AB v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Risk arising from Iranian internet activity must be assessed on the individual evidence. Widespread blogging, Facebook use and state surveillance do not, without more, establish a real risk of persecution. Nor did the evidence permit reliable general country guidance on when overseas online activity would be detected.

Return may nevertheless create a significant pinch point. A returnee who is likely to be questioned, particularly after expired leave and travel on special documents, may be required to account for internet activity and provide passwords. If critical activity is then exposed, there may be a real risk of persecution. The extent of activity, any lapse in discretion and the returnee’s existing profile are relevant. The motive for opportunistic online activity is not material to the risk.

Three Iranian nationals appealed decisions refusing them protection or seeking to remove them from the United Kingdom. Each relied principally on actual or perceived criticism of the Iranian state through blogging, Facebook, YouTube or related internet activity.

AB’s earlier appeal had been remitted by consent from the Court of Appeal for reconsideration of limited grounds concerning blogging in the United Kingdom. CD’s First-tier Tribunal dismissal was set aside for inadequate engagement with her blogging, political activity and expert evidence. EF’s First-tier Tribunal dismissal had previously been set aside for error of law.

The Tribunal heard extensive expert and country evidence concerning Iranian internet controls, the monitoring of online activity, the treatment of returnees and the appellants’ individual online profiles. The central question was whether their activities, and the circumstances of their return, created a real risk of persecution or other serious ill-treatment.

1. The appeals were allowed. The Tribunal found that each appellant had established a real risk of persecution on return to Iran when his or her individual circumstances, online activity and likely return arrangements were assessed together.
2. The evidence showed that Iran regulated and policed internet use and could close, mark, monitor and sometimes identify online accounts. It also showed widespread internet use and successful attempts to circumvent restrictions. The evidence did not support a general rule that all critical bloggers, Facebook users or persons active online would be identified or persecuted. The Tribunal therefore could not give reliable general country guidance about the circumstances in which overseas internet activity would be detected.
3. It rejected the submission that only persons with a high degree of activity or prominence could face persecution. Greater activity could make investigation and adverse interest more likely, but limited or apparently inconsequential conduct might lead to serious consequences if it came to the authorities’ attention.
4. The material risk lay at the pinch point of return. A returnee brought into direct contact with Iranian authorities may be interrogated about activities abroad and online activity. The Tribunal considered it likely that an interrogated returnee would be asked about internet use and that passwords or searches could expose critical material. A person cannot be expected to conceal that material by lying.
5. A person returning after a short absence on an ordinary passport, having left lawfully, would ordinarily face no risk on that basis alone. By contrast, expired leave, special travel documents, an existing adverse profile, critical online activity and any lapse of discretion could combine to create a real risk. Online activity undertaken opportunistically remained relevant because the Iranian authorities would be concerned with the activity, not its motivation; an asylum claim might itself aggravate official suspicion.
6. On the facts, CD had a pre-existing profile and critical online activity. AB had identifiable Kurdish political, musical and online activity. EF had established and maintained secular, anti-regime internet activity and was found substantially truthful. Their appeals were accordingly allowed.

• Upper Tribunal (Immigration and Asylum Chamber): The Tribunal re-determined the three protection appeals and allowed them.
• Court of Appeal: AB’s appeal was remitted by consent on 27 June 2013 for reconsideration of the limited grounds concerning blogging in the United Kingdom.
• Upper Tribunal (Immigration and Asylum Chamber): CD’s First-tier Tribunal decision was set aside for error of law. EF’s First-tier Tribunal decision had also been set aside for error of law in a determination promulgated on 12 May 2013.
• First-tier Tribunal: The appellants’ protection appeals had been dismissed before the respective error-of-law decisions and remittal.