Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00320/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6th January 2017
On 25th January 2017

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

the Secretary of State for the Home Department

Appellant
and

A Z
(aNONYMITY DIRECTION NOT MADE)

Respondent

Representation:

For the Appellant: Mr P Nath, Home Office Presenting Officer
For the Respondent: Mr Gaisford of Counsel instructed by Elder Rahimi Solicitors

DECISION AND REASONS

1. The application for permission to appeal was made by the Secretary of State but nonetheless for the purposes of this appeal I shall refer to the parties as they were described before the First-tier Tribunal, that is Mr Z as the appellant and the Secretary of State as the respondent. The respondent appeals against the decision of Judge of the First-tier Tribunal Herlihy who allowed the appellant's appeal against the refusal of the Secretary of State to grant him international protection and protection under the European Convention on Human Rights.
2. The appellant is a citizen of Iran born on 3rd December 1984 who arrived in the United Kingdom on 31st October 2006. He submitted a false claim for asylum on 7th August 2007 in a false name and he then revealed his identity and changed his claim and the whole basis of his claim. On 13th July 2010 the respondent made a decision to remove him as an illegal entrant under Section 10 of the Immigration and Asylum Act 1999 and this appeal against that decision was rejected by Immigration Judge Mitchell on 2nd September 2010 who made adverse credibility findings against the appellant.
3. As cited above the appellant made a fresh application for asylum which was that he had converted to Christianity and was baptised on 19th October 2013 at the Living Stones Baptist Church in Plymouth. That application was refused by the Secretary of State on 11th February 2016 and the appellant appealed against the refusal of his claim for international protection and on human rights grounds. First-tier Tribunal Judge Herlihy allowed the appeal and I set out her findings at paragraphs 32 to 37:
"32. In examining the totality of the evidence submitted by the Appellant, I am satisfied that he has been baptised in the Christian faith and I see no reason to doubt the authenticity of the Baptismal Certificate or the letter from Pastor H M dated the 26th July 2016. I note that there was a previous letter submitted by Pastor M attesting to the Appellant's conversion to the Christian faith.
33. I have considered the Appellant's overall credibility and find that he is undoubtedly somebody who is prepared to use almost any means to procure the grant of asylum. I do not find that he is likely to be a serious convert to Christianity and I am struck by the complete paucity of evidence from church officials other than Pastor M confirming the Appellant's regular attendance at Christian church services. Pastor M last saw the Appellant in October/November 2013 just after his baptism. The Appellant has claimed that he has evangelised and has referred to 6 people to whom he has spoken and attempted to teach them about Christianity. Again, there was no evidence in support of the Appellant's claims and I did not find them credible as I note that the Appellant is clearly someone who has made a number of claims for asylum on various grounds and to (sic) has deployed deception in initially claiming asylum in a false identity. I therefore find that the Appellant has not openly demonstrated that he has evangelised as claimed and I find that his claim to have done so has been made to enhance his asylum claim.
34. Having accepted that the Appellant has been baptised and has converted from Islam to Christianity I need to consider whether he would be at risk due to that fact if he were to return to Iran. I do not find that the Appellant is a serious convert Christian given the lack of evidence of his regular attendance at church from the Iranian church. The Appellant explained the absence of any witnesses due to their attendance at a conference, but I did not find this a credible explanation as if the Appellant was a regular attendee the church would have indicated this in their letter dated 10th July 2016 and they refer to him only as an occasional attendee. I find that if the Appellant was a committed church member that he could have produced evidence of this from a member of the Iranian Christian Fellowship and the absence of any evidence attesting to his commitment to his faith, given his previous immigration history, I find it likely that he has undertaken the conversion for the sole purposes of obtaining or seeking asylum in the United Kingdom. The Appellant says he is not in touch with any members of his family in Iran although he then appeared to contradict himself by saying that they had no problems with his conversion when he explained to them that it had brought him peace.
35. I have given consideration to the decision of the Supreme Court in HJ (Iran) and HT (Cameroon) v SSHD (2010) UKSC31 and the findings that it is unreasonable to expect a person to hide their faith to avoid persecution. I also note the Country Information Guidance at paragraph 3.1.4 which provides that the right of Muslims to change their religion is not accepted under Sharia law and the religious conversion of Muslims is illegal in Iran and that Christians who have converted from Islam are at real risk of persecution in Iran and a grant of asylum is likely to be appropriate.
36. I do find that the Appellant has produced satisfactory evidence that he has practiced (sic) of his faith openly in the United Kingdom which could place him in danger on return; albeit this is demonstrated only by the occasional attendance at Church in London and previously in Portsmouth where he was baptised. However from the background material it is evident that conversion is illegal and I find that the (sic) if the fact of his conversion is admitted to by the Appellant or otherwise becomes known to the authorities in Iran that he would be at risk of serious persecution and that the reason he would conceal his conversion is solely due to this fear of persecution. Although I find that the Appellant has been baptised and has attended Church I am not satisfied that he would openly demonstrate his conversion in Iran, but I find that he is unlikely to do so because of fear of persecution.
37. Given the conclusions as outlined above, I find that the Appellant has discharged the burden of proof to establish that she is entitled to the grant of asylum. I come to the conclusion that the Appellant's removal would cause the United Kingdom to be in breach of its obligations under the Qualification Regulations."
4. The Secretary of State made an application for permission to appeal on the basis that there had been a material misdirection of law, there was perversity, there were inconsistent findings and a failure to give adequate reasoning.
5. It was submitted that at paragraphs 32 to 34 the judge found that whilst the appellant had been baptised his claim was not credible and that he was prepared to use almost any means to procure the grant of asylum. Despite the adverse credibility findings that demonstrated the substance of his claim was a sham, the judge went on to find at paragraph 36 that the mere fact that the appellant pursued a sham claim openly in the UK was sufficient to warrant protection under the Refugee Convention and engaged Article 3 of the Convention on Human Rights.
6. It was submitted that the judge failed properly to apply the Supreme Court's reasoning in HJ (Iran) [2010] UKSC 31 or to have regard to the country guidance in respect of failed asylum seekers pursuant to SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC).
7. It was submitted that having found the appellant's claim incredible the judge had failed to identify any evidence at all that would indicate the authorities were aware or would become aware of the appellant's sham conversion, or indeed perceive the conversion as genuine.
8. The judge's findings at paragraph 36 were pure speculation and contradictory to the findings at paragraphs 33 to 34, perverse and inadequately reasoned. The judge failed to explain that if the conversion itself was a sham why the appellant would see to something that was not true.
9. Equally, the judge failed to have regard to the country guidance caselaw.
10. In his submissions before me in the Upper Tribunal Mr Gaisford submitted that it was clear that the First-tier Tribunal Judge had accepted that the appellant had converted and there was no reason to doubt that authenticity. The case of RT Zimbabwe [2010] EWCA Civ 1285 was applicable as to whether the appellant should rely on his return to Iran. There was a finding that he converted and attended church, albeit that it was not regular, that there was no doubt that he had been to a number of churches. The judge had found that he had practised his faith openly and that forms the premise for the finding. There was a risk on return finding in paragraph 36. The appellant had practised in the Iranian community in London. Mr Gaisford in turn criticised the judge's findings in that it was not for the Tribunal to judge the extent to which the appellant had become a convert and it was not open to the judge to be an inquisitor in that respect. The extent of his belief was not relevant. There was a further important point that it was clear that the appellant had distanced himself from both the Muslim faith and therefore rejected Islam, but also rejected the Iranian theocracy of Islam and that was covered by Article 9. He accepted that there were difficulties in the wording, but nonetheless the determination had done enough.
11. Mr Nath in his response argued that the findings in relation to the theocracy of Iran and the appellant's rejection therein were not made out by the judge. There was no engagement with the objective background information and no finding on the objective point. The determination lacked detail, was disjointed and disorganised and undertook a turnabout midway. There was simply not the detail required and an inadequacy in relation to the findings.
12. Despite Mr Gaisford's valiant attempts to uphold the determination I find that there are contradictions in the determination of the First-tier Tribunal Judge and these can be seen from the second sentence of paragraph 33 where the judge finds that
"I do not find that he is likely to be a serious convert to Christianity"
and the opening sentence of paragraph 34 where the judge states
"Having accepted that the Appellant has been baptised and has converted from Islam to Christianity I need to consider whether he would be at risk due to that fact if he were to return to Iran".
There is a further contradiction with the opening sentence of paragraph 33 and the finding at paragraph 35 in relation to the Country Information Guidance at paragraph 3.1.4. It is not clear on an overall reading whether the judge does accept that he has converted or not, and the effect of a 'sham baptism'. This is at the heart of the decision.
13. In addition, there was an inadequate engagement with the background material; and although the judge does refer to the Country of Origin Information Report she does not explain how this applies to this particular appellant, in respect of whose adherence to Christianity she is ambivalent. Indeed the judge does not cite the country guidance of FS and others (Iran - Christian Converts) Iran CG [2004] UKIAT 00303, specifically paragraphs 163 to 165 and the country guidance of SZ and JM (Christians - FS confirmed) Iran CG [2008] UKAIT 00082. This confirmed FS which in turn was rather more nuanced.
14. On the one hand the judge appears to reject the appellant's conversion to Christianity and yet on the other hand proceeds on the basis that he has indeed converted. On the one hand the judge appears to find that the appellant is not a serious convert, but on the other hand appears to find that it is unlikely that he will express his faith openly because of fear of persecution. These would also appear to be contradictory findings.
15. Although the judge finds from the background material, citing the latest Country Information and Guidance Iran: Christians and Christian Converts December 2015 and 2nd December 2015, conversion is illegal and that if his conversion was admitted to by the appellant or otherwise, he would be at risk of serious persecution, there was no finding as to why he would he admit to something when he is not a genuine convert. The judge states at paragraph 36 that having practised his faith openly in the United Kingdom that could place him in danger on return, but does not support this with adequate reasoning when finding he will be at risk and makes no findings in relation to any religious surveillance by the Iranians in the UK. The real question is how he will be perceived in Iran on return. Even if the appellant is not a serious convert and Mr Gaisford himself, rightly so, took issue with the credibility findings of the judge, the question is how the appellant will be perceived on his return because of sur place activity sham or otherwise? - see YB Eritrea v SSHD [2008] EWCA Civ 360. I note in passing there was a wealth of material supplied by the appellant's representatives, none of which was engaged with by the judge
16. The respondent is entitled to understand why she has lost the case and it is not clear from this decision why that is so.
17. Therefore, for the reasons given above, I find there are errors of law and set aside the determination and return the matter to the First-tier Tribunal because of the nature and extent of the findings to be made.
Notice of Decision

The Judge erred materially for the reasons identified. I set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007). Bearing in mind the nature and extent of the findings to be made the matter should be remitted to the First-tier Tribunal under section 12(2) (b) (i) of the TCE 2007 and further to 7.2 (b) of the Presidential Practice Statement.

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 25 January 2017

Upper Tribunal Judge Rimington