The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10705/2012


Heard at Glasgow
Determination sent
on 3rd June 2013
on 5th June 2013



upper tribunal JUDGE MACLEMAN






For the Appellant: Mr G P McGowan, of Quinn Martin & Langan, Solicitors
For the Respondent: Mr M Matthews, Senior Presenting Officer


1. The Appellant is a citizen of Iran, born on 1st September 1988. He sought asylum when encountered by police on arrival in the UK in October 2012. He based his claim on conversion to Christianity.
2. For reasons explained in a letter dated 14th November 2012, the Respondent did not find it credible that the Appellant had any involvement in Christianity, or that he was detained by the Iranian authorities as a result.
3. First-tier Tribunal Judge Handley dismissed the Appellant’s appeal by determination promulgated on 21st January 2013. Unlike the Respondent, the judge accepted that the Appellant is a Christian convert. At paragraph 39, the judge found that while the Appellant had not been involved in evangelism, he had discussed Christianity and that information might have become available to the authorities, leading to their interest in him. However, at paragraph 42, he concluded that the Appellant “… was of no significant interest to the authorities as claimed”. The judge considered FS and others (Iran – Christian converts) Iran CG [2004] UKIAT 00303 at paragraph 44. He quoted the guidance that proselytisers, evangelists and church leaders would be at real risk of persecution, with the risk increasing the higher the profile and role. He continued:
The Appellant was not a church leader, a proselytiser or a high profile evangelist in Iran and has not sought to be so in the UK. He has produced little evidence that he has a prominent role in the Church of Scotland or that he feels compelled to share or expound his beliefs with others. I consider that the Appellant can and will behave in a cautious and in a quiet manner if … returned … [he] will be able to practise his religion as most Iranians converts do.
4. At paragraph 46 the judge considered HJ (Iran) v SSHD [2010] UKSC 31, and noted that Appellants could not be expected to conceal aspects of their sexual orientation which they are unwilling to conceal, even from those whom they knew might disapprove of it. The judge (by implication) accepted that the principle applies also to cases based on religion, but held at paragraph 47 that the Appellant would be able to practise his religion and attend church in Iran.
5. The Grounds of Appeal to the Upper Tribunal maintain that the judge failed to have regard to the Appellant’s evidence that he does spread his Christian views; that the judge failed to have regard to the proper test set out in the country guidance case, which is not restricted to a “high profile evangelist”; and that by suggesting that the Appellant would behave in a cautious and quiet manner if returned, the judge failed to have proper regard to HJ, “… which effectively abandons the suggestion of discreet living to avoid persecution”.
6. Mr McGowan drew attention to the note of proceedings he had kept in the First-tier Tribunal, a copy of which was annexed to the Grounds of Appeal. In oral evidence-in-chief the following emerged:
Q. How important is Christian conversion to you?
A. Christianity is my way of life and I have chosen to live my life.
Q. Could you go back to not living life as a Christian?
A. I don’t feel I am the same person … I have started to work in Christ.
Q. Do you evangelise?
A. Yes I share with my friends and people and tell them I have been changed.
Q. How important is that aspect of Christianity to you?
A. I want to share the peace of Jesus Christ in my heart. I can feel him in my heart, “You have to hunt people for me and claim my name”. I want to spread good news of peace.
Q. Could you do that in Iran without fear?
A. … I had problems … really hard to evangelise in Iran and to share faith with others especially non-Christians.
7. The note of evidence also shows that when questioned by the Immigration Judge the Appellant said that he shares his faith with friends. He was asked whether he engaged in any evangelical activities not involving friends in Scotland, and replied:
… with Iranians we share the same language. My English is not good enough. I have introduced a mutual friend to our church and twice he came with me to the church. For the time being I have to talk to Iranians but in future I will try to … [talk to others?].
8. Mr McGowan submitted that the above evidence was overlooked in the determination. The country guidance was to the effect that risk increased with a high profile, but not that an Appellant had to be a high profile evangelist. The finding that the Appellant would practise his faith in a cautious and quiet manner was problematic. It might be interpreted as meaning he would do so for fear of the consequences. Thus, the judge cited HJ but overlooked its principles. The determination should be set aside. Even on the evidence which had been before the First-tier Tribunal, the decision should have been in the Appellant’s favour. If remaking the decision, the Appellant would also seek to rely on evidence which had not been available at the time of the hearing in the First-tier Tribunal. This comprises a certificate dated 3rd March 2013 of his baptism in the Glasgow Iranian Church on 24th February 2013, and a letter of support dated 19th May 2013 from the Pastor of the Glasgow Iranian Church.
9. Mr Matthews accepted that the principles of HJ and HT apply to a case in the category of religion. He acknowledged that the gist of the evidence and the findings was not that the Appellant would behave quietly and discreetly due to his own nature and inclination, but rather for fear of the consequences. This suggested that either the judge overlooked the Appellant’s evidence that he would evangelise, even if at a low level, or the judge misapplied the legal test. The judge made favourable findings on the Appellant’s Christian conversion, following a hearing at which the Secretary of State was not represented, and those findings could not now be revisited. Mr Matthews also pointed out that in his statement taken on 16th December 2012 the Appellant said:
Although I lied to the authorities when in detention in Iran about not having converted, I do not know how much longer I can maintain that position if I was to be tortured. In any event, I do not feel that I should have to lie about the basis of my faith.
10. That was another item of evidence about the Appellant’s intentions and wishes if returned to Iran which had been overlooked by the judge.
11. Based upon the analysis of the evidence presented by Mr McGowan and also, fairly and correctly, by Mr Matthews, I indicated that the decision of the First-tier Tribunal would be reversed.
12. The First-tier Tribunal erred in law, for the reasons advanced in the grounds and submissions summarised above. The determination is set aside. The findings of the First-tier Tribunal, to the extent that they were favourable to the Appellant, stand. Based on those findings, factoring in the evidence which was overlooked, and applying the legal test correctly, the appeal should have succeeded. In remaking the decision, it is appropriate to look also at more recent evidence, not available at the time of the First-tier Tribunal. That reinforces the conclusion in the Appellant’s favour. The decision is remade by allowing the appeal, as brought to the First-tier Tribunal, on Refugee Convention grounds.
13. No order for anonymity has been requested or made.

4 June 2013
Upper Tribunal Judge Macleman