The difficulty of presenting asylum claims based on religion is well known. Such claims raise difficult evidential problems, which are addressed in this detailed post by Colin Yeo.

But AS (Iran) v Secretary of State for the Home Department [2017] EWCA Civ 1539 seems to pose a novel difficulty: should a claim by a person who would exercise their religion in utter privacy be accepted?

Factual background and First-tier Tribunal decision

The appellant is an Iranian national. She had made a previous asylum claim in the UK on the basis of her political activities, but was refused and removed to Iran in 2009. In 2012, she returned and shortly afterwards made a fresh claim for asylum based on:

1. Her political activities in the UK since her return
2. Her illegal exit from Iran
3. Her conversion to Christianity
4. The risk of domestic violence from her husband who the appellant claims is a member of the Iranian intelligence service.

The First-tier Tribunal – after being told to rehear the case by the Upper Tribunal – rejected her claim.

Grounds of appeal in the Court of Appeal

The grounds advanced before the Court of Appeal were that the tribunal failed to give adequate reasons for its conclusion that the appellant:

1. as a victim of domestic violence in Iran, was incapable of being a “member of a particular social group” under the Refugee Convention 1951.
2. did not demonstrate well-founded fear of persecution on grounds of religion (Christianity).
3. did not demonstrate well-founded fear of persecution on grounds of her illegal exit from Iran.

The dismissal of the first and third grounds turned largely on the facts and need not be explained here. The second ground may transpire to be more contentious, and so merits a closer look.

Well-grounded fear of persecution as a Christian convert

AS had converted to Christianity in 2003, and had therefore spent years in Iran as a Christian. The appellant’s faith was private:

She regarded her religion as a personal matter and indeed seems to have sought no public expression of her Christianity.

It was common ground that the mere fact of practising Christianity in Iran is not sufficient to make out a claim. This is because if Christians do not proselytise they are taken to be not subject to persecution. Those seeking to test this assumption may find useful this March 2015 report by two All-Party Parliamentary Groups.

However, the appellant was not born a Christian, but converted. Therefore she submitted that as her history as a convert is an intrinsic part of her religious identity, she must not be constrained to conceal it through fear.

The Court of Appeal recalled Article 18 of the UN International Covenant on Civil and Political Rights 1966 on this point:

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

The court accepted the Secretary of State’s reply that the route to acquiring belief does not form part of that identity. Therefore, as the fact of conversion is not part of her religion belief, and the appellant is not precluded from practising the religion to which she has converted, she has no claim to refugee status.

The Secretary of State also emphasised that the appellant regarded her religion as a private matter, and would not seek to proselytise. Therefore the appellant fell without Lord Dyson’s example in HJ (Iran) [2011] 1 AC 596 of a person who must conceal their identity in order to remain safe.

Concealment vs privacy

On its face, the issue of ‘private religion’ sits uneasily with HJ (Iran).

This is because a religious life lived privately is different to a religious life concealed. AS is not ‘concealing’ anything. Rather, her identity as a Christian convert is exercised privately, which would seem to bring it within the scope of Article 18 of the 1966 Convention. Whereas Article 18 seems to cover quite accurately AS’s religious behaviour, the judgment applies a case on the quite different phenomenon of ‘concealment’.

Another case that misinterprets HJ (Iran). The Court has misunderstood the difference between privacy and concealment https://t.co/4Vmv3MZuzg @OnePumpCourt

— Allan Briddock (@AllanBriddock) October 17, 2017

On a related note, the assumption that a history of ‘silence’, whether by concealment or privacy, is a reliable indicator of future safety has been called into question by appellants in the context of LGBT asylum claims.

But the problem remains that AS was found to have exercised her private religion without persecution. Her status as a converted Christian was not one about which other people would be made aware.

In fact, despite the apparent distinction between privacy and concealment described above, it may also be arguable that each should be treated alike in the context of the Refugee Convention.

If the point of the Refugee Convention is to offer protection from persecution, then it should not be used where there is no persecution. While it is offensive in principle to expect a person to conceal a part of their identity in order to remain safe, concealing an aspect of one’s identity for reasons other than persecution is permissible because there is no persecution to protect against. The same is arguably true of those who exercise and have always exercised their religion in complete privacy.

However, this case appears to raise novel issues about the private exercise of religion. These are not readily answered by HJ (Iran), which dealt with concealment of identity. In light of this distinction, a revisiting by the Supreme Court of the issue may be constructive.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

Buy now