AB and Others (internet activity – state of evidence)
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal |
| Judgment Date | 30 April 2015 |
| Neutral Citation | [2015] UKUT 257 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 30 April 2015 |
[2015] UKUT 257 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Warr
UPPER TRIBUNAL JUDGE Perkins
For the Appellants:
AB Mr P Haywood, Counsel instructed by Duncan Lewis Solicitors
CD Mr T Hodson, Counsel acting for Elder Rahimi Solicitors
EF Ms S Harrison, Solicitor from Halliday Reeves
For the Respondent: Mr B Rawat, Counsel instructed by the Treasury Solicitors
AB and Others (internet activity — state of evidence) Iran
The material put before the tribunal did not disclose a sufficient evidential basis for giving country or other guidance upon what, reliably, can be expected in terms of the reception in Iran for those returning otherwise than with a “regular” passport in relation to whom interest may be excited from the authorities into internet activity as might be revealed by an examination of blogging activity or a Facebook account. However, this determination is reported so that the evidence considered by the Upper Tribunal is available in the public domain.
The appellants in this case are citizens of Iran. In very broad terms they each claim they are refugees because of their “blogging” activity on the internet. The word “blogging” will be readily understood by a contemporary reader but for the avoidance of any possible misunderstanding we mean the practice of publishing on the internet written articles, reports, film clips, pictures, or links to the same, whether produced by the person responsible for the blog or another. They each appeal against decisions of the Secretary of State on the grounds that they are refugees or otherwise entitled to international protection.
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 we make an order prohibiting the disclosure or publication of any matter likely to lead members of the public to identify any or all of the appellants. Their cases depend in part on their risking persecution because of things that they have done since leaving Iran, including criticising the government of Iran. The significance of their activities is disputed by the respondent. Publicity that identified them to the Iranian authorities might lead to the absurd result of their needing protection solely because an otherwise unfounded claim for asylum had attracted attention. Breach of this order can be punished as a contempt of court. Although the order must be followed strictly it is not intended to stifle reporting of the issues in the case and our findings on them.
As well as determining the three separate appeals that are before us we have endeavoured to give general guidance on a range of related issues. In an effort to make our decision easier to read we do not consider below each strand of evidence or argument in the order in which we heard it. For similar reasons we identify the appellants by their initials rather than their place in the title.
We confirm that we have considered all of the several volumes of evidence before us even though we do not mention each document or submission specifically. We reached no conclusion before considering the evidence as a whole. We have decided each appeal on its own merits and we have reminded ourselves that although the appellant in each case must prove his or her case the standard of proof is low. It is sufficient to show only a real risk of persecution or other serious ill treatment in the event of return to Iran to qualify for protection.
The appellant, AB, was born in 1989. He appeals a decision of the respondent on 25 March 2011 to remove him as an illegal entrant. He entered the United Kingdom on 3 March 2011.
His appeal was dismissed by the First-tier Tribunal in a decision dated 11 May 2011. He appealed to the Upper Tribunal which found that the First-tier Tribunal had erred in law and made fresh findings of fact. The Upper Tribunal dismissed the appeal on 20 August 2012 but the appeal comes before us pursuant to an order of the Court of Appeal on 27 June 2013. The Court of Appeal ordered by consent that the appeal be remitted to this Tribunal to be decided again with the other appeals determined here, on a particular basis. This was explained at paragraph 1 of the consent order dated 27 June 2013 where the Court said:
“The Appellant's appeal be allowed by remittal of the limited grounds of appeal on which permission was granted by Sir Richard Buxton in his Court Order of 7 February 2013 (identified in sub-paragraph 2 of the “Events in the UK” paragraph, relating to the blogging in the UK) to the Upper Tribunal of the Immigration and Asylum Chamber for reconsideration pursuant to paragraph 12 of Schedule 4 to the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010 ( SI 2010/21) and section 14 of the Tribunal, Courts and Enforcement Act 2007”.
The appellant, CD, was born in 1975 and so is now 39 years old. She appeals a decision of the respondent of 25 March 2011 to refuse to vary her leave to remain in the United Kingdom. She arrived in the United Kingdom in September 2010 with permission to enter as a student and claimed asylum on 4 March 2011. Her appeal was dismissed by the First-tier Tribunal but permission to appeal was given by Upper Tribunal Judge Gleeson because she found it arguable that insufficient weight had been given to the appellant's blogging activities, the expert evidence on which she relied about how bloggers might be identified and treated in Iran and her political activities.
Before us there was little argument on the point and we are satisfied that the First-tier Tribunal erred in law for the reasons identified by Judge Gleeson as arguable. The First-tier Tribunal did not engage adequately with the background and expert evidence presented to it. We therefore set aside its determination and decide the appeal again ourselves.
The appellant, EF, was born in 1972. He appealed a decision of the respondent on 22 November 2011 to remove him from the United Kingdom. His appeal against that decision was dismissed by the First-tier Tribunal but the Upper Tribunal, in a determination promulgated on 12 May 2013, found that the First-tier Tribunal had erred in law and set aside the decision in that case. Although the reasons have already been sent to the parties we formally incorporate the decision into this determination and set it out at Appendix 3.
These cases raise common questions and the parties had suggested a “list of issues” to be determined in the appeal which the Tribunal agreed to adopt. We set these out below:
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(1) The use of social and other internet-based media (including the posting of articles, comments or web links on a website; maintaining or contributing to a blog; uploading/streaming photographs or videos; the use of Facebook by Iranian nationals located in the United Kingdom to make actual or perceived criticisms of the Iranian state)
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(2) Whether such use is reasonably likely to come to the attention of the Iranian authorities because those authorities have the capability to detect and monitor such activity
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(a) the capability of the Iranian authorities to monitor and/or restrict the use within Iran social and/or other internet-based media;
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(b) the capability of the Iranian authorities to identify individuals in Iran who use (as in (1)), above, social and/or other internet-based media in a way that is critical or perceived as being critical of the Iranian authorities;
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(c) the capability of the Iranian authorities to monitor the use social and other internet-based media by Iranian nationals based outside of Iran;
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(d) the capability of the Iranian authorities to identify Iranian nationals based outside Iran who make use of social and/or other internet-based media to criticise the Iranian government and/or express views which are likely to be considered critical of the Iranian state;
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(e) the level of public interest within Iran in views posted on social or other internet-based media by Iranian nationals living in the United Kingdom and which may be considered critical of the Iranian state;
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(f) the capability of the Iranian authorities to restrict access to social/internet-based media operated by Iranians in the United Kingdom and is critical or deemed to be critical of the Iranian state.
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(3) The additional factors that may be relevant to an assessment of the risk on return to an Iranian national who, while in the United Kingdom, has used social and/or other internet-based media to express views that are, or are deemed by the Iranian authorities to be critical of the Iranian state, including:
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(a) the use of social and/or other internet-based media, prior to departure from Iran, in a manner considered to be critical of the Iranian state;
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(b) the nature of any “profile” with the authorities that the returnee might have had before leaving Iran;
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(c) other “sur place” activities in the UK;
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(d) the immigration history of the returnee, including whether the returnee has left Iran illegally;
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(e) the possession of a laptop and/or other equipment that may be used across the internet.
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(4) Whether and by what means the Iranian authorities would be able to link a returnee to social media and/or other internet-based activity conducted in the United Kingdom.
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(5) Would the treatment received by an individual on return be affected by the nature and extent of their use of social and other internet-based media?
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(6) The relevance, if any, of the opportunistic use of social and/or other internet-based media.
Each of the parties has provided us with a skeleton argument which we have found very helpful.
The appellants CD and EF each gave evidence before us. In each case their evidence is summarised in the appendices. Our findings on...
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