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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-000374
	First-tier Tribunal Nos: PA/51336/2023 IA/00496/2023

 

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 20 March 2025

 

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

 

Between

 

BS

(ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr S Winter, Counsel, instructed by Latta & Co Solicitors

For the Respondent: Ms H Gilmour, Senior Home Office Presenting Officer

 

Heard at Field House on 26 February 2025

 

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, [the appellant] ( and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) 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 ( and/or other person). Failure to comply with this order could amount to a contempt of court .

DECISION AND REASONS

1.               The Appellant is a national of Iran, of Kurdish ethnicity, born on 12 December 1986. He left Iran in September 2015 and arrived in the UK on 31 March 2016 where he claimed asylum. This application, which was based on his fear of an honour killing in Iran, was refused in a decision dated 24 April 2019. The Appellant appealed against this decision and his appeal came before First-tier Tribunal Judge Conway for hearing on 3 December 2020, by which time the Appellant also raised a refugee sur place argument in relation to political activities in the UK. In a decision and reasons dated 3 December 2020 the appeal was dismissed on all grounds and the Appellant subsequently became appeal rights exhausted.

2.               The Appellant then made submissions in respect of a fresh claim which was subsequently refused by the Home Office with the right of appeal, which the Appellant exercised. His appeal came before a First-tier Tribunal Judge for hearing on 18 October 2023 in Glasgow when the Appellant gave evidence, which was rejected by the judge in a decision and reasons dated 25 October 2023.

3.               The Appellant sought permission to appeal to the Upper Tribunal on the basis that:

                                         (i)          the judge had erred in law in failing to properly consider the evidence before him, in particular, in relation to the Appellant's political activities in the United Kingdom, both in terms of protests and also in terms of his social media activity on facebook; and

                                      (ii)           the judge erred in failing to consider the risk on return with regard to the pinch point, i.e. the point at which the Appellant is returned to Iran and would be interviewed by the Iranian authority: cf HB (Kurds) Iran CG [2018] UKUT 430 and failed to consider the background evidence as to the monitoring of demonstrations outside the Iranian Embassy in London.

4.               Permission to appeal was granted on 5 August 2024 by Upper Tribunal Judge Rimington in the following terms:

"All grounds are arguable. The applicant left Iran illegally and there may be an arguable error owing to a lack of engagement with the 'pinchpoint' issue and the country guidance thereon, (notwithstanding the appellant's genuine beliefs) such that the applicant may be questioned on return to Iran (or indeed prior to that point)".

Hearing

5.               At the hearing Ms Gilmour, on behalf of the SSHD, indicated there was no Rule 24 response but she was opposing the application.

6.               Mr Winter, on behalf of the Appellant, adopted his grounds of appeal at pages 18 to 20 of the consolidated bundle. He submitted that although the judge referred to the country guidance cases there was no recognition by him that the Appellant could be questioned on return and was likely to be asked about his activities in the United Kingdom and could not be expected to lie following the HJ (Iran) [2010] UKSC 31 principle as set out in RT (Zimbabwe) [2010] EWCA Civ 1285. He submitted that the judge failed to make a clear finding as to whether or not the Appellant's activities were done in good or bad faith.

7.               In relation to the Appellant's social media postings Mr Winter submitted the judge at [37] and [38] had fallen into error. The Appellant's evidence was that it was a public account; that he had more than 2,000 Facebook friends and produced a download [page 760 of the consolidated bundle]. He submitted that there was real and substantial doubt as to how this evidence was assessed in light of the country guidance decision in XX (PJAK) [2022] UKUT 23 given that there the Tribunal took the view that the fact that Appellant had 2,500 friends was sufficient for him to have been brought to the attention of the authorities, therefore had the First-tier Tribunal judge properly considered this evidence he may have reached a different view as to risk.

8.               Mr Winter further submitted if the Appellant's activities had been made in good faith it would not be proper to expect him to close his Facebook account in order to conceal his activities and avoid the risk of persecution and that this would run contrary to the HJ (Iran) principle. Mr Winter further submitted that even if his activities were done in bad faith XX (PJAK) ( op cit) appeared to indicate that motivation is irrelevant and that the assessment is whether the Appellant would be at real risk on return as a result.

9.               In her submissions, Ms Gilmour submitted that the decision and reasons should be read as a whole, that Devaseelan [2002] UKIAT 00702 applied due to the previous findings of Judge Conway which go to the Appellant's credibility. While she acknowledged that the previous decision was the starting point, in this particular case there was insufficient difference between the previous and current appeals. She sought to rely on [57] of the previous decision of Judge Conway at page 423 of the consolidated digital bundle where he found that the Appellant's sur place activities were an opportunistic attempt to fabricate a claim. Ms Gilmour acknowledged that this decision predated XX (PJAK) ( op cit) however it was clear that the current judge kept that country guidance decision in mind throughout this decision and reasons. She submitted the judge was aware of the tests that were required of them.

10.           At [35] the judge accepted the Appellant had attended demonstrations but that he was one of a very large crowd of people over a period of time ending in October 2022 and that finding needed to be looked at, not in isolation, but holistically. Consequently, she submitted there were no errors of law in the decision and reasons of the First-tier Tribunal Judge who had assessed all the evidence in light of the relevant country guidance decisions which had changed since the previous decision of the First-tier Tribunal.

11.           In relation to the illegal exit interview Ms Gilmour submitted that the judge was clearly aware of the case law viz SSH (Iran) [2016] UKUT 308 and HB (Iran) [2018] UKUT 430 and the principles of these were clearly applied at [40]. Ms Gilmour also noted that there is a more recent Court of Appeal case: S v Secretary of State for the Home Department [2024] EWCA Civ 1482 where at [33] the Court considered the issue of pinch points in Iranian appeals and at what point it was engaged and endorsed the HB line of authority in finding that being a failed asylum seeker alone was not sufficient to show that an Appellant would be at risk of persecution on return. The determinative question was what the Appellant would be expected to say to the Iranian authorities. Ms Gilmour submitted that given it was not accepted that the Appellant would have been subject to monitoring in the UK that this is inapplicable and the Appellant here is simply a failed asylum seeker returning to Iran. Consequently there were no material errors of law.

12.           In relation to the facebook evidence, Ms Gilmour submitted that this was minimal and insignificant in terms of the consideration of the decision as a whole. The fact that the Appellant's profile may be public was not in and of itself sufficient, see XX (PJAK) ( op cit). The Appellant had already been found not to be credible and this was an attempt to bolster his asylum claim. She sought to rely on headnote 2 of XX (PJAK) which provides:

" 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. In the case of such a person, this would mean that any additional risks that have arisen by creating a Facebook account containing material critical of, or otherwise inimical to, the Iranian authorities would not be mitigated by the closure of that account, as there is a real risk that the person would already have been the subject of targeted on-line surveillance, which is likely to have made the material known".

Ms Gilmour submitted the Appellant had been found not to be of adverse interest to the authorities.

13.           In reply, Mr Winter submitted that [40] of the First-tier Tribunal decision contains the first error. If the Appellant left illegally there is no recognition that he would face questioning at all on return and the judge simply does not engage with this important point. Even putting aside social media activity Mr Winter submitted that the Appellant is someone who claimed asylum in the UK and would be reasonably likely to be asked about his activities in this country given that there are anti-Iranian government demonstrations and this is a material lacuna in the decision of the First-tier Tribunal.

14.           In terms of the credibility findings the judge made reference to those at [22] to [27], however this was problematic in that the judge either approached these matters on the basis that they were carried out in good faith but there was a lacuna as there was no consideration of the impact of credibility findings on the Appellant's sur place activity and only one reference at [32] where the Tribunal say that the Appellant lacked credibility in relation to his previous claim. Mr Winter submitted that at the very least this was unclear and this was material for the reasons already outlined.

15.           Mr Winter relied on XX (PJAK) ( op cit) which postdates the previous decision and is clearly relevant and submitted there were flaws in the way the First-tier Tribunal approached the social media evidence given that if an Appellant's social media activities are identified then this will cause them to be at risk of persecution. He submitted that the evidence the Appellant has 2,000 friends is material and it was not inevitable that another judge would refuse the case. He did not read headnote 2 of XX (PJAK) as saying that a person had to be of significant interest in order to be at risk on return.

16.           I reserved my decision which I now give with my reasons.

Decision and reasons

17.           Despite Ms Gilmour's valiant attempts to defend the decision and reasons of the FtTJ I find that the grounds of appeal do raise material errors of law.

18.           As Mr Winter submitted, the judge failed to make a clear finding as to whether or not the Appellant's activities were done in good or bad faith albeit at [30] and [35] he accepted that the Appellant attended demonstrations in Glasgow and London including at the Iranian Embassy. At [31] the judge noted the Appellant could be seen wearing a high visibility vest which he claimed identified him as a steward, but this claim was rejected by the judge given that he did not state as such in his statements only during questioning during the hearing and in light of the previous adverse credibility findings. This finding is, to my mind, unsafe given that the judge has failed to ask himself the obvious question, which is why the Appellant was wearing a hi-visibility vest if he was simply a participant at the demonstration. Whilst it is possible, albeit surely unlikely, to find that he was acting in bad faith in so doing given the Appellant's attendance at a number of demonstrations against the Iranian regime over a period of time, no finding was made on this point.

19.           Ms Gilmour pointed out that in the previous decision of Judge Conway at [57] he found that the Appellant's sur place activities were an opportunistic attempt to fabricate a claim. Given that the Appellant claimed and the judge accepted that he continued to attend demonstrations, I find it was incumbent upon the judge to make a finding on whether these activities were conducted in good or bad faith and the effect of this finding on the risk assessment as a whole.

20.           I also find the judge's rejection of the Appellant's evidence at [32]-[33] that people inside the Embassy were filming at the demonstrations and to only give " very minimal weight to such an assertion" to be unsustainable in light of the evidence set out as long ago as in the CG decision of BA (Demonstrators in Britain - risk on return) Iran CG [2011] UKUT 36 (IAC) that there was evidence of Iranian Embassy officials filming demonstrators from the Embassy. Indeed the judge acknowledges at [34] that the CPIN before him indicated overseas monitoring of regime critics and targets abroad and that it sends people as agents to other countries, but found that it was "unclear" as to the extent that the Iranian authorities monitor demonstrations. Even if, as the judge found, the Appellant was one of a very large crowd of people at demonstrations I find that this does not eliminate the risk to him of identification.

21.           As to the Appellant's online activity through facebook the judge found at [37]-[38] that the evidence lacked the sort of detailed examination of his account that might indicate his online activity had come to the attention of the Iranian regime. However, as Mr Winter submitted, at least some of this evidence was available in the form of a download from the Appellant's facebook account and was contained in the bundle, contrary to the judge's assertion.

22.           Mr Winter further drew attention to the Appellant's evidence which is that he had over 2500 facebook friends or contacts and sought to rely upon [83] of XX PJAK ( op cit) which provides:

" At one extreme, a person who posts regularly on Facebook, but with few "friends" or followers on Facebook; or even if they have garnered many "friends", but with few "likes" in relation to their comments, and few other interactions, may have attracted little or no publicity at all. At the other extreme, a person with many friends or followers on Facebook, who has attracted many comments and much discussion, and whose activities reflect their prominence and activities in the real world, may attract great publicity. A person's publicity may also be relevant to whether there is a real risk of them being monitored by a state..."

23.           Whilst the judge refers to the CG decision in XX PJAK ( op cit) at [38] in support of his finding that it is not reasonably likely that the Iranian authorities would be able to monitor on a large scale facebook accounts and at [39] that a timely closure of his account would neutralise any risk to the Appellant, in light of the judge's failure to take account of material considerations i.e. the evidence that he had a large number of facebook friends or contacts, I find that his findings as to the potential effect of this evidence is unsustainable.

24.           For the reasons above I find the judge made material errors of law in his decision and reasons.

Notice of Decision

25.           The decision and reasons of the First tier Tribunal Judge contains material errors of law. That decision is set aside and the appeal is remitted for a hearing de novo before a different First tier Tribunal Judge.

 

Rebecca Chapman

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

14 March 2025