Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/09450/2017

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
On 18 January 2019
On 06 February 2019

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

D A
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Winter, instructed by Katani & Co Solicitors
For the Respondent: Mr M Mathews, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge Montgomery, promulgated on 22 December 2017. The appellant is a citizen of Iran whose case is that he is at risk of persecution on return on account of his religious beliefs, having converted from Islam to Christianity. It is his case that he converted from Islam to Christianity in Iran and came to the adverse attention of the authorities as a result.
2. The judge did not find the appellant to be credible concluding that:-
(i) the appellant's account was neither credible nor plausible [23];
(ii) the appellant had not shown that he is a genuine convert to Christianity or was the member of a house church in Iran [27];
(iii) the appellant's interest in Christianity shown by the accepted evidence that he attends the Tron Church in Glasgow was nothing more than a route to obtaining asylum [28];
(iv) if there was no real risk for a convert who would not evangelise, then there is even less risk on return to a person who has failed to establish he is a genuine convert, following SZ and JM (Christians - FS confirmed) Iran CG [2008] UKAIT 0082;
(v) the appellant had not shown that he had previously come to the adverse attention of the authorities and thus he had not shown he was entitled to protection under the Refugee Convention [29].
3. The appellant sought permission to appeal on two grounds:-
4. That although the Tribunal had referred to the appellant's mental health issues, the judge had failed properly to follow AM v SSHD [2017] EWCA Civ 1123:-
(i) in failing to assess medical information holistically, in failing to consider whether the psychological issues might provide a reasonable explanation for any inconsistency, discrepancies or explain the appellant's previous behaviour, failed to follow the vulnerable adult and sensitive risk Practice Direction and it was not inevitable that the decision would be the same;
(ii) in failing to take into account a country guidance case which is in itself a material error the judge failing to take into account that the appellant had been questioned at the airport, failing to take into account the concession that if he had genuinely converted his appeal would succeed and taking into account the relevant consideration of whether he would evangelise, in failing to consider how he would answer when asked about his activities in the United Kingdom, the judge failing to assess whether the Iranian authorities would at the very least perceive him of having converted to Christianity however this might raise submissions on the part of the authorities.
5. There is no merit in ground 1. The medical evidence consists of a short letter from the appellant's GP which although explaining that he has some symptoms of depression and that he has been prescribed anti-depressants, that makes no formal diagnosis. There is no suggestion in the letter that the appellant's ability to recall events is impaired or that he would have difficulty in answering questions or that any adjustments were necessary in order for him, in line with the relevant Practice Direction and Presidential Guidance Note. Mr Winter was unable to take me to any submissions made to the Tribunal that any adjustments should be made or were necessary. Properly viewed it is evident that the judge took proper account of the medical evidence as part of her assessment and equally it is difficult to see how any weight could be attached to it given it is very limited in nature.
6. It is not in dispute that the judge failed to mention SSH and HR (illegal exit: failed asylum seeker (CG) [2016] UKUT 308 nor is there any indication that the judge considered that the appellant would be questioned on return. There is no indication either that the judge considered what that questioning would involve.
7. That said, the headnote in SSH and HR provides as follows:-
"(a) An Iranian male whom it is sought to return to Iran, who does not possess a passport, will be returnable on a laissez passer, which he can obtain from the Iranian Embassy on proof of identity and nationality.
(b) An Iranian male in respect of whom no adverse interest has previously been manifested by the Iranian State does not face a real risk of persecution/breach of his Article 3 rights on return to Iran on account of having left Iran illegally and/or being a failed asylum seeker. No such risk exists at the time of questioning on return to Iran nor after the facts (i.e. of illegal exit and being a failed asylum seeker) have been established. In particular, there is not a real risk of prosecution leading to imprisonment."
8. Aside from whether the appellant would be questioned about how he had sought to establish his asylum claim, there is nothing to show that he would be of any interest to the Iranian authorities. The sustainable finding of the judge is that he had not been of previous interest to the state.
9. There is little in the substantive findings in SSH and HR about the nature of the questioning which would take place. What evidence there is set out in Appendix 1 to SSH and HR is the political likely that he would likely to be of interest.
10. Since the decision in this appeal was promulgated by the First-tier Tribunal, the Upper Tribunal has in HB (Kurds) Iran CG [2018] UKUT 430 considered SSH and HR, by concluding that it remains valid country guidance. The case is inevitably concerned with the position of Kurds which has a political dimension. It is clear the political activity is performed by Kurds or are likely to raise suspicions. There is little with regard to what he is likely to be asked about religion other than what is set out in the evidence of Anna Enayat in Appendix B at paragraphs 9 to 15.
11. It is noticeable in this that Miss Enayat drew a distinction between those who had made political statements on for example a Facebook page from those who had pretended to convert. It is her evidence that if a returnee said, when asked aobut his asylum claim, that he pretended to convert to Christianity is unlikely to result in adverse attention.
12. It is evident in this case that the judge did not ask herself whether the appellant would be questioned and if so about what. Had she applied SSH and HR and asked herself what was likely to be asked, then there was insufficient evidence to show, even to the lower standard, that anything untoward would flow from the appellant stating that he had pretended to convert to Christianity. Thus, the appellant cannot lie, that would be the truth on the basis of the findings of fact made by the judge. Further, this is not a case in which the appellant had been baptised and even had Miss Enayat's evidence been available to the judge, the evidence is that his pretended conversion would not be a problem on return.
13. In conclusion, therefore, whilst I accept that the judge did not mention SSH and HR which was an error, it was not material as she (and indeed any judge)would inevitably have come to the same conclusion because on the facts as found by her, there was only one answer on the evidence which is the appellant would be questioned, it would be determined that he would have failed asylum particularly it would be determined also that he had pretended to convert to Christianity but there was nothing to suggest that that would have led to ill-treatment and accordingly, it cannot be said that the error was one capable of affecting the outcome of the case and thus, any error was not material. For these reasons, I find that the decision of the First-tier Tribunal did not involve the making of an error of law and I uphold it.
SUMMARY OF CONCLUSIONS
1. The decision of the First-tier Tribunal did not involve the making of an error of law and I uphold it.
2. I make an anonymity order in respect of the appellant.

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 1 February 2019

Upper Tribunal Judge Rintoul