The Court of Appeal has gone to town on a First-tier Tribunal decision for the second time in as many weeks, this time allowing an appeal in an asylum claim from an Iranian national. The case is FA (Iran) v Secretary of State for the Home Department [2024] EWCA Civ 149.

Background

The appellant is a Kurdish national of Iran who entered the UK in December 2019 and claimed asylum based on fear of persecution because of his political beliefs, including based on his Facebook activity after arriving in the UK. His claim was refused on 17 November 2020.

The First-tier Tribunal accepted that he had left Iran illegally and that he had used social media in the UK to make posts against the Iranian government. However, the judge distinguished the social media activities of the appellant from those in the country guidance case of HB (Kurds) Iran CG [2018] UKUT 430 and concluded that he would be at no risk as a Kurd who had been refused asylum. The appeal was dismissed.

After the First-tier Tribunal had granted permission to appeal to the Upper Tribunal, in April 2022 the Home Secretary directed the Upper Tribunal to the decision of XX (PJAK – sur place activities – Facebook) Iran CG [2022] UKUT 23 (IAC) which had come out after the First-tier Tribunal’s decision. In XX the Upper Tribunal said that the Iranian authorities did not monitor Facebook accounts on a large scale and that this would be likely only where a person was of significant interest. The Home Secretary said that as the First-tier Tribunal’s decision in FA’s case was consistent with XX, there cannot have been a material error in the decision.

The Upper Tribunal accepted the Senior Home Office Presenting Officer’s submission that XX was relevant. The tribunal only briefly considered the country guidance cases that were current at the date of the First-tier Tribunal’s decision. The Upper Tribunal also rejected the appellant’s submission that First-tier Tribunal had not properly considered the contents of the Facebook posts.

The Court of Appeal

In the course of the appeal, the Home Secretary accepted that the Upper Tribunal had erred in law in taking into account a country guidance case that had come out after the First-tier Tribunal’s decision. The matter for the Court of Appeal to determine was therefore whether the Upper Tribunal should have concluded that the First-tier Tribunal had failed to apply the current country guidance.

The relevant parts of the headnote in HB are:

(7)   Kurds involved in Kurdish political groups or activity are at risk of arrest, prolonged detention and physical abuse by the Iranian authorities. Even Kurds expressing peaceful dissent or who speak out about Kurdish rights also face a real risk of persecution or Article 3 ill-treatment.

(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 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 those suspected 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.

It was argued that the correct application of HB is that paragraph 7 of the headnote is a stand-alone risk category, if met then there is no scope for an evaluation by the decision maker and a claim for asylum must succeed. The evaluation described in paragraph 9 is whether or not the material is political and how it would be viewed by the Iranian authorities. Once it has been determined that the material is political, then paragraphs 7 and 10 apply. The Court of Appeal agreed that this was the correct approach.

The Court of Appeal said that even on the limited findings made by the First-tier Tribunal, the conclusion that there would be an issue for the appellant but that it would not elicit the “hair trigger” reaction from the authorities was “inexplicable”. The court concluded that the First-tier Tribunal erred in law by not giving anxious scrutiny to the Facebook material and by failing to explain how it was able to conclude that the appellant would not be at risk of return. The Upper Tribunal erred by holding that, in effect, the First-tier Tribunal was not required to make any further findings about the Facebook posts.

The appeal was allowed. The court said that it did not feel able to re-make the decision because of the lack of clear findings by the First-tier Tribunal, and so the appeal has been returned there to be heard by a different judge. This time, XX will apply.

Comment

The First-tier Tribunal’s decision is another one where the Court of Appeal has pointed out that the judge writing the determination has not covered themselves in glory:

There are many spelling mistakes and other errors of expression in determination 1. In some cases, it is difficult to understand what determination 1 means. Rather than distracting the reader by drawing attention to these errors in my quotations from determination 1, I will correct them, if I am reasonably confident that I know what the F-tT meant to convey.

and

The reasoning in support of this conclusion in paragraph 82 is, with respect, not only badly expressed but incoherent. 

and

Much of the rest of paragraph 81 is difficult to interpret, if not unintelligible. The last sentence is all but meaningless.

It was accepted on behalf of the Home Secretary at the Court of Appeal that “the F-tT’s findings were not ‘fully reasoned’”.

Contrast those comments with the Upper Tribunal’s assessment and you wonder whether they were reading the same decision:

The findings were based on ‘a full and detailed assessment of the evidence in the light of the country guidance and country information. He provided clear and cogent reasons for reaching the conclusions that he did and the grounds of challenge are not made out’.

This is a different First-tier Tribunal judge to the one criticised a couple of weeks ago. This is not even close good enough from the First-tier Tribunal. I do not expect that there will be any repercussions for the judges in question.

It is not as though there are important issues at stake with these decisions, like for example, a person’s life, such that care should be taken when writing them. And what happens to the unrepresented appellants, of whom there are an increasing number? Without lawyers there will be even less of a check on poor decisions. The tribunals must do better.

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