Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04498/2014

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision & Reasons Promulgated
On 17 October 2016
On 19 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between

MOHAMMED AMIN SOLTANI
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms N Patel for Lei Dat Baig
For the Respondent: Mr C Bates Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. In order to avoid confusion, the parties are referred to as they were in the First-tier Tribunal.
3. This is a resumed hearing of an appeal where I found errors of law after a hearing on 14 March 2016 in respect of the Judges assessment of the Appellants risk on return being the subject of a court summons and her assessment of the genuineness of the Appellant's conversion to Christianity.
The Law
Asylum
4. Paragraph 334 of the Immigration Rules states that the Applicant will be granted asylum if the provisions of that paragraph apply. The burden of proof rests on an Appellant to satisfy me that he or she falls within the definition of refugee in Regulation 2 of the Refugee or person in need of International Protection (Qualification) Regulations 2006 (which I shall refer to as the Qualification Regulations) as read with Article 1 (A) of the refugee Convention. In essence, an Appellant will have to show that there are substantial grounds for believing that the Appellant is outside his or her country of nationality or, if applicable, his or her country of habitual residence, by reason of a well founded fear of persecution for Refugee Convention reason and is unable or unwilling, owing to such fear, to avail himself or herself of the protection of that country.
Humanitarian Protection
5. Paragraph 339C of the Immigration Rules states that an applicant, who does not qualify as a refugee, will be granted humanitarian protection if the provisions of that paragraph apply. The burden of proof rests on an Appellant to satisfy me that he or she is entitled to humanitarian protection under paragraph 339 of the Immigration Rules. In essence, an Appellant will have to show that there are substantial grounds for believing that, if returned, the Appellant would face a real risk of suffering serious harm and that he or she is unable or, owing to such risk, unwilling to avail himself or herself of the protection of the country of return. Serious harm in this context is defined as the death penalty or execution, unlawful killing, torture or inhuman or degrading treatment or punishment or a serious and individual threat to a civilians life by reason of indiscriminate violence in situations of international or internal armed conflict

The ECHR
6. The burden of proof rests of an Appellant to satisfy me that there are substantial grounds for believing that, as a result of the Respondent's decision, he or she will be exposed to a real risk of torture, or inhuman or degrading treatment or punishment contrary to Article 3. Where applicable, it is for the Appellant to satisfy me that he or she has an Article 8 private and/or family life in this country which will be interfered with by the decision under appeal. If that is shown, the Respondent must establish that the decision is legitimate, taken in pursuit of a legitimate aim and necessary and proportionate in a democratic society.
Sur Place
7. The Immigration Rules and case law assists the court when considering the position facing a person who claims to have engaged in activities in the United Kingdom which would bring them to the attention of the authorities in their country of return. Paragraph 339P of HC 395 states:
"A person may have a well-founded fear of being persecuted or a real risk of suffering serious harm based on events which have taken place since the person left the country of origin or country of return and/or activates which have been engaged in by a person since he left the country of origin or country of return, in particular where it is established that the activities relied upon constitute the expression and continuation of convictions or orientations held in the country of origin or country of return."
8. I must also consider Paragraph 339J(iv) which states that the Secretary of State must take into account, inter alia,
"whether the person's activities since leaving the country of return were engaged in for the sole or main purpose of creating the necessary conditions for making an asylum claim or establishing that he is a person eligible for humanitarian protection or a human rights claim, so as to assess whether these activities will expose the person to persecution or serious harm if he returned to that country"
Evidence
9. The Appellant had provided a number of witness statements which were in the bundles dated 28 May 2013,18 August 2014, and 24 June 2016. The Appellant gave oral evidence in English and there is a full note of his evidence in the record of proceedings.
10. Reverend David Lathom also gave evidence adopting the contents of his witness statement of 11 January 2015, the letter at page 3 of the bundle and the supplementary statement at pages 2-3 dated 22 June 2016. There is a full note of his evidence in the record of proceedings.
Submissions
11. On behalf of the Respondent Mr Bates made the following submissions:
(a) He relied on the reason for refusal letter and the preserved findings of Judge Malik.
(b) In respect of the court summons which Judge Malik accepted was genuine it was clear that the Appellant was oblivious as to why the summons had been issued in 2005 and he had never sked his family, with whom he maintained contact, to find out why the summons was issued.
(c) If the summons was issued for a serious reason, then the Appellant would have been pursued in the 11 years that followed the issue of the summons.
(d) Therefore whatever reason the summons had been issued it was not so serious that the Appellant would be drawn to the attention of the authorities.
(e) In relation to the Appellants claim to have converted to Christianity he argued that the Appellant's account of why he fled from Iran had not been believed.
(f) He suggested that the Appellants involvement with the Church was largely social.
(g) He suggested that it was not credible that Reverend Lathom would not remember being told that the Appellants brothers had both converted although claiming they were close friends. He suggested that he may have recalled such a conversation about a sister but this was clearly wrong.
(h) The suggestion that his brothers had converted was an embellishment bya person willing to embellish to achieve his goal.
(i) The Appellant did not have a letter or evidence from those he claimed to have spoken to about his Christian faith outside the Church.
12. On behalf of the Appellant Ms Patel made the following submissions:
(a) In relation to the court summons Judge Malik had accepted that it was genuine although she did not accept that the reason he gave for his flight from Iran was genuine.
(b) The expert report of Mr Rashti confirmed that it was not unusual for a summons to not specify why the person summonsed was required to attend court.
(c) The summons was to the Revolutionary Court, a criminal court, and the three reasons for such a summons would put the Appellant at risk on return. There was no evidence that the summons had an expiration date.
(d) She accepted that the assessment of the genuine nature of an Appellants conversion was not easy. She argued that there were visible signs that are pointers and guides to the nature of their faith.
(e) The Appellant had given a detailed written account of the circumstances of his conversion in his earliest statement on 18 August 2014.
(f) The Appellant was honest in relation to his motive for attending the Church, that it was to attend the English Language course and through this attendance he became more interested in the Christian faith. It was not a case of him immediately attempting to convert: he attended the language school and after a year his thoughts crystallized in May 2013 and he considered himself to be a Christian.
(g) In reality converted before the receipt of the refusal letter which was dated 8 June 2014 although he was not baptised until July 2014.
(h) Reverend Lathom had attended each hearing of the case and was satisfied that the Appellant was a genuine convert. He was aware that there were duplicitous people but took precautions and steps to distinguish those who were genuine and those who were not.
(i) The Reverend conformed that the Appellant was a committed Christian attending regularly at a number of different events that showed his interest was not just social.
(j) The fact that the Reverend could not specifically recall the Appellant referring to the fact that his brother had converted was not surprising given that the Appellants case was that this had happened some three years ago.
Findings
13. Having I am required to look at all the evidence in the round before reaching any findings. I have done so. Although, for convenience, I have compartmentalised my findings in some respects below, I must emphasise the findings have only been made having taken account of the evidence as a whole.
14. The central issue in this case is whether the Appellant has converted to Christianity as I am satisfied that as a Muslim convert who makes clear he would wish to practise his religion openly he would be at risk on return.
15. I acknowledge that I have preserved those findings made by Judge Malik in which she did not accept that the reasons the Appellant had given for leaving Iran were credible. I am satisfied that the lack of credibility of one part of his case is not determinative of the credibility of his claim to have converted to Christianity and I must look at all matters in the round, which I have done.
16. I heard evidence from both the Appellant and Reverend David Lathom.
17. The Appellant arrived in the UK on 11 March 2012. I found that the Appellant gave a credible account of why and how he became a Christian. I found that he gave a credible account of what attracted him to Christianity.
18. I found that it was, if anything, a more believable account that he had started to attend the City Church in late 2012 not because he was drawn to Christianity but because he simply wanted to learn English. I would have found it difficult to accept that at a time when he could not speak English he was drawn to Christian beliefs. Rather it appears that as his English improved and he was drawn into the various' life enhancing' activities both social and religious that the Reverend Lathom accepts they invite those who attend the language school to join the Appellant became increasingly drawn to the Christian faith which he asserted offered him something that he did not find in Islam, the religion of his birth.
19. I accept the Appellants evidence that he felt that he had become a Christian by mid-2013. The Appellant was baptised as a Christian on 13 July 2014 and Reverent Lathom confirmed that baptism only takes place after a period of about a year of a discipleship course and a process of 'screening' which the Reverend conducted to satisfy himself that the Appellant was genuine. I am therefore satisfied that while baptism took place after the refusal letter that the Appellant was actively pursuing the process of becoming a Christian before the refusal letter was issued.
20. I found the Reverend Lathom was a credible witness. He is a mature experienced minister who acknowledged the possibility of someone pretending an interest in Christianity in order to pursue an asylum claim and it was clear he had had experience of this. However, he remarked that those whose interest was not genuine in his experience tended to show a more 'sudden' interest in Christianity and then be less committed as time went on. He noted that the Appellants interest had arisen gradually out of his attendance at the language school and his attendance at both Sunday services, house groups and assisting with other Church events had been consistent sine he found his faith. He stated that the Appellant spoke very good English, which I can confirm, and was able to articulate his Christian beliefs and answer questions about Christian values and the message which persuaded the Reverend that his beliefs are genuine.
21. I accept that the Reverend was a little vague about whether the Appellant had told him, as he told me, that his brothers had converted. He did not explicitly reject the suggestion he had been told about this rather saying that 'something about that came up': I accept that he simply couldn't remember.
22. I also accept that his bothers have had no problems in Iran as a result of their changed religious views but I am satisfied on the basis of the Appellants evidence that this is because they have not been open about their conversion and have not attempted to attend Church: as the Appellant described it they had accepted Christianity in their hearts but done nothing overt about it. I accept the Appellants evidence that he would want to practise his faith openly and this would put him at risk on return to Iran.
23. While I am satisfied that the Appellants conversion without more would put him at risk I am also satisfied that the Appellant would also be more likely to be questioned on return because he was the subject of a court summons from the Revolutionary Court. SB (risk on return-illegal exit) Iran CG [2009] UKAIT 00053 is still good law in so far as it states that being a person who has left Iran when facing court proceedings (other than ordinary civil proceedings) is a risk factor, although much will depend on the particular facts relating to the nature of the offence involved and other circumstances. The more the offences for which a person faces trial are likely to be viewed as political, the greater the level of risk likely to arise as a result: it is properly to be considered as a risk factor to be taken into account along with others. There is nothing to suggest that the summons has a 'time limit' on it. It is a summons to the Revolutionary Court which the expert Mr Rasht confirms is a criminal court. The expert also confirms that the fact that the summons does not state why the Appellant was summonsed is not unusual. I am therefore satisfied that taken together with the fact of his conversion the Appellant would be at risk on return.
Conclusions on Asylum
24. I find that the Appellant has therefore discharged the burden of proof on him to show that he has a well-founded fear of persecution for a reason recognised by the Geneva Convention. Accordingly, the Appellant's removal would cause the UK to be in breach of its obligations under the Geneva Convention.
Conclusions on ECHR
25. On the facts as established in this appeal, there are substantial grounds for believing that the Appellant's removal would result in treatment in breach of ECHR.
Decision
26. The appeal is allowed on asylum grounds.
27. The appeal is allowed on human rights grounds.
28. No anonymity direction is made
Signed Date 18.10.2016

Deputy Upper Tribunal Judge Birrell