Tribunal decisions

The decision

IAC-AH-DP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00039/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 14 February 2017
On 2 March 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

e m
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Hashmi, instructed by Kingswell Watts, Solicitors
For the Respondent: Ms Pettersen, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, EM, born in 1996 and is a citizen of Afghanistan. Following refusal by the Secretary of State of his claim for asylum, his appeal to the First-tier Tribunal (Judge Robson) was dismissed. The appellant claims that to fear the Taliban. He also claims that his sister had been murdered by a man called Abdul Ali and that he had witnessed the murder. On appeal to the First-tier Tribunal, those claims had been rejected by the judge who found at [111] that “the appellant’s claim in the murder of his sister and his fear of the Taliban because of his father or fear at the hands of Ali are totally without foundation”. The challenge to the decision advanced by Ms Hashmi, for the appellant, at the Upper Tribunal hearing did not refer to those findings and I have no intention of disturbing them. The only issue in this appellant’s appeal relates to his claimed conversion to Christianity.
2. In my opinion, the judge’s decision falls to be set aside on account of error of law. First, I find that the judge has not made an unequivocal finding as to whether or not the appellant is a genuine convert to Christianity. He deals with the evidence adduced by the appellant only to conclude that:
I have already cast doubt on the credibility of the appellant but even if I accept that he has attended church on baptism, I do not accept his evidence that he would and has openly proclaimed his faith to others and/or that he would on return to Afghanistan.
It is not possible to discern from that paragraph whether the judge found that the appellant was a genuine convert to Christianity or not. He seems to be concerned in only as to whether the appellant would proselytise his Christian faith on return to Afghanistan. At [125], the judge found “[the appellant] would [ ] not be at risk of his claimed conversion. I do not accept his claim that he would profess his faith to anybody and of course there is no evidence that he has done so whilst in the United Kingdom”. As Ms Hashmi correctly pointed out, concentrating only on proselytising one’s faith ignores the guidance provided by the Upper Tribunal in NM (Christian converts) Afghanistan CG [2009] UKAIT 00045. The Tribunal found that:
a genuine apostate (in the context of conversion from Islam to Christianity) someone will not be able to openly express his change of faith without running a real risk of persecution – the individual will have to keep his faith completely secret; he would have to live a lie; he may be forced to forego contact with others of his faith because of the danger and, significantly, would be constantly looking over his shoulder to avoid discovery in fear of the consequences ...
The Tribunal found that “it would be persecutory to expect such an individual to modify his behaviour to that end [i.e. to live safely in Afghanistan]”. It is clear that the genuineness or otherwise of the appellant’s conversion to Christianity is crucial in determining whether he would be at risk in Afghanistan. If the appellant is a genuine convert but would not proselytise his faith in Afghanistan, he may still, in accordance with the guidance of NM, be at risk simply by reason of his conversion. This was not a case in which a propensity to proselytise was determinative of real risk on return.
3. I set aside the decision of the First-tier Tribunal and preserve all the findings of fact save those relating to the appellant’s claimed conversion to Christianity. There will need to be a new fact-finding exercise in respect of that claimed conversion and that exercise is best conducted in the First-tier Tribunal.

Notice of Decision
The decision of the First-tier Tribunal promulgated on 7 September 2016 is set aside. The findings of fact (save those relating to the appellant’s claimed conversion to Christianity) shall stand. The appeal is returned to the First-tier Tribunal for that Tribunal to remake the decision.
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 15 February 2017

Upper Tribunal Judge Clive Lane

TO THE RESPONDENT
FEE AWARD
There is no fee payable so I make no order.

Signed Date 15 February 2017

Upper Tribunal Judge Clive Lane