG [2022] UKUT 23 (IAC), the Upper Tribunal was invited [at paragraph 116] to consider the risk on return on the basis the appellant's sur place activities were entirely contrived (in the sense that the activities had taken place, but they were not because of a genuine belief in political ideology but instead solely to bolster a fabricated protection claim), that he could and would delete his Facebook account prior to return, and that if questioned he would not volunteer the existence of the Facebook material of as to his activity. The Upper Tribunal accepted that even though the political activity was not genuine, nonetheless a careful assessment was required as to whether that activity (and its dissemination on social media) would have already brought him to the attention of the Iranian authorities. Given the factual circumstances of that case:

 

Given his attendance at events; and the prominence of the person he has secured a photograph with, we conclude that there is a real risk that he has been the subject of targeted (as opposed to general) surveillance by the Iranian state already. There is no need for the Iranian authorities to have "hacked" his account or "scraped" his "DYI". His carefully curated (albeit contrived) social graph is, in this particular case, just sufficient in our judgment to establish a risk that he has been subject to surveillance in the past that would have resulted in the downloading and storing of material held against his name. Put another way, he has drawn enough attention to himself by the extent of his "real world" activities, to have become the subject of targeted social media surveillance. Deletion of his Facebook material and closure of his account before he applied for an ETD would serve no purpose, as his profile is such that there is a real risk that he had already been targeted before the ETD "pinch point." 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.

 

9.              Insofar as the broader issues that fell to be considered, the cases of BA (Demonstrators in Britain - risk on return) Iran CG [2011] UKUT, SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 36 (IAC) and HB (Kurds) Iran CG [2018] UKUT 430 continue to accurately reflect the situation for returnees to Iran.

10.          I am prepared to accept the joint submission of the parties that despite the FtTJ addressing his mind to the fact the appellant was not an organiser or leader of the demonstrations, having reached a conclusion that the appellant's motivations were insincere, he erred in law by not then embarking upon a sufficiently rigorous assessment of the risk on return that he might nonetheless face as a result of having engaged in that activity, as required by XX.

11.          Having found there was an error of law on this 'lead' ground, it is unnecessary therefore to embark upon a detailed assessment of the credibility findings for the purpose of resolving the further grounds of appeal. Credibility was relevant to both his political activity in Iran and the sincerity of his political activity in the UK. If the appellant's case on the former was to be accepted, that would have a significant impact on the assessment of risk on return, and if his case on the latter was to be accepted, that would alter the landscape in terms of an expectation that he would delete the Facebook account or deny his opinions on questioning, again both having a significant impact on the assessment of risk on return. Given the joint position of the parties on credibility, I will remit the case with no preserved findings.

Notice of Decision

 

The appeal is allowed and the case remitted to the First Tier Tribunal with no preserved factual findings.

 

 

Richard Thomas KC

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

27 ^th February 2025