United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005326
	First-tier Tribunal No : IA/00496/2024 HU /59904/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 1 ^st of April 2025

 

Before

 

UPPER TRIBUNAL JUDGE BRUCE

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

 

 

Between

 

Mr ARAM MOHAMMED RASOOL RASOOL

(ANONYMITY ORDER NOT MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr U Aslam of Mukhtar & Co Solicitors

For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer

 

Heard at 52 Melville St, Edinburgh, on 25 March 2025

DECISION AND REASONS

1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge McLaren, dated on 23/08/2024, which dismissed the Appellant's appeal on article 8 ECHR grounds.

Background

2. The Appellant is an Iraqi Kurd from Al Sulaymaniyah. The Appellant arrived in the UK on 27/04/2017 with entry clearance as a spouse valid until 11/01/2020. The Respondent extended leave until 22/08/2022. The Appellant's marriage broke down, and he separated from his wife in March 2022. On 24/03/2022 the Appellant applied for leave to remain in the UK on the basis of his article 8 Private life. The Respondent refused the Appellant's application on 29/07/2023.

The Judge's Decision

3. The Appellant appealed to the First-tier Tribunal. On 23/08/2024 First-tier Tribunal Judge McLaren ("the Judge") dismissed the Appellant's appeal.

4. The Appellant lodged grounds of appeal, and, on 26/11/2024, Upper Tribunal Judge Lindsley granted permission to appeal. She said

3. The grounds of appeal contend, in short summary, that the First-tier Tribunal erred in law by firstly failing to provide adequate reasons for finding that the appellant is not a genuine Christian convert because the finding is based on reasoning going to the lack of corroborative evidence and this is not required before the Tribunal, and because no reasons were given for doubting the appellant's testimony and this could not be rejected solely because corroborative evidence might be easily available and in the context of the evidence of the appellant's sister which goes to his Christianity and his attendance at church.

4. The second ground asserts that the First-tier Tribunal failed to give adequate reasons with respect to the expert report of Dr George when citing his report as evidence that risk to Christians would mostly arise in the non-Kurdish areas when actually the report found he would be at risk throughout the country as a convert, and it is not relevant that non-convert Iraqi Christians can live in the IKR (see the report from paragraph 140 to 145); and the negative experience of being a Christian in Iraq as reflected in the appellant's witness statement when he speaks about being there to get a spouse visa.

5. The third ground contends that there was a failure to make a broad evaluative judgement about the appellant's ability to integrate going beyond the issue of his Christian faith, for instance going to his ability to obtain employment.

6. The fourth ground is that there was no challenge in the reasons for refusal letter that the appellant is a genuine Christian convert as it is said that he could practice his religion in Iraq and there was no cross-examination of the appellant or his sister on the genuineness of his conversion.

7. The grounds are all arguable.

The Hearing

5. We told the representatives that we could see from the documents before us that (in the 'reasons for refusal' letter) the Respondent does not challenge the Appellant's conversion from Islam to Christianity, and uses the Appellant's conversion to Christianity and his desire to practice his new-found religion as a significant part of the reasoning in the letter. Despite the fact that there is no challenge to the Appellant's conversion to Christianity, the Judge finds that the Appellant is not a convert to Christianity.

6. Taken by surprise, Mr Mullen for the Respondent told us that that is clearly an error in law, but he would argue that it is not a material error.

7. Mr Aslam acknowledged that there was now no need to move the first ground of appeal. He moved the second and third grounds of appeal. He told us that the Judge failed to take account of the contents of the witness statements and the contents of the expert report prepared by Dr George. Each time the Appellant has returned to Iraq (one time he visited his mother in Iraq for four months, the second visit lasted a year) the Appellant concealed his Christianity from his family as well as from Iraqi society.

8. Mr Aslam told us that the Judge's findings at [22] to [25] of the decision contradict what is said in Dr George's report at paragraphs 145 and 146.

9. Mr Aslam took us through Dr George's report and other background materials, and said that the weight of objective evidence indicates that converts to Christianity have to conceal their religious identity in Iraq, and that the risks which the Appellant would face in IKR will prevent integration because he face serious risks, even death, simply because he has turned away from Islam.

10. In response Mr Mullen accepted that there is an error of law because it has never been part of the Respondent's case that the Appellant is not a genuine convert to Christianity, however he focused on the materiality of that error.

11. Mr Mullen said that the Judge's conclusion, drawn in light of Dr Georges report, was within the range of reasonable conclusions available to the Judge. Mr Mullen argued that Dr George's report indicates that the IKR authorities provide protection, but no state can protect against a hostile lone actor. He said that there might be some degree of risk, but the risk would be minimal.

12. Mr Mullen said that the Appellant's immigration history supports the Respondent's interpretation of Dr George's report. He reminded us that the Appellant had visited Iraq for periods of months on two separate occasions, and he did not come to any harm during either of those visits.

13. Mr Mullen asked us to dismiss the appeal and allow the decision to stand.

Analysis

14. The Judge's findings of fact start at [19] of the decision. In the first sentence of [19] the Judge says:

"... I find that the appellant has not converted to Christianity ..."

15. We are satisfied that this finding constitutes an error of law. It was premised on what the Tribunal regarded as a lack of evidence, in particular the lack of a live Dorodian witness. However, that is an omission for which the Appellant can hardly be blamed given that his conversion was not a matter in issue before the Tribunal. It has never been part of the Respondent's case that the Appellant is not a genuine convert to Christianity: the 'reasons for refusal letter' is squarely framed on the basis that the Appellant started life as a Muslim, and converted to Christianity when he was an adult.

16. The Respondent accepts that [19] of the decision is undermined by an error of law. The question for us is whether or not that error is material to the decision.

17. The Appellant applied for leave to remain in the UK on article 8 private life grounds only. In his appeal, he specifically distances himself from article 8 family life, and focuses on private life alone.

18. Paragraph 276 ADE(1)(vi) (now appendix PL) of the immigration rules was the focus in the appeal before the First-tier Tribunal (and is the focus for us). If the Appellant establishes that there are 'very significant obstacles to integration' in Iraq, then he succeeds under the immigration rules. Success under the immigration rules may well be determinative of the article 8 proportionality balancing exercise.

19. The background materials and Dr George's report, read together, tell us that conversion from Islam to Christianity is viewed as apostasy throughout Iraq (including IKR and the predominantly Kurdish regions). Practice of the Christian faith by a man who has converted from Islam is something which would make an individual stand out. It would distinguish a man such as the Appellant from most of the population and is therefore likely to be a barrier to integration.

20. Conversion to Christianity is a significant, potentially determinative, factor which did not form part of the Judge's proportionality balancing exercise. Factoring conversion to Christianity into the article 8 consideration could produce a different result. Failure to take account of the Appellant's conversion to Christianity means the Judge's approach to the article 8 ECHR assessment is incomplete.

21. The error of law is therefore a material error of law.

22. We set the decision aside.

23. There is sufficient material before as to enable us to substitute our own decision.

The Facts

24. The material facts are that the Appellant is an Iraqi Kurd whose hometown is in IKR. He came to the UK initially as a student in 2009. He married a British citizen in 2016, and returned to Iraq to make an application for leave to enter the UK as a spouse. He re-entered the UK in 2017. Initial leave to remain was extended. He should have been on the pathway to settlement, but his marriage broke down.

25. When the Appellant submitted his application, he candidly relied on article 8 private life only, acknowledging that article 8 family life was at an end.

26. The Appellant works as a Kurdish Sunni interpreter. He is fluent in English. He is financially independent. He earns approximately £30,000 per annum. He has never been in receipt of State benefits.

27. The Appellant's sister, brother-in-law, nephews, and niece all live in the UK. His mother and one other sister remain in Iraq.

28. The Appellant was born and brought up as a Muslim. In 2016, whilst in the UK, he converted to Christianity. He was baptised on 26 March 2016. He continues to practice his Christian faith as a Roman Catholic. Amongst the requirements of adherence to the Roman Catholic faith, there is the requirement to attend Mass every Sunday (if able to do so).

29. The Appellant's mother remains in Iraq. The Appellant remains in contact with his mother. When the Appellant visited Iraq for months at a time, he stayed with his mother. The Appellant has not been able to tell his mother that he has converted to Christianity. None of the Appellant's family in Iraq know that the Appellant has converted to Christianity.

30. The Respondent's country policy and information note -Iraq: religious minorities - version 3 dated July 2021 deals with " converts" at section 6. Section 6.1.1 says

UNHCR in its 'International Protection Considerations with Regard to People Fleeing the Republic of Iraq' published in May 2019 summarised that:

'The Penal Law does not prohibit conversion from Islam to Christianity (or any other religion); however, the law does not provide for the legal recognition of a change in one's religious status. As a result, a convert's national identity card would still identify its holder as "Muslim". Instances of open conversion from Islam to Christianity in Iraq are very rarely reported. Converts are reported to keep their faith secret given the widespread animosity towards converts from Islam in Iraqi society and the fact that families and tribes would likely interpret conversion by one of their members as an affront to their collective "honour". Open conversion would likely result in ostracism and/or violence at the hands of the individual's community, tribe or family as well as Islamist armed groups.'

31. Throughout section 6 of the respondent's July 2021 CPIN, there is reference to apostasy as something which is seen as unnatural in Iraq. It is recorded that the personal status laws in Iraq prohibit the conversion of Muslims to any other religion, and that converts from Islam are not allowed to change their religion on their identity cards. There is a sentence which starkly warns that people who convert from Islam to Christianity may be at risk of being killed in Iraq. Less serious consequences are reported as being disowned by the family of origin or receiving death threats. It is noted that the situation for converts is worse in central and southern Iraq and the disputed territories than the situation is in IKR.

32. The Appellant relies on an expert report prepared by Dr George dated 30 November 2023. The first 31 paragraphs of his report set out his experience and qualifications. Dr George discusses the Kurdish north of Iraq, before providing details about the disputed territories and central and southern Iraq. He discusses the recent history of conflict and violence in Iraq before turning to concepts of clan and family, and recent international relations. Dr George then considers the treatment of Christians in Iraq.

33. At paragraph 139 of his report, Dr George considers the Appellant's circumstances. At paragraph 140 of his report, he says that it is illegal under Sharia law and Iraqi civil law for a Muslim to convert to Christianity. At paragraph 144 of his report he says the extremist Islamists target apostates and says " Iraqi Christians have suffered terribly from such groups..."

34. At paragraph 145 of his report, Dr George says that the Appellant will be targeted in Iraq as an apostate. He says that the same risk exists in the Kurdish controlled area. At paragraph 146 of his report, Dr George clearly says that as a Christian the Appellant would face real risks in Iraq.

Remaking the decision.

The Immigration Rules

35. If the Appellant returns to Iraq, he returns as a man who was born Muslim but has now converted to Christianity. He adheres to a branch of Christianity which requires regular prayer and weekly public worship. Iraq and IKR are Islamic countries with a societal expectation of Friday prayer gatherings; daily Islamic prayer routines are part of the ordinary activities of everyday life.

36. Practice of the Appellant's faith will make him noticeably different. The practice of the Appellant's faith will prevent him from participating in the majority religion in Iraq. It will be noticed that he does not attend Friday prayers. It will be noticed that his daily prayer routine is different to an Islamic daily prayer routine.

37. The background materials and Dr George's report tell us that discovery of the Appellant's conversion to Christianity (at the very least) will raise hostility and ostracism. The background materials use the language of death threats and killings.

38. We are satisfied that being out of sync with the religious expectations of society, experiencing hostility and ostracism whilst awaiting death threats and worse, are 'very significant obstacles to integration'. They are obstacles which go to the heart of the Appellant's private life. We are accordingly satisfied that the Appellant meets the requirements of the immigration rules.

Article 8 ECHR

39. Section 117B of the 2002 Act tells us that immigration control is in the public interest.

40. We have found that the appellant meets the requirements of paragraph 276ADE(1)(vi) to the rules. TZ (Pakistan) and PG (India) v The Secretary of State for the Home Department [2018] EWCA Civ 1109 tells us that where a person satisfies the Rules, whether or not by reference to an article 8 informed requirement, then this will be positively determinative of that person's article 8 appeal, provided their case engages article 8(1). As the appellant meets the requirements of paragraph 276ADE(1)(vi) of the rules, the respondent's decision must be a breach of his right to respect for private life.

41. We allow the appeal on article 8 ECHR grounds.

 

DECISION

The decision of the First-tier Tribunal dated on 23/08/2024 errs materially in law and is set aside.

We substitute our own decision.

The appeal is allowed on article 8 ECHR grounds.

 

S igned Paul Doyle Date 26 March 2025

Deputy Upper Tribunal Judge Doyle