Upper Tribunal (Immigration and asylum chamber), 2022-06-14, LP/00155/2020
| Appeal Number | LP/00155/2020 |
| Hearing Date | 29 April 2022 |
| Published date | 29 June 2022 |
| Date | 14 June 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: LP/00155/2020
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: LP/00155/2020
THE IMMIGRATION ACTS
|
Heard at Bradford |
Decision & Reasons Promulgated |
|
On 29 April 2022 |
On 14 June 2022 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
AH
(Anonymity direction made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms G Patel instructed by IBSA Legal Ltd.
For the Respondent: Ms Young, a Senior Home Office Presenting Officer.
DECISION AND REASONS
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The appellant appeals with permission a decision of First-tier Tribunal Judge Pickering (‘the Judge’) promulgated on 23 October 2020, in which the Judge dismissed the appellant’s appeal on all grounds.
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Permission to appeal was refused by another judge of the First-tier Tribunal but granted by the Upper Tribunal of the basis it was said to be arguable that the Judge failed to direct herself to the parts of the CPIN expressly dealing with atheism in the KRI, as contended in the grounds at [10] and that, although expressing the other grounds have less merit, granted permission on the same.
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The Judges decision is challenged on five main grounds being:
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That the Judge failed to consider the reasons why the Appellant had not openly portrayed he is an atheist; if it was for fear of persecution then that is clearly relevant under HJ’s Iran principles;
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That the Judge failed to consider the HJ Iran point regarding whether it is right to expect the appellant to pretend he is not an atheist and to adopt Islamic behaviour to protect himself;
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That the Judge failed to consider the risk to the Appellant as an atheist and as an apostate.
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The Judge failed to properly consider the background evidence
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the Judge failed to consider that the failure of the states to allow an individual to record he is an atheist clearly impacts upon that individual’s right to practice his lack of religion freely and about the persecution.
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The appellant’s claim is that he has no faith and identifies as an atheist and that in 2016 he created an online game depicting Peshmerga defeating ISIS and destroying the ISIS flag. The appellant claims that the flag contains an Islamic declaration of faith as a result of which he is receiving death threats on social media and through his telephone. The Judge divides the decision into headed paragraphs, the first being whether it is reasonably likely that the appellant will experience problems due to him no longer following Islam [28 – 38], secondly whether it is reasonably likely the appellant will be a risk on return as a result of the game he created [39 – 45] and thirdly, whether the appellant could seek the protection of the authorities in Iraq and whether he could relocate within Iraq [46].
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The Judge, who had the benefit of considering not only the documentary evidence but also of seeing and hearing the appellant gave oral evidence, sets out findings of fact from [25] of the decision under challenge.
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At [27] the Judge writes:
27. As there is no dispute as to the appellant’s nationality, I find it as a fact that the appellant is a national of Iraq. Nor is there any dispute as to the appellant’s ethnicity, therefore I find as a fact the appellant is Kurdish. Finally, it was accepted by the respondent that the appellant is an atheist. Again, I accept that fact.
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The Judge thereafter went on to consider whether it is reasonably likely the appellant will experience problems due to him no longer following Islam between [28] and [38] concluding, having considered the background evidence, that he had not demonstrated an objectively well-founded fear due to his atheism in the IKR.
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The Judge noted the evidence that the appellant discussed his views with his contemporaries at university in 2016 and that while some disagreed the majority shared his view. The Judge notes there was one incident where a disagreement almost became physical but did not, and the Judge accepts the account of the mixed reactions of those at the University [28].
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At [29] – [30] the Judge writes:
29. Aside from this, on the point that the appellant no longer followed Islam, there is little to suggest that he had any problems due to his atheism more generally. The subsequent problems that the appellant says he experienced were related to the game he developed. I accept that the appellant’s view of religion, at least in part informed his decision to develop the game and this is a matter I considered when assessing whether there was a reasonable degree of likelihood that the appellant developed the game.
30. Assessing the appellant’s conduct in the IKR in respect of his beliefs: the appellant does not appear to have discussed his beliefs beyond his family and with his university colleagues. There is no evidence to suggest that he has done anything similar in the UK.
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The Judge notes it is not illegal to be an atheist in Iraq, noted country information highlighted conflation that can happen between atheism and blasphemy, but that examples in the EASO report did not relate to the IKR, that the reference in the country material to arrest warrants took place in central/southern Iraq as opposed to the IKR, and that the report dated 2019 confirmed there were no recent prosecutions of atheists, leading to the Judge to conclude that it did not appear there is a real risk from the government within the IKR for espousing atheist beliefs [35].
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Thereafter the Judge went on to consider whether the appellant will face a real risk on return as a result of the game he created but did not find the appellant had established any real risk on the basis of the evidence the Judge had been asked to consider.
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The Judge concluded the appellant could return to his home area and, therefore, internal relocation did not arise and that the evidence was that his CSID was at home, he was in contact with his younger brother, so he could obtain the same to enable him to travel to his home area even if returned to Bagdad. The Judge specifically records at [19] that there was no issue about the appellant being able to access documentation.
Discussion
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As noted the challenge in the grounds only concern the Judge’s findings in relation to aspects of the appellant’s atheism.
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The Judge specifically records at [18] the following:
18. The parties agreed that the matter is not in dispute and issues to be resolved were accurately recorded within the appeal skeleton argument (ASA) [page 16 and 17].
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The appellants skeleton argument before the First-tier Tribunal recorded the issues arising being those recorded by the Judge in the headings set out in the determination namely (a) whether the appellant will experience problems in Iraq, due to him no longer following Islam, (b) whether the Appellant will face a serious risk of harm as a result of the game he created, (c) whether the appellant can seek protection from the authorities in Iraq and (d) whether the appellant could relocate within Iraq.
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It is recorded in the skeleton argument at [6] that the appellant did not claim to be at risk of serious harm purely because of him not following the Islamic faith. His claim was that as an atheist he would attract a serious risk of harm.
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It was accepted in the skeleton argument that the situation in the IKR can be distinguished from the remainder of Iraq, although noting the IKR is not “problem free” and asserting there was a risk of harm to individuals who leave Islam and openly proclaim their atheism [9].
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It is noted there is no issue in relation to documentation, the appellant having been able to obtain necessary documents in Iraq. There was no evidence before the Judge that requiring the appellant to satisfy the formal requirements set out by the Iraqi government to obtain such documentation interfered with or prevented the appellant from manifesting his atheist belief or amounted to a persecutory act.
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The HJ (Iran) point, namely that the appellant could not express his atheism and did not do so as a result of fear of persecution, does not appear to have been specifically pleaded or raised as an issue before the Judge.
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I am satisfied having considered the decision and the evidence available to the Judge as a whole, that the Judge clearly considered the evidence with the required degree of anxious scrutiny.
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To be granted asylum under the Refugee Convention, it was necessary for the appellant to show that he has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership of a particular social group.
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There is a lack of a clear definition of what constitutes ‘religion’ under international law or refugee law although the Qualification Directive describes religion as a ground of persecution:
“the concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private...
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