Tribunal decisions

The decision

IAC-AH-CO-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00473/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Decision & Reasons Promulgated
On 11 January 2017
On 20 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

ra (IRAN)
(anonymity direction made)
Appellant

and

Secretary of state for the home department
Respondent

Representation:

For the Appellant: Mrs Arnela Imamovic, Counsel, instructed by TRP Solicitors
For the Respondent: Mr D Mills, Specialist Appeals Team

DECISION AND REASONS

1. Pursuant to Rule 14(1) of the Upper Tribunal Procedure Rules, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. Failure to comply with this direction could lead to contempt of Court proceedings.

2. The appellant appeals from the decision of the First-tier Tribunal which dismissed his appeal against the decision of the Secretary of State to refuse to recognise him as a religious refugee from Iran, on account of his claimed conversion to Christianity. Although the First-tier Tribunal did not make an anonymity direction, his sur place claim is such as to require him to be accorded anonymity for these proceedings in the Upper Tribunal, irrespective of the merits of the sur place claim.
The Reasons for Appealing
3. The appellant applied for permission to appeal on a narrow ground. In the reasons for appealing settled by his new solicitors, they pleaded that the Judge had erred in law in paragraph [29] of his decision, in finding that the appellant could "change his Facebook page". They pleaded that there were two errors here:
(a) the appellant's Facebook page is open and available to the Iranian cyber police: changing it will not eliminate any risk to the appellant arising from its existence;
(b) the Judge appears to concede that the appellant might be a Christian, but that if he is, his conviction is not so great that he would not be in a position to change his Facebook page. This is an opaque distinction and renders the entire determination unsafe.
The Reasons for the Grant of Permission to Appeal
4. On 22 June 2016 Judge Page granted permission to appeal for the following reasons:
The appellant has identified an arguable error that could have made a material difference to the outcome. The judge found that the appellant's activities in relation to the Christian Evangelical church in the United Kingdom [were] designed to support his claim for asylum. The judge did not find the appellant credible. However, the judge has referred to evidence that the appellant has placed on the internet, on his Facebook page?a photograph of the appellant with a large crucifix?The second error argued for is that the judge appear to concede that the appellant might be a Christian. I am not sure that is correct because the judge has not found the appellant credible. If in any event, the two alleged errors are geared to the same ground of appeal that the appellant would be at risk by reason of his Facebook page.
Relevant Background
5. As summarised in the decision letter of 3 July 2015, the appellant's claim was that in Iran he had converted from being a Shia Muslim to being a Protestant Christian. He had attended a house church. He decided to leave Iran after his neighbour became aware that he converted to Christianity as she came to the family home and saw his copy of the Bible. At the time of his substantive interview, he said that he had been attending church in the UK on a weekly basis, but he apparently did not know the name of the Church, or its address. His expressed fear on return was that the Iranian authorities would arrest him for having converted to Christianity.
6. The Secretary of State did not accept the appellant's core claim. This was because there were asserted inconsistencies in his account of his conversion to Christianity in Iran, and also because his ignorance of basic and fundamental aspects of the Christian faith was inconsistent with him having genuinely converted to Christianity. In summary, it was accepted that he had left Iran illegally, but it was not accepted that he had done so because he had converted from Islam to Christianity and his neighbour became aware of his conversion.
7. On the issue of risk on return, consideration was given to the case law of SZ & JM (Christians - FS confirmed) Iran CG [2008] UKAIT 0082. This stated that it must be assessed that a Christian convert will be at real risk of coming to the attention of the authorities. As his conversion to Christianity has been rejected, it was not accepted that he was at risk of the authorities on return to Iran.
The Decision of the First-tier Tribunal
8. The appellant's appeal came before Judge Barber sitting at Sheldon Court in Birmingham on 17 February 2016. Mrs Christopher, of the Immigration Advice Service appeared on behalf of the appellant, and the respondent was represented by a Home Office Presenting Officer. Mrs Christopher tendered a skeleton argument setting out the appellant's case on appeal, to which I shall refer in due course. The Judge received oral evidence from the appellant and from Ms Susan Harvey of the Evangelical Church who informed the judge about the church activities in which the appellant had been participating.
9. In his subsequent decision, the Judge gave his reasons at paragraphs [8]-[19] for finding that the appellant had not converted to Christianity in Iran. At paragraphs [20]-[23], the Judge addressed the question of whether the appellant had subsequently converted to Christianity following his arrival in the UK. The Judge noted that the appellant attended the Evangelical Church close to where he lived, and that he had changed his Facebook profile photograph to show him standing next to a large crucifix relating to that church. He had also included in the papers before him various photographs showing him evangelising on behalf of the Christian faith. However, as he found that the appellant was prepared to embellish his evidence in relation to events in Iran, to the extent of even telling him "falsely" that his siblings had died while crossing the sea, he took his claim to be an "active and faithful" participant in the Evangelical Christian community with some scepticism.
10. At paragraph [22], he said that he had come to the conclusion that the appellant had probably decided to attend Ms Harvey's church and participate in church activities "solely with the intention of supporting his claim to asylum". The Judge said that he did not make this finding lightly. But there were considerable problems with his credibility:
?which I think demonstrate clearly the appellant is well aware that claiming to be a Christian convert is one of the possible ways of securing refugee status as an Iranian national in the UK. It follows that I think his actions since arriving in the UK and associating with this church have all been designed to further that end.
11. The Judge addressed the issue of risk on return at paragraphs [26] to [30]. At paragraph [26], he said that given his above findings and considering the decision in SZ & JM (Christians - FS confirmed) CG [2008] UKAIT 0082, he was satisfied that there was no risk upon return to Iran.
12. At paragraph [27], he said that, having considered the guidance in the earlier case of FS and Others (Iran Christian Converts) Iran CG [2004] UKAIT 00303, it seemed to him that even if the appellant would wish to maintain a Christian conviction upon return to Iran, he would fall into the category of an ordinary convert, and accordingly the actual degree of risk of persecution or treatment reaching Article 3 was not sufficient to warrant the protection of the Refugee or Human Rights Convention. He quoted the following passage from FS:
The reality is that a social and economic life can be maintained; Christianity can be practised, if necessary, cautiously at times, by church attendance, association with Christians and Bible study.
13. At paragraph [29] the Judge said as follows:
It was submitted that the current internet evidence in relation to the appellant is now sufficient to substantiate a risk upon return when AB & Others (Internet activity - state of evidence) Iran [2015] UKUT 00257 is taken into account. However, as far as I can see, the internet evidence is the appellant's Facebook page. As will be apparent from my findings of fact, I have come to the conclusion that the appellant's activities in relation to the Christian Evangelical Church in the UK have been designed to support his claim to asylum. With this in mind, I can see no reasonable reason why he should not amend his Facebook page to get rid of the large crucifix next to his photograph and any associated Christian photography. Given the appellant's propensity to fabricate evidence I can see no reason, even if he is a Christian, that would lead me to the view that his conviction is so great that he would not be in a position to change his Facebook page.
The Hearing in the Upper Tribunal
14. At the hearing before me to determine whether an error of law was made out, Mrs Imamovic drew my attention to various passages in AB in support of the proposition that the Judge had not given adequate reasons for finding that there would be no risk to the appellant on account of his open Facebook page, even if he changed his profile before he returned to Iran. She submitted that the Judge had also misdirected himself on the relevant considerations as to risk on return. Paragraph 3.14 of the policy summary contained in the Country Information and Guidance on Christians and Christian converts in Iran dated December 2015 states:
Christians who have converted from Islam are at real risk of persecution in Iran, and a grant of asylum is likely to be appropriate.
15. Mrs Imamovic further submitted that the Judge appeared to concede both in paragraph [29], and earlier in paragraph [24] that the appellant was at least an ordinary convert, and therefore the proposition that he should be discrete about his Christian faith on return to Iran by, among other things, amending his Facebook profile, was contrary to HJ (Iran) v SSHD [2011] I AC 596.
Discussion
16. In her reasons for granting permission to appeal, Judge Page expressed disagreement with the proposition that the Judge had found that the appellant was a half-hearted convert to Christianity who would be, or should be, content to follow Christianity discretely in Iran. The contrary proposition advanced by Mrs Imamovic gains some traction from the following passage in paragraph [24] of the decision, where the Judge states his conclusions on the evidence:
The appellant is now an active participant in Evangelical Church activities in the UK but I do not accept that this is arising out of any particular ecumenical conviction or arising out of any Christian conviction which started in Iran. I think that any activity carried out in the UK for the Church has to a large extent been driven by the appellant's desire to support his claim to asylum and therefore should be considered in that light.
17. The deployment of the phrase "to a large extent" introduces the possibility that to a minor extent the church activities carried out in the UK have been driven by a genuine belief in Christianity. However, the Judge's other pronouncements on the topic of the genuineness of the appellant's alleged conversion to Christianity are entirely unequivocal. It should not lightly be inferred that the Judge has blatantly contradicted himself. I consider that the passage in question is also reasonably susceptible of another interpretation which is compatible with the unequivocal findings stated elsewhere. At paragraph [22], the Judge refers to evidence from Ms Harvey that some one hundred Iranians attended her Church to worship on a regular basis, and that the Church services were conducted in Farsi. So, if the Judge had in mind that the appellant was also motivated to a minor extent by the benefits of social interaction with fellow Iranians, this would not be inconsistent with his parallel finding that the appellant does not have a genuine Christian faith.
18. Accordingly, I find that the second asserted error in the application for permission to appeal is not made out. The entire decision is not rendered unsafe by the Judge not having made clear findings on the central question of whether the appellant is or is not a genuine Christian convert. It is tolerably clear that the Judge did not find the appellant credible in his claim to have converted to Christianity, either in Iran or following his arrival in the UK. Accordingly, his primary finding on risk on return is that set out at paragraph [26], which mirrors what the respondent said in the decision letter. He was not a Christian convert and so, following SZ & JM, he would not be at risk on this account on his return to Iran.
19. In paragraphs [27] and [29], the Judge adopted what could be described as a 'belt and braces' approach, which was to consider risk on return on the alternative basis that (contrary to his primary findings of fact) the appellant was a genuine Christian convert. This brought into play the Country Guidance case of FS & Others (Iran - Christian converts) Iran CG [2004] UKIAT 00303, an extensive passage from which is cited at paragraph 30 of Mrs Christopher's skeleton argument. The Judge quoted from this passage in paragraph [27].
20. Mrs Imamovic criticises the Judge for drawing a distinction between ordinary Christian converts and, "a more active convert, pastor, church leader, proselytiser, or Evangelist", whom the Tribunal in FS held would be at real risk. But her criticism overlooks the fact that the Judge addressed the case that was put to him by Mrs Christopher. Also, the Judge was not clearly wrong to proceed on the basis that this Country Guidance case was still applicable. The bundle of background material placed before the Judge included the Finnish Immigration Service report on Christian converts in Iran dated 21 August 2015. On the topic of the risk on return for Christian converts (Appellant's bundle, page 201), the report says as follows:
No research data on the return of Christian converts to Iran is available, but the common perception is that they will get into trouble mainly if they try to proselytise or otherwise make their religious views public. The state's interest is focused more on the public practice of religion and proselytising than on one's private convictions.
21. At paragraph [29] of his decision, the Judge is addressing two strands of the case that was put to him by Mrs Christopher. The first strand is contained in paragraphs [23] and [24] of her skeleton argument. She submitted that the appellant could not be said to be an ordinary citizen who had converted to Christianity, as defined by the case of FS & Others. It could be seen from his Facebook post that he held a genuine desire to share his views regarding Christianity, and that he shared his views in a very public way. So it would be a breach of his human rights to expect him to conceal his religious beliefs in order to preserve his life and safety on return to Iran.
22. The second strand of the appellant's case is contained in paragraph [32] of Mrs Christopher's skeleton argument. She submitted that, as part of the investigations that would be carried out by the authorities on the appellant's return to Iran, it was reasonably likely that the authorities would demand of the appellant the password to his Facebook account. Mrs Christopher then goes on to cite paragraph [467] of AB as follows:
The mere fact that he had been in the United Kingdom for a prolonged period does not lead to persecution. However, it may lead to scrutiny and there is clear evidence that some people are asked about their Internet activity and particular for their Facebook password. The act of returning someone creates a "pinch point" so the person is brought into direct contact with the authorities in Iran who have both the time and inclination to interrogate them. We think it likely they will be asked about their internet activity and likely if they have any internet activity for that to be exposed, and if it is less than flattering of the Government to lead to at the very least a real risk of persecution.
23. Given the Judge's core finding that the appellant is not a genuine Christian, and that his sur place activities have been conducted in bad faith, it was not an error of law on his part to hold that the appellant could and should amend his Facebook profile, and delete all Christian material on his Facebook account, so as to avoid the scenario raised by Mrs Christopher.
24. It is argued by way of appeal that the Judge erred in law in not considering whether there was a real risk to the appellant on return consequential upon him having already openly proselytised on the internet. However, Mrs Christopher did not submit that there was a risk per se to the appellant on return to Iran on account of his sur place activities. She relied on his sur place activities as evidence of him being more than an ordinary convert, not on the basis that there was a real risk that his sur place activities would have already come to the adverse attention of the Iranian cyber police.
25. The headnote of AB reads as follows:
The material put before the Tribunal did not disclose a sufficient evidential basis for giving Country or other Guidance upon what, reliably, can be expected in terms of reception in Iran for those returning otherwise than with a "regular" passport in relation to whom interest may be excited from the authorities into internet activity as might be revealed by an examination of blogging activity or a Facebook account.
26. At paragraph [453], the Tribunal accepted that some monitoring of activities outside Iran is possible and that it occurs. But they were not able to say what circumstances, if any, enhanced or diluted that risk. At paragraph [460], the Tribunal said:
Overall, it is very difficult to make any sensible findings about anything that converts a technical possibility of something being discovered into a real risk of it being discovered?We find that our main concern is the pinch point of return.
27. At paragraph [461], the Tribunal held that the more active the person has been on the internet, the more likely the authorities would become interested and pursue their investigations at the pinch point of return.
28. Reliance by way of appeal is placed on the fact that the appellant has an open Facebook page, with the consequence that his Facebook profile showing him standing next to a crucifix is accessible without the requirement of a Facebook password. But this does not appear to have been a point taken by Mrs Christopher. Moreover, no evidence was placed before the First-tier Tribunal to show that the appellant had thereby acquired a significant public profile as a Christian proselytiser. Aside from information about the number of "likes" for various posts (and it is not clear whether these posts are also open), there was no information about the total number of hits on his open Facebook page, or as to the number of his regular followers, or as to the ease with which his profile could be accessed through the use of a search engine. Also, given that the appellant was not criticising the Government of Iran on his open Facebook page, it is a matter of speculation as to whether the contents of the appellant's Facebook page would be a matter of adverse interest to the Iran cyber police. The focus of enquiry in AB was on political blogging about which the Iran authorities are particularly sensitive. AB did not purport to address the question of whether there is any interest on the part of the Iranian authorities in monitoring the expression of religious views by Iranians who are outside Iran.
29. Accordingly, I do not consider that the Judge erred in law in not considering of his own motion the issue of whether the appellant's open Facebook page had already engendered a real risk for him on return to Iran. It was open to the Judge to proceed on the premise that the risk would not materialise until the pinch point of return, and that the appellant could reasonably take preventative steps to eliminate the risk.

Notice of Decision

The decision of the First-tier Tribunal did not contain an error of law, and accordingly the decision stands. This appeal to the Upper Tribunal is dismissed.

Signed Date

Judge Monson

Deputy Upper Tribunal Judge