Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09130/2014

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 4 October 2016
On 25 October 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

SOMAYEH [K]
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Worthington, Parker Rhodes Hickmotts Solicitors
For the Respondent: Mr Diwnycz, Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is a resumed hearing following a finding that the First-tier Tribunal erred in law such that its decision fell to be set aside. My written decision following the hearing on 15 March 2016 was as follows:
"1. The appellant, Somayeh [K], was born on 13 September 1983 and is a female citizen of Iran. She arrived in the United Kingdom in June 2014. She applied for asylum but her claim was rejected by the respondent and a decision taken to remove her from the United Kingdom was taken on 26 August 2014. The appellant appealed to the First-tier Tribunal (the late Judge Upson) which, in a decision promulgated on 13 July 2015, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. At the hearing before the Upper Tribunal, Mr Diwnycz conceded that the judge had erred by failing to consider a material submission made to him at the First-tier Tribunal hearing that the appellant was at risk on return to Iran as an undocumented failed asylum seeker (ground 1). I am also satisfied that the judge erred in that respect and that it is necessary for the Upper Tribunal, at a resumed hearing, to consider that aspect of the appeal. The remaining grounds of appeal are, in essence, challenges to the judge's findings of fact. In that respect, the judge made no proper finding as to whether the appellant had been raped as she claims [35]. That fact remains to be determined. I am satisfied that the findings at [36-37] can remain and are adequately reasoned. At [38] the judge found that the surveillance systems of the Iranian authorities are so sophisticated that, had the appellant's husband been of interest to the authorities, he would not have been able to have left the country at all. I consider that finding should be looked at again for I am unclear from the decision as to the evidential basis for it. I find that the Upper Tribunal should look again at the appellant's account of how she left Iran and make findings accordingly.
Notice of Decision
3. The decision of the First-tier Tribunal promulgated on 13 July 2015 is set aside. The findings of fact at paragraphs 36-37 of the decision are preserved. The decision will be remade following a resumed hearing in the Upper Tribunal (Upper Tribunal Judge Clive Lane). The Tribunal will consider afresh the circumstances in which the appellant and her husband came to leave Iran and the allegation of rape (First-tier Tribunal decision [35]). In particular, the Upper Tribunal are to consider whether the appellant is at real risk of harm if she returns to Iran as a person who has made a failed claim for asylum in the United Kingdom.
4. No anonymity direction is made."
2. At the resumed hearing there was a discussion regarding the matter of the appellant's alleged rape at the hands of Etaalat in Iran. As recorded above, I ordered that the findings of the First-tier Tribunal at [36-37] should stand. Those findings are as follows:
"36. The appellant's husband, she says, was charged with embezzlement and adultery. I am not persuaded that a charge of embezzlement would of itself lead to the authorities pursuing him to the extent that they would threaten to kill the appellant's children if she did not tell them of his whereabouts.
37. The appellant stated in her W/S [witness statement] that she did not know what her husband did at work but in her asylum interview (question 24) she said that, although they did not talk about his job, she knew that he worked in the finance department. Also there is a contradiction as to the release her husband and whether that was on the payment of a bribe or a bail bond, I am not persuaded that Etaalat would have been prepared to release him in any circumstances if he were of interest to them in the way that the appellant would claim. I therefore reject the appellant's evidence about her husband's employment and the circumstances of his being wanted."
3. The allegation of the rape is discussed by the late Judge Upson at [35]. It is clear that the alleged rape occurred, in the appellant's account, because Etaalat had been interested in the appellant's husband's activities. It follows from my upholding of the findings at [36-37] that the rape itself is not material to the appellant's claim for asylum; indeed, it is a natural consequence of upholding the late Judge Upson's findings to the effect that the appellant's husband was not employed as she claimed and that he was not wanted by Etaalat that the rape itself may either not have taken place at all or was an incident wholly unrelated the appellant's reasons for claiming asylum.. Mr Worthington, for the appellant, sought to persuade me to re-open my conclusions as regards the late judge's findings but I refused to do so. I acknowledge, however, that it would have been better if, at the error of law hearing, the connection between the rape and the (rejected) account of embezzlement and problems with Etaalat had been addressed in greater detail.
4. There remains a question as regards the manner in which the appellant and her children allegedly left Iran. The judge's finding regarding the sophistication of surveillance systems [38] is, rather like the rape, not of material interest given that the late Judge Upson made this finding to reinforce his (preserved) findings that the appellant's husband was not of interest to the Iranian authorities. The appellant seeks to persuade me that she would not have left Iran as a female with children without the consent of her father or her husband. Whilst I note that submission, there was force in Mr Diwnycz's submission that the appellant appears to have left the country without any difficulty accompanied by two children. Those children would, in turn, have had to have leave school and, had permission not been provided and had the appellant's exit not been legal, it is difficult to see how she may have overcome the obvious obstacles to which Mr Diwnycz referred. Having regard to all the evidence, and considering whether there are substantial grounds for believing there to be a real risk that the appellant would face ill-treatment upon return on account of the circumstances of her exit from Iran, I have concluded that there would not be such a risk.
5. An issue has also arisen as to whether one of the appellant's grounds of appeal against the First-tier Tribunal's decision has been determined. That ground concerns the appellant's alleged conversion to Christianity (ground 3). Whilst I did observe [2] in my error of law decision that, "the remaining grounds of appeal are, in essence, challenges to the judge's finding of fact", I told Mr Worthington at the resumed hearing that I would address the question of the conversion in greater detail and would consider whether the late Judge Upson had erred in his treatment of the appellant's claimed conversion to Christianity.
6. The late Judge Upson discussed at some length the appellant's claim to have converted. He considered the evidence of the witness Brother David Lanstrom. The findings which he reached at [42] are, in my opinion, sound and adequately reasoned. The late Judge Upson concluded that "Brother David Lanstrom was a credible witness but I also found that he has been misled by this appellant in the furtherance of a desire to remain with her children in the UK". It is clear that the judge's assessment of the credibility of the appellant's claim to have converted was a holistic one, taking into account all the evidence. I am also satisfied that the First-tier Tribunal's findings as to the speed with which the appellant converted to Christianity may stand [41].
7. I am satisfied, as was the late Judge Upson, that the appellant is not a genuine Christian convert but had attended church and undergone baptism with a view to remaining in the United Kingdom. The fact remains that the appellant does appear to have attended church and has been baptised. Mr Worthington sought to persuade me that this fact alone will expose the appellant to risk; if she were asked about her conversion to Christianity upon her return to Iran she would not be expected to lie and would have to explain that she had attended church and had been baptised.
8. I have considered that submission very carefully but I am satisfied that the appellant is not entitled to refugee status on account of her attendance at a Christian church or her baptism. It is possible that the appellant, accompanied by her two children with whom she has been found to have left Iran legally, on return to that country may, as a returnee from Europe, be questioned by Iranian officials. I am not persuaded that she would be asked directly whether she had converted to Christianity or had attended a Christian church; given the circumstances of her departure from Iran, I can find no reason why she should be asked. Further, I do not consider that the appellant would need to volunteer to those authorities the fact that she has attended church. By that logic, any asylum seeker from Iran can expect to be granted refugee status in the United Kingdom provided he or she attended a service at a Christian church whilst living here and notwithstanding that he/she had not converted to Christianity. There is no evidence to suggest that the Iranian authorities ask "open" questions which might induce returnees to volunteer information which might place them at risk. Indeed, if the appellant can be expected to volunteer such information then there is no reason why she should not also tell her interrogator that she was not a genuine convert but had attended only in order to support a spurious asylum claim. It follows that the late Judge Upson did not err in law in his treatment of the appellant's claimed religious conversion.
9. In the light of my findings above, I find that the appeal should be dismissed.

Notice of Decision
10. This appeal is dismissed on asylum grounds.
11. This appeal is dismissed on human rights grounds.
12. This appellant is not entitled to a grant of humanitarian protection.
13. No anonymity direction is made.

Signed Date 20 October 2016

Upper Tribunal Judge Clive Lane

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 20 October 2016

Upper Tribunal Judge Clive Lane