Tribunal decisions

The decision

IAC-AH-sc-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10352/2013

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 7th February 2017
On 22nd February 2017

Before

UPPER TRIBUNAL JUDGE REEDS

Between

S M
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr G. Brown of Counsel
For the Respondent: Mr A. McVeety, Senior Presenting Officer

DECISION AND REASONS

Direction Regarding Anonymity - 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. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.
1. The Appellant is a citizen of Iran. The Appellant left his home area in Iran on 8th August 2013, crossing the border into Turkey and arriving two days later. He travelled to the UK from Turkey arriving in Scotland on 21st August 2013 having taken a journey of some fourteen to fifteen days. On 22nd August 2013 he claimed asylum.
2. The basis of his claim related to events in Iran. They are summarised by the First-tier Tribunal's decision at paragraph [10] of the determination. It was based on being approached by a member of the Iranian authorities to fight abroad for that regime. The Appellant made reference to his employment and that Sepah had taken over the company in which he worked and a person had asked him to fight abroad and become head of security at that company. The Appellant refused those requests. Whilst working in that employment, he made acquaintance with another who introduced him to Christianity. He gave him a Bible that he kept in his locker at work. The friend had been seen evangelising. It led to the Appellant's arrest, his locker being opened and the Bible being found. The claim was that if the Appellant would agree to fight abroad, the information would not be reported nor his interest in Christianity. Consequently the Appellant decided to leave Iran as set out above.
3. As to his circumstances in the UK, it was asserted that he had attended church.
4. The Respondent refused his claim and set out the reasons in a detailed decision letter dated 1st November 2013.
5. The Appellant sought permission to appeal that decision which came before the First-tier Tribunal on 18th December 2013. In that determination, the judge rejected his claim that had been advanced on both bases, namely the events in Iran and also his conversion to Christianity. There were a number of adverse credibility findings made. As to the issue of illegal exit this was an issue that was raised on behalf of the Appellant and the judge rejected that claim on the basis that he would not be at risk on return having exited illegally. Thus the judge dismissed the appeal.
6. Permission to appeal that decision was sought but was refused by the First-tier Tribunal on 20th January 2014 and also refused by the Upper Tribunal. It led to proceedings before the High Court who challenged the Upper Tribunal's decision and when the matter was before the High Court, Mr Justice King ordered the question of permission should be heard at an oral hearing. This took place before Mr Justice Blake and on 27th February 2015 permission was granted, an anonymity direction was made and the decision of the Upper Tribunal was quashed.
7. Consequent to the decision of the High Court permission was granted by the Upper Tribunal on 23rd April 2015.
8. The appeal came before the Upper Tribunal on 9th March 2016. In a determination promulgated on 14th March 2016, the Upper Tribunal reached the conclusion that the decision of the First-tier Tribunal disclosed an error on a point of law and the decision was set aside. This decision should be read alongside the earlier decision. As set out, the findings of fact that were made by the First-tier Tribunal at paragraph [18] were preserved and issue to be determined was that relating to the issue of illegal exit. As the Upper Tribunal was to hear a country guidance case involving issues of illegal exit relating to Iran, the appeal was adjourned to await that decision.
9. Following the promulgation of the decision in SSH and HR ( illegal exit; failed asylum seeker) CG [2016] UKUT 308 the case was listed again for the Upper Tribunal for further hearing. It was agreed between the parties that in view of the length of time that elapsed and the issue remaining was whether the Appellant was at a risk of persecutory harm or a real risk of serious harm if returned to Iran, it was agreed between the parties that the issue of the Appellant's religion and his conversion to Christianity remained a live issue. Thus directions were given for the Appellant to serve a witness statement and any further evidence upon which he sought to rely upon.
10. Thus the hearing was listed before the Upper Tribunal as a resumed hearing on 7th February 2017.
11. At that hearing the Appellant provided a further bundle of documentation enclosing within it a witness statement (dated 21st October 2016), a number of documents relating to his baptism and confirmation and witness evidence from members of the church in support of his claim. There was also country information provided in that bundle.
12. It was common ground between the parties that if the Appellant's account of being a genuine convert to Christianity was found to be credible to the lower standard that on the basis of the Respondent's own guidance and upon the objective material and country materials, that the Appellant's claim would succeed. Mr McVeety conceded that in those circumstances it would not be necessary for the court to embark upon an analysis of the country information as it was accepted that a Christian convert returning to Iran would be at risk of persecution or serious harm upon return.
13. The Tribunal heard evidence from the Appellant and two witnesses. The Appellant adopted his witness statement of 21st October 2016. He was asked a number of questions in cross-examination. He confirmed that he was baptised on 24th February 2014 and confirmed on 11th May 2014. He gave a description of his conduct, namely that when he had arrived two sessions of the Alpha course had already started and he had gone through the formal session and finished the Alpha course but this had related to September/October 2013. It had taken to the end of January 2014/early February when new classes started. Thus he explained that he had finished some classes in February and had done the Alpha course again and then he was baptised. When asked about his ability to follow the service in English (referring to his witness statement) the Appellant stated that he was not thoroughly fluent but as he had been in the UK for a number of years he could understand the majority of the conversations. He confirmed that in the morning the service is in English and in the afternoon it is Farsi. He said that he did understand some of the English service and at the end of it he was given notes to read. He said he had some problem with his eyesight.
14. He was referred to his witness statement at paragraph [28] and that he had referred there to introducing other Iranians to the church. He was asked if he had introduced any others who were not Iranian nationals. The Appellant said that he had not because he said that most of his friends and contact have been with Iranian nationals and he has not met many English people. He was asked about the people who lived with him and he gave a description of those with whom he lived. He accepted that he had lived with some non-Iranian nationals during the time he had been in the UK and that some were Christian and some were Muslim. He stated that he had had gatherings in his living room with some music and with both Christians and Muslims talking about religion.
15. The court then heard from a witness R W. He confirmed his letter/witness statement at pages 23 to 24 of the bundle dated 18th October 2016. He confirmed that he had known the Appellant for three to three and a half years in his oral evidence and he confirmed that he had got to know the Appellant during that time through his contact and through the contact of his team. In cross-examination the witness was asked about having attended court on previous occasions for other Appellants. He confirmed that he had attended the Tribunal for sixteen different Appellants and had attended on two occasions for the same Appellant and therefore had been before the Tribunal on eighteen occasions. He confirmed that not all of them were Iranian citizens (two were not). When asked why he thought there were so many Iranian nationals applying for asylum, he stated that in his experience and having the opportunity to talk to them at church is that they grew up in Iran in a culture with it being imposed upon them and that they equate that with resentment against Iran and consequently resentment against Islam. He stated that in Iran there was a large network of covert underground churches in contrast to other Muslim nations. Mr McVeety put to him that there might be an alternative explanation. In this context he was asked if it had raised "alarm bells" with so many attending church. The witness stated that at the church they had sought to be "wise" when working with new attendees and that it may be a concern. He was therefore asked if there had been some applicants whom the witness had assisted and had established their claim to asylum but had then either given up the church or disappeared. The witness replied that there were many that had moved on from the area because they were not able to find employment but that he had kept in touch with a high proportion. He said that in the "early days we were more gullible than we are now." He said that no-one he knew of and for whom he had attended court and then had been granted status had given up being a Christian. It was put to him that it is not possible to look into an individual's soul and thus was it the case that the witness would have to make personal observations? The witness agreed with that. It was put to him also that someone could be in interested in religion simply for an ulterior motive. The witness agreed with that but stated that in those circumstances he would have to make an assessment and that it had been the Appellant's faithful commitment over three and a half years having seen him and watch him in worship and whilst it was possible it could be a sham he has seen others who had not gone the distance who had given up and walked away but this Appellant had not.
16. The witness was asked if he had ever refused to attend court to give evidence on behalf of a particular applicant. The witness said that he had and that he had refused to give evidence in some cases because the church did not have the confidence in them.
17. The second witness M H gave evidence in accordance with his witness statement at pages 25 to 29. He was asked in cross-examination about his witness statement and in particular paragraph [10] where he had stated that the Appellant had first began as an enquirer into the Christian faith but had gone through the conversion stage to become a believer. In this context he was asked if he had ever thought that the Appellant may be doing that for "nefarious purposes". The witness said that was always a possibility and that he had considered all possibilities but that in this Appellant's case he had come to a judgment based on his observations.
18. When asked what it was about the Appellant, the witness said there were a lot of facts that he had taken into account; a person's behaviour, his response to stimuli, what motivates them and that he believed that what he had seen in relation to this Appellant was thoroughly genuine and that this had been reinforced by the period in which he had known him and that it was now some three years. It was put to him that he had not been found credible by a previous judge but the witness stated that he was aware of that but that he had had "long experience". When asked if it had altered what he had seen, the witness said that it had altered the way that he had examined him and that he had looked at his character, information about him and looked more carefully than he would otherwise have done.
19. The witness was asked if he had attended court to give evidence before and he stated that he had attended for eleven separate cases, all of whom where Iranian nationals. He confirmed that he was not an ordained minister but a lay minister and now ran the baptism classes in another church but confirmed that he had participated in the classes that the Appellant had taken part in. He gave further evidence about the baptism courses. When asked about the Appellant's general conduct and behaviour, the witness said that the Appellant's behaviour had been "impeccable" and that his attitude had been an example to all, that he had a measured approach to people's problems and the advice that he gave generally. He confirmed that he had seen him quite a lot and that after he had left the church a year ago he had kept in contact with the Appellant. He said that it would be difficult to keep up this kind of conduct over such a prolonged period and that he had observed no non-genuine conduct in this Appellant.
20. At the conclusion of the evidence I heard submissions from each of the parties. On behalf of the Secretary of State Mr McVeety confirmed the position of the Secretary of State that if the court found that he was a genuine Christian convert, the Secretary of State accepted the situation of those returning to Iran and that they would be at risk of persecutory harm or serious harm and in those circumstances it was not necessary to make any analysis of the country materials which were accepted by the Secretary of State.
21. Mr McVeety began his submissions by making reference to the previous judge's findings of fact, that they were unchallenged and were the starting point. He submitted that the court would have to consider what had happened since then and that he had spent a considerable time in the United Kingdom after that earlier hearing. In this context he submitted the court would have to consider whether he was a genuine convert or whether this was a cynical opportunity to support a claim for asylum. He submitted that the court had heard from two witnesses and that both of them had given credible evidence but that it was not their credibility which the court should assess but that of the Appellant. In this context, the Appellant had not "spread the word of Christianity" in English but had done so in Farsi and that if he was a genuine proselytising Christian it was strange that he was limiting it to those of his own nationality. The evidence demonstrated that he could speak English and follow communion and that this demonstrated that he did not hold a genuine belief in Christianity but this was a cynical attempt to stay in the UK. Thus he submitted it was not a credible conversion.
22. As to the evidence of the witnesses, he asked the Tribunal to consider how many other applicants had been granted status and then were no longer in touch with the church and that if they were serious about Christianity you would expect them to remain in contact. Thus Mr McVeety submitted that I should look carefully at the evidence.
23. Mr Brown on behalf of the Appellant agreed that the starting point for my findings of fact were those of the First-tier Tribunal Judge in January 2014. At paragraph [18] the judge considered the claim of Christianity and acknowledged that the Appellant had since September been attending church but had not completed the Alpha course. The judge also made reference to being familiar with the church that the applicant had attended and had noted that there were no witnesses called on his behalf and whilst there was written evidence in one of those letters, the witness expressed no written opinion as to the genuineness of the Appellant's conversion. Thus the judge found at paragraph [18] that that vague and qualified statement was insufficient to demonstrate that the Appellant was a genuine Christian convert. As the judge had noted the decision in the case of Dorodian was important which made reference to direct oral evidence in cases involving religious conversion. However, Mr Brown submitted that that was not the present circumstances, that the Appellant had now been baptised and that there have been two witnesses now who have given evidence attesting to the genuineness of his Christian beliefs and thus his conversion. He submitted that there had been a "fundamental change" in the Appellant's case which he had demonstrated by credible evidence.
24. Mr Brown invited the Tribunal to consider the evidence in the round and that he had demonstrated to the lower standard that he was a genuine Christian convert. He submitted that the evidence demonstrated that he was now fortified in his faith since the last hearing and that his attendance at church could not realistically be questioned. Furthermore he submitted that his proselytising could not be challenged and that whilst Mr McVeety had submitted that the Appellant had only sought to convert Iranian nationals, that was a credible explanation in the context of his circumstances, thus it was not unusual that he would be socialising with other Iranian nationals.
25. Mr Brown further submitted that the court had heard clear evidence from two witnesses in accordance with the principles set out in the case of Dorodian, which was not the position before the First-tier Tribunal. The evidence demonstrated that both witnesses had known him well and based on their own personal experiences and an important level of contact that has been constant since 2013, their evidence could only point to one conclusion that he was a genuine Christian convert. Whilst he submitted it was not determinative, he demonstrates that sufficient weight should be attached to that evidence when the submission has been made on behalf of the Secretary State that the Appellant is a "cynical man".
26. His alternative submission related to paragraph [23] of the country guidance decision in SSH and HR and that there had been no examination of the "pinch point" when an applicant is asked what they had been doing in the UK having made a failed claim for asylum. Thus when applied to the particular facts of this case, the Appellant has gone through a baptism and if he were to reveal that, it is reasonably likely that that would give rise to further interrogation. In this context he relied upon the skeleton argument that he had produced.
27. At the conclusion of the hearing I adjourned to consider the evidence that I had heard to reach a decision upon the issues that were relevant to this appeal. Reconvening, I gave a short judgment in which I reached the conclusion that I was satisfied to the lower standard that the Applicant was a genuine Christian convert and that in light of the concession made by Mr McVeety that the Secretary of State accepted that those in the position of the Appellant returning to Iran would be at risk of persecutory harm that his claim would succeed.
28. I stated to the parties that I would give my full reasons in a written judgment.
29. I confirm that I have taken into account all of the evidence together with the submissions from each of the advocates. I remind myself that the burden of proof is upon the Appellant and that the standard of proof is the reasonable degree of likelihood.
30. As set out earlier, it has been accepted by Mr McVeety on behalf of the Secretary of State that the Operational Guidance Note and the country materials are such that it is accepted that if the Appellant's account of his conversion to Christianity is genuine that he is entitled to succeed in his appeal.
31. Consequently that is the issue that I am to determine.
32. The starting point for my consideration is the determination of the First-tier Tribunal promulgated on 2nd January 2014, in which the Applicant's account of events in Iran was rejected in their entirety (see paragraph [18]). Those findings remain and I have had to consider the further evidence that has been put before the Tribunal to consider whether any further findings should be made on the evidence. In this context I should observe that there has been no further evidence advanced by the Appellant relating to events themselves in Iran and his case is firmly based on his conduct and behaviour whilst in the United Kingdom in the context of his Christian faith.
33. In relation to the Appellant's faith in the UK, the First-tier Tribunal Judge did not dispute that the Appellant had attended church since September 2013 but noted that by the time of the hearing in December 2013 it had been a relatively short period of time. The judge further noted that despite his attendance, he had not completed an Alpha course (a course which has the purpose of introducing people to the Christian faith) nor had he been baptised. Importantly the judge observed that there had been no witnesses at the Tribunal to give evidence to attest to his faith and that since the decision of Dorodian, the importance of direct oral evidence should not be overlooked. In those circumstances, she could not place any weight on the supporting written evidence which she described as "vague" when considering whether he was a genuine Christian convert.
34. Whilst that is my starting point, since that decision was made further time has elapsed and there is different evidence before this Tribunal than there was before that of the First-tier Tribunal. It is therefore for me to carefully assess that evidence in the round and to reach a conclusion.
35. I have had the opportunity of reading the documentation and hearing the oral evidence of the Appellant and the two witnesses who have given evidence before me. As Mr McVeety submitted, the witness's credibility was not in issue as such but I have had to consider their evidence in the context generally of the Appellant's claim and earlier credibility findings.
36. Having done so I make the following findings of fact. I am satisfied that the Appellant has attended church since September 2013. The evidence before me demonstrates that he attended the Alpha course in September 2013 having attended it late. He could not have been baptised at the time of the First-tier Tribunal hearing as he had not completed the course and therefore he had to start a new course in January 2014 (post the decision) which I am satisfied that he completed successfully. The Appellant was also then baptised by the first witness, R W and has been confirmed.
37. I am further satisfied that he has continued to practise his faith and has attended both English and Farsi services. In addition, he has undertaken unpaid work in the church (see paragraphs [26] and [27] of the witness statement).
38. I make no adverse findings of credibility on the basis of the submission made by Mr McVeety that he had only introduced other Iranian nationals to the church. In the context of the evidence before me and the Appellant's circumstances I do not find that to be surprising; he lives in shared accommodation and his circumstances are such that he generally socialises with those of his own nationality. In any event, it is not the case from the evidence before me that he has not spoken to any other different nationalities and I accept his evidence in this regard.
39. The issue posed by Mr McVeety relates to whether the Appellant's conversion is genuine or not and whether it is as he describes as a "cynical attempt" to advance an asylum claim.
40. I acknowledge, as did the two witnesses before me, that there may be an incentive for those facing removal to demonstrate outward manifestations of the Christian faith. However on the evidence that I have read, heard and seen, I am satisfied that this is not the case for this particular Appellant. I place significant weight on the evidence of the two witnesses that I have heard and I find that both of them have given careful time and thought to the questions asked of them in cross-examination and the possibility of individuals professing to have converted to Christianity with an eye to remaining in the United Kingdom. I am satisfied that both witnesses were very aware of such a possibility and had approached their assessment with this particular Appellant with that firmly in mind.
41. Furthermore I am satisfied that the witnesses in this case have both had the opportunity to build and foster a relationship with the Appellant and have thus been able to obtain an accurate picture of his conduct, his behaviour and hence his beliefs. R W, the first witness gave reasons as to why he had not attended the Tribunal in 2013 to give evidence on the Appellant's behalf and this was because he had not known him well enough and could not have given supporting evidence with confidence. The position now in 2017 is different and during the time that has elapsed both the witness and his team have had the opportunity to get to know him as an individual and on a personal basis and they are confident that his claim to be a Christian convert is genuine.
42. Similarly the second witness, M H, confirmed his history of engagement as set out by the Appellant including his attendance at the Alpha course and his baptism. He has known the Appellant since the end of 2013 and has been in regular contact with him from January 2014 until he moved in January 2016. As I understand the evidence, notwithstanding having left the church to which the Appellant attends, the Appellant and the witness have continued their relationship and he had visited his home for both biblical and spiritual discussions. The witness described the Appellant as "an impressive regular attender.".
43. Both witnesses gave oral evidence as to their relationship with the Appellant and the basis upon which they have reached the conclusion that he is a genuine Christian.
44. I am satisfied that both witnesses were both well-aware that there may be individuals that engage the church to further their claims for staying in the United Kingdom. Both were able to state that in cases such as this that they have declined to provide evidence to a Tribunal on their behalf. This may be because they have not got to know them and therefore cannot attest to the individual's beliefs or have doubts about the genuineness of their conversion.
45. Both of those witnesses however were clear in their evidence that when considering this particular Appellant and having had the opportunity of knowing him for the last three years, demonstrates that he does not fall into either of those categories. I therefore place significant weight on their evidence and thus I have reached the conclusion, having carefully considered all of the evidence that I am satisfied that the Appellant is a genuine Christian convert and as such would seek to practise his religion both here and abroad.
46. In the light of the concession made by Mr McVeety on behalf of the Secretary of State that the country materials demonstrate a risk of persecutory harm to those who are Christians and have converted, I therefore allow the appeal.

Notice of Decision

The decision of the First-tier Tribunal discloses an error on a point of law and the decision is set aside. The decision is remade as follows:-

The appeal is allowed on asylum grounds.

Signed Date: 21/2/2017

Upper Tribunal Judge Reeds