OM v Secretary of State for the Home Department

In assessing an Iranian asylum claim based on sur place political activity, the tribunal must apply the country guidance to the established facts. The absence of an express reference to the Iranian authorities’ “hair-trigger” approach is not necessarily an error of law where the authorities’ response to discovered political activity is accepted and the real issue is whether the activity is, or will become, known to them. Risk must be assessed at the relevant “pinch points”, including applications for travel documents and return. Where activity was contrived, the account was disbelieved, the social-media account was not monitored, and there was no evidence of prior Iranian interest, it was permissible to infer that the appellant would not volunteer the activity when questioned. The appeal was dismissed.

The appellant, an Iranian national of Kurdish ethnicity, claimed asylum after leaving Iran illegally. His claim eventually relied on attendance at demonstrations against the Iranian government in the United Kingdom and Facebook posts. The First-tier Tribunal rejected his account of political activity in Iran, found that his United Kingdom activity was contrived to support his asylum claim, and found no evidence that it had come to the attention of the Iranian authorities. The Upper Tribunal dismissed his appeal, holding that the omission of an express reference to the “hair-trigger” guidance was immaterial. The appeal to the Court of Appeal concerned whether the tribunals had properly assessed the risk arising from disclosure or discovery of the sur place activity, including during questioning on return.

1. Appeal dismissed. There was no material error of law in the First-tier Tribunal’s decision, and the Upper Tribunal was entitled to uphold it.
2. The “hair-trigger” approach in HB v SSHD (Kurds) Iran CG concerns the low threshold for suspicion and the reasonably likely extreme reaction to suspected or perceived Kurdish political activity. Its application was not materially in issue because the respondent accepted that identification as involved in political activity would create risk. The central issue was whether the appellant’s activities were known, or would become known, to the Iranian authorities. The absence of an express reference to that approach therefore did not amount to a material error of law (paras [31]-[35]).
3. Risk had to be assessed by applying the relevant country guidance to the unassailable factual findings. The guidance identified two relevant “pinch points”: applying for travel documents, when social-media checks might occur, and arrival in Iran, when an illegally departing returnee was likely to be questioned. Closure of an unmonitored Facebook account before applying for travel documents could neutralise risk from historic critical postings (paras [37]-[48]).
4. On the findings made, the appellant had no genuine political beliefs, his United Kingdom activity was contrived, his account had not been monitored, and the authorities had no prior interest in him. Initial questioning would not lead to further interrogation unless a concern arose. It was reasonable to infer that he would not volunteer information about activity undertaken only to support a false asylum claim. The case was therefore materially indistinguishable from S v SSHD, and no real risk of persecution, serious harm or Article 3 ill-treatment was established (paras [50]-[57]).
5. The Court distinguished FA (Iran) v SSHD because that case involved unclear and incoherent findings, made before the later guidance in XX v SSHD (PJAK – sur place activities – Facebook) Iran CG. Here the findings were clear and sufficient.

• Court of Appeal (Civil Division): Appeal dismissed. The Court held that the First-tier Tribunal had made no material error of law and that the Upper Tribunal was entitled to uphold its decision.
• Upper Tribunal (Immigration and Asylum Chamber): Appeal dismissed on all grounds. Upper Tribunal Judge Hoffman held that the absence of an express reference to the “hair-trigger” approach did not materially affect the decision.
• First-tier Tribunal: Appeal against the refusal of the protection claim dismissed on 1 May 2024.