Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06457/2015

THE IMMIGRATION ACTS

Heard at: Manchester
Decision Promulgated
On: 11th January 2017
On: 10th February 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

MM
(anonymity direction made)
Appellant
And

The Secretary of State for the Home Department
Respondent

For the Appellant: Ms Johnrose, Broudie, Jackson and Canter
For the Respondent: Mr McVeety, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of the Islamic Republic of Iran born in 1986. He appeals with permission1 the decision of the First-tier Tribunal (Judge Pickup) dated 21st July 2015 to dismiss his appeal2 on asylum and human rights grounds.

Anonymity Order

2. This case concerns a claim for international protection. Having had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders I therefore consider it appropriate to make an order in the following terms:

"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 his family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings"

Background and Matters in Issue

3. There were two issues raised in the appeal before the First-tier Tribunal. The Appellant claimed to have a well-founded fear of persecution in Iran for reasons of his religious belief, stating that as a Muslim who had converted to Christianity he would be subject to serious harm. He further argued that as a failed asylum seeker who left the country illegally he would be questioned and ill-treated on arrival.

4. The First-tier Tribunal did not accept either proposition and dismissed the appeal.

5. Permission to the Upper Tribunal was granted by Deputy Upper Tribunal Archer primarily on the grounds that the First-tier Tribunal had not adequately addressed the Appellant's submissions on the second limb of his case. At the initial hearing before me on the 21st September 2016 Ms Johnrose realistically conceded that she could not now pursue the point that the Appellant would be at risk simply as a failed asylum seeker: SSH and HR (illegal exit: failed asylum seeker) [2016] UKUT 308 (IAC). She did however also have permission to argue that the First-tier Tribunal erred in its approach to whether or not the Appellant is a genuine Christian, or would be at risk because of a perception that he is.

6. Persecution for reasons of his religious belief had been at the centre of the Appellant's case since the date that he claimed asylum on the 29th October 2013. The Appellant had given an account of having been drawn towards Christianity whilst still living in Iran and had submitted a witness statement in which he detailed his ongoing involvement with the church and the development of his faith in the United Kingdom He produced himself for cross examination, called Canon White of Liverpool Cathedral in his support, and relied on the evidence of a Mr Mirpahani, who had told the Home Office as long ago as March 2014 that he had been introduced to Christianity by the Appellant. The matter before me, at that initial 'error of law' hearing, was whether or not the First-tier Tribunal erred in its approach to that evidence. I heard oral submissions from Ms Johnrose for the Appellant, and by Mr Harrison, the Senior Presenting Officer who that day represented the Respondent. I reserved my decision.

Error of Law

7. In a written promulgated on the 16th November 2016 I made the following findings.

8. The evidence, and the findings of the First-tier Tribunal, naturally fell into two parts: the historical account of events in Iran, and the Appellant's realisation of a Christian identity in the United Kingdom.

9. As to events in Iran the First-tier Tribunal gave a number of reasons why the account was not accepted to be true. The determination identifies several inconsistencies and discrepancies and the Appellant's claim to have been introduced to Christianity by a friend is rejected. There is no specific challenge to those findings and I am satisfied that they should be upheld.

10. Turning to the Appellant's life in the United Kingdom, the determination makes the following findings:

i) Whilst Canon White is an honest witness whose evidence gives strong support to the Appellant's claim, his ability to make an informed assessment of the Appellant was rather limited, because of the large numbers of Iranians now in attendance at the Cathedral. Canon White himself acknowledged that his opportunities to get to know each individual member of the Iranian congregation well were constrained by time;

ii) The number of Iranians attending the cathedral was "improbably large" for them all to be genuine converts;

iii) It is possible for an individual to feign conversion and there is a "serious possibility" that the Appellant has done so;

iv) The Appellant and Mr Mirpahani were "mutually supporting each other's asylum claim", he did not attend the hearing and there was no credible explanation for his absence;

v) Although the Appellant had been barely tested at interview about his claimed faith such evidence that he did give was vague. There was "little point" in conducting such an exercise on appeal, since the Appellant would have been preparing for such cross-examination.

11. For the Appellant Ms Johnrose submitted this reasoning to be flawed for the following errors:

i) Failure to apply the Dorodian guidelines and otherwise unfairly finding against the Appellant where his evidence was not tested;

ii) Contradictory findings on the weight to be attached to Canon White's evidence;

iii) Failure to give reasons;

iv) Failure to consider material evidence, in particular the asylum statement of Mr Mirpahani.

12. Mr Harrison relied on the detailed Rule 24 response provided by SPO Alice Holmes. He submitted that the determination contains a very detailed and thorough evaluation of Canon White's evidence. There was no contradiction between the statement at paragraph 28 that he accorded it "very significant weight" and the overall finding that the burden of proof had not been discharged. The Tribunal was entitled to find that the Canon had been fooled into believing the Appellant to be a genuine Christian. There was no authority for the proposition that evidence from a clergyman had to be accepted.

13. I did not find this an easy appeal to determine. The First-tier Tribunal gave clear reasons why the historical account of events in Iran was not accepted, and made what appeared to be a detailed and thoughtful analysis of Canon White's evidence. On first reading I was not minded to interfere with any of the conclusions reached. Having considered the submissions of the parties carefully, I am however persuaded - in the context of this being a claim for international protection - that the determination does contain errors in approach to the claim to Christian conversion in the United Kingdom.

14. The Appellant made a statement for the purposes of the appeal in which he stated in terms that he has genuinely converted to Christianity. He explained that he had been regularly attending services, bible class, and had completed the Alpha course. He had been evangelising in the Iranian community. He adopted that statement as his evidence-in-chief. The HOPO declined to questions about any of this. In cross-examination the questions were limited to events in Iran, except at the end when the Appellant was asked to decry Muhammad's claim to be the Last Prophet, which he did, stating that in his view the only true messenger of God was Jesus Christ. At paragraph 26 the determination records the HOPO's submission, made in closing, "it would not have been a worthwhile exercise" to test the Appellant's Christian knowledge.

15. The first limb of Ms Johnrose's first ground is that this approach was contrary to the guidance set down in Ali Dorodian v Secretary of State for the Home Department (01/TH/1537) and approved by the Court of Appeal in Shirazi v Secretary of State for the Home Department [2013] EWCA Civ 1562. It had the effect of depriving the Appellant the opportunity to display his knowledge and understanding. Dorodian was an Iranian man whose claimed Christian conversion had been rejected as a sham by an Immigration Adjudicator Mr Poole. On appeal the Immigration Appeal Tribunal (as it then was) heard evidence from an Anglican vicar who confirmed that Mr Dorodian had been attending church regularly. On that basis the Tribunal was satisfied that he was a committed Christian and allowed his appeal. In doing so it gave the following guidance:

"a) no-one should be regarded as a committed Christian who is not vouched for as such by a minister of some church established in this country; as we have said, it is church membership rather than mere belief, which may lead to risk;

b) no adjudicator should again be put in the position faced by Mr Poole in this case; a statement or letter, giving the full designation of the minister, should be sent to the Home Office at least a fortnight before the hearing of any appeal, which should give them time for at least a basic check on his existence and standing;

c) unless the Home Office have accepted the appellant as a committed church member in writing in advance of the hearing, the minister should invariably be called to give oral evidence before the adjudicator; while witness summonses are available, adjudicators may reasonably expect willingness to do so in a genuine case;

d) if any doubt remains, there is no objection to adjudicators themselves testing the religious beliefs of the appellant; judicial notice may be taken of the main beliefs and prayers of the Church"

16. Ms Johnrose accepted that these guidelines are not authority for the proposition that the Tribunal had to share the conclusions reached by Canon White: the phrase "if any doubt remains" at (d) is illustrative of that. They simply hold, conversely, that any claimed conversion should be rejected unless it is supported by such evidence. In this case it was, and Mr Johnrose submits that since there evidently was doubt remaining in the mind of Judge Pickup, the Appellant should have been given an opportunity to display his understanding in accordance with (d).

17. This is not an attractive argument. First of all, the wording used at guideline (d) does not impose any obligation on a Judge to conduct his own questioning. Rather it provides that it is open to him to do so. Secondly it is trite law that the burden of proof rests on the Appellant, and it is for him to prove his case. He cannot rely on being cross-examined by the representative for the Secretary of State, much less the Judge.

18. There is however a second limb to this ground of appeal. Ms Johnrose submits that the Appellant has done all he can to comply with Dorodian. He gave his evidence, set out in his witness statement. That evidence went unchallenged. In those circumstances it is a fundamental legal principle that absent good reason, it should have been accepted. This is a submission with considerable merit. As an addendum to this submission Ms Johnrose submitted that the approach taken gave rise to concerns on the part of the Appellant that the Tribunal had pre-judged the issue: he has been left with the impression that the Tribunal took the view that there was no point asking him questions about his faith because whatever he said he would not be believed.

19. Were there then good reasons to reject the unchallenged evidence of the Appellant about this matter? Mr Harrison submits that the primary reason was the rejection of the historical claim about events in Iran, and that one followed from the other. In fact, that is not so. At paragraph 32 the determination reads: "I do not accept that the Appellant was a Christian convert in Iran, I found his story simply not credible and that it further undermines the credibility of his claim to be a Christian convert in the United Kingdom" (emphasis added). It is apparent from this statement that whilst the Iranian findings were consistent with the conclusions reached about the United Kingdom, they were not the primary reason for them. The reasons, in fact, are difficult to find. The evidence in the witness statement, and the supporting testimony of Canon White, are discounted for no apparent reason other than the fact that it is possible that the Appellant is lying. The determination refers to the number of Iranians who have joined the congregation and that this is an "improbably large" number to all be genuine [at 27]; it finds that it would be "quite possible" that an individual could feign conversion [at 27]; it records Canon White's acceptance that this is sometimes the case [at 28]; and from this it concludes "it remains a serious possibility that the Appellant has deceived [Canon White] as others have done in the past" [at 29]. It is difficult to see how these statements, uncontrovertibly true as they are, can properly lead to a conclusion that the Appellant has not discharged the burden of proof. It amounts to rejection of his evidence on the suspicion that he is lying. That is not sustainable reasoning.

20. Ms Johnrose further submitted that the Tribunal had failed to apprehend the significance of the evidence of Mr Mirpahani. This was a witness who had told the Home Office that he had been converted to Islam by the Appellant. The Appellant subsequently had his own asylum interview and confirmed that he was evangelising in the Iranian community. Mr Mirpahani's evidence had, I am told, been introduced by the HOPO Mr McBride, who recognised that it might be significant. The Tribunal had in the end rejected its corroborative value on the basis that the two men had concocted a story together. Ms Johnrose submitted that the Tribunal had not understood the significance of the chronology, i.e. that Mr Mirpahani mentioned the Appellant long before the Appellant's own asylum interview. Whilst the determination does not specifically make reference to that chronology, I am unable to find that the conclusion reached was not one open to the Tribunal. The fact that Mr Mirpahani was interviewed before the Appellant did not preclude there from having been collaboration between the two. I am not satisfied that there is any discrete error here, but for the reasons I give above I do find that the parts of the decision dealing with the Appellant's claim to have been a practising Christian in this country must be set aside and remade.

21. The parties invited me to re-make the decision in the appeal in the Upper Tribunal. The narrow issue would be whether the Appellant has demonstrated it to be reasonably likely that he has in fact genuinely converted to Christianity in the United Kingdom.

The Re-Made Decision

The Appellant's Case

22. At the resumed hearing I heard oral evidence from the Appellant and a Mr John Metcalf, Lay Chair of the Benefice of West Bolton, Sub-Committee of St Paul with Emmanuel Church. I was referred to a small bundle of documentary evidence.

23. The Appellant adopted his written statement dated 15th December 2016. He states therein that he has been attending church in Bolton since July 2015. He was referred to the West Bolton Team Ministry by the team at Liverpool Cathedral after NASS moved him from the city. He no longer has the funds to travel to the cathedral to worship. He regularly attends his new church and continues to evangelise by speaking to others about his faith. This includes his sister in Iran who has been converted by speaking to him via social media and internet telephone services. He said that the messages he has printed and had translated are from an instant messaging app called 'line'. It is not Facebook. When they have finished chatting his sister deletes the messages. In response to Mr McVeety's questions he acknowledged that at the time of the appeal before the First-tier Tribunal his knowledge of Christianity was "limited" - that had been the word used by Canon White. He said that whatever he learns at each Sunday gathering he passes on to the people he has spoken to, such as his sister. He said that he would wish to continue to practice his Christianity if returned to Iran.

24. I was provided with a certified translation of an electronic message exchange said to be between the Appellant and his sister, S. This records that on the 26th November 2016 S sent the Appellant a message thanking him for sharing the good news of Jesus Christ with her. She reports that she is no longer as depressed and suicidal as she once was and that she no longer needs to take medication. She says that her family has noticed the improvement in her mood. The message then says this:

"You know that I live in a small town and it is risky to [attend the church meetings].

Every now and then we meet to learn about Christianity. Sometimes they cancel the meetings because of some problems and the fear of potential risks.

It is not possible for me to be baptised now; but I have some good news for you. I have found a good job in Tehran. Tehran is a big city so I can comfortably attend the Home Church meetings once a week"

25. I asked the Appellant some questions in clarification. He said that he had spoken to his sister for a period of 5-6 months before she converted. She, like all of his family had been Muslim before this. The Appellant described his father as a "severe" Muslim.

26. Mr Metcalf adopted as his evidence-in-chief a letter that he had written dated 23rd December 2016. He explained that he had been delegated by the vicar, Reverend Fayaz Adman, to attend the hearing. Rev Adman was on annual leave. He had asked Mr Metcalf to come because out of everyone in the congregation, he probably knows the Appellant the best. Mr Metcalf explains that this is because the Appellant sits near to him and his wife. He always has a chat to the Appellant and has an opportunity to observe him at close quarters during the service. He sees how the Appellant tries to follow the sermon, and that when there is a reference to the bible, the Appellant will look in his own (Farsi language) book to the relevant passage. In his written evidence Mr Metcalf said this:

"The more I have sat or talked with [the Appellant] I see and feel there is absolutely no deceit, deception, craft(iness), no use of sublety or wile. [The Appellant] is a proud man, I see he does not want people to know how he feels inside with his situation, he has a warm/good heart. [The Appellant] is truthful, straight forward and honest. He is a genuine Christian, and a very decent and sincere person"

27. When asked about this evidence Mr Metcalf said that he is "100% certain" that the Appellant is genuine. He said that there are an Iranian couple who have a young child who also come to the church. She speaks English and helps the Appellant to follow the service. Recently the child was baptised and Mr Metcalf saw for himself how much the Appellant was moved by the ceremony - he became overcome with emotion and started to cry. Afterwards he explained to Mr Metcalf that it was because this child was so near in age to his own child and he feared that he would never see her baptism. Mr Metcalf and his wife have also observed the Appellant in prayer and contemplation, and have never had reason to doubt his sincerity. Mr Metcalf closed his evidence with these remarks:

"I know that there are people who pretend to be Christian. I understand that. I have lived in this country all my 68 years and I have seen the changes in the country - I have seen the immigration and the changes in the culture, and obviously it's a problem. But I know [the Appellant] and I know that he must be allowed to stay. I can't explain it but I know in my heart, inside he's genuine".

28. Rev. Adman sent a letter dated 14th December 2016 in which he apologised for not being able to attend the hearing in person. He writes that he has received "very positive feedback" from one of the members in the Appellant's bible studies class, and confirms that to his knowledge the Appellant completed the Alpha Course at Liverpool Cathedral. Since his arrival in Bolton the Appellant has attended at his church every week. He believes that the Appellant reads the bible each day and that his commitment to the Christian faith is "entirely genuine".

29. The Appellant further placed reliance on a signed statement from Lieutenant Colonel Malcolm Hitchcott MBE, formerly an Authorized Eucharistic Lay Minister at Liverpool Cathedral. Lt Col Hitchcott provides a brief CV. During the 25 years that he spent in the British Army he was heavily involved in training and assessment responsibilities with regard to young Non Commissioned ranks as well as Commissioned Officers. After he retired he completed a two-year diploma in Pastoral and Theological Studies and devoted himself to the work of the church. He has spent the past thirty years undertaking pastoral roles within the church and has a broad spread of experience, having worked with minority groups in the Army (his work with Gurkhas and Fijian soldiers earned him his MBE), in a church in Toxteth and latterly with asylum seekers joining the congregation in Liverpool. Lt Col Hitchcott met the Appellant in January 2014 when he first attended the Cathedral. He saw him on a regular basis from then until July 2015 when he was moved to Bolton by Serco. It was Lt Col Hitchcott who recommended the Appellant attend the church he now attends in Bolton. During the year and half that the Appellant was able to attend the Cathedral he completed the Alpha Course and became a frequent attendee at services. During that time Lt Col Hitchcott got to know him well. He ran the bible studies group that the Appellant attended and felt that these classes gave him an opportunity to get to know the Appellant and assess him in person: from these interactions he is able to say with confidence that the Appellant's faith is genuine. Of this Lt Col Hitchcott says the following:

"Even in his relatively impoverished asylum-seeker circumstances he displays an inner peace that comes from faith, although this is sorely tested by his family situation. We have prayed together and although I pray in English and he prays in Farsi, he is quite at home talking to God naturally in his native tongue. This sort of close, confident but respectful relationship with God is not often found in adults outside of a relationship with Jesus Christ.

I am aware that there are some asylum seekers who attend church with the sole purpose of advancing their asylum claims. However, their motives are usually easily exposed when their lifestyle and their professed faith are at odds with one another. That is one reason why pastoral care should be as comprehensive as possible. Additionally, I have often been asked how many of those who successfully obtain asylum then do not attend church thereafter. My findings during my ongoing pastoral concern for them have always been an encouragement to me, whether they be in Brighton, London, Glasgow, Edinburgh or elsewhere. I believe that from the evidence I have seen, [the Appellant]'s faith is absolutely genuine".

The Respondent's Case

30. Mr McVeety did not doubt the sincerity of Mr Metcalf. Nor did he ask me to limit the weight to be placed on the evidence of the Dorodian witnesses who did not appear in person, ie Reverend Adman, Canon White and Lt Col Hitchcott. He accepted that these four Christians have given their evidence in good faith and that they all truly believe this to be a case worthy of their support. He asked me to however approach their conclusions with caution. I am reminded that there is an obvious benefit to be gained in pretending to have converted to Christianity: that is a grant of asylum. If the Appellant is recognised as a refugee, he will be entitled to bring his family to join him in the United Kingdom and will have effected their permanent migration here. Against that backdrop Mr McVeety rightly asked me to examine the evidence with critical attention.

31. Mr Metcalf's observation that the Appellant cried in church when he saw a young child being baptised has been interpreted by him to be an expression of genuine faith. Mr McVeety pointed out that the Appellant has repeatedly expressed how much he misses his family (for instance in conversation with his doctor). There was a far more straightforward explanation for the Appellant's emotions: he misses his child. Whilst no issue was taken with the evidence of Reverend Adman, Canon White, Lt Col Hitchcott and Mr Metcalf, Mr McVeety submitted that alternative conclusions could be drawn from all of their observations. The evidence that the Appellant attends bible class because he is a Christian could just as easily be interpreted as him attending these classes because he wants asylum. He may appear to be following services with his Farsi bible in hand but he "could easily be faking it".

32. The evidence of the Appellant's sister was, in Mr McVeety's submission, obviously manufactured. In this Tribunal we are frequently told of the diligence of the Iranian authorities in monitoring the online activity of their citizens, and it was not worthy of belief that a woman still living in that country would be openly admitting to apostasy in an online messaging service. He also queried the credibility of the claim that the Appellant has managed to convert this previously practising Muslim in the space of a few months, and never having seen her in person during that time. The Appellant's claim to be a successful evangelist had to be assessed in the light of Canon White's candid evidence that his bible knowledge was "limited". If the Appellant's sister was, as the evidence suggests, wholly reliant on the Appellant for her knowledge of Christianity, what could be possibly have said to her to entice her to convert?

33. Finally Mr McVeety reminded me that the Appellant had been found by the First-tier Tribunal to have lied about the events in Iran which underpinned the original claim. The Tribunal had rejected his evidence and its reasoning remained intact.

Discussion and Findings

34. I am very conscious that some individuals do abuse the system, as well as the trust of others, to make false claims of conversion. In this case, I share the doubts expressed by the First-tier Tribunal. I have attached significant weight to the findings made in respect of the account of events in Iran. When the Appellant came to this country he advanced a claim of feared persecution for reasons of his conversion to Christianity at home. That account was rejected by the First-tier Tribunal and I have found no reason to interfere with those findings, which are expressly preserved. He has, on those findings, not simply failed to discharge the burden of proof, but has deliberately advanced a bogus claim in order to facilitate his economic migration to the United Kingdom [at paragraph 17]. The message exchange from this sister, and the earlier evidence from Mr Mirpahani could reasonably be dismissed as self-serving. That is not a promising start.

35. What I have before me, however, are the following unchallenged facts. The Appellant has been regularly participating in Christian worship in this country since January 2014. During the time that he has been attending Liverpool Cathedral, and then the church in Bolton, he has had regular interaction with members of those congregations. Four of them have come forward to support his claim.

36. No one involved in this process has ever doubted the sincerity of these men. Nor have their intellectual abilities been called into question. Lt Col Hitchcott and Reverend Adman have provided detailed written statements. Canon White and Mr Metcalf have both given up their time to come to court. I find that I must attach very significant weight to their evidence. Of course Mr McVeety is right to point out that the Appellant might be pulling the wool over their eyes. He could be faking his interest, he is possibly thinking of something else when he cries in church. That is however a matter that each of these thoughtful, experienced and committed Christians has given serious consideration to. They each emphasise the following: they do not come to court for anyone who asks; they know that there are cynical claims to conversion; they know the Appellant personally and vouch for him in the sincere belief that he shares their faith. Those are opinions formed over weeks and months of interaction with the Appellant, after having time to sit with him and discuss matters of faith, and having had the opportunity to observe his behaviour. Each has confidence in own ability to judge character (Lt col Hitchcott in particular has many years' experience in that regard). To put it bluntly, these men are not idiots. Nor do they have any ideological axe to grind. As Mr Metcalf points out, he is no fan of immigration. He came to give evidence before me because in the case of this immigrant, he is "100% certain" that he is decent, sincere, and Christian.

37. The Appellant himself has made detailed statements explaining his understanding of Christianity and the comfort he has drawn from his new found faith. These have not, in substance, been challenged or probed by the Respondent. The officer conducting the asylum interview concentrated almost exclusively on the claimed events in Iran. Mr McBride did not consider it "worthwhile" to ask any questions about the Appellant's beliefs. Mr McVeety queried the ability of the Appellant to effectively evangelise but like his colleagues before him, did not test the Appellant's knowledge of the bible or his understanding of its spiritual meaning.

38. What then I am left with is as follows. This is a man who has exhibited a willingness to deceive in order to secure a grant of asylum. There is a distinct possibility that he is still lying. That is not however the test that is to be applied. If the Appellant can demonstrate that it is "reasonably likely" that he is a Christian, then the appeal must be allowed. Put another way, is there a serious possibility that he is telling the truth, and that the faith shown in him by his Dorodian witnesses is not misplaced? Having considered all of the evidence, in particular the length and nature of the commitment he has shown to the Church, as well as the support shown by the witnesses, I conclude that that relatively light burden is discharged. Mr McVeety accepted that if that was my conclusion, then the appeal must be allowed.

Decisions

39. The determination of the First-tier Tribunal contains an error of law and it is set aside to the limited extent identified above.

40. The decision in the appeal is remade as follows:

"The appeal is allowed on asylum grounds.

The Appellant is not entitled to humanitarian protection because he is a refugee.

The appeal is allowed on human rights grounds.

41. There is an order for anonymity.

Upper Tribunal Judge Bruce
9th February 2017