M v Secretary of State for the Home Department

LORD JUSTICE LATHAM: The appellant is now 18 years of age, and is a citizen of Iran. She entered the United Kingdom on 12 April 2002 from Iran with her father. Her father claimed asylum with her as his dependant. His claim was refused and his appeal against that refusal was dismissed on 24 May 2003. The appellant made her own application on 30 May 2003 and claimed that to return her to Iran would breach articles 2 and 3 of the European Convention on Human Rights. She did so on the basis that she was an apostate, having converted from Islam to Christianity whilst in this country.

The respondent refused her claims on 24 September 2003. Her appeal was dismissed by the adjudicator on 3 February 2004. On 27 May 2004 the appellant was granted permission to appeal. The appeal was dealt with under the transitional provisions by way of reconsideration on 11 May 2005, at which hearing the parties agreed that the adjudicator had erred in apparently rejecting the evidence of an expert witness whose evidence was before the adjudicator, without giving reasons. The order was in terms to which I will return later. The substantial hearing by way of reconsideration by the tribunal took place on 22 September 2005, and by the decision promulgated the next day, 23 September 2005, the appellant’s appeal was dismissed.

On 15 November 2005, the appellant was given leave to appeal to this court. Unfortunately, her appeal was not filed in time. Pursuant to CPR practice direction 52 at paragraph 21.7(3), her notice of appeal should have been filed at the Court of Appeal within 14 days of her being served with a written notice of the decision of the tribunal to grant permission to appeal. The last date for filing was 5 December 2005. The appellant’s notice was not in fact filed until 9 February 2006, over two months late. Not surprisingly in those circumstances, the respondent has taken the point that the length of time which this appellant seeks to have excused is substantial.

Having considered with care the material that has been provided by way of explanation on behalf of the appellant, which is not entirely satisfactory, I am nonetheless of the view that, bearing in mind the consequences to this appellant of the decision that has been made by the tribunal, this court should consider the merits and I propose to do so.

Turning then to the merits of the appeal it is, I think, necessary to deal sequentially with the various decisions leading to the decision appealed against, in order to understand how the issue which has ultimately arrived before us arose. As I have said, the appellant came to this country with her father in April 2002, leaving behind her mother and other members of the family. Her father had become a Christian in 1999. Although she was interested in Christianity before she came to this country, it was not until February 2003 that the appellant began to attend a Wesleyan Chapel and in May 2003 made her commitment to be a Christian. The basis of her claim for asylum, and that her return would be a breach of her rights under the European Convention on Human Rights, was that she was a member of an Evangelical Church and that as such she would be at risk of persecution in Iran.

The adjudicator, having heard her evidence, was satisfied that her conversion to Christianity was genuine and that she was a committed member of her church. He accepted that apostasy was not accepted and that in particular a woman apostate could face persecution, but he concluded that on the evidence there were no problems for such as the appellant, unless their religion was practised in public or attempts were made to convert others. He noted that in her evidence the appellant did not intend to proselytise and “only wanted to practise her religion”. He was of the view that there would be no reason for the authorities on her return to conclude that she was a practising Christian. He accordingly concluded that she did not have a well-founded fear of persecution for a Convention reason so as to justify the grant of asylum, and that there was no real risk that she would suffer a breach of her rights under the European Convention on Human Rights. He noted that her father’s appeal against refusal had been dismissed, so that he was to return to Iran. In his view, therefore, she could return to Iran to resume her family life with her father.

That decision of the adjudicator had been reached after not only hearing the evidence of the appellant herself, but also a report from Anna Enayat, who is a senior associate member of St Antony’s College, Oxford, and the Middle East Centre at St Antony’s College, Oxford. In that report, Miss Enayat sought to persuade the adjudicator that this appellant would undoubtedly come to the attention of the authorities when she arrived as being a convert to Christianity, in other words apostate, and that the likelihood would be that she would suffer not merely discrimination but persecution as a result.

Unfortunately, the adjudicator did not mention the report of Miss Enayat in any appropriate detail in his adjudication, and it was essentially on that that the appellant based her appeal which, as I have said, eventually fell to be determined by way of reconsideration.

That was heard on 11 May 2005. By then the evidence of Miss Enayat had been overtaken by the decision of the Immigration Appeal Tribunal in November 2004 in a country guidance case, FS and Others (Iran – Christian Converts)[2004] UKIAT 00303. In that decision the tribunal gave full and detailed consideration to the position of Christian converts in Iran set out in particular between paragraphs 186 and 192 of that decision its general conclusions. Drawing together the threads of the detailed consideration that it had given to the material before it, it concluded at paragraph 187:

Paragraph 189:

It was in the light of that decision that the matter was determined in the first instance by the tribunal on 11 May 2005; and its decision was to adjourn the reconsideration in the following terms:

At the hearing with which we are concerned, counsel for the respondent submitted that the issues for reconsideration were limited by the terms of the decision of 11 May 2005. Counsel for the appellant submitted that the appellant’s evidence would be and had always been that she had a consistent intention to proselytise. The tribunal, having considered the issues identified on 11 May 2005, directed that the hearing would be limited to those issues and that therefore the hearing would relate to a consideration of the expert evidence and the additional risk factors in the light of FS and the father's position.

Although that preliminary ruling was not only made but recorded in the determination and reasons, it is plain that the tribunal did not limit the evidence before it; and the appellant’s evidence was set out in some detail in paragraph 20 of the determination in the following terms:

The tribunal expressly accepted the appellant’s evidence in so far as it related to her intentions as to the way she would practise her Christianity. It went on to consider the report of Anna Enayat, which they noted had not been updated since it had originally been prepared in January 2004. It accepted the view expressed in that report, that the appellant’s conversion would come to the notice of the authorities and to her friends, family and colleagues, as the tribunal had accepted in FS. It declined to accept the report’s assessment that the fact of her conversion becoming known would give rise in itself to the risk of significant persecution.

In so far as the report did identify a risk of persecution, it was only on the basis that the appellant could be considered a proselytiser. The tribunal then expressly indicated that, as that was not an issue which it considered should be part of the reconsideration, then she was to be treated as an ordinary convert.

However, the determination has to be read in the context of the fact that despite having said that, the tribunal clearly did come to a conclusion about that aspect of the case. It did so in paragraph 32:

Mr Stanage, who has made every submission that could be made on behalf of this appellant and done so effectively, if I may say so, submits that although it would appear from that paragraph that the tribunal had come to a conclusion on the evidence as to whether or not the appellant should be considered to be in the category of those at risk were she to be returned, in truth by the ruling that it had made and its reference to the ruling at a later stage in its determination, it had not in fact properly applied its mind to this critical issue, which he submits could only produce one answer on the evidence as recorded in paragraph 20 of the determination.

Whilst it is unfortunate that on the one hand the tribunal appears to be saying that it is not considering the issue of proselytisation, but on the other expressing the view it does in paragraph 32, it seems to me that paragraph 32 ties in clearly with paragraph 20 and states a clear view by the tribunal as to whether or not the appellant falls into the category of a higher risk convert.

The conclusion that it reaches in paragraph 32 is, in my view, one which is entirely consistent with the evidence of the appellant as recorded in paragraph 20 of the determination. The flavour of her evidence comes over clearly from that paragraph. She is obviously an earnest Christian, but to suggest that what she said in her evidence took her beyond that category in my view does not bear examination. The example of such conversations that she has had with those other than Christians makes it plain that it was limited only to an Indian friend, in circumstances which can be readily understood in the context of a friendship between her and that girl.

The position, in my view, comes nowhere near establishing that the tribunal could not have come to the conclusion that she was an ordinary convert; indeed, to the contrary, it seems me that to have come to a different conclusion would simply have flown in the face of the evidence she gave before this tribunal. The tribunal was, it seems to me, also entitled to taken into account the evidence that she had given before the adjudicator. It was entirely consistent.

The tribunal then went on, and Mr Stanage accepts this, to consider properly whether or not there were any other risk factors, apart from the fact of her having converted to Christianity, which should elevate her into a higher risk category, and concluded that there were not. Mr Stanage does not dispute that that was a conclusion open to this tribunal.

In those circumstances, albeit the determination was one which carries with it the inconsistency of the preliminary ruling on the one hand and the way it was subsequently dealt with on the other, that at the end of the day made no difference to the validity of the conclusion that it reached, which was that on reconsideration this appellant did not fall into the category of one who could claim the protection of either the Geneva Convention or of the European Convention on Human Rights.

I would accordingly dismiss this appeal.

LORD JUSTICE LAWS: I agree.

LADY JUSTICE HALLETT: I also agree.