S v Secretary of State for the Home Department

Factual and Procedural Background

This appeal concerns the dismissal by the Upper Tribunal of the Appellant's challenge to the First-tier Tribunal's decision to reject his appeal against the Respondent's refusal to grant asylum. The Appellant, an Iranian citizen of Kurdish ethnicity, claimed asylum after leaving Iran following an incident involving his association with individuals linked to a Kurdish political group. He entered the UK in March 2020 and engaged in political activities including attending demonstrations and posting on social media. The Respondent refused asylum in March 2022. The First-tier Tribunal dismissed the Appellant's appeal in October 2022, finding his account inconsistent and his political activities opportunistic rather than genuine. The Appellant sought permission to appeal to the Upper Tribunal, which was initially refused but later granted on limited grounds. The Upper Tribunal set aside part of the First-tier decision for reconsideration and ultimately dismissed the appeal in November 2023. The current appeal challenges that dismissal.

Legal Issues Presented

1. Whether the First-tier and Upper Tribunals erred in their assessment of the Appellant's credibility and involvement with Kurdish political activities prior to leaving Iran.
2. Whether the Appellant's sur place activities (demonstrations and social media posts in the UK) would likely have brought him to the attention of the Iranian authorities, thereby creating a real risk of persecution or ill-treatment on return.
3. Whether the tribunals properly applied relevant country guidance concerning Kurdish ethnicity, political activity, and risk of persecution upon return to Iran.
4. Whether the Appellant would be at risk due to disclosure or compelled disclosure of his UK activities when questioned by Iranian authorities at the "pinch-points" of applying for an emergency travel document and upon return to Iran.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that the tribunals failed to properly consider material evidence and relevant country guidance concerning the increased risk posed by his attendance at multiple demonstrations and political social media activity.
• He argued that the closure of his Facebook account did not diminish the risk on return, citing expert evidence that residual data may remain accessible and that images on other accounts persist.
• The Appellant asserted that his Kurdish ethnicity and illegal exit from Iran increased his risk of persecution, especially given his anti-regime demonstrations and social media posts.
• He claimed inability to delete his previous Facebook account due to loss of his old phone, increasing the risk of detection by Iranian authorities.

Respondent's Arguments

• The Respondent maintained that the grounds of appeal amounted to mere disagreement with the factual findings and conclusions properly reached by the tribunals.
• They submitted that the tribunals correctly applied the relevant country guidance and that the Appellant's political activities were opportunistic, not genuine, and unlikely to have attracted Iranian authorities' attention.
• The Respondent argued that the Appellant could be expected to close any Facebook accounts and not volunteer information about contrived activities, thereby mitigating any risk.
• They contended there was no basis for concluding the Appellant would be at risk of persecution or ill-treatment on return to Iran.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully analyzed the Appellant's credibility and the genuineness of his political activities. It accepted the First-tier Tribunal's findings that the Appellant's pre-flight claims were inconsistent and lacked detail, and that his sur place activities were opportunistic rather than genuine political expression. The court applied established country guidance emphasizing that Kurdish ethnicity is a risk factor but does not alone create a risk of persecution without additional factors.

The court considered the evidence of the Appellant's attendance at demonstrations and social media use, noting that photographs showed him at a distance, not actively participating, and that social media evidence lacked full disclosure and metadata. It found no evidence that the Iranian authorities had prior knowledge or targeted surveillance of the Appellant. The court accepted that the Appellant could close Facebook accounts before applying for an emergency travel document, mitigating risk at that "pinch-point."

Regarding the second "pinch-point" of questioning upon return to Iran, the court held that the Appellant would not be required to volunteer information about contrived activities and that no risk of persecution or ill-treatment would arise absent suspicion of genuine political involvement. The court distinguished cases involving coercion to provide false political allegiance, finding them inapplicable.

The court concluded that the Appellant failed to demonstrate a real risk of persecution or ill-treatment on return to Iran, applying the relevant legal principles and country guidance consistently and thoroughly.

Holding and Implications

The court DISMISSED the appeal.

The direct effect of this decision is that the Appellant's claim for asylum, humanitarian protection, and human rights grounds is rejected, affirming the Upper Tribunal's dismissal. The court did not establish any new precedent but reaffirmed the application of existing country guidance and legal principles concerning Kurdish ethnicity, sur place activities, and risk assessment on return to Iran.