SS v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr D J Parkes,The Honourable Mr Justice Ouseley,Miss K Eshun |
| Judgment Date | 29 April 2004 |
| Neutral Citation | [2004] UKIAT 91 |
| Court | Immigration Appeals Tribunal |
| Date | 29 April 2004 |
[2004] UKIAT 91
IMMIGRATION APPEAL TRIBUNAL
The Honourable Mr Justice Ouseley (President)
Miss K Eshun (Vice President)
Mr D J Parkes (Acting Vice President)
For the Appellant: Mr D Seddon, instructed by Laura Devine Solicitors
For the Respondent: Ms E Grey, instructed by Treasury Solicitors
SS (ECO — Article 8) Malaysia *
This is an appeal against the decision of an Adjudicator, Mrs C A Scott-Baker, promulgated on 10 th October 2002, whereby she dismissed the appeal of SS against the refusal by the Entry Clearance Officer, Kuala Lumpur, on 21 st March 2001 to grant entry clearance under paragraph 317 of HC 395. The Appellant is a citizen of Malaysia, born 28 th July 1978, applying for indefinite leave to enter. His mother is settled in the United Kingdom. The Appellant was 22 at the date of decision by the Entry Clearance Officer and 24 when the Adjudicator reached her decision; he is now 25 years old.
The background to the case is that the Appellant's mother was a Muslim, ethnic Malay. She married a Malay of Indian origin who converted to Islam when they were married in 1970. After her first child was born, she and her husband converted to Christianity. They had two further children of whom the Appellant is the youngest. The three children were brought up as Christians. Her witness statement states that she was treated as an apostate because of her conversion from Islam. We were told that her then husband did not so suffer because, as a Muslim by conversion, he was perceived differently. She said that she had suffered ever since her conversion because although Christianity is tolerated, apostasy is not. She spoke of being shunned by her sister and of harassment by the Government. In 1992, after marital differences, she left her husband and the marriage was nullified because of her change of religion. She married her present husband, a British national working in Malaysia, in December 1993. He worked in Kuala Lumpur. From the time the Appellant left school in 1995, he came to live with them in Kuala Lumpur. After that time, his natural father would have nothing more to do with him. Her witness statement said, somewhat surprisingly, that this was because of the stigma of her apostasy; after all they had both become Christians together more than 25 years before.
The Appellant's mother and stepfather had decided to retire to the United Kingdom; she applied for leave to enter as the spouse of a British citizen and was granted leave in April 1998; she was granted indefinite leave to remain in 1999. However, even though they had bought a house for their retirement in Sheffield, they had had to postpone their settlement in the United Kingdom because her husband had been required to stay on in Kuala Lumpur for work.
Her children experienced religious and racial discrimination in their applications for places at university in Malaysia. Her eldest child studied in Canada and is now married to a US citizen and lives in the USA. Her second child obtained a place at Sheffield University, graduated and lives in the United Kingdom, in Beckenham. He has a work permit which expires in 2006. The Appellant also studied at Sheffield University, graduating in geography with a 3 rd class. He had entry clearance as a student from August 1997 to March 2001. He returned to Malaysia in March 2001 and made an immediate application for entry clearance for settlement, which was refused in March 2001. He said that he had been led to believe that it would probably be granted, though there has been no evidence as to who said what and no legal argument relating to that has been pursued. His mother was his sponsor, supported by her husband. His brother was also prepared to support his application for entry clearance with accommodation and money. His application for a visitor visa to attend his graduation ceremony in May 2001 was also refused; it was thought that he would not return to Malaysia.
The Adjudicator had evidence of the position in Malaysia for non-Muslims and in particular those who were apostates. She summarised that material as follows:
“To assist me in the assessment of the discriminatory measures in Malaysia there was before me a copy of the US State Department Report of 1998 together with two reports on religion from the US Department of State of 1999 and 2000. I note from the US State Department Report of 1999 that religious freedom was subject to some restrictions and in particular the right of Muslims to practice beliefs other than Sunni Islam. The right of Muslims to change their religion face many practical obstacles. Longstanding policies give preferential status to ethnic Malays and other indigenous people in business, education and other areas and some discrimination against indigenous people in ethnic minorities and some restrictions on worker rights persisted. However the constitution does prove for freedom of religion and religious minorities which include large Hindu, Buddhist, Sikh and Christian communities who generally worship freely although with some restrictions. Adherence to Islam was considered intrinsic to Malay ethnic identity and therefore Islamic religious laws administered by the state authorities to Islamic courts bind all ethnic Malays in some matters. But the government has not imposed Islamic religious law beyond the Muslim community. The government generally respects non-Muslims' rights of worship but the state government carefully controls the building of non-Muslim places or worship and the allocation of land for non-Muslim cemeteries. The right of a Muslim to leave Islam to adhere to another faith is a very controversial question and in practice it is very difficult for a Muslim to change religion. However in August 1998 the government had stated that apostates would not face punishment as long as they did not defame Islam after their conversion. Whilst for a long time the government has discouraged and in practical terms forbidden the circulation in peninsular Malaysia of Malay language translations of the Bible and distribution of Christian tapes and printed materials in Malay, Malay language Christian materials can be found. I note from the US state Annual Report on International Religious Freedom for 1999 in Malaysia that in 1991 8% of the population were Christian and only 59% Muslim. In societal attitudes at Section II of this report it stated that the country's various believers generally live amicably.
The report of 2000 stated that for ethnic Malays the right to leave the Islamic faith and adherence to another religion was a controversial question and in practice it was difficult for Muslims to change religions. In March 1999 the country's highest court ruled that secular courts had no jurisdiction to hear applications by Muslims to change religion and that the religious conversion of Muslims was solely the jurisdiction of Islamic courts. It noted that if the High Court continued to affirm that ruling in future cases it would make conversion of Muslims nearly impossible in practice. The same report still confirmed that apostates would not face government punishment as long as they did not defame Islam after their conversion.
It is clear from these US State Department Reports therefore that there is a sizeable Christian community in Malaysia and that whilst conversion may be coming more difficult the communities continue to live peacefully together and there are no harsh penalties for apostates provided they do not defame Islam. The expert report of Andrew Harding confirmed that Malaysia's population was multi-racial and multi-religious and the Muslims formed only about 55% of the population. I note from the appellant's evidence that his mother had converted to Christianity in 1972 and he was born and raised in the Christian faith. I noted that there is evidence before me from the appellant that he was bullied and discriminated at school because he was a Christian but the background evidence before me indicates that the communities do live peacefully together.”
There was some criticism that the Adjudicator had focused on the degree of general religious tolerance rather than on the position of apostates and the particular difficulties which they faced. The Appellant's mother gave specific examples of discrimination which she had experienced and of harassment at the hands of religious police.
The Appellant produced to the Adjudicator and to us a report from Mr A J Harding, Professor of Law at SOAS. Its contents are largely reflected in the passages set out above. It emphasises the severe social isolation risked by those who convert from Islam, their difficulties in dealing with the state authorities and the growth of opposition parties who seek to impose strict religious Islamic law. A Muslim family would disown any apostate members. Conversion was rare. He also said that whilst children of full age are allowed under the Constitution to choose their own religion, in practice the child of an apostate would be stigmatised by their parent's apostasy and would face the same social exclusions, discrimination and hostility if the relationship was known.
The Appellant said that he had experienced a lack of success in the very many job applications which he had made in Malaysia; he was certain that the lack of success was attributable to his Christian and mixed Malay background. It was standard practice to give preference to ethnic Malays. His middle two names are English. He said that his mother's maiden name would sometimes be asked for at interviews and he would be questioned about his ethnic background and religion. Application forms often asked for his parent's names and his religion. His birth certificate would also show his mother's maiden name.
The Adjudicator commented on the...
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