Upper Tribunal Sets Aside First-tier Decision Due to Error in Assessing Political Motivation

OUTCOME: Allowed

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-000658 First-tier Tribunal No: PA/02982/2024 PA/57376/2023 THE IMMIGRATION ACTS Decision & Reasons Issued: On 12th of September 2025 Before DEPUTY UPPER TRIBUNAL JUDGE [APPELLANT]) Appellant and SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent Representation: For the Appellant: [redacted] For the Respondent: [redacted] Heard at Manchester Civil Justice Centre on 26 August 2025 Order Regarding Anonymity Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND

REASONS 1. The appellant is a citizen of Iran. He arrived in the UK on 22 October 2020 and claimed asylum. His protection claim was refused, and he appealed to the First- © CROWN COPYRIGHT 2025

Appeal Number: UI-2025-000658 First-tier Tribunal No: PA/02982/2024 PA/57376/2023 tier Tribunal. His appeal was dismissed in a decision promulgated 13 December 2024. The appellant now appeals to the Upper Tribunal. Background 2. The appellant is an Iranian citizen of Kurdish ethnicity. He claimed that he was at risk in Iran due to being identified whilst distributing leaflets for the PJAK. He also claimed to be at risk on return due to his sur place activities, which included attending demonstrations and posting on [NAME] against the [NAME].

3. The respondent refused the protection claim on the basis that it was not accepted that the appellant had given a credible account of events in Iran. The respondent did not accept that the appellant’s sur place activities were demonstrative of a genuine political opinion or that they would place the appellant at real risk on return. However, the respondent did accept that the appellant is an Iranian national of Kurdish ethnicity who exited Iran illegally.

4. The appellant appealed to the First-tier Tribunal. The appeal was heard by Judge Malik on 19 November 2024.

5. The Judge did not find the appellant’s account of events in Iran to be credible. The Judge considered that the appellant had attended demonstrations in the UK, and that he had a [NAME] profile. However, the Judge did not find the appellant to be at risk on return.

6. Judge Malik dismissed the appellant’s appeal.

7. The appellant submitted grounds of challenge. These were rejected by the First- tier Tribunal. However, on renewal to the Upper Tribunal, by decision dated 16 April 2025 Judge Hirst granted permission on the following terms:

3. Ground 1 is arguable. The judge’s findings on the credibility of the Appellant’s account as to his past experiences were arguably not, by themselves, a sufficient basis for finding that he would not continue his existing political and social media activity on return to Iran.

4. In relation to ground 2, the judge considered the Appellant’s argument that [NAME] should be departed from, but did not consider that the Appellant’s evidence was sufficient basis on which to do so. Her reasons for declining to depart from [NAME] were adequate. However, the judge’s finding that the Appellant would not carry out political activity was arguably material to her conclusion that the Appellant did not fall within the categories in [NAME] and I do not limit the grant of permission.

8. Thus, the matter came before me to determine whether Judge Malik’s decision involved the making of an error on a point of law. The Hearing 9. Mr [NAME] confirmed that he was no longer relying on ground 2.

10. He submitted that the Judge had failed to make findings on a material matter, namely the appellant’s motivation for his sur place political activities. He stated that the Judge in paragraphs 19 and 20 of her decision did not address the 2

Appeal Number: UI-2025-000658 First-tier Tribunal No: PA/02982/2024 PA/57376/2023 motivation for the appellant’s action. He submitted that the Judge viewed the case law in a vacuum. 11. [NAME] highlighted aspects of the appellant's evidence which he submitted indicated that the appellant had a genuine political motivation for his activities in the UK. However, he submitted that the Judge had failed to deal with this evidence. 12. [NAME] submitted that the Judge’s statement at paragraph 22 of her decision (“Given my credibility findings I further find he will not embark on anti- regime political activity on return either.”) was an insufficient basis for rejecting the appellant’s sur place activities. He also submitted that this statement by the Judge offended the principles detailed by the Supreme Court in HJ (Iran) v SSHD [2010] UKSC 31, as the Judge had not dealt with issue of why the appellant would not embark on anti-regime activity in Iran.

13. Ms [NAME] submitted that there was no material error of law in the Judge’s decision. She submitted that the Judge had considered all the evidence and had [APPELLANT] clear findings that the appellant had “manufactured his claim.” 14. She submitted that the Judge had effectively found that the appellant’s sur place activities were disingenuous and were undertaken to bolster a false asylum claim. [NAME] submitted that there was no challenge to the Judge’s credibility findings and there was no error in the Judge’s application of the case law.

15. I asked [NAME] where the Judge [APPELLANT] findings that the appellant’s sur place activities were disingenuous and undertaken to bolster a false asylum claim. [NAME] acknowledged that the Judge had not [APPELLANT] any specific finding on this issue. She accepted that there were material matters (i.e., the appellant’s motivation for his political activities in the UK) that the Judge had failed to make specific findings on. 16. [NAME] briefly responded. He highlighted the lack of findings by the Judge on material matters.

17. After hearing the submissions, I reserved my decision. Discussion and Analysis 18. When considering whether the judge [APPELLANT] a material error in law in dismissing the appellant’s appeal, I have remined myself of the following principles.

19. It is not permissible for the Upper Tribunal to simply disagree with the result or the way in which it was reached (see paragraph 36 of South Bucks County Council v Porter [2004] UKHL 33).

20. I take note of the narrow circumstances in which an appellate Tribunal may interfere with findings of fact and credibility by the fact-finding Tribunal. In Volpi v Volpi [2022] EWCA Civ 464, the Court of Appeal confirmed that unless the First-tier Judge's decision is “rationally insupportable”, the Upper Tribunal should not interfere with findings of fact by the First-tier Judge who had seen and heard the oral evidence. 3

Appeal Number: UI-2025-000658 First-tier Tribunal No: PA/02982/2024 PA/57376/2023 21. I also remind myself that the Upper Tribunal is required to exercise judicial restraint in its oversight of the First-tier Tribunal's reasoning, as detailed by the Court of Appeal in paragraph 26 of Ullah v SSHD [2024] EWCA Civ 201.

22. The Judge robustly rejected the credibility of the appellant’s account of events in Iran. There is no challenge to those findings.

23. However, the appellant also relied upon his sur place activities. The Judge considered the appellant's sur place activities in paragraphs 19 and 20 of her decision.

24. Regarding the appellant's attendance at demonstrations, the Judge finds that the appellant is at most “a low-level attendee” and thus the [NAME] would not be aware of the appellant’s attendance at any demonstrations in the UK.

25. Regarding the appellant’s [NAME] activity, the Judge finds that there is no evidence that the authorities are aware of his [NAME] posts and concludes that the appellant could delete his [NAME] account if he had any concerns.

26. In neither of these paragraphs does the Judge address the motivations for the appellant’s attendance at demonstrations and his posting on [NAME]. There is no finding as to whether the appellant’s activities are because of genuinely held political beliefs or opinions.

27. I find that the Judge had failed to make findings on material matters. It was incumbent on the Judge to reach findings regarding the motivation behind the appellant’s activities in the UK. If it is reasonably likely that they are motivated by a genuine political opinion, then consideration of the HJ (Iran) principles will be necessary.

28. I find that the Judge’s conclusion at paragraph 22 of her decision (“Given my credibility findings I further find he will not embark on anti-regime political activity on return either.”) is an insufficient basis for a finding that the appellant would not continue his existing political and social media activity in Iran.

29. As the Court of Appeal recently reaffirmed WAS (Pakistan) v SSHD [2023] EWCA Civ 894 in at paragraph 87: “…It is a trite proposition that credibility is not 'a seamless robe', even if, on analysis, some, or most of the evidence proves to be incredible. Findings that some aspects of a witness's evidence are not credible should not, in a protection claim, be generalised to all his evidence. The fact-finder must also consider the intrinsic likelihood, to the lower standard, of the significant aspects of his claim.” 30. Therefore, I find that the Judge has failed to make findings on a material matter, and this does amount to an error of law (this was tacitly accepted by Ms [RESPONDENT] for the respondent).

31. Thus, in conclusion, for the reasons above, I find the Judge has [APPELLANT] material errors of law in her decision and reasons.

32. The Judge's decision concerning the risk to the appellant arising from his sur place activities should be set aside and remade. That said, there has been no 4

Appeal Number: UI-2025-000658 First-tier Tribunal No: PA/02982/2024 PA/57376/2023 challenge to the Judge's adverse findings concerning the appellant's claimed activities in Iran. Those findings should therefore be preserved, and the scope of the remaking will accordingly be confined to an assessment of the appellant's activities in the UK, and whether the appellant’s activities are motivated by a genuine political opinion, and whether those activities would place the appellant at real risk on return to Iran.

33. Potential disposal was discussed with the parties. Ms [NAME] acknowledged that there would need to be further evidence regarding the appellant’s sur place activities and so she submitted that it would be preferable for the appeal to be remitted to the First-tier Tribunal for consideration of the sur place activities. Mr [NAME] argued that the appeal could be retained in the Upper Tribunal as there would not be significant evidence or fact-finding required.

34. Applying the guidance in paragraph 7 of the Senior President's [NAME] v SSHD [2022] EWCA Civ 1512 and Begum (Remaking or remittal) [2023] UKUT 46 (IAC), given the issues and the amount of fact- finding that will be required to do, I am satisfied that the appeal should be remitted to the First-tier Tribunal. There will need to be updated evidence of the appellant’s sur place activities, including full disclosure of his [NAME] account. There will need to be significant evidence regarding the appellant’s motivations for his sur place activities, which will require oral evidence and cross- examination. Thus, I am satisfied that remittal to the First-tier Tribunal is the appropriate course of action.

35. I reiterate that all the primary findings of fact that were [APPELLANT] by Judge Malik concerning the appellant's claimed activities in Iran are to be preserved. Notice of Decision The First-tier Tribunal has been shown to have [APPELLANT] an error of law material to the decision to dismiss the appeal. The determination is set aside. The appeal is remitted to the First-tier Tribunal in Manchester for a further hearing before any judge other than Judge Malik. [NAME] Judge of the Upper Tribunal Immigration and Asylum Chamber 2 September 2025 5