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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> JRJ v Determination of the Asylum & Immigration Tribunal [2008] ScotCS CSIH_13 (12 February 2008) URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSIH_13.html Cite as: [2008] ScotCS CSIH_13, [2008] CSIH 13 |
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord PhilipLord KingarthLord Wheatley |
[2008] CSIH 13OPINION OF THE COURT delivered by LORD PHILIP in APPEAL under section 103B of the
Nationality, Immigration and Asylum Act 2002 by J.R.J. Appellant: against A determination of the
Asylum and Immigration Tribunal _______ |
Act: Devlin; Drummond Miller
(for appellant)
Alt: Stewart; C. Mullin,
Solicitor to the Advocate General (Respondent)
[1] The appellant
was born on
"3. At
paragraph 59 (of his determination) the Adjudicator accepts the Appellant's
conversion but rightly points out his obligation to consider whether or not on
return he would be at risk. In this
regard the Adjudicator has failed to consider the core aspect of Iranian
conversions namely whether or not the person who has converted is of an
Evangelical Proselytising persuasion and if so whether this would lead them (sic) to become at serious risk of
harm. In this regard there appears to be
no proper consideration of the background materials other than the suggestion
that the authorities have adopted a more tolerant approach to
Christianity. This ignores the US State
Department Report and the CIPU report both of which point to the serious risk
to Proselytising Evangelicals. It also
ignores the recent IAT Determinations on the point and although the Adjudicator
does go into some detail at paragraphs 52 and 53 in relation to the Belgian CEDOCA
Report he does not indicate why he prefers this to the CIPU report or the US
State Department Report or the extent to which converts are 'able to practice
their new faith up to a point' (paragraph 53).
This failure to properly assess the risk for the appellant fatally flaws
the determination."
[3] The
Immigration Appeal Tribunal in a determination notified on
"19. In
relation to the Christianity point, the Tribunal considered the
evidence on the activities of the
20. We
also note that the Adjudicator recorded that the appellant only
might join the
Army of God on return. Although we
accept that his conversion is genuine, we do not accept that he is an
evangelical Christian and that distinction is fatal to what remains of his
claim.
21. For
all of the above reasons, this appeal is dismissed."
[5] In their
determination, the Immigration Appeal Tribunal had failed to consider Ground 3
and had failed to identify the error of law made by the adjudicator. They appeared nevertheless to have gone on to
make findings in fact of their own in relation to the
[7] In our
opinion the submissions of the appellant are well-founded. In his written statement the appellant said
that he believed it was necessary for him to persuade others to join his faith
as this was an important aspect of living a Christian life. When asked if he would join a Christian
church if he were returned to
[8] The need to
distinguish between Christian converts in general and proselytising evangelical
Christians in Iran was highlighted in the decision of the Immigration Appeal
Tribunal in the Iran Country Guidelines Case of SSHD v FS and Others,
remitted to the Tribunal by the Court of Appeal, ([2004] UKIAT 00303), in
which, after a consideration of comprehensive up to date evidence as to the
risk of persecution faced by Christian converts returned to Iran, the Tribunal
found that the more active convert, pastor, church leader, proselytiser or
evangelist, was at real risk of persecution.
On the other hand, the ordinary convert who did not fall into these
categories did not face a degree of risk sufficient to warrant protection under
either Convention. Counsel for the
respondent conceded, rightly in our view, that there was sufficient in the
background material and in the evidence in the present case to alert the
adjudicator, in considering whether the appellant would be at risk of
persecution if he were returned to
"The appellant also claims that he
would be at risk because of his religious beliefs. As I have indicated, I had before me a
Certificate of Baptism. I also heard
evidence from Rev. Lidstone.
Consequently I accept that, whilst in
60. In
conclusion I do not consider that the appellant would be at risk of being
persecuted because of his religion or his political opinion (or for any other
reason under the Refugee Convention). I
find that the appellant's claim does not engage the Refugee Convention."
In our opinion there is no indication in his determination
that the adjudicator gave consideration to the question whether the appellant
was a proselytising Christian. In
failing to do so he erred in law. Nor
does he explain why he preferred the CEDOCA Report to the CIPU Report which painted
a blacker picture of the treatment of converts in
[10] They then went
on to make what appear to be findings in fact to the effect that the Glasgow
Iranian Church was far from being an actively proselytising body, that its leaders
were reluctant to associate themselves publicly with the Assembly of God and
that the appellant was not an evangelical Christian. Those findings seem to us to go further than the
findings made by the adjudicator. Under
the statutory regime which was in force at the relevant time it was the
adjudicator who was entrusted by Parliament with the task of primary fact
finding. An appeal under section 101 of
the Nationality Immigration and Asylum Act 2002 could be brought on a point of
law: it was not a rehearing. As Laws LJ said in CA v SSHD [2004] EWCA Civ 1165, cited in R (
"The jurisdiction under section 101
of the 2002 Act forbids in effect the Tribunal deciding the merits itself
unless at least it first concludes that the adjudicator's decision cannot stand
because it is marred by error of law."
It seems to us that in making these additional findings that
the Tribunal were in fact deciding the merits of the appeal itself without
first concluding that the adjudicator had made an error of law (and indeed
without considering first whether, in that event, the matter should more
appropriately be remitted to the adjudicator).