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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> S v Secretary of State for the Home Department [2024] EWCA Civ 1482 (06 December 2024) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2024/1482.html Cite as: [2024] EWCA Civ 1482 |
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CIVIL
DIVISION)
ON APPEAL FROM The Upper Tribunal
HHJ KEBEDE
UI-2022-006225
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B e f o r e :
LORD JUSTICE LEWIS
and
LORD JUSTICE JEREMY BAKER
____________________
![]() | Appellant |
|
- and - |
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Secretary of ![]() ![]() |
Respondent |
____________________
Mr William Hansen (instructed by the Government Legal Department) for the Respondent
Hearing date: 27 November 2024
____________________
Crown Copyright ©
Lord Justice Jeremy Baker:
Appellant's
case
Respondent's
decision to refuse asylum
Appeal to the First-tier Tribunal
"In deciding the issue of risk on return involving a Facebook account, a decision maker may legitimately consider whether a person will close a Facebook account and not volunteer the fact of a previously closed Facebook account, prior to application for an ETD."
Application for permission to appeal to the Upper Tribunal
"The decision includes clear and cogent reasons as to why the Appellant had not established that he had any involvement in PJAK or politics prior to leaving Iran and why he would not, even taking into account hissur
place activities, likely to have already come to the attention of the Iranian authorities. There is no arguable failure to apply the country guidance or consider any material matters in reaching those conclusions which were open to the Tribunal on the evidence before it."
"The only part of the grounds which havesome
arguable merit (just) are as to the Judge'
s
assessment of whether the Appellant would be identified as of interest to the authorities and whether he would disclose or would have to disclose any of his
sur
place activities (demonstrations and Facebook posts) given he is likely to be interviewed on return; in accordance with the various country guidance. I do not however limit the grant of permission to this ground, but the Appellant
should
be aware that I find no arguable merit on the remaining points for the reasons
set
out above."
Upper Tribunal 1st decision
" .
12. There is no error in the judge's
detailed and careful findings as to the lack of credibility of the appellant'
s
pre-flight claim or the conclusion that his limited
sur
place activities were not reasonably likely to have come to the attention of the Iranian authorities. Grounds three, four and five amount to little more than disagreement with the conclusions of the judge and as
such
they identify no error of law.
.
17. The respondent, neither in the Rule 24 response nor insubmissions,
refers to any passage of the decision where the judge grappled with the existence of any risk to the appellant based
solely
on what he could reasonably be expected to
say
to the Iranian authorities regarding the basis of his asylum claim or the extent of his political activities when questioned, particularly on arrival in Iran. This amounts to a material error given the importance of the pinch-point issue, as highlighted in PS. Given this error, the overall conclusion of the judge as to the risk to the appellant on return to Iran and the decision dismissing the appeal are
set
aside. The remaining findings are preserved.
.."
Upper Tribunal's
2nd decision
"15. In her decision, Upper Tribunal Judge Kamara found no error of law in Judge Dilks' findings as to the lack of credibility of the appellant's
pre-flight claim or the conclusion that his limited
sur
place activities were not reasonably likely to have come to the attention of the Iranian authorities.
She
found that Judge Dilks had provided
sound
reasons for treating the evidence relating to the appellant'
s
claimed Facebook posts with circumspection. It was also the finding of Judge Dilks, as preserved by Upper Tribunal Judge Kamara, that the appellant'
s
![]()
sur
place activities were not a reflection of any genuine political belief, but were opportunistic and were undertaken in order to provide a basis for demonstrating a risk on return to Iran."
"17. In this appellant's
case, whilst photographed wearing hi-vis jacket and holding posters, the appellant is pictured with his back to the Iranian Embassy, at a distance from the Embassy and apart from the crowds at the demonstrations. Contrary to the appellant'
s
evidence in his
statement
there is nothing in the photographs to
suggest
that he was an active participant or that he was an interested and identifiable protestor, or that he was anything other than a face in the crowd. Rather the photographs
suggest
that he
simply
posed for a few photographs for the purposes of his asylum claim,
standing
apart from the main demonstration. As Mr Bates
submitted,
there is no
supporting
evidence
such
as video footage to
show
that the appellant was an active and vocal participant, and that his involvement was anything other than posing for a few photographs. Neither is there any evidence to
support
his claim to have played a role of guiding the protestors or to have invited others at his college to attend the demonstrations, as
stated
in his
statement.
There is nothing to
suggest
that he would have been observed by the Iranian authorities or that he would come to their attention in any way."
"18. Thesame
can be
said
of the appellant'
s
Facebook postings which, as Judge Dilks found, were not accompanied by full disclosure in electronic format and, as Mr Bates
submitted,
did not include any meta-data
showing
that his account had not been edited, as the guidance in the headnote to XX refers at [7] and [8]. As Mr Bates
submitted,
that in itself diminished the weight to be given to the posts as evidence of the appellant'
s
perceived political
stance.
Further, as Judge Dilks found, and as Mr Bates
submitted
with reference to [100] of XX, there is no reason why the appellant could not close his Facebook account and not volunteer the fact of a previously closed Facebook account, prior to the application for an ETD, given that the postings were not a reflection of any genuinely held political beliefs. Unlike the
situation
in XX, where the deletion of XX'
s
Facebook material and closure of his account before he applied for an ETD would
serve
no purpose
since
his profile was
such
that there was a real risk that he had already been targeted before the ETD pinch-point, there is no basis in this appellant'
s
case for concluding that he is already known to the Iranian authorities or has been targeted for
surveillance.
He has no '
social
graph' as in XX which would have led to attention being drawn to him and which could have made him the
subject
of targeted
social
media
surveillance.
Contrary to Ms Patel'
s
![]()
submission,
therefore there would be no interest 'flagged up' in relation to the appellant at the first pinch point at the ETD application
stage
![]()
since
any internet or other
searches
against his name would not produce any information adverse to the Iranian regime."
"21. Ms Patelsubmits
that the appellant cannot be expected to lie about his activities in the UK and the basis of his asylum claim and that his disclosure of his Facebook postings and attendance at demonstrations would be
sufficient
to put him at risk irrespective of the fact that they may have been opportunistic. However, as Mr Bates
submitted,
not only would the Iranian authorities have no prior knowledge of the appellant'
s
attendance at demonstrations or his Facebook activities and would not find any presence on
social
media
since
the appellant would have deleted his account, but that, as established in XX, the appellant would not be required to volunteer information about his activities which were not an expression of any genuinely held beliefs and which had been contrived
solely
to enhance a false claim for asylum and to deceive the UK authorities. That was precisely the point made by the Upper Tribunal in XX at [100] where it was
said
that 'Decision makers are allowed to consider first what a person will do to mitigate a risk of persecution, and
second,
the reason for their actions if the person will refrain from engaging in a particular activity, that may nullify their claim that they would be at risk, unless the reason for their restraint is
suppression
of a characteristic that they have a right not to be required to
suppress,
because if the
suppression
was at the instance of another it might amount to persecution.'
22. As Mr Batessubmitted,
the appellant'
s
true account was that he had been photographed at the back of a demonstration pretending to be an attendee but that that did not reflect any genuine beliefs, and that he had created a Facebook account and posting to deceive the UK authorities. There was no reason why he
should
volunteer that information and the withholding of
such
information would not impact upon any fundamental rights protected by the Refugee Convention. There is accordingly nothing in the guidance in
SSH
to
support
Ms Patel'
s
![]()
submission
that there would be a
second
![]()
stage
of questioning which would involve detention and a risk of Article 3 ill-treatment. As was found in that case at [23], 'a person with no history other than that of being a failed asylum
seeker
who had exited illegally and who could be expected to tell the truth when questioned would not face a real risk of ill-treatment during the period of questioning at the airport.' Likewise, there is nothing in the guidance in HB, BA or PS to
support
Ms Patel'
s
![]()
submission
in that regard.
23. Accordingly, there being no reason for the Iranian authorities to have anysuspicion
of the appellant on the basis of any actual or perceived activities in the UK, and there being no reason for him to be detained and transferred for further questioning, the appellant has
simply
failed to demonstrate any basis for being at risk on return to Iran. There is no reason to believe that he would wish to engage in any anti-regime activities in Iran, having never previously held any genuine political beliefs and having never previously been genuinely or knowingly involved or perceived to be involved, in anti-regime activities. The appellant'
s
removal to Iran would not, therefore, give rise to any real risk of persecution and he has failed to make out any grounds of claim on asylum, humanitarian protection or human rights grounds."
Grounds of appeal
i. Firstly, that the judge erred in law by failing to consider material matters as per the Iranian country guidance cases of BA, HB and XX, including the increased likelihood of the appellant's
attendance at demonstrations being brought to the attention of the authorities due to the increased number of demonstrations which he attended, the extent to which the appellant had drawn attention to himself at those demonstrations, expert evidence in HB to the effect that the closure of a Facebook account does not diminish the risk on return to Iran, the evidence in XX that limited caches of Facebook data may remain on internet
search
engines after the closure of a Facebook account and that images on other individuals' accounts can
still
exist, and the increased risk which may arise at the first pinch point, if a Facebook account has not been closed prior to an application being made for an emergency travel document.
ii.Secondly,
that the judge failed to apply the facts as found in the appellant'
s
case to the country guidance cases of PS, BA, HB and
SSH,
in that
she
failed to consider that the appellant was Kurdish and therefore at heightened risk of
suspicion
on return to Iran, that the appellant had left Iran illegally and would therefore be questioned on return at the airport, that the appellant had attended 4 or 5 anti-regime demonstrations outside the Iranian Embassy and the fact that the appellant had made anti-regime Facebook posts whilst in the UK.
Discussion
"66. As regards identification of risk back in Iran, it would appear that the ability of the Iranian regime to identify all returnees who have attended demonstrations, particularly given the number of those who do, on return, remains limited by the lack of facial recognition technology and the haphazard nature of the checks at the airport. The expert frankly admitted that it was extremely difficult to estimate the risk to identified participants in protests against the Iranian government. Mr Basharat Ali's
careful
submission
was not that all of those returning, or returned from the United Kingdom, would be
subject
to mistreatment. We conclude therefore that for the infrequent demonstrator who plays no particular role in demonstrations and whose participation is not highlighted in the media there is not a real risk of identification and therefore not a real risk of ill-treatment, on return."
and, at [67], that,
" ..we haveseen
no evidence to lead to the conclusion that merely having exited Iran illegally an appellant might be
subjected
to persecution "
"126. The timely closure of an account neutralises the risk consequential on having had a 'critical' Facebook account, provided thatsomeone's
Facebook account was not
specifically
monitored prior to closure."
" ..
127.Social
media evidence is often limited to production of printed photographs, without full disclosure in electronic format. Production of a
small
part of a Facebook or
social
media account, for example, photocopied photographs, may be of very limited evidential value in a protection claim, when
such
a wealth of wider information, including a person'
s
location of access to Facebook and full timeline of
social
media activities, readily available on the 'Download Your Information' function of Facebook in a matter of moments, has not been disclosed.
128. It is easy for an apparent printout or electronic excerpt of an internet page to be manipulated by changing the pagesource
data. For the
same
reason, where a decision maker does not have access to an actual account, purported printouts from
such
an account may also have very limited evidential value.
129. In deciding the issue of risk on return involving a Facebook account, a decision maker may legitimately consider whether a person will close a Facebook account and not volunteer the fact of a previously closed Facebook account, prior to application for an ETD: HJ (Iran) vSSHD
[2011] AC 596. Decision makers are allowed to consider first, what a person will do to mitigate a risk of persecution, and
second,
the reason for their actions. It is difficult to
see
circumstances in which the deletion of a Facebook account could equate to persecution, as there is no fundamental right protected by the Refugee Convention to have access to a particular
social
media platform, as opposed to the right to political neutrality. Whether
such
an inquiry is too
speculative
needs to be considered on a case-by-case basis.
.."
" ..
(4) the mere fact of being a returnee of Kurdish ethnicity with or without a valid passport, and even if combined with illegal exit, doe does not create a risk of persecution or Article 3 ill-treatment.
(5) Kurdish ethnicity is nevertheless a risk factor which, when combined with other factors, may create a real risk of persecution or Article 3 ill-treatment. Being a risk factor it means Kurdish ethnicity is a factor of particularsignificance
when assessing risk. Those 'other factors' will include the matters identified in paragraphs (6)-(9) below.
..
(9) Even 'low-level' political activity, or activity that is perceived to be political,such
as, by way of example only, mere possession of leaflets espousing or
supporting
Kurdish rights, if discovered, involves the
same
risk of persecution or Article 3 ill-treatment. Each case however, depends on its own facts and an assessment will need to be made as to the nature of the material possessed and how long it would be likely to be viewed by the Iranian authorities in the context of the foregoing guidance.
(10) The Iranian authorities demonstrate what could be described as a 'hair-trigger' approach to thosesuspected
of or perceived to be involved in Kurdish political activities or
support
for Kurdish rights. By 'hair-trigger' it means that the threshold for
suspicion
is low and the reaction of the authorities is reasonably likely to be extreme.
."
Conclusion
Lord Justice Lewis
Lord Justice Moylan