S v Secretary of State for the Home Department

Risk on return must be assessed by applying the relevant country guidance to the claimant’s complete history of political activity. Kurdish ethnicity is a significant risk factor, but Kurdish ethnicity, illegal exit and return without a valid passport do not alone create a real risk of persecution or Article 3 ill-treatment.

An infrequent and non-prominent demonstrator may not be identifiable to the Iranian authorities. Where online political activity is contrived and does not reflect a genuine belief, the decision-maker may find that the claimant will close a Facebook account before seeking an emergency travel document and need not volunteer the former account or activity. That conclusion does not require suppression of a protected political belief.

The appellant, an Iranian Kurd, appealed against the Upper Tribunal’s re-made decision dismissing his asylum, humanitarian protection and human rights appeal. His account of political involvement in Iran had been rejected. Preserved findings also established that his political activities in the United Kingdom, including demonstrations outside the Iranian Embassy and Facebook posts, were opportunistic and had not come to the Iranian authorities’ attention.

The Upper Tribunal nevertheless re-made the decision because the First-tier Tribunal had not adequately addressed the risk arising from what the appellant might be expected to say when questioned on return. On re-making, the Upper Tribunal found that the appellant’s further demonstrations and online activity did not create a real risk. The central issue on appeal was whether that assessment properly applied the Iranian country guidance.

1. Appeal dismissed. Jeremy Baker LJ, with whom Lewis and Moylan LJJ agreed, held that the Upper Tribunal was entitled to find that the appellant would not be identified as a person of interest before return to Iran and would not face a real risk of persecution or Article 3 ill-treatment on return.

2. The Upper Tribunal had correctly assessed the whole history of the appellant’s demonstrations and social-media activity. The guidance in [2011] UKUT 36 (IAC) did not establish that mere attendance at an Embassy demonstration creates a real risk. It supported the conclusion that an infrequent demonstrator with no significant role and no media prominence was unlikely to be identified. The appellant was photographed away from both the Embassy and the main crowd, and the evidence did not establish active or prominent participation.

3. The Upper Tribunal also properly applied [2022] UKUT 00023 (IAC). Timely closure of a Facebook account neutralises the consequential risk unless the account was already specifically monitored. The appellant’s extracts were not full electronic disclosure, he had no social graph or other feature likely to cause targeted surveillance, and he could close the accounts before applying for an emergency travel document. Since the activity was opportunistic and did not reflect a genuine political belief, he need not volunteer it to the Iranian authorities.

4. The guidance in [2018] UKUT 430 (IAC) treated Kurdish ethnicity as a particularly significant risk factor. However, it did not make Kurdish ethnicity, illegal exit or lack of a valid passport independently sufficient to establish risk. There was no basis for suspicion that would lead to further questioning. [2012] 1AC 152 concerned a materially different setting in which a returnee might have to give a convincing false account of political allegiance. It did not require a different analysis here.

• Court of Appeal (Civil Division): Dismissed the appellant’s appeal against the Upper Tribunal’s re-made decision.

• Upper Tribunal: On 8 November 2023, Judge Kebede re-made the decision and dismissed the appeal on asylum, humanitarian protection and human rights grounds.

• Upper Tribunal: On 13 September 2023, set aside the First-tier Tribunal’s decision on the limited issue of risk arising from questioning on return, while preserving the remaining findings.

• First-tier Tribunal: On 21 October 2022, dismissed the appeal against refusal of asylum, humanitarian protection and human rights claims.