Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07238/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 28th July, 2016
On 9th August, 2016

Before

Upper Tribunal Judge Chalkley

Between

Mr farid eskandari
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Dr Mynott an OSC representative, instructed by Broudie Jackson & Canter
For the Respondent: Mr McVitie, a Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant is a citizen of Iran who was born on 13th July, 1971. He arrived in the United Kingdom on 3rd October, 2014 and applied for asylum the same day.

2. The respondent's application for asylum was refused by the Secretary of State and on 31st March, 2015, she made a decision to direct his removal from the United Kingdom. The appellant appealed this decision and his appeal was heard in Manchester by First-tier Tribunal Judge Brookfield on 28th July, 2015.

3. The appellant asserted that it would be unsafe for him to return to his native Iran because, having been a Muslim from birth, he converted to Christianity in April 2014, and following his arrival in the United Kingdom he has continued to explore Christianity and has now been baptised. He claimed to regularly attend services at the Anglican Cathedral in Liverpool and also attend Bible study classes. He also claims to study Bible classes at Devonshire Christian Fellowship and were he to return to Iran he will be punished because of his conversion. He also claimed that he would be at risk because he left Iran illegally.

4. In a detailed and carefully reasoned determination, the First-tier Tribunal Judge made adverse findings against the appellant. She did not believe that the appellant had converted from Islam or discussed the possibility of conversion with one of his customers in Iran called Ahmed. The appellant claims that he kept his Bible and other Christian documents in his car and one day he was stopped by the Basij while his car was being repaired and the Bible and other documents were being carried by him in a shoulder bag. The judge did not believe that he would risk carrying a Bible and other Christian documents through the streets of Tehran and did not accept that he had been stopped by the Basij and accused of being a Christian. Neither did the judge believe that it was credible that the appellant would hand over his shoulder bag to strangers. She did not accept his account and did not accept that he had been interested in Christianity or that he had been apprehended and accused of being a Christian or that he was of any adverse interest to the Iranian authorities when he left Iran. She did not find his account of why he left Iran to be credible and concluded that he did not have any interest in Christianity when he lived in Iran. She did not find it reasonably likely that the appellant was of any interest to the authorities.

5. She similarly made adverse findings of credibility in relation to the appellant's claim of what happened to him in the United Kingdom. She did not accept that the appellant attended church in the United Kingdom, because of his interest in Christianity. She heard oral evidence from the Reverend Canon White and while she accepted that he was a truthful witness and that he genuinely believed that the appellant was a genuine convert to Christianity, she noted that he had only met the appellant some eight or nine months previously and that his belief in the appellant's conversion was based on the appellant's attendance at an Alpha course, services and Bible study at the church and one hour interview and an undisclosed input from other people. She noted the evidence of Mr Peter Moffat an elder of the Devonshire Fellowship Church but did not find that that evidence established that there was a reasonable degree of likelihood that the appellant is a genuine convert to Christianity.

6. The judge noted the appellant's inability to explain why he had been chosen to be baptised into the Anglican faith which suggested that he had not carried out any research into Christianity or its various branches, but simply that he had chosen the Anglican faith because it was convenient and the church was opposite his hotel. Whilst the appellant was able to display some knowledge of Christianity and the New Testament of the Bible the appellant had not explained why he had undertaken such an extensive Bible study and neither had he explained what spiritual need this intensive attendance at the Bible classes fulfilled. She did not believe it reasonably likely that he had developed a genuine interest in Christianity over the past nineteen years.

7. The judge heard oral evidence from Miss Renwick, but again, did not believe that her evidence established that only Christians were capable of behaving in a caring way. The judge noted the letters of support that the appellant had provided from fellow Iranians who had been granted refugee status in the United Kingdom, but placed little weight on them since none appeared to have any experience or qualifications in assessing credibility and they were friends of the appellant with nothing to lose by providing him with a character reference. They did not attend to give oral evidence.

8. The judge noted that the appellant claimed that he left Iran illegally. She pointed out that there was no evidence before her to support this claim and, since she had found him to be unreliable and not a credible witness, she was unable to conclude that he did leave Iran illegally simply because he says it is the case. She considered whether the appellant would be at risk of harm on return to Iran without a passport. She noted that the background information did not indicate that there was a reasonable degree of likelihood that a sentence of imprisonment would be imposed upon him without an adverse profile. She noted the country guidance in SB (risk on return - illegal exit) Iran CG [2009] UKAIT 00053 and BA (demonstrators in Britain - risk on return) Iran CG [2011] UKUT 36 (IAC). She noted that she had not found the appellant to be a genuine convert and neither had she found there to be any reason for thinking that the Iranian authorities would take any adverse interest in the appellant on his return. She found that he had not established that he had left Iran illegally. The judge also believed it highly improbable that the Iranian authorities were aware that the appellant had been attending a number of Christian churches in the United Kingdom. She dismissed his appeal.

9. There were several challenges to the judge's determination.

10. The first suggested that the judge's approach of going behind the written and oral evidence of the Reverend White, a senior Anglican Church clergyman of Liverpool Cathedral, the oral evidence of Mr Peter Moffat an elder of 25 years' standing from the Devonshire Christian Fellowship Church and the oral and written evidence of Shirley Renwick, a long-standing parishioner and experienced manager of a refugee based organisation, all of whom independently testified their belief that the appellant was a genuine Christian convert, indicated that the Immigration Judge applied a higher standard of proof when assessing whether the appellant's conversion was genuine.

11. The first challenge suggested that it was highly speculative for the judge to infer that both a senior clergyman and a long-standing elder, together with the experienced parishioner, may all have been misled by the appellant about the genuineness of his conversion and that the status of these individuals and in particular, Canon White and the elder would collectively be better qualified to be able to assess an individual's integrity over a period of months, in which they have congregated with the appellant, in contrast to the short period of time in which the judge had to assess him.

12. Permission to appeal was not granted in respect of that challenge. In refusing permission Upper Tribunal Judge Reeds found no arguable error of law in the approach of the judge when considering her assessment of whether the appellant was a genuine Christian convert. She pointed out that the judge was entitled to reach an adverse view on the evidence from each of the witnesses for the reasons given in the determination.

13. There is no need for me to set out the second ground of challenge which was also refused by Judge Reeds. However Upper Tribunal Judge Reeds granted permission in respect of the appellant's third challenge. Ground 3 is brief and it says:

"The IJ's reasons in regards to his claimed illegal exit is based on her assessment of his credibility. It is respectfully submitted that the credibility of the substantive claim is not determinative of whether the appellant left Iran illegally. Nor is the IJ's alternative reason that he had not been apprehended in a lorry. It is permitted that the IJ is required to assess the available current evidence and conclude irrespective of his core claim whether it is reasonably likely that he left illegally and whether that factor alone would give rise to a risk on return."

14. At the hearing before me Mr Mynott made application to re-argue the first ground. He advised me that permission had been granted in another of this particular judge's cases, heard on the same day with the same three witnesses giving oral evidence before her. I pointed out that simply because in a similar case heard the same day leave had been granted, did not indicate that there was an error of law in this determination, merely that there was a properly arguable error identified in another determination. Mr Mynott suggested that the fact that it had been found that there was a properly arguable error in another determination by the same judge hearing the same three witnesses on the same day does indicate that she may have erred in her assessment of this appellant's appeal. She did not give any probative weight to the evidence that she heard from three independent witnesses who all believe that the appellant's conversion was genuine.

15. I did not invite any submissions on the point from Mr McVitie. I indicated to the appellant's representative that I was not minded to give leave to appeal in respect of this challenge. The challenge was nothing more than a simple disagreement with the judge's decision. The grounds do not identify any properly arguable error of law and neither had Mr Mynott. The mere fact that in a completely different appeal heard by the same judge on the same day with the same three witnesses a different appellant has been granted permission to appeal, did not suggest that there was any error of law on the part of the judge in this appeal.

16. The judge appeared to me to have given very careful attention to the evidence of the three witnesses. She heard and saw them and the appellant give evidence. The findings she has made are properly reasoned and were open to her to make on the evidence before her.

17. Having indicated to Mr Mynott that I was not minded to grant permission on ground 1, he addressed me on ground 3. He asked me to note that in answer to question 27 at the asylum interview the appellant had indicated that he had not had a passport when he left Iran. Paragraph 11 of the Reasons for Refusal Letter also makes it clear that the appellant entered the United Kingdom without travel or other identification. However, the judge has not dealt with the issue of risk on return of someone who will not be in a position to lie on return and if asked what he was doing in the United Kingdom would be bound to answer truthfully that he claimed asylum. If asked why he claimed asylum, he would be bound to tell them that he had converted to Christianity and that would cause him to be at risk. Mr Mynott referred me to SSH and HR (illegal exit: failed asylum seeker) Iranian CG [2016] UKUT 00308 (IAC) and in particular to paragraph 23. There is a danger that on return the appellant will be questioned about his activities in the United Kingdom and will be forced to disclose his apostasy suggested Mr Mynott.

18. Mr McVitie pointed out that it was the first time that this submission had ever been made. It had not been advanced in the grounds and was not advanced at the hearing before the First-tier Tribunal Judge. It cannot have been an error of law for the judge not to have considered a matter that she was not asked to consider. The judge was not satisfied that the appellant had left Iran illegally but even if he had, all he would have to say on his return was that he had lied to the United Kingdom authorities about his conversion to Christianity having made up an asylum claim in an attempt to remain here. It was absurd to suggest that he would be at risk because of his conversion when the judge found that he had not converted. If the appellant told the authorities in Iran anything different then he would not be telling the truth.

19. Mr Mynott suggested that this point had been made in a skeleton argument submitted to the First-tier Tribunal. I pointed out that there was no record anywhere on the Tribunal's file of a skeleton argument ever having being sent to the Tribunal by the appellant's solicitors and there was no copy of any skeleton argument in the IAT file. Mr McVitie told me that no skeleton argument had ever been given to the Home Office.

20. I reserved my determination.

21. The judge's findings in this determination are clear and properly reasoned. The judge points out that there is no evidence before her to support the claim made by the appellant that he had left Iran illegally. She had found him not to be a credible witness. He was an unreliable witness and simply because he asserted that he had left Iran illegally without further evidence, she was not prepared to accept that he had.

22. The judge was entitled to make such a finding. The judge does not claim that the appellant's assessment of credibility is determinative of whether or not he left Iran illegally. She is merely pointing out that simply because he asserts that he left illegally is not sufficient for her to make a finding that he did, given that she has found him to be such an unreliable witness. She has made extensive credibility findings and believed nothing which was relevant to the core of his claim. There was nothing further that she need do in respect of the appellant's claimed illegal departure. He asserted that he had left illegally, but has failed to discharge the burden of proof on him to show that he did. However, she went on to consider whether there would be any real risk on his return and found that there would not be because, at the time he left Iran, the judge believed that he was of no interest to the Iranian authorities at all.

23. I do not believe that the judge has made any error of law in her determination.

24. If questioned on his return to Iran, the appellant will not be expected to lie. He can quite truthfully tell the authorities that he invented a story with a view to being accepted as a refugee in the United Kingdom but was not believed. If he is asked to explain what his story was there is no reason why he should not tell his questioners. He is not a true convert to Christianity. His account was not believed by the United Kingdom immigration authorities, nor by the Immigration Judge and there is no reason at all why the Iranian authorities should take any further interest in him.

25. The judge made no error of law and I uphold the decision. The appellant's appeal is
dismissed.

SUMMARY

The judge made no error of law in her determination which shall stand. The appellant's asylum appeal is dismissed. The appellant's human rights appeal is dismissed.

Richard Chalkley
Upper Tribunal Judge Chalkley

FEE AWARD

No fee was paid or payable and there can be no fee award.

Richard Chalkley
Upper Tribunal Judge Chalkley