MT (Afghanistan) v Secretary of State for the Home Department

In an asylum claim based on conversion from Islam to Christianity, the decision-maker must assess whether the evidence establishes a real risk of persecution or inhuman treatment on return. A single prosecution and death sentence for apostasy may be highly material evidence. Its subsequent termination does not affirmatively disprove risk where release depended on presidential intervention or international pressure. The genuineness of a late conversion must remain open to proper evidential examination and judicial evaluation. Where the first-instance assessment inadequately addresses the central risk question and two rational conclusions remain possible, the appropriate course is remission for redetermination on up-to-date evidence, rather than the appellate court predetermining the result.

The appellant, an Afghan national brought up as a Muslim, had previously failed in an asylum claim based broadly on political and ethnic grounds. After further unsuccessful representations, he made a fresh claim based on conversion to Mormonism, contending that his evangelising and apostasy would expose him to persecution and inhuman treatment in Afghanistan.

The Home Office accepted his membership and priesthood in the Church of Jesus Christ of the Latter Day Saints but did not accept the genuineness of his conversion. At the appeal hearing, however, the immigration judge treated the genuineness of the conversion as conceded and dismissed the appeal. On review, the Senior Immigration Judge held that no error of law had been shown, relying in part on the treatment of Abdur Rahman, an Afghan convert who had been prosecuted and sentenced to death but released.

The central issues were whether the Senior Immigration Judge’s assessment of that evidence was perverse, whether the first immigration judge had adequately assessed real risk, and what disposition was appropriate.

1. Appeal allowed. The Senior Immigration Judge’s finding that the Abdur Rahman case affirmatively demonstrated that Afghan authorities would not prosecute Christian converts for apostasy was wholly untenable. The evidence showed that a convert could be tried and sentenced to death by a Sharia court, while avoiding execution only through presidential intervention and possibly international pressure.
2. The evidence did not necessarily compel the conclusion that the appellant faced a real risk. But the first immigration judge’s analysis was too sketchy because it failed to address whether the treatment of Abdur Rahman demonstrated a real risk that other apostates, particularly evangelists, might face similar persecution and inhuman treatment.
3. The court distinguished the relevant caution in Shirazi v SSHD [2003] EWCA Civ 1562, paragraph 32, by holding that caution about late religious conversions must not prevent proper judicial examination of the country evidence. The Home Office should keep genuineness open so that, if appealed, the issue can be tested and judicially evaluated. The court also noted that the appellant’s conversion had been treated as genuine and that his imperative to proselytise had to remain assumed in his favour because there had been no cross-application.
4. Where the material admits only of a conclusion that a real risk is established, an appeal may be allowed outright. Where two rational views remain possible, the decision should be retaken. Here, the omission could be corrected without predetermining the outcome.
5. The appeal was remitted for redetermination by a different immigration judge or judges, under directions from the President of the AIT. The court left open whether the redetermination should have country-guidance status.

• Court of Appeal (Civil Division): appeal from the Asylum and Immigration Tribunal allowed; the initial appeal was remitted for redetermination by a different immigration judge or judges.
• Asylum and Immigration Tribunal: Immigration Judge Scobbie dismissed the appellant’s appeal. On review, Senior Immigration Judge Spencer held that no error of law had been shown and allowed the determination to stand.