ON APPEAL FROM UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE MANUELL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE IRWIN
LORD JUSTICE MOYLAN
| AS (IRAN)
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Tom Hickman (instructed by the Government Legal Department) for the Respondent
Hearing date: 20 June 2017
Crown Copyright ©
Lord Justice Irwin :
The Grounds Now
The First-tier Tribunal decision in more detail
"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)
"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  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.
" 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)
"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)  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  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  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."
"64. In HJ (Iran) and HT (Cameroon) 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."
"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."
I also agree