Upper Tribunal (Immigration and asylum chamber), 2020-02-27, PA/12957/2017

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/12957/2017

THE IMMIGRATION ACTS

Before

THE HON. MR JUSTICE CHAMBERLAIN

(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)

and

UPPER TRIBUNAL JUDGE blum

Between

OS (Iran)

(anomymity direction made)

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Keith Gayle, Solicitor

For the Respondent: Mr C. Avery, Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal from a decision of Judge Alis (‘the judge’), sitting in the First-tier Tribunal. In the decision, promulgated on 22 August 2019, the judge dismissed OS’s appeal against the Secretary of State’s decision of 16 October 2017 to refuse his human rights claim and to give notice of a decision to deport him.

Background

2. OS is a national of Iran. He was born on 1 January 1992. He entered the UK in 2008 and claimed asylum. His asylum claim was refused on 1 May 2009, but he was granted leave to remain as a minor until 1 July 2009. On 12 June 2009, he applied for further leave to remain. On 10 February 2011 his application for discretionary leave on humanitarian protection grounds was refused with an in-country right of appeal. He appealed and his appeal was dismissed on 20 April 2011. A further appeal to the Upper Tribunal was successful on human rights grounds only on 13 May 2013 (his asylum appeal was dismissed). He was granted discretionary leave until 23 November 2015. On 20 November 2015, OS Applied for further leave to remain on humanitarian protection grounds.

3. Before that application could be determined, OS engaged in a course of criminal conduct. Between 4 November 2015 and 26 July 2016 OS was convicted six times of 13 offences. Four of these were for breach of a non-molestation order imposed on him by the Family Court following a contested hearing on 7 July 2015. That order prevented any contact between him and his former partner and prevented him from attending at her address. OS breached this order on four occasions. On the first he was sentenced to a community order. On the second, a suspended custodial sentence was imposed. On 26 July 2016, at Maidstone Crown Court, he was convicted of the third and fourth breaches, assaulting a constable and assaulting a person assisting a constable, for which he was sentenced to a total of 17 months’ imprisonment and made subject to a restraining order under the Protection from Harassment Act 1997.

4. On 2 November 2016 OS was served with a stage 1 notice of decision to deport giving him 20 days to provide reasons why he should not be deported from the UK. On 30 November 2016 submissions were made by solicitors acting on his behalf, raising Article 8 grounds and indicating that he continued to fear persecution on return to Iran on the ground of his religious faith. On 4 January 2017, he was detained under immigration powers. He was released on 2 March 2017 pursuant to the Secretary of State’s policy on adults at risk. On 16 October 2017 a decision was made to refuse OS’s human rights claim and further submissions. That decision attracted an in-country right of appeal.

The decision of the First-tier Tribunal

5. The judge summarised OS’s claim at [26]-[34] of the decision. It was as follows. His mother belonged to the Baha’i faith but until 2018, OS himself had never considered converting. He first became interested in converting on 28 April 2018 after his friend encouraged him to do so because he thought it might help OS with his personal problems and drug issues. He could not remember where he had gone for his first meeting, but there were about 30 people present. Since then he has attended numerous gatherings, which take place at private houses. He has read four of the 10 core books of the faith and has received a welcome email and membership card from the organisation. He maintained that he would be at risk on return for two reasons. First, his mother, who lived in Iran, was a member of the Baha’i faith. Second, he would have to disclose his conversion when questioned.

6. Under cross-examination, he explained that no one from the Baha’i organisation could attend to give evidence on his behalf. Although there were witness statements from three witnesses he had not told any of them about the hearing until the previous week, when he tried to contact them. They were all working and none could attend.

7. At [45], the judge set out relevant extracts dealing with the position of the Baha’i from the Secretary of State’s country information document on Iran, published in November 2016. That document details widespread discrimination against Baha’i by the Iranian government. It provides as follows:

‘Decision-makers should no longer continue to follow the guidance contained in the Country Guidance (CG) case of SH (Baha’is) Iran CG[2006] UKAIT 00041 which found that the Baha’is are not at general risk of persecution in Iran, but that a Baha’i will be able to demonstrate a well-founded fear of persecution if, on the facts of the case, he or she is reasonably likely to be targeted by the Iranians authorities (or their agents) for religious reasons (para 81). Since SH was promulgated 10 years ago, however, the situation in Iran has deteriorated for religious minorities in general and for the Baha’i in particular.

In general, a person is likely to face a real risk of persecution or serious harm from the state on the basis of their Baha’i faith and the grant of asylum will usually be appropriate.’

8. At [46], the judge directed himself that, if OS was a genuine convert, he would be at risk of persecution and would be entitled to protection under the refugee Convention. If, however, he was not a genuine convert, then he would be returnable to Iran following the decisions of this Tribunal in SSH and HR (Illegal exit: failed asylum seeker) Iran CG[2016] UKUT 00308 (IAC) and HB (Kurds) CG[2018] UKUT 430 (IAC).

9. At [47], the judge noted that OS’s claim that he would be at risk because of his mother’s Baha’i faith had been considered and rejected by Upper Tribunal Judge Goldstein in his decision of 8 May 2013.

10. The judge’s findings about OS’s claim to conversion were as follows. At [50], he accepted that OS had been ‘accepted into the Baha’i faith’, but noted that he had ‘only sought to convert after he received the deportation papers’. At [51], he noted that OS had called no one from the organisation to corroborate his conversion. The email ‘simply welcomes him’ and was ‘akin to joining a gym and nothing more’. The membership card ‘simply confirms he joined’. Neither was evidence that he is ‘a genuine member of the organisation or a genuine follower of the faith’. At [52], the judge observed that the email contained three contacts to whom OS could have turned. At [53], the judge made the point that any of these could have confirmed this to OS’s involvement in the faith but no evidence had been adduced from any of them. At [54], the judge noted that OS had been vague about the location of the meetings he had attended and found that if he had told anyone attending those meetings that he was at risk of removal, someone would have attended to give evidence in his support. At [55 ]-[57], the judge held as follows:

’55. I am not satisfied the appellant is a genuine convert and consequently I am not satisfied he is a follower of the Baha’i faith. Whilst he is not required to lie under questioning, I find he has nothing to lie about because he is not a genuine follower. I am not satisfied he has been to meetings as he claimed or played any role within the organisation.

56. Even if his mother was a follower there is no evidence about her or that he would be at risk simply because she was a follower.

57. Based on him having no adverse profile and following the guidance issued in SSH and HR and HB (Kurds), I find returning him would not place him at risk of persecution or serious harm.’

11. The judge therefore upheld the deportation order and dismissed OS’s human rights appeal.

Submissions on behalf of OS

12. On behalf of OS, Mr Gayle emphasised that the appeal ultimately heard by the judge on 13 August 2019 had previously been adjourned. At a hearing on 9 November 2018 OS attended with two witnesses prepared to attest to the genuineness of his conversion. Further substantive hearings listed for 11 December 2018, 22 March 2019 and 24 April 2019 were each adjourned. It was unclear whether the hearing on 13 August 2019 would proceed. We asked Mr Gayle whether any application had been made at that hearing for an adjournment. He confirmed that no such application had been made.

13. Mr Gayle submitted that the judge materially misrepresented the findings of Upper Tribunal Judge Goldstein in the previous appeal. Contrary to the judge’s understanding, Judge Goldstein had entertained no doubt that OS’s mother was a Baha’i. This, he said, fatally...