Over 11 years since the decision in SZ and JM (Christians – FS confirmed) Iran CG [2008] UKAIT 82, the Upper Tribunal has revisited the question of risk on return for certain groups of Christians in Iran. The result is PS (Christianity – risk) Iran CG [2020] UKUT 46 (IAC).

Notwithstanding the apparent breadth of the title, the scope of the tribunal’s consideration is limited to the risk to Christian converts, as opposed to those often termed “ethnic” Christians, for example from the Assyrian churches in Iran. The tribunal found that “a convert to Christianity seeking to openly practice that faith in Iran would face a real risk of persecution”.

The position in SZ and JM

The tribunal in SZ and JM had followed the conclusions of a similarly constituted tribunal some four years before, in FS and others (Iran – Christian Converts) Iran CG [2004] UKIAT 303.

In both decisions, the tribunal drew a number of distinctions between different groups of Christians. One was between converts from Islam and “ethnic” Christians, who were typically born into Christianity.

Crucially, amongst Iran’s Christian convert population, the tribunal sought to carve out the category of the “ordinary convert, who is neither a leader, lay or ordained, nor a Pastor, nor a proselytiser or evangelist”. For those in this category, the tribunal said, the “actual degree of risk of persecution or treatment breaching Article 3 is not sufficient to warrant the protection of either Convention” (see paragraph 187 of FS and Others).

The appellant’s case in PS was that this distinction no longer held good, and that “ordinary converts” are now also at real risk of persecution in Iran.

The next decade

It is fair to say that the tribunal’s decision in SZ and JM has not aged well. No sooner was it released than the situation in Iran deteriorated following events surrounding the 2009 elections.

Then, evidence began to emerge that that the Iranian regime targeted its citizens for leaving the country illegally and/or registering an asylum claim abroad. Association with the West, and the UK in particular, became a factor increasing the suspicion the regime had of returnees (see paragraph 67 of BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC)). 

The Upper Tribunal decisions in both AB and Others (internet activity – state of evidence) Iran [2015] UKUT 257 (IAC) and SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 308 (IAC) were a good indicator of the shifting attitudes of the regime. They pointed to pervasive monitoring of Iranian nationals’ online activity, and the likely interrogation of returnees about the content of their asylum claims. The culmination of this was the tribunal in HB (Kurds) Iran CG [2018] UKUT 430 (IAC) considering that the poor human rights situation in Iran could be “taken as read”. 

A bleak picture, then — one which the panel in PS contrasted with the period of relative “respite” which Iranians and Christian converts enjoyed up to 2008/2009.

The position of Christians in Iran today

In addition to the deteriorating human rights situation, the Tribunal’s decision in SZ and JM was followed by the closure of all churches in Iran that might traditionally have admitted converts to the faith. Persian-speaking churches, ie churches not comprised of “ethnic” Christians, were the target of this programme of closures. The Upper Tribunal concludes at paragraphs 38 and 39: 

In light of the consistency in the sources we accept and find that the Iranian authorities have, over the past decade, effectively restricted Christian converts from engaging in open collective worship, by pursuing a policy of church closures.

The result of the church closures, explain Landinfo [the Norwegian Country of Origin Information Centre], is that Christian worship is now conducted almost exclusively in private. 

Worship as part of a congregation is almost exclusively conducted in informal — and illegal — house churches. This, however, carries with it the risk of arrest, detention and worse. 

The Home Office, for its part, has recognised this deterioration in the treatment of convert populations over the years. The 2015 version of the relevant Country Policy and Information Note stated at paragraph 3.1.4:  

The right of Muslims to change their religion is not recognised under Sharia law. The religious conversion of Muslims in illegal in Iran. Christians who have converted from Islam are at real risk of persecution in Iran, and a grant of asylum is likely to be appropriate.

Of course, Home Office policy never stays the same for long, and subsequent versions of the policy have not provided such a clear-cut acceptance of the dangers of conversion. So what, then, was the Secretary of State’s case in PS?

The Home Office argument: don’t go to church at Christmas

The Secretary of State’s case was, simply put, that the dangers of practising one’s faith in Iran constitute acceptable risks to take under the Refugee Convention. Whilst conversion from Islam constitutes the crime of apostasy in Iran, prosecutions for apostasy are in fact comparatively rare. The regime would instead resort to one of a plethora of other vaguely worded crimes, often with some tenuous link to state security, in order to prosecute cases of conversion.

The most frequent response to those who might be termed “ordinary converts” is to ask them to “recant”: to sign a document denouncing the convert’s new found faith, and agreeing to forgo any further practice of the faith. This, the Secretary of State suggested, was no interference at all with the free practice of one’s religion. Much less was it a matter that engaged the Refugee Convention.

In any event, having performed some quick long division, the numbers of converts arrested in Iran did not, the Secretary of State argued, demonstrate a real risk that any particular convert would be uncovered at a house church by the regime.

The Upper Tribunal gave short shrift to these arguments. Nevertheless, looked at in the cold light of day, the United Kingdom government’s contention that it is acceptable for a person to have to hide their religious belief, to tolerate being unable to practice it legally, openly, or in fact at all, and to have to sign a legal document actively denouncing it on threat of prosecution is mildly astonishing.

More so was the final limb of the Secretary of State’s case. The evidence suggested a spike in arrests at Christmas (occasionally considered to be an important Christian festival). The Secretary of State disagreed, and had a simple solution to the plight of the convert who may fear being picked up by the regime whilst on the way to celebrate: don’t go to church at Christmas. 

P.S. I Don’t Believe You

The case did not turn out too well for PS himself. Having been found not to be a “genuine” Christian convert, PS’s case started life as an argument around whether Persons Engaged in Christian Activities (PECAs), whether or not genuine in their faith, may nevertheless be perceived as being genuine by the authorities on return on account of their activities and baptism.

Ultimately, the panel concluded that the evidence did not quite bear out the argument that returnees would find themselves at risk on this basis alone. After all, where the faith was not genuinely held, it would be no issue for the individual to sign up to the regime’s pledge to practice no further.

The panel did, however, accept that PECAs may find themselves at risk where there were other aspects of the sur place activities, or other matters in their background generally, that would excite the interest of the authorities. 

A window into the soul

Worth a final mention are the panel’s comments at paragraph 10, on how the “genuine” nature of a person’s faith is to be assessed. This, frankly, is a nigh on impossible task. It is refreshing to see endorsement of the guidance given by the late Sir Andrew Gilbart, then Honorary Recorder of Manchester, in SA (Iran) [2012] EWHC 2575 (Admin). These were powerful and poignant observations, and it is always worth going back to the source, even in light of the Upper Tribunal now engaging with the essence of the point: 

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. 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.

Thanks to Ryan Bestford of Greater Manchester Immigration Aid Unit for his contributions to this article.

Headnote in full