AM (Iran) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Sharp,Lord Justice Simon,Lady Justice Thirlwall |
| Judgment Date | 06 December 2018 |
| Neutral Citation | [2018] EWCA Civ 2706 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C9/2017/1131 |
| Date | 06 December 2018 |
[2018] EWCA Civ 2706
Lady Justice Sharp
Lord Justice Simon
and
Lady Justice Thirlwall
Case No: C9/2017/1131
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IAC)
Upper Tribunal Judge Kopieczek
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr John-Paul Waite (instructed by Government Legal Department) for the Appellant
Mr Manjit Gill QC and Ms Priya Solanki (instructed by Braitch, Solicitors) for AM (none of whom appeared in the court below)
Hearing date: 30 October 2018
Introduction
This is an appeal by the Secretary of State from a decision of the Upper Tribunal (Asylum and Immigration Chamber) (‘UT’) promulgated on 25 January 2017. In that decision Upper Tribunal Judge Kopieczek (‘the UT Judge’) concluded that deporting the respondent (‘AM’) to Iran would place him at risk of ill-treatment in contravention of his rights under article 3 of the European Convention of Human Rights (‘ECHR’).
Background
AM is an Iranian national who was born in 1980. He entered the United Kingdom on 15 January 2006 and lodged an asylum application the same day. This was rejected on 3 February 2006. His rights of appeal against that refusal were exhausted on 2 June 2006. On 1 April 2008, he applied for an EEA Residence Card as a member of the family of his wife, an EEA national. This application was refused on 28 April 2009. A new application was then submitted on 8 December 2009, and this was granted with effect until 8 December 2014.
On 5 August 2013 he was found guilty of the rape of a 17-year old girl on 28 September 2012, and sentenced to a term of five years imprisonment, with an order of indefinite registration on the sex offenders register. He was released from prison on 18 August 2015.
Under the Regulation 19(3)(b) of the Immigration (EEA) Regulations 2006 (‘The EEA Regulations’), the Secretary of State may deport a family member of an EEA national provided that the person's removal is justified on grounds of public policy, public security or public health. By a decision dated 24 July 2015, the Secretary of State issued a deportation order on grounds that the respondent represented ‘a genuine, present and sufficiently serious threat to the public to justify … deportation on grounds of public policy.’
The appeal from that decision came before Tribunal Judge Astle in the First Tier Tribunal (‘FtT’) on 11 May 2016. She dismissed the appeal against the deportation order under articles 3 and 8 of the ECHR. She also upheld the certificate under s.72 of the Nationality, Immigration and Asylum Act 2002 on the basis that AM had been convicted of a ‘particularly serious crime and constituted a danger to the community.’ The effect of her conclusion was that AM was, and continues to be, excluded from the protection of the Refugee Convention and a grant of humanitarian protection.
AM appealed to the UT on grounds that the FtT, had (a) applied the incorrect standard of proof to the assessment of risk under articles 2 and 3, and (b) erred in law in its assessment of risk on return.
On 13 September 2016, the UT Judge allowed the appeal and directed that the decision be re-made by the Upper Tribunal. That decision was re-made by the UT Judge and promulgated on 25 January 2017. The hearing before us was an appeal from that decision.
Some of the factual findings of the FtT remained undisturbed. So far as material they were, in summary, as follows. (1) AM had left Iran illegally. (2) He represented a danger to the community and was therefore disentitled to humanitarian protection or protection under the Refugee Convention. (3) His purported conversion to Christianity was fabricated in order to establish a claim that he would be at risk upon return to Iran as a Christian convert.
The decision under appeal
The issue before the Upper Tribunal was whether to deport AM to Iran would violate his rights under article 3. The UT Judge concluded that it would.
AM had argued that the FtT's findings that his conversion to Christianity was not genuine did not answer the issue of the degree of risk on return. As he had left Iran illegally, he would be subject to enhanced interest by the authorities. Their questions would include questions about his internet activity. The effect of his tweets was that he would be viewed as Christian. He could not be expected to lie; and would therefore have to admit that the Twitter account was his even if the authorities did not believe he was a true convert. He would nonetheless be regarded as having been involved in anti-Islamic conduct.
It was argued on behalf of the Secretary of State that, if AM returned to Iran, in the ‘unlikely event that he is asked about his Twitter account, he would be able to say what happened and he would be seen as an economic migrant.’ It was further submitted that AM had merely tweeted verses from the Bible and that there was no genuine anti-Islamic content.
At §23 of the decision, the UT Judge concluded that the authorities established that, on his return AM would be questioned both about his illegal exit from Iran and his asylum claim; and that he could not be expected to lie. AM could therefore be expected to explain details of his asylum claim to the Iranian authorities, that his Twitter postings were simply an attempt to gain status in the UK and that he was not a real Christian convert.
At §25, the UT Judge said:
It cannot realistically be supposed that, on [AM] admitting having posted Bible quotes on his Twitter account, the matter would not be further explored by the Iranian authorities.
He had considered the contents of the 850 Twitter posts and disagreed with the Secretary of State's characterisation of them as ‘simply quotations from the Bible.’ There were quotations from the New Testament and religious images, and retweets which were likely to find disfavour with the Iranian authorities.
Paragraph 27 of the UT decision was in these terms:
It was not disputed on behalf of [the Secretary of State] that if [AM] was thought to be a Christian convert, then he would be at real risk of ill-treatment. That is also the effect of the CIG to which I was referred, and which is consistent with other background evidence. It seems to me that there is a reasonable likelihood that the authorities would view the appellant as a Christian convert, with all that this means in terms of risk ( emphasis added).
It is this paragraph, with its references to (1) a concession on behalf of the Secretary of State, (2) the effect of the CIG (Country Information Guidance) and (3) the extent of risk to someone viewed as a Christian convert, that lies at the heart of the Secretary of State's appeal that gives rise to one of the grounds of appeal.
The Judge continued:
28. Furthermore, there is also a reasonable likelihood that the appellant would be viewed as someone involved in anti-Islamic conduct, even if it is accepted by the authorities that his extensive Christian twitter postings were merely opportunistic. As explained in SB [(risk of return – illegal exit) Iran CG [2009] UKAI 0053] at [45], such presents as a significant risk factor.
29. In all the circumstances, I am satisfied that the appellant has established that there is a real risk that on his return he would be questioned about the details of his asylum claim and that that questioning would reveal that he has posted on Twitter. For the reasons explained above, that interrogation would involve a real risk of ill-treatment amounting to a breach of article 3.
The UT Judge remade the decision, allowing the appeal on the basis that article 3 provides for protection in absolute terms.
The Secretary of State's appeal
The first ground
The first ground is a complaint that, when considering whether AM's purported conversion to Christianity would place him at risk, the UT failed to consider the most recent applicable Country Guidance cases: FS and others (Iran—Christian converts) Iran CG [2004] UKIAT 00303 and SZ and JM (Christians—FS Confirmed) Iran CG [2008] UKIAT 00082.
Mr Waite submitted that the case of FS and others (2004) provided clear guidance as to the correct approach to be adopted in relation to the position of Christian converts in Iran. At 187, the Upper Tribunal had set out the position:
187. For the ordinary convert, who is neither a leader, lay or ordained, nor a Pastor, nor a proselytiser or evangelist, the actual degree of risk of persecution or treatment breaching Article 3 is not sufficient to warrant the protection of either Convention. The reality is that a social and economic life can be maintained; Christianity can be practised, if necessary, cautiously at times, by Church attendance, association with Christians and Bible study. There may well be monitoring of services and identity checks. They would be able to practise, however, as most Iranian converts do. It is realistic to expect that there may sometimes be questioning, disruption, orders not to attend Church, which may require the convert to stay away for a while. But there is no evidence of a real risk of ill-treatment during such questioning or of anything more than a short period of detention at worst. There is evidence of random or sporadic violence by the likes of the Basiji, but at too infrequent a level to constitute a real risk to the ordinary convert. The longer official questioning, detentions, and the greater risk of charges, trumped up or menacingly vague or simply threatened are not a real risk for the ordinary convert.
188. We would, on the present evidence, regard them as not at a real risk of persecution or treatment breaching Article 3. We allow in that assessment for some recent worsening in the current climate.
189. We would...
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