OM v Secretary of State: Opportunistic Sur Place Activity, Kurdish “Hair‑Trigger” Risk and Fact‑Sensitive Risk Assessment on Return to Iran

1. Introduction

The Court of Appeal’s decision in OM v Secretary of State for the Home Department ([2025] EWCA Civ 1585) sits at the intersection of three now‑familiar strands of Iranian asylum jurisprudence:

• The special (“hair‑trigger”) sensitivity of the Iranian authorities to perceived Kurdish political activity, as recognised in HB (Kurds) Iran CG [2018] UKUT 430 (IAC);
• The treatment of sur place political activity (particularly demonstrations and Facebook posts) in light of XX (PJAK – sur place activities – Facebook) Iran CG [2022] UKUT 23 (IAC); and
• The approach to disingenuous or opportunistic political activism abroad, as addressed in S v SSHD [2024] EWCA Civ 1482 and FA (Iran) v SSHD [2024] EWCA 149.

OM, a Kurdish Iranian, claimed asylum in the UK on the basis of alleged political activity for the Komala party in Iran, later supplemented by sur place activism in Britain: attendance at anti‑regime demonstrations and critical posts on Facebook. The First‑tier Tribunal (“FtT”) found his account of in‑country political activity not credible and concluded that his UK activities were contrived solely to bolster his asylum claim and had not come to the attention of the Iranian authorities.

The appeal to the Court of Appeal focused chiefly on whether the FtT (and the Upper Tribunal (“UT”)) had failed properly to apply the authoritative “hair‑trigger” guidance concerning Kurds in HB, and whether they had erred in not explicitly addressing what OM would be expected to tell the Iranian authorities when questioned on return, even though his activities were disingenuous.

The Court of Appeal dismissed the appeal, confirming that:

• a tribunal does not err in law simply because it fails to cite specific paragraphs of country guidance, provided it applies the substance of that guidance; and
• where sur place political activities are found to be wholly opportunistic, of low visibility, and unknown to the Iranian authorities, it can be legitimately inferred that the individual will close their Facebook account and will not volunteer those contrived activities when questioned on return, so that the “hair‑trigger” risk is never in fact engaged.

In doing so, the Court consolidates and clarifies the emerging line of authority on how to deal with disingenuous sur place activities in Iranian Kurdish cases, and it underscores the highly fact‑sensitive nature of the risk assessment.

2. Factual and Procedural Background

2.1 The appellant and his claim

OM is a Kurdish national of Iran. He left Iran illegally without an exit permit in September 2020 and claimed asylum in the UK on arrival in November 2020 ([3]). His original claim was that he had been involved with the Kurdish political group Komala in Iran and that his departure was motivated by fear of persecution for that activity.

Later, he expanded his case to rely on sur place activities in the UK ([4]):

• attending 17 demonstrations between December 2020 and November 2023 protesting against the Iranian government; and
• publishing Facebook posts and images of those demonstrations.

The Secretary of State accepted that OM is Kurdish and left Iran illegally ([5]) but rejected:

• his claim to have been involved with Komala in Iran; and
• that he had been a genuine political activist either in Iran or in the UK.

His protection claim was refused on 22 August 2023 ([5]).

2.2 The First‑tier Tribunal’s key factual findings

FtT Judge Power dismissed the appeal on 1 May 2024 ([6]). The critical findings ([7]) included:

1. OM’s account of political activity in Iran and the reasons for his departure was unreliable.
2. The FtT could not be satisfied that he had worked for Komala or been on probation for membership, nor that he had left Iran due to pro‑Kurdish activities.
3. He had attended 17 UK demonstrations against the Iranian government between December 2020 and November 2023.
4. There was no evidence that:
   • his attendance had come to the attention of Iranian authorities;
   • he had any role beyond briefly attending to obtain photographs; or
   • his presence at demonstrations had attracted publicity.
5. There were screenshots of Facebook posts relating to demonstrations between December 2020 and November 2023.
6. The evidence did not show that he was actively engaging on social media, or that the posts remained public beyond being screenshotted, or that they were widely viewed or shared.
7. There was no evidence that his Facebook account was under surveillance or of significant interest to Iranian authorities, or that it had come to their attention at all.
8. He had not attended any demonstrations or posted on Facebook since November 2023.
9. The FtT was not satisfied he was genuinely politically motivated or would wish to protest upon return to Iran.
10. The Facebook images and sur place activity were found to be contrived to bolster his asylum claim, not an expression of genuine political opinion adverse to the regime.

Judge Power expressly engaged with the country guidance in XX and HB ([8]), but concluded ([36], [12]):

• OM’s sur place activities had not come to the attention of the Iranian authorities;
• there was no evidence of any other risk factors (beyond Kurdish ethnicity) that would place him at real risk of persecution or Article 3 ill‑treatment; and
• his account as a whole was not credible, so he did not have a well‑founded fear of persecution, serious harm or Article 3 ill‑treatment ([14]).

2.3 Upper Tribunal proceedings

OM appealed to the UT on four grounds; permission was granted but the appeal was dismissed on all grounds ([15], [18]). The only ground relevant to the Court of Appeal was that the FtT had failed to assess risk “having regard to the hair‑trigger approach that might be elicited by the Iranian authorities from the [appellant’s] sur place activities” ([15]).

In essence, OM argued ([16]–[17]):

• He could not be expected to lie to Iranian authorities about his activities in the UK.
• Therefore, when he was questioned on return, he would have to disclose his sur place attendance at demonstrations and online posts.
• Given the HB “hair‑trigger” guidance ([17]), this disclosure would put him at real risk, regardless of whether his activities were genuinely motivated or contrived.

The UT (Judge Hoffman) held that although Judge Power had not quoted paragraph 10 (“hair‑trigger”) of the HB headnote, she plainly knew of the guidance and had applied the substance of it ([19]–[20]). The UT considered there was no material error of law and dismissed the appeal.

2.4 Appeal to the Court of Appeal

Before the Court of Appeal, OM sharpened his arguments ([21]–[26]):

1. Hair‑trigger misapplied / not applied: The FtT and UT had failed properly to apply the “hair‑trigger” Kurdish guidance in HB, wrongly focusing on whether the Iranian authorities presently knew of his activities rather than on how they would react when those activities were disclosed on return.
2. Truthful disclosure on return: OM would be questioned on return (especially as a Kurd returning after an illegal exit). He could not be expected to lie about his sur place activities. The central question was therefore how Iranian authorities, with a hair‑trigger approach, would react to truthful disclosure of even “low level” activities.
3. Motives irrelevant from the Iranian perspective: Relying on BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36, he argued that the authorities would not be concerned with his subjective motive (genuine belief vs opportunism) and would see him simply as a participant in anti‑regime activity ([23]).
4. Two issues requiring remittal:
   • whether, on the findings, it was reasonably likely he would disclose his UK activities when questioned; and
   • whether, even without voluntary disclosure, the mere fact that he had attended 17 demonstrations created a real risk in light of Kurdish ethnicity, duration abroad, and the intensity of questioning on return ([25]–[26]).

The Secretary of State contended that this was simply an attempt to re‑litigate the merits ([27]–[29]), emphasised the FtT’s adverse credibility findings, and relied heavily on the strikingly similar case of S v SSHD ([30]).

3. Summary of the Judgment

The Court of Appeal (with Lord Justice Singh and Lord Justice Newey agreeing: [59]–[60]) dismissed OM’s appeal. In essence:

1. No material error in omitting explicit reference to “hair‑trigger” paragraph: It was not necessary for the FtT to cite every paragraph of HB; the “hair‑trigger” approach was not in dispute as a legal proposition, and the real issue was whether the authorities knew, or would come to know, of OM’s activities ([31]–[35]).
2. Central question is knowledge, not abstract reaction: Because it was common ground that if Iranian authorities discovered sur place Kurdish political activity they would react harshly, the FtT quite properly focused on the anterior question of whether the activities were, or were likely to be, discovered ([34]–[35]).
3. Dealing with Facebook and demonstrations under XX: Applying XX, the Court accepted the FtT’s findings that:
   • there was no evidence OM’s Facebook account had been surveilled or remained public;
   • his posts were opportunistic and not genuinely political;
   • it was logical to conclude he would close the account before seeking travel documents, thereby neutralising any social media risk ([48]).
4. Pinch points and questioning on return: The Court held that, on the FtT’s findings:
   • OM would be questioned on return because of illegal exit and Kurdish ethnicity ([47], [52]–[53]);
   • but the only way he would trigger further (second‑stage) interrogation would be if he volunteered his sur place activities;
   • given the finding that his activities were wholly contrived, it was open to the FtT (and proper for the appellate courts) to infer he would not volunteer them ([52]–[55]).
5. Alignment with S v SSHD and distinction from FA (Iran): FA was a case where the FtT’s reasoning was incoherent and the risk analysis incomplete, justifying remittal ([49]). In contrast, OM’s case was materially indistinguishable from S, where it was held the appellant would close his Facebook account and not be expected to volunteer disingenuous activities contrived for a false asylum claim ([50]–[51], [55]).
6. Ultimate conclusion: The FtT did not commit any material error of law. OM did not have a well‑founded fear of persecution or Article 3 ill‑treatment; the appeal was dismissed ([56]–[58]).

4. Precedents and Country Guidance Considered

4.1 HB (Kurds) Iran CG [2018] UKUT 430 (IAC)

HB is the foundational country guidance on Kurdish returnees to Iran. Two aspects are central:

• Wide range of perceived political activities: paragraph 8 of the headnote makes clear that a broad spectrum of conduct can be perceived by the authorities as political in nature. In OM’s case, this was uncontroversial: demonstrations and anti‑regime social media posts are plainly political ([32]).
• “Hair‑trigger” approach: paragraph 10, quoted in OM at [17], states:

  “The Iranian authorities demonstrate what could be described as a ‘hair‑trigger’ approach to those suspected of or perceived to be involved in Kurdish political activities or support for Kurdish rights. By ‘hair‑trigger’ it means that the threshold for suspicion is low and the reaction of the authorities is reasonably likely to be extreme.”

In OM the substance of this guidance was common ground: if the authorities came to suspect him of Kurdish political activity, even “low level”, he would face a serious risk. The dispute lay in whether the FtT was obliged to:

• explicitly cite paragraph 10; and
• build an analysis around the hair‑trigger principle, even though the FtT had found that the authorities did not know and were unlikely to find out about his activities.

The Court held that the FtT was entitled to focus on the preliminary question of whether the hair‑trigger would even be engaged, and its failure explicitly to recite paragraph 10 did not amount to an error of law ([31]–[35]).

4.2 XX (PJAK – sur place activities – Facebook) Iran CG [2022] UKUT 23 (IAC)

XX is crucial for social media risk analysis. It preserves earlier guidance (BA, SSH and HR, HB) but adds detailed guidance on:

• “Pinch points”: key moments when Iranian authorities are likely to run checks:
  • when a person applies for an emergency travel document from an Iranian embassy or mission; and
  • upon return at the airport ([39], [46]–[47]).
• Facebook risk mitigation: timely closure of a Facebook account can neutralise risk from critical posts, provided the account was not being specifically monitored before closure ([46], [48]).

OM’s case largely turned on the application of XX. The FtT found (and the Court accepted) that:

• OM’s posts had not attracted attention or surveillance; and
• it was reasonable to infer he would close his Facebook account before applying for travel documents, especially as his posts were found to be deployed only to support his asylum narrative ([48]).

4.3 BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36

BA deals with risk arising from Iranian nationals’ participation in demonstrations in Britain. Its core message, invoked by OM ([23]), is that:

• the Iranian authorities are interested in what a person appears to have done (their perceived profile), not in the motivation behind those acts;
• thus, in principle, opportunistic demonstrators may face no lesser risk than genuine political activists, from the regime’s perspective.

However, BA sits alongside the more recent social media and Kurdish guidance. Its relevance in OM is limited by the FtT’s factual findings: the demonstrations had not attracted publicity or the attention of the Iranian regime. The issue thus became whether those activities would in fact come to be known on return, not whether, in the abstract, motivation matters (the Court did not dispute BA on this point).

4.4 SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 308 (IAC)

SSH and HR remains the key authority on risk arising from a combination of:

• illegal exit from Iran; and
• status as a failed asylum seeker.

It holds that ([42]–[44]):

• returnees who left illegally and return on a laissez passer are likely to be questioned; but
• a failed asylum seeker with no adverse profile beyond illegal exit does not face a real risk of ill‑treatment simply during that questioning;
• questioning may escalate to detention and ill‑treatment only if concerns arise relating to past activities in Iran or abroad.

Being Kurdish is an exacerbating factor if there are other reasons to suspect political activity, but being Kurdish plus undocumented is not, by itself, enough to create Article 3 risk ([45]).

OM’s case fits squarely within this framework: he is Kurdish and left illegally, so questioning is likely; but the FtT found that there was no known political profile, and no reason for second‑stage interrogation unless he volunteered his sur place activities ([52]–[53]).

4.5 S v SSHD [2024] EWCA Civ 1482

S is a directly analogous case, also involving a Kurdish Iranian whose sur place activities were found to be:

• contrived to bolster a false asylum claim; and
• not driven by genuine political conviction.

In S, the UT (and the Court of Appeal upholding it) reasoned that:

• the appellant would be expected to close his Facebook account before applying for a laissez passer; and
• he would not be expected to volunteer contrived activities, undertaken to deceive the UK authorities, when questioned by Iranian officials, particularly where those activities did not reflect genuine political beliefs ([50]–[51]).

The Court in OM saw the two cases as “on all fours” in terms of the essentials of the risk assessment ([30], [55]). OM’s case thus fortifies the approach taken in S:

• tribunals may draw reasonable inferences about what a person is likely to do or say on return based on findings about their credibility and the opportunistic nature of their sur place activism.

4.6 FA (Iran) v SSHD [2024] EWCA 149

FA is relied on by OM but ultimately distinguished. In FA, the FtT’s reasoning was severely criticised as:

• incoherent; and
• failing to grapple with how Facebook activity and demonstrations would affect risk on return.

The Court of Appeal in FA remitted the case because the necessary risk analysis had simply not been done ([49]): there was, for example, no clear reasoning explaining why Facebook posts did not pose a risk.

By contrast, in OM:

• the FtT made clear, structured findings on the nature, visibility and impact of OM’s sur place activities;
• it addressed the Facebook evidence in line with XX and explained why it did not accept OM’s claim that he would not delete his account ([48]); and
• although the FtT and UT did not spell out every step in relation to questioning on return, the Court held that the missing step could legitimately be inferred from the “unassailable findings of fact” ([52], [54]).

OM thus marks the boundary between a case where remittal is necessary (FA) and a case where the appellate courts can properly infer the answer to the central risk questions from the FtT’s findings (S, OM).

5. The Court’s Legal Reasoning

5.1 The “hair‑trigger” approach and its limits in this case

The “hair‑trigger” Kurdish guidance from HB was at the core of OM’s argument. He contended that the FtT’s failure expressly to refer to it – specifically headnote paragraph 10 – was an error of law, and that a correct application of this guidance would necessarily have led to a finding of risk ([21]–[23], [31]–[35]).

The Court of Appeal reasoned as follows:

1. The content of the hair‑trigger guidance was not in dispute. Both parties, and the FtT, proceeded on the basis that the Iranian authorities have a low threshold for suspicion in relation to Kurdish political activity and that, once suspicion arises, their reaction is likely to be extreme ([17], [33]–[34]).
2. The real issue was not “how would the authorities react?” but “will they even become suspicious?”. The Secretary of State’s decision letter accepted that if OM were identified as having engaged in political activity against the regime, he would be at risk. The dispute was confined to whether:
   • the authorities currently knew of his activities (they did not, on the FtT’s findings); or
   • they would be likely to find out in future (including at the pinch points of ETD application and return) ([34]).
3. Country guidance need not be mechanically quoted. What matters is application, not citation. Judge Power had plainly referred to and applied HB, including the susceptibility of Kurdish activists to harsh treatment ([8], [11], [19]). The absence of an express reference to paragraph 10, when the reaction of the authorities was not in dispute, did not amount to a material error of law ([35]).

In other words, OM confirms that the “hair‑trigger” principle is a second‑stage tool: once suspicion is engaged, even minor Kurdish political activity may lead to serious harm. However, tribunals are entitled – and required – to address the logically prior question: whether there is a realistic prospect that suspicion will be engaged at all on the facts of a particular case.

5.2 The fact‑sensitive question: will the Iranian authorities know about the sur place activities?

The Court identifies the “central issue” as whether OM’s sur place activities were known to the Iranian authorities or would become known upon his return ([36]–[38]). This is described as an “acutely fact‑sensitive” question, illuminated by recent decisions in S and FA.

Working from the FtT’s findings (which the Court accepted as “unassailable”: [38], [52]), the risk assessment proceeded on the basis that:

• OM had not undertaken political activity in Iran ([7(i)–(ii)]);
• his attendance at demonstrations and Facebook postings in the UK were:
  • genuinely contrived to support an asylum claim; and
  • low visibility (no leadership role, brief attendances merely to secure photographs);
• there was no evidence that:
  • Iranian authorities had monitored his Facebook account;
  • his posts had remained public; or
  • his activities had come to the attention of the regime ([7(iv)–(vii)], [48]);
• OM ceased such activities in November 2023 ([7(viii)]); and
• he lacked genuine political motivation and would not wish to protest on return ([7(ix)], [13]).

From this factual foundation, the Court held that:

• OM was a person with “no history other than [being] an asylum seeker who had exited illegally” – the profile identified in SSH and HR as not generally at real risk, absent additional adverse factors ([42]–[44]).
• The only realistic path to heightened suspicion (and thus to the hair‑trigger response) lay in what OM would say in response to questioning at the airport ([53]).

5.3 Inferences about future conduct: deletion of Facebook and non‑disclosure on return

The appellant’s challenge placed great weight on the proposition that he could not be expected to lie to the Iranian authorities about his sur place activities ([16]–[17], [25]).

The Court’s response is nuanced:

1. Facebook account: On the FtT’s findings, OM’s Facebook activity:
   • was not an expression of genuine belief; and
   • was designed to manufacture evidence for an asylum claim.
   It followed that it was entirely logical to conclude he would delete the account before seeking travel documents ([48]). This would neutralise the risk at the first pinch point identified in XX (ETD application).
2. What will he say at the airport? The Court accepted that neither the FtT nor UT articulated in explicit terms what OM would say when questioned at the airport ([52], [54]). However, reading the decision as a whole, and in light of the FtT’s factual findings, it held that the answer was inevitable:
   • OM’s sur place activities were not grounded in genuine conviction but were contrived to deceive the UK authorities;
   • he had ceased such activity by late 2023 and lacked any genuine intention to continue protesting in Iran;
   • there was therefore “no reason to suppose” that he would volunteer the fact of those contrived activities when questioned on return ([54]).
   This aligns the case with S, where the Court accepted the UT’s view that the appellant would not be expected to volunteer disingenuous activities designed to further a false asylum claim ([51], [55]).

Importantly, the Court is not endorsing an expectation that returnees lie to the Iranian authorities. Rather, it is:

• drawing a factual inference about what this particular appellant, on the FtT’s findings, was reasonably likely to do; and
• rejecting the notion that the refugee law analysis must proceed on the artificial assumption that he will voluntarily incriminate himself by disclosing opportunistic acts which do not reflect any genuine belief and which he has no intention of repeating.

In other words, when assessing real risk on return, tribunals are permitted to reason realistically about human behaviour in light of credibility findings, rather than being constrained by a formalistic presumption that all returnees will proactively confess every prior act capable of attracting adverse attention.

5.4 Application of XX: social media and pinch points

The Court carefully tracks the XX framework ([39]–[47]) and applies it to OM’s case:

• First pinch point – ETD application:
  • In line with XX, Iranian embassies may check an applicant’s online profile when issuing an emergency travel document.
  • However, closure of a Facebook account before the ETD application will normally neutralise such risk, unless the account had already been subject to targeted surveillance.
  • The FtT found no evidence of surveillance and inferred OM would close his account. The Court held this was a logical and permissible inference ([46]–[48]).
• Second pinch point – arrival in Iran:
  • Pursuant to SSH and HR and XX, OM is likely to be questioned about his time abroad, especially given his illegal exit and use of a laissez passer ([42], [47], [52]–[53]).
  • Second‑stage interrogation and risk of ill‑treatment arises only if something “of concern” emerges in that initial questioning ([42]–[43], [53]).
  • On the FtT’s findings, “concern” would arise only if OM actively disclosed his contrived sur place activities. Since it was reasonable to infer that he would not do so, the risk of progression to serious harm was not established ([53]–[55]).

5.5 Comparison with S and FA: drawing the line for appellate intervention

The Court positions OM squarely alongside S and opposite to FA:

• In FA, the FtT had not properly reasoned through the Facebook and demonstration evidence in line with XX, leading to a remittal because the central risk questions were unanswered ([49]).
• In S and now in OM:
  • the FtT made coherent, specific findings on the nature and visibility of sur place activities;
  • those findings pointed logically to closure of Facebook accounts and non‑disclosure of contrived activities on return; and
  • the appellate courts were entitled to uphold the FtT’s decision (and/or to infer missing steps) without remittal.

OM thus strengthens the message that:

• appeals framed as “failure to apply country guidance” will fail where, read fairly and in context, the FtT has grappled substantively with the guidance, even if every paragraph is not cited verbatim; and
• where the FtT’s factual findings point inexorably to a particular answer on risk (especially at XX pinch points), the appellate courts will be slow to intervene.

6. Complex Concepts Explained

6.1 Sur place political activity

“Sur place” refers to events or activities that occur after an asylum seeker has left their country of origin. A person may have had no political profile in Iran but later engage in:

• demonstrations abroad;
• online criticism of their home government; or
• membership of exile organisations.

The refugee assessment must consider whether these later activities create a real risk of persecution if the person is returned. Crucially, sur place claims include both:

• genuine activism reflecting sincerely held beliefs; and
• opportunistic/disingenuous activism carried out primarily to obtain evidence for an asylum claim.

The Geneva Convention does not exclude protection simply because the activity was contrived, but tribunals are entitled to treat motive and genuineness as relevant in predicting future conduct and how a person is likely to behave if returned.

6.2 Country guidance (“CG”) cases

In UK asylum law, certain tribunal decisions, designated as country guidance, set out authoritative findings on the general conditions in a given country, usually after extensive expert and factual evidence. Examples here are:

• BA (Iran);
• SSH and HR (Iran);
• HB (Kurds) Iran;
• XX (PJAK – Facebook) Iran.

Lower tribunals are expected to follow CG decisions unless there is good reason, supported by evidence, to depart from them. OM confirms that:

• applying country guidance does not require explicit quotation of every relevant paragraph;
• what matters is whether the tribunal has substantively followed the guidance in its reasoning.

6.3 The “hair‑trigger” approach

The “hair‑trigger” label (from HB headnote paragraph 10) describes the Iranian authorities’ attitude toward Kurdish political activity:

• the threshold for suspicion is low; even modest or perceived Kurdish activism may arouse concern; and
• the reaction is likely to be severe, potentially involving detention, ill‑treatment or worse.

That principle is generally protective of Kurdish appellants: once an Iranian Kurd is suspected of political activity, the risk of persecution is often high. OM clarifies that this does not relieve a tribunal of examining the preliminary question:

• will the authorities actually become aware of, or suspect, the appellant’s activities on the evidence?

6.4 “Pinch points”

“Pinch points” is a term introduced in XX to denote key moments when an Iranian returnee is at particular risk of the authorities discovering their political profile, including online activity:

1. Before return – ETD application: when a person applies for an emergency travel document or engages with an Iranian consulate, the authorities may check their social media presence.
2. On return – airport questioning: returnees (especially those who left illegally or return on a laissez passer) are likely to be questioned about their time abroad.

Risk assessment must consider what is likely to happen at each pinch point, including:

• whether social media accounts will still be active and visible; and
• what the person is reasonably likely to say about their activities.

6.5 “Material error of law” and appellate review

The Court of Appeal’s role in asylum appeals is not to re‑try the case. It asks whether the lower tribunal made a material error of law. An error is:

• legal if the tribunal misdirected itself in law, failed to follow binding authority, ignored relevant evidence, or gave inadequate reasons; and
• material if it might have made a difference to the outcome; trivial or technical errors do not suffice.

In OM, the Court concluded that:

• even if the FtT did not explicitly articulate every chain of reasoning (e.g. about airport questioning), the missing steps could legitimately be inferred from its findings;
• there was therefore no material error of law in failing to recite the “hair‑trigger” paragraph or to spell out the answer to every hypothetical question.

6.6 “Well‑founded fear”, “real risk”, and Article 3

To qualify as a refugee, an appellant must show a well‑founded fear of being persecuted for a Convention reason (e.g. political opinion, ethnicity). The courts use the standard of a “real risk” or “reasonable degree of likelihood” – higher than mere possibility, but lower than the civil balance of probabilities.

Article 3 of the European Convention on Human Rights prohibits torture and inhuman or degrading treatment. The “real risk” standard is used here as well: a person cannot be removed to a country where there is a real risk they will suffer Article 3 ill‑treatment.

In OM, the Court’s conclusion is that, on the FtT’s findings:

• there was no real risk that the Iranian authorities would discover OM’s contrived sur place activities; and
• without that, and with no credible in‑country activism, his illegal exit and Kurdish ethnicity alone did not create a real risk of Article 3 harm.

7. Impact and Future Significance

7.1 For Kurdish Iranian sur place claims

OM confirms and tightens the legal framework for Kurdish Iranian asylum claims based on sur place activity:

• Hair‑trigger is not a shortcut: Kurdish ethnicity plus any minimal sur place activity does not automatically lead to protection. The key question remains whether the authorities are likely to come to know of those activities.
• Disingenuous activism can be discounted in risk assessment: where the tribunal finds that protests and social media posts were wholly opportunistic:
  • there may be a justified inference that the person will close their accounts and cease such activities;
  • it may be reasonable to infer that they will not volunteer those activities when questioned on return.
• Illegal exit and Kurdish ethnicity remain insufficient on their own: in line with SSH and HR and HB, those factors are aggravating only where there is some prior or discovered political profile.

7.2 For tribunals applying XX, HB, and S

OM provides concrete guidance on how FtTs should approach Iranian sur place cases:

• Structure the analysis around pinch points: judges should clearly consider:
  • whether social media is active at the ETD stage; and
  • what is likely to happen at airport questioning.
• Make explicit findings on genuineness and visibility: the degree of genuine political commitment, the level of activism, and public visibility will influence:
  • likely future behaviour (e.g. whether activism will continue); and
  • the chances of the Iranian authorities becoming aware.
• Use realistic behavioural inferences: following S and OM, tribunals may infer that a person whose activism was purely staged for an asylum claim:
  • will not go out of their way to expose themselves to danger on return; and
  • is unlikely to volunteer disingenuous acts that they have no reason to repeat.

7.3 For practitioners and appellants

OM carries strategic implications:

• Evidence of genuine conviction matters: detailed, consistent evidence of ongoing political engagement, both online and offline, may distinguish a case from OM and S, pushing it closer to FA or to situations where authorities are likely to take notice.
• Visibility and impact of sur place activity must be established: practitioners should, where possible, adduce evidence of:
  • media coverage;
  • social media shares, comments, reach; and
  • links to known opposition groups;
  to show that the activity is, or is likely to be, known to Iranian authorities.
• Challenges must target reasoning, not mere citation: arguing that a tribunal “failed to apply” country guidance will not succeed merely because specific headnote paragraphs are not quoted. It must be shown that the substance of the guidance was not followed, as in FA.

7.4 On the “unattractive” but necessary protection of opportunistic activists

Counsel for OM candidly acknowledged that giving protection to those who contrive sur place activity can seem “unattractive” ([24]). The Court’s reasoning attempts to balance:

• the principle that refugee protection is based on risk on return, not moral approval of the claimant’s conduct; and
• the need to make realistic factual assessments of future behaviour, particularly where activities were found to be fabricated.

OM marginally shifts the balance towards a stricter approach to opportunistic activism: by affirming the inference that such individuals will take steps to minimise risk on return (closing accounts, not volunteering disingenuous activity), its effect will be to reduce the number of successful sur place claims where activism is clearly staged and low‑profile.

8. Key Takeaways and Conclusion

8.1 Core legal principles confirmed or clarified

• Hair‑trigger guidance is accepted but not determinative: Kurdish ethnicity combined with any level of political activity does not automatically result in refugee status; the authorities must be likely to become aware of that activity.
• Country guidance need not be exhaustively quoted: what matters is substance, not form. Failure to cite a specific headnote paragraph (e.g. HB paragraph 10) is not of itself an error of law.
• Sur place activity must be assessed via pinch points: tribunals should examine:
  • whether social media remains visible at the ETD application stage; and
  • what is likely to be said or discovered during airport questioning.
• Disingenuous activism can justify inferences about future behaviour: where activities are found to be contrived and low profile, it is legitimate to infer that:
  • the appellant will close social media accounts; and
  • they will not volunteer those activities on return.
• Illegal exit and Kurdish ethnicity remain insufficient on their own: absent a known or discoverable political profile, these features do not create a real risk of persecution or Article 3 ill‑treatment.

8.2 Overall significance of OM v SSHD

OM v SSHD consolidates the Court of Appeal’s emerging position on Iranian Kurdish sur place claims. Together with S and FA, it completes a triptych:

• FA – where inadequate reasoning on sur place risk requires remittal;
• S – where coherent findings about disingenuous activism justify refusal of protection; and
• OM – confirming that even in the face of Kurdish “hair‑trigger” risk, opportunistic, low‑visibility activism, unknown to the authorities, will not suffice, and that tribunals may infer non‑disclosure and risk‑minimising behaviour on return.

The decision provides a structured, fact‑sensitive template for future tribunals:

1. Establish clear findings on:
   • the genuineness and extent of any in‑country and sur place political activity;
   • the visibility and likely reach of that activity (especially online); and
   • any evidence of monitoring or interest by the home‑state authorities.
2. Apply country guidance (HB, BA, SSH and HR, XX) to:
   • identify relevant pinch points; and
   • evaluate realistically what the appellant is likely to do or say at those points.
3. Ask whether, on that realistic scenario, there is a real risk of the hair‑trigger mechanism being engaged, given Kurdish ethnicity, illegal exit and any other relevant features.

On the particular facts found by the FtT, the Court of Appeal held that OM faces no such real risk. Accordingly, his appeal was dismissed.