Sur Place Asylum Claims: When Activity Abroad Creates Risk

Last updated: 15 October 2026

A sur place asylum claim comes from a person who was safe when they left home but would face persecution if they returned now. The risk may come from events in the country of origin, such as a coup or a new law. It may also come from what the person did abroad: protesting outside an embassy, posting against the regime online, converting, or joining an exile group. For lawyers, the hard cases sit in the second group. The Home Office or DHS often argues that the activity was staged for the claim. However, UK, US and EU law all ask the same core question. Will this person be persecuted on return because of how the regime sees them?[1]

This guide sets out the legal test in the UK and the US and the "bad faith" debate. It then covers the factors tribunals use to measure risk from diaspora activity and the evidence that wins or loses these cases. It also explains where a country expert report fits. Last reviewed: October 2026.

What is a sur place asylum claim?

The Refugee Convention does not require a refugee to flee. Article 1A(2) asks only whether a person is "outside the country of his nationality" owing to a well-founded fear of persecution for a Convention reason. The fear can arise after departure. The UNHCR Handbook makes the point directly at paragraph 94: a person "who becomes a refugee at a later date" is a refugee sur place.[2]

Paragraphs 95 and 96 then describe two routes. Paragraph 95 covers circumstances arising in the country of origin during the person's absence. In contrast, paragraph 96 covers risk created by the person's "own actions", such as associating with recognised refugees or expressing political views abroad. Paragraph 96 also gives the test that still drives every activity-based case. Decision-makers should look at whether the actions "may have come to the notice of the authorities" and how those authorities are likely to view them.[2]

UK law puts the same idea into the Immigration Rules. Paragraph 339P says a well-founded fear may be based on events since departure or on activities since departure, "in particular" where they continue convictions held at home. Across the Atlantic, US law has no separate sur place category. Instead, the ordinary refugee definition in INA s.101(a)(42) applies, and the regulations deal with post-departure activity through the one-year deadline exception.[3]

The two types of sur place claim

Type 1: the country changed

Here the claimant did nothing new. Instead, the state changed around them. Afghans abroad in August 2021, Myanmar nationals abroad after the February 2021 coup, and Sudanese nationals abroad when war broke out in April 2023 are standard examples. Similarly, a Russian student who publicly opposed the war after 2022 may now fall under laws on "discrediting" the armed forces. These claims rarely raise bad-faith arguments. The main disputes are usually about whether the claimant fits a risk profile, internal relocation, and timing.

Type 2: the claimant's own activity abroad

This is the contested category. Common examples include attending demonstrations, posting on Facebook or Instagram, joining a diaspora party, converting from Islam to Christianity, or coming out as gay. In these cases, the claimant's own conduct creates or increases the risk. As a result, the Home Office often argues that the activity is opportunistic, that the regime has not noticed it, or that the person could simply stop. Each argument has a settled answer in case law, and the answers differ from what many first-instance decisions assume.

Many real cases mix both types. For example, an Iranian Kurd may have had low-level family links to a Kurdish party at home, then become more visible in the UK after the 2022 protests. Our guide to Iran Kurdish activists and asylum covers that profile in detail.

Bad faith and sur place asylum: does motive matter?

The short answer in UK law is that motive does not bar a claim, but it can damage credibility. In Danian v SSHD [1999] EWCA Civ 3000, the Court of Appeal rejected the idea that a refugee sur place who acted in bad faith falls outside the Convention. If the fear of persecution is genuine and well-founded, the person is protected. Brooke LJ added a warning, however. Someone whose position abroad is inconsistent with their conduct at home "may not find that burden easy to discharge".[4]

The Home Office accepts this. Its guidance for claims lodged on or after 28 June 2022 tells caseworkers to decide the claim "irrespective of whether you believe the individual's actions were genuine or engineered". It cites Danian as authority. The Nationality and Borders Act 2022 changed the standard of proof for some facts (section 32 sets a balance-of-probabilities first stage). Nevertheless, it did not add a bad-faith bar, and the post-2022 guidance still applies Danian.[5]

Bad faith does still matter in two ways. First, paragraph 339J(iv) of the Rules tells decision-makers to consider whether activities abroad were done "for the sole or main purpose" of making a claim. The purpose of that inquiry is to assess whether the activities "will expose the person to persecution". Second, the guidance notes that an opportunistic profile may lower the risk of detection, or may be obvious to the regime itself. In practice, the motive finding feeds into the risk assessment. It does not replace it.[5]

The EU contrast

EU law allows a narrower rule. Article 5(3) of the Qualification Directive (2011/95/EU) lets member states refuse refugee status "normally" on a subsequent application where the risk rests on circumstances the applicant created after leaving. Importantly, the clause applies "without prejudice to the Geneva Convention". In JF v Bundesamt für Fremdenwesen und Asyl (C-222/22, 29 February 2024), the Court of Justice held that states cannot presume abuse. Equally, states cannot demand that a sur place conversion continue beliefs held at home. Each case needs individual assessment. The UK left this framework after Brexit, but the reasoning remains persuasive.[6]

Canada sits between the two positions. Its courts have discussed James Hathaway's view that a person who deliberately manipulates circumstances to create risk should not qualify. For example, the Federal Court engaged with that view in Mbokoso v Canada 2005 FC 1806. UK law has never adopted it.[7]

The US position

The US has no statutory bad-faith bar for sur place claims. Instead, the issue usually appears as credibility under the REAL ID Act standard in INA s.208(b)(1)(B)(iii). In Bastanipour v INS, 980 F.2d 1129 (7th Cir. 1992), Judge Posner's panel vacated a decision that rejected an Iranian's apostasy claim for lack of formal conversion. The court looked at how Iranian religious authorities would see him. Later, in Toufighi v Mukasey, 538 F.3d 988 (9th Cir. 2008), the majority upheld the refusal to reopen a case that rested on an earlier finding that the conversion was not genuine. Judge Berzon dissented, arguing that the real question was "what Iran understands him to believe".[8]

Genuineness versus risk: how decision-makers assess activity abroad

The core rule is simple. Even insincere activity can create a real risk if the regime perceives it as hostile. A persecutor punishes what it believes, not what the claimant privately thinks. Accordingly, three UK authorities shape the analysis.

YB (Eritrea): regimes watch their diaspora

In YB (Eritrea) v SSHD [2008] EWCA Civ 360, the claimant had protested outside the Eritrean embassy in London. Sedley LJ held that where country evidence "paints a bleak picture" of repression, a tribunal needs "little or no evidence" to infer that the regime's legations film or photograph demonstrators. The tribunal had wrongly demanded direct proof of monitoring. Sedley LJ also said the real question is "what follows for the individual claimant".[9]

BA (Iran): five factors for risk on return

In BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC), the Upper Tribunal set out factors that the Home Office now applies to all nationalities:

• Nature of the activity: leader, organiser or crowd member; how often; how much publicity.
• Risk of identification: the regime's surveillance methods and capacity.
• Triggers on return: political profile, manner of exit, visa type, timing and method of return.
• Consequences of identification: whether the regime treats low-level and high-level opponents differently.
• Identification at the border: whether data is stored and border posts are equipped to use it.

The tribunal found insufficient risk for "the infrequent demonstrator who plays no particular role". That line is often quoted against claimants. Nevertheless, the same factors can help a claimant whose role, frequency or publicity is higher.[10]

XX (Iran): social media and the "pinch point"

In XX (PJAK – sur place activities – Facebook) Iran CG [2022] UKUT 23 (IAC), the Upper Tribunal addressed online activity. It found that the first likely "pinch point" is the application for an emergency travel document (ETD), when Iranian officials may run basic searches. Furthermore, closing a Facebook account 30 days or more before an ETD request "neutralises" the risk from its content. This applies only where the authorities had not already monitored the account. Decision-makers may also ask whether a person would delete their account. Under HJ (Iran) principles, they must also ask why, because there is no protected right to a Facebook account.[11]

For practitioners, XX moves the focus from screenshots to profile. A claimant whose posts the regime has already seen, or whose offline profile would prompt targeted inquiry, is outside the "neutralisation" reasoning. Our guide to social media asylum evidence explains how to prove that.

UK vs US: how the two systems treat sur place claims

Both systems protect sur place refugees. They differ on structure, standard of proof and timing. The table below summarises the main points for practitioners who work across both.

The US one-year bar and changed circumstances

US practitioners face a timing trap that UK lawyers do not. An asylum application must normally be filed within one year of arrival. However, 8 CFR 1208.4(a)(4)(i)(B) lists "activities the applicant becomes involved in outside the country of feared persecution that place the applicant at risk" as a changed circumstance. The application must then follow "within a reasonable period". In Matter of T-M-H- & S-W-C-, 25 I&N Dec. 193 (BIA 2010), the Board held that changed circumstances do not give an automatic extra year. In other words, delay must be explained on the facts. See our guide to the US one-year filing deadline for strategy.[13]

Evidence in sur place asylum cases

Sur place claims are often better documented than pre-flight claims, because the events happened in the host country. On the other hand, the Home Office guidance says such evidence "should be readily available". Failure to produce it can lead to adverse inferences. Strong files usually contain the following.[5]

Proof of the activity

Dated photographs and video from demonstrations, ideally showing the claimant holding a banner or speaking, are central. In addition, letters from party officials should explain the claimant's role, not just their membership. For conversion claims, evidence from a minister who knows the claimant matters more than a baptism certificate alone. The guidance expects baptism or preparation for it, regular worship and links with fellow believers.[5]

Proof of visibility to the regime

This is where most claims fail. Evidence should show who filmed the event, where it was posted, how many people saw it, and whether regime-linked media or accounts shared it. For social media, full account downloads beat screenshots. Moreover, practitioners should record privacy settings, follower lists and the dates posts went live. This shows what the regime could see and when.

Proof of the regime's reach abroad

Transnational repression evidence helps a tribunal draw the YB inference. Freedom House recorded 1,375 direct physical incidents of transnational repression between 2014 and 2025. These incidents took place in 107 host countries and involved at least 54 perpetrator governments. China, Turkey and Russia are the most prolific since 2014. In 2025 alone, Freedom House logged 126 new incidents. Freedom House notes that these recorded cases likely represent only a small fraction of the real total.[14]

Country-specific evidence matters most. For Iran, the tribunal's findings in BA and XX on airport screening and ETD checks are the starting point. In Eritrean cases, YB itself accepted embassy monitoring. Belarus offers another example: the May 2021 forced landing of a Ryanair flight in Minsk to arrest the journalist Raman Pratasevich showed a state willing to reach exiles in transit. Chinese claims are different again. Here, Freedom House reporting on pressure against Uyghur and Hong Kong diaspora communities is a common starting point. The Freedom House transnational repression project publishes country data that experts can cite.

Watch it on our YouTube channel: our video on credibility versus plausibility explains why a doubtful motive does not end a sur place case.

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The role of a country expert report in sur place claims

A sur place claim turns on facts that the claimant cannot prove alone. What does the regime monitor? How does it treat returnees with this profile? What happens at the airport? A country expert can address each BA factor with sourced evidence. For example, the expert can explain how the regime monitors this diaspora and which groups it treats as hostile. The expert can also say whether people with this level of activity have faced detention on return.

Good expert evidence also tests the Home Office's assumptions. It can show that a "low-level" role still matters to a particular regime. It can also show that the claimant's family at home has been questioned, or that a party the claimant joined appears on a state list of banned groups. Where XX applies, the expert can address whether the account was likely monitored before deletion, which is the point the tribunal left open. Above all, the expert must stay within their field. Credibility is for the judge. The expert's job is plausibility and risk, which the well-founded fear test requires.

In the US, the same report supports "pattern or practice" arguments and helps rebut an adverse credibility finding by showing that the regime acts on perceived, not real, belief. If you need a report for a sur place case, you can find an expert witness for the relevant country.

Common questions about sur place asylum

Can a claim succeed if the activity was done only to get asylum?

Yes, in the UK. Danian holds that bad faith does not exclude a person from the Convention. The claim succeeds if there is a real risk that the regime will persecute the person for the activity. However, the motive finding may lower credibility and affect whether the regime noticed or cared.

Is attending one or two demonstrations enough?

Usually not on its own. BA found no real risk for an infrequent demonstrator with no particular role. Still, the answer changes if the claimant was prominent, was filmed by regime-linked media, or has an existing profile at home.

Should my client delete their Facebook account?

That is a legal and ethical question for the representative, not a tactic. Under XX, deletion 30 days before an ETD request may remove risk from content the regime has not seen. However, it does not help if the account was already monitored. Deleting evidence before a hearing can also damage the claim.

Does the US recognise sur place claims?

Yes. US law applies the ordinary refugee definition, and the regulations expressly treat risky activities abroad as a changed circumstance for the one-year bar.

Does a sur place claim need a country expert?

Not always, but often. Where the dispute is about whether the regime would notice or punish the activity, country guidance and CPINs may not address the claimant's specific profile. In that situation, an expert report fills the gap.

Conclusion

The law on sur place asylum is more settled than many refusal letters suggest. UNHCR Handbook paragraph 96, Danian and paragraph 339P all point to one question: will the regime notice the activity, and how will it respond? Motive matters as evidence, not as a bar. YB lets tribunals infer monitoring from a repressive record. BA supplies the factors. XX brings social media and the ETD "pinch point" into the analysis. The US reaches similar results through the refugee definition, imputed belief and the changed circumstances exception. In every system, the winning file proves three things: what the claimant did, that the regime can see it, and what the regime does to people like them.

A sur place claim stands or falls on how the specific regime treats returnees with the client's profile; to match the case with a country expert, use our expert witness finder.