Upper Tribunal (Immigration and asylum chamber), 2022-01-20, [2022] UKUT 00023 (IAC) (XX (PJAK, sur place activities, Facebook) (CG))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Mr C M G Ockelton, Vice President, Upper Tribunal Judge Keith |
| Status | Reported |
| Date | 20 January 2022 |
| Published date | 26 January 2022 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | PJAK, sur place activities, Facebook) (CG |
| Hearing Date | 10 June 2021 |
| Appeal Number | [2022] UKUT 00023 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
XX (PJAK - sur place activities - Facebook) Iran CG [2022] UKUT 00023 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House and also via Teams |
Decision & Reasons Promulgated |
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On 8th to 10th June 2021 |
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………………………………… |
Before
THE HON. MR JUSTICE LANE
MR C M G OCKELTON, VICE PRESIDENT
UPPER TRIBUNAL JUDGE KEITH
Between
XX
(ANONYMITY DIRECTIONS CONTINUED)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr B Jaffey QC and Ms M Cleghorn, instructed by Halliday Reeves Solicitors
For the Respondent: Mr C Thomann, instructed by the Government Legal Department
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.
The cases of BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC); SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC); and HB (Kurds) Iran CG [2018] UKUT 00430 continue accurately to reflect the situation for returnees to Iran. That guidance is hereby supplemented on the issue of risk on return arising from a person’s social media use (in particular, Facebook) and surveillance of that person by the authorities in Iran.
Surveillance
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There is a disparity between, on the one hand, the Iranian state’s claims as to what it has been, or is, able to do to control or access the electronic data of its citizens who are in Iran or outside it; and on the other, its actual capabilities and extent of its actions. There is a stark gap in the evidence, beyond assertions by the Iranian government that Facebook accounts have been hacked and are being monitored. The evidence fails to show it is reasonably likely that the Iranian authorities are able to monitor, on a large scale, Facebook accounts. More focussed, ad hoc searches will necessarily be more labour-intensive and are therefore confined to individuals who are of significant adverse interest. The risk that an individual is targeted will be a nuanced one. Whose Facebook accounts will be targeted, before they are deleted, will depend on a person’s existing profile and where they fit onto a “social graph;” and the extent to which they or their social network may have their Facebook material accessed.
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The likelihood of Facebook material being available to the Iranian authorities is affected by whether the person is or has been at any material time a person of significant interest, because if so, they are, in general, reasonably likely to have been the subject of targeted Facebook surveillance. In the case of such a person, this would mean that any additional risks that have arisen by creating a Facebook account containing material critical of, or otherwise inimical to, the Iranian authorities would not be mitigated by the closure of that account, as there is a real risk that the person would already have been the subject of targeted on-line surveillance, which is likely to have made the material known.
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Where an Iranian national of any age returns to Iran, the fact of them not having a Facebook account, or having deleted an account, will not as such raise suspicions or concerns on the part of Iranian authorities.
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A returnee from the UK to Iran who requires a laissez-passer or an emergency travel document (ETD) needs to complete an application form and submit it to the Iranian embassy in London. They are required to provide their address and telephone number, but not an email address or details of a social media account. While social media details are not asked for, the point of applying for an ETD is likely to be the first potential “pinch point, ” referred to in AB and Others (internet activity – state of evidence) Iran [2015] UKUT 00257 (IAC). It is not realistic to assume that internet searches will not be carried out until a person’s arrival in Iran. Those applicants for ETDs provide an obvious pool of people, in respect of whom basic searches (such as open internet searches) are likely to be carried out.
Guidance on Facebook more generally
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There are several barriers to monitoring, as opposed to ad hoc searches of someone’s Facebook material. There is no evidence before us that the Facebook website itself has been “hacked,” whether by the Iranian or any other government. The effectiveness of website “crawler” software, such as Google, is limited, when interacting with Facebook. Someone’s name and some details may crop up on a Google search, if they still have a live Facebook account, or one that has only very recently been closed; and provided that their Facebook settings or those of their friends or groups with whom they have interactions, have public settings. Without the person’s password, those seeking to monitor Facebook accounts cannot “scrape” them in the same unautomated way as other websites allow automated data extraction. A person’s email account or computer may be compromised, but it does not necessarily follow that their Facebook password account has been accessed.
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The timely closure of an account neutralises the risk consequential on having had a “critical” Facebook account, provided that someone’s Facebook account was not specifically monitored prior to closure.
Guidance on social media evidence generally
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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 locations 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.
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It is easy for an apparent printout or electronic excerpt of an internet page to be manipulated by changing the page source 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.
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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) v SSHD [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.
DECISION AND REASONS
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This is the re-making of the decision in the appellant’s appeal against the respondent’s refusal of his protection and human rights claims. The representatives and the Tribunal panel attended the hearing in person, while the appellant attended via Teams. He gave evidence on the third day of the hearing, with the assistance of a Kurdish Sorani interpreter, who also attended via Teams. The parties did not object to the appellant attending and giving evidence via Teams and we were satisfied that he was able to participate effectively in the hearing.
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We deal with the issues in the following order:
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the background;
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the procedural history to the appeal;
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existing country guidance;
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the principal questions we have considered;
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preliminary issues at the hearing;
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the evidence;
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our findings and conclusions; and
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the Country Guidance.
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The representatives provided written skeleton arguments and made substantial oral submissions. Rather than recite these in detail, we address their substance, and refer to them as necessary, as we progress through the findings and our conclusions. Finally, the error of law decision which this re-making decision follows is set out in the Annex to these reasons.
Background
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The appellant, an Iranian citizen of Kurdish ethnic origin, entered the UK unlawfully on 4th December 2017. He then claimed asylum, based on his fear of persecution because of his political beliefs,...
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