Shirazi v Secretary of State for the Home Department

A further appeal from the Immigration Appeal Tribunal to the Court of Appeal is not an appeal under Part IV of the Asylum and Immigration Act 1999. It is therefore not automatically abandoned under section 58(8) merely because the appellant leaves the United Kingdom.

A person may become a refugee sur place where a Convention reason arising abroad becomes at least one reason why that person remains outside the country of nationality.

Tribunals assessing recurrent asylum claims should seek consistency in their evaluation of substantially common country evidence. Any country guidance must remain responsive to changed conditions and individual circumstances, address every material issue, and explain the treatment of substantial evidence. A tribunal cannot adequately determine the risk to an apostate by focusing only on evangelism while leaving material evidence about discovery, punishment and cumulative risk unaddressed.

The appellant, an Iranian national with a history of adverse attention from the Iranian authorities, claimed asylum because of his actual or perceived political opinions. While awaiting the decision, he sincerely converted from Islam to Christianity. An adjudicator rejected his asylum claim but found a real risk of treatment contrary to article 3 of the European Convention on Human Rights.

The Immigration Appeal Tribunal allowed the Home Secretary's appeal. It found that a sincere convert who neither evangelised nor proselytised could practise Christianity in Iran without a real risk of persecution or ill-treatment. During the subsequent appeal, the Home Secretary also argued that the appellant's brief journey to the Netherlands had caused the appeal to be treated as abandoned under section 58(8) of the Asylum and Immigration Act 1999.

The Court of Appeal had to determine whether section 58(8) extended to a further appeal to that court and whether the Tribunal had adequately assessed the asylum consequences of the appellant's conversion.

1. Appeal allowed and case remitted. Sedley LJ, with whom Munby J and Mummery LJ agreed, held that the statutory abandonment argument failed. An appeal from a final determination of the Immigration Appeal Tribunal to the Court of Appeal is a “further appeal”, not an appeal under Part IV of the Asylum and Immigration Act 1999. Section 58(8), which deemed a pending appeal under that Part abandoned when the appellant left the United Kingdom, therefore did not apply.

2. The distinction followed from the language and appellate structure of section 58 and Part III of Schedule 4. The provisions expressly distinguished appeals under Part IV from further appeals. The Court of Appeal's own stay and case-management powers also answered the suggested difficulty that an asylum claimant might otherwise be removed while a further appeal was pending.

3. The court did not decide what “leaves the United Kingdom” meant in section 58(8). Sedley LJ proceeded on the appellant's assumption that voluntary physical departure was sufficient. Munby J and Mummery LJ doubted whether a person necessarily “leaves” within the provision by taking a short journey, being refused entry abroad and returning the following day. They expressly left the issue open.

4. A person who develops a Convention reason while abroad may qualify as a refugee sur place. The new Convention reason must become at least one reason why that person is outside and cannot return to the country of nationality. Neither the adjudicator nor the Tribunal had considered whether the appellant's conversion had acquired that causal significance.

5. The Tribunal had not adequately assessed the risk arising from apostasy. Material before the court indicated that Iranian law prescribed death for a male Muslim apostate, while the authorities disclosed materially different assessments of the practical risks of discovery, detention, assault, harassment and punishment. The assessment also had to consider whether the appellant's political and family history increased the chance that his conversion would attract official attention. The court did not itself determine whether he faced a real risk.

6. Although individual claims remain fact-sensitive, materially inconsistent evaluations of substantially common country evidence undermine legal certainty. Following S v Home Secretary [2002] INLR 416 and Gurung [2003] EWCA Civ 654, an authoritative country determination must address every issue capable of materially affecting the result and explain its treatment of substantial evidence. Caution about opportunistic conversions may inform genuineness and causation, but it cannot alter the objective reading of country conditions.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously and the case was remitted to the Immigration Appeal Tribunal for rehearing under directions from its President: [2003] EWCA Civ 1562.

2. Immigration Appeal Tribunal: The Tribunal allowed the Home Secretary's appeal, set aside the adjudicator's decision and found that the appellant's conversion created no entitlement to protection under the applicable Conventions.

3. Adjudicator: The adjudicator rejected the asylum claims based on political opinion and religion, but found on both grounds a real risk of torture or inhuman treatment contrary to article 3 of the European Convention on Human Rights.