COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
MR. JUSTICE MUNBY
| FARSHID SHIRAZI
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
MR S KOVATS (instructed by the Treasury Solicitor, London SW1H 9JS) for the Respondent
Hearing date : Monday 13 October 2003
Crown Copyright ©
Lord Justice Sedley :
(14) The issue which then arises is whether a convert from Islam to Christianity, who is not an evangelical or driven to proselytise, would be at any real risk on return to Iran and in living thereafter. This matter has been considered by the Tribunal in the cases of Ahmadi  UKIAT 05079 and Khoshkam  UKIAT 00876. In both decisions the Tribunal considered similar objective material to that which is before us and concluded that non-evangelical converts from Islam to Christianity do not per se face a real risk of persecution and/or breach of their human rights in Iran. Another report submitted to us by Mr Jones relates to a New Zealand case from 1999, which reaches a similar conclusion, though may now be somewhat out of date in terms of the material taken into account. We of course have to reach our own conclusions of the evidence before us.
(15) We conclude, in the light of the objective material placed before us, that the problems in Iran are for evangelicals and others who seek to proselytise. The Respondent, who is not an evangelical or likely to proselytise, will be able to practice his new religion in Iran without running any real risk of persecution or ill-treatment either by the authorities or by individuals in that country. We agree with the conclusions of Tribunals in Ahmadi and Khoshkam. We also conclude that the existence of the arrest warrant referred to above, even taken into cumulative consideration with the Respondent's conversion, would not lead us to a different conclusion. We find that the Respondent's conversion to Christianity in the UK does not therefore create for him the right to international protection under either the 1950 or the 1951 Conventions.
"A pending appeal under this Part is to be treated as abandoned if the appellant leaves the United Kingdom."
Has the appeal to be treated as abandoned?
(1) The right of appeal given by a particular provision of this Part is to be read with any other provision of this Part which restricts or otherwise affects that right.
(2) Part I of Schedule 4 makes provision with respect to the procedure applicable in relation to appeals under this Part.
(3) Part II of Schedule 4 makes provision as to the effect of appeals.
(4) Part III of Schedule 4 makes provision-
(a) with respect to the determination of appeals under this Part; and
(b) for the further appeals.
(5) For the purposes of the Immigration Acts, an appeal under this Part is to be treated as pending during the period beginning when notice of appeal is given and ending when the appeal is finally determined, withdrawn or abandoned.
(6) An appeal is not to be treated as finally determined while a further appeal may be brought.
(7) If such further appeal is brought, the original appeal is not to be treated as finally determined until the further appeal is determined, withdrawn or abandoned.
(8) A pending appeal under this Part is to be treated as abandoned if the appellant leaves the United Kingdom.
(9) A pending appeal under any provision of this Part other than section 69(3) is to be treated as abandoned if the appellant is granted leave to enter or remain in the United Kingdom.
(10) A pending appeal under section 61 is to be treated as abandoned if a deportation order is made against the appellant.
- all pending appeals to this court have been the subject of a judicial grant of permission, cannot be struck out without a compelling reason (see now CPR 52.9), and have for long carried an automatic stay in immigration cases (RSC, O.59 r. 24(5), 13(1)(a); CPR 52.7);
- the s.58(8) provision only operates one way - it cannot cause an appeal by the Secretary of State or the IAT to abort;
- on no view can the provision apply to judicial review proceedings or to appeals to this court from the Administrative Court, which would create an odd asymmetry since this court has power (see Dahir  Imm AR 570) to treat an appeal as an application for judicial review;
- the Home Secretary's case that the statute does not mean what it appears to say is an argument not from clear words but from equivocation, and so erodes its own foundation.
Is the appellant a refugee by reason of his conversion?
"The US State Department report makes it quite clear that religious activity is monitored closely by the Ministry of Intelligence and Security. It says: 'Apostasy, specifically conversion from Islam, may be punishable by death'."
And in Ghodratzadeh (16 May 2002) the Tribunal held:
"… it is not entirely clear whether the full rigour of the law against apostasy has been imposed. Be that as it may, the law is there, there is undoubted antipathy, to put it no higher, to those who reject Islam and convert to Christianity, and in those circumstances there is clearly a real risk that if the authorities discovered that a person was an apostate, he might find himself being persecuted."
"We do not know what Iran does to ordinary apostates. [The appellant] is not quite an ordinary apostate. Apart from his drug conviction, which will not endear him to Iranian authorities but is not a relevant factor in deciding whether he has a well-founded fear of persecution, his brother has been active in the US in opposition to the Iranian regime. Nor is the death penalty the only sanction grave enough to be deemed persecution …"
So here, Ms Webber submits, the risks attending the appellant's conversion have to be gauged within his overall relationship with the Iranian state.
"… [F]or an apostate, the risk of extreme punishment will always exist…. [P]erhaps a person who has committed a capital offence of apostasy under Iranian law may be fortunate enough to escape the consequence of that conduct if returned to Iran, but … the risk of discovery, apprehension and punishment would continue and it may be sufficient to ground a well-founded fear of persecution. Furthermore, the persecution feared, of course, is not restricted to execution and may include the suffering of substantial harm or interference with life by way of deprivation of liberty, assaults and continuing harassment on account of the perceived apostasy."
"According to the Shari'a Law, applicable in Iran, conversion from Islam to Christianity is officially punishable by death. In one case during the 1990's has the conversion – beyond other criminal accusations – been the basis for the execution of the death penalty in accordance with Shari'a Law. In this case the death penalty was later revoked by the Supreme Court. In a few cases converts have been killed under unknown circumstances. All such cases concerned proselytising priests.
It is rare that Iranian asylum seekers convert to Christianity in other countries but the Netherlands and Sweden. According to concerted information from Christian Churches in Iran, there is no real chance of persecution upon return to Iran of persons who have claimed conversion as ground for asylum in Sweden. Some 3-4 years ago converts would probably have been exposed to various kinds of punishment, in case the conversions had become to the knowledge of the authorities in Iran . … Today there are persons in Iran who have converted from Islam to Christianity there, and who participate in Christian activities there without the interference of Iranian authorities.
Conversion from Islam to Christianity is according to Iranian authorities not possible, and a conversion abroad is considered by the authorities as a "technical" act, in the purpose of obtaining asylum, which therefore does not mean that the person in question risks any serious harassment on return. The concept of 'Taqieth', which is widely accepted in Iran, makes it legitimate to lie in order to achieve certain purposes. This means that there is a high level of acceptance in Iran of the lie as a means to obtain a purpose, such as seeking asylum in the west. Iranian nationals who have converted from Islam to another religion, and who keeps the conversion a personal matter, does not attract the attention of the authorities.
An Iranian national, who converts from Islam to another religion, normally does not risk the kind of prosecution prescribed in the Shari'a Law, whether the conversion takes place in the home country or abroad. There is also no significant chance that he or she would be the target of any actions from the authorities or of any serious harassment. This assessment is based on the assumption that the conversion has come to the knowledge of the Iranian authorities."
The passage is cited by the IAT in its decision in Jalilian (11 August 2003; no. HX 54749-01); but the IAT goes on to differ, on well-reasoned grounds, from the Swedish appraisal.
(26) However we have reached the view that the S determination cannot stand. We have so concluded because of its special nature, as it appears from the passages from paragraph  and  which we have cited (paragraph  above). The IAT intended this decision to be determinative: that is, it should thereafter be followed by special adjudicators, and the tribunal itself, absent evidence of a deterioration in the conditions in Croatia relevant to the circumstances of Serb asylum seekers. Now, the notion of a judicial decision which is binding as to fact is foreign to the common law, save for the limited range of circumstances where the principle of res judicata (and its variant, issue estoppel) applies. (There is also, of course, provision in Civil Procedure Rules 1998, r19.10-19.15 for the case management of group litigation, but we need not take time with that.) This principle has been evolved – we put the matter summarily – to avoid the vice of successive trials of the same cause or question between the same parties. By contrast, it is also a principle of our law that a party is free to invite the court to reach a different conclusion on a particular factual issue from that reached on the same issue in earlier litigation to which, however, he was a stranger. The first principle supports the public interest in finality in litigation. The second principle supports the ordinary call of justice, that a party have the opportunity to put his case: he is not to be bound by what others might have made of a like, or even identical case.
(27) The stance taken by the IAT here, to lay out a determination intended in effect to be binding upon the appellate authorities as to the factual state of affairs in Croatia absent a demonstrable change for the worse vis-à-vis the plight of Serbs, to an extent sacrifices the second principle to the first. By no means entirely: an applicant will of course be heard on any facts particular to his case, and (as the IAT made clear) evidence as to any deterioration in the state of affairs in Croatia would be listened to. Otherwise, however, the debate about the conditions in Croatia generally affecting Serbian returnees or potential returnees has been had and is not for the present to be had again.
(28) While in our general law this notion of a factual precedent is exotic, in the context of the IAT's responsibilities it seems to us in principle to be benign and practical. Refugee claims vis-à-vis any particular State are inevitably made against a political backdrop which over a period of time, however long or short, is, if not constant, at any rate identifiable. Of course the impact of the prevailing political reality may vary as between one claimant and another, and it is always the appellate authorities' duty to examine the facts of individual cases. But there is no public interest, nor any legitimate individual interest, in multiple examinations of the state of the backdrop at any particular time. Such revisits give rise to the risk, perhaps the likelihood, of inconsistent results; and the likelihood, perhaps the certainty, of repeated and therefore wasted expenditure of judicial and financial resources upon the same issues and the same evidence.
(29) But if the conception of a factual precedent has utility in the context of the IAT's duty, there must be safeguards. A principal safeguard will lie in the application of the duty to give reasons with particular rigour. We do not mean to say that the IAT will have to deal literally with every point canvassed in evidence or argument; that would be artificial and disproportionate. But when it determines to produce an authoritative ruling upon the state of affairs in any given territory it must in our view take special care to see that its decision is effectively comprehensive. It should address all the issues in the case capable of having a real as opposed to fanciful bearing on the result, and explain what it makes of the substantial evidence going to each such issue. In this field opinion evidence will often or usually be very important, since assessment of the risk of persecutory treatment in the milieu of a perhaps unstable political situation may be a complex and difficult task in which the fact-finding tribunal is bound to place heavy reliance on the views of experts and specialists. We recognise of course that the IAT will often be faced with testimony which is trivial or repetitive. Plainly it is not only unnecessary but positively undesirable that it should plough through material of that kind on the face of its determination.
(30) It may be thought that this approach is not far distant from the way in which the IAT generally discharges its duty to give reasons, and not only in cases where it resolves to produce an authoritative determination as to the position in a particular country. Indeed we do not mean to suggest that in this latter class of case the IAT's duty is of an altogether different quality. The experienced members of the IAT, not least if we may say so its President and Deputy President, will we are sure have no difficulty in gauging the quality of the reasons given so as to ensure that these authoritative determinations will be, and will be seen to be, effectively comprehensive.
Mr. Justice Munby:
Lord Justice Mummery:
(1) Both sides assume that the appellant "leaves the United Kingdom" for the purposes of s 58(8) by travelling from the United Kingdom to the Netherlands on 30 March 2003 for a short holiday, but is refused entry and returns to the United Kingdom on the following day. I doubt whether that assumption is correct. "Leaves" in relation to a country is capable of covering a wide range of situations ranging, at one end, from the mere fact of physical departure from a country, to, at the other end, emigration to another country. In the context of a stipulated consequence of being treated as abandoning a pending appeal, I seriously question whether the appellant "leaves the United Kingdom" within s 58(8) by travelling out one day for a short holiday and having to return the next day. In the absence of full argument it would not be right to express a concluded view on the point.
(2) Like Sedley LJ I conclude that the appeal of the appellant to this court, which was pending at the date of his journey to the Netherlands, is not a "pending appeal under this Part [i.e. Part IV]" within 58(8). It is true that Part IV relates to appeals and that this is an appeal which was pending at the relevant time. An appeal to the Court of Appeal is not, however, an appeal "under Part IV." The appellate authorities who hear appeals under Part IV are the IAT and the adjudicators, as mentioned in s 56 and s57. S 58, which contains general provisions in relation to appeals, expressly recognises, in its reference to the provisions of Part III of Schedule 4, a distinction between "..appeals under this Part" (s 58 (4)(a)) and "further appeals" (s58(4)(b). It is clear from paragraph 23 of Part III of Schedule 4 (Determination of Appeals) that whereas an appeal to the IAT is "an appeal brought under Part IV", an appeal from the final determination of the IAT to the Court of Appeal on a question of law material to that determination is a "further appeal" by a party. It is not an appeal under Part IV. The argument advanced by Mr Kovats fails on the clear language of s 58 and Part III of Schedule 4, when construed in the context of the appellate structure to which the provisions refer.