Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005564

First-tier Tribunal No: PA/59618/2023
LP/03983/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 30 Aug 2025

Before

UPPER TRIBUNAL JUDGE RASTOGI

Between

GQ
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr A. Pipe, Counsel, instructed by Kings Law Solicitors
For the Respondent: Ms S. Simbi, Senior Home Office Presenting Officer

Heard at Birmingham Civil Justice Centre on 25 July 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. On 30 May 2025, Deputy Upper Tribunal Judge Malik found there to be an error of law in the decision of the First-tier Tribunal promulgated on 17 September 2024 in which the First-tier Tribunal dismissed the appellant’s appeal against the Secretary of State’s decision to refuse the appellant’s protection and human rights claim. Consequently, Judge Malik set aside the decision of the First-tier Tribunal, with certain preserved findings and directed the appeal be re-heard in the Upper Tribunal.
2. I append the error of law decision to this one. The background of the appeal is contained at [2]-[3]. The issue in respect of which Judge Malik found the First-tier Tribunal to have erred was in its assessment of any risk the appellant may face on return to Iraq given that it was accepted the appellant is an apostate [10]. Judge Malik did not find the First-tier Tribunal to have erred in relation to the appellant’s identification documents, particularly as it had rejected the appellant’s claim that he had been disowned by his father and could obtain support from other friends and family members [13].
3. Judge Malik preserved the findings of the First-tier Tribunal that the appellant was an apostate and practiced yoga in his home area of Sulaymaniyah in the Kurdish Region of Iraq (“KRI”); that his account about his father was not credible and that is he able to access his identity documents [15]. He identified the sole issue on re-hearing to be whether the appellant faces a wider risk on Iraq because he has renounced Islam [16]. It was accepted at the hearing before me, that if the appellant was at risk in his home area, there would not be sufficient protection for him or an internal relocation alternative (outside of the KRI – see further below).
4. I heard the remaking on 25 July 2025. I was provided with the material before the First-tier Tribunal (as part of a 488 page composite bundle [“CB”]) together with a 22 page supplementary bundle [“SB”] served on behalf of the appellant along with a reported Upper Tribunal case of YMKA and Ors (‘westernisation’) Iraq [2022] UKUT 16 (IAC). The respondent forwarded a link to the full 2024 EASO report. I heard evidence from the appellant with the assistance of a Kurdish Sorani speaking interpreter who he confirmed he understood. I heard submissions on behalf of both parties and at the end of the hearing, I reserved my decision which I now give with my reasons. I only set out the evidence and submissions in so far as is necessary to explain my decision to the parties.
The Legal Framework
5. The appellant’s protection claim was made on 22 July 2021 which means that the burden is on him to show to the lower standard of proof, that he has a well-founded fear of persecution for a Convention reason in respect of which there would not be sufficient protection nor a reasonable internal relocation alternative. The lower standard of proof can be described as a reasonable degree of likelihood.
6. Neither party relied on any Country Guidance cases on the issue for determination in this appeal. Nevertheless, on the issue of ‘westernisation’ I note reference within SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 00100 (IAC) which refers to westernisation within headnote [5(iii)] but only in the context of Article 15(C).
7. The appellant relies on HJ (Iran) [2010] UKSC 31 which set out the test to be applied by tribunals when approaching the question of persecution on the grounds of sexuality. It is long established that this test applies also to claims involving religious belief. The test is set out at [82] and says:
“82. When an applicant applies for asylum on the ground of a well-founded fear of persecution because he is gay, the tribunal must first ask itself whether it is satisfied on the evidence that he is gay, or that he would be treated as gay by potential persecutors in his country of nationality.
If so, the tribunal must then ask itself whether it is satisfied on the available evidence that gay people who lived openly would be liable to persecution in the applicant's country of nationality.
If so, the tribunal must go on to consider what the individual applicant would do if he were returned to that country.
If the applicant would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well-founded fear of persecution - even if he could avoid the risk by living "discreetly".
If, on the other hand, the tribunal concludes that the applicant would in fact live discreetly and so avoid persecution, it must go on to ask itself why he would do so.
If the tribunal concludes that the applicant would choose to live discreetly simply because that was how he himself would wish to live, or because of social pressures, e g, not wanting to distress his parents or embarrass his friends, then his application should be rejected. Social pressures of that kind do not amount to persecution and the Convention does not offer protection against them. Such a person has no well-founded fear of persecution because, for reasons that have nothing to do with any fear of persecution, he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay.
If, on the other hand, the tribunal concludes that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then, other things being equal, his application should be accepted. Such a person has a well-founded fear of persecution. To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect – his right to live freely and openly as a gay man without fear of persecution. By admitting him to asylum and allowing him to live freely and openly as a gay man without fear of persecution, the receiving state gives effect to that right by affording the applicant a surrogate for the protection from persecution which his country of nationality should have afforded him.”
8. Finally, the appellant relies on the reported case of YMKA, the headnote of which says:
“The Refugee Convention does not offer protection from social conservatism per se. There is no protected right to enjoy a socially liberal lifestyle.
The Convention may however be engaged where
(a) A ‘westernised’ lifestyle reflects a protected characteristic such as political opinion or religious belief; or
(b) Where there is a real risk that the individual concerned would be unable to mask his westernisation, and where actors of persecution would therefore impute such protected characteristics to him”.
Background Country Evidence
9. The appellant relied on the EASO “Individuals considered to have committed blasphemy and/or apostasy Country Guidance Iraq” January 2021 report which was updated in November 2024 and on which reliance is also placed. The appellant also relied on the policy section of the respondent’s own Country Policy and Information Note Iraq: Religious Minorities V4.0 September 2024 (“the CPIN”) and some other material in the supplementary bundle.
10. It is common to both EASO reports and, indeed to the respondent’s own CPIN, that conversions of Muslims to other religions is prohibited under personal status laws. The 2021 EASO report notes that apostasy is uncommon and considered unnatural. Kurdish tribes can be more permissive towards a convert than Arab ones and there are no reported cases of anyone being tried in the KRI for changing religion. The same report also notes that atheism is not illegal in Iraq but is considered as blasphemy (prohibited under Article 372 of the Penal code) although no prosecutions on this basis have been filed in KRI and there is generally more freedom of expression with regard to religious beliefs there. The fears that there are tend to be of extremist groups and surrounding society. Nevertheless, even in the KRI, it appears atheism is better received than apostasy. The report continues:
“Criticism of religious functionaries in general is quite widespread in KRI and is not looked upon as something scandalous. Criticising Islam on social media, particularly on Facebook, has become something of a social trend in the KRI, whereas up until recently it was not acceptable. However, proclaiming oneself as an atheist publicly could cause problems. There have reportedly been cases in which atheists have been physically threatened, harassed or rejected by their families. According to COI sources, atheists who suffer harassment due to their beliefs prefer to hide than to report to the police. Although the Kurdish government is secular, society in general, especially in Erbil, is conservative and people are generally expected to respect Islamic norms.”
11. The 2024 report distinguishes between converts from Islam to Christianity, apostates and atheists. The overall position for converts including in the KRI is that they face a greater risk of persecutory mistreatment. In relation to apostates and atheists, the report does not differentiate between the KRI and Federal Iraq. The report says that apostasy is adjudicated under Sharia law; atheists can be prosecuted under blasphemy laws but such prosecutions are rare. The report notes that society does not receive well those that have converted or who do not believe, as a result of which many do not disclose their beliefs due to societal stigma and through fear. For apostates, the 2024 report states that an individual assessment is requires as to whether there is a reasonable degree of likelihood that the applicant will face persecution. That assessment should take into account:
“risk-impacting circumstances, in particular religious or non-religious practices that the applicant has engaged or will engage in. Publicly expressing views or adopting behaviour/practices that could be considered as apostasy, blasphemy or atheism would put the applicant at particular risk” [SB13].
12. It continues that in 2021 the Supreme Judicial Council announced enhanced monitoring of social media sites monitoring atheism.
13. The policy section of the CPIN states at [3.2.1] that “members of religious minorities are unlikely to face persecution or serious harm from non-state actors” and that the level of risk faced by converts from Islam and atheists depends on their openness about their faith and the attitude of their family, tribe and community [3.2.2]. That risk tends to be lower in the KRI [3.2.3]. There may be societal pressure to adhere to Islamic customs, behaviours and moral codes [3.2.4]. There may be some form of societal discrimination although perhaps less so in the KRI [3.2.5]. The risk can include from family, tribes and wider society [3.2.8] leading to discriminatory acts and hiding of one’s faith. There is some evidence of an increase in the prominence of conservative Islam in the KRI [3.2.8]. It is only in the KRI that there is a mechanism for the recognition of new religious groups [2.1.6]. The country evidence in the subsequent sections of the CPIN which informs the policy section justifies the summaries set out within the policy section and the evidence relies heavily on the EASO reports already referred to.
14. Mr Pipe also drew to my attention a 2022 EASO report “Iraq - Targeting of individuals 2022” It reinforces the evidence that the impact of perceived apostasy is likely to be social marginalisation and stigma and says that open conversions are rare due to ostracism. However, this report also reinforces the more permissive approach of the authorities in KRI compared to Federal Iraq as it noted that in the KRI those that have converted from Islam are not required to continue to register themselves as Muslim. It gives the example of an increasing number of former Muslim individuals converting to Zoroastrianism, which was officially recognised as a religion in the KRI in 2015. However, in the same report reference was made to the UK All-Parliamentary Group for International Freedom of Religion or Belief which noted in February 2021 that atheists, agnostics and humanists are unable to record their faith identity on national ID cards. The same report also noted that within the research timeframe of the report, no additional information was located about the treatment of various groups, including apostates by non-state actors. The historic research all related to extremist groups [10.4].
15. The appellant also included a report in his bundle from Humanists International which said that identification documents issued after 2016 no longer named the person’s religion on its face, but that it is asked for on application and embedded within the data chip (and there are only limited religions which are permissibly recorded) [CB225].
16. On the issue of westernisation, Mr Pipe identified, from the 2022 EASO report [6.1], that the concept of westernisation includes ‘atheists’ on the basis that they are perceived to transgress moral codes and can be exposed to harassment or threats as can those who sell alcohol. The limited examples of instances of individuals perceived as westernised in Iraq and the KRI does not include examples which sit happily with the appellant’s case. The closest is probably a student who promoted atheism who was harassed then expelled from medical school [6.2].
17. In my judgment, the totality of the above evidence shows that there is a marked difference between the situation for apostates, converts and atheists in the KRI compared to Federal Iraq. I conclude that the evidence does not show a general risk of conduct amounting to persecution from state or non-state actors to those groups in the KRI on the basis solely of membership of those groups without more. An individualised assessment of the appellant’s circumstances is required. HJ (Iran) provides the structure for that assessment.
Discussion of the Evidence
18. In evaluating the appellant’s evidence I remind myself that parts of the appellant’s claim have been accepted and others rejected. In other words, the appellant has neither been found wholly credible or to wholly lack credibility.
19. I had reason at the hearing to seek clarification from Ms Simba as to the part of the appellant’s claim which had been rejected, namely the threats and disownment from his father, because her submissions appeared to be that the appellant’s claim about this was consistent with the background information. In essence, she submitted that the background evidence showed that hostility about apostasy came from the family rather than wider society. In response, Ms Simbi confirmed she did not seek to go behind the preserved findings and she simply relied on the general point that the background material did not support the appellant’s claim to be at more general risk and, if the appellant did not wish to return to his family, he could live safely but independently in his home area.
20. The context of the appellant’s life in Iraq before he left in 2021 is important, not least because if the appellant had been persecuted in the past, that is an indicator of future risk (paragraph 339K of the Immigration Rules). It did not seem to be disputed that the appellant was born into a Muslim family but he has never really taken to the faith and from a relatively young age he stopped supporting his father’s strict beliefs. At some stage he left the family home and went to live with his grandmother. His distance from the Islamic faith continued and he became more interested in other religions. In 2017, he started practicing yoga at the Hansana Yoga House. He acquired a semi-leadership role at the yoga house and he was responsible for running some of the sub-sessions, particularly in relation to the children. In his oral evidence he confirmed that when talking about yoga, it is not just the physical practice, there is also the spirituality that goes with it. Some people just come for the physical practice, but for him it is more about the spirituality. He taught this as well. At times he condemned Islam.
21. In the appellant’s asylum interview, his main concern was the risks posed to him by his father and his father’s links with a preacher who had issued a Fatwa against him. He did say however, at question 61, that he also received some threats from people as a result of his teachings and the fact he sold alcohol [HB478]. The appellant elaborated upon this at para. 11 of his appeal witness statement [HB53] in which he said he did not mean that this was people outside of his family, but “because of what I was teaching to the children, my family gathered at my house and threatened me”. It follows, that when talking about his asylum claim, the appellant’s subjective fears were always said to be from his family (mainly his father) and not from society in general (or for that matter the state).
22. Alongside his yoga practice, the appellant worked in Iraq. In his asylum witness statement he said he worked for someone else at a clothing store from 2010 and in January 2021 he opened an alcohol shop with a friend of his [HB456]. At para. 12 of his witness statement prepared for the hearing before the First-tier Tribunal, the appellant said he was not at risk in Iraq for selling alcohol.
23. The appellant did not provide an updating witness statement for the purposes of the hearing before me. However, he gave oral evidence. On the issue of his subjective fears he was asked about any problems he had with society in general in Iraq as a result of either his apostasy or yoga and although he said he had problems, he was unable to provide any specific examples. He said that he had “arguments, fights and bad words”.
24. The respondent relied on the appellant’s overall narrative to submit that notwithstanding his apostasy and practice of yoga, the appellant was living a relatively normal and safe life in Iraq. There was no real evidence of any harm or threats to which he was exposed in Iraq. The respondent added that if he preferred, the appellant could return to Iraq and practice his yoga as he has been doing here, namely in private without attending or running classes.
25. On that issue, I accept the appellant’s reasonable explanation as to why his yoga practice in the UK is different to how it was in Iraq. He explained that the language problems and his lack of status make it difficult for him to attend yoga classes or set up his own practice in the UK.
26. The appellant was not asked specifically about his apostasy at the hearing. However, on that issue there is no real dispute and I am satisfied that it is inherent within a finding of the appellant as an apostate from Islam that he does not undertake the usual rituals of prayers and fasting and, to that extent, his behaviour would be different from Muslims in his area.
27. I am further satisfied that if the appellant returned to Iraq, he would want to practice his yoga as he did before he left which was outside of the home, albeit that the people with whom he practiced were of a like mind. Nevertheless, the appellant does not talk of having to overtly hide his practice in order to avoid detection. He was operating within a position of some leadership at the Yoga House. He did not just practice the faith but he promoted it through his teachings although I accept his oral evidence that this was not a form of proselytising or evangelism.
28. In the skeleton argument on which Mr Pipe relied, it was submitted on behalf of the appellant that the requirement that the appellant register as a Muslim notwithstanding his renouncing of Islam offends the principles on HJ (Iran) and amounts to a breach of his Article 9 rights (although this was not a matter otherwise mentioned or further ventilated at the hearing). The skeleton argument also maintains that as the appellant has openly practiced his new beliefs, he has come to the attention of his father and other family members who have taken steps to kill him. This was of course rejected by the First-tier Tribunal and upheld by Judge Malik. At [20] of the skeleton argument it was argued that the appellant will face societal discrimination as per [3.2.5] of the CPIN and targeted by state authorities, extremist groups and risk prosecution for blasphemy under Article 372 of the Penal Code.
29. I pause here to note that the accepted facts and those made by the First-tier Tribunal paint a different picture from the latter of these submissions. In fact, what they show is that the appellant was able to live relatively openly and safely for a number of years as an apostate within the KRI before he left in 2021 through teaching yoga and the philosophy of the same, his non-conformity with the normal practices of Islam and his selling of alcohol. The only basis on which he claimed to be at resulting risk was rejected.
30. The fact the appellant was able to do so is best explained with reference to the background evidence. As highlighted earlier, there is a distinction between Federal Iraq and the KRI. The appellant has not identified the presence of extremist groups in his home area from which he may be at risk on return and the background material does not show that either prosecutions or state persecution in the form of prosecution or violence is a feature of life for apostates, atheists or converts in the KRI. In fact, I find that the fact the appellant was able to live as he did in KRI prior to leaving corroborates the general picture painted by the background country information that the risk there to apostates is lower than in Federal Iraq and that there is a greater degree of tolerance; people are expressing their religious views with greater freedom than they once did. The fact that the appellant has not really expressed a fear of anyone other than his father/family is further confirmation that he does not have a subjective fear of society in general or the state and again accords with the background country information. Of course, the subjective fear he did have was rejected on credibility grounds.
31. I have had due regard to the test set out at [82] of HJ (Iran) which, by virtue of the second question (amended appropriately for a claim brought on religious grounds), requires the tribunal to consider whether, if the appellant lived openly as an apostate, he would be liable to persecution.
32. I accept on the basis of the totality of evidence before me that, as the appellant has not converted to another religion, it is reasonably likely he would be required to register as a Muslim on his identification document which may then record that on its face or within the date chip. That is so notwithstanding the greater tolerance to other religions in the KRI. I do not find, for the reasons I give above [17] that the appellant has either a subjective fear of persecution or one that is well-founded on any other basis.
33. The appellant argued at para. 10 of his skeleton argument that as a result of being registered as a Muslim “he will be forced to identify as a Muslim which infringes his rights to correctly and openly express a fundamental characteristic relating to himself”.
34. However, in light of the findings that in all other respects he has been and would be able to practice his yoga and live as an apostate in the KRI free from such risk, the appellant has failed to satisfy me that his identification as a Muslim on his identification card alone is sufficient to amount to persecution if he returned to his home area in the KRI.
35. I do not find YMKA to take the matter any further given the weight of the background country information as to the position in the KRI and the appellant’s previous experience of the same and as the Upper Tribunal in YMKA was considering the position in Federal Iraq.
36. For these reasons, the appellant has failed to satisfy me that he has a well-founded fear of persecution in the KRI if he returned and lived openly as an apostate. Returning to the questions posed in HJ (Iran) that means that notwithstanding it is accepted the appellant is an apostate, the second question is answered in the negative so the appellant is not a refugee.
37. Even if one was to approach matters slightly differently and say that there was a general risk of persecution to the lower standard to apostates in the KRI, it would then be necessary within the HJ (Iran) framework to consider what the appellant would in fact do. I have dealt with that at [27] above. As stated, there is no evidence before me the appellant was curtailing his activities through fear. He lived as he wanted to. He came to no risk. Accordingly, applying the HJ (Iran) test, he still cannot succeed in his claim as there is no evidence that he was suppressing the expression of his fundamental right through fear of persecution. It follows that I do not find the appellant to be a refugee.
38. For the same reasons, the appellant has also failed to satisfy me that there are substantial grounds to believe he would suffer harm such as to qualify him for humanitarian protection or that would constitute a breach of his Article 2 or 3 rights based on his religious beliefs.
39. The appeal was not pursued before me on Article 8 grounds.
Notice of Decision
The appeal is dismissed on protection and human rights grounds.

SJ Rastogi
Judge of the Upper Tribunal
Immigration and Asylum Chamber

14 August 2025