Shirazi v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WARD:,LORD JUSTICE BUXTON,Lord Justice Sedley,Mr. Justice Munby,Lord Justice Mummery |
| Judgment Date | 06 November 2003 |
| Neutral Citation | [2003] EWCA Civ 1562,[2003] EWCA Civ 745 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 November 2003 |
| Docket Number | Case No: C1/2003/0459,C1/2003/0459 |
[2003] EWCA Civ 1562
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION
APPEAL TRIBUNAL
lord Justice Mummery
Lord Justice Sedley And
Mr. Justice Munby
Case No: C1/2003/0459
MS F WEBBER (instructed by Switalski's, Wakefield) for the Appellant
MR S KOVATS (instructed by the Treasury Solicitor, London SW1H 9JS) for the Respondent
The appellant is an Iranian who belongs to a Muslim family. He reached this country on 25 July 2001 and claimed asylum nine days later. The single ground on which he claimed asylum was a well-founded fear of persecution by reason of his actual or perceived political opinions.
The factual basis of the claim was, in summary, this. The appellant's father had spent five years in the early 1980s as a political prisoner. His brother-in-law who, with the appellant's sister, has been a member of the Mojahedin, had spent six years in prison. His own home had been searched several times by the security or intelligence service, with whom his activities in a radical theatre group had earned him a file. He had been injured and arrested in a student demonstration in 1999. Released after a day, he was rearrested and menacingly interrogated for four days, and was made to sign a document professing repentance. On release he went into hiding. On learning that the authorities were again looking for him and had a warrant out for him, he fled the country.
While awaiting a decision on his claim the appellant became a member of the Church of England and on 30 December 2001 was baptised at Pontefract parish church. There was evidence which satisfied the Immigration Appeal Tribunal that his conversion was sincere.
The Home Office turned down his claim to be a political refugee. On appeal the adjudicator, Mrs N.A.Baird, treated the asylum and associated human rights claims as based both on political and on religious grounds. She concluded that on neither ground was there a well-founded fear of persecution within the meaning of the Refugee Convention, but that on both grounds there was a real risk of torture or inhuman treatment contrary to article 3 of the European Convention on Human Rights.
The Immigration Appeal Tribunal (Mr Spencer Batiste and Mrs A.J.F.Cross de Chavannes) allowed the Home Secretary's appeal. They pointed out, correctly, that the conclusions on asylum and on human rights were inconsistent with one another, at least in the absence of some sound explanation for the discrepancy. They adopted the IAT's decision in Fazilat [2002] UKIAT 00973 to the effect that prison conditions and trials in Iran do not in themselves at present violate article 3. This left the asylum claims. As the IAT pointed out, "if [Mr Shirazi] faced a real risk of breach of his article 3 rights in respect of his religious conversion this would also be sufficient to establish an asylum claim." This was true, but it did not of course follow that the failure of the human rights claim in relation to the religious conversion meant that the asylum claim based on it must also fail.
As to this, however, the IAT held that the adjudicator had made unwarranted assumptions. They set aside her decision and went on to make their own findings. These were that Mr Shirazi's conversion was genuine, but that as a non-evangelical he would not be at risk by reason of overt activity. On the therefore critical question whether he would be at risk as an apostate they concluded:
(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 [2002] UKIAT 05079 and Khoshkam [2002] 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.
The IAT's decision is impressive in its brevity and cogency. But it has been subjected by Ms Webber to a powerful critique, resisted by Mr Kovats for the Home Secretary on the ground that the decision is one of fact and discloses no issue of law.
But Mr Kovats first submits that this appeal has aborted by operation of law. On 30 March 2003 the appellant travelled (apparently on a false Iranian passport) from the United Kingdom to the Netherlands. He was refused entry and returned here the next day. Section 58(8) of the Asylum and Immigration Act 1999 provides:
"A pending appeal under this Part is to be treated as abandoned if the appellant leaves the United Kingdom."
The episode hardly suggests migration or abandonment. But (subject to one issue of meaning) there is no doubt that, the appellant having ventured for 24 hours outside the jurisdiction, we are obliged to treat this appeal as abandoned if, but only if, it is in law an appeal under Part IV of the 1999 Act.
Pill LJ having adjourned the application for permission to appeal into open court so that the Home Secretary might be represented, Ward and Buxton LJJ granted permission, acknowledging that the question under s.58(8) would have to be dealt with. On the substantive issue, Ward LJ noted that there were apparently two contradictory lines of authority, or at least of decision-making, in the IAT on the question of the risk of persecution faced by what is elliptically referred to as an innate apostate —that is, a person born into the Muslim faith and abandoning it by choice. He and Buxton LJ considered that this court ought to consider the resulting problem.
Has the appeal to be treated as abandoned?
Logically this question comes first. It arises out of s.58 of the 1999 Act, which has now been repealed and replaced with effect from 1 April 2003 by similar provisions in the Nationality, Immigration and Asylum Act 2002 (s.161 and Sch.9; ss.81–117).
Section 58 in full provided:
(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.
The true meaning of "leaves" in s.58(8) is an open question: see the concluding remarks of Waller and Chadwick LJJ in Dupovac [2000] Imm AR 265. I will assume for the purpose of this judgment, as Ms Webber has assumed for the purpose of her argument, that departure from the UK, provided it is voluntary, does not have to be with the intention of giving up residence here. But it is to be noted that s. 3(4) of the Immigration Act 1971 causes leave to enter or remain to lapse "on … going" to another country. The contrasting use of the verb "leave" in the 1999 Act may be significant, notwithstanding that in Ghassemian and Mirza [1989] Imm AR 42 (CA), to which Mr Kovats has rightly drawn our attention, it was assumed without argument to be synonymous with "going".
Mr Kovats accepts that the legislation on the face of it distinguishes between appeals under the part of the Act, Part IV, which contains s.58 and 'further appeals'. Ms Webber draws our...
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