XX (PJAK – sur place activities – Facebook) Iran CG [2022] UKUT 23 (IAC)
This case was heard in the Upper Tribunal (Immigration and Asylum Chamber) (“UT”) before Upper Tribunal Judge Keith on 8th to 10th June 2021. An Iranian man (anonymised as XX) who illegally entered the UK challenged the Secretary of State for the Home Department (SSHD) on their refusal of his asylum claim.
XX was formerly a farmer in Iran with Kurdish heritage. He first heard about the Kurdistan Free Life Party (PJAK), an armed and anti-Islamic military group, whilst getting his hair cut and quickly became involved by attending demonstrations and distributing leaflets. He arrived illegally in the UK and continued his political activities in support of the PJAK. These included maintaining a Facebook page critical of the Iranian government and attending demonstrations in London. He eventually applied for asylum, claiming that he would be identified as a supporter of PJAK upon return to Iran. However, the judge dismissed his activities as ‘merely opportunistic’ attempts to fabricate an asylum claim. Amongst other things, the judge felt it was incongruous that he would share messages of dissent via Facebook, as XX was illiterate. Furthermore, as he was still in contact with his family in Iran, it was inferred that he didn’t feel that he or they were in danger. Even if XX’s political activities were accepted as genuine, the judge found that his photos – including being pictured in a protest outside the Iranian embassy and wearing a noose around his neck – had not received any substantial media coverage in either the UK or Iran, and he had the option of deleting his Facebook account, thus drastically reducing any potential risk on his return to Iran. XX’s Kurdish ethnicity was deemed to result in only questioning upon return. For all of these reasons, XX’s claim for asylum was rejected as he was not deemed to be at risk.
XX brought three grounds of challenge in his appeal. First, the judge had speculated on XX’s behaviour, thus failing to consider HK v SSHD [2006] EWCA Civ 1037; second, that XX had almost certainly drawn attention as he was involved with protests immediately outside the Iranian embassy; third, that, as the above should have been considered, XX was at risk and the judge had failed to take that into account.
The Upper Tribunal found that grounds two and three of the appeal were made out, simply on the basis of XX’s sur place activities and any risk he would face as a consequence. The Upper Tribunal then issued directions for a further hearing to remake the decision. However, before reaching their conclusion, the Upper Tribunal posed a series of technical questions and heard from both a computer science expert, and from Facebook themselves, about surveillance and Iran’s data gathering abilities. As a result, they issued new supplementary guidance on Iran specifically, and social media and Facebook evidence generally.
Firstly, the UT established that what Iran said it could do, and what it could do in practice, with regards to controlling and accessing electronic data, were two very different things. The UT referred to a “stark gap in the evidence” of Iran’s abilities and decided that it was not reasonably likely that Iranian authorities could actually monitor Facebook accounts on a large scale and that focused searches would actually require significant manpower and time. As a result, the UT set out that it was unlikely that the Iranian authorities were actively and closely monitoring as many people as they said they were.
The UT then set out that whether or not material on Facebook would be available to Iranian authorities largely depended on whether the person to whom the material would relate had ever been a person of significant interest to the authorities in the first place. If they were a person of interest, then their information would likely have been collected, if they were not a person of interest then their information would likely not have been collected. To this end it was established that, even if such a person later closed their Facebook account, the risk would not be neutralised because the account would have been monitored prior to closing. Unfortunately, the end result hinges entirely on who the Iranian government would consider a person of interest and is thus beyond the knowledge of outsiders.
Regarding the closure of a Facebook account, the UT did state that a decision maker could validly consider whether a person will close an account before travelling and then whether they would tell anyone at their destination that they had closed their account. The UT found it difficult to see circumstances where the deletion of a social media account would equate to persecution as they stated that having such an account was clearly not protected by the Refugee Convention.
The UT then went on to issue guidance on Facebook and social media evidence generally. They said that they saw no evidence that Facebook had been hacked by the Iranian government or any other government and that data gathering “crawler” software was not very effective at collecting data on someone from Facebook without first having access to that person’s password. Those using crawler software may have access to a person’s email address, but it still cannot be determined that they will then have access to a person’s Facebook account. This is a technical limitation that may be important in later cases as the UT seems disinclined to accept that a state government will be able to access large amounts of personal information just by doing quick and basic monitoring.
Finally, the UT stated that social media evidence which is normally placed before them consists generally of printed photographs without accompanying full disclosures. It was noted that more information such as a person’s locations of access to Facebook, a full timeline of their activities, dated timeline posts, and other important information could be very easily accessed from Facebook’s “download your information” page. The implication was that this further evidence would be of far more value to cases before the UT.
However, the UT then noted that printouts could be manipulated and, without actual access to an account, a decision maker may deem such evidence to be of limited value. This appears contradictory to their previous note as it is difficult to see how this issue could be combatted short of giving a judge full access to a person’s Facebook account themselves.
By Tiffany