Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00382/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated on
On: 10 March 2016
24 March 2017

Before

Deputy Upper Tribunal Judge Mailer

Between

the secretary of state for the home department
Appellant
and

MF
anonymity order made
Respondent

Representation
For the Appellant: Mr S Whitwell, Senior Home Office Presenting Officer
For the Respondent: Mr A De Ruano, Legal Representative

DETERMINATION AND REASONS
1. I continue the anonymity order previously made. Unless and until another Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the claimant. This direction applies to all parties. Any failure to comply with the direction could give rise to contempt of court proceedings.
2. I shall refer to the appellant as ”the secretary of state” and to the respondent as “the claimant.”
3. The claimant is a national of Iran, born on 14 August 1986. He appealed to the First-tier Tribunal against the decision of the secretary of state refusing his asylum claim based on his religious claim (conversion to Christianity) and his detention and torture after attending a demonstration in June 2009. The secretary of state did not accepted that he would be of adverse interest to the Iranian authorities.
4. In a determination promulgated on 9 November 2015, First-tier Tribunal Judge S Lal allowed his appeal. He accepted his claim that the authorities had arrested him in Iran, finding that his evidence in that regard had been consistent throughout. It was not considered however that the arrest by itself could form a well founded fear in 2015.
5. Judge Lal accepted that he had converted to Christianity and that he plays an active role in the life of the Christian community and associates, with Kings Church. He is an active convert. He assessed that if he were to be returned, his previous arrest in 2009 coupled with his now active faith would create a real risk on return. It was also accepted that the evidence of the claimant and his mother that the arrest of his friend from the home church and a fear that members of that group would be subsequently rounded up, prompted his claim for asylum. Judge Lal thus accepted that he may well be questioned upon return. He would not seek to deny his Christian faith. Therefore his fear of persecution and ill treatment would be well founded [27-28].
6. On 23 November 2015, First-tier Tribunal Judge Grant-Hutchison granted the secretary of state permission to appeal. There was only one ground of appeal, namely the assertion that the Judge failed to answer the key question in Christian convert cases, which is whether the claimant would or would not proselytise his faith. It was arguable that the Judge had erred by failing to consider whether or not the claimant would proselytise on return to Iran.
7. The appeal came before Deputy Upper Tribunal Judge Ramshaw. In a decision promulgated on 8 April 2015, Judge Ramshaw found that the decision of the Tribunal contained a material error of law. The decision was set aside and was re-listed for hearing to hear evidence and submissions on the single issue as to whether or not the claimant would be at risk of persecution on return to Iran as a result of his Christian faith in the light of the guidance given in the decision of SZ and JM (Christians – FS Confirmed) Iran CG [2008] UKAIT 00082.
8. In SZ, the Tribunal noted that what needed to be looked at was not only the church to which the individual is an adherent, but the way in which that individual returnee is likely to behave. When assessing that, it is right that it should be borne in mind that the evidence of Canon Coulton was that a person who has come for himself and by choice to a new religion is more likely to want to spread the word than someone who is second or later generation and born into it.
9. At paragraph 148 of SZ, the Tribunal found that there is a risk, but not a real risk of serious harm, if returned to Iran for ordinary converts.
10. Judge Ramshaw noted that the Judge asked the right question, namely 'what type of Christian is the appellant'. Although Judge Lal accepted that the claimant played an active role in the life of the Christian community this did not answer the questions posed in SZ. The Tribunal had not addressed the question as to what the claimant's conduct would be in Iran, particularly given the fact that he lived in Iran for a considerable period of time after converting to Christianity. It is not clear what exactly Judge Lal meant when finding that the claimant plays an active role in the life of the church. No details were set out as to what the role of the claimant was in the church [10]. Not seeking to deny his Christian faith on return to Iran does not have the elements of seeking to convert others and in spreading the word that was identified in SZ as giving rise to a real risk of ill treatment [11].
11. It was accepted that there was a need for a hearing to hear evidence so that relevant findings of fact could be made [12]. Judge Ramshaw directed that the parties were to file any evidence on which they intended to rely 14 days before the date of hearing.
The hearing on 10 March 2016
12. At the reconvened hearing on 10 March 2016, Mr De Ruano produced a supplementary bundle containing statements from the claimant and his mother. The claimant accordingly sought to rely on “up to date evidence in the enclosed bundle.”
13. Mr Whitwell did not however oppose the admission into evidence of the statements contained in the supplementary bundle.
14. The claimant attended the hearing and gave evidence. He adopted his witness statement at A1 dated 9 April 2015 as well as his more recent statement at A2-4 dated 4 March 2016. He adopted the contents in the statements as true and correct.
15. His earlier statement contained a response to the secretary of state's reasons for refusal. In his recent statement he 'stands by' his evidence already given. He tried to get other people to convert to Christianity by distributing Bibles in Farsi to people he could trust and people who showed an interest in Christianity.
16. He met them in the 'house church'. It was a clandestine, illegal home church. Some of the people who came there were already Christians but many were yet to become Christians and it is those people he was helping to convert.
17. He had to do this with caution because he feared that if the Iranian authorities were to have found him doing this evangelising, he would have been in serious danger of ill treatment and even death. He would continue this if returned to Iran but would have to be very careful.
18. His family in Iran know he is a Christian. They did not know this when he was in Iran but found out after he came to the UK. As he did not return to Iran as originally intended, his mother told his family that he had become a Christian. His maternal aunt in Iran knows that he is a Christian.
19. He does not know whether his aunt has told anyone else but that is a possibility. She might have told her daughter about it and the word may have spread. As they are in the UK they are not sure what exactly has happened and this is a sensitive issue. They have to be careful talking about it.
20. The friend who warned him not to come back to Iran knows that he is a Christian. They knew each other from the church. The brother who was arrested may have told the authorities of others in the church including him.
21. His friends in the house church in Iran know that he is a Christian. The brother of his friend who was arrested also knows. He is afraid that the authorities already know about his involvement in the church.
22. In the UK he would like to encourage other people to become Christians but as his English is rather limited, he has for that reason not been able to do much evangelising in the UK.
23. He and his mother saw somebody called Martin in the church and asked him what help he could give in the church. He said that English was predominantly used there and there was not much he could do with his limited English. He attended English classes in the church on Mondays. He even moved the church to another building. Despite the distance from home, he still attends. Once his English improves, he hopes to become more active. He does voluntary work for the British Heart Foundation, hoping to improve his English through this. He has been going to church since he came to the UK.
24. In his earlier statement he asserted that the main basis of his claim is the telephone call he received once he was in the UK. When he was arrested in 2009 he signed an undertaking and had not attended demonstrations since then. He thus did not have any exit ban.
25. Once he came to the UK he was worried that he might not be given another visa, so he decided to stay longer to make the most of the chance he had to visit his mother. He then received a phone call and began to fear that it was not safe for him to return to Iran.
26. When in Iran he was not able to be open about any interest in Christianity. This limited his ability to research and learn about Christianity. Since coming to the UK he has continued to practice Christianity. He goes to church in Kings Church, Aldershot.
27. They were well off in Iran, living in a big house. Since coming to the UK in January 2014 he has not been happy. He has nightmares. He referred to certain mistakes in his interview at paragraph 11.
28. In his evidence before the First-tier Tribunal, where he adopted his witness statement, he stated that in June 2009 he and some friends were arrested for taking part in an anti government demonstration. He had never claimed that he was at the demonstration but rather that he and his friends were passing by when they were detained. He was held for a week and was tortured in custody. He was then released on bail after signing an undertaking prior to his release.
29. He stated that as a result of his experiences he converted to Christianity in 2009 and was baptised in 2012 in a private house, a home church, in Iran. His incentive for claiming asylum was as a result of contact made in the UK by his friend's brother who called stating that his friend had been arrested. Since being in the UK, he attends Kings Church every Sunday.
30. The claimant was cross examined. The number of those attending the house church varied each week from between 6-10 people. He would know the identity of the congregation.
31. He was asked what he meant at paragraph 2 of his witness statement that he “helped” to convert persons who were yet to become Christians. He said that when they showed an interest, they would give them a CD and the Bible. This was sometimes done by him or another person. It was not only he who did this. He did not attend every week as he also worked.
32. He said that the evangelising was limited to the location of the house because they could not go outside and give the message “in a free way.” There were different numbers each week. He would say that three or four of those who attended were the same. Sometimes more Christians would attend as they were showing an interest.
33. He was asked what “cautions” were used in engaging in this activity in Iran. He said that as they did not have the freedom to carry this out they had to do it secretly by giving a CD and Bible to those who attended.
34. He was asked whether the person who converted them is the equivalent of the vicar. He said they used to do evangelising and Father Philip took the responsibility of any conversion. This would be at a house. There was a pond where it took place. He only saw this once when he was baptised. He was taken there by car. Father Philip baptised him at the same house.
35. He was referred to question 108 of his interview where he was asked to give the date that he was baptised. There he stated that he did not know the exact date. At question 104 he was asked when the official conversion took place. He stated that it was two years ago. (His interview was on 23 October 2014).
36. Mr Whitwell asked when his father found out that he was a Christian. He said that when he did not return to Iran he contacted him and told an aunt and sister as well. He only had leave to remain for six months when he realised that his life was in danger. He contacted his father just before his visa expired. His visa expired on 13 July 2014. It was about a week before the expiry date that he contacted him.
37. He stated at his interview (Q98) that his father “does not know yet” when he decided to convert.
38. He said that his father does know that he is a Christian. In his witness statement he said that he told his mother and aunt that he had become a Christian. He does not know if she has told anyone else but that is a possibility. He did not ask his mother why she told his aunt that he was a Christian. That he claimed puts him at risk.
39. His best friend was arrested by the authorities and he might have told them that he, the claimant, is a Christian. He might have stated this under torture. It was put to him that he does not know this. He said that his friend's brother told him that his brother had been arrested and that if the appellant returned he would be in danger.
40. It was put to him that his fear is not about whether his family members might say but what his friend might have told the authorities. He does not know what would happen. His life would be in danger.
41. In re-examination, he said that he practised Christianity in Iran at private premises. He practised it discreetly. He was asked whether this was by choice or whether he would have wanted to practise it in another way. That was his choice in Iran at the time.
42. He was asked how he would behave differently in Iran if it were a free country. He said he would choose to go to a church and get help and advice from others.
43. He was asked whether he wants to evangelise or proselytise any differently in Iran. He would have gone on the streets and given others CDs. This would include inviting them to come to church and by handing them pamphlets.
44. He was asked what he had been doing in the UK in that regard. He was told by the church leaders to “better my English.” It is however important for him to do it publicly. He was baptised as a Protestant. The church in the UK is the Church of England.
45. He was asked how important it was as a Protestant to “spread the word” publicly. He said it was important. If he could have done it openly he would have.
46. Mr Whitwell asked further questions arising from the re-examination. He said his mother asked Father Martin about evangelising and he was advised not to do this because of his lack of English.
47. Mr Whitwell put to him that his mother was opposed to his becoming Christian. He said although she has not been happy, she has accepted his decision. She sometimes 'goes to help' with his English language.
48. Ms N S attended the hearing and gave evidence. She adopted her witness statements at A1, page 6, and A2, pages 5-6, dated 9 April 2015 and 4 March 2016 respectively.
49. Her first statement is not informative. There are two short paragraphs in which she simply stated that her statement is in support of her son's asylum and human rights appeal. She has refugee status and indefinite leave to remain here. She intends to attend the hearing and answer questions.
50. In her later statement she gave her date of birth as 29 December 1961. She is Iranian.
51. She has gone to church in Aldershot with her son on occasion. As his English is “still rather limited” she helps him to talk to other people in the church and translated for him.
52. When he did not return to Iran as originally intended she told her sister in Iran that he had become a Christian. She did not know that before. Her sister may have told her children about the claimant and the word may have spread. She is concerned that this has put her in danger as the authorities may be aware that her son is a Christian. She fears they may already know and that he tried to encourage others to become Christian at a secret home church.
53. She was cross-examined. She told her sister about his conversion because the claimant did not return. When they asked her why, she then told her.
54. Mr Whitwell referred her to paragraph [24] of the Judge's decision. The Judge stated that the claimant's mother gave evidence and expressed her real personal dismay at his conversion and her attempts to get him to change his mind, even though she attended the Tribunal to give evidence on his behalf. It was clear to the Judge that she had been very upset at her son's conversion.
55. She said she confided in her sister when she asked and she told her the truth. When Mr Whitwell put it to her that surely her sister would not tell anyone outside the family she said that she may have mentioned it to her children and it may have spread. She has not asked her about this.
56. She is not married to the claimant's father. He did not know about the claimant's conversion but he now knows. She does not know when he found out. However, he is not happy. She used to contact him. Now he is “cold to him.”
57. She left her husband a few years ago and came to the UK in October 2008. Her application for asylum was related to the problems she has had with her husband.
58. Mr Whitwell asked her why the claimant would be at risk on return to Iran. She said with regard to his conversion, that his friend has been arrested and many others are in prison. Also, his problem with the authorities puts him at risk. He and a friend were involved in demonstrations and were arrested for taking photos of a gathering. He promised them that he would not participate any longer.
59. She was not aware that the claimant had converted to Christianity until she came to the UK. She said that the claimant knew that she would not be happy.
60. She accepted that her son could have told her that he was a Christian in 2012 and that he had converted. She knew he would not have had a good reaction from the family.
61. Mr Whitwell asked her how the claimant practises his Christianity in the UK. He attends and takes part in weekly church meetings. He goes to church each week. He has asked for a more proselytising role. He started that on the first Sunday that he arrived. He told her about this after she arrived. He told her he was going to church each week and attends meetings in people's houses.
62. He asked her to ask the church members if he could help them in any way. Because his English is not good, that would not be possible.
63. She goes with him to church sometimes. She was not happy in the beginning but it was something he wanted and he was an adult. He asks her to go as it helps him to socialise with others through her, as her English is better than his.
64. Although she is a Muslim, she respects Christianity.
65. Mr Whitwell asked her when she realised he had become a Christian. It was when he telephoned Iran. He was not himself any more. She asked him what was the problem. He said he had been going to church from the first Sunday.
66. The first time she became aware that he had converted was about three months before his visa was due to expire. When he first came he did not tell her he had converted.
Submissions
67. On behalf of the secretary of state, Mr Whitwell relied on the reasons for refusal and in particular paragraph 58-66.
68. An issue of credibility to be addressed relates to when the claimant's father became aware of the conversion. There is a discrepancy which is not capable of a proper explanation. That 'tempers' his evidence of what he would or would not do if returned to Iran. The answers varied.
69. Whilst in the UK, it appears that he has had a limited role in the church. He behaved discreetly in Iran prior to coming here. Regard should be had to what he has done in the UK. That does not amount to much. There has been little by way of any proselytising.
70. His claim that he would not have communication skills, having regard to his lack of English, does not explain why people without English cannot evangelise.
71. He was discreet in the UK. He did not want to tell his mother that he was baptised in 2012 even though he was not in Iran. It was not because of fear but because he did not wish to embarrass the family.
72. He would behave discreetly in Iran on return, because “that is who he is.”
73. Mr Whitwell referred to SZ and JM, supra, and in particular to paragraphs [138-148]. There is a distinction between the ordinary convert and the proselytiser. What needs to be looked at is not only the church which the individual follows but the way in which that individual returnee is likely to behave. The question of whether someone is a convert will depend on his own facts. It remains the case that it is the active evangeliser whom the authorities are primarily interested in.
74. The Tribunal in SZ and JM held there that for the ordinary convert there is a risk, but not a real risk, of serious harm if returned to Iran. In the appeal of Z the Tribunal found that he would not seek to draw attention to himself by proselytising or evangelising openly on return. He is an ordinary convert and would not be at risk [157-159].
75. Mr Whitwell accepted that that decision has been modified following the Supreme Court's decision in HJ (Iran) and HT (Cameroon) v SSHD [2010] UKSC 31. He submitted that the claimant would behave discreetly in Iran as that is the way that he is.
76. On behalf of the claimant, Mr De Ruano relied on the skeleton argument and the oral evidence.
77. As to the issue relating to the discrepancy as to when the claimant's father found about his conversion. He submitted that the evidence was confused. In any event, that discrepancy is not the centre or core of the claimant's case.
78. Assuming that he is found to be a Christian, the issue relates to what the claimant's behaviour would be on his return to Iran. If he would behave discreetly, it is necessary to ask why he would do so. Although his father's reaction may be part of how he would behave, there is evidence that his discreet behaviour whilst he was in Iran was to avoid serious consequences. He should succeed on that ground irrespective of any evangelising.
79. He referred to the Policy Summary at paragraph 1.4 of the Home Office Country Information and Guidance - Iran: Christians and Christian converts, dated December 2014.
80. The third paragraph of the policy summary states that
Members of Evangelical and house churches, and those who actively seek to evangelise others and engage in proselytising activities, are at real risk of persecution in Iran and a grant of asylum is likely to be appropriate.
81. Mr De Ruano submitted that based on the evidence, the claimant would have a very serious problem if he sought to evangelise. His reasons for not evangelising, namely to avoid problems in Iran, in itself is a basis for granting him refugee status.
82. He had wanted to proselytise openly in the UK but as a result of constraints from his church in Aldershot this did not take place. It might have been more appropriate in London for such activities to have taken place where there is a more 'cosmopolitan population'.
Assessment
83. The decision in SZ and JM, supra, was decided in 2008. Since then the binding authority of the Supreme Court's decision in HJ (Iran) and HT (Cameroon) v SSHD [2010] UKSC 31 prevails. In SW (Lesbians – HJ and HT applied) Jamaica CG [2011] UKUT 00251 (IAC), the Upper Tribunal set out its understanding of the Supreme Court decision in HJ. One of the questions that had to be answered was whether the Tribunal was satisfied on the available evidence that gay people who lived openly would be liable to persecution in the applicant's country of nationality and if so, what the claimant would do if returned to that country. The questions posed by HJ (Iran) must be asked and answered.
(a) The Tribunal must first ask itself whether it is satisfied on the evidence that he is gay, or that he would be treated as gay by potential persecutors in his country of nationality. If so, the Tribunal must then ask itself whether it is satisfied on the available evidence that gay people who live openly would be liable to persecution in the applicant's country of nationality. If so, the Tribunal must go on to consider what the individual applicant would do if he were returned to the country.
(b) If the applicant would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well founded fear of persecution, even if he could avoid the risk by living “discreetly.” If, on the other hand, the Tribunal concludes that the applicant would in fact live discreetly and so avoid persecution it must go on to ask itself why he would do so.
(c) If the Tribunal concludes that the applicant would choose to live discreetly simply because that was how he himself would wish to live, or because of social pressures, for example not wanting to distress his parents or embarrass his friends, then his application should be rejected. Social pressures of that kind do not amount to persecution and the convention does not offer protection against them.
(d) If, however, it is concluded that a material reason for the applicant living discreetly on his return would be a fear of the persecution, it would follow that if he were to live openly as a gay man, then, other things being equal, his application should be accepted. Such a person has a well founded fear of persecution. To reject his application on the grounds that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect – his right to live freely and openly as a gay man without fear of persecution.
84. These decisions also inform the situation regarding Christians who claim that they would be subject to persecution in Iran arising out of their practising their faith. I have had regard to the home Office policy which expressly included at Annx B, the reference to the Supreme Court's decision in HJ(Iran), supra.
85. I have had regard to the evidence as a whole, including that given by the claimant and his mother. I have also borne in mind Mr Whitwell's criticism of the claimant's account regarding the disclosure of his conversion to his father. Although there is a discrepancy, I do not find however when assessed as part of the evidence a whole, that this significantly militates against the credibility of the claimant's core assertions.
86. I have also had regard to the reasons for refusal including the fact that the secretary of state did not accept that the claimant would be of adverse interest to the Iranian authorities.
87. It is not contended that the claimant had not converted to Christianity or that his conversion is not genuine. The issue relates to what he would do if returned to Iran.
88. I have considered the claimant's and his mother's evidence in that respect. I have also had regard to the evidence given to the First-tier Tribunal by way of a letter of support from Pastor Simon Porter from the Kings Centre dated 27 October 2014 which confirmed that the claimant had attended the church on a weekly basis since January 2014 and that he seemed determined to pursue his Christian faith “which we believe is genuine” [15].
89. I have also considwered the claimant's asylum interview where he stated in answer to Question 137 that he did not practise his faith openly in Iran because “if they knew, they would kill you.” When asked whether he encountered any problems in Iran because of his religion, he replied that he did not because nobody knew. At question 149 he was asked whether, if he were to return to Iran, he would practise his faith openly. He stated that he cannot do this openly because if they know “then it is execution.” Finally, at question 154 he was asked whether he was practising his faith openly when he was arrested. He said “no, because it is impossible to practise openly.”
90. In his oral evidence the claimant stated that whilst in the UK he sought to evangelise publicly. He was however encouraged not to do so by his church as his English was not adequate for that purpose.
91. He said that he would wish to evangelise and “spread the word” openly and publicly if returned to Iran. That however would not be possible and he would have to continue to behave discreetly and in private.
92. I have had regard to Mr Whitwell's submission that the claimant would in any event behave discreetly on return having regard to the likely response from his father and his family. If he behaved openly as a Christian this would bring embarrassment and shame to them. Accordingly, Mr Whitwell submitted that he would for that reason behave discreetly in Iran as he had done in the past.
93. However, in his evidence, the claimant said that he would wish to evangelise openly. That was part of his belief. He would wish to hand out leaflets and encourage Iranians to consider converting to Christianity.
94. I accordingly find that the material reason for living discreetly on return would be his fear of the persecution which would follow if he were to live openly as a Christian.
95. The Convention exists to protect his right to live freely and openly as a Christian without fear of persecution.
Notice of Decision
The appeal of the secretary of state is dismissed. The decision of the First-tier Tribunal shall accordingly stand.
Anonymity direction continued.

Signed Date 4 May 2016
Judge C R Mailer
Deputy Upper Tribunal Judge