FA (Iran) v Secretary of State for the Home Department [2024] EWCA Civ 149 (22 February 2024)
The Court of Appeal has held that the UT should have concluded that the FTT had failed to apply the current Iran country guidance cases to the appellant FA's case, who was a Kurdish National of Iran who claimed to have left Iran illegally on foot, and claimed to have got married en route to the United Kingdom. He had entered the United Kingdom on 4 December 2019 and then claimed asylum. The SSHD rejected his claims for asylum and for humanitarian protection. The appeal was remitted to a different judge in the FTT for him to consider the question of risk to the appellant if he were returned to Iran. The Court of Appeal grappled with the two determinations at hand, i.e. the FTT determination and the UT determination which Elisabeth Laing LJ referred to as determination 1 and determination 2 during the course of her judgment. She touched on the effects of XX (PJAK – sur place activities – Facebook) Iran CG [2022] UKUT 23 (IAC), SSH and HR (Illegal Exit) Iran CG [2016] UKUT 308 (IAC), HB (Kurds) Iran CG [2018] UKUT 430 (IAC) and also BA (Demonstrators in Britain: Risk on Return) Iran CG [2011] UKUT 36 (IAC). The SSHD's case was that FA admitted in his asylum interview that he was a supporter of the Kurdish Democratic Party of Iran ("KDPI") and not a member. The SSHD considered it strange that FA had not been introduced to the KDPI until he was 29 and considered that the answers to questions in the the asylum interview were inconsistent.
The SSHD referred to SSH and HR and HB (Kurds) and to the CPIN dated February 2019 about illegal exit and said was that the mere fact of being a Kurdish returnee without a valid passport who had left Iran illegally did not create a relevant risk. He also concluded that as FA's claim to be a supporter of the KDPI had been rejected and because he had not spent time in the Kurdish area of Iraq, he was thus not of adverse interest for his political opinion. He had no relevant criminal or political profile. The SSHD also considered the guidance case of BA (Demonstrators in Britain: Risk on Return) when considering FA's sur place activities. The SSHD's assessment of the screenshots of Facebook posts on which FA relied was that those posts were not in his real name and that none showed him in a photograph, so that there was nothing to tie them to him. Overall, they were self-serving and could be deleted and the SSHD's conclusion was that the authorities would not be interested in FA. His own factual account was detailed and he did not know where he was born. He had been found and handed in to a Mosque. His mother told him that he was only 10-20 days old when he was given to her, and that he did not have any siblings. He did not go to an official school, but was educated at the Mosque for three years.
HB (Kurds)
Paragraph 7 of the headnote to HB states that Kurds involved in Kurdish political groups faced a real risk of persecution or ill-treatment within article 3 of the ECHR. Paragraph 9 states that even low-level political activity involved the same risk of persecution or ill-treatment, but each case depended on its facts and an assessment had to be made as to the nature of any relevant material and how it would be likely to be viewed by the Iranian authorities. FA submitted that the FTT had failed to apply the relevant country guidance, including HB (Kurds). FA conceded that he did not have sufficient prominence to bring him to the Iranian authorities' attention, but argued that they would examine his Facebook profile if he were returned.
Background
FA understood that he had been eight to ten years old when his father died. He had known B as a friend or neighbour since childhood—but he did not know how long B had been involved with the KDPI. B told FA about his KDPI activities just before they started them in 2019. Moreover, his father had been a supporter of the KDPI and for the freedom of Kurdish people in Iran. He believed that his father was a martyr. He had been told at the screening interview to give short answers. After the problems, he ran away. He did not go home and left Iran within three days. An agent or smuggler had helped him. His uncle arranged for his travel "via the smugglers". He had spoken to his mother on the telephone just after he arrived in the United Kingdom. He did not ask whether anyone was looking for him. He just wanted to know that she was well. His journey took about two months. He did not know what countries he had been in, apart from Turkey. He had met his wife at his smuggler's home. He did not know where that was. They decided to get married after ten days. The agent spoke to an Imam on the telephone and the Imam married them over the telephone.
They had lived together in the United Kingdom and attended a demonstration together and one other meeting in London. The demonstration was in front of the Iranian Embassy and they said things against the regime and showed photographs of the Iranian President. He had been using Facebook since 2020 "to show that he was against the regime". In Iran he was known by [name 1] but he had changed his name on Facebook to his surname, that is, his family name [name 2]. That was after the SSHD had refused his asylum claim.
His wife is literate. She supports him with his posts on Facebook, although she does not speak English. Most of the posts are in Kurdish Sorani. He also has a friend who helps him with English. He said people in Iran have Facebook and social media but he himself had only used it after coming to the United Kingdom. He had only ever rung his mother once because he was worried about her and the family in Iran. He felt that phones were checked by the regime.
The FTT accepted that FA left Iran illegally. It also accepted that "he has used social media to make posts against the government of Iran on a sur place activity basis" but "of course that does not mean that he was acting in the way he claims in Iran or has been sur place activity albeit of a fairly low level using Facebook. That level of use of Facebook has been for a relatively short period of time but nonetheless I find it has been" and that "Change of name claimed is not an anomaly in this case and not one that finds FA being of credibility".
There was "no ground of fearing any persecution in Iran for imputed or actual political opinion upon return to Iran". His asylum claim could not succeed. Nevertheless, the FTT considered that there was "a case to consider here in further depth with regard to sur place activity and leaving Iran illegally". It was aware that there is discrimination against Kurds in Iran which is "known to be an intolerant country with regard to dissent".
Referring to HB, it was clear to the FTT that FA would be questioned on his return. The FTT had found that he was not involved in "Kurdish activity" when he was in Iran. If he were questioned and his Facebook were looked at, "then we have a situation where he has two different names. There would have been some forwarding of other people's posts and perhaps, if he has not already deleted it, the odd photograph of him attending an event in London". He would not be at risk at all as a Kurd who had been refused asylum.
For the FTT, FA's account lacked credibility in several respects. While it accepted that the Iranian authorities had a "hair-trigger" approach—with a low threshold of suspicion— towards anyone perceived to be involved in Kurdish political activities, it took the view that there would be no adverse reaction from the Iranian authorities that would reach the necessary threshold of risk.
In the UT, FA submitted that the relevant country guidance cases were HB and BA. Both the names on FA's Facebook account were his: one, his nickname, meant "Without a Parent" and the current name on his Facebook page was his family name. The FTT had failed to consider what FA would say when questioned about his Facebook activity, and had failed to see that the Facebook posts were his, and had not just been forwarded. The Facebook material included photographs of FA holding a "plaque" and pictures which were derogatory of the regime. The FTT had not taken the relevant country guidance material into account. HB showed that it did not help to delete a Facebook account. In any event there was no evidence that he had deleted, or would delete, it. XX said that it would be too late, even if the posts were deleted, as the damage had already been done and the FTT's credibility findings were wrong. The SSHD submitted that if a person's beliefs were not genuine, they could not rely on HJ (Iran) v SSHD [2010] UKSC 31 and could not claim to have a social media profile when they did not. He could delete his Facebook account. He was posting and forwarding pictures which he did not create. The authorities would not know about them and there would be no risk at the pinch point. The change of name was relevant as FA had taken someone else's account and its contents.
The UT upheld the FTT's determination as the findings were based on a full and detailed assessment of the evidence in the light of the country guidance and country information. The FTTJ provided clear and cogent reasons for reaching the conclusions that he did and the grounds of challenge were not made out. Aggrieved by the two tier rejection of his claim, FA appealed to the Court of Appeal which allowed his appeal as explained below.
The Court of Appeal
FA submitted that the cumulative effect of the points made in the headnote of HB is that there was little if any scope for an evaluation by the decision-maker—as—if those were satisfied, a claim for asylum/humanitarian protection must succeed. He submitted on his return to Iran, his Facebook posts were likely to be examined. He was Kurdish and the posts were political. That was enough to create a real risk. It did not matter whether FA's political gestures were genuine or not. The FTT's findings about FA's Facebook posts were inadequate, but they were still sufficient to show that—applying the Iran country guidance—he would be at risk on return.
He said the court should either substitute for determination 2 a decision that the appeal succeeded outright, or remit the matter to the FTT. He accepted that some of the FTT's findings would have to be preserved. Elisabeth Laing LJ held that:
66. I would be inclined to accept Ms Patel's submissions about the effect of paragraphs (7) and (9) of HB. A Kurd who returns to Iran with political material on his Facebook account would be likely to be at risk because his Facebook account would be examined, and the material would be found. But, in any event, even if that is not correct, and paragraph (7) is to be read subject to paragraph (9), I agree that the evaluation required by paragraph (9) is not an evaluation of the level of the material, but an evaluation of whether it was political, and, if so, of how it would be seen by the regime.
67. In paragraph 73 (see paragraph 25, above), the FTT appears to have accepted the Appellant's evidence that he attended one demonstration and one event (see paragraph 18, above). It is not clear however, whether the FTT also accepted that the demonstration was outside the Iranian Embassy, or that the Appellant had been 'saying things against the regime and showing photographs of the President of Iran'. Nor did the FTT make any finding about the nature of the 'event', although the decision records the Appellant's claim in his asylum interview that it was an event on 26 January 2020 to support the anniversary of the Kurdish Republic. What the FTT did find, in paragraph 84, was that 'He did attend as a Kurdish supporter in the UK at events…'. That finding is somewhat opaque.
Determination 1 suggested that FA must have put his photograph on his Facebook account after the decision, that he had posted 12 photographs on Facebook in the current year, and that he had changed the name on this Facebook account. Moreover were no findings about the exact nature of the Facebook posts. Significantly, FA conceded that attending one demonstration and one event in the United Kingdom was not enough to put him on the authorities' radar. On the other hand, he had not made any concession about what the authorities would find when they looked at FA's Facebook account, or about how they would react to what they found.
In paragraph 81, the FTT found that FA had used social media to "make posts against the government of Iran". Critical of the FTT, the Court of Appeal found much of the rest of paragraph 81 difficult to interpret, if not unintelligible and the last sentence was all but meaningless. In paragraph 84, the FTT found that FA had "forwarded on Facebook posts principally created by others". Moreover, in paragraph 86, it found that FA had had "some involvement whereby he will have anti-government items on his Facebook which he appears to have adopted and forwarded".
Paragraph 95, had a finding that the photographs on FA's Facebook account would show that "he has two different names" and also a half-finding that "There would be seen some forwarding of other people's posts, and perhaps, if he has not already deleted it, the odd photograph of him attending at an event in London". This was a half finding because there is material in paragraph 97 which implied (although this is not clearly expressed) that a distinction between FA's case and that of HB was that HB's Facebook account did (and FA's did not) have photographs of himself. Elisabeth Laing LJ held that:
70. There is therefore a crucial gap in the FTT's reasoning. The reader of determination 1 does not know, other than in the vaguest terms, what investigation of the Facebook account would show. Such findings or hints as there are suggest that the material on the Appellant's Facebook account would provoke a hair-trigger response from the Iranian authorities, as the material is both hostile to the government and is said to show the Appellant at an unidentified but potentially relevant event. Ground i. (see paragraph 41, above) summarises the Appellant's case about what the material would show. Nor does determination 1 explain whether the change of the name on the Appellant's Facebook account is significant, and, if so, in what way.
71. In the light of even the FTT's limited findings, the FTT's conclusion that there would 'be an issue' for the Appellant on return, but that it would not elicit the authorities' 'hair trigger' reaction is inexplicable. It was only if the FTT was able to say that the Iranian authorities would find nothing in the Appellant's Facebook account which was, or which they would construe as, political and hostile to the regime, that the FTT could have found that he would not be at risk on return. It may be that there is something unusual in the Facebook material which would justify the FTT's conclusion, but a reader of determination 1 is left with no idea what that material might be. I consider that the FTT erred in law, as claimed in ground i., by not giving the Facebook material the anxious scrutiny which it should have had. It also erred in law by failing, in the light of its limited findings and the country guidance cases, to explain how it was able to conclude that the Appellant would not be at risk on return.
It followed that the UT also erred in law in holding that the FTT in effect was not required to make any more findings about the Facebook posts than it had done, The court found by a narrow margin that the appeal should be remitted to a different judge in the FTT for him or her to consider the question of risk to FA if he were returned to Iran. Given the lack of clear findings about the Facebook material, Elisabeth Laing LJ did not think that it would be right for her to substitute a decision that the appeal be allowed outright.
Elisabeth Laing LJ's provisional view was that the FTT's finding that FA's account of having taken part in activities in Iran which would expose him to the risk of ill-treatment on return was not credible should be preserved, together with its findings in paragraph 73 about the fabricated nature of his interest in Kurdish politics. The result was that the only issue on remittal became whether—on the evidence which FA adduced—his sur place activities, whether appearing from his Facebook account or otherwise, have been such as to create a risk on return.
The Tribunal on remittal will have to give due regard to the latest country guidance. Singh and Underhill agreed with Elisabeth Laing LJ's judgment.
Comment
Apart from being inexplicable and opaque, determination 1 was full of spelling mistakes and other errors of expression and Elisabeth Laing LJ lamented that "in some cases, it is difficult to understand what determination 1 means." Instead, Her Ladyship preferred not to distract the reader by drawing attention to these errors and correct them, when she was reasonably confident that she actually knew what the FTT meant to convey. Iran is more a continent than a country and more a civilisation than a nation. However, it is quite clear that Kurds are not considered genuinely Iranian and are thought to be outwith the present structure of the Iranian nation as envisaged by the Islamic Republic of Iran and the harsh theocracy in Tehran run by the Ayatollahs. Without a country of their own, the Kurds are the world's largest stateless population and are scattered all over the Middle East in Iraq, Iran, Syria and Turkey where they are mistreated.
There are 10 to 12 million Kurds in Iran, approximately 12 to 15 percent of the population of Iran. Nevertheless, they are not accepted by Iranian society. Although the Constitution of Iran provides for equal rights for "all people of Iran", in practice such legal rights are not extended to minorities and Iranian Kurds face systematic discrimination and barriers and do not enjoy equal access to employment, housing, political office and education.