DA v Secretary of State for the Home Department

In a sur place asylum claim, a tribunal need not make a separate finding whether a claimant was photographed at a demonstration if that fact cannot be established without speculation and would not materially advance the risk assessment. The proper inquiry is whether, considering the evidence in the round, the claimant has a profile likely to attract sufficient adverse interest for the authorities to identify and retain information about him. A mere possibility of a photograph is insufficient. A claimed dilemma on questioning at return also requires an evidential foundation for its necessary premises. Where country guidance does not support sophisticated surveillance systems, and there is no evidence that the claimant knew or feared such systems, failure to determine that hypothetical dilemma is not an error of law.

DA, an Iranian Kurd, claimed asylum after entering the United Kingdom illegally. The First-tier Tribunal rejected his account of activities in Iran but accepted that he had attended demonstrations and engaged in social-media activity in the United Kingdom. Applying the relevant country guidance, it found that his activities were sporadic, lacked publicity and did not create a real risk on return. It dismissed his appeal in determination 1.

The Upper Tribunal dismissed his further appeal in determination 2. The Court of Appeal granted permission on grounds concerning whether the First-tier Tribunal should have found whether DA had been photographed at demonstrations and whether it had properly assessed the risk arising from questioning on return. The central issue was whether the First-tier Tribunal had materially erred in law.

Appeal dismissed. The Court of Appeal held that the First-tier Tribunal had made a full and accurate assessment of the relevant country guidance and evidence. The issues were fact-sensitive, and the court declined to give general guidance on sur place claims.

1. The assessment of risk from sur place demonstrations required consideration of the relevant factors in the round. These included the nature and theme of the activity, its frequency and publicity, the claimant’s role, profile and motives, the authorities’ likely perception, methods of surveillance and identification, immigration history, and the consequences of identification. The approach was consistent with BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 00308 (IAC), as confirmed and supplemented by XX (PJAK, sur place activities, Facebook) Iran (CG) [2022] UKUT 23 (IAC) and AB (internet activity - state of evidence) Iran [2025] UKUT 00257 (IAC).
2. The First-tier Tribunal was not required to make a specific finding as to whether DA had been photographed. That issue could not be resolved without speculation and would not have advanced the assessment unless DA had a profile likely to attract sufficient adverse interest for the authorities to identify and retain information about him. The mere fact of a possible photograph therefore did not establish an error of law.
3. The argument that questioning on return would place DA in a dilemma also failed. It required evidence of two necessary premises: that the Iranian authorities possessed more sophisticated information-gathering systems than supported by the country guidance, and that DA knew of or feared those supposed systems. There was no such evidence. The First-tier Tribunal was not legally obliged to make a finding on the unsupported hypothetical dilemma.
4. The descriptions of DA’s activities as sporadic and involving successive flurries were permissible characterisations of the evidence. Since the First-tier Tribunal had not materially erred in law, the Upper Tribunal was right to uphold its determination.

1. Court of Appeal (Civil Division) Granted permission on grounds 1A and 2A and dismissed DA’s appeal.
2. Upper Tribunal (Immigration and Asylum Chamber) Dismissed DA’s further appeal in determination 2.
3. First-tier Tribunal (Immigration and Asylum Chamber) Dismissed DA’s asylum appeal in determination 1.