Public Law Solicitors

Duncan Lewis Solicitors represented Iranian HS in pivotal Iran Country Guidance Case which was heard on 28-31st January 2014.

Cases concerned:
HS (Iran) v SSHD HS (Iran) AA/04380/2011
*FMV (Iran) v SSHD AA/04493/2011

SG v SSHD AA/13363/2011

Duncan Lewis Solicitors represented Iranian national HS. HS is a blogger and rap/hip-hop musician and a member of the Democratic Party of Iranian Kurdistan (KDPI). HS’ case reached the Court of Appeal and was remitted to the Upper Tribunal by way of consent amongst the parties in June 2013 to be linked with two other cases as Country Guidance.

From the outset, by Order of the Court of Appeal, HS’ case was restricted to consideration of just sur place activity post-departure from Iran.

The two other cases concerned in the Country Guidance: FMV* and SG

were represented by Elder Rahimi and Halliday Reeves respectively. The facts of surrounding these two cases differed considerably from that of HS.

HS left Iran illegally, without a passport. On the other hand, FMV and SG left Iran using a passport. FMV and SG had engaged in activities in Iran which were still subject to consideration by the Upper Tribunal at the hearing. The common ground in the three Appellants’ cases was that they had all engaged in social media/internet-based activities which have made actual or perceived criticisms of the Iranian state.

The List of Issues before the Tribunal were as follows:

· 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 video; the use of Facebook) by Iranian nationals located in the United Kingdom to make actual or perceived criticisms of the Iranian state.

· 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:

· 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:

· 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.

· 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?

· The relevance if any, of the opportunistic use of social and/or other internet-based media.

The starting point for the Upper Tribunal in considering this Country Guidance are the previous key Iran Country Guidance decisions of BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC) and SB (risk on return-illegal exit) Iran CG [2009] UKAIT 00053. BA and SB established quite an extensive range of risk factors for returnees to Iran. However, the issue of risks to returnees who engage in social media or internet-based activities and who have posted material that are critical or perceived to be critical of the Iran State have never before been substantively considered.

Extensive evidence was placed before the Upper Tribunal by way of Country Information and expert reports from Amnesty International, Anna Enayat and Roya Kashefi outlining the extent to which Iran has developed very sophisticated technical abilities to detect and link a returnee to social media and/or other internet-based activity conducted in the UK, especially since 2010 when the Stuxnet incident led to Iran to create an offensive/defensive cyber capability.

Country information and expert opinion strongly supports the argument that social media users who post actual/perceived critical material of the Iran state will be at risk upon return, and that Iran has the capability and does monitor internet activity of Iranians living abroad using various measures.

The Upper Tribunal’s most difficult task in this Country Guidance will be to deal with the issue of potential for opportunistic use of social and other internet-based media, and constructing a determination that will provide an effective ring-fence against a potential floodgate of future ‘opportunistic’ asylum claims – not just from Iranians, but from nationals of any country where freedom of expression is severely restricted.