Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08540/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 22nd July 2016
On 5th August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

ASD
(ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: No representation
For the Respondent: Mr A McVeety, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction and Background
1. The Appellant appeals against a decision of Judge Ennals of the First-tier Tribunal (the FtT) promulgated on 9th November 2015.
2. The Appellant is an Iranian citizen born in November 1964 who claimed asylum fearing persecution in Iran because he had publically insulted Islam, and while in the United Kingdom had converted to Christianity.
3. On 18th May 2015 the Respondent decided that the Appellant would not be at risk if returned to Iran and therefore decided that he was not entitled to a grant of asylum or humanitarian protection, and his removal from the United Kingdom would not breach any of his human rights protected by the 1950 European Convention on Human Rights (the 1950 Convention).
4. The Appellant's appeal was heard by the FtT on 6th November 2015 and dismissed on all grounds.
5. The Appellant applied for permission to appeal to the Upper Tribunal relying upon three grounds which may be summarised as follows.
6. Firstly it was contended that the judge had not made clear findings, and had in fact made conflicting findings as to whether the Appellant had publically insulted Islam.
7. Secondly it was contended that the FtT findings in relation to the Appellant's claimed conversion to Christianity are superficial and perfunctory, and the FtT failed to take into account the evidence of a church leader who attended the hearing to give evidence. In addition the FtT failed to take into account objective evidence that Christians who have converted from Islam are at real risk of persecution in Iran.
8. Thirdly the FtT misapplied SB (risk on return - illegal exit) Iran CG [2009] UKAIT 00053 when considering the risk faced by the Appellant on return to Iran. Being accused of anti-Islamic conduct constitutes a significant risk factor.
9. Permission to appeal was granted by Judge Parkes and I set out below the grant of permission in part;
2. The judge found that the Appellant had not shown that he had genuinely converted to Christianity and that at best he was to be regarded as an "ordinary convert" and that he would not be at risk in Iran for that reason or for having left illegally.
3. The grounds argue that the judge found that the Appellant's account of the argument with his family plausible but went on to find that the event did not happen. It is also argued that the findings in relation to his claimed conversion were perfunctory and that evidence from the church had not been considered. It followed that he would be at risk on return.
4. The findings in relation to the argument with the Appellant's family may be contradictory or the judge may have found that the argument occurred but not in public as he had claimed. However, it is not at all clear what the judge found as that forms part of the basis for the findings in relation to his conversion and those findings are similarly affected.
5. The grounds are arguable and permission to appeal is granted.
10. Following the grant of permission the Respondent lodged a response pursuant to rule 24 of The Tribunal Procedure (Upper Tribunal) Rules 2008, contending in summary that the FtT directed itself appropriately and did not err in law.
11. Directions were issued that there should be an oral hearing before the Upper Tribunal to ascertain whether the FtT had erred in law such that the decision must be set aside.
The Upper Tribunal Hearing
12. There was no attendance by the Appellant or his representatives. A telephone call made by the Tribunal to the representatives revealed that they, although notice of the hearing had been sent to them and to the Appellant, had not appreciated that the hearing was to take place on 22nd July 2016.
13. I decided, following an indication given by Mr McVeety, that it would be appropriate and in the interests of justice to proceed with the hearing notwithstanding that the Appellant and his representatives had failed to attend. In reaching this decision I took into account, not only the indication given by Mr McVeety that he would be conceding that the FtT had erred in law, but also took into account rule 38 of the 2008 Rules, which provides that the Upper Tribunal may proceed with a hearing in a party's absence, if satisfied that the party has been notified of the hearing, and that it is in the interests of justice to proceed with the hearing.
14. Therefore I heard oral submissions from Mr McVeety who advised that he did not rely upon the rule 24 response. Mr McVeety, very fairly and quite properly in my view, accepted that the FtT had in fact erred in law as contended in the grounds seeking permission to appeal.
15. Mr McVeety suggested that the decision of the FtT be set aside, and the appeal remitted back to the FtT to be heard afresh.
My Conclusions and Reasons
16. With reference to the first ground of appeal, I find that the FtT erred in law by failing to make clear findings. The Appellant's case was that he was involved in a heated verbal altercation with his wife's family in connection with a property dispute, during which he publically insulted Islam.
17. The FtT found at paragraph 22 that the account was plausible.
18. However in paragraph 25 the FtT finds that "in the absence of any corroboration for the incident" it is not accepted that the event happened.
19. There are therefore apparently unresolved conflicting findings, and inadequate reasons are given for concluding that the Appellant did not publically insult Islam. This is material, as the Appellant claims that it was this incident that put him at risk in Iran and caused him to flee.
20. Referring to the second ground of appeal, the FtT does not provide adequate reasons for discounting the evidence of the church leader who attended the hearing, to confirm the Appellant's baptism on 28th June 2015, and his genuine conversion.
21. In addition, the FtT failed to address and analyse material evidence that was before it. The Appellant's bundle contained extracts from the Respondent's own guidance on Christians and Christian converts in Iran. In summary section 1.3.3 of that guidance (page 30 of the Appellant's bundle) states that Christians who have converted from Islam are at risk of harm from the state authorities as they are considered apostates, a criminal offence in Iran. Christian converts are said to face physical attacks, harassment, surveillance, arrest and detention, as well as torture and ill-treatment in detention.
22. Section 1.4 of the Respondent's guidance (page 31 of the Appellant's bundle) states that the right of Muslims to change their religion is not recognised under Sharia law. The religious conversion of Muslims is illegal in Iran. Christians who have converted from Islam are at real risk of persecution in Iran, and a grant of asylum is likely to be appropriate.
23. The above is independent evidence that was before the FtT, who found firstly that the Appellant had not proved he had genuinely converted, and secondly if the conversion was genuine, the Appellant was only an 'ordinary convert'.
24. The evidence of the church leader is relevant as to whether there is a genuine conversion, and the independent evidence in the Respondent's own guidance is relevant if the Appellant is found to be only an 'ordinary convert'. The FtT has not given adequate reasons for disregarding this evidence.
25. As I find a material error of law in relation to the first two grounds, it is not necessary to go on and consider the third ground of appeal.
26. It is accepted by the Respondent that the decision of the FtT is unsafe and therefore the decision is set aside with no findings preserved.
27. I have considered paragraph 7 of the Senior President's Practice Statements, and find that it is appropriate to remit the appeal back to the FtT because of the nature and extent of judicial fact-finding that will be necessary in order for this decision to be re-made.
28. The appeal will be heard by the FtT at the Manchester Hearing Centre and the parties will be advised of the time and date in due course. The appeal is to be heard by an FtT Judge other than Judge Ennals.
Notice of Decision

The decision of the FtT involved the making of an error of law such that it is set aside. The appeal is allowed to the extent that it is remitted to the First-tier Tribunal with no findings of fact preserved.
Anonymity

The FtT made no anonymity direction, but as this is an asylum appeal, I believe it appropriate to make an anonymity order pursuant to rule 14 of The Tribunal Procedure (Upper Tribunal) Rules 2008. 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 both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 25th July 2016

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

No fee award is made by the Upper Tribunal. The issue of any fee award will need to be considered by the FtT.

Signed Date 25th July 2016

Deputy Upper Tribunal Judge M A Hall