Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04304/2016

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke
Decision & Reasons Promulgated
On 13th March 2017
On 18th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE GARRATT

Between

ABU JAFOR
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms P Solanki of Counsel instructed by Lawrence Lupin Solicitors
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND REASONS
Background and error of law
1. The appellant is an adult male citizen of Bangladesh who came to the United Kingdom with entry clearance as a Tier 4 (General) Student Migrant on 3rd March 2011. His student leave was extended up to 28th February 2015 but was curtailed on 9th December 2014 to expire on 7th February 2015.
2. The appellant overstayed and on 3rd March 2016 was encountered by Immigration Officers at an Indian restaurant in Dorset. He was detained and served with a removal notice. On the next day he claimed asylum. That claim was refused by the respondent in a letter dated 18th April 2016. The appeal against that decision was dismissed on asylum and humanitarian grounds but allowed on human rights grounds by Judge of the First-tier Tribunal Chamberlain in a decision sent out on 8th July 2016. An application by the appellant for permission to appeal to the Upper Tribunal was refused by the First-tier Tribunal. However, in a renewed application to the Upper Tribunal, permission was granted on 14th September 2016.
3. At the initial hearing in the Upper Tribunal I found that the asylum and humanitarian protection decision of the First-tier Judge contained an error on a point of law such that it should be set aside and re-heard on the limited basis set out in my decision, the relevant parts of which are as follows:
“2. Permission was granted on the basis that the judge may have materially erred in law in failing to consider the position for Christians who had converted from Islam, particularly in the light of the background evidence which the judge had summarised in paragraphs 57 to 61 inclusive and 63 of the decision concerning ill-treatment of such converts.
4. The grounds of application before the Upper tribunal contended that the judge did not give adequate consideration to background evidence relating to the risk for Christian converts. Additionally, she failed to consider the specific risk for the appellant as evangelist, missionary and pastor and also failed to give adequate consideration to the sufficiency of state protection and the possibility of internal relocation.
The Upper Tribunal hearing and submissions
5. At the hearing before me Ms Solanki submitted a skeleton argument dated 6th November 2016. In this she argues that, in relation to the reference in paragraphs 54 and 55 of the decision to Christian converts, the reference should be seen in the light of the statement in paragraph 53 which shows that the judge was considering the treatment of Christians in Bangladesh generally rather than converts specifically. Further, the plain conclusion set out in paragraph 63 that the evidence does not show that Christians are persecuted in Bangladesh also shows that the judge did not consider the specific issue of conversion. As to state protection, it is contended that the brief reference to this in paragraphs 64 and 65 does not show that the judge had taken into consideration the respondent’s own guidance that shows the effectiveness and conduct of the police varies and that enforcement agencies have failed to effectively protect religious minorities. It even showed that in, certain cases, the authorities had, in fact, been involved in instigating violence against religious minorities.
6. Mr McVeety agreed that the judge had not given adequate consideration to the risk factor as a convert from Islam. He also agreed that the findings of fact of the judge, which had led to her concluding that the appeal should be allowed on human rights grounds applying paragraphs 276ADE(1) of the Immigration Rules, had not been challenged and so it was only refugee status that was at stake.

Conclusions
7. Having regard to the concessions made by Mr McVeety I indicated that I was satisfied that the decision of the First-tier Judge showed an error on a point of law such that it should be re-made. However, re-making of the decision would be on the limited basis that the Tribunal would consider risk on return for the appellant as a Christian convert taking into consideration the findings of fact of the judge which can stand. My reasons for those conclusions follow.
8. I reached my conclusions not only because of the concessions made by Mr McVeety but because I was satisfied that the decision does not show that the judge had given adequate consideration to the position of the appellant as a Christian convert as opposed to simply a Christian. Although there is reference in paragraphs 54 and 55 of the decision to those who have converted, the judge appears to have considered the risk on the basis of adherence to the Christian faith alone. Whilst the reference in paragraph 54 to the OHCHR suggests ill-treatment and social ostracism because of conversion that information is not specifically evaluated in the decision. The same lack of evaluation applies to the judge’s reference to the respondent’s own guidance about the inadequacies of state protection in paragraphs 64 and 65 notwithstanding the comments in paragraph 66 which do not relate to future risk on return.
9. At the conclusion of the hearing Ms Solanki indicated that it would be preferable from the point of view of representation, if the resumed hearing of this matter could take place at Field House. It appears to me that it would be appropriate for the hearing to take place there, noting that the First-tier hearing took place in London and that the skeleton argument of 6th November 2016 suggests that a number of witnesses are to be called as before. In view of that and the further indication in the skeleton that expert evidence is being prepared and because the appellant has asked for a reasonable period of time to present that evidence and arrange attendance of witnesses, I was unable to proceed to re-make the decision at the hearing before me.”
Re-making the decision
4. For reasons set out in directions given by Upper Tribunal Judge Bruce on 23rd December 2016 the resumed hearing did not take place at Field House but was held at Stoke. At that hearing representatives agreed that the matter could proceed by way of submissions only, taking into account the documentary evidence and statements already contained in the appellant’s bundle of 3rd November 2016, along with other objective material contained in the appellant’s original hearing bundle, all of which evidence and objective material is more specifically referred to or summarised in the helpful skeleton argument by Counsel dated 13th March 2017. Mr Bates indicated that he was content not to cross-examine the appellant or to hear evidence from those witnesses who had made statements, in view of the findings of fact of the First-tier Judge which can be preserved and which are summarised in paragraphs 51 and 52 of the decision as follows:
“51. I find, taking account of all of the evidence, and in particular the evidence that the Appellant had been attending church prior to his arrest, and the evidence of his willingness to be open about his faith in front of others who are hostile to Christianity, that the Appellant has shown that he is a Christian. However I find he has failed to show that his family have disowned him. I find he has failed to show that it is reasonably likely that his family have produced a leaflet calling on him to be handed in to the authorities because of his conversion which they have distributed around Dhaka.
Risk on Return
52. I have found above that the Appellant is a Christian. I find that the Appellant attends church and is open about his Christianity. The evidence of Rev. Skirton is that the Appellant was exuberant about his desire to follow Jesus in front of his colleagues in the restaurant, despite their hostility. The evidence of Mr. Hassan is that the Appellant wants to be a member of a church and worship publicly. Mr. Fitzsimmonds’ evidence is that the Appellant wants to study Christianity with a view to becoming a missionary or a pastor. I find that the Appellant openly practises Christianity in the United Kingdom, and intends to continue to practise his faith openly.”
5. The issue before me is, therefore, whether, considering the findings which stand, the appellant would be at real risk of persecution on return to Bangladesh as a convert to Christianity from Islam.
Submissions
6. Mr Bates relied upon the terms of the refusal insofar as it relates to risk on return as a Christian although he acknowledged that the respondent’s refusal to accept that the appellant had converted to Christianity was no longer relevant. He referred to the respondent’s Country Information and Guidance for Bangladesh of March 2016. He submitted that this shows, at paragraphs 4.1.3 and 6.4.1, that ethnic minority Christians live in communities across the country with an estimate of 580,000 Christians present who adhere to at least 32 different denominations. Paragraph 2.2.1 also records that the country is a secular, pluralistic, parliamentary democracy with the Constitution and other laws protecting religious freedom and ensuring equal status and equal rights in the practise of the Hindu, Buddhist, Christian and other religions. There was no evidence that the state actively engaged in persecution of people because their religion.
7. Whilst Mr Bates acknowledged that there had been incidents involving Muslims attacking Christians and that this had been highlighted in the appellant’s expert evidence, there was no indication of widespread persecution of Christians from which the authorities offered no protection. He questioned how any proselytising by the appellant would increase the risk which, in any event, could be avoided by internal relocation. He thought that it was local police forces that were most ineffective rather than those in areas of population density. There was inadequate evidence of any real risk to the appellant and so he urged me to dismiss the appeal.
8. Ms Solanki made reference to the respondent’s Country Information and Guidance of March 2016 at paragraphs 5.1.1., 5.4.4. and 7.1.1. which, she submitted, showed that government officials, including police, were sometimes slow to protect individuals, including members of minority religious groups, from violence and often were reluctant to investigate incidents. There was also evidence of the arrest of pastors who were holding a secret mass conversion and instances of forced conversion of religious minorities to Islam, although mainly Hindu.
9. Ms Solanki suggested that the appellant’s position should be considered in line with the guidance of the Supreme Court in HJ (Iran) [2010] UKSC 31 at paragraph 35, suitably adapted for those alleging persecution on account of their faith. She emphasised that the appellant would face persecution throughout the country and it was not reasonable to expect the expert to assess a percentage of risk in any particular area. Further, she stated that the respondent’s guidance had not been recently updated sso could not be regarded as entirely reliable.
10. My attention was then drawn to counsel’s skeleton argument which contains specific references to relevant background evidence. There is support for the appellants case in the conclusions of the expert of 30th October 2016 showing that the enforcement agencies in Bangladesh do not possess the resources to be able to provide sufficient protection for the appellant because of widespread institutional corruption and an atmosphere of extrajudicial executions, especially against those who expressed criticism of Islam. She emphasised that the appellant is a person who will behave openly about his faith and publicly attend church.
11. Ms Solanki referred to the document from Christian Freedom International (produced by the respondent) which acknowledges that, although Christianity is growing in Bangladesh, there is increased persecution exemplified by the reported incidents.
12. She then drew my attention to the guidance of the Upper Tribunal on state protection in AW (Sufficiency of protection) Pakistan [2011] UKUT 31 (IAC) on the basis that a claimant may still have a well-founded fear of persecution if the authorities know or ought to know of circumstances particular to an appellant’s case giving rise to the fear, but are unlikely to provide the additional protection the particular circumstances reasonably require. She contended that it had been shown, from incident examples, that the police in Bangladesh had failed to intervene in attacks perpetrated on members of religious minorities.
13. When I pointed out to Ms Solanki that the expert evidence, particularly the updated report, appeared to assume that the appellant was a minister in the Christian faith when he was not, she drew my attention to paragraph 9 of the skeleton, in which she emphasised that the appellant is a Christian convert who wished to develop his learning and become a church leader and evangelise his faith. She asserted that the appellant had been open about his faith and wished to talk to others about it.
Conclusions and Reasons
14. The burden of proof is on the appellant to show that he is a refugee or entitled to humanitarian protection.
15. I bear in mind that it has already been decided that the appellant is entitled to human rights protection. That decision of the First-tier Tribunal has not been appealed by the Secretary of State.
16. The standard of proof is a reasonable degree of likelihood. I have looked at the evidence in the round as of now.
17. In considering whether the appellant is a refugee or entitled to humanitarian protection I have taken into consideration all the provisions of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 and paragraphs 327 to 339P, inclusive, of the Immigration Rules, as amended.
18. Only if I am not satisfied to the lower standard that the appellant is a refugee can he have a valid claim for humanitarian protection.
19. Of relevance in this case is the guidance of the Supreme Court in HJ (Iran) which, in summary, sets out the following tests for the court to consider (with suitable adaption for a Christian convert):
(a) To consider whether or not the applicant is, indeed, a Christian convert.
(b) What his situation will be on return, considering how the appellant will conduct himself and how others will react to what he does in circumstances where he will not be expected to conceal aspects of his faith even from those who may disapprove of it.
(c) If it is found that the appellant will conceal aspects of his faith to consider why he would do so. If he does this for cultural or religious reasons of his own but not because of a fear of persecution his asylum claim must be rejected. But if the reason why he will resort to concealment is that he genuinely fears that he will otherwise be persecuted, it will be necessary to consider whether that fear is well-founded.
(d) Does the appellant have a well-founded fear that he will be persecuted?
20. It has been found that the appellant is a convert from Islam to Christianity and that he has actively involved himself in the Christian church in the United Kingdom. Although he is said to have ceased his interest in Islam whilst still in Bangladesh in 2008, his formal conversion to Christianity did not come until 2012 following his arrival in this country in 2011.
21. The appellant relies upon evidence which has been summarised in Counsel’s skeleton argument at paragraph 10. Particular reliance is placed upon the original and supplementary report by the appellant’s expert, Dr Ashraf Ul Hoque. The first report is dated 30th October 2016. His CV lists his experience of Bangladeshi affairs and the several appeals from 2012 in which he has given opinions. His general remarks about the Islamic faith include (paragraph 21) that there is room for considering that capital punishment is appropriate for apostasy in Islam. However, the first important point to acknowledge in this appeal is that Bangladesh is a secular, pluralistic parliamentary democracy, the laws of which protect religious freedom and ensure equal status and equal rights in the practise of the Hindu, Buddhist, Christian and other religions (paragraph 2.2.1 of the Country Information and Guidance of March 2016) (CIG). There is no capital punishment for apostasy under the laws of Bangladesh.
22. The CIG confirms that religious freedom is generally respected by the government and there is no indication that the state actively engages in persecuting people on account of their religion. On occasion political parties act in ways that exacerbate rather than diminish religious and communal tensions. The risk may, however, be from officials who are sometimes slow to protect individuals including members of minority religious groups from violence or to investigate such incidents (paragraph 5.1.1 CIG).
23. Whilst there are clearly incidents of societal violence against religious minorities (particularly Hindus) it appears to me that such reports should be put into context. When the High Court of Bangladesh ordered the Inspector of General Police to submit a report outlining measures taken to protect minorities and arrest perpetrators of such violence, the government detailed 36 criminal cases and 139 arrests of religious minorities (para 7.1.1 CIG). Whilst, in paragraph 31 of his first report, Dr Hoque suggests that, because of interpretations of Islamic apostasy laws the appellant will, as a perceived apostate and convert to Christianity, be at serious risk of harm, it appears to me that the relevant issue is whether or not the protection which is evidently available from the state authorities, even if imperfect, is adequate or that, if it is not, there are areas of Bangladesh where the appellant could reasonably be expected to locate where a real risk will not be present. I now examine those issues.
24. I am unable to accept the assertion (paragraph 56 of the first expert report) which suggests that, on return, the appellant will require 24 hour protection because of his religious views. That is because the same paragraph indicates the instances where such protection might be necessary relate to the involvement of prominent secularists communists, journalists, writers, academics and poets. In the brief supplementary report of 15th February 2016 (which I assume should be 15th February 2017 as it was sent by representatives on 10th March 2017), Dr Hoque refers to risk on return for the appellant as a “Christian Minister”. The appellant is not in that category and so cannot be seen as a member of that group which, Dr Hoque claims, would require 24 hour protection. Although I accept that the appellant will openly practise his faith on return as a member of a Christian church, as he has done in the United Kingdom, I am unable to regard him as someone who would be seen as, for example, a prominent Christian evangelist who will speak out against Islamic values and attract adverse attention from members of the public or even the criminal law of Bangladesh if he creates public disturbance.
25. At paragraph 17 of the latest report Dr Hoque emphasises that, although attacks on Christian communities have been steadily increasing, Christians in Bangladesh who are generally well-integrated are able to live in relative peace. The appellant’s conversion to Christianity in the United Kingdom and his enthusiasm for the faith and involvement in church activity does not, I conclude, point to him being a person who will be gratuitously critical of Islam even if he is perceived as an apostate. The bald conclusion in the expert report in paragraph 17 that the appellant will face “intolerable persecution” once returned to Bangladesh because of his conversion is not supported by evidence in the expert reports or the particular incidents which have been referred to in paragraph 10 of the expert report. These reports relate to those who are outspoken critics of Islam. I refer to the appellant’s own statement of 3rd November 2016, in which he refers to his desire to advance within the Christian church and his wish to write about his experiences of Christianity. The statement does not suggest that he would act in a way which is critical of Islam as opposed to pointing out the benefits of Christianity, in his view.
26. My overall conclusion, from the information put before me, is that it is expression of outspoken opinions against Islam which inflame opinion and lead to incidents of violence rather than the fact of conversion to Christianity of a former Muslim. Additionally, I do not find that incidents of serious persecution from which the authorities cannot protect the appellant are as widespread as the expert’s opinions would suggest. In any event, if the appellant perceives there to be a particular risk in an area to which he returns, for example from his own family, I concur with the conclusion of the First-tier Judge that it would be reasonable to expect the appellant, “a healthy young man who has supported himself in the United Kingdom” (paragraph 68) to relocate away from that area without it being unduly harsh for him. Indeed, he could move to one of the areas listed in the USSD Report with a relatively high concentration of Christians.
27. I am not satisfied that the appellant will be at real risk of persecution from state agents or those from whom the state cannot protect him on account of his Christianity and conversion to that faith as a former Muslim. He is not a refugee. It follows that the appellant will not, I find, suffer from serious harm which would entitle him to humanitarian protection of the kind defined in paragraph 339C of the Immigration Rules.
28. As to the appellant’s human rights claim I note that his appeal was allowed on human rights grounds and, no doubt, the respondent is in the process of granting him protection on that basis.

Notice of Decision

The decision of the First-tier Tribunal showed an error on a point of law such that it should be set aside and re-made. I re-make the appeal to dismiss it on asylum and humanitarian protection grounds, the appellant’s human rights claim having already been allowed by the First-tier Tribunal.

Anonymity

Anonymity was not requested before the First-tier Tribunal or before the Upper Tribunal nor do I consider it appropriate in this case.

Signed Date 5 April 2017

Deputy Upper Tribunal Judge Garratt