OM v Secretary of State for the Home Department

The ground of appeal with which we are now concerned has evolved somewhat from the way in which it was pursued in the Upper Tribunal. The focus there was on the ‘hair-trigger’ approach and the likely response of the Iranian authorities to a person who had taken part in political demonstrations in the UK, even if doing so had been opportunistic rather than reflecting genuinely held political beliefs.

The appellant was critical of the First-tier Tribunal for not making explicit reference to paragraphs 8 and 10 of the headnote in HB. Paragraph 8 deals with the breadth of activities that may be perceived to be political by the Iranian authorities. Here there was no issue as to the nature of the appellant’s activities. He had been disbelieved about the alleged activities in Iran. His sur place activities (attending demonstrations and Facebook postings) would clearly be viewed as political. Since no issue arose about that, there was no need to cite paragraph 8. Taken as a whole, the judge’s reasoning focuses on the likelihood of the Iranian authorities being aware of the appellant’s sur place activities. That focus was appropriate because the activities, if discovered, would undoubtedly be perceived as political.

In the hearing before the Upper Tribunal, greater emphasis was placed on the omission of paragraph 10 of the headnote in HB and the lack of explicit reference to the ‘hair-trigger’ approach. I have set out paragraph 10 above. The ‘hair-trigger’ approach is one demonstrated by the Iranian authorities towards those suspected of or perceived to be involved in Kurdish political activities or support for Kurdish rights. The threshold for suspicion is low, and the reaction of the authorities is reasonably likely to be extreme.

The Iranian authorities’ likely response to political activity was never in issue. The respondent’s decision letter acknowledged that if the appellant was identified as having been involved in political activity, he would be at risk. The reasons for refusing his asylum claim focused on why it was unlikely that the appellant had come to the attention of or was of interest to the Iranian authorities. That was the central issue for the First-tier Tribunal, not how the authorities would react if the appellant’s activities were discovered.

In those circumstances, I agree with the Upper Tribunal that the absence of explicit reference to the ‘hair-trigger’ approach in the judgment of the First-tier Tribunal did not represent a material error of law.

Before this court, the appellant’s submissions were less focused upon the ‘hair-trigger’ approach. Instead, Mr Brown concentrated on the central issue that arises in this case: whether the appellant’s sur place activities were known to the Iranian authorities or would become known upon his return. That is an acutely fact-sensitive issue as is apparent from the two recent Court of Appeal decisions cited to us: S v SSHD, relied upon by the respondent and cited above, and FA (Iran) v SSHD [2024] EWCA 149, which the appellant places reliance on.

What is required in addressing this issue is careful consideration of the relevant country guidance in light of the facts as they have been found to be.

The findings of fact made by the First-tier Tribunal, which I have set out above, are unassailable. The risk the appellant would face on return was therefore to be assessed on the basis that he had not been politically active in Iran and that the Iranian authorities would have no existing knowledge of his political activities in the UK.

The most recent country guidance issued is that in XX. The Upper Tribunal confirmed that the guidance in BA (above), SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 308 (IAC) and HB (above) continued to accurately reflect the situation for returnees to Iran and that the guidance in XX was intended to supplement that guidance on the issue of risk arising from social media use.

Merely having exited Iran illegally and/or returning from Britain does not lead to a risk of persecution: BA [67].

If a person has had travel documentation issued by an Iranian embassy or mission abroad, they will be questioned on arrival in Iran since they will not have an exit stamp in their document: BA [36].

SSH and HR confirms that an Iranian male who does not possess a passport will be returnable on a laissez passer obtainable from an Iranian embassy. A person returning on a laissez passer is likely to be questioned. At [23], the Upper Tribunal said:

“In our view, the evidence does not establish that a failed asylum seeker who had left Iran illegally would be subjected on return to a period of detention or questioning such that there is a real risk of Article 3 ill-treatment. The evidence in our view shows no more than that they will be questioned, and that if there are any concerns arising from their previous activities either in Iran or in the United Kingdom or whichever country they are returned from, then there will be a risk of further questioning, detention and potential ill-treatment.”

This led the Upper Tribunal to conclude (in the same paragraph):

“… a person with no history other than being an asylum seeker who had exited illegally and who could be expected to tell the truth when questioned would not face a real risk of ill-treatment during the period of questioning at the airport.”

The conclusion summarised in the headnote was:

“An Iranian male in respect of whom no adverse interest has previously been manifested by the Iranian State does not face a real risk of persecution / breach of his Article 3 rights on return to Iran on account of having left Iran illegally and/or being a failed asylum seeker. No such risk exists at the time of questioning on return nor after the facts (i.e. illegal exit and being a failed asylum seeker) have been established.”

While being Kurdish was accepted in SSH and HR to be “an exacerbating factor for a returnee otherwise of interest”, being Kurdish coupled with being undocumented was not sufficient to give rise to a risk of ill-treatment. This was confirmed and restated in HB.

The country guidance suggests “pinch points” (that is moments when risk may crystallise). XX identifies that the first pinch point for the Iranian authorities to carry out a check of a returnee’s social media activity will be the point at which he applies for an emergency travel document. However, the timely closure of a Facebook account will neutralise the risk consequential on critical postings provided that the account was not specifically monitored prior to closure.

The next pinch point is the time of returning to Iran. It being agreed that the appellant left Iran illegally without obtaining an exit visa, it follows that he is likely to be questioned when he arrives back in Iran.

Having considered the Facebook evidence, Judge Power said that she was not satisfied that the appellant was active on social media. The evidence consisted of screenshots of posts, the last of which was dated November 2023. There was no evidence that the posts had remained public beyond the taking of the screenshots and nothing to confirm the appellant’s Facebook account remained publicly available. The judge found no evidence that the appellant’s Facebook account had been the subject of surveillance nor that any Facebook activity had come to the attention of the Iranian authorities. It is clear from the judge’s reasoning that she rejected the appellant’s evidence that he would not delete his Facebook account if returned to Iran. Given the judge’s findings that the posts did not represent a genuine interest in or loyalty to the Komala party and that they had been created only to bolster his asylum claim, that was an entirely logical view to take. It follows that if the account remained active, the appellant could close it before applying for travel documents so neutralising any risk relating to the social media activity.

The cases of FA and S both concerned Kurdish Iranians who had made asylum claims based upon alleged political activity in Iran and attendance at demonstrations and social media activity in the UK. It is apparent from the Court of Appeal judgment in FA that the findings of the First-tier Tribunal were far from clear. The reasoning in the judgment was described as incoherent. Notably, the case was decided in the First-tier Tribunal prior to XX. There was no explanation as to why the appellant’s Facebook postings would not pose a risk and insufficient findings to address the question of whether the appellant’s sur place activities would create a risk on return whether because of his Facebook account or otherwise. The Upper Tribunal had not grappled with that. As a result, the Court of Appeal remitted the case to a different judge in the First-tier Tribunal to determine that issue.

In contrast, the Upper Tribunal in S had addressed the essential questions when remaking the decision on appeal. In relation to the first pinch point of applying for travel documents, the Upper Tribunal found that there was no reason why S would not close his Facebook account prior to applying for an emergency travel document and that he would not previously have been the target of social media surveillance.

Addressing the second pinch point on the appellant’s arrival in Iran, the judge found that it was only if the authorities suspected S’s involvement in political activity or support for Kurdish rights that he would be at risk. In those circumstances, the determinative question would be what he would or could reasonably be expected to say when questioned by Iranian authorities. The Upper Tribunal concluded that S would not be expected to volunteer information about his activities which were not an expression of any genuinely held beliefs, and which had been contrived solely to enhance a false claim for asylum and to deceive the UK authorities. The Court of Appeal accepted that the judge was entitled to make that finding on the facts. As his claim to have taken part in political activities in Iran had been rejected, there would be no other reason for the Iranian authorities to have any suspicion about him. As such there was no risk of persecution or Article 3 ill-treatment either by reason of second stage questioning or otherwise. On that basis, the appeal was dismissed.

In this case, neither the First-tier Tribunal nor the Upper Tribunal clearly addressed the question of what would happen at the second pinch point of return to Iran. Had they done so, given the findings that were made, they would have approached it on the basis that:

The country guidance demonstrates that a Kurd returning from the UK as a failed asylum seeker would be questioned. However, those factors would not lead to second stage interrogation unless something of concern to the Iranian authorities arose during the initial questioning. On the findings of Judge Power, such concern would only emerge if the appellant disclosed his attendance at the UK demonstrations to the authorities. The truth, as found by Judge Power, was that the appellant was not politically motivated but had attended demonstrations to secure evidence to use in his asylum claim.

The appellant claimed that he would not delete his Facebook page and would wish to continue to protest if he returned to Iran. Judge Power did not believe him. It is apparent that the question of what the appellant might say during questioning has only been brought into sharp focus during the hearing before this Court. Although Judge Power did not expressly find that the appellant would not volunteer the fact of his attendance at demonstrations when questioned, it is clear from reading the judgment as a whole that the judge would inevitably have reached that conclusion given the unassailable findings of fact she had made. Given the findings that the appellant’s activities were contrived and not genuinely motivated, it is reasonable to infer that he would not disclose them on return.

On that basis, his position is not materially distinguishable from the appellant in S.

There was no material error of law in the findings of Judge Power, which were reached in accordance with the relevant country guidance. The absence of explicit reference to the ‘hair-trigger’ approach of the Iranian authorities does not represent a material error of law given what was in issue.

Having rejected the appellant’s claim that he was genuinely a political activist, the central issues for the judge were whether his contrived sur place activities were likely to have come to the attention of the Iranian authorities or whether they were likely to do so at the pinch points of applying for travel documents and returning to Iran. The judge explained why the appellant was unlikely to already have come to the Iranian authorities’ attention. She rejected his claim that he wished to continue to protest in Iran and would not delete his Facebook account. On the express findings made by the judge, it can properly be inferred that the appellant would not be expected to volunteer information about his contrived activities in the UK when questioned on arrival in Iran. In those circumstances, as in S, the judge was entitled to reach the conclusion she did that the appellant did not have a well-founded fear of persecution, serious harm or Article 3 ill-treatment.

It follows that I would dismiss this appeal.