Tribunal decisions

The decision

IAC-AH-VP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02146/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 January 2017
On 15 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ESHUN

Between

a f
(ANONYMITY DIRECTION MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr E Nicholson, Counsel
For the Respondent: Mr T Wilding, HOPO

DECISION AND REASONS
1. The appellant is a citizen of Iran born on 13 March 1995. He has been granted permission to appeal the decision of First-tier Tribunal Judge D Barker dismissing his appeal against the refusal of the respondent on 16 February 2016 to grant him asylum in the UK.
2. The appellant claims to have entered the UK on 22 March 2011. He claimed asylum on 30 March 2011. His application was refused on 15 November 2013. His appeal against that decision was dismissed on 7 August 2014. He sought permission to appeal to the Upper Tribunal and this was granted on 7 November 2014. His appeal however was dismissed at the Upper Tribunal hearing on 5 December 2014.
3. The appellant subsequently submitted further submissions in relation to his asylum claim on 15 February 2016. An asylum decision letter was issued on 17 February 2016. A notice of appeal was lodged on his behalf on 2 March 2016. It was this appeal that led to the decision by First-tier Tribunal Judge Barker.
4. The appellant's claim for asylum is based upon his Christian religion and upon his having converted from Islam to Christianity. In his evidence he explained that he came into contact with Iranian Christians in 2011 in the United Kingdom when he was 16. He had moved to Croydon and had been advised to get in touch with local community groups. He attended the Elim Iranian Church in Croydon where he met Reverend Milton Danil. In February 2014 he began attending Purley Baptist Church and that is where he met Reverend Nodding. In March 2014 he began undertaking a course for baptism which took place on Sundays after the services. Having successfully passed an exam following his studies, he was baptised on 20 April 2014 at Purley Baptist Church.
5. In June 2014 he began attending the Iranian church in Croydon again. Since June 2014 he has been attending regularly and attends every Sunday as well as Wednesdays where he attends house meetings. Soon after attending the Iranian church he began evangelising with a friend and other members of the Iranian church. He tries to evangelise publically approximately once a week. He has converted seven people to Christianity due to him speaking to them and of these four attend the Iranian church regularly. He stated that he is a devout Christian who is actually evangelising and cannot continue this practice in Iran as he will be persecuted or killed.
6. The appellant's conversion and his evangelism was supported by Reverend Danil's evidence, as well as by all of the other evidence provided by the appellant in support of his fresh asylum claim, none of which was before the First-tier Tribunal at the appellant's earlier appeal. In his written and oral evidence, the Reverend Danil confirmed the appellant's evidence as to his attendance at bible study classes held by Reverend Danil's wife on Wednesday evenings. The judge had before him a statement dated 19 January 2016 by Arianna Ilangantileke, the appellant's key worker/mentor at the "my life semi independent project". Miss Ilangantileke also provided an updated statement dated 25 July 2016 in which she described seeing a video taken at the appellant's recent birthday lunch which was attended by about twenty members of the congregation of the Iranian church. Miss Ilangantileke said that Christianity had played a crucial role for the appellant since his conversion.
7. The judge noted that the appellant's present appeal was based solely on his claim that he is in fear of persecution because of his conversion to the Christian faith from Islam.
8. The earlier decision of Judge Phillips was that the appellant was not credible, that the political activities were not proved and the judge was not convinced of the genuineness of the appellant's conversion. The Secretary of State relied on those decisions and in particular stated that the appellant had not provided sufficient evidence of his practices as a Christian or evidence to the contrary of the Immigration Judge's findings.
9. In compliance with Devaseelan v SSHD [2002] UKIAT 702, the judge directed himself that the starting point for such a case was the previous findings of First-tier Judge Phillips made in his decision of 7 August 2014.
10. Following consideration of the evidence, the judge held as follows:
"41. I remind myself that the burden of proof is upon the appellant. The evidence provided to me has areas which conflict with one another and some which are not consistent with someone who has converted to the Christian faith. The appellant and the other witnesses have given different accounts of the events. There is a different explanation by the appellant and his sister as to why they went to the Purley Baptist Church. Purley Baptist church was further from North London where he was residing than the Iranian church and the explanations are not satisfactory in relation to his non-attendance for 12 months. However, he has been consistent in his evidence that he has attended for the last 2 years and this has been supported, to some extent, by the pastor. I find that I must treat the pastor's evidence with caution in that his recollection of dates is not good and the date that he gave for the appellant's baptism was in the wrong year in his earlier letter. I will accept however that the appellant has been attending the church for two years since the last determination. The more difficult question is whether the appellant has genuinely converted to the Christian faith. On both occasions that he started to attend church the appellant has shown a determination to become baptised as soon as possible. The pastor did not recall the request to be baptised at the Iranian church but the Purley Baptist Church has documented it and a baptism certificate had been provided. Reverend Danil also said that the appellant had not explained why he did not attend for 12 months whereas the appellant said that he had. The appellant was found not to be credible and did not persuade the previous judge that he was genuine in his commitment to the Christian faith. The appellant was able to give a very brief outline of the basis of the Christian faith in terms of the son of God in the form of Jesus coming to earth to die for mankind. At no time did he give details of any prayers or Bible readings which he knew or liked ad the Bible was only mentioned in passing. In fairness the earlier interviews were not available and he was not asked questions about his Bible knowledge or about his knowledge of hymns or prayers during the present appeal. It is argued in the outline of the appellant's case that the case SA Iran states that the genuineness of belief or otherwise is more properly inferred from a person's actions in attending church. I have read the judgement in full and note the comments. However, I am not persuaded that a person's conversion can be judged by outward activities alone. I am not convinced that this is the meaning of his honour judge Gilbert's comments when read in context. Outward activities coupled with changes of attitude and priorities in life and a desire to learn about the Christian faith would seem to be important factors in determining genuineness. In other cases, these have been evaluated by pastors who have appeared before me and I find myself in greater difficulties because Pastor Milton Danil has not commented upon this aspect of the appellant and only considered his activities. In the previous determination the appellant's evidence was found not to be credible and therefore I find that I must exercise caution in accepting his evidence without something which will demonstrate its truth. Considering all the evidence before me and taking account of the previous judgement I find that I am not satisfied, to the required standard, that the appellant has genuinely converted to the Christian faith. In coming to this conclusion I have taken full account of all the evidence and in particular the evidence of the last two years. I have also noted the way he stated that he embraced the Christian faith and on two occasions almost immediately asked for baptism and the timing of these appears to be linked to the asylum claim. I accept that he gone [sic] along to activities connected with the church and has been on the streets on a number of occasions, with others, distributing Christian literature. The evidence provided was not sufficient to demonstrate a genuine commitment to the Christian faith."
11. At paragraph 42 the judge considered the argument put on behalf of the appellant that the fact of being involved with an Evangelical Christian Church in the UK would put the appellant at risk if he was returned to Iran. The authorities would not look at the deeper issues but would question the appellant about his activities and what he was doing in the UK and he would have to answer truthfully. The judge noted that this issue was considered in the case of Damien v SSHD [2000] Imm AR 96. The judge then said the question for him was whether the Iranian authorities will treat the appellant in the same way as a genuine convert from Islam to Christianity because by his activities he is perceived to be a Christian convert. In that regard the judge held as follows:
"43. I have considered the relevant case law. In particular I have read SZ and JM (Christians - FS confirmed) Iran CG [2008] UKAIT 00082. The case highlights the difference between a convert and an active and evangelising convert. The background information supplied demonstrates that the situation has not improved since the case law (FS) was decided and in fact is probably worse than at that time. It was not disputed, on behalf of the respondent that a convert from Islam to Christianity would be subject to persecution. The case law shows that those who would proselytise or tell others about the Christian faith are likely to be persecuted. The background information confirms incidents of arrest for members of house churches. The appellant stated that he would wish to continue church attendance and would wish to tell others about the Christian faith even if he were returned to Iran. There were reports of him telling a number of people and taking them to church. The letters of Ms Arianna Ilangantileke are interesting in this regard. Those representing the appellant argued that answering questions about his activities in the UK would raise difficulties for him if they were answered truthfully namely that he had been active in a church and had been with others evangelising on a regular basis. I have taken into account the judgement in SZ and JM as well as the decision in the case of Damien quoted above. I have also read and noted the judgement in the case of HJ & HT v SSHD [2010] UKSC 31 and noted that the issue from that case was whether someone was gay or would be treated as gay by potential persecutors.
44. As stated the question for this Tribunal is whether the appellant would be perceived to be a convert from Islam to Christianity and, if so, is he an active and evangelising convert. The evidence has been poor of the appellant's evangelising activities. Whilst he has been with a group and photographed there has been no evidence from Miss Azam and the evidence of Ali conflicts with that of the appellant as does that of his sister. It is unclear what the appellant would say to the authorities when questioned as he has given evidence both before me and before a previous judge which was found not to be credible. I do not accept that others have been converted through him and his own evidence was that Miss Azam dealt with people on the streets. Paragraph 148 of SZ and JM states: '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.' I remind myself that the burden of proof is on the appellant and the standard of proof is the 'lower standard' as explained earlier in this determination. I find that the appellant would not be at real risk of persecution if returned to Iran by virtue of his activities in the UK and the answers he would give. Whilst I note that there are pictures of the appellant on a church website I am not satisfied these would put the appellant at risk. On the basis of my findings I am not satisfied that there is a well-founded fear of persecution for a Convention reason and so it follows that the appellant does not qualify for the grant of asylum."
12. Mr Nicholson submitted that there were several material findings in the appellant's favour and if I agreed with him this appeal should succeed outright. The judge found that the appellant had attended Elim Iranian Church since June 2014 to 11 July 2016, being the date of the hearing. The judge found that the appellant was regularly attending bible study classes on a weekly basis in the priest's house. He also found that on Saturdays the appellant regularly took part in evangelising activities in South London. The judge was shown photographs of the appellant evangelising. The judge had a record of the letters from Miss Ilangantileke.
13. Mr Nicholson's first argument was that the judge's finding at paragraph 41 that he was not satisfied, to the required standard that the appellant has genuinely converted to the Christian faith, amounted to a rejection of the warning given by His Honour Judge Gilbert in R (On the application of) SA (Iran) v SSHD [2012] EWHC 2575 (Admin). At paragraph 24, Gilbert J said:
"It is a dangerous thing for anyone, and perhaps especially a judge, to peer into what some call a man or woman's soul to assess whether a professed faith is genuinely held, and especially not when it was and is agreed that she was and is a frequent participant in church services. It is a type of judicial exercise very popular some centuries ago in some fora, but rather rarely exercised today.
I am also uneasy when a judge, even with the knowledge one gains judicially in a city as diverse as Manchester, is bold enough to seek to reach firm conclusions about a professed conversion, made by a woman raised in another culture, from the version of Islam practised therein, to an evangelical church in Bolton within one strand of Christianity. I am at a loss to understand how that is to be tested by anything other than considering whether she is an active participant in the new church."
14. Mr Nicholson also relied on the decision in Ali Dorodian v Secretary of State for the Home Department (01/TH/01537) decided by a Tribunal panel led by Chairman John Freeman on 23 August 2001. Paragraph 4 of Dorodian referred a letter from an associate pastor of the Iranian Christian Fellowship (ICF) at Chiswick stating that the applicant had been regularly attending all the activities of the ICF and that letter had been accepted. The Tribunal held that since that letter was accepted, they concluded that the applicant was a committed Christian.
15. Mr Nicholson submitted that on the basis of Dorodian and SA Iran and in light of the evidence accepted by the judge, the judge was wrong to find that the appellant had not genuinely converted to Christianity.
16. Mr Nicholson's second argument was that the judge's approach to the question of whether "even if he were correct in his conclusion as to the genuineness of the appellant's conversion", the appellant was at risk in Iran as a consequence of his being perceived to have converted to Christianity. This ground is in respect of paragraphs 43 and 44 of the judge's decision. Mr Nicholson submitted that the approach taken by the Tribunal in SZ and JM and by the Court of Appeal in AJ Iran was conclusively discredited by the Supreme Court in HJ (Iran) v SSHD [2010] UKSC 31. He said that SZ and JM was based upon circumstances in Iran more than eight years ago. The circumstances now faced by apostates or by those so perceived are set out in the objective evidence upon which the appellant relied before the judge. Me. Nicholson submitted that the risk to those perceived as converts or apostates, even if they are not in reality either, was also spelt out in the judgment of SA Iran which stated:
"There must be a real risk that if she has professed herself to be a Christian, and conducted herself as one, that profession, whether true or not, may be taken in Iran as evidence of apostasy. On the basis of the Home Secretary's now stated position, that amounts to potentially different circumstance from that addressed by the Immigration Judge."
17. Mr Nicholson submitted that returnees to Iran would be subject to questioning. As held in IK Turkey, an appellant is not expected to lie when he or she is questioned about their activities in the UK. He submitted that the appellant will be questioned. He will have to tell the truth about his Christian activities. The judge does not make a finding if this would put the appellant at risk.
18. Mr Nicholson then commented on the respondent's Rule 24 response. He submitted that notwithstanding the inconsistency between the appellant and his sister, the judge made findings favourable to the appellant. The appellant's sister did not give evidence. The judge made a finding that the appellant is an ordinary convert and that decision has been discredited by the decision in HJ.
19. He submitted that the judge found that the appellant is a convert. On that basis the appellant is entitled to succeed.
20. Mr Wilding said he was not taking the point as to whether the appellant is an ordinary convert. He submitted that if the appellant is a convert then he will be at risk if returned to Iran. The judge found that whilst he does not doubt that the appellant has attended church and been involved in activities outside for the church, the appellant cannot be judged by outward appearances alone. It cannot be said that there is a set of criteria as to genuineness. This has to be an assessment based on all the circumstances.
21. Mr Wilding submitted that the judge applied Devaseelan which considered all the evidence after the first determination. The only relevance of the new evidence is whether what he has been doing should lead to a finding that he is a genuine convert and that the first judge's decision was wrong.
22. He submitted that the judge considered the new evidence and gave a complete answer to that question at paragraph 41. He submitted that Mr Nicholson's argument boiled down to a disagreement with the findings at paragraph 41. He said that the judge set out a comprehensive set of reasoning. He rejected the appellant's account. There are no material errors in this decision.
Findings
23. I agree entirely with the submissions made by Mr Nicholson as recorded in paragraphs 13, 14 and 15 above. I find that the judge's finding that the appellant was not a genuine convert to Christianity, despite the favourable findings made by him, amounted to a rejection of the warning given by Gilbert J in SA (Iran). I find that the judge's findings were based on his own view of what constituted a genuine convert to Christianity. He identified the criteria as being the outward activities coupled with changes of attitude and priorities in life and a desire to learn about the Christian faith. He then proceeded to judge the appellant's case in accordance with his criteria. The judge said that Pastor Danil did not comment on this aspect of the appellant and only considered his activities; yet at paragraph 21 the judge recorded that Pastor Danil said he believed that the appellant was genuine because of his activities and attitude. The judge had a statement from Miss Ilangatileke in which she said that the appellant had made a public statement to about twenty members of the congregation that Christianity had played a crucial role for the appellant since his conversion. The appellant stated that he would wish to continue church attendance and would wish to tell others about the Christian faith even if he were returned to Iran. The judge did not reject this evidence. The only comment he made was that the letters of Miss Ilanganteleke were interesting in this regard.
24. In the light of Dorodian and SA Iran, and the favourable findings made by the Judge, I find that the judge was wrong to find that the appellant had not genuinely converted to Christianity. The evidence and the case law should have led the judge to find that the appellant was a committed Christian and a convert to Christianity.
25. I find that the judge erred in law in his approach to whether the appellant was at risk in Iran as a consequence of being perceived to have converted to Christianity. The judge relied on the approach taken by the Tribunal in SZ and JM, and by the Court of Appeal in AJ (Iran) which had been discredited by the Supreme Court in HJ (Iran). I find that the risk to those perceived as converts or apostates, even if they are not in reality either, was spelt out in the judgement of SA (Iran). Were he to be returned to Iran, and questioned on his return, the appellant would be required to tell the truth. Upon questioning, he is likely to say that he is a convert to Christianity and is a committed Christian who has been evangelising in the UK. Whether the judge believed that evidence or not is not the issue here. It is what the Iranian authorities will make of the appellant's answers and the perception they will gain from his answers. The judge stated that if the Iranian authorities perceived the appellant to be a Christian, he was likely to be persecuted by them. I find that this would be the likely consequence upon his return to Iran.
26. In conclusion, I find that the judge's decision cannot stand for the errors identified by me.
27. I remake the decision and allow the appellant's appeal.

Notice of Decision
The appeal is allowed on asylum grounds

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 or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date: 14 February 2017

Deputy Upper Tribunal Judge Eshun