Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: aa/00141/2012
aa/00143/2012

THE IMMIGRATION ACTS

Determined on the Papers at Field House
Determination Sent
On 11 October 2013
On 22 October 2013

Before

UPPER TRIBUNAL JUDGE MCGEACHY

Between

n p
n h
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr D Lemer, Counsel instructed by Wilson Solicitors LLP
For the Respondent: Mr G Saunders, Home Office Presenting Officer

DETERMINATION AND REASONS

This is an oral determination. On 15 March this year I heard an error of law application and in determining it I found that there had been a material error of law in the determination of Judge Hague. I therefore set aside his decision. In my decision I set out the history of these appeals and indeed of the previous appeals which had taken place before Judge Malone as well as, in paragraph 2, setting out the basis of the appellants' claim. This is my determination of the substantive issues. In paragraphs 1-12 I repeat my decision on the issue of error of law. In paragraphs 1-5 I set out the history of the appellants' applications and appeals. I then, in paragraphs 13 onwards set out my decision and my reasons for allowing the appeals. I have considered it appropriate to anonymise this determination.

1. The appellants appeal with permission, against a determination of Judge of the First-tier Tribunal Hague who in a determination promulgated on 1 June 2012 dismissed the appellants' appeal against the decision of the Secretary of State made on 13 December 2011 to refuse to grant asylum.

2. The appellants' applications were based on the fact that Ms H was a Christian and that her husband, N P, whose birth name was H H was a Muslim, from a family of practising Muslims, who had converted to Christianity in Pakistan. They claimed that they had worked together for a company called Warid Telecom and after their relationship began, although Ms H's family disapproved of the relationship because they were Christian, Mr P, having become interested in Ms H's faith had been coached in the tenets of Christianity by her father and had started attending church in Pakistan about January 2010. He had been baptised in Pakistan in March that year and had attended some services but only secretly when his family were asleep. N P did not tell his parents of his conversation because he believed that his uncles might have killed him and Ms H. They were married in Holy Trinity Cathedral in Karachi August 2010. Mr P's parents were unaware of this but a supporter at the wedding had informed them.

3. In August 2010 both appellants came to Britain as Tier 4 students. In June 2011 they claimed asylum.

4. Their applications were refused and Judge of the First-tier Tribunal Malone dismissed their appeal.

5. However, a fresh application was then made and that was refused. It was accepted that there should be a further right of appeal. In these circumstances the appeal came before Judge Hague.

6. Judge Hague heard evidence from both appellants and from the Reverend Canon Dr Arun John of St. James Church Blackburn and also considered two reports from the Asian Legal Advice Centre, the first from a Mrs Uzma Moeen and the second from Professor Werner Menski. They set out the background evidence of the position of converts in Pakistan.

7. Judge Hague gave detailed reasons for finding that N P was not a genuine convert concluding that, on return to Pakistan he would use his birth name and would not practise Christianity. What he did not consider was whether or not Mr P would face persecution because it would be considered that he had converted and was therefore an apostate.

8. The report of Ms Usma Moeen makes it clear that for someone such as Mr P who had been married in a church the implication would be that he had converted and would therefore suffer persecution and moreover that he would not be able to hide the fact that he had been married, given the circumstances in which a marriage certificate would have to be produced.

9. Ms Everett, who appeared for the respondent at the hearing on 15 March, accepted that this was an issue which had not been considered by the Judge and therefore that there was an error of law in the determination. She argued however that the findings of Judge Hague that the appellant's conversion was not genuine should be preserved. I have considered those findings which were based, in part, on the findings of Judge Malone who had dismissed the appellant's first appeal. While Judge Hague was correct to take into account what Judge Malone had stated in the determination under the principles of Devaseelan the reality is that some considerable time had gone past during which, the appellant claimed, his church attendance had grown and his faith had deepened. While it is the case that the evidence of Canon Arun John was considered by Judge Hague to have been given in good faith, Judge Hague considered that as Canon John did not have the "full evidential picture" and that "as a clergyman he would be predisposed to accept protestations of belief as sincere" he was entitled to doubt whether or not weight should be placed on Canon John's assessment of the first appellant's faith. He went on to state in paragraph 11:

"The Canon's selection of who to assist amongst the asylum seekers appears primarily to distinguish between strangers who phone up and those who attend his church regularly. I do not view Canon John as being reliably able to distinguish between sincere belief and outward show."

10. The reality is that that is not an accurate assessment of what Canon John wrote, what he was stating was there were those whom he decided not to support. Clearly he considered that he could reach conclusions on the sincerity of those whom he decided to support and that that was his criteria for not supporting them rather than that he did not support those who merely phoned up.

11. It is the evidence of Canon John that both appellants are committed Christians and hold sincerely to the belief and teachings of the Christian faith and he did attend the hearing. I consider that it might well be the case that Judge Hague erred in the weight which he placed on the testimony of Canon John. I therefore consider that, given the passage of time it would be appropriate for this appeal to be considered afresh. I therefore did not direct that any of the findings of Judge Hague were preserved although, of course, stated that the judge hearing the appeal would, on the principles set out in Devaseelan take into account the findings of Judge Malone and the evidence given before Judge Hague.

12. For the above reasons I set aside the determination of Judge Hague and directed that this appeal proceed to a hearing afresh on all issues. Further directions are set out below.

13. As is evident from what I have written above Judge Malone heard the appeal of the appellants when they had made their first application for asylum. Under the provisions of the determination in Devaseelan his decision is the starting point in any further determination. What is relevant in his decision is that he accepted that the first appellant had gone through a ceremony of baptism in Pakistan although he did not accept that the first appellant had converted. He also, in paragraph 59 of the determination, determined that the appellants were exercising family life here as husband and wife. He dismissed the appeal and permission was refused to appeal further to the Tribunal. However there were then judicial review proceedings and a further letter of refusal which is dated 13 December 2012. That again focused on the genuineness of the conversion of the first appellant and did consider an expert report by Mrs Uzma Moeen and concluded that the appellants' application could not succeed. It was indeed thought by the respondent that Mrs Moeen's report was of limited use.

14. There are a number of issues in this appeal but the central issue, and on this Mr Saunders agreed, is whether or not the first appellant is a genuine convert. Indeed Mr Saunders indicated that should I find that Mr P was a genuine convert then there was a likelihood that his appeal should succeed. However, he submitted that NP was not a genuine convert but that in any event the fact that he had married in a church in Pakistan would not be of note if the appellants were returned because they could easily get married in a civil ceremony here and use that as the basis on which they would live in Pakistan.

15. In considering the genuineness of the conversion of the first appellant I have taken into account and placed weight on the answers given by the appellant at interview which it is correct to say do not show a particularly thorough knowledge of Christianity but I have also placed weight on the considerable documentary evidence which has been produced. That starts off with evidence from the Rev. Sabir in Pakistan who talked about the conversion of the first appellant and how he gave him a Bible to read. This was the evidence which was accepted by Judge Malone that the appellant had been baptised in Pakistan.

16. There is considerable evidence from Ministers of Religion here. These include Bill Muncey and Canon Arun John, who gave evidence before Judge Hague. Dr John in his witness statement refers at some length to his knowledge of the first appellant and stated that he considered him to be a very devoted Christian who was enthusiastic and inspired to learn more about Christianity, not just from his wife who had been brought up in a Christian family but also from him. He stated that he found the first appellant to be receptive to help and to have a strong desire to participate within the church. It was his strong belief that the appellant was a genuine convert.

17. The appellants have had to move from place to place as they were receiving accommodation it appears from NASS. I note that at least one of the churches which they attended, St. James in Amhurst, held services in Urdu.

18. At the hearing before me a Pastor, Haile T Emiru, gave evidence. He is a member of the pastoral team of the Metropolitan Tabernacle Baptist Church in Elephant and Castle which the appellants now attends although it appears that the first appellant attends rather more than his wife as their journey to get there takes some considerable time. He was adamant that the appellant was a genuine Christian. It was put to him by Mr Saunders that he might be mistaken or there might be an attempt as it were to pull the wool over his eyes. He stated that although he could not be certain that was not the case he was pretty sure that it was not and he took the view that the appellant was definitely a genuine Christian.

19. I have to weigh up all the evidence relating to the first appellant's conversion. The standard of proof is that of a reasonable likelihood. It is clear that the appellant who was baptised in Pakistan has attended many churches here and indeed has been regular in attendance and indeed that his knowledge of the Christian religion has grown. He was questioned by Mr Saunders on that and gave a detailed answer to the question of who had betrayed Jesus Christ.

20. Taking all the evidence I have heard into account it is my conclusion that the first appellant is a genuine Christian.

21. Going on from that finding I have to consider whether or not, on return to Pakistan, the appellants would face persecution for a Convention reason that is because of their religion. They were both questioned at very considerable length by Mr Saunders on what knowledge those they knew in Pakistan, that is their workmates, had of the first appellant's conversion. It appeared that because a photograph had been taken at the wedding by a woman who had indeed also attended the first appellant's baptism but was a Muslim, people at the first appellant's workplace were aware that he had married and indeed that he had married a Christian. One of them had placed a message on the first appellant's Facebook page which indicated that he thought the appellant would be in danger on his return. It is not clear exactly whether or not it was a direct threat from that individual or that that individual was saying that that would be likely to happen.

22. Be that as it may, in considering what would happen to the appellants, I must consider the evidence in the various expert's reports and consider, as a starting point, the relevant country guidance case of AJ (Risk Christian Converts) Pakistan CG [2003] UKAIT 00040. The reality, however, is that AJ (Pakistan) is now ten years old. The treatment of religious minorities in Pakistan has changed dramatically in that time. I need only look at the UNHCR Report to see the far more difficult circumstances in which Christians now find themselves in Pakistan. Moreover jurisprudence has developed in that time, most notably in the Supreme Court's decision in HJ (Iran) 2010 UKSC 31. That decision makes it clear that a claimant for asylum could not be expected to hide a basic characteristic such as their religion if they were returned to the country where they fear persecution. It cannot therefore be expected of the first appellant that as a committed Christian he would be expected to hide his conversion or hide the fact that he was married to a Christian woman in Pakistan. Therefore, the first appellant would be returning as a convert who had married a Christian in Pakistan and was living with her. Taking all these factors together I do not consider that I am bound to follow the ratio in AJ (Pakistan).
23. Leaving to one side the issue of whether or not NP might fear persecution from his family - and there is no indication, I consider, that that might happen, the reality is that there are the various provisions of the Pakistani law which not only discriminates against but set out severe penalties for those who convert. I consider that there is a real risk that the appellants would face persecution in Pakistan.
24. I reach that conclusion having considered the reports of Mrs Uzma Moeen and that of Professor Wenski. There is also a further report which endorses the difficulties which might well be faced by the appellants from a Roger Ballard.
25. Professor Wenski refers to the treatment of those who are thought to be disloyal to the Islamic republic of Pakistan by not being a "normal" Muslim and by explicitly rejecting Islam. He states that the First appellant would be likely to face an extremely serious risk of being killed by those who felt called on to protect the Islamic republic of Pakistan.
26. Mrs Moeen refers to the fact that the appellants' marriage would be treated as unlawful which could lead to prosecution and she points out that if the second appellant became pregnant she would be committing an act of Zina - involving extra marital sexual relations.
27. The legal provisions in the Hudood ordinances and the Zina ordinance could well lead to the appellants suffering ill-treatment and indeed those legal provisions in Pakistan make it very clear that should the appellants suffer at the hands of any religious body there would not in any event be any protection for them from the state. I therefore consider that there is a real risk that on return to Pakistan the appellants would suffer persecution for a Convention reason.
28. I have already set aside the determination of Judge Hague. I now re-make the decision and allow these appeals on asylum grounds. It follows from that of course that the appeals are also allowed on human rights grounds under Article 3 of the ECHR.

Signed Date

Upper Tribunal Judge McGeachy