Sur Place Iran Claims: No Duty to Find Whether a Demonstrator Was Photographed; Airport “Dilemma” Requires an Evidential Foundation
Case: DA v Secretary of State for the Home Department
Citation: [2026] EWCA Civ 724
Court: Court of Appeal (Civil Division), England and Wales
Date: 9 June 2026
Appeal from: Upper Tribunal (Immigration and Asylum Chamber), Upper Tribunal Judge Meah (UI-2024-002293)
1. Introduction
This appeal concerns an Iranian Kurdish asylum seeker (“the appellant”) whose account of political activity in Iran was disbelieved by the First-tier Tribunal (Immigration and Asylum Chamber) (“F-tT”), but who relied heavily on sur place political activity in the UK (attendance at demonstrations outside the Iranian Embassy and Facebook posts) to establish a real risk on return to Iran.
The appellant’s case in the Court of Appeal was not that the F-tT misunderstood the country guidance framework, but that (i) the F-tT unlawfully failed to decide whether Iranian authorities had photographed him at demonstrations (ground 1A), and (ii) the F-tT unlawfully dismissed the risk arising from questioning on return, said to place him in a “dilemma” between disclosure and denial of sur place activity (ground 2A). Permission had been refused on a separate challenge to the UT’s reliance on Volpi v Volpi [2022] EWCA Civ 464; [2022] 4 WLR 48.
Lady Justice Elisabeth Laing (with Lord Justice Lewis and Lord Justice Moylan agreeing) dismissed the appeal, holding that the F-tT made no material error of law.
2. Summary of the Judgment
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No required finding on “was he photographed?” The Court held the F-tT was not obliged to make a specific finding on whether the appellant had been photographed at demonstrations; such a finding would be speculative and not determinative unless linked to a risk-relevant “profile”.
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“Airport dilemma” argument was unsupported by evidence The claim that questioning on return would force the appellant into a dilemma (tell the truth and be persecuted; lie and be exposed) lacked two necessary foundations: (a) evidence supporting greater Iranian surveillance capability than recognised by the country guidance, and (b) evidence that the appellant actually knew of or feared such systems. In the absence of evidence, the argument was treated as hypothetical and could not ground an error of law.
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Country guidance applied lawfully The F-tT accurately summarised and carefully applied the country guidance on Iranian sur place risk, including assessment of “profile”, prominence, frequency of attendance, media coverage, and the probative limits of selective social media printouts.
3. Analysis
3.1 Precedents Cited and Their Role
The judgment recounts the established country guidance that the Iranian authorities do attempt to identify demonstrators outside the Iranian Embassy in London, but that identification capacity is limited—particularly absent reliable evidence of systematic facial recognition technology (“FRT”) use in the UK context and given the “haphazard” nature of checks at the airport. The factors listed in BA remain central to the risk assessment, including:
- nature and theme of activity;
- role and prominence;
- frequency and regularity;
- publicity and media exposure;
- perception by authorities and overall profile.
In this appeal, BA was pivotal because the appellant’s criticisms (photography; airport questioning) effectively sought to transform the risk assessment from a profile-and-probability evaluation into an assumed identification-and-detection model. The Court rejected that shift as inconsistent with the country guidance and the evidential record.
(b) XX (PJAK, sur place activities, Facebook) Iran (CG) [2022] UKUT 23 (IAC) (“PJAK”)
PJAK featured in two interconnected ways:
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Continuity: the UT in PJAK confirmed that BA remained accurate, reinforcing that the established risk framework still governs Iranian Embassy demonstration cases.
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Evidence quality and social media proof: the F-tT relied on PJAK to treat selective, non-contextualised social media material (e.g., photographs and captions without compliant downloads or broader account context) as of limited weight, given ease of manipulation and the need for fuller disclosure to assess genuineness, reach, and visibility.
The Court of Appeal treated the F-tT’s reliance on PJAK as orthodox: it was a disciplined approach to evidential reliability and to risk assessment grounded in established country guidance rather than conjecture.
(c) AB (internet activity - state of evidence) Iran [2025] UKUT 00257 (IAC) (“AB”)
AB provided the F-tT with structured “pinch points” for how Iranian authorities may discover internet activity, especially when an individual seeks travel documentation. The F-tT used AB to reason that basic internet searches may occur at the travel document stage, and that deletion/closure of an account can, on the evidence and findings, neutralise risk unless the account had already been under surveillance.
On appeal, the Court did not treat the “pinch point” analysis as controversial; rather, it supported the conclusion that the appellant’s dilemma-based argument required evidence of enhanced capability and targeting beyond what AB and the wider guidance recognises.
(d) HB (Kurds) Iran CG [2018] UKUT 430 (IAC) (“HB”)
The appellant had relied on Kurdish ethnicity to argue a “hair-trigger” approach by Iranian authorities. The F-tT accepted the appellant’s nationality as Iranian but found neither Kurdish ethnicity nor the disbelieved Iran-based account created risk on return; it then addressed sur place risk under BA/PJAK/AB. The Court’s approach shows that ethnicity may be a relevant contextual factor but does not replace the country-guided “profile and likelihood” analysis for sur place activities.
(e) HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31; [2011] AC 596
The F-tT used HJ (Iran) when considering whether the appellant could reasonably delete a Facebook account before applying for travel documents. On the F-tT’s findings, the account was used to bolster an asylum claim rather than to express a genuine protected characteristic or belief; deletion therefore did not amount to impermissible forced concealment of a Convention-protected attribute.
Importantly, the Court of Appeal did not elevate this into a broad rule about social media deletion. It accepted the F-tT’s conclusion as fact-sensitive, resting on findings about the appellant’s motives, usage, and lack of genuine political belief.
(f) Volpi v Volpi [2022] EWCA Civ 464; [2022] 4 WLR 48
Although raised in a refused ground, Volpi sits in the background as authority on appellate restraint and deference to trial-level fact-finding unless vitiated by error of law. The Court’s overall approach is consistent with that restraint: it focused on whether the F-tT’s evaluation strayed into legal error, rather than whether another tribunal might have assessed the evidence differently.
3.2 Legal Reasoning
(1) Ground 1A: “Photographed at demonstrations”
The Court’s core reasoning is that a tribunal is not required to make findings it cannot make without speculation, and is not required to determine every subsidiary factual possibility if it would not materially advance the legal test.
Even if a photograph existed, the legally relevant questions would still be:
- whether the appellant would be of sufficient adverse interest to trigger identification efforts;
- whether the authorities could or would link a face to a name;
- whether any such information would be stored and operationalised at the border;
- how this interacts with the BA/PJAK factors (prominence, frequency, publicity, profile).
Because the F-tT had already undertaken the correct “in the round” profile assessment—finding the appellant an ordinary crowd member, infrequent/irregular, non-prominent, with no media coverage and limited probative social media evidence—the “photograph” point was not an essential missing finding. The Court therefore treated the complaint as an attempt to re-argue fact and emphasis rather than identify a legal misstep.
(2) Ground 2A: “Questioning on return” and the alleged dilemma
The “dilemma” argument posited that a returnee, aware of Iranian intelligence systems, would feel forced either to confess sur place activity (risking persecution) or deny it (risking exposure and harsher treatment). The Court’s rejection turned on evidential and doctrinal discipline:
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Country guidance boundary: The argument implicitly required a higher baseline of Iranian capability (systematic identification, robust overseas data capture, or reliable border matching) than the country guidance accepted. The F-tT had refused to depart from BA on FRT capability, and that refusal was not shown to be legally wrong.
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Individualised knowledge/fear: Even if such systems existed, the appellant needed evidence that he knew of them or feared them such that the dilemma would arise in his mind and affect his conduct. The Court noted there was no such evidence in the witness statements or interview material; indeed, the record suggested limited understanding of Iranian political realities.
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Speculation is not a substitute for evidence: Without those foundations, the dilemma submission was “hypothetical” and did not oblige the F-tT to make findings or accept a risk pathway unsupported by evidence.
The Court also accepted the Secretary of State’s submission that paragraph 65 of the F-tT decision legitimately addressed the point by anchoring it back to BA: where identification risk is not established for an infrequent, non-prominent demonstrator lacking publicity, the asserted dilemma does not get traction.
3.3 Impact
While the Court stressed that this case did not justify broad new guidance on sur place claims, it nevertheless clarifies (and will likely be relied upon as persuasive appellate reasoning) in three practical respects:
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Holistic risk assessment remains central: Tribunals should continue to apply the BA/PJAK/AB framework by assessing “profile” and likelihood “in the round”, rather than treating isolated possibilities (like being photographed) as determinative.
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No mandatory finding on unknowable facts: A party cannot convert a speculative possibility (“maybe the authorities photographed me”) into a required tribunal finding absent evidence capable of proving it to the applicable standard.
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“Dilemma” submissions require proof, not rhetoric: If appellants argue that questioning on return creates a risk via compelled disclosure/denial, they will need evidence—both about state capability beyond CG (if alleged) and about the individual’s knowledge/fear—rather than a purely conceptual claim.
4. Complex Concepts Simplified
4.1 What are “country guidance” (CG) cases?
In asylum and human rights appeals, certain Upper Tribunal decisions are designated as country guidance. They provide an authoritative, evidence-based assessment of general country conditions and typical risk factors. Tribunals usually follow CG unless there is “cogent evidence” justifying departure.
4.2 What does “sur place” mean?
A sur place claim is based on events occurring after the person leaves their country—here, political demonstrations and online activity in the UK—said to create risk on return.
4.3 What is the “real risk” / “serious possibility” standard?
Asylum claims do not require proof on the balance of probabilities. The claimant must show a “real risk” (often expressed as a “reasonable degree of likelihood” or “serious possibility”) of persecution for a Convention reason if returned.
4.4 What is the HJ (Iran) principle?
HJ (Iran) protects a person from being required to conceal a fundamental protected characteristic (or act discreetly) to avoid persecution. In this case, the F-tT found (on the evidence) that deleting a Facebook account used to bolster an asylum claim did not amount to suppressing a genuine protected attribute or belief. The Court of Appeal did not generalise this; it treated it as dependent on the F-tT’s findings.
5. Conclusion
DA v Secretary of State for the Home Department [2026] EWCA Civ 724 is a fact-sensitive but instructive appellate endorsement of disciplined CG-based reasoning in Iranian sur place cases. The Court held that (i) the F-tT did not need to make a speculative finding about whether the appellant was photographed at demonstrations, because risk depends on an overall profile assessment; and (ii) an “airport dilemma” theory of risk cannot succeed without evidence supporting both enhanced state capability (if alleged beyond CG) and the individual’s knowledge or fear that makes the dilemma real rather than hypothetical.