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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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2024] EWCA Civ 1482 | ||
2024-000028 |
CIVIL
DIVISION)
ON APPEAL FROM The Upper Tribunal
HHJ KEBEDE
UI-2022-006225
Strand, London, WC2A 2LL |
||
2024 |
B e f o r e :
LORD JUSTICE LEWIS
and
LORD JUSTICE JEREMY BAKER
____________________
S | Appellant |
|
| - and - |
||
Secretary of State for the Home Department |
Respondent |
____________________
Mr William Hansen (instructed by the Government Legal Department) for the Respondent
Hearing date: 27 November
2024
____________________
Crown Copyright ©
Lord Justice Jeremy Baker:
s
appeal against the decision of the First-tier Tribunal to dismiss the appellant'
s
appeal against the respondent'
s
refusal to grant asylum.
Appellant'
s
case
s
case throughout the proceedings has been that he is an Iranian citizen of Kurdish ethnicity born on 1 August 1994, and now aged 30.
shepherd
in Iran, the appellant befriended two Kolbars who were members of the Kurdistan Free Life Party, ("PJAK"). About two months later, one of them gave the appellant a letter and asked him to place it in his barn from where it would be collected by a third-party. However, the Kolbar who gave him the letter was discovered and the appellant'
s
mother phoned the appellant to warn him not to return home, as
someone
had been arrested and his home had been raided.
social
media.
Respondent'
s
decision to refuse asylum
substantive
asylum interview with the respondent who refused his claim for asylum on 25 March 2022.
s
political activities were limited to his attendance at a demonstration outside the Iranian Embassy on one occasion, as depicted in an image which he
submitted
which
showed
him
standing
alone at a
significant
distance away from the Embassy behind a hedge. Moreover, his Facebook account, which had been
set
up by a third-party on an unknown date, had ceased about 2 months or
so
prior to the interview, due to his phone being deactivated by his
service
operator. The appellant provided three images from the Facebook account, comprising a profile picture, a cover photo and a post by a third party. It was not clear as to whether the Facebook account was a public one and the appellant
stated
that he did not intend to create another one.
Appeal to the First-tier Tribunal
section
82(1) of the Nationality, Immigration and Asylum Act 2002, ("2002 Act") and the appeal was heard and dismissed by the First-tier Tribunal, Tribunal Judge Dilks, in a decision promulgated on 21 October 2022, on asylum, humanitarian protection and human rights grounds.
suspicious
of Kurdish political activity and that Kurds involved in even "low-level" political activity, if discovered, are at real risk of persecution or Article 3 ill-treatment. However, the judge considered that the appellant'
s
account as to what had taken place in Iran was internally inconsistent, vague and lacking in detail
such
that
she
did not accept that the appellant was a
supporter
of PJAK or
subject
to adverse attention from the Iranian authorities for PJAK activities in Iran.
satisfactory
explanation as to why, inter alia, he had trusted the two Kolbars who may have been working for the Iranian authorities, or why they may have trusted the appellant. Nor why the Kolbar had asked the appellant to place the letter in his barn, or how the third-party would know from where to collect it.
She
reminded herself of the further guidance in HB, that those of Kurdish ethnicity are regarded with greater
suspicion
by the Iranian authorities, and are likely to be
subjected
to heightened
scrutiny
on return to Iran. Moreover, that although the mere fact of being a returnee of Kurdish ethnicity with or without a valid passport and even if combined with illegal exit does not in itself create a risk of Article 3 ill-treatment, being Kurdish is a risk factor, which when combined with other risk factors,
such
as involvement in low-level political activity, if discovered, involves the risk of persecution or Article 3 ill-treatment. Moreover, that the Iranian authorities demonstrate a "hair-trigger" approach to those
suspected
of or perceived to be involved in Kurdish political activity or
support
for Kurdish rights,
such
that the threshold is low and the reaction by the authorities is likely to be extreme.
s
refusal letter, the appellant had only attended one demonstration outside the Iranian Embassy on 13 July 2021, but
since
then had attended another five demonstrations on 22 March 2022, 5 April 2022, 17 April 2022, 25 May 2022 and 10 August 2022. It was noted that the appellant had provided further images from
some
of these demonstrations, in which the appellant was holding various anti-Iranian regime posters and flags, which the judge accepted as evidence that the appellant had attended four or five demonstrations outside the Iranian Embassy.
s
previous Facebook account had been in the name of DSS, and that the appellant
stated
that he was unable to access this account,
since
his phone had been deactivated by his
service
provider. However, he had
since
then
set
up a new Facebook account in the name of DS, from which about a hundred posts had been provided
some
of which included images of the appellant with the PJAK flag and included the words, "No to the Islamic Republic of Iran," which the judge accepted were of a political nature and anti-regime.
s
political activities which is important,
such
that the appellant'
s
motivation for taking part in demonstrations and posting on
social
media is irrelevant. In these circumstances the judge found that, if discovered, the appellant faces a real risk of persecution or Article 3 ill-treatment in Iran due to his political activities in the UK.
suggested
that any of the demonstrations had attracted media attention in the UK or Iran. Moreover,
she
considered the appellant to be an infrequent demonstrator who played no particular role in the demonstrations,
such
that he was just a face in the crowd. The judge found it was not reasonably likely that the appellant was a demonstrator who the Iranian authorities would wish to identify,
such
that
she
did not find that it was reasonably likely that the appellant'
s
attendance at demonstrations had already come to the attention of the Iranian authorities.
s
social
media posts, the judge reminded herself of the guidance in XX (PJAK
sur
place activities Facebook) Iran CG [2022] UKUT 23 (IAC) ("XX") that there was no evidence to
show
that the Iranian authorities monitor Facebook accounts on a large
scale,
and that more focused
searches
will be confined to individuals of
significant
adverse interest. In this regard, whether an individual'
s
Facebook account will be targeted, before it is deleted, will depend on the individual'
s
existing profile, and whether they fit into a "
social
graph."
s
social
media posts in the UK would have brought him to their attention.
s
use of
social
media had already become the focus of targeted
surveillance
by the Iranian authorities, and that the material on the Facebook accounts would not already be known to the Iranian authorities. In this regard, the judge noted that the appellant had not been photographed with anyone of any prominence within the PJAK. Neither the old nor current account was in the appellant'
s
name, and there was no
satisfactory
explanation as to why a number of the "likes" originated from the appellant. Moreover, there had not only been a lack of full disclosure in electronic format of the Facebook accounts, but there was no reason why the appellant could not have produced
such
evidence.
such
a document would be the first of the potential "pinch-points," as referred to in XX, when the Iranian authorities are likely to carry out basic
searches,
including open internet
searches
relating to the appellant. The judge reminded herself that in XX, it was
said
that provided an individual'
s
Facebook account had not already been the
subject
of
specific
monitoring prior to its closure, the timely closure of an account is likely to neutralize the consequential risk of having had an account which was critical of the regime.
s
political activities in the UK were opportunistic and not genuine,
such
that the appellant would be likely to close his Facebook accounts prior to applying for an emergency travel document. In respect of his first account, the judge found, at [74], that, "I do not accept the reasons the appellant
says
he is unable to access his previous Facebook account and I find that with assistance he would be able to close his Facebook accounts".
second
"pinch-point" would be upon the appellant'
s
return to Iran, and that he would be questioned upon arrival as a failed asylum
seeker,
PS (Christianity risk) Iran CG [2020] UKUT 46 (IAC) ("PS") and that
such
an individual may have to reveal their online accounts, AB and Others (internet activity
state
of evidence) Iran [2015] UKUT 257 (IAC) ("AB").
"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."
stated
that having rejected the genuineness of the appellant'
s
political beliefs, he fell outside the
scope
of HJ (Iran) v
SSHD
[2011] AC 596 ("HJ") and that it was reasonably likely that the appellant would not volunteer information regarding any of his political activities in the UK or his reason for claiming asylum. Therefore, his political activities in the UK would not come to the attention of the Iranian authorities on his return to Iran, and he would not be at risk of persecution or Article 3 ill-treatment.
Application for permission to appeal to the Upper Tribunal
sought
permission to appeal the decision of the First-tier Tribunal upon multiple grounds concerning various of the finding made by the judge, most of which were considered to be of no arguable merit by the Upper Tribunal on the basis that,
"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
s
concession concerning the two grounds which the
Single
Judge had identified as having
some
arguable merit, the Upper Tribunal, in a decision promulgated on 13
September
2023,
set
aside the decision of the First-tier Tribunal on that limited basis, and ordered that, whilst the majority of the findings made by the First-tier judge were preserved, it was appropriate for the remaining issue of risk on return to be decided in the Upper Tribunal. The
single
judge
stated
that,
" .
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
s
appeal came before the Upper Tribunal, Judge Kebede, on 26 October 2023, and in a decision promulgated on 8 November 2023 the appeal was dismissed.
statement
dated 13 October 2023, which attested to his attendance at demonstrations outside the Iranian Embassy on four further occasions, namely 22 November 2022, 2 January 2023, 11 June 2023 and 5 August 2023. It was
stated
that whilst attending these demonstrations he had been vocal and visible wearing a hi-vis jacket and was therefore not just a face in the crowd. The appellant provided images in
support
of these assertions, and further Facebook posts in which he had
shared
his
support
for PJAK. It was asserted that he was unable to delete his previous Facebook account as he had lost his old mobile phone and therefore he would be at risk from the Iranian authorities on his return to Iran.
"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."
s
attendance at demonstrations,
she
stated
that,
"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."
s
use of
social
media, Judge Kebede
stated
that,
"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."
second
pinch-point on the appellant'
s
arrival in Iran as a failed asylum
seeker
who had left Iran illegally, Judge Kebede reminded herself of BA, PS, HB, and
SSH
and HR (illegal exit: failed asylum
seeker)
Iran CG [2016] UKUT 308 (IAC) ("
SSH")
and noted that it was accepted on behalf of the appellant that those factors without more would not put the appellant at risk and that it was only if the authorities
suspected
the appellant'
s
involvement in political activity or
support
for Kurdish rights, that he would be at risk. In these circumstances the judge considered that the determinative question would be what the appellant would or could reasonably be expected to
say
when questioned by the Iranian authorities.
stated
that,
"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
s
grounds of appeal against the 2nd decision of the Upper Tribunal are twofold:
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.
submits
that the appellant'
s
grounds are no more than a disagreement by him with the findings and conclusions which Judge Kebede was entitled to reach on the evidence and in accordance with the relevant authorities which
she
properly applied.
Discussion
subject
to persecution or Article 3 ill-treatment due to him being identified as being of interest to the authorities on his return to Iran and whether, when interviewed, he would disclose or have to disclose any of his activities in the UK or his reasons for claiming asylum. The context being the remaining findings by Judge Dilks upon which permission to appeal had not been granted and were therefore retained.
s
account of events leading up to his leaving Iran, his lack of any involvement in PJAK or politics up till then, his activities in the UK being opportunistic and lacking in genuine belief, and which would not have come to the attention of the Iranian authorities prior to the appellant'
s
return to Iran.
set
out in his more recent witness
statement
dated 13 October 2023, and which Judge Kebede was obliged to take into account when considering the appeal. Moreover, when it came to her assessment of the impact of those activities upon the determinations which were required to be re-made, it was necessary for the judge to follow those aspects of the country guidance which were relevant to that assessment.
seeks
to rely upon a passage in BA, at [65], to the effect that there is evidence that the Iranian authorities attempt to identify those participating in demonstrations outside the Embassy in London by filming them,
such
that it is argued that the mere presence of the appellant at these demonstrations would be
sufficient
to trigger his identification on his return to Iran. However, this is to take this aspect of the judgment out of context from the remainder of the Upper Tribunal'
s
judgment, and in particular, at [66], that,
"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 "
s
deliberately contrived activities at demonstrations was "just"
sufficient
to establish a risk that he had been
subject
to
surveillance
by the authorities, this was a fact-
specific
judgment in that case, and our task in the present appeal is to determine whether Judge Kebede appropriately assessed the risk emanating from the particular activities caried out by the appellant in the UK.
social
media. It was apparent from the expert evidence in that case, at [31] [36], that the deletion of a Facebook account was achievable, and that the effect of this was
set
out at [126], namely that,
"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."
sufficient
time prior to any checks being carried out, the data will cease to be accessible.
social
media more generally, at [127] [129], as follows:
" ..
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.
.."
s
attendance at further demonstrations, but carried out a careful analysis of the
supporting
evidence as to the activities carried out by the appellant at those demonstrations.
s
attendance outside the Embassy
since
his arrival in the UK, and to consider its
significance
in relation to the risk to the appellant, in accordance with the relevant country guidance in the cases to which both
she
and we have referred.
s
use of
social
media, it was necessary for the judge to take into account the whole history of his usage of
social
media
since
his arrival in the UK, and to consider its
significance
in relation to the risk to the appellant in accordance with the relevant country guidance.
s
attendance at demonstrations outside the Iranian Embassy at [17], but also in relation to his use of
social
media. The judge'
s
analysis of the latter evidence being
set
out at [18] of the judgment which, taken together with the evidence concerning the appellant'
s
attendance at demonstrations, entitled her to find that the appellant'
s
activities whilst in the UK would not have come to the attention of the authorities,
such
that he would not have been identified as of interest to the Iranian authorities prior to his arrival in Iran.
should
disclose the existence of them, which would not have previously been known to the authorities, as like his attendance at demonstrations, their apparent contents did not reflect any genuinely held belief by the appellant. Although the judge did not
say
so
in terms, it inevitably follows that the
same
would apply to the appellant'
s
attendance at demonstrations
since
his arrival in the UK.
second
ground, it was in the context of these findings that the judge went on to consider the matters which it had been held that the First-tier Tribunal had failed to analyse properly, and which Judge Kebede was required to determine, namely the existence of any risk to the appellant based on what the appellant could reasonably be expected to
say
to the authorities on his return to Iran.
so,
it was necessary for the judge to take into account the relevant country guidance, and in particular that
set
out in HB at [98] namely,
" ..
(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.
."
set
out her findings in relation to this issue between [21] [23] of the judgment, and as I have already observed
she
was doing
so
in the context not only of the retained findings of fact by Judge Dilks but also her own as to the lack of prior knowledge by the authorities of the appellant'
s
activities whilst in the UK. In these circumstances,
she
was entitled to approach the issue on the basis that although being an individual of Kurdish ethnicity was a factor of particular
significance
when assessing the appellant'
s
risk, the fact that he had exited Iran illegally and did not have a valid passport did not of itself create a risk of persecution or Article 3 ill-treatment.
she
posed, namely what the appellant would or could reasonably be expected to
say
when questioned by the Iranian authorities. In my judgment, bearing in mind the retained finding that the appellant'
s
activities whilst in the UK were opportunistic and not genuine, the judge was entitled to find that the appellant would not be required to volunteer information about those activities. Furthermore, that as the appellant had no involvement in PJAK or politics before he left Iran, there would be no other reason for the Iranian authorities to have any
suspicion
about the appellant,
such
that on his return to Iran, there would be no risk to the appellant either of persecution or Article 3 ill-treatment either by reason of
second-stage
questioning or otherwise.
submissions,
Ms Patel on behalf of the appellant brought to our attention RT (Zimbabwe) v
SSHD
[2012] 1AC 152, ("RT") and
submitted
that it was necessary for Judge Kebede to have considered the type of issues which Lord Dyson mentioned at [57] before being properly able to reach a view as to the risk to the appellant on his return to Iran, including what the appellant might be asked by the authorities on his return and how well he would be able to lie to them. However, as was pointed out in XX at [98], the issues which the
Supreme
Court were considering in RT, arose in a very different context, namely the return of a non-political Zimbabwean to an area in which it was likely that he would have to provide a convincingly false account of his allegiance to the ruling party when
stopped
and questioned by ill-disciplined militia at roadblocks.
Conclusion
second ground of appeal fails and accordingly I would dismiss the appeal.
Lord Justice Lewis
Lord Justice Moylan