Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/11005/2015
AA/11024/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision & Reasons Promulgated
On: 7th November 2016
On: 8th November 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Secretary of State for the Home Department
Appellant
And

RT+1
SS
(anonymity direction made)
Respondent

For the Appellant: Mr Singh, Senior Home Office Presenting Officer
For the Respondent: Mr Bradshaw, Counsel instructed by Oaks Solicitors

DECISION AND REASONS
1. The Respondents are all nationals of the Islamic Republic of Iran. RT is a woman aged 41. Her dependent is her daughter, a minor upon application but now an adult. SS is her niece, born in 1997. On the 31st May 2016 the First-tier Tribunal (Judge Lever) allowed their linked appeals against decisions to refuse to grant protection. The Secretary of State now has permission to appeal against the First-tier Tribunal's decision.
2. The matter in issue before the Tribunal was whether the then appellants had a well-founded fear of persecution for reasons of their religious belief. All three professed to having converted from Shi'a Islam to Christianity. Judge Lever heard evidence about their claimed faith from the witnesses, and from a Reverend Finton, formerly the Rector of Bury, who had conducted their baptisms. Having heard that evidence Judge Lever was satisfied that the conversions were genuine and that the women would be at risk in Iran as a result. The appeals were allowed.
3. The Secretary of State sought permission to appeal on the grounds that the First-tier Tribunal had not properly considered or applied the country guidance case of SZ and JM (Christians, FS Confirmed) Iran CG [2008] UKAIT 00082. Permission was granted by First-tier Tribunal Judge Pedro on the 23rd June 2016.

My Findings
4. The grounds cite the following passages from SZ and JM:
"140. In conclusion, the question of whether someone is an "ordinary convert" in each case will depend on its own facts. There should not be findings based solely on the denomination of the church which a person has joined. They must also be based on the evidence as to his own conduct as it will manifest itself in Iran. When deciding whether a convert is genuine, it is important to take care because, as we set out earlier in this determination, one individual's view as to how another person may perceive, or practice, or understand Christianity may be very different from the reality in another denomination, country or community. Insofar as it is necessary to consider whether it would be persecutory to expect an individual returning to modify his behaviour, the Tribunal has now promulgated HJ (homosexuality: reasonably tolerating living discreetly) Iran [2008] UKAIT 00044 which deals with that issue. The Tribunal identified a two stage approach. The first is to decide how it is likely a possible returnee will behave. That question must be decided from the evidence and facts of each case including the way in which the person has behaved up until the present. It should not be based on how it is thought an individual should behave. The Tribunal described a factual and not a normative approach. The second stage is a test to decide whether that would entail that person having to live a life that he could not reasonably be expected to tolerate because doing so would entail the suppression of many aspects of his identity (which is an objective test). In HJ it was the sexual aspects of that appellant's identity, here it would be the religious aspects. HJ was recently cited without comment by the Court of Appeal in XY (Iran) v Secretary of State for the Home Department [2008] EWCA Civ 911.
?
146. We are conscious of the fact that some of the "ordinary converts" who have been caught up with the authorities have been severely mistreated. We have in mind the man in the car. As we have said, it is extremely difficult to predict under what circumstances this kind of incident might arise, and to a very large extent it seems to be chance. In our judgment the number and frequency of these events is not such as to show that there is a real risk of serious mistreatment to those who are not seen as the more active convert, Pastor, church leader, proselytiser or evangelist (FS and Others Para 189). We add that church leaders would certainly include those leading house churches. We say that because the incidents are still not large in number but also do not always result in serious harm which would amount to persecution or Article 3 mistreatment.
148. It remains our view that for the ordinary convert (within the meaning which we have slightly modified from FS and Others) that there is a risk, but not a real risk, of serious harm if returned to Iran. We do not demur from the concept of the added risk factor as referred to in FS and Others.
[emphasis in original]
5. In light of that guidance Secretary of State makes the following submission about the approach taken by Judge Lever: "the IJ has failed to consider whether or not the Appellant's would proselytse on return, particularly given the second Appellant's evidence at paragraph 18, that on return to Iran she would practice Christianity at home".
6. I am very surprised to see these grounds being argued, and indeed permission being granted. The decision in SZ and JM was heard in May 2008. As set out above, the approach the Tribunal took on that date was, quite understandably, that taken by another panel of the Upper Tribunal in HJ (homosexuality: reasonably tolerating living discreetly) Iran [2008] UKAIT 00044. The test applied in that case had been whether or not a gay man could reasonably be expected to tolerate living discreetly in his country of origin. The Tribunal in SZ transposed this reasoning to Christians. If a Christian could be reasonably expected to tolerate concealing his faith, his asylum case failed. That approach was followed by the Court of Appeal in HJ but not, as I think is now well known, by the Supreme Court, who held that the test was misconceived and contrary to the fundamental principles of the Refugee Convention. The test to be applied was in fact whether the person concerned would act discreetly and whether any part of his decision to do so was a well-founded fear of persecution. The grounds make reference to the second Appellant's evidence that if returned to Iran she "would practise Christianity privately at home?". The Secretary of State has omitted to cite the rest of the sentence at the end of paragraph 18: "?as she would be frightened to practise it openly". This evidence reflected that of both appellants before the First-tier Tribunal. They had converted to Christianity and in doing so knew that they had committed what is considered to be a capital offence in Iran, namely abandoning Islam. As apostates they would live with the knowledge that they faced the death penalty if their conversion came to light. They could not therefore practise their faith openly. Since it is not in issue that their fear would be well founded, it follows that Judge Lever was quite correct to have allowed the appeals on asylum grounds.

Decisions
7. The determination of the First-tier Tribunal contains no error of law and it is upheld.
8. There is an order for anonymity.

Upper Tribunal Judge Bruce
7th November 2016