England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE MANUELL
AA/10666/2012

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/10/2017

Lord Justice Irwin :

Introduction

1. This is an appeal from the decision of Deputy Upper Tribunal Judge Manuell, promulgated on 11 April 2014, who in turn dismissed an appeal from First-tier Tribunal Judge Beg, that decision being made on 15 January 2014. Judge Beg refused the Appellant's claims for asylum and humanitarian protection. She says she will in any event be at risk as a Christian if returned to Iran. However, she argues that even if Christians can practise their religion unmolested in Iran, an apostate falls into a different category. Critically, the Appellant relies on the assertion that her history and her conversion are "an intrinsic part of her identity", and, consistently with the decision of the Supreme Court in HJ (Iran) v SSHD [2011] 1 AC 596, she argues that she cannot be required to conceal that history: to do so would be to infringe her rights under Article 1 of the Refugee Convention 1951.
2. The Appellant also claims that, as a victim of domestic violence in Iran, she is to be regarded as "a member of a particular social group" under the Convention, and will be at risk of persecution. Thirdly, she claims to be at risk on the ground of her previous illegal exit from Iran.
3. In each case, the Appellant argues that the First-tier Tribunal failed to give adequate reasons for concluding she had not demonstrated a well-founded fear of persecution, and hence on each ground there was a material error of law. The Appellant seeks a fresh hearing.

Background

4. The Appellant is an Iranian national born on 4 October 1970.
5. On 3 September 2001 she applied for a visit visa for the United Kingdom. It was granted the same day and valid until 3 March 2002. She arrived in the Unite Kingdom on 28 September 2001. On 15 October 2001 the Appellant applied for asylum on the basis of her political activities. The application was refused on 6 December 2001 and a subsequent appeal dismissed on 19 September 2002. The Appellant's appeal rights were exhausted on 30 October 2002. On 14 February 2003 she lodged an application for permission to apply for judicial review but permission was refused on 16 March 2003. On 16 April 2009 the Appellant was served with removal directions which were cancelled on 3 June 2009 due to the Appellant's disruptive behaviour at port. On the same day the Appellant's removal directions were reset and she was removed to Iran on 20 June 2009. She claimed that she was detained by the immigration service on arrival in Iran and her passport was confiscated because it had expired.
6. The Appellant claims to have left Iran illegally in the back of a lorry in early September 2012. She arrived in the United Kingdom via Turkey and a number of unknown countries. She entered the United Kingdom on 12 September 2012. She made a claim for asylum on 15 October 2012 on the basis that she had a well founded fear of persecution in Iran based upon her political activities in the United Kingdom since her arrival in 2012, her illegal exit from Iran, her conversion to Christianity and the risk of domestic violence from her husband who she claims is a member of the Iranian Sepah (intelligence service).
7. On 14 November 2012 and 8 February 2013 the Secretary of State for the Home Department refused her asylum claim under paragraph 336 of HC 395 as amended and took a decision to remove her as an illegal immigrant entrant from the United Kingdom by way of directions under paragraphs 8-10 of the Immigration Act 1971.
8. The matter then came before the First-tier Tribunal on 12 March 2013. In a determination dated 18 March 2013 Judge Kanagaratnam dismissed the appeal. The matter then came before Deputy Judge of the Upper Tribunal I A Lewis on 24 May 2014. In a determination dated 24 May 2013 he remitted the matter back to the First-tier Tribunal for a full rehearing.
9. The Appellant's appeal to the First-tier Tribunal was on the basis that (i) her removal from the UK would place the UK in breach of its obligations under the 1951 United Nations Convention and the 1967 Protocol relating to the status of refugees (Refugee Convention) and (ii) she is entitled to humanitarian protection under the Refugee or Persons in Need of International Protection (Qualification) Regulations 2006 (the Refugee Qualification Regulations) under the associated or amended Immigration Rules.
10. On 15 January 2014 Judge Beg sitting in the First-tier Tribunal refused the remitted appeal. On 3 February 2014 the First-tier Tribunal granted permission to appeal. On 10 April 2014 Judge Manuell sitting in the Upper Tribunal dismissed the appeal. On 14 July 2014 Judge Kekic sitting in the Upper Tribunal refused permission to appeal from that decision.
11. In an Order sealed 28 June 2016 Lord Justice Ryder granted permission to appeal following an oral renewal hearing. Only three grounds of appeal are pursued (grounds 3-5 in the Grounds of Appeal attached to the Notice of Appeal). I have renumbered them here.

The Grounds Now

12. Ground 1: The First-tier Tribunal failed to give adequate reasons for its conclusion that the Appellant, as a victim of domestic violence in Iran, was incapable of being a 'member of a particular social group' under the Refugee Convention 1951.
13. Ground 2: The FtT failed to give adequate reasons for its conclusion that the Appellant did not demonstrate well-founded fear of persecution on grounds of religion (Christianity).
14. Ground 3: The FtT failed to give adequate reasons for its conclusion that the Appellant did not demonstrate well-founded fear of persecution on grounds of her illegal exit from Iran.
15. The challenge to the Upper Tribunal decision is simply that Upper Tribunal Judge Manuell rejected the submissions in respect of the First-tier Tribunal.

The First-tier Tribunal decision in more detail

16. Part of the Appellant's claim before the First-tier Tribunal was that her family and her husband's family were involved with the Mujahedin Khalgh movement, hostile to the Iranian government and on that basis she would be at risk of adverse attention from the Iranian authorities. The First-tier Tribunal found that she was not questioned about such involvement on her return to Iran on 9 June 2009. The questioning was simply that which would be expected when a person who arrived with an expired passport. After questioning she was allowed to go home. The Judge found that the Appellant had fabricated her evidence about her questioning in Iran after she returned to her husband's home in order to support her claim. The Appellant was not a wanted individual prior to her return to the United Kingdom in 2012.
17. There is no appeal before us in relation to the adverse credibility findings below.
18. The Appellant also sought to rely on activities in the United Kingdom after her return in 2012 which she said would identify her as an opponent of the regime. Reviewing the evidence, the First-tier Tribunal concluded that her role was quite insufficient for her to be singled-out as a political opponent and further found that the Appellant had attempted to bolster her asylum claim by her involvement in demonstrations and meetings. As a matter of fact the Tribunal found that the Iranian authorities were not aware that the Appellant had been involved in political activities in the United Kingdom (Determination, paragraph 52).
19. The Tribunal went on to find that if the Appellant was returned to Iran, the fact that she had exited Iran illegally:

"would not be a significant risk factor and will not place her at real risk of persecution other than to ask her to fill a form stating why she had come back to the United Kingdom and what she was doing there." (Determination, paragraph 54)

20. There were no outstanding arrest warrants against the Appellant. She had been able to travel to the United Kingdom in 2001 on a visit visa and able to return to Iran in 2009 and to live in her home in Tehran. The Appellant's sur place activities were unknown to the Iranian authorities. The evidence from the expert Dr Fatah as to the likely treatment of the Appellant on her return were based on the Appellant's account that she had frequently been called for interrogation on her previous return to Iran. Those assertions were not credible.
21. Before the First-tier Tribunal the Appellant had claimed she suffered extreme domestic violence from 2009 to 2012 before her return from Iran. She sought to rely on photographic evidence of bruises from January 2013. The Tribunal rejected her factual case on such injuries and rejected other evidence advanced by the Appellant concerning the difficult atmosphere between her and her husband, including evidence from a witness of injuries and bruises on the Appellant's hand, leg and ankle. The Tribunal expressed scepticism about the supporting evidence concerning the Appellant's difficult relationship with her husband, since it came from a close friend of the Appellant who could not have been a direct witness to much of what she described (FtT Judgment, paragraphs 56 and 57).
22. The Tribunal Judge went on to conclude:

"I find that even if I accept on the lower standard of proof that the Appellant suffered domestic violence at the hands of her husband, that in itself is insufficient to establish a well-founded fear of persecution for a Convention Reason. In Shah and Islam [1999] 2 AC 629 the Court held that members of a particular social group must share a common immutable characteristic independent of and not defined by persecution. I find that the Appellant as a woman in Iran even in circumstances of claimed domestic abuse is not a member of a particular social group."

The Appellant complains to us that this passage demonstrates there was a material error of law in the decision. The Respondent agrees there was an error but rejects the suggestion it was material.

23. The Tribunal noted there was no evidence the Appellant had ever sought help in Iran from the authorities, or other individuals or women's rights organisations, whilst in Iran. There is no evidence the Appellant sought to divorce her husband while in Iran, although the Iranian Civil Code provides a relevant Ground for divorce. Expert evidence before the Tribunal from Dr Fatah stated that many women were not able to escape a violent home in Iran because of economic dependence on their husband and the fear of losing their children. However, the Tribunal went on to find:

"… the Appellant is not economically dependent on her husband. She is an educated woman who could seek to live elsewhere in Iran with the assistance of her friends, and indeed her sister from the United Kingdom, to re-establish herself in Iran. Her daughter is almost an adult and lives with her father." (Judgment, paragraph 59)

24. In relation to the Appellant's conversion to Christianity, the Tribunal recorded that the Appellant was baptised on 17 August 2002 in Leicester. The Tribunal went on to make findings on this aspect of the case as follows:

"60. …There is no evidence that the appellant's conversion to Christianity formed the basis of a claim for asylum or humanitarian protection when she previously claimed asylum in the United Kingdom in 2002. I find that in the screening interview on 15 October 2012 the appellant was asked what religion she was and she stated that she had no religion. The appellant now states in her witness statement paragraph 13 bundle A that she did not feel comfortable with the interpreter who was a Muslim with a beard and that that is why she did not state that she was a Christian. I do not find that credible. I find that the appellant was well aware that she had made a claim for asylum for the second time in the United Kingdom and that part of her claim for asylum was her conversion to Christianity; she would therefore have known how important it was for her to state that she was a Christian.

61. In SZ and JM (Christians – FS confirmed) [2008] UKAIT 00082 the Court held that conditions for Christians in Iran have not deteriorated sufficiently to necessitate a change in guidance to FS (Iran) CG [2004] UKIAT 00303. To some converts to sacrament based churches, the conditions may be such that they could not reasonably be expected to return and their cases must be considered on HJ (homosexuality: reasonably tolerating living discreetly) Iran [2008] UKAIT 00044 grounds. The Court referred to proposed changes in the criminal law which were not solely aimed at converts. The Court held that "proselytising" and "evangelising" are not terms of art and distinctions should be drawn between them. I find that Ms Meredith's submissions that FS should no longer be followed as it relates to a different regime and applies a discredited test is not persuasive. I find that SZ and JM confirmed FS as good law and referred to the two stage test in HJ. There must be very good reasons not to follow a country guidance case.

62. In the witness statement of the appellant in bundle B, the appellant has stated at paragraph 7 that she was trying to explain in interview that religion is personal to her and that she did not want to use it to try to stay in the country. She states that she now realises that she should have mentioned it as she would not be able to practise her faith if she returns to Iran. The appellant goes on to make detailed comments about the questions asked of her in interview regarding her Christian faith. Ms Knowles on behalf of the respondent accepted that the appellant has converted to Christianity. I find that there is no evidence that she was ever questioned about Christianity when the appellant was living in Iran between 2009 and 2012. The appellant gave evidence that she did not speak to anyone about the Christian faith and did not attend church. In cross-examination the appellant confirmed that she has spoken to her sister and her niece about her Christian faith. I find that there is no evidence before me that the appellant has made any serious attempts to convert either her sister or her niece to Christianity. In cross-examination she said that she gave bibles to two friends. Mr Farzi in his evidence said that the appellant had not attempted to convert him to her faith and that he is a Marxist. I find that there is no evidence from any church or fellow Christians other than the appellant's friend Abel Chogani that the appellant considers herself to be an evangelist and considers this to be an integral part of her faith. There is no credible evidence before me that the appellant has ever evangelised in this country.

63. … I find that the appellant did not base her previous claim for asylum on her conversion to Christianity and evangelical activities before she was removed from this country in 2009. There is no additional evidence before me of specific examples of the appellant's evangelical activities. Paragraph 31 of the skeleton argument submitted on the appellant's behalf states that the appellant did tell her representatives in 2002 about her conversion to Christianity. It accepts however that the appellant did not seek to rely upon her conversion to Christianity in her first claim for asylum.

…

65. Dr Fatah in his report at paragraph 72 states that Iranian Muslim converts to Christianity are already at risk of prosecution under Sharia law where the penal code does not cover a particular offence. I do not find for the reasons that I have already given that the appellant is known to be a Christian convert. I find that she would be able to move away from her home area to another part of Iran where it would not be known that she was born into the Islamic faith and converted to Christianity. I attach limited weight to Dr Fatah's conclusion at paragraph 108 that the appellant will be at risk on arrival at Tehran Airport "as she would instantly come to the attention of the authorities". I do not find that the appellant will instantly come to the attention of the Iranian authorities other than for the fact that she left Iran illegally. He states at paragraph 109 that the appellant's name would be put on the records at the airport. I find that the appellant's name would already be on a record at the airport because she previously arrived into the country in 2009 with an expired passport.

66. I find that the appellant did not attend church when she lived in Iran between 2009 and 2012. The Country of Origin Information Report on Iran 2013 states that there are 300,000 Christians living in the country and the majority of them are ethnic Armenians. Christianity is referred at paragraph 19.37 as a recognised religion under the Iranian constitution and Orthodox Christians are largely accepted. I find that the appellant will not be returning to live with her husband in Iran. For the reasons I have already given I do not find that she will be forced to live with her husband. I find that the appellant can relocate to another part of Iran with the assistance of her friend Gita and Gita's family members. I find that the appellant regarded her faith as private.

67. Paragraph 31 of the skeleton argument submitted on the appellant's behalf confirms that the appellant did not originally seek to rely on her conversion to Christianity and her first claim for asylum because she considered it to be a personal matter. I find that she also refused to state that she was a Christian when she was interviewed in relation to the present claim for asylum. I do not find for the reasons that I have given that the appellant is an evangelist or considers evangelism as an integral part of her faith. I find that she would be able to live in Iran as an ordinary Christian in an area outside of her home area. In considering the risk on return I take into account all the objective evidence including bundle G in the appellant's bundles. I take into account the UNHCR report relating to political prisoners. In conclusion and in taking the evidence as a whole I do not find that the appellant has established a well-founded fear of persecution for a Convention reason. For the same reasons I do not find that the appellant will be at risk of suffering serious harm on return."

25. As will already be clear, Judge Beg considered HJ (Iran) [2010] UKSC 31. She expressed the application of this authority as follows:

"64. In HJ (Iran) and HT (Cameroon) [2010]UKSC 13 the court held that the Refugee Convention was to provide protection in the receiving state which was not available in the home state where there was well-founded fear of persecution within the meaning of Article 1A(ii), that such international protection was available where, as members of a particular social group defined by the shared characteristic of sexual orientation, the claimants should not be denied their fundamental right to live openly and freely as themselves, without fear of persecution, that "persecution" within the meaning of the Convention meant persecution sponsors or condoned by the home state and not such as arose from social or family disapproval or discrimination. The court further held that where a claimant could avoid persecution only by modifying his behaviour on return to his home country but chose not to do so he had a well-founded fear of persecution and since persecution did not cease to be so because those fearing it could take avoiding action, a claimant who would live discreetly on return for the material but not necessarily the sole, reason that he feared persecution would not lose the protection of the Convention. The court held that it was for the Tribunal conducting its factual enquiry in the particular circumstances of each case to consider why the claimant had exercised discretion and to accept his claim where his discretion arose materially from his well-founded fear of persecution but to reject it where it was due to social or family pressures, that the test applied by the Tribunal and the Court of Appeal was therefore incompatible with the rationale of the Convention and with the definition of refugee."

26. In approaching criticism of reasons given by a First-tier Tribunal, the Respondent correctly reminds us to avoid a requirement of perfection. As Brooke LJ observed in the course of his decision in R (Iran) v The Secretary of State for the Home Department [2005] EWCA Civ 982, "unjustified complaints" as to an alleged failure to give adequate reasons are all too frequent. The obligation on a Tribunal is to give reasons in sufficient detail to show the principles on which the Tribunal has acted and the reasons that have led to the decision. Such reasons need not be elaborate, and do not need to address every argument or every factor which weighed in the decision. If a Tribunal has not expressly addressed an argument, but if there are grounds on which the argument could properly have been rejected, it should be assumed that the Tribunal acted on such grounds. It is sufficient that the critical reasons to the decision are recorded. In respect of each of these grounds of complaint, the Secretary of State submits that perfectly acceptable reasoning was set out in the First-tier Tribunal decision.

Ground 1:

27. For the Appellant, Ms Farbey QC notes that it is well-established that a "particular social group" within the meaning of Article 1A(2) of the Convention means a group of persons sharing a common characteristic, other than their risk of persecution, which serves to distinguish that group from the remainder of society. The common characteristic may be innate and immutable, or so closely linked to identity, conscience or exercise of a person's human rights that the individual should not be required to change the characteristics: see Fornah v Secretary of State for the Home Department [2007] 1 AC 412. It is a mixed question of fact and law as to whether women in a particular country form a social group defined by innate and unchangeable characteristics and differential treatment from men: see also Fornah.
28. In concluding that the Appellant, as a woman in Iran, was not a member of a particular social group, the Respondent agrees that the First-tier Tribunal fell into error. The Secretary of State's position accepts that women in Iran do form a particular social group, based on their innate characteristics, but submits that the findings of the Tribunal were that the Appellant did not have a well-founded fear of persecution as a result, for the reasons identified. Unlike many members of that social group in Iran, she would not return to live with her husband due to economic constraints or in order to look after children. She was well-educated, with no dependant child, and was able to – would in fact – position herself in independent life. She could not establish a well-founded fear of persecution.
29. In my judgment, there was an error by Judge Beg, although perhaps in expression. However, there is no proper basis to criticise her factual findings on this issue. She concluded that the Appellant was not at risk of persecution. That is what she should have said. Mr Hickman is correct that the error was not material. I would dismiss the appeal on this ground.
30. I turn next to Ground 3. Under this Ground Ms Farbey argues there were three flaws in the decision. First, while it was correct to conclude, with SB (Iran) CG [2009] UKAIT 00053 in mind, that earlier illegal exit was insufficient to give rise to a risk on return, Judge Beg failed to consider the risk that the Appellant's UK-based political activities in Britain might become known, as a result of form-filling or questioning on her arrival in Iran. Second, when placing reliance "on the lack of evidence as to what [she] would be questioned about on return" [paragraph 55], Judge Beg failed to have regard to the Country Information Guidance as to the treatment of failed asylum seekers. In particular, the Appellant makes reference to a report from Amnesty International of February 2012, indicating that returning asylum seekers are interrogated as to their political activities abroad, and "will be held for a few days until it is clear to police that they have not been involved in political activity". This guidance was referred to in the Respondent's Country Information, and should have been considered by the First-tier Tribunal.
31. Thirdly, if and to the extent that the First-tier Tribunal placed reliance on the Appellant's ability to conceal her political activities by omitting any mention of them when completing questionnaires or in interview, such an approach would conflict with the dicta of the Supreme Court in RT (Zimbabwe) v The Secretary of State for the Home Department [2013] 1 AC 152, see the judgment of Lord Dyson at paragraphs 26/27.
32. The Secretary of State suggests that the First-tier Tribunal dealt properly with this aspect of the claim, in paragraphs 45 to 55 of the determination. Starting from the findings that the Appellant had exaggerated the interest in her during her previous stay in Iran, and sought to boost her case by her sur place activities, and then having regard to the general and low level nature of those activities, the Tribunal was justified in concluding that those activities had not been sufficient to bring her to the attention of the Iranian regime, despite the degree of monitoring of activities within and outside Iran. She has "no real political profile" in Iran, and there was no convincing evidence that she was identifiable or identified by the Iranian regime. Mr Hickman submits that Judge Beg dealt with this issue directly and sufficiently. He further argues that the fact the judge did not mention "every item of evidence" falls far short of an error of law.
33. Here too I would accept the submissions of the Respondent. This Ground in large part represents a challenge to the factual findings in the First-tier Tribunal. In essence, Judge Beg concluded that the Appellant's political activity was at a low level, so low that she has fallen under the radar of the Iranian government. There was no evidence to suggest the Appellant would be a suspected political activist or that she would be questioned directly about political activity. Mr Hickman is correct that the Tribunal did not conclude that the Appellant would be required to lie about her political engagement in Britain. As the Appellant's expert Dr Fatah stated (paragraph 55), it is "not always clear why people are questioned" on entry and "there is no way of knowing what they are questioned about".
34. It appears to me that the Tribunal's reasoning is sufficiently clear in relation to this Ground, and here too I would dismiss the appeal.
35. I turn to Ground 2. As I have already indicated, the nub of this Ground is not that the Appellant will be persecuted for being a Christian or practising her Christianity. She converted in 2003 and since her conversion, has spent a number of years in Iran. She did not evangelise or proselytise. She regarded her religion as a personal matter and indeed seems to have sought no public expression of her Christianity. The Judge found (paragraph 62) that there was no evidence she had ever evangelised in Britain. She never raised her religion in the course of her earlier unsuccessful asylum claim prior to her return to Iran in 2009.
36. It is common ground that there are a considerable number of practising Christians living in Iran. Provided they do not proselytise they are not subject to persecution. In addition Judge Beg found that the Appellant would move from her home and could live as a Christian in an area where she was not known to be a convert.
37. The essential challenge under Ground 3 is not in fact to the adequacy of the reasons expressed by Judge Beg. The reasons are tolerably clear. The challenge is to his approach. The argument is that she misdirected herself. The ambit of the protection of the Appellant on the grounds of her religion are said to extend to her personal history. The argument is that her history as a convert is an intrinsic part of her religious identity, and she must not be constrained to conceal it through fear.
38. It is agreed that the United Nations International Covenant on Civil and Political Rights (1966) protects the Appellant's freedom of religion and her freedom to change religion. Article 18 reads in part:

"Article 18. 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice."

39. In her Supplementary Written Submissions, Ms Farbey argues that the Appellant's characteristic as a convert is immutable: she cannot alter that history. The history is so fundamental to her identity that she should not be required to change or renounce her conversion in order to avoid persecution: see RT (Zimbabwe) v The Secretary of State for the Home Department [2013] 1 AC 152, and in particular the judgment of Lord Dyson at paragraphs 25 to 28.
40. In essence, Mr Hickman replies that no basis is put forward for a conclusion that the Appellant's conversion is part of her religious identity, as opposed to being a historical fact. The route by which an individual acquires religious belief, by upbringing or conversion, does not form part of religious identity, or (at least necessarily) religion. Since the fact of conversion is not part of the Appellant's religious belief, and her ability to practise the religion to which she has converted is not precluded, she has no claim to refugee status.
41. Mr Hickman also emphasises the findings before the Tribunal. The Appellant regarded her religion as a private matter. Hence, the Appellant had not previously and would not seek to proselytise her religion, and for that reason she was not in the category identified by Lord Dyson in HJ (Iran) [2011] 1 AC 596, at paragraph 110, and quoted by him in RT (Zimbabwe) at paragraph 27: she was not concealing her religion in order to avoid persecution. If she did "exercise discretion", it was not for that reason.
42. Thus far, I agree with Mr Hickman. The personal history of conversion is clearly not a part of the Appellant's religious belief or identity as a Christian. It might be different if she was a member of a Christian denomination which taught that active evangelising was a duty, since such evangelising might well bring the convert evangelist to describe her conversion. The expression of her religious faith in those circumstances, it seems to me, might well include her conversion. But that does not arise on the facts here.
43. The history here demonstrates that the Appellant lived in Iran for the period 2009 to 2012, amongst those who knew she was born and brought up as a Muslim, and yet she practised her religion in the way and to the extent she chose, with no evidence of persecution or interference of any kind. The Appellant will not return to live where she did, for reasons unconnected with her religion. The findings of Judge Beg, that she would be able to live elsewhere in Iran where her history would be unknown, were unchallenged as a matter of fact.
44. In those circumstances, in my view, Judge Beg did not fall into error in concluding that the Appellant had failed to establish that she was at risk of persecution on the ground of her religion. For those reasons, I would dismiss the appeal.
45. Lord Justice Moylan:

I agree

46. Lady Justice Rafferty:

I also agree