United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2022-006586
	First-tier Tribunal No: PA/53079/2022

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 5 ^th of June 2024

 

Before

 

UPPER TRIBUNAL JUDGE HANSON

 

Between

 

GOM

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Ms Rutherford, instructed by Halliday Reeves Solicitors.

For the Respondent: Mr Bates, a Senior Home Office Presenting Officer.

 

Heard at Manchester Civil Justice Centre on 12 April 2024

 

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.        In a decision promulgated on the 29 September 2023 Deputy Upper Tribunal Judge Skinner (the Deputy Judge) found an error of law in a decision of First-tier Tribunal Judge Groom (Judge Groom), set that decision aside, and gave directions for the further hearing of the appeal to enable the Upper Tribunal to substitute a decision to either allow or dismiss the appeal.

2.        Following the making of a Judicial Transfer Order the matter comes before me for that purpose.

3.        The Appellant is a citizen of Iraq of Kurdish ethnicity born on 1 January 1993.

4.        Judge Groom recorded it is not disputed the Appellant is from Sulaymaniyah and is documented, in that he has a CSID card, an Iraqi nationality certificate, and a driving licence.

5.        Judge Skinner noted the Appellant's father came to the UK in 2002. The Appellant's application for a visa to accompany his mother to visit his father to the UK was refused with a right of appeal in 2007.

6.        In 2010 the Appellant applied for settlement as a child under 18 but the application was refused on the basis his Iraqi ID card was found to be a forgery.

7.        In May 2018, whilst in his second year at university in Iraq, the Appellant left Iraq and travelled to Turkey, from there to Greece where he was fingerprinted and permitted to remain for one month, after which he travelled to Italy where he was also fingerprinted and where he remained for two days before travelling to France, where he remained for two weeks before travelling to the UK in the back of a lorry, entering the UK clandestinely on 14 July 2018.

8.        There is also reference to an earlier decision of the First-tier Tribunal made by Judge Burns in a determination promulgated in 2019, in which the Appellant was found not to be a credible witness. Judge Skinner refers to that decision at [8] of his determination which he writes:

 

8. The Appellant exercised his right of appeal against that refusal. By a decision dated 12 April 2019, his appeal was dismissed and applications to the First-tier Tribunal and Upper Tribunal for permission to appeal against that decision were refused. As it is not in dispute that the 12 April 2019 decision of the First-tier Tribunal formed the Devaseelan starting point for the Decision, it is worth noting at this juncture that:

 

a. The Appellant claimed to be at risk because he had refused to join Daesh.

b. The Appellant has provided his Iraqi driving license, CSID and INC card to the Home Office.

c. To corroborate his account, the Appellant provided to the Tribunal five handwritten letters which he claimed were written on behalf of Daesh. He said that the contents of the letters were broadly similar - that if he did not contact them, they would slaughter him and that wherever he went they would find and kill him because he was an unbeliever. The letters are not signed and did not say who they were from, were not on headed paper and did not contain any stamp or seal. They are the sort of documents that could be easily fabricated if required.

d. The Appellant's credibility was damaged by his failure to claim asylum in France and Italy.

e. The Appellant's claims ran counter to the background evidence on Daesh and various aspects of his account were not plausible.

f. Having considered all of the available evidence, the Tribunal concluded that the Appellant lacked credibility. His claim that two men tried to groom him to join Daesh and when unsuccessful abducted him and tortured him and then threatened him was a fabrication.

g. The handwritten note had been arranged to be produced after his asylum interview in an effort to bolster his claim. He said that he had had no recent contact with his family in IKR in an attempt to enhance his claim.

h. The Appellant's father (who also gave evidence) clearly felt that, as he had worked since 2002 in the UK and had not claimed benefits his son was entitled to join him.

i. Accordingly, the Appellant had not shown that he had a well-founded fear of serious harm in connection with Daesh because his claim was a fabrication. He was not fleeing in fear of his life. Rather, it was his intention to reach the UK to study and to be reunited with his father.

j. In any event, were the Appellant's account true, his claim would fail as he could return to the IKR, where there is sufficiency of protection.

k. The Appellant's Article 8 claim was dismissed on the basis that he did not enjoy family life with his father here, as the Appellant is an independent adult. In any event, his removal would be proportionate.

 

9.        These formed the starting point of Judge Groom's assessment in accordance with the Devaseelan principle.

10.    A number of challenges to Judge Groom's decision were not upheld by Judge Skinner but the ones that was, which has resulted in the need for this further hearing, related to any risk that may be faced by the Appellant as a result of his political activities on return to Iraq.

11.    Judge Skinner made a specific direction Judge Groom's findings of fact are to be preserved which therefore form the starting point of my own consideration of the merits of this appeal.

12.    Those findings can be summarised as follows:

 

a.         It is not disputed that the Appellant is from Iraq and that he is from Sulamaniyah in the IKR [48].

b.         It is not disputed that Appellant is documented; he has a CSID card, an Iraqi nationality certificate, and a driver's licence [49].

c.          The findings of Judge Burns are a starting point in the appeal [50].

d.        Although the Appellant claimed to have a fear from Mahmoud Sangawi that would place him at risk on return and had provided evidence from the Ashti Human Rights Organisation that he had made a complaint to them on 2 April 2018, the Appellant had not produced evidence which elaborated further on the nature or specific details of those threats from this individual [52 - 53].

e.         Despite the gravity of the claims the Appellant failed to mention or make any reference to these allegations during his first claim for asylum. It was difficult to reconcile why he did not mention this during his first claim for asylum [54].

f.          It was apparent the Appellant alleged he was fearful of returning to Iraq during his first claim for asylum and that he understood this was the basis for his claim. Judge Groom did not accept that the Appellant failed to mention these allegations at the time simply because he was without legal representation which Judge Groom found was implausible and which undermined the Appellant's credibility in relation to his appeal [55].

g.         There were discrepancies between the oral evidence of the Appellant and the oral evidence of his father. The Appellant claimed to have made contact with the Ashti organisation via Facebook, yet his father claimed the Appellant connected to the organisation by telephone but then went on to say he could not remember how contact was made. Judge Groom finds that due to the serious nature of threats that the Appellant claims were made against him it was surprising that the Appellant's evidence differs from his father's evidence on this point [57].

h.         The Appellant stated in his oral evidence that his mother and siblings remain in Sulaymaniyah and live in the same area and house that they always did, with no mention of the authorities searching for him at his mother's house or making enquiries as to his whereabouts. Judge Groom finds that if Mahmoud Sangawi had openly threatened the Appellant and was looking for him to find and kill him it was implausible that no contact whatsoever appears to have been made with any members of the Appellant's family in Iraq.

i.           The evidence from the Ashti organisation is said to be based on information that the Appellant himself has provided which had not been substantiated, warranting little weight being attached to this evidence [59].

j.           The Appellant's claimed sur place activities fail the threshold set out in BA. On the Appellant's own oral evidence he only attended two demonstrations, accepted he was not a member of any organisation, it was apparent that he was not a leader, speaker or organiser of these events, and had failed to demonstrate that there was media coverage significant for the Iraqi authorities to be able to identify him [60].

k.         With regard to the Appellant's Facebook posts, whilst he has a profile which is a public profile, he has not demonstrated that these posts have been so widely shared that he has come to the adverse attention of the Iraqi authorities [61].

l.           Further, the Appellant is part of a Facebook group which has in the region of 1000 members only. The Appellant has not demonstrated that this group has or would continue to attract the adverse attention of the authorities [62].

m.      The evidence did not warrant departing from the earlier findings made by Judge Burns in 2019 [63].

 

13.    The reason the matter comes back, despite robust adverse credibility findings made by two judges the First-tier Tribunal is set out at [28 - 30] of the Deputy Judge's determination which is in the following terms:

 

28. The Appellant is correct that the Judge has not considered whether his political views espoused through his Facebook posts and attendance at demonstrations are genuine and, if so, what, if any, political activity he would wish to engage in on return to the IKR. I have some sympathy with the Judge for not having done so, as it does not appear to have significantly featured in the Appellant's case as put at the hearing of the appeal before him. However, I cannot say that it was not an issue before him: in paragraph 1 of the Appellant's witness statement for the appeal, the Appellant stated "if I return to Iraq I will continue to be active and critical of the Kurdish authorities which will lead to further harm." In my view this was therefore an issue which was before the Judge and which accordingly required resolution.

29. I have considered with care whether the answer which the Judge would have given had this issue been considered can be said to be so obvious that his failure to consider it can be said to be immaterial. If such a claim is completely without merit, there is no justification is expending further time and costs on the claim. There are two grounds on which this might have been the case:

 

a. First, given the damning credibility findings made against the Appellant, it is entirely possible that the Appellant may well have been considered to have been undertaking his sur place political activities in order to bolster his asylum claim and not because he has any genuine belief in the causes he purports to support. In those circumstances, he would no doubt cease to engage in such activities on return to Iraq and would accordingly not be at risk. Likewise, he would have no HJ (Iran) claim because his decision not to protest would not be connected with any Convention reason.

b. Alternatively, it might well have been the case that the Judge would have found that, even if the Appellant were a genuine protester and would continue to protest on return, he would not be at risk in doing so. Paragraph 3.1.2 of the Respondent's CPIN on Opposition to the government in the Kurdistan Region of Iraq of July 2023 states that "The evidence is not such that a person will be at real risk of serious harm or persecution simply by being an opponent of, or having played a low level part in protests against the KRG. Despite evidence that opponents of the KRG have been arrested, detained, assaulted and even killed by the Kurdistan authorities, there is no evidence to suggest that such mistreatment is systematic. The instances of mistreatment are small in relation to the vast number who attended the protests. Additionally, there is no evidence to suggest that the KRG have the capability, nor the inclination, to target individuals who were involved in the protests at a low level. As such, in general a person will not be at risk of serious harm or persecution on the basis of political activity within the KRI. The onus is on the person to demonstrate otherwise."

30. However, while I consider the Judge would have been likely to find against the Appellant on one or both of these grounds, I am not satisfied that he "would have been bound to" or "would inevitably" have reached that conclusion, as is required for an error to be considered immaterial: see Detamu v SSHD [2006] EWCA Civ 604 at [14] and [18] (Moses LJ); Sadovska v SSHD [2017] UKSC 54, [2017] 1 WLR 2926 at [31] (Lady Hale). It is possible that the Appellant will be found to be credible on his intended political activities, notwithstanding his lack of credibility on other issues, and the Respondent's CPIN is only the Respondent's view of the situation in Iraq and there is no Country Guidance on this issue. This issue will therefore be required to be determined on the evidence at a further hearing.

 

Discussion and analysis

14.    In addition to the documentary evidence, I also had the benefit of seeing and hearing the Appellant give oral evidence by way of cross-examination re-examination.

15.    In his witness statement dated 8 January 2024 the Appellant claims that his political views are genuine and he wants to show Europe and the rest of the world that the two parties that control the Kurdish Regional Government, the PUK and KDP, are corrupt and do not give individuals their rights or treat them equally. The Appellant claims if a person says anything against them they will be arrested, treated as a terrorist, and accused of causing problems between the communities. The Appellant claims many journalists and activists have been imprisoned by the PUK and KDP even though a judge has found them not guilty of anything.

16.    The Appellant states it is for that reason he has posted critical comments about these two organisations on his Facebook and X (Twitter) accounts and claims he is sure that the authorities in Iraq will be aware of his views as he has personally criticised on the official page of Masrour Barzini who is the Prime Minister of the Kurdish region and also on the Kurdish Regional Government page.

17.    The Appellant claims if returned to Iraqi will continue to actively post the views in hope of change and that the Kurdish Regional Government will become democratic and respect human rights and freedom of expression.

18.    At [4] the Appellant writes " I have not attended any political demonstrations in the UK as much of my time is taken up with my college studies and most of the protests seem to fall on weekday or on the anniversary of a certain event which the protest is marking. I therefore make my voice heard by posting online instead".

19.    It was put to the Appellant by Mr Bates that this statement was contradicted by the earlier findings and evidence of his claiming to have attend two demonstrations. I make a finding of fact to the effect this is a further example of inconsistency in the Appellant's evidence.

20.    Judge Groom noted the Appellant claiming he attended two demonstrations. Before me, when the consideration was pointed out, he claimed it was three, but could only recall the dates of two. Judge Groom made a finding of fact that the Appellant's activities at any demonstrations he may have attended did not create a real risk for him on return, b specific reference to the test set out in BA (Demonstrators in Britain - risk on return) Iran CG [2011] UKUT 36 (IAC). I agree. I do not find the Appellant has established, even if he attended any demonstrations, there is any reason to depart from the finding of Judge Groom that his level of involvement, activity, and profile were not sufficient to create a real risk from him on return on the basis of any risk of activities coming to the adverse attention of the authorities in the IKR sufficient to create such risk.

21.    That leaves the Appellant's Facebook and other social media evidence.

22.    The Appellant was asked about the timing of his postings which it was suggested by Mr Bates started after his earlier appeal had been dismissed by Judge Burns in 2019. Although the Appellant claimed to have posted on a Facebook account in Iraq prior to that there is insufficient evidence to show that created any real risk for him at all that time.

23.    When asked when he had started posting to social media in the UK the Appellant could not recall the date and could not recall when he opened his Facebook account in Iraq, when asked. In his witness statement dated 4 March 2021 the Appellant claimed when in Iraqi he started putting posts on Facebook critical of the ruling IKR Kurdish parties, the PUK and KDP on multiple occasions, occasionally accusing them of acting like the Mafia, with there being no freedom, and not allowing people to express their views, and arresting people for doing so. The Appellant claims that he received many replies to the posts threatening him and threatening to kill him as a result, which he never replied to, and just blocked the individuals concerned as he believed they had been sent by supporters and members of the relevant parties. He also claimed, as a result, he received a telephone call on 1 April 2018 from Mahmoud Sangawi, a senior politician in the PUK, shouting and swearing at him claiming if his did not stop he will be killed. The Appellant claimed as a result of receiving the threat he went to the Ashti Human Rights Organisation the following day to see if they could help on this issue. He claims since this incident his Facebook account was hacked and shut down so it could no longer be accessed.

24.    The Appellant's claimed threat from this individual was found to lack credibility and was dismissed by Judge Froom which is one of the preserved findings. I find there is insufficient evidence before me to warrant departing from the earlier findings of Judge Froom, especially when one considers the seriousness of the allegation in the 4 March 2021 statement and the reasons this claim was dismissed as not being credible.

25.    The leading case in relation to social media posts, including Facebook, is that of the Upper Tribunal in XX (PJAK -sur place activities - Facebook) Iran CG [2022] UKUT 23.

26.    It is important to recall that this decision specifically considered risk to an individual from Iran, not Iraq. There is merit in the submission made by Mr Bates that there is firm evidence of the efforts made by the Iranians authorities to control or access electronic data of its citizens who are in Iran or outside it, or monitor activities, and the evidence available in relation to the authorities in the IKR or Iraq generally which is less developed.

27.    The Upper Tribunal in XX provided general guidance on the issue of Facebook and social media from headnote (5) in the following terms:

Guidance on Facebook more generally

5) 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.

6) 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

7) 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.

8) 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.

9) 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.

28.    In terms of the Facebook posts provided in the Appellant's evidence, the Appellant admitted in reply to questions put to him in cross examination that he had selected posts from his Facebook account that he wished to rely upon. The evidence provided does not, therefore, provide the full evidential picture of the nature of the Appellant's postings and any replies. I make a finding of fact to that effect.

29.    The Appellant was asked about specific Facebook posts he had provided and when they were posted but he claimed he could not recall.

30.    When the Appellant was asked whether he had printed out all the comments that people had made to his postings on Facebook he confirmed he had not, again indicating there is undisclosed evidence.

31.    A further issue that arises in relation to the evidence that has been provided is that it can be seen that some entries in the Appellants native language script are accompanied by an English translation. At the earlier adjourned hearing Ms Rutherford was asked who had undertaken the translations as there was no certificate from an approved translator. She indicated it was the Appellant himself who provided the English text.

32.    The normal expectation is that a party seeking to rely upon a document not written in English will provide a translation into the English language from an approved translator accompanied by a certification of the truthfulness and accuracy of the translation that has been undertaken. It is normally expected that a translator will be a member of an official professional organisations such as the Institute of Translation and Interpreting (ITI) or the Chartered Institute of Linguists (CIoL), a person who works for a company that belongs to the Association of Translation Companies, or a person who has otherwise been approved as being reliable, capable, and able to provide accurate translations upon which weight may be placed.

33.    Despite this having been raised earlier no effort has been made to provide an independent certification as to the accuracy of the translation.

34.    The Appellant, who has a vested interest in putting forward the case that he believes best suites his claim to face a real risk, and whose been selective in relation to other aspects of the evidence provided, appears to be in the only one to have provided the English language text. Although the Appellant has some English language abilities, as demonstrated by the fact he gave his evidence in English, it is not made out to he has the necessary qualifications to undertake an accurate translation of text for use in court proceedings. This is relevant to the weight that may be placed upon the translations.

35.    Under the heading "Guidance on social media evidence generally" the Tribunal in XX specifically referred to social media evidence being limited to production of printable photographs without full disclosure in electronic format. That is the scenario we have in this appeal. Mr Bates questioned the Appellant upon what had been disclosed and provided and it is clear that not all the material has been made available including location of access of Facebook and full timeline of social media activities which would otherwise be readily available.

36.    The guidance at (8) of the head note of XX is of relevance in this appeal as it appears the posts have been copied and English text added to the original script highlighting manipulation of the original data by the Appellant outside of the original, with no disclosure of the timeline to establish the credibility of the same.

37.    The Appellant also provided posts from his X (formerly Twitter) account including one person who liked a post he placed which was critical of the IKR government, although when asked where that person was now the Appellant claimed he is in the USA. The person had not contacted him and just liked what he had written. The evidence has not been viewed further and the Appellant did not know about numbers who may have viewed his postings.

38.    The Appellant was asked about the person he claimed he was the Prime Minister and whether that person was such or just a member of Parliament. The Appellant claimed he was just a member of Parliament but when asked whether this was the current one, he stated he was not.

39.    The Appellant specifically claimed he did not know if anybody had shared any of the postings that he had placed on Facebook.

40.    I find having assessed the evidence that the Appellant has not established any credible evidence from his Facebook or X (Twitter) accounts, that he has chosen to disclose, that establishes a credible real risk for him on the basis of his account having come to the attention of the authorities in the IKR or Iraq generally, such as to create a real risk for him on return as a result of an actual genuine or imputed adverse political opinion.

41.    I have also considered the wider context of the evidence in relation to opposition to the government in the Kurdistan region of Iraq, both within the evidence as a whole and the Country Policy and Information note: opposition to the government in Kurdistan region of Iraq (KRI), Iraq, July 2023, to which I was referred by the parties.

42.    The evidence provides examples of civil unrest within the IKR (an alternative reference for the KRI) specially protests in October 2020 in most cities across the IKR and it being recorded higher profile activists and those with a previous history of organising protests and demonstrations as well as journalists, particularly those with no links to the KRG parties, will be more likely to be at risk of mistreatment and arrest.

43.    It is not made out on the evidence upon which weight can be placed that the Appellant has, or has ever had, a profile that will place in within this risk category.

44.    At its highest, if his claims were credible, the Appellant may fall within the group that the evidence does not establish will be at a real risk of serious harm or persecution simply by being an opponent or having played a low level part in protests against the KRG which took place in August and December 2020 or any subsequent political activity.

45.    The Appellant, of course, did not take part in those protests as at that time he was in the UK, and I find his clam to lack credibility.

46.    There is also a specific qualification for those who may face a real risk which shows a person will not be at risk of serious harm or persecution solely as a result of being a supporter, member or carrying out activities on behalf of a specific political party.

47.    The country material does record activities against bloggers and online activists, but this appears because they are calling for protests in posts on social media rather than just being critical of the authorities, which are the claimed activities of the Appellant.

48.    I accept there is evidence of arrests of media and television crews who have been accused of activism and covering broadcasts critical of the ruling party and not following due process and of problems for journalists and the wider media.

49.    I note at paragraph 14.6 of the CPIN, entitled "Enforcement of laws", is a paragraph in which it is alleged the Kurdish regional authorities are using laws in force in the IKR to curb free speech, including the Law to Prevent the Misuse of Telecommunications Equipment, and examples of how the law has been used. At 14.6.3 it is written:

 

14.6.3 The USSD report published in March 2023 states:

 

'Certain KRG courts applied to more stringent criminal code and laws in lawsuits involving journalists, rather than the KRG's local press law, which provides greater protection for freedom of expression and full bits the detention of journalists. On March 21 [2022], security forces and civilian uniforms assaulted a crew from Gav News and confiscated their equipment in Barmarny, near Duhok, during coverage of the Kurdish New Year (Newroz) celebrations'.

 

50.    There appears to be a correlation between the 2020 protests and activities by the security forces. Details the protests are set out at [15] of the CPIN.

51.    I do not find the Appellant has ever come to the adverse attention of the authorities in the IKR despite claiming to have posted articles critical to the two ruling parties in the IKR whilst he was in Iraq and since. The Appellant has not established on the evidence on which weight may be placed, even to the lower standard, that his claim he has is credible.

52.    I do not find the Appellant's postings reflect a genuinely held adverse political view contrary to the interests of the authorities in the IKR such as to create a real risk for him on return.

53.    I find little weight may be placed upon a selection of Facebook postings designed to enhance the Appellant's claim. The Appellant has previously been found to lack credibility in relation to aspects of his claims for international protection and I find the material that has been provided is that which the Appellant believes will enable him to succeed on this occasion when he is not previously. I find this is a disingenuous attempt rather that representing a genuinely held fundamental political view.

54.    Notwithstanding, I have considered whether Appellant would still face a real risk in accordance with the Danian principle. I fund he will not.

55.    There is no evidence of comments on the postings he had made sufficient to indicate a real risk. The Appellant is added to printouts of his Facebook pages. It is clear the Appellant has changed some of the postings he has chosen to produce and has not provided the type of material identified in XX which would enable greater weight to be placed upon his postings.

56.    I accept that whilst those postings exist the weight that can be given to them is very little.

57.    I have commented above on the contradiction in the Appellant's evidence regarding the demonstrations.

58.    As Mr Bates submitted, it appears that at best one person had recorded they like the postings that the Appellant had made and that even if it was two, it was in any event, no more than that. There is insufficient evidence to show that these were individuals within the authorities of the IKR.

59.    There is insufficient evidence to show the Appellant's Facebook or social media posts have been monitored while he has been in the UK, or will, in any event, create a specific risk for him on return. It is not made out that he has come to the adverse attention of the authorities or would do so on return to the IKR.

60.    I do not find the Appellant has established that what he claims represents a genuine fundamentally held belief. It is not made out that it cannot delete his social media posts prior to return to the IKR or that expecting him to do so will breach the HJ (Iran) principle.

61.    In relation to his activities in Iraq, if the Appellant is returned it is not established that even if he did post similar items that he will face a real risk on return in light of the country material. The Appellant has not been shown to fall within a group where such risk exists. He has made non-genuine political claims which have not resulted in adverse profile being imputed to him on the facts. It has not been established that what he has done, or will choose to do, will be enough to create a real risk of ill-treatment or persecution on return.

62.    The Appellant can reintegrate into Kurdish society, is re-documented, and has firmly within the IKR in Sulamaniyah. The Appellant is clearly an intelligent individual educated to university level.

63.    Although Ms Rutherford in her submissions invited the Tribunal to accept the Appellant was genuine in his beliefs and postings and that he will be at risk on return, I do not find this has been established on the evidence.

64.    I have looked at what the Appellant has said in relation to the evidence as to real risk, as invited by Ms Rutherford, and the evidence of people being charged as a result of anti-government activities, protests and postings, do not accept that that creates real risk of this Appellant for the reasons set out above. This is a fact specific assessment.

65.    I do not accept the submission of Ms Rutherford that the evidence supports the Appellant's claim and shows he will face a real risk on return. An analysis of the evidence provided and consideration of the merits of the appeal in the round indicate the contrary is in fact the reality of the situation.

66.    It is therefore my primary finding that the Appellant has failed to establish a credible real risk on the basis of his sur place activities either now, on return, or within the IKR generally.

67.    I dismiss Appellant's protection claim on all grounds, both refugee protection and human rights under articles 2 and 3 ECHR, on the basis no credible real risk of harm has been established on the evidence.

68.    I do not find the Appellant has established any right to remain in the United Kingdom on any other basis and can be removed to the IKR.

69.    Accordingly, I dismiss the appeal.

 

Notice of Decision

 

70.    Appeal dismissed.

 

C J Hanson

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

15 April 2024