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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005690
	First-tier Tribunal No: PA/60922/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 17 February 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE LEWIS

 

Between

 

SA

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Ms. Stuart-King,

For the Respondent: Ms. McKenzie (Senior Home Office Presenting Officer)

 

Heard at Field House on 5 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

Background

1.               The appellant appeals against the decision of First-tier Judge Lucas ('the Judge') promulgated on 22 ^nd October 2024 refusing his claim for asylum and humanitarian protection.

2.               The appellant is a citizen of Iran of Kurdish ethnicity. He claims to have been recruited by a friend to distribute leaflets on behalf of the KDPI. He says that his friend was arrested and thereafter the Ettela'at came to his family home to look for him. The appellant fled Iran. Since his arrival in the UK he says that he has been politically active by attending demonstrations and posting articles and other material on Facebook.

3.               The Judge rejected [44] the appellant's claim of political activity in Iran as not plausible or credible. Thereafter the Judge went on to find [56-57] the appellant's sur place activities as 'manufactured to attempt to create a risk that was never there' and found that the 'Iranian authorities would not have any interest in him (the appellant) at all.'

4.               Permission to appeal was granted on 12 ^th December 2024 by First-tier Judge Curtis on two grounds:

(1)     The Judge's assessment of the Appellant's claim (to have been asked to distribute leaflets for the KDPI) as implausible was not properly open to him because it was contrary to background evidence and is insufficiently reasoned; and

(2)     The Judge failed to properly identity the risk attached to the appellant's sur place activities.

Discussion

Ground one

5.               For the appellant, Ms Stuart-King submits that the judge's conclusions on plausibility are not adequately reasoned or rational. The relevant findings are set out below:

...

[43] I place little weight on his recruitment as an alleged supporter for the KDPI. plausible. (sic.) This organization would be naturally suspicious about the involvement of a politically uninvolved person suddenly wanting to work with them with little or no political knowledge of commitment. The reality is that the appellant neither knew not could be expected to know anything about the KDPI. Why his friend would be interested in recruiting this appellant in these circumstances is both implausible and unexplained.'

[44] 'In essence, the appellants (sic.) alleged activities involved two separate occasions when he distributed leaflets late at night with his friend. Even if the KDPI would take the risk of either distributing leaflets at all or recruiting someone with no knowledge of commitment, at its height he was not approached by anyone while doing so and attracted no attention at all. He had no knowledge of that the leaflets contained. This is the extent of his activities and the high point of his claim of imputed political activity in Iran. It is minimal and just does not present as in any way plausible or credible.'

Ms. Stuart-King submits that the judge's finding:

[45] The assertion that his friend was arrested and decided to identify this appellant as opposed to others with such minimal involvement with the KDPI is simply not credible.

is not reasoned, or founded in the evidence. She submits that there is no evidential basis to conclude that only one person was named, and that it would be a legitimate tactic for the appellant's firmed to have named him rather than someone more senior in the organisation. In so far as the judge has reached such conclusions, no reasons are provided reason(s) for his findings.

6.               The respondent submits that the judge's findings were open to him on the evidence and disclose no error.

7.               As to the correct approach to take to the judge's findings In HK v SSHD [2006] EWCA Civ 1037, Neuberger LJ made the following remarks:

27. The difficulty of the fact-finding exercise is particularly acute in asylum cases, as has been said on more than one occasion in this court - see for instance Gheisari -v- Secretary of State [2004] EWCA Civ 1854 at paragraphs 10 and 12 per Sedley LJ and at paragraphs 20 and 21 per Pill LJ. The standard of proof to be applied for the purpose of assessing the appellant's fear of persecution is low. The choice is not normally which of two parties to believe, but whether or not to believe the appellant. Relatively unusually for an English Judge, an Immigration Judge has an almost inquisitorial function, although he has none of the evidence-gathering or other investigatory powers of an inquisitorial Judge. That is a particularly acute problem in cases where the evidence is pretty unsatisfactory in extent, quality and presentation, which is particularly true of asylum cases. That is normally through nobody's fault: it is the nature of the beast.

28. Further, in many asylum cases, some, even most, of the appellant's story may seem inherently unlikely but that does not mean that it is untrue. The ingredients of the story, and the story as a whole, have to be considered against the available country evidence and reliable expert evidence, and other familiar factors, such as consistency with what the appellant has said before, and with other factual evidence (where there is any).

29. Inherent probability, which may be helpful in many domestic cases, can be a dangerous, even a wholly inappropriate, factor to rely on in some asylum cases. Much of the evidence will be referable to societies with customs and circumstances which are very different from those of which the members of the fact-finding tribunal have any (even second-hand) experience. Indeed, it is likely that the country which an asylum-seeker has left will be suffering from the sort of problems and dislocations with which the overwhelming majority of residents of this country will be wholly unfamiliar. The point is well made in Hathaway on Law of Refugee Status (1991) at page 81:

"In assessing the general human rights information, decision-makers must constantly be on guard to avoid implicitly recharacterizing the nature of the risk based on their own perceptions of reasonability."

30. Inherent improbability in the context of asylum cases was discussed at some length by Lord Brodie in Awala -v- Secretary of State [2005] CSOH 73. At paragraph 22, he pointed out that it was "not proper to reject an applicant's account merely on the basis that it is not credible or not plausible. To say that an applicant's account is not credible is to state a conclusion" (emphasis added). At paragraph 24, he said that rejection of a story on grounds of implausibility must be done "on reasonably drawn inferences and not simply on conjecture or speculation". He went on to emphasise, as did Pill LJ in Ghaisari, the entitlement of the fact-finder to rely "on his common sense and his ability, as a practical and informed person, to identify what is or is not plausible". However, he accepted that "there will be cases where actions which may appear implausible if judged by...Scottish standards, might be plausible when considered within the context of the applicant's social and cultural background".

8. In KB & AH (credibility-structured approach : Pakistan) [2017] UKUT 491 (IAC), the Upper Tribunal held that plausibility is a valid indicator of credibility, but requires a certain degree of caution in its approach.

9. I do not find the judge's findings to be sufficiently clear or reasoned. At [43] it is not tolerably clear whether the judge intended to find that practice of distributing leaflets ['leafleting'] on behalf of the KDPI was implausible or simply intended to limit the implausibility finding to the recruitment of the appellant.

(1)     In the event the judge intended to find that leafletting was implausible, this is contrary to background evidence including C ountry Policy and Information Note Iran: Kurds and Kurdish political groups, Version 4.0 May 2022 [§ 2.4.8] which indicates KDPI supporters do distribute leaflets.

(2)     If the judge intended to find that the recruitment of the appellant was implausible, the judge did not develop adequately reasons for finding this implausible given that a purpose of disturbing leaflets is to inform the uninformed about the activities of the KDPI and to gain support.

10. The judge's finding:

[45] The assertion that his friend was arrested and decided to identify this appellant as opposed to other with such minimal involvement with the KDPI is simply not credible.

Is not reasoned or founded in evidence. There was no proper basis from which the judge could properly conclude that other people as well as the appellant were not named. The judge rejects as credible the notion that the appellant's friend may have named the appellant as a means of deflecting attention from than another more senior person in the organisation.

11. It follows that I find the judge's approach to the evidence amounted to a material error of law.

12. In the event that I allowed the appellant's first ground of appeal, the parties agreed that this matter should be remitted to the First-tier Tribunal to a judge other than Judge Lucas and that no findings of fact are preserved

Ground two: The assessment of risk

13.                Having reached conclusions adverse to the appellant, the Judge concluded that the Iranian authorities would not have any interest in the appellant on the basis of his sur place activities. Thereafter, the judge makes no reference to the tests set out in XX (PJAK -sur place activities -Facebook) Iran CG [2022] UKUT 23 (IAC).

At headnote (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.

Then at:

[93].. any assessment of risk caused by social media activity needs to be on a nuanced and fact-sensitive basis, analogous to the nuanced assessment of risk factors in relation to physical sur place activity.

...

[100] Instead, 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 the 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. If the person will refrain from engaging in a particular activity, that may nullify their claim that they would be at risk, unless the reason for their restraint is suppression of a characteristic that they have a right not

14.                In this appeal, the judge found [56] the appellant's account to be not credible and his sur place activities ' manufactured to attempt to create a risk that was not there.'

15.                Despite the judge's finding, as assessment of the risk created by that (non-genuine) social media profile is still required.

16.                It is clear from the decision that judge did not apply his mind to XX (PJAK) considering whether the appellant would delete his Facebook account before return to Iran. The judge did not carry out any proper assessment of the risk created by the appellant by his social media activities. This was a material error of law.

Disposal

17. Section 12 of the Tribunals, Courts and Enforcement Act 2007, gives the Upper Tribunal an unfettered discretion to remit the case to the First-tier Tribunal or to remake the decision in the Upper Tribunal.

18. The UT's discretion pursuant to section 12 is the subject of Practice Directions and Practice Statements of the Immigration and Asylum Chambers of the FtT and the UT, which explain how the UT will normally exercise the discretion conferred by section 12 (2 ).

19. Paragraph 7 of the current Practice Statements provides:

Disposal of appeals in Upper Tribunal 

7.1 Where under section 12(1) of the 2007 Act (proceedings on appeal to the Upper Tribunal) the Upper Tribunal finds that the making of the decision concerned involved the making of an error on a point of law, the Upper Tribunal may set aside the decision and, if it does so, must either remit the case to the First-tier Tribunal under section 12(2)(b)(i) or proceed (in accordance with relevant Practice Directions) to re-make the decision under section 12(2)(b)(ii). 

7.2 The Upper Tribunal is likely on each such occasion to proceed to re-make the decision, instead of remitting the case to the First-tier Tribunal, unless the Upper Tribunal is satisfied that:- 

(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or 

(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal. 

7.3 Remaking rather than remitting will nevertheless constitute the normal approach to determining appeals where an error of law is found, even if some further fact finding is necessary.

20. The purpose of the Practice statements is to provide guidance and not more, per Stuart-Smith LJ [§11], AEB and Secretary of State for Home Department [2022] EWCA Civ 1512.

21. I am not bound by the agreement of the parties and must ultimately consider whether or not the decision of the judge deprived the appellant of a fair hearing. Having regard to the broad and unreasoned findings of the Judge I am of that opinion.

Notice of Decision

1.        The decision of Judge Lucas dated 22 ^nd October 2024 contained a material error of law and is set aside.

2.        This matter is remitted to the First-tier Tribunal de novo before a judge other than Judge Lucas.

 

Paul Lewis

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

10 ^th February 2025