Summary of Opinion

Factual and Procedural Background

This appeal concerns an Iranian national of Kurdish ethnicity (the Appellant) who left The State illegally in September 2020, entered The City in November 2020 and claimed asylum. The Appellant's claim was initially that he faced persecution in The State because of alleged activities in support of Company A (a Kurdish political group). The Appellant later relied in part on sur place political activities carried out in The City — attendance at demonstrations protesting against The State and posts on Company B — to support his protection claim.

The Respondent refused the protection claim on 22 August 2023, accepting the Appellant's Kurdish ethnicity and illegal exit but rejecting the Appellant's account of political activity in The State and finding that he was not a political activist in The City. The Appellant appealed to the First-tier Tribunal, which heard the appeal on 23 April 2024. In a decision promulgated on 1 May 2024, Judge Power dismissed the appeal. The Appellant then appealed to the Upper Tribunal; permission was granted but the Upper Tribunal refused the appeal. The Appellant appealed further to the court whose opinion is summarised here.

The First-tier Tribunal made key factual findings (summarised): the Appellant's account of activities in The State was unreliable; there was insufficient evidence he worked for or sought to join Company A in The State; between December 2020 and November 2023 the Appellant attended seventeen demonstrations in The City and posted screenshots on Company B; there was no evidence the Appellant's sur place activities had come to the attention of The State authorities or attracted surveillance; the tribunal found the sur place images and activity were contrived to bolster the asylum claim rather than evidencing genuinely held political beliefs; and the Appellant had not engaged in demonstrations or postings since November 2023.

Legal Issues Presented

1. Whether the First-tier Tribunal and the Upper Tribunal erred in law by failing to apply or to make express reference to the 'hair-trigger' approach attributed to The State authorities when assessing the Appellant's risk on return.
2. Whether the tribunals properly applied country guidance on sur place activities, social media and the so-called "pinch points" (application for emergency travel documents and return) to the facts as found (in particular whether deletion of Company B account would remove a risk and whether the Appellant would be expected to disclose his sur place activities when questioned on return).
3. Whether, on the factual findings made by the First-tier Tribunal, the Appellant nonetheless faced a real risk of persecution or Article 3 ill-treatment on return to The State.

Arguments of the Parties

Appellant's Arguments

• The First-tier Tribunal and the Upper Tribunal failed to properly apply country guidance (including the 'hair-trigger' formulation) and thereby failed to assess whether the Appellant would face a real risk on return if his opportunistic sur place activities were disclosed to The State authorities.
• The correct assessment required consideration of what the Appellant would say if questioned on return, irrespective of whether his sur place activities were genuinely motivated, because The State's threshold for suspicion is low and reaction may be extreme.
• The Appellant also argued that even if he did not disclose his activities, the mere fact of having attended multiple demonstrations could, in combination with Kurdish ethnicity and time spent outside The State, give rise to risk at the point of return.

Respondent's Position

• The Respondent submitted there was no error of law; the appeal amounted to disagreement with factual findings properly reached by the First-tier Tribunal.
• The Respondent relied on the First-tier Tribunal's clear factual findings that the Appellant was not politically active in The State, was not genuinely politically motivated, was unlikely to have come to the attention of The State authorities, and that his Company B activity was not subject to surveillance.
• The Respondent argued that the First-tier Tribunal had applied the relevant country guidance (including XX and HB) and that any omission to state the 'hair-trigger' phrase did not amount to material error of law because the tribunal's reasoning made clear it understood the relevant principles.
• The Respondent relied on S v SSHD [2024] EWCA Civ 1482 as a directly comparable authority where similar findings led to dismissal of the claim.

Table of Precedents Cited

Court's Reasoning and Analysis

The court proceeded from the unassailable factual findings made by Judge Power at first instance. Key elements of the analysis were:

1. The First-tier Tribunal's factual conclusions were accepted: the Appellant's account of political activity in The State was unreliable; his sur place activity in The City (attendance at demonstrations and Company B posts) was contrived to bolster his claim; there was no evidence of surveillance or of The State authorities having been made aware of those activities.
2. The legal task was to apply relevant country guidance (including XX, HB, BA and SSH & HR) to those facts. That guidance recognises (a) that The State authorities may have a 'hair-trigger' response to perceived Kurdish political activity and (b) that social media creates specific pinch points at which risk may crystallise (notably when applying for travel documents and on return to The State).
3. The court identified the central factual question as whether the Appellant's sur place activities were likely to be known to The State authorities either before return or at the pinch points. The First-tier Tribunal had focused appropriately on that question rather than on hypothetical severity of The State's response if activities were discovered.
4. On the facts found, the Appellant had no prior adverse interest from The State, his Company B posts had not been shown to remain public or subject to monitoring, and the First-tier Tribunal rejected the Appellant's evidence that he would not delete his Company B account or would continue to protest on return.
5. The court considered whether omission of an express statement referencing the 'hair-trigger' wording in HB was a material error of law. Given the tribunal's clear focus on whether the activities would become known to The State and its acceptance of the relevant parts of the guidance, the court concluded that the omission was not material and would not have changed the outcome.
6. The court compared the case to recent authorities (notably S and FA): FA involved inadequate or incoherent findings and was remitted; S contained findings similar to those here and resulted in dismissal, supporting the view that on the present facts dismissal was appropriate.
7. Finally, the court concluded that, on the findings that the Appellant's activities were contrived and unlikely to be disclosed or detected on return, there was no real risk of persecution or Article 3 ill-treatment arising from the sur place activities or from Kurdish ethnicity coupled with undocumented return.

Holding and Implications

DISMISSED. The court dismissed the Appellant's appeal.

Implications:

• Direct effect: The Appellant's challenge to the First-tier Tribunal and Upper Tribunal decisions was dismissed; the First-tier Tribunal's findings and reasoning were held not to contain a material error of law on the points raised.
• The court held that the absence of an explicit citation of the 'hair-trigger' phrase from HB did not amount to a material error given the issues in the case and the tribunal's detailed factual findings.
• No broader legal innovation or new precedent was established by this decision; the court applied existing country guidance to the factual findings and dismissed the appeal on that basis.

This summary is based exclusively on the text of the provided opinion and adheres to the factual and legal material contained therein.