Tribunal decisions

The decision

ST

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01549/2015

THE IMMIGRATION ACTS

At North Shields
on 8th November 2016
Decision and Reasons Promulgated
on 11th November 2016

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

H.K.M
(ANONYMITY DIRECTION MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

Representation:
For the Appellant: Ms Cleghorn, Counsel instructed by Halliday Reeves Law Firm
For the Respondent: Mr Diwnycz, Home Office Presenting Officer.

DECISION AND REASONS
Introduction
1. The appellant is an Iranian national born in April 1989. He is of Kurdish ethnicity and lived with his parents and siblings in the Kershanshah Province.
2. He claimed he made a living smuggling alcohol from Iraq. He decided to stop doing this before he was caught. He then became involved in distributing leaflets promoting Kurdish rights. He subsequently learnt the leaflets were being produced on behalf of the PJAK. One night whilst distributing leaflets he encountered the Iranian authorities but managed to evade them. He then left his country and arrived in the United Kingdom.
3. When he came to the United Kingdom he met other Iranians who introduced him to the Baptist Church. Although raised a Muslim he said he had a weak faith and he subsequently converted to Christianity. Since being in the United Kingdom he has engaged in Facebook activity involving references to Christianity and criticism of the Iranian regime.
4. He made a claim for protection based upon this background. This was refused by the respondent on 19 September 2015 mainly on credibility grounds.
The First Tier Tribunal
5. His appeal was heard by Judge of the First-tier Tribunal James on 21 June 2016. In a decision promulgated on 5 July 2016 his appeal was dismissed. At paragraph 44 the judge concluded the appellant would not be of interest to the Iranian authorities on account of his claimed smuggling activities as he had never been caught. The judge did not accept the claim of distributing leaflets.
6. Turning to the appellant's religious conversion the judge at paragraph 47 onwards said:
"47. ? I have been greatly assisted by the evidence of the Reverend Taylor-Black. I was impressed by the manner he gave evidence and that he did not appear to over emphasis his firm belief that the Appellant had become a committed Christian. I have noted that the amount of time the Appellant was required to undertake the Alpha course and the baptism course was not significant. I have also noted that the Senior Minister Waugh indicated that determining whether a person has truly converted to Christianity is difficult to verify simply from the observance of religious practice. However, taking the evidence in the round I am satisfied that the appellant would be considered to be a convert to Christianity by the Iranian authorities. However I have noted that he does not appear to undertake proselytising or any other form of missionary activities. He has helped within the church but does not appear to be working to convert others to Christianity.
48. I have considered the entries in the Appellant's Facebook pages. There are almost exclusively images from other sources rather than his own work. For the most part they are entries showing Christian faith. However, there are several entries showing executions in Iran to which he has added disapproving comments.
49. I have considered whether the Appellant would face a real risk of persecution or ill-treatment on return to Iran as a result of his Christian faith or his Facebook activities. I have been referred to FS which was confirmed in SZ. I have been referred to paragraph 190 of the decision in FS but this provision must be read in the context of paragraphs 186 to 190 read together. Paragraph 187 states:
"For the ordinary convert, who is neither a leader, lay or ordained, nor a Pastor, nor proselytiser or evangelist, the actual degree of persecution or treatment breaching Article 3 is not sufficient to warrant the protection of either Convention. The reality is that a social and economic life can be maintained; Christianity can be practice, if necessary, cautiously at times, by church attendance, associated with Christians and Bible study."
50. Based upon the evidence before me I find that the appellant is an ordinary convert. I have noted that where an ordinary convert has additional risk factors there may well be a real risk of persecution or mistreatment. Having found that the appellant was not known as an alcohol smuggler and that I do not accept that he was a political activist, the final matter that I must consider is whether his Facebook activities create an additional risk factor.
51. I have been referred to the extensive decision in AB. I note the references provided by the Appellant and have taken them into account. I have also noted the conclusions in paragraphs 466 to 472 of that decision. I have noted that where a person returns to Iran after a prolonged period in the UK there is a risk that they will be asked about their Internet activity. I have noted the`pinch point' on return to Iran and the fact that a person returning on a special passport may attract`enhanced interest'. Furthermore I have noted that a person returning to Iran after a reasonably short period of time with an ordinary passport having left illegally would almost certainly not attract particular attention. The appellant has been in the UK just over a year which I consider to be a reasonably short period. I do not know if he has an Iranian passport or if we would need to use a special passport which makes it more likely that the Iranian authorities would take interest in him. The Appellant has not been particularly active on the Internet. It is limited to social media.
52. Based upon the conclusions in AB, looking at the evidence in the round and using the lower burden of proof I am satisfied that due to the short-term the appellant has been in the UK and the limited Internet activity he would not face a real risk of persecution on return to Iran. He would be viewed as an ordinary convert to Christianity ?"
The leave applications
7. The application for leave to appeal to the Upper Tribunal was focused upon the conversion. It was submitted that Judge of the First-tier Tribunal James erred in concluding the appellant was an `ordinary convert' and concluding that as such the appellant would practice his faith cautiously. It was also argued that the judge failed to consider the church as being a sacrament-based church and in categorising the appellant's Internet activity as limited.
8. Allied to this was the judge's acceptance of the evidence of Rev David Taylor Black and the document provided by Senior Minister Waugh .The ministers referred to the appellant encouraging others to consider the Christian faith and that members of the Baptist Church should speak to others about their beliefs. There was reference to the appellant sharing his faith with other Iranians and inviting them to the church. The Rev Andrew Waugh referred to the biblical duty of every Christian to encourage others to believe. The acceptance of their evidence by the judge was arguably inconsistent with the conclusion that the evidence did not suggest the appellant would seek to convert others. It was contended therefore that the appellant was not an `ordinary convert' within the meaning of the case law. Finally it was contended that the judge did not properly evaluate the risk from the appellant's Facebook activity. The fact some of the postings where from third parties did not remove the risk created by the content.
9. The application for leave made to the First-tier Tribunal was refused. The refusal reasons commented that the appellant's discussions about Christianity with other church members and Iranians who had already shown an interest in Christianity did not mean he would seek to evangelise or proselytise on return.
10. In a renewed application directly to the Upper Tribunal it was submitted that the Iranian authorities would be unlikely to draw such a distinction between the types of person approached.
11. Permission to appeal was granted by Upper Tribunal Judge O'Connor on the basis it was arguable that the conclusion that the appellant would not proselytise was inadequately reasoned and irrational in light of the accepted evidence.
At hearing.
12. The respondent filed a rule 24 response. It was of a general nature and submitted that the First-tier Tribunal Judge directed themselves appropriately and followed the relevant country guidance.
13. Ms Cleghorn indicated that she had drafted the renewal leave application and adopted the arguments advanced there. She submitted that the appellant would be at risk on arrival and if he managed to gain entry safely would remain at risk because of his Christianity. She submitted there was no basis for the judge to conclude the appellant was an ordinary convert. There followed some discussion between the representatives as to the meaning of the concept of an ordinary convert.
14. Both representatives agreed that should I find an error of law I was in a position to remake the decision.
Consideration
15. The First-tier Judge had found as a fact that the appellant would be considered as a convert to Christianity by the Iranian authorities. The judge also accepted the evidence from the Ministers in the Baptist Church which included testimony and letters submitted.
16. Reference was made in the First-tier Tribunal to paragraphs 186 onwards of the decision of FS and other's (Iran- Christian Converts) Iran CG [2004] UKAIT 00303. References are made to an ordinary convert who is neither a leader, lay or ordained, or who proselytises or evangelises. Paragraph 25 of the country guidance decision makes a distinction between the centuries old ethnically based Christian churches in Iran which did not proselytise and rarely admitted converts from more recent Protestant or evangelical churches. The tribunal concluded that Christians who are not converts from Islam but who are members of ethnic minority churches were not persecuted but did experienced discrimination. The focus in the country guidance was upon the latter. The guidance referred to the country information and the harsh response that any attempt of proselytising of Muslims. Apostasy is punishable by death albeit there was no evidence of any executions. Paragraph 190 said that there would be a real risk if there were additional factors not necessarily related to religion then the danger was increased.
17. The decision of SZ and ZM (Christians -FS confirmed) Iran CG [2008] UKAIT 00082 had the benefit of the decision given on remittal from the Court of Appeal to the AIT in HJ Iran [2008] UKAIT 00044. Since then the Supreme Court has taken a broader approach to why a person would be discrete. SZ and ZM was considering developments Iran since FS and others. Paragraph 79 on the decision questioned whether there is in reality a distinction between ordinary converts and others. There was a discussion about what was meant by proselytising and evangelical churches with the conclusion being that the distinction could be blurred. The tribunal acknowledged that Christians are required to spread the word though some are more evangelical than others. The tribunal conclusion was that whether someone was an `ordinary convert' will depend on its own facts.
18. The decision of First-tier Tribunal Judge James has obviously been carefully prepared. However, having found as a fact the appellant would be considered a convert to Christianity by the Iranian authorities and having accepted the evidence of the Ministers in the Baptist Church the judge failed to analyse the meaning of an ordinary convert and why the appellant would not be at risk through either proselytising or other features specific to him. Given this became then a central issue I find a material error of law.
19. The letters of support from the church in the file also includes post-hearing evidence about his baptism. There is evidence from the church that they regularly have a remembrance service of the Lord's Supper. The Ministers pointed out it is important that Christians meet regularly for practical and spiritual guidance. The Ministers indicated he was a regular attendee who had undertaken an 11-week course. The church would be looking for signs of commitment and for any contra indicators in his lifestyle. The Rev David Taylor Black said that the appellant shared his faith with other Iranians and invited them to the church.
20. I remake the decision bearing in mind the evidence of the Ministers about the appellant's activities and the Supreme Court guidance in HJ Iran in relation to why a person would act the way they would.
21. I have also seen the Facebook postings in the file. They do link the appellant with Christianity and ridicule of the regime in Iran. Whilst the content is fairly basic nevertheless it would heighten his profile. A further feature which makes him vulnerable is the fact he is Kurdish. This will be relevant in relation to how he would be treated by the authorities. For these reasons I find there is a real risk if he is returned to Iran.

Decision.
The decision of First-tier Tribunal Judge James dismissing the appellant's appeal contains a material error of law and cannot stand. I set it aside and remake the decision, allowing the appeal.

Deputy Upper Tribunal Judge Farrelly