Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06752/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3rd October 2016
On 25 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

ALI [T]
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Miss C Warren (Counsel)
For the Respondent: Mr S Whitwell (HOPO)

DETERMINATION AND REASONS

1. This is an appeal against the determination of First-tier Tribunal Judge Foudy, promulgated on 9th May 2016, following a hearing at Manchester Piccadilly on 18th April 2016. In the determination, the judge allowed the appeal of the Appellant, whereupon the Respondent Secretary of State, applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant
2. The Appellant is a male, a citizen of Iran, and was born on 11th July 1987. He appealed against a decision of the Respondent dated 28th August 2014 rejecting his claim for refugee asylum status and for humanitarian protection.
The Appellant's Claim
3. The Appellant's claim is that he was born into a Muslim family, he spent a few months with the Basij at his father's request (which is the moral police that enforces Islamic values in Iran); that he moved to the holiday island of Kish where he met a lot of Christians and ran his own shop there; that some local Filipino workers gave him books about Christianity and sparked his interest; that he started playing music to attract customers to his shop at New Years in 2014 whereupon the authorities raided his shop and when he refused to turn off the music he was beaten and the shop was wrecked; that the authorities returned to the shop the next day and searched it and found copies of banned films and books about Christianity; that his uncle then helped him to flee; that he attends the World Harvest Bible Church in Manchester and has now been baptised; and that finally, he seeks protection because he would face persecution in Iran over his religious conversion.
The Judge's Findings
4. The judge found that the Appellant had consistently claimed that he was averse to Islam because he did not agree with the harsh punishments advanced in the name of Islam and the heavy-handedness of the religious zealots and that the Appellant had given largely correct answers to questions about Christianity that were put to him in interview (see paragraph 24). Furthermore, Pastor Murphy gave evidence that he had spent a great deal of time with the Appellant over the last two years and was convinced that he was a genuine Christian and she also stated that the Appellant was an unfailing attender at the church and Bible study classes and he was a willing helper with any work (paragraph 24).
5. The judge went on to allow the appeal on the grounds that "there are substantial grounds for believing that this Appellant will face deprivation of life, torture, inhuman or degrading treatment if returned to Iran" (see paragraph 30).
Grounds of Application
6. The grounds of application state that the judge has found that the Appellant is a genuine Christian convert but there has been a complete lack of finding in relation to the potential behaviour of the Appellant and his conduct upon return to Iran which would give rise to a real risk of harm. This is a reference to the well-known case of HJ (Iran). It is also said in the Grounds of Appeal that following the Tribunal decision in FS and Others (Iran) [2008] UKAIT 00082 there is a distinction between ordinary converts and a proselytiser and that what needs to be looked at is not only the church to which the individual is an adherent but the way in which the individual returnee is likely to behave.
The Hearing
7. At the hearing before me on 3rd October 2016, Miss Warren, appearing on behalf of the Respondent Secretary of State, submitted that the case of SZ and GM (Christians; FS Confirmed) Iran CG [2008] UKAIT 00082 was authority for the proposition that it is not enough to make a finding that a person is a Christian convert because, the main question is whether such a person is then likely to proselytise and that it is not enough to say that once one has converted one succeeds (see paragraph 138 of SZ). Second, if one looks at the skeleton argument of Miss C Warren before the First-tier Tribunal Judge dated 25th August 2015, she expressly draws attention (at paragraph 12) to the case of HJ (Iran) and the need to demonstrate how a person is likely to behave upon return to Iran, so that this was clearly a live issue before the judge and the judge failed to consider it. In her skeleton argument, Miss Warren had said, "it follows the questions to be asked are (1) would A have to hide his religion on return to Iran, and (2) is the reason why he would change his behaviour due to fear of persecution?" Those, submitted Mr Whitwell, were the main questions, and the judge failed to deal with them in that order. Finally, the judge stated that, "I also find it credible that members of the Basij have some sexual interest in the Appellant because in repressive societies sexual exploitation is sometimes heightened," and there was no basis for such a bland statement.
8. For her part, Miss C Warren submitted that the reference by the judge (at paragraph 20), to the fact that in repressive societies sexual interest is heightened and that on this basis she found that members of the Basij might have a sexual interest in the Appellant, was a side issue because the Appellant had only had a fleeting acquaintance with the Basij, and even that at the insistence of his father, and it had nothing to do with the essential claim, which was based on the Appellant having converted from the Muslim religion to the Christian religion.
9. The main point here was that since 2014, notwithstanding the Supreme Court judgment in HJ (Iran), which did pose the two distinct questions as highlighted by Miss Warren in her skeleton argument (at paragraph 12), the Home Office had a policy, which was re-issued in December 2015, where, as far as Muslim converts in Iran are concerned, it is necessary only to show that there is a genuine conversion because the deteriorating situation for religious converts in Iran has been such now that this would automatically attract the risk of ill-treatment.
10. The approach advocated in HJ (Iran) applies only to members of the Christian minority, because it is only there that the question is asked as to how they are likely to behave upon return to Iran, but to all intents and purposes, if there is a Muslim convert to the Christian religion, then given that Sharia law does not allow conversion from the Muslim faith, ill-treatment and adverse attention automatically follows.
11. In short, this Home Office guidance now postdates HJ (Iran) by some six years, but it is the Home Office policy and what the judge was doing was applying the official Home Office policy. The policy bears consideration because at page 6 (at paragraph 3.1.4), it is stated that, "the right of Muslims to change their religion is not recognised under Sharia law. Christians who have converted from Islam are at real risk of persecution in Iran, and a grant of asylum is likely to be appropriate."
12. Miss Warren submitted that nothing could be clearer than this. This is the policy that the judge followed and what was now being done was to backtrack in the Grounds of Appeal with a view to locating this case essentially within the HJ (Iran) paradigm, which had ceased to be entirely applicable following the Home Office policy that has been referred to.
13. As far as the skeleton argument before the First-tier Tribunal Judge was concerned, Miss Warren submitted that at paragraph 10, she had stated, under the heading "risk of persecution," that, if the Appellant's account of conversion to Christianity is accepted it is submitted that this will give rise to a real risk of persecution in accordance with the Respondent's own view as expressed in their guidance: "'Iran: Christians and Christian Converts.'" Therefore, it was not the case that the judge had not been referred to the policy in the form of this guidance that had been re-issued in December 2015.
14. In reply, Mr Whitwell submitted that he would have to accept that the Grounds of Appeal do proceed on the basis of the HJ (Iran) Iran paradigm because the second ground makes it clear that,
"Although, the FTTJ has found that the Appellant is a genuine Christian convert, there has been a complete lack of findings in relation to the potential behaviour and conduct of this Appellant on return to Iran and whether that would give rise to a real risk of harm."
15. The conversion of this Appellant had been accepted by the Respondent Home Office and he could no go behind that.
No Error of Law
16. I am satisfied that the making of the decision by the judge does not involve the making of an error on a point of law (see Section 12(1) of TCEA [2007] such that I should set aside the decision). My reasons are that this is a case where the judge was applying the guidance, and this was the guidance that had been referred to the judge in Miss Warren's skeleton argument, and on this basis it is quite clear 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." The judge gave detailed reasons for why this conversion was a genuine conversion (at paragraph 24). Pastor Murphy's evidence was taken into account and he was found to be a wholly credible witness in support of the Appellant.
17. The Appellant's case is not one that falls squarely within HJ (Iran) in that, following this guidance which has been re-issued in December 2015, it is enough for a person born in a Muslim family to show that he has converted to Christianity in a genuine manner, and then the policy in the form of the guidance stands to be applied. The way in which this policy was applied was entirely open to the judge in the manner that it was applied. No criticism can be made of that.
18. There remains a question about the judge having made comments at paragraphs 19 to 20, but these are peripheral to the essential finding that this was a genuine conversion and that the Appellant would be at substantial risk of persecution as a result of his conversion (at paragraph 30).
Notice of Decision

There is no material error of law in the original judge's decision. The determination shall stand.

No anonymity order is made.

Signed Date

Deputy Upper Tribunal Judge Juss 22nd October 2016