FA (Iran) v Secretary of State for the Home Department

An Upper Tribunal error in taking account of later country guidance is material where the First-tier Tribunal’s own decision was unlawful. In assessing risk to an Iranian Kurd returning with social-media material, the tribunal must identify what the account contains and evaluate whether it is political and how the Iranian authorities would view it. It is insufficient to describe Facebook activity as low-level, contrived or forwarded without explaining why it would not trigger the authorities’ low-threshold, “hair-trigger” response under HB (Kurds) Iran CG [2018] UKUT 430. Failure to give the evidence anxious scrutiny and adequate reasons requires remittal of the risk issue.

The appellant, an Iranian Kurd, claimed asylum after entering the United Kingdom. The First-tier Tribunal rejected his account of political activity in Iran, but accepted that he had left Iran illegally and had made anti-government Facebook posts and attended events in the United Kingdom. It found that he would not face a real risk on return. The Upper Tribunal dismissed his appeal, treating the later country guidance decision in XX (PJAK – sur place activities – Facebook) Iran [2022] UKUT 23 as relevant.

On further appeal, the Secretary of State accepted that the Upper Tribunal had erred in taking account of the later guidance. The central issue was whether that error was material, including whether the First-tier Tribunal had adequately assessed the Facebook evidence under the country guidance then applicable.

1. Materiality and the later guidance. The Court accepted that the Upper Tribunal had erred in taking account of XX, which was published after the First-tier Tribunal’s determination. The general question whether later country guidance may be considered in an error-of-law appeal was not decided independently. The error was nevertheless material because the First-tier Tribunal’s determination was itself unlawful. The Upper Tribunal should therefore have allowed the appeal.
2. Country guidance. BA (Demonstrators in Britain: Risk on Return) Iran CG [2011] UKUT 136 established that risk on return depended on a range of factors and was not created by illegal exit or return from the United Kingdom alone. SSH and HR (Illegal Exit) Iran CG [2016] UKUT 308 similarly addressed the limited significance of illegal exit and failed asylum status absent prior adverse interest. HB (Kurds) Iran CG [2018] UKUT 430 required a fact-sensitive assessment of Kurdish political or apparently political activity, against the authorities’ low threshold for suspicion and “hair-trigger” response.
3. Under HB, the relevant evaluation was whether the Facebook material was political and how it would be viewed by the Iranian regime, rather than simply whether it was low-level. The First-tier Tribunal had made only vague findings about the contents of the account, the significance of the name change, and the event attended in London. It did not explain why material apparently hostile to the Iranian government would not provoke the response identified in HB. That failure amounted to a failure to give the evidence anxious scrutiny and adequate reasons.
4. The Upper Tribunal compounded the error by holding that no more detailed findings about the Facebook posts were required. The appeal was allowed. By a narrow margin, the risk issue was to be remitted to a different First-tier Tribunal judge. The First-tier Tribunal’s findings that the appellant’s account of political activity in Iran was not credible, and that his interest in Kurdish politics was fabricated, were provisionally preserved. The remitted tribunal was to consider the appellant’s sur place activities afresh and have regard to the latest country guidance.

1. Court of Appeal (Civil Division). Appeal allowed on the ground that the First-tier Tribunal had failed adequately to assess the Facebook evidence and explain the risk conclusion: [2024] EWCA Civ 149.
2. Upper Tribunal (Immigration and Asylum Chamber). Dismissed the appellant’s appeal from the First-tier Tribunal and held that the First-tier Tribunal had not erred in law. It treated XX (PJAK – sur place activities – Facebook) Iran [2022] UKUT 23 as relevant.
3. First-tier Tribunal (Immigration and Asylum Chamber). Rejected the appellant’s account of political activity in Iran, accepted his illegal exit and some United Kingdom social-media activity, and found no real risk on return.