United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2023-004722
	First-tier Tribunal No: PA/54885/2022

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 17 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE HANSON

UPPER TRIBUNAL JUDGE MANDALIA

 

Between

 

HS (Iran)

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr Vokes, instructed by Halliday Reeves Solicitors.

For the Respondent: Mr Lawson, a Senior Home Office Presenting Officer.

 

Heard at Birmingham Civil Justice Centre on 20 January 2025

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

 

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court .

DECISION AND REASONS

Introduction

1.        The Appellant shall be referred to within the determination as HS with any reference to his full name in the medical reports and other evidence being replaced by these letters.

2.        The Appellant failed to attend the hearing. Mr Vokes did not express surprise, indicating that attempts had been made to arrange for an updated medical report in relation to the Appellant's mental health, but that he refused to cooperate claiming there was nothing wrong with him. It was agreed in the circumstances that the appeal can proceed by way of submissions only, which were made initially by Mr Lawson who was followed by Mr Vokes.

Background

3.        On 22 July 2022, the respondent made a decision to refuse the appellant's claim for international protection. The appellant's appeal against the decision was allowed by a judge of the First-tier Tribunal ("FtT") for reasons set out in a decision dated 9 October 2023. The appellant applied for and was granted permission to appeal to the Upper Tribunal. In a determination promulgated on 10 January 2024 Deputy Upper Tribunal Judge Shepherd found the decision of the FtT is infected by a material error of law and she set aside the decision of the First-tier Tribunal. She said:

"44. I am conscious that this is the third time the Appellant has been through the appeals process concerning his claim for protection made on substantially the same basis, and this process has been ongoing for almost 20 years. I am also conscious of the significant mental health issues discussed in the medical evidence. It is in both parties' interests that this matter is concluded as soon as possible with minimal further litigation. In the circumstances, and with the overriding objective of the Tribunal Procedure Rules in mind, I consider that the appropriate course of action is for the appeal to be listed to be remade in the Upper Tribunal on a date to be fixed. It may be that a panel hearing is appropriate."

4.        There are no preserved findings.

5.        The matter comes before us to remake decision and either allow or dismiss the appeal.

6.        As there have been a number of previous appeals we commence our deliberations by considering the earlier findings in accordance with the Devaseelan principle.

7.        The basis of HS's asylum claim was that he is at risk of ill treatment in Iran based upon his membership of a particular social group and due to his religion. On 6 November 2003 the Appellant states he was accused, without any foundation, of committing adultery with a lady he knew. As a consequence of this allegation the Appellant claims he was arrested and charged. He claims he was subsequently convicted of an offence of having an unlawful sexual relationship and was sentenced to death. He claims to have been tortured whilst in police detention. He claims he was subsequently transferred to prison where he was seen by a doctor and released from custody in December 2003 in order to obtain medical treatment due to his injuries. The Appellant claimed he was treated in hospital for thirteen days. On the 10 June 2004 he fled Iran. When the matter came before the Tribunal in 2005 the Appellant said he had converted to Christianity and will be at risk for this reason as well.

8.        The first appeal was heard by Adjudicator Narayan on 1 March 2005 who dismissed the Appellant's appeal, based upon his claim that he will be at risk upon return because he had had unlawful sexual intercourse for which he was likely to be stoned to death or face life imprisonment, and, as a genuine Christian convert, for the following reasons:

(a) the Appellant's credibility was damaged under s.8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 because he did not claim asylum in France, Italy or Greece.

(b) the Appellant's explanation was rejected as to why he had stated in his interview that he was a Shia Muslim rather than a Christian convert (essentially problems with interpretation).

(c) it was implausible that the Appellant would not have reported to the authorities the fact that a woman threatened to make a rape allegation against him, given the Appellant's individual circumstances as a wealthy man.

(d) it was implausible that a married woman would admit to a sexual relationship with a man outside her own marriage given the objective evidence suggests severe punishment for this. If she had done this, she would have suffered serious repercussions.

(e) the Appellant could not explain why he considered the punishment for his adultery would be stoning to death when the objective evidence showed that it would be flogging.

(f) despite the evidence from Rev Singh being accepted (that the Appellant appeared genuine and was baptised), the Appellant's conversion was an attempt to bolster a weak claim in respect of adultery.

(g) the Appellant had not mentioned when interviewed, that he had found a new faith.

(h) the Appellant did not join a Christian or evangelical religion in Iran.

(i) as his account had been rejected, the Appellant would not be targeted by the authorities due to an adulterous relationship, and he would not be a proselytising Christian.

9.        The Appellant subsequently made a number of fresh claims for asylum which were refused by the Respondent. Further submissions were lodged on the 18 July 2007, 30 June 2014 and 27 February 2015. The latter claim was based upon the Appellant's account of events in Iran and his conversion to Christianity and was accompanied by evidence he had been tortured in Iran in the form of a Medical Foundation (Freedom From Torture) report written by Dr. Gregory. This was refused on the 11 September 2015. The decision was reconsidered by the Secretary of State on 29 January 2016 and again on the 24 August 2016 with the latter decision refusing the Appellant's asylum claim but accepting that it amounted to a fresh claim for asylum.

10.    The second appeal came before First-tier Tribunal Judge Smith on 6 April 2017. The Appellant on this occasion also claimed he was a victim of torture and a genuine Christian convert, although he did not attend the hearing of his appeal. Judge Smith noted there were no other witnesses and the hearing proceeded by way of submissions only. Adjudicator Narayan's determination was taken as the starting point and at [28], Judge Smith adopted the earlier finding that the Appellant's accounts of events in Iran was not credible, and went on to dismiss the appeal for the following reasons:

(a) the Appellant had been capable of lying to Dr Gregory and had provided different accounts of events in Iran, which may be the product of a genuine underlying illness that has caused him to lose touch with reality and led to a gradual exaggeration of his claim [28]

(b) there was insufficient evidence to show that events had moved on since Adjudicator Nayaran's decision concerning events in Iran such that he was not a victim of torture [28] [43]

(c) no new evidence had been provided to justify a departure from Adjudicator Nayaran's decision that whilst the Appellant may attend church, he was not a genuine Christian convert whilst in Iran [29] [43]

(d) as to whether the Appellant had since become a genuine convert, he had not given a true account of his experiences and his account was not credible [31-32]

(e) the evidence provided from each of Cornerstone, Rev Clare Goode and Rev Clive Burrows did not amount to an endorsement that the Appellant is a Christian; there was an absence of evidence that the Appellant had shown an interest in Christianity whilst detained in prison [39]

(f) there was no medical evidence to show the Appellant's illness prevented him from leaving his home and exploring his faith more openly; the Appellant was capable of leaving home and attending churches when he has an application to support [40]

(g) there was a complete absence of evidence of any interest by the Appellant in Christianity between 2005 and 2014; he had been opportunistic in his claim and was not a genuine convert.

11.    The Appellant's appeal against that decision was refused and he became appeal rights exhausted.

12.    On 18 March 2018 the Appellant made a further fresh claim for asylum which was rejected in a decision dated 11 July 2018. On 27 August 2019 the Appellant made another asylum claim on fresh evidence of his Christian beliefs which was rejected by the Secretary of State on 3 October 2022. The Respondent did not accept that the Appellant was at risk of persecution in Iran on the basis of the findings in the previous appeal determinations. The Respondent was also of the view that the fresh evidence did not demonstrate he was a genuine Christian as up to date evidence from his church or his Christian beliefs was not provided in time. The Respondent was of the view that the evidence showed that he attended church but there was no additional evidence of his activities such as evangelising.

13.    The Respondent was also of the view there were no insurmountable problems to the Appellant reintegrating back into life in Iran as he speaks the language of his community and has lived there for the majority of his life. He could also maintain contact with friends and family via modern means of communication and utilise skills obtained in the UK in Iran.

Summary of the key evidence

14.    The Appellant has filed a number of statements in support of his appeals. In his statement of 31 January 2024 he stated the reason he did not claim asylum in Greece, Italy or France was because the smuggler told him they were going to Canada, where he has family. He was under the control of an agent throughout.

15.    The Appellant maintains his grounds of real risk based upon an inappropriate sexual relationship claiming the lady concerned was taking a huge risk but that she was trying to force grounds for divorce from a husband she was in an unhappy relationship with.

16.    The Appellant maintains the reason he did not join the Christian religion in Iran is because he was not able to do so, and it if he converted his religion in Iran and was open about it, he will be persecuted.

17.    The Appellant claimed the reason he was not able to provide evidence between 2004 - 2014 of attending church was because when he was moved to Nottingham in 2005 he never found a church he was comfortable with, and that although he did go to some churches he was never there for a long time, could not settle there and so could not get any evidence from them.

18.    In his witness statement dated 12 April 2023 the Appellant confirmed he stopped attending Sherwood Church because he began to disagree with the church's teachings, claiming the church also seemed to be motivated by getting money out of people in a manner similar to the American evangelical churches.

19.    The Appellant left Cornerstone Church and also St Stephens Church as he says a lot of Iranian people attended, but they were not genuine, that he believed 90% were there as they wanted a Visa. They were attending the church but still talking about meeting up at the mosque, which angered him so he did not wish to keep attending.

20.    The Appellant stated that he worships himself at home which he finds more comfortable. At a previous address in Nottingham where he lived for eight years, he converted his garden into his own house church and would use his garden to pray and relax and contemplate about Jesus and God. The Appellant states for three weeks prior to the statement he had attended St Michael's Church near to where he lived which was recommended to him by the Rev Clive Burrows from St Stephens Church in Nottingham.

21.    The Appellant confirms that after his conviction in 2010 he was placed on the sex offenders register. He states that as a result, he would struggle to go out of his home for much of the time as he was paranoid that people looking at him were doing so as he is a sex offender and judging him, which he claims is not the person he is. That is another reason he claims he struggled to keep going out and attend church.

22.    The Appellant claimed he does not have any in family in Iran to speak of, and that although his older brother is in Iran, he has no communication with him as he is a strict Muslim, follows a Mullah, and does not want to know the Appellant because he is a Christian. His younger brother is in the USA, his sister is in Canada where she has lived for 27 years and his parents also live in Canada. The Appellant also claims that if he was in Iran he would have to pay for medication which he could not access as he could not afford it.

23.    Because of the evidence before the Tribunal concerning the Appellant's mental health a direction was made for questions to be put to the Appellant by the Presenting Officer in written form. The Appellant answered the questions put to him in writing in the form of a statement dated 11 November 2024. The statement sets out the question put and his answers. The statement is a matter of record and there is nothing to be gained by us reciting the questions and answers in this decision. The statement has been signed by the Appellant and has a declaration of truth. The Appellant has also provided a substantial volume of medical evidence, including his GP notes, which we have read and taken into account even if not specifically referred to within the body of our decision.

24.    The Appellant refers to a report from the Medical Foundation. That is the report of Dr Gregory who examined the Appellant on 7 July 2014, 9 September 2014, 15 September 2014, and whose report is dated 30 December 2014.

25.    Dr Gregory undertook in a physical and psychological examination of the Appellant and sets out her opinion on scars and other physical findings between [51 - 59] and in relation to the result of the psychological examination between [60 - 66]. Dr Gregory also examined the reason for inconsistencies in the Appellant's testimony when comparing his previous interviews and statements between [67 - 75].

26.    In the section of the report entitled "Summary" Dr Gregory writes:

SUMMARY

76. HS is a 31 year old Iranian man. He always felt different as a child with a questioning attitude and as he got older he particularly had questions about religion. As a teenager he informed a 'friendship meeting', where a small group met at his house and discussed different aspects of life, including religion and relationships.

77. In 2003 HS was arrested following an allegation of an illegal sexual relationship by a female member of the 'friendship meeting'. At the court hearing HS said it was determined that there was no evidence for these allegations but the details of the group discussions were revealed and he was detained to question him about religious matters.

78. During his detention HS describes suffering from a number of ill treatments including: beatings, weights being hung from his genitals, being burnt with a heated metal tumbler, being forced to drink excessive water followed by threats if he urinated or being watched when urinating, being held naked and stroked and touched all over his body in a sexual way by the interrogators, being repeatedly anally abused with a metal object, having a concrete block dropped onto his legs and been subject to intense psychological abuse.

79. There is physical evidence of a previous broken nose. There are three scars that are consistent with the attributions of ill-treatment given and two scars that are highly consistent with the attributions of ill-treatment given. HS did not seek to attribute all scars to ill-treatment.

80. There was no physical evidence of the abuse to his genitals and the anal abuse. This does not mean this abuse did not happen as there is frequently no physical scarring following this type of abuse.

81. There is psychological evidence of Post Traumatic Stress Disorder relating to his experiences of ill-treatment and intensified following a period of detention in the UK.

82. There is psychological evidence of depression and anxiety.

83. There is some evidence of an underlying personality disorder which may explain some of HS's flamboyant, emotional presentation and odd behaviour and his inability to remain focused on the questions being asked. These features appeared to intensify when HS was more stressed. Obtaining the full testimony took a number of hours of patient interviewing requiring the development of trust and rapport.

84. There are major inconsistencies between HS's testimony and his previous statements. There are a number of reasons that can account for the inconsistencies in HS's testimony including:

•          Possible misinterpretation by the original interpreters:

•          Difficulties in divulging traumatic events during the original interviews and statements.

•          Difficulties in recalling memory accurately due to the length of time from the original trauma and difficulties in memory that relate to depression and PTSD.

•          A possible personality disorder that means at times HS loses touch with reality.

85. I have considered, as I am required to do by paragraph 105 (f) of the Istanbul Protocol, the question of whether the clinical picture suggests a false allegation of torture. My opinion over several hours of testimony is that although I cannot verify the accuracy of each individual statement made, there is a strong element of consistency running through the statements as they relate to the ill-treatment that HS received in detention. The pattern of gradual disclosure fits with my experience of other survivors of torture as trust and rapport develops.

86. In conclusion, there is significant physical and psychological evidence of the torture that HS describes. In exploring the inconsistencies in HS's testimony, there are a number of explanations for why these may have occurred.

27.    The second report, dated 23 February 2022, prepared by Dr Gwilym Hayes, a Consultant Forensic Psychiatrist, was commissioned at the request of VHS Fletcher's Solicitors of Nottingham following an event when HS appeared in court on 4 November 2021 facing a charge of harassment said to have taken place between 2 August 2020 and 18 August 2020. HS was unable to remain at court due to his volatile state and consideration was given for him to being detained under the Mental Health Act. The purpose of the report was to establish whether HS was fit to plead.

28.    The specifics of the offence for which HS was charged are that on 3 August 2020 HS shouted at an individual and purported to film him on his mobile phone, and jumped out in front of his motor vehicle. On 17 August 2020 HS was said to have attended the individual's place of work and shouted aggressively at him and told his work colleague, "I will kill him and his family".

29.    Dr Hayes, when summarising HS's psychological history writes:

6.1 He made references to having been previously detained under the Mental Health Act (he mentioned Section 4 and Section 2 of that Act). He stated he had last been in hospital the previous month (Highbury Hospital) under the care of Dr Zaedi, Consultant Psychiatrist.

30.    In the section headed "Opinion" Dr Hayes writes:

11 OPINION

11.1 It would be necessary to study his medical records in order to understand his background and any existing psychiatric problems.

11.2 On the day I examined him he came across as an individual with a primary affective (mood) disorder without psychotic symptoms. This is a tentative view and his history may show that he has a schizophrenic-type illness with an affective component.

11.3 In respect of his fitness to plead, my initial thoughts are as follows.

11.4 He is clearly an intelligent man and understands the difference between right and wrong and guilty and not guilty.

11.5 He has no cognitive impairment, and no deficits in his memory. He does not appear to be distracted by hallucinatory experiences and neither is his perception of reality distorted by delusional beliefs. I therefore believe he could listen to legal advice and decide whether or not to act on such and enter a plea with discretion.

11.6 His capacity to follow proceedings would depend on his mental state on the day in question. Again, from speaking to his solicitor this seems to vary wildly week to week if not day-to-day. Despite his discursive speech, I thought, on balance, he was fit to follow proceedings on the day I interviewed him, although the position may be very different when he is next in court and will be contingent on how compliant with any prescribed medication he has been, and any further psychiatric interventions that have taken place in the intervening time.

31.    The third report, dated 28 March 2023, is the report of Dr Brock Chisholm, a Consultant Clinical Psychologist.

32.    In the introductory section of the report Dr Chisholm records being instructed that on 8 December 2021 HS was detained under the Mental Health Act until 14 December 2021 due to increasingly psychotic symptoms, and that in 2022, HS was convicted of harassment without violence and given a non-custodial sentence.

33.    Dr Chisholm sets out the materials available between [20 - 24] which include the extensive GP records which we have also been able to study. We agree with Dr Chisholm's summary of the content of those records which we set out as per his report to ensure a reader of this decision has an understanding of the evidence available from that source too:

26. In 2004 the GP was concerned he could be exploited due to his distress and erratic behaviour.

27. In October 2007 there was a strong psychological element to his symptoms. He was prescribed an antidepressant and refused it. He told the GP he was falsely accused of taking nude photos of a woman and was arrested and tortured for 15 days. His mental health was poor, but no specific diagnosis was given.

28. 15.2.08 he described psychosexual problems including black semen.

29. There are several reports of low mood, paranoia, lack of appetite, poor sleep and aspects related to dysregulation. He was accused of assault, but the case was thrown out. The notes suggest a chaotic lifestyle. There are numerous requests to his GP to assist with his housing.

30. There are reports of being falsely accused of several crimes and that he had a bank account and was not destitute as claimed. He is very distressed with being falsely accused of sexual assault. His GP found it difficult to provide him with the mental health support she felt he needed. However, he did not engage with mental health services.

31. 2012: Possible PTSD to being falsely accused of sexual assault.

32. January 2013: he was very distressed at the female psychologist he had seen. He hates her. The notes suggest he makes inappropriate comments to female professionals. He is obsessional.

33. Earlier in 2015. He is described as jumpy, unpredictable, edgy, prone to outbursts and paranoid. In August 2015 he was accompanied by two police officers. He failed to produce a urine sample. He was not considered psychotic. Mood congruent. Not suicidal.

34. 2015: He is prescribed diazepam and zopiclone.

35. Feb 2016: The GP believes he is not safe to be transferred to Iran. Paranoid, agitated and upset.

36. He visits his GP every week or two with aspecific, unusual presentations.

37. In November 2018 he tells his GP that his mother is also a GP and he talks to his father regularly. He said his trafficker was supposed to take him to Canada (p.97/149).

38. March 2019: Psychology Services do not think he would make use of a therapy.

39. September 2019: psychiatric assessment. No evidence of mental illness other than anxiety.

40. August 2020. Detained by police following threats to kill housing officers.

41. December 2020: Demanding pills/sedatives. Refused urine sample. Apologised to GP a week later and said would attend for a urine test. Did not attend for urine test.

42. Autumn 2021: assessed for psychosis. Unclear what outcome was.

43. 8.12.21: detained under Section 2 of the Mental Health Act. The Primary Care Medical Records do not contain details of this inpatient stay.

44. The records are missing the letters normally contained within them that would contain detailed assessments including the discharge summary from the Sectioning, which was for observation.

45. A copy of the discharge summary was obtained.

46. April 2022: He is banned from refugee forum for being racist.

47. The records end in July 2022. As explained above, the records are incomplete and I have requested them to be available if possible.

48. I am instructed that he was barred from attending this GP any longer. He was transferred in housing to Stoke and it is unclear where his records are. I confirm from my assessment that it would be extremely difficult to obtain this information directly from HS.

34.    Dr Chisholm summarises the materials he had been provided with, both medical and legal, in the following terms:

85. There has been a consistent picture over more than a decade as someone who presents as unusual, difficult to follow, highly anxious and with low mood but appearing as animated. After 2010, he constantly refers to the offence he was charged with regrading sexual assault as a miscarriage of justice, even though that is not the topic of interest at that time. He perseverates and is emotionally labile.

86. He visited his GP approximately every two weeks with a similar presentation for well over a decade. His GP's opinion is that he is chaotic and highly vulnerable. She also believed he required sleeping tablets, diazepam and antidepressant medication.

87. There is clear evidence of a chaotic lifestyle.

88. There is no consistent agreement on diagnosis, except that his presentation is consistent, unusual and highly animated.

35.    Having undertaken his own, clearly difficult, assessment of the Appellant, Dr Chisholm draws together the threads of his own thinking in the section entitled "Summary" in the following terms:

Summary

206. In my opinion it is highly likely that HS meets criteria for a plethora of neurodevelopmental disorders that have been affected by traumatic events resulting in other trauma induced and mood disorders. He may have also met criteria, or had features of a psychosis illness at various times, although this is less clear and the expression of his difficulties in the context of severe but previously undiagnosed neurodevelopmental disorders, including autism provides a diagnostic label that brings most of his difficulties into context.

207. He is extremely vulnerable because of this. Both in the UK and in Iran.

208. My opinion does not include a judgement on the veracity of his specific claims. For example, it is plausible that was arrested and tortured as he claims but his specific account as to what precipitated may well be somewhat different to his original account, as could the consequences of his actions.

209. In my opinion, if he is removed to Iran, his chances of survival are low. Either through misadventure, suicide or coming to the unwanted attention of the authorities. To put this in context, should he be removed from the UK, I think he is probably the most at risk of harm of anyone I have assessed because of an undiagnosed neurodevelopmental disorder combined with a traumatic and difficult adult life.

36.    The schedules of issues set out in the Appellant's skeleton argument, which we answer at the conclusion of this decision, are said to be:

 

a.        Do Devaseelan principles apply?

b.       Was the Appellant tortured in Iran for adultery?

c.        If so is the Appellant at risk of persecution?

d.       Is the Appellant a genuine convert to Christianity?

e.        Is there a risk to the Appellant on return to Iran?

f.         Are there insurmountable obstacles to integration back into life in Iran?

37.    Although this is not a deportation case, we have been provided with a copy of the Appellants record of convictions which show

 

1. 09/08/10 NOTTINGHAM CROWN

 

1.        SEXUAL ASSAULT ON FEMALE BY IMPRISONMENT 9 MTHS TO SIGN

PENETRATION ON SEX OFFENDER REGISTER FOR

ON 15/05/09 (PLEA:GUILTY) 10 YEARS

SEXUAL OFFENCES ACT 2003 s.2

** OFFENCE COMMITTED ON BAIL **

2.        14/07/15 NOTTINGHAMSHIRE MAGISTRATES

 

1.        STALK A PERSON CAUSING SERIOUS IMPRISONMENT 10 WKS

ALARM/DISTRESS RESTRAINING ORDER -

ON 01/04/15 - 09/06/15 PROTECTION FROM HARASSMENT

(PLEA:NOT GUILTY) PROTECTION 14/07/18 ON CONVICTION

FROM HARASSMENT ACT 1997 s.4a(1)(a)(b)(ii)

 

3.        24/02/22 NOTTINGHAMSHIRE MAGISTRATES

 

1.        USE THREATENING ABUSIVE INSULTING CONDITIONAL DISCHARGE 12

WORDS/BEHAVIOUR OR DISORDERLY MTHS

BEHAVIOUR TO CAUSE COSTS 200.00

HARASSMENT/ALARM/DIS RESTRAINING ORDER -

ON 17/08/20 (PLEA:GUILTY) PROTECTION FROM HARASSMENT PUBLIC ORDER ACT 1986 s.4A(1) 23/02/24 ON CONVICTION

VICTIM SURCHARGE 22.00

 

2.        USE THREATENING ABUSIVE INSULTING CONDITIONAL DISCHARGE 12

WORDS/BEHAVIOUR OR DISORDERLY RESTRAINING ORDER -

BEHAVIOUR TO CAUSE PROTECTION FROM HARASSMENT

HARASSMENT/ALARM/DIS ON 23/02/24 ON CONVICTION

03/08/20 (PLEA:GUILTY) PUBLIC ORDER

ACT 1986 s.4A(1)

 

3.        14/11/24 STAFFORDSHIRE MAGISTRATES COURT MAGISTRATES

 

1.        THEFT FROM PERSON FINE 80.00

ON 16/08/24 (PLEA:GUILTY) COMPENSATION 50.00

THEFT ACT 1968 s.1 VICTIM SURCHARGE 32.00

 

2.        MAKE FALSE REPRESENTATION TO MAKE NO SEPARATE PENALTY

GAIN FOR SELF OR ANOTHER OR CAUSE

LOSS TO OTHER /EXPOSE OTHER TO RISK

ON 16/08/24 (PLEA:GUILTY) FRAUD ACT

2006 s.1(2)(a)+s.2

Discussion and analysis

The submissions

 

38.    Mr Lawson opposed the appeal. He submitted that the Appellant is manipulative and will do whatever he considers necessary and that we should make a finding that he is manipulating the system in his current presentation.

39.    Reference was made to the determination of Adjudicator Narayan at [18] in which it was said; " I reject the Appellant's evidence and I find he is prepared to say anything which would enhance his claim".

40.    Reference was also made to [19] in which the Adjudicator said " I however find that this Appellant's conversion is an attempt to bolster a week claim in respect of adultery.

....

I therefore conclude that this Appellant is in fact not a genuine convert to Christianity, despite the signs which he has shown to the Christian community and to the witness the Reverend G Singh in particular."

41.    At [20] where the Adjudicator said: " I find that the Appellant never attempted to join a Christian or evangelical religion in Iran before he left Iran and that he would not upon his return to Iran now, even though he had been baptised into the evangelical church, attempted to proselytise upon his return".

42.    At [21] where the Adjudicator said: " I find that if this Appellant is returned to Iran now, he would not be targeted by the authorities because of any charges and/or complaints and/or findings and/or sentence on him by the authorities in respect of any adulterous relationship with a married lady. I find this Appellant would not be a proselytising Christian in Iran based upon the findings set out above."

43.    We indicated to the advocates at the start of the hearing that we know of no reason to justify going behind the findings of both Adjudicator Narayan and First-tier Tribunal Judge Smith in relation to the alleged adulterous relationship with a married lady in Iran, and the associated risk. On the evidence before us we see no reason to depart from the findings previously made regarding the adulterous relationship the Appellant claims he engaged in. His account has been rejected previously and we find that the Appellant will not be at risk upon return because of that.

44.    We also confirmed that the adverse findings in relation to whether the Appellant is a genuine Christian convert, and any risk arising, were not preserved as a result of the substantial volume of information since the two determinations in question. The focus before us in view of the wealth of medical evidence that we now have is not only upon whether the Appellant is a genuine convert, but perhaps more importantly, even if he is not, how he will be perceived on return to Iran. There is a clear interrelationship between the Appellant's subjective beliefs about Christianity and his actions influenced by his mental health issues which we have touched on above.

45.    Mr Lawson referred to First-tier Tribunal Judge Smith's determination at [28] in which he said:

28. I must assess this claim in the evidence before me and not speculation. In that regard I adopt Judge Narayan's findings that in 2005 the appellant's account of events in Iran were incredible. This appellant has been capable of lying to Dr Gregory, to be found lacking in credibility by Judge Narayan and to be regarded by clinicians as a person who has provided different accounts of events in Iran. This may be the product of an underlying illness that has caused him to "losing touch with reality" and has led to a gradual exaggeration of his claim but I am satisfied the appellant's varying accounts of events in Iran are unreliable and I reject them as incredible. I make it clear that I have applied the lower level of proof. In doing so and in regard to the claims of torture in Iran I reject the submissions of Ms Dhaliwal that events have moved on and the decision of Judge Narayan should be revisited. Judge Narayan's decision stands as the facts were in 2005 and there is insufficient evidence to show that events have moved on to the extent that they now support the appellant's claim. The appellant has not discharged the burden of proof placed upon him even to the lower standard.

46.    This adds nothing to the case as a whole since, on the evidence before us, we have no reason to go behind the adverse findings previously made.

47.    Mr Lawson also referred to the reply to question 15 of the additional questions, which were put by the Secretary of State as the questions that would have been asked by way of cross-examination, which we have referred to above.

48.    Mr Lawson submitted there was no evidence the Appellant had proselytised or would proselytise on return to Iran. It was submitted that if he has not done so in the UK, there is no reason why would he would do so in Iran, and, if he is not a genuine Christian convert , he would not expose himself to the risk that would otherwise arise. It was submitted the Appellant is not genuine and can be returned to Iran, where he will not be at risk upon return for any of the reasons he claims.

49.    Reference was made to the country information regarding risk to Christian converts and it asserted that a disingenuous Christian convert would not face a real risk on return but may be monitored once allowed to return to his home area by means of observation/surveillance by the security services.

50.    Mr Lawson submitted that the Appellant would not face a real risk on return, and in relation to his mental health issues he was not taking medication at the moment and if there is any medication he did require, it will be available to the Appellant in Iran. It was submitted that Dr Chisholm at [37] has referred to the Appellant's account of being in contact with his father who could send him money in Iran to pay for any medication that he required.

51.    In reply Mr Vokes claimed the Respondent could not draw a distinction between the Appellant's faith and his mental health needs. Many with mental health problems do not take medication and the fact the Appellant is not taking medication is important in relation to his behaviour. It was submitted this is clearly demonstrated by the medical reports including the GP evidence as the Appellant's conduct in his GP surgery shows he is a person with mental health problems whose behaviour is at times uninhibited.

52.    In relation to Mr Lawson's claim the Appellant had not proselytised in the UK, Mr Vokes referred to the evidence in the letter from Dr Jo-anne Russon, dated 14 January 2021, in which it is clearly stated that the Appellant, prior to lockdown, attended meetings when she would speak with him, that they would have conversations about the Bible, and her evidence that " I believe HS annoys his neighbour sometimes talking about his faith. On several occasions HS tells me about his week and how his neighbour was annoyed at something HS said about the church and his love for Jesus." which Mr Vokes submits is clear evidence the Appellant will speak openly about his faith to others when not being assessed.

53.    Mr Vokes submitted that even if the Appellant was disingenuous about his conversion to Christianity, there are several factors that are likely to cause the Appellant to inadvertently draw attention to himself because of his mental health. The Appellant will be under surveillance. He has mental health issues, is not taking medication, and if he built a church in his back garden in Iran he is likely to act as set out in the medical evidence. In light of his lack of inhibition, the Appellant will come to the adverse attention of the authorities. Mr Vokes submitted the evidence shows there is clearly something clinically wrong with the Appellant who has in the past been sectioned pursuant to the Mental Health Act.

54.    In relation to Mr Lawson's reference to the Appellant's offending, Mr Vokes submitted that stating the fact he had committed offences supported the claim he is not a genuine Christian, as these are not Christian acts, does not establish the point being made. It was submitted there are a number of examples of those who were believed to be true Christians committing offences. Mr Vokes referred to Jimmy Savile, a person who attended church regularly but who was found to have sexually abused hundreds of people throughout his life, mostly children but also the elderly, mostly female. We also note the recent scandal involving Clergy in the Church of England and Catholic priests who have been convicted of child abuse offences at a time no one would have doubted they appeared to be genuine Christians.

55.    Mr Vokes' submissions about what will face the Appellant on return to Iran is a matter we discuss further below.

Our findings

56.    In relation to the Appellant's claim that he worships at home, worship is any act that shows devotion to or love for God and Christian teachings. There can be liturgical worship following set prayers and readings to be found in printed books often with Christians joining together in church as a congregation. There is nothing in the Bible, however, that indicates that unless a person attends a church they cannot be Christian i.e. no Bible verse that commands church membership even if church membership may be spiritually advantageous for some. Informal worship which focuses on the adoration of God can take place outside the church and this is the type of worship the Appellant states he is following for the reasons he claims. It is therefore possible to be a Christian without going to church.

57.    There are a number of aspects of this case that would warrant a finding the Appellant is not a traditional Christian in terms of his deeds and not attending church but as noted above, that is not a formal requirement.

58.    What we have is consistent evidence over a number of years of the Appellant claiming to be a Christian convert. Even if not something a person can objectively verify from the outside, as we cannot look into his heart or mind, there is evidence that we accept that the Appellant has developed a subjective belief that he is a Christian and that he acts on that belief.

59.    We have looked carefully at the evidence in relation to the Appellant's activities and it is clear that he has spoken to others about his faith in the past in the UK when he has not been under the spotlight, for example for a medical assessment or a court appearance. We have referred at paragraphs [54] above to the letter from Dr Jo-anne Russon dated 14 January 2021. We accept that is evidence of the Appellant having spoken to his neighbour and other about his beliefs, whether those beliefs are genuine or not. Taking that evidence together with the medical evidence before us concerning the Appellant's overall presentation because of his mental health, we are unable to make a finding that there is no risk that he will not speak about his belief in the Christian faith on return to Iran. Even if not strictly proselytising in terms of trying to convert another to the Christian faith, at the very least he will talk to others about his belief in Christianity and key Christian figures which gives rise to a real risk that he may come to the attention of the authorities as such will be contrary the teachings in the Koran, especially on the status of Jesus.

60.    This is not a case of a person who has no personal belief as his own evidence is that clearly, he has. As Mr Vokes put it, risk will arise when he engages with people as his view will come out as an expression of his consciousness. The risk here is particularly acute because of the Appellant's mental health and presentation.

61.    It is also important when assessing risk to remember a basic principle of asylum law that a person can face a real risk either as a result of a person actually having a profile that will create such a risk, i.e. for a Convention reason, or because in the eyes of a potential persecutor it is imputed to them. The focus upon whether the Appellant is a genuine Christian convert, implying that without the same he will face no credible real risk, is too simplistic a way to approach this particular Appellant.

62.    The Appellant clearly has mental health problems. Although he claims he does not, there is a wealth of medical evidence indicating that he does, including his having been sectioned under the Mental Health Act previously.

63.    The Appellant has been out of Iran for over 20 years and it was accepted by all parties that he will be questioned on return at the 'pinch point' in relation to what he has been doing abroad. He will be a failed asylum seeker who, if he behaves as there is credible evidence he will, he will come to the adverse attention of the authorities who may detain him for further questioning during the course of which ill-treatment is likely to arise.

64.    The Appellant's problems are compounded for, even though the opinion of the medical experts is that he should be taking medication, he does not take the medication because he does not believe there is anything wrong with him. We note the Appellant claims that he cannot take the medication as a result of an adverse reaction to it, which is also credible, but the bottom line is that for whatever reason he is not taking it. His lack of acknowledgement or insight into his mental health is a contributing factor.

65.    In relation to his mental health Dr Chisholm writes:

Mental Health

Mental Health History

106. He denied any serious head injuries as a child, probably.

107. I understand from previous reports that he has always been considered as unusual.

108. He told me that when people tried to Section him, he hid from the police. This accords with his medical records.

109. He told me he was detained under Section for 6 days, but should not have been, because he was not unwell.

110. He vehemently disagreed with the fitness to plead opinion, but he may have confused the term "psychotic" with "psychopath". I think he incorrectly believed the report incorrectly labelled him as a psychopath.

111. It is clear he is very distressed at not receiving asylum and being falsely accused of sexual assault.

112. He came with lots of pills taped to sheets of paper. These were mainly diazepam and zopiclone. It was very important to him to show them to me, but I did not understand what he was trying to communicate to me. | think it had to do with the crisis team visiting him. He was very clear that in his opinion he was not mentally unwell.

Previous diagnosis:

113. There is no agreement on his mental health diagnoses except that he is distressed, animated, labile with an unusual presentation. Dr Gregory suggested he had PTSD in response to torture. His GP thought he may have PTSD in response to being charged with a sexual offence.

114. He probably has a diagnosis of depression.

115. The forensic psychiatrist believed he has an affective disorder akin to mania, without psychotic symptoms.

116. I do not know the outcome of the opinion from when he was detained under the Mental Health Act.

Medication:

117. He has been prescribed many anxiolytics and antidepressants. Drug and Alcohol History

118. HS consistently denied taking drugs or alcohol.

119. He has also consistently refused a urine test. Current Psychological Difficulties

120. He is clearly dysregulated and has been for at least 14 years.

121. His mood is highly labile. 122. He is very difficult to understand.

123. He is not grandiose.

My opinion on HS's mental health

124. In my opinion it is highly likely that HS is neuroatypical.

125. He is almost certainly autistic.

126. He almost certainly meets criteria for Attention Deficit and Hyperactivity Disorder (ADHD).

127. He has a social communication disorder.

128. He is probably depressed, which manifests differently in people with autism. Perseveration is highly common with people on the autistic spectrum, which is highly consistent with him continually referring to the offences he was charged with in 2010.

129. It would fit with his presentation that HS is traumatised. I am unable to accurately assess whether or not he has or has previously met criteria for PTSD. In my opinion, his presentation as described by Dr Gregory, could be consistent with PTSD in response to torture, in the context of autism.

130. It is likely that difficulties associated with ASD are amplified by trauma such as the torture he reported. However, his life in the UK has been traumatic, which in itself would be sufficient to exacerbate his difficulties.

131. People on the autistic spectrum would find moving country and leaving their parents as far more traumatic than neuro-typical people.

132. It is possible that HS also has a co-occurring affective disorder, akin to a manic presentation, as Dr Hayes suggested.

133. It is possible that HS uses drugs such as cannabis, which would also amplify his difficulties. He denies this but he also refuses urine tests. Autism spectrum disorder

134. A formal assessment of high functioning autism is beyond the scope of this report. In my opinion he should be referred for an assessment for autism in an NHS service, with a copy of this report provided to the clinicians.

135. Being on the autistic spectrum provides the most coherent and consistent explanation for the many difficulties he has endured, but with the apparently unusual but consistent presentation of years.

136. I agree with his GP, Dr Hughes that HS has a mood disorder and has a low mood.

...

66.    Dr Chisholm considered possibility of malingering, feigning or exaggerating symptoms in his report and writes:

The Possibility of Malingering, Feigning or Exaggerating Symptoms

149. I am aware of the credibility issues which have been raised by the Home Office and of the guidance of the Upper Tribunal in JL (China) and note that it is not for me as a clinician to come to any conclusions regarding HS's credibility. I confirm that I have not done so. However, I note that it is expected that I perform 'a critical and objective analysis of the injuries and/or symptoms displayed.' (headnote 3, JL (medical reports-credibility) China [2013] UKUT 145 (IAC)). I confirm that I have done so.

150. I considered the possibility that HS was malingering, feigning or exaggerating. Given he has rejected any possibility that he is mentally unwell, I also considered the possibility of a "double bluff".

151. Given his consistent but unusual presentation seen in multiple domains, for at least 15 years, by a range of professionals and many times, I think it is highly unlikely he is faking, exaggerating or malingering.

67.    We do not find there is anything that allows us to go behind the assessment and recommendations of Dr Chisholm. This is particularly important for one of the questions Dr Chisholm was asked by the Appellant's solicitors is whether he felt the Appellant is vulnerable and, if so, the reasons for that to which Dr Chisholm wrote:

185. Yes. In my opinion, if HS was removed to Iran he would not be able to prevent himself from inappropriately and dangerously expressing Christian religious beliefs to authorities in Iran. My strong opinion is that he would be extremely vulnerable to arrest by Iranian authorities and of adverse treatment that could arise from arrest for heresy, which I understand may be life threatening.

186. With ADHD or ASD, brain development has been affected in some way. Most importantly, this includes the brain's executive functioning, which is responsible for decision making, impulse control, time management, focus, and organization skills. These difficulties, which would have been present from birth, leave HS extremely vulnerable in the UK and Iran.

187. The fact that he has been undiagnosed for so long has contributed to social difficulties which have worsened his mental health, making him much more vulnerable.

188. In my opinion, his mental health should be addressed within a specialist autism service, together with an enhanced social care package.

68.    We have set out the summary of Dr Chisholm's findings above and agree with Mr Vokes' submission that at [209] in particular Dr Chisholm, who has considerable experience in the field of psychological and psychiatric assessment, uses very strong language that he thinks the Appellant " is probably the most at risk of harm of anybody I have assessed because of an undiagnosed neurodevelopmental disorder combined with a traumatic and difficult adult life".

69.    We therefore find the Appellant has established that if returned to Iran he faces a real risk of harm sufficient to amount to persecution on the basis he is very likely to act as indicated in the evidence in relation to his perceived beliefs which will bring him to the adverse attention of the authorities in Iran on the basis of his actual or imputed religion. Country information including country guidance caselaw clearly shows that in such circumstances there is a real risk of persecution sufficient to entitle a person to a grant of international protection.

70.    We also shared with the parties prior to the hearing a further issue that "even if the claimed conversion is not credible that may miss a point which does not appear to have been considered so far. Dr Chrisholm refers to HS having a number of mental health issues which manifest themselves in a number of ways and will include him speaking, without any form of filter, to others about Christianity on return to Iran which will put him at risk. We cannot see the SSHD has an answer to this and, if so, it raises a point similar to that in DH (Particular Social Group: Mental Health) Afghanistan [2020] UKUT 223 (IAC) and the appeal being allowed on that basis, i.e. real risk of persecution as a member of a PSG". That view has been reinforced following the submissions we received.

71.    In relation to the schedule of issues we say as follows:

 

a.        Do Devaseelan principles apply? Yes, but matters in relation to the faith issue have moved on.

b.       Was the Appellant tortured in Iran for adultery? No. We are not going behind previous findings that this element of HS's claim lacks credibility.

c.        If so is the Appellant at risk of persecution? Not for this reason

d.       Is the Appellant a genuine convert to Christianity? That is not the key question which is whether such is actual or will be imputed to him.

e.        Is there a risk to the Appellant on return to Iran? At the pinch point on return and later in society in Iraq on the basis of an actual or imputed religious belief, yes.

f.         Are there insurmountable obstacles to integration back into life in Iran? As there is a real risk - yes.

Notice of Decision

72.    Appeal allowed.

 

C J Hanson

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

13 February 2025