“I would not open windows into men’s souls,” said Elizabeth I. But that is exactly the task facing those charged with deciding asylum claims based on religion or belief. Is a professed conversion to another religion, or to non-religion, sincere or sham? In a society where free expression of faith is forbidden, does the applicant chafe under the yoke of oppression or are they merely faking fervour to found a false asylum claim?
These questions are not dissimilar to those arising in other types of asylum claim based on politics or sexuality, for example. But the deeply personal nature of faith adds a layer of unknowability to asylum claims based on religion or belief. How then can lawyers, decision-makers and judges approach the task of opening that window?
Belief and the culture of disbelief
Whether despite or because of my own lack of faith, I have long been interested in asylum claims based on religion and have acted in cases involving Baha’is from Iran, Ahmadis from Pakistan, Sikhs from Afghanistan and cases of conversion to Christianity. I have met some amazing people and learned something of the scale of my ignorance in the face of the unfathomable nature of faith.
Conversion and “revived” faith cases can be particularly challenging to act in; here the deeply engrained culture of disbelief in asylum work is at its most apparent. There are many reasons for this, from hostility to outsiders to secondary trauma and consequent case hardening by asylum decision makers, lawyers and judges.
One reason is that it would appear easy for a person to profess a faith or belief (or political opinion for that matter) that is insincere purely in order to manufacture an asylum claim. Asylum decision makers and judges have been alive to this possibility for time immemorial; they were not born yesterday.
In the religion-based case of Iftikhar Ahmed  EWCA Civ 3003 for example, Simon Brown LJ recognised the difficulties:
Of course, in a case like this, no one will accept on trust an asylum seeker’s assertion that he will if returned act so as to be persecuted rather than moderate his conduct, particularly in a case where most would think that such moderation could reasonably be expected of him. Rather, one is entitled to regard such an assertion as intrinsically self-serving and to examine it with a considerable degree of scepticism…
Even natural allies such as the thoughtful Rev Giles Fraser have expressed scepticism about religious conversion, and recycled the rumour that many Iranians falsely claim to be Christian in order to manufacture false asylum claims. They even learn about Easter and the New Testament, a friend told him. Fraser would have let them stay anyway; the law is not so generous.
What can be done to prepare and present cases that require proof of the unprovable in the face of this degree of cynicism? The main message of this post is that however God might judge believers, judges should base their decisions primarily on actions not thoughts and cases should be prepared accordingly. Support and attendance at court from a minister or priest might be necessary and that the attendance of other members of the congregation will also be very useful.
What is “religion” anyway?
Religion is one of the five Convention reasons, as students of refugee law called them. The 1951 UN Convention on the Status of Refugees sets out the definition of a refugee at Article 1A and this includes that the refugee must have a well founded fear of being persecuted for one of five reasons, one of which is religion.
The meaning of “religion” is therefore something that asylum lawyers and judges have had to consider over the last 60 years.
In the EU there is a legal instrument called the Qualification Directive which sets out minimum and common standards for refugee status and it offers a very inclusive definition of religion at Article 10(1)(b):
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 or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief
This is as broad an understanding of the concept of “religion” as is conceivable and it lays to rest past controversies about whether atheists might be considered on this ground. (In practice, asylum claims based on conversion to atheism may be less well understood than conversions to another religion.) It also confirms that “religion” is not confined to organised, traditional-style theistic religions.
Remember that the context to this definition is that a refugee must show he or she is persecuted for reasons of religion or belief; the religious element might come from the persecutor or even be mistakenly attributed to the persecuted. It is deliberately broad in order to offer protection as widely as is possible while remaining consistent with the Convention.
Faith is irrational
I find all these questions fascinating but I am aware that I perhaps betray my own atheism in my mode of expression here, as well as my lack of theological training.
Faith is by its very nature inherently irrational; to have faith is to believe in something without an empirical evidence base to support it. Even worse, doubt plays an important and positive role, at least in some religions. St Augustine tells us that “Doubt is but another element of faith.”
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Faith may well be a beautiful thing, but its very nature makes very difficult indeed the task of the judge assessing its authenticity.
In one recent case, a judge rejected a claimed conversion on the basis that the asylum seeker had not “convinced me of the reasons for his conversion.” The problem is that there may well be no “reason” that the person can articulate, the conversion being inherently lacking in reason or rationality. It is a matter of faith. Take one of the best known examples of conversion. While perhaps gaining something in the re-telling it does seem to have been sudden and not to have a “rational” basis:
In the House of Lords case of R (Williamson and Others) v Secretary of State for Education and Employment  UKHL 15 Lord Nicholls addressed this issue very well. He warned judges that great care must be taken assessing the value of faith and beliefs to another human being:
Typically, religion involves belief in the supernatural. It is not always susceptible to lucid exposition or, still less, rational justification. The language used is often the language of allegory, symbol and metaphor. Depending on the subject matter, individuals cannot always be expected to express themselves with cogency or precision. Nor are an individual’s beliefs fixed and static. The beliefs of every individual are prone to change over his lifetime.
This passage was cited with approval by the European Court of Human Rights in Eweida v UK (application nos. 48420/10, 59842/10, 51671/10 and 36516/10), showing that the intellectual traffic between Strasbourg and the UK is certainly not one way.
But where does this leave us? Even if faith is inherently lacking in reason and therefore denies reasoned analysis, a judge must still decide the case and must give reasons for his or her decision either way.
Motivation and context over reasons
One answer is that it is unwise to examine too minutely the reasons for a person’s beliefs. If the beliefs are genuine, the “reasons” may be as unknowable as God himself is said to be, perhaps even to the believer.
It may be more useful to focus on motivation and context. A recent client of mine had failed in his asylum claim some years previously. As a failed asylum seeker, he was without permission to work and without entitlement to welfare support. Some of the only help available to failed asylum seekers comes through churches, mosques and gurdwaras. If those of faith have reached out to you, given you shelter, fed you and — perhaps most importantly of all — offered you conversation and company, all in the best traditions of their religion, is it any surprise that you might well be grateful and be interested in their motivation and their faith?
The cynic might also point out that this is perhaps why missionary work is carried out, whether overseas or closer to home. Aid is offered unconditionally but in the hope that it will help spread one’s message and one’s faith.
An explanation of how a person came into contact with the religion, who introduced them and how and their history, if any, of contact with and interest in that religion may well add some useful context to a case.
Bells and smells matter
The use of religious symbols or words may seem to be of limited significance to an atheist, agnostic or person of different faith. The same may even be true to a person of the same faith but in a different culture and religious climate. Those rites or practices may nevertheless be of huge significance and a matter of personal and community existential identity to another person in another context.
The right outwardly to manifest faith is central to freedom of religion. Wilcox J addressed this issue in the Australian asylum case of Wang v Minister for Immigration and Multicultural Affairs  FCA 1599:
The form and content of communal rites and practices is often a matter of enormous importance to adherents of a particular faith, as is their system of governance. Many wars have been fought, and many people martyred, because of disagreements on such matters.
We can see this reflected in Strasbourg jurisprudence on freedom of religion and Article 9 of the European Convention on Human Rights. In Eweida, mentioned above, the court held that expression is core to religion:
The manifestation of religious belief may take the form of worship, teaching, practice and observance. Bearing witness in words and deeds is bound up with the existence of religious convictions…
The court went on to give some definition as to the extent of the protected right:
In order to count as a “manifestation” within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of worship or devotion which forms part of the practice of a religion or belief in a generally recognised form. However, the manifestation of religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. In particular, there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question
Ahmadis in Pakistan are forbidden from calling themselves Muslim, calling their place or prayer a mosque or using the Azan, the call to prayer, or using any other dress, jewellery or other sign or symbol that might be interpreted as holding themselves out as Muslim. These may seem like insignificant symbols to many of us but the deliberate denial of their core Islamic identity is hugely important to some Ahmadis, particularly once they have had the opportunity to live freely in a country like the United Kingdom. Does a denial of these forms of expression make an Ahmadi a refugee?
The answer is “yes”, if religious identity is important to the individual concerned. In the leading case on Ahmadis, MN and others (Ahmadis – country conditions – risk) Pakistan CG  UKUT 389 (IAC), in which I acted, the judges held that any Ahmadi is a refugee if the anti-Ahmadi laws were genuinely an interference with their religious identity. The same will be true for other religions in other contexts.
But how can a judge determine the truth of another person’s religious identity?
Actions speak louder than thoughts
In the early tribunal case of Dorodian (01/TH/01537), the old Immigration Appeals Tribunal heard and allowed the appeal of an Iranian who had converted from Islam to Christianity. This was on the basis of a letter of support from the church minister. Having done so, Mr Freeman emphasised the importance of hearing evidence from the minister of a church to which an asylum seeker claims to belong:
Having between us a good many years’ experience of asylum cases, we realize that allowing an appeal on this basis is likely to be treated as an open invitation by other Iranians less sincere than this appellant to take instruction for conversion to Christianity and so secure asylum. We should like to make the following suggestions:
(a) no-one should be regarded as a committed Christian who is not vouched for as such by a minister of some church established in this country: as we have said, it is church membership, rather than mere belief, which may lead to risk;
(c) unless the Home Office have accepted the appellant as a committed church member in writing in advance of the hearing, the minister should invariably be called to give oral evidence before the adjudicator: while witness summonses are available, adjudicators may reasonably expect willingness to do so in a genuine case
We can see here that concerns about fake Iranian converts pre-date those of Rev Fraser. Dorodian was cited with approval in NM (Christian Converts) Afghanistan CG  UKAIT 45 and is still regularly referenced in determinations, as a search of BAILII reveals.
Mr Freeman, in characteristic style, went on to suggest that judicial notice can be taken of core religious beliefs and that a judge should test the religious knowledge of the appellant if the Home Office had not already done so. This part of the determination is perhaps best left interred. It cannot safely be assumed that any given judge will have sufficient knowledge of a given religion — Protestant, Catholic, Muslim, Ahmadi, Sikh or other — for such questioning to be useful and it would almost inevitably lead to an appeal based on the judge getting something wrong, misinterpreting something or simply just descending impermissibly into the advocacy arena and losing impartiality.
There is more recent and perhaps less compromised authority in support of a more objective approach where actions should speak louder than words.
In the case of R (SA (Iran)) v Secretary of State for the Home Department  EWHC 2575 (Admin) HHJ Gilbert, sitting as a deputy judge of the High Court on a fresh asylum claim case, faced the job of deciding whether a conversion to Christianity here in the UK by an Iranian lady whose earlier asylum claim had already failed gave rise to a realistic prospect she might win her appeal before an immigration judge. The Home Office argued the conversion was too late and too convenient. The judge suggested that the fact the lady had been attending church should normally count in her favour:
It is a dangerous thing for anyone, and perhaps especially a judge, to peer into what some call a man or woman’s soul to assess whether a professed faith is genuinely held, and especially not when it was and is agreed that she was and is a frequent participant in church services. It is a type of judicial exercise very popular some centuries ago in some fora, but rather rarely exercised today.
These are strong words heeding the wisdom of Elizabeth I. Is it witch dunking or the Inquisition to which he refers? He goes on:
I am also uneasy when a judge, even with the knowledge one gains judicially in a city as diverse as Manchester, is bold enough to seek to reach firm conclusions about a professed conversion, made by a woman raised in another culture, from the version of Islam practised therein, to an evangelical church in Bolton within one strand of Christianity. I am at a loss to understand how that is to be tested by anything other than considering whether she is an active participant in the new church.
This must be right. It is impossible to know what is really going on in another person’s head, particularly about something as inherently unknowable as faith. This is why there is a low standard of proof in refugee law (reasonable degree of likelihood rather than balance of probabilities): because refugee claims are by their nature impossible to “prove” but the consequences of wrongly refusing a claim are dire. If a person is regularly attending a place of worship, is vouched for by the minister and, even better, also by other members of the congregation or community, this has to be sufficient to establish the claim.
I once acted in a case for a Baha’i who had recently arrived in the UK. He had converted shortly before leaving Iran and his knowledge of the faith was fairly basic. He lived on very meagre asylum support in an area from which it was expensive and time consuming to travel to the nearest Baha’i meeting place. He had only occasionally been able to attend meetings and was too embarrassed to ask one of his new acquaintances to attend the tribunal with him.
We still won his case, submitting to the judge evidence of the efforts he had made to establish contact with the Baha’is once in the UK and his reading and study material. If corroboration is not available, at least explain why and make an effort to present some evidence of involvement or attempted involvement.
No-one expects the Spanish Inquisition!
As we have seen, in the case of Dorodian Mr Freeman suggests that judges should test the religious knowledge of claimed converts. As also already discussed, this would be unwise for reasons of procedural fairness. There are other reasons why this sort of questioning is not necessarily very effective in sorting sheep from goats.
- Inquisition is so 15th century.
- As Rev Fraser seems shocked to discover, scriptural knowledge can be learned. In truth this is axiomatic; without wanting to descend into discussion of Socratic dialogue, all knowledge is learned. The faithful will be motivated to learn by their faith. The faithless will have other motivations for their learning.
- To look at this another way, testing scriptural knowledge does not test faith. It is unlikely that it was scriptural knowledge that led to conversion or which motivates evangelism or religious identity; the words are the same for everyone but interpretation and understanding of those words varies from one acolyte to another. Feeling is more important than top trumps style knowledge of a religion.
- Language interpretation becomes particularly problematic when it comes to the language of scripture. Most interpreters interpret sense and meaning not language. Experience suggests that where the interpreter lacks the necessary precise knowledge of religious terminology (or there is no real translation of a word) then confusion reigns. Experience suggests this is commonplace.
Nevertheless, the Home Office will routinely attempt to examine the religious knowledge of asylum applicants who base their claim on religion. One can see why they feel they have to but it is a blunt tool. Questions on dates, names, festivals, rites, books and so on are routine. This was confirmed by a 2016 report by the All Party Parliamentary Group for International Freedom of Religion or Belief.
All this said, in some religious cases in which I have acted the religious fervour of the applicant has been readily apparent in the interview notes. In depth knowledge has sometimes been evident, and/or the language and tools of religious advocacy and education have been deployed on the interviewer, whether the interviewer knew it or not. Nevertheless, to prove my point about this being a blunt tool, I have also seen such cases refused by the Home Office.
Zeal of the converter
In some countries or contexts, mere adherence to a religion is sufficient to endanger a person and put him or her at real risk of persecution. Baha’is from Iran, for example, are accepted by the Home Office to be in danger as are apostates from Islam in some countries, including Iran and Afghanistan.
Sometimes a “discreet” or quiet believer will not be in danger but an outspoken or proselytising one will be. As discussed below, refugee law does not require discretion but some may choose of their own God given free will to be so.
One of the central obligations of Ahmadiyya is “tabligh”, a broad conception of proselytising which encompasses not just preaching but leafleting, conversation, missionary aid work and simply setting a good example. All Ahmadis in Pakistan have to be discreet, though. Any Ahmadi to mount the proverbial public soap box in Pakistan would be committing suicide. For some the situation in Pakistan is stifling while others may not be so concerned about it.
The zealous may be entitled to asylum; the apathetic will not. Without opening a window into the soul, how is a judge to tell one from the other?
Decision-makers will often equate deep knowledge of a religion with fervour even though correlation is not cause; if an asylum claimant is able to display deep knowledge of their religion in their asylum interview or if necessary their witness statement that will be a helpful starting point.
It would also be useful in any witness statement or if given the opportunity at interview to try to articulate the asylum claimant’s religious identity and their beliefs, if any, about proselytising. These sorts of things are very hard to put into words, particularly through the medium of an interpreter, but some effort needs to be made here for the claim to be a plausible one.
If an asylum seeker claims that he or she will want to proselytise or otherwise outwardly express their religious identity in a dangerous way on return to the home country but (a) did not do so previously and (b) has not done so in the UK, his or her asylum claim is likely to fail. Some evidence of engagement in expression or proselytising will be needed, preferably from third parties such as co-religionists.
In this day and age there may be Facebook or other social media activity which can be printed as evidence, example leaflets can be produced in evidence and photographs can be taken of street stall attendance or similar. None of these are incontrovertible proof but someone who goes to the effort of producing some evidence will be in a better situation than someone who produces none.
Exaggeration or attempting to portray the asylum claimant as something they are not is very unhelpful and unwise; judges are alive to the possibility and will carefully consider how plausible the evidence is and how it all “hangs together”.
Discretion not required
It is never an answer to a refugee claim to say that the refugee should go home and keep quiet in order to remain safe.
The Refugee Convention offers surrogate international protection to those who need it on the basis of certain protected characteristics, including religion. As we have already seen, it would be a complete abrogation of many religions for them to be pursued in secret and in private; worshiping in community with others, celebrating particular festivals with others and public manifestations of faith at key times in the life of the family — birth, coming of age, marriage, death — is core to most mainstream religions.
Where a person has to be discreet about these matters or other requirements of one’s faith (such as obligations to carry out missionary work for evangelical Christians, Ahmadi Muslims or others) in order to avoid persecution, that person is entitled to refugee status.
In HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department  UKSC 31 the Supreme Court famously held that no-one can be expected to be discreet about their sexuality in order to avoid being persecuted. The jurisprudence considered in reaching that conclusion often concerned religion, and the reasoning is obviously transferrable back to religion cases.
This is exactly what the tribunal did in the MN and Others case on Ahmadis and the Court of Justice of the European Union also followed this approach in joined cases C-71/11 and C-99/11 Y and Z.
That said, and as stated in the Home Office instructions on Assessing credibility and refugee status, “the simple holding of beliefs which are not tolerated in the country of origin will normally not be enough to substantiate a claim to refugee status”. In other words, if a person’s beliefs are not expressed publicly, and the reason they are not is not a fear of persecution, then they may not qualify for refugee status.
If their beliefs would not come to the attention of the authorities because of a choice to keep them private beyond the risk of persecution, the claimant would not be at risk of persecution. This was confirmed in AS (Iran) v Secretary of State for the Home Department  EWCA Civ 1539, although Thomas Beamont in his post on the case criticises the extent to which the court might have misinterpreted the difference between “privacy” and “concealment”.
Asylum claims based on religion are interesting and challenging. It is critical to establish what are the personal beliefs of the asylum seeker but given the impossibility of opening a window into the soul, it is necessary to focus on context and on the outward manifestations of belief.
A witness statement from the asylum seeker should address the context to the asylum seeker’s religious beliefs. Is the person from a particularly religious family or background? When interviewed, what degree of religious knowledge or passion did the applicant show, if any? Attention can and should be drawn to this if it applies. What is the person’s religious identity? What are their beliefs? This will be very hard to express and articulate, particularly given they may not be amenable to rational explanation, but it is still necessary to set these out in writing. For example, the statement could try and explain favourite passages of a key text and why these are favoured.
A personal witness statement is insufficient alone, though. It is easy for the Home Office or a judge to dismiss a claim where the only evidence is that of the asylum seeker. It is hard or even impossible lawfully to dismiss a claim where there is credible evidence about the asylum seeker’s religious adherence from a range of witnesses, including the relevant minister. Attendance of witnesses who can speak of and about the appellant and their activities is critically important.
Photographs of participation at religious events or festivals might be useful (if none exist, take some and explain to the judge that they were taken specifically for the purpose of the hearing to try and give the judge some idea of what the events look like), or copies of religious pamphlets or literature, or a favoured religious book or text of some kind.
As always, when proving a case corroboration is not mandatory as a matter of law but it will certainly help.
This post was first published in December 2015 and has been updated to take into account developments in the law since then, with assistance from Nath Gbikpi of Wesley Gryk Solicitors.