Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/06430/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
On 24th April 2017
On 25th April 2017

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

A Z M
(ANONYMITY DIRECTION MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Wintor, Counsel, instructed by Latta and Co, Solicitors.
For the Respondent: Mr. Mullen, Home Office Presenting Officer.

DECISION AND REASONS

Introduction

1. The appellant was arrested by police in December 2015 when he was found hidden in the rear of lorry which had recently entered the United Kingdom. He then made a claim to protection.

2. His claim is that approximately a year earlier he was approached by members of the PAK and told to drive them to another village. En route they encountered the military and shots were exchanged. The car was abandoned and the appellant and the men ran off. The appellant went into hiding and learnt that the army had been to his house. He subsequently fled the country.

3. The respondent accepted that he was an Iranian Kurd. However the index event was not accepted.

The First tier Tribunal.

4. The appellant's appeal was heard by First-tier Judge Handley at Glasgow in October 2016 and was dismissed. The grounds of appeal introduced a new claim, a risk on return on the basis the appellant had become a Christian since being in the United Kingdom.

5. A week before the hearing there was a request for an adjournment on the basis a witness from the church the appellant attended was not available. The tribunal in a letter days before the scheduled hearing refused the adjournment request. The judge also refused to adjourn.

The Upper Tribunal

6. The argument advanced in the Upper Tribunal solely relates to the refusal of the adjournment and the treatment by the judge of the appellant's claimed conversion. Permission to appeal was refused by a Judge of the First-tier Tribunal but was granted by a Deputy Judge of the Upper Tribunal. This was on the basis it was arguable the judge failed to give adequate or clear findings as to whether the appellant had converted to Christianity and the risk to him on return as an actual or perceived convert. Permission to appeal in relation to the adjournment refusal was refused, the judge noting another member from the church gave evidence.

7. At hearing, Mr Wintor confirmed that the rejection of the claimed events in Iran was not being challenged. The sole issue argued related to the treatment of the claimed religious conversion. He also repeated a request to have the refusal of the adjournment considered as a ground.

8. The claim in relation to conversion was dealt with at paragraph 36 of the decision. Mr Wintor submitted that there were no clear findings as to whether the appellant had converted and what the risk would be for him on return, including the perception he had converted. Mr Winter did not appear in the First-tier Tribunal but as far as he was aware equal emphasis was placed in the presentation of the appeal upon the appellant's conversion as on the index event claimed in Iran. This is supported by the record of proceedings.

9. Mr Mullen opposed the appeal and referred to the appellant's historic account of events in Iran not being believed. He said the question of the claimed conversion was adequately dealt with by the judge.

Consideration

10. At paragraph 26 of the decision the judge sets out how the appellant said he started attending a Christian church 10-month earlier .He had not mentioned this at the time of his asylum interview because as he understood things it did not form part of his claim. He said he had told family members of his conversion and other Iranians in the church.

11. Paragraphs 6 to 15 of the decision deal with the claimed events in Iran. Paragraph 16 mentions the respondent referring to the appellant's claim of conversion and the absence of evidence to show his attendance at church here. The judge records he heard from a member of the church as to the appellant’s attendance. In the section headed `My Decision’ the judge devotes 7 paragraphs to the events claimed in Iran and 1 paragraph to the claim of his conversion, paragraph 36. This reads as follows:

The appellant claims that when living in Iran he lived in a Muslim family and attended the Mosque. However he also claims that he was the only member of his family who was not practising. He claims to have converted to Christianity. Converting to a different religion would be a huge decision for the appellant with significant repercussions. However his reasons for converting to Christianity are of a general nature. When asked about religion at the Hearing the appellant stated that Islam was about war and bloodshed and Christianity was different. I would have expected the appellant to have provided a more knowledgeable, informed and reasons explanation for his conversion. His claim that he would have to share his beliefs if he returned to Iran is not believable. In reaching this conclusion I take account of the evidence of the witnesses from the church who attended the hearing and I consider their evidence in the round. I accept that the appellant has been attending church in Glasgow but I do not accept that he would be at risk on return on account of his religious beliefs.

Conclusions.

12. The judge has not dealt adequately with this aspect of the appellant's claim. Whilst it may be implied, the judge does not specifically say if he rejects the claimed conversion. No details of the import of the evidence from the church is given. The judge does confirm the evidence establishes that he has been attending the church but there is no reference to any observations by the church member as to his sincerity and commitment. There is no reference in the decision to the risk posed by conversion to Christianity from Islam. The decision does not address whether, even if the conversion were not genuine, there was a risk because of suspicion by the authorities he in fact did convert.

13. I find that the judge materially erred in law in dealing with this aspect of the appellant's claim. Consequently this aspect of the decision cannot stand and will have to be remade by the First-tier Tribunal. The emphasis in the decision was upon events in Iran.

14. Although the refusal of the adjournment is academic now that the matters are being remitted it would not have amounted to an arguable error of law. The appellant had the opportunity, which he took, of finding an alternative witness who confirmed his attendance at the church.

15. There is no challenge to the finding in respect of events in Iran. It shall stand.

Decision

The decision of First-tier Judge Handley materially erred in law in how the appellant's claim conversion was dealt with. Consequently, the decision cannot stand and the matter is remitted to the First-tier Tribunal for a de novo hearing on this issue only. The findings in respect of events pre-flight remain.

Deputy Judge Farrelly

24th April 2017