YMKA & Ors v Secretary of State for the Home Department

The Refugee Convention does not protect a person merely from having to live in a socially conservative society or from losing a socially liberal lifestyle. It may, however, protect conduct and lifestyle choices which express a protected religious belief, non-belief or political opinion.

A claim based on westernisation requires careful assessment of whether the claimant’s conduct expresses such a protected characteristic, or whether the claimant would be unable safely to conceal it and would therefore be perceived by persecutors to possess it. A person should not be required to suppress a protected belief in order to avoid persecution.

The appellants were an Iraqi family from Baghdad who had lived in the United Kingdom for a number of years. They appealed against First-tier Tribunal decisions dismissing their protection and human-rights appeals.

In an earlier error-of-law decision, the Upper Tribunal set aside the relevant parts of the First-tier Tribunal’s decisions. At the resumed hearing, the Secretary of State accepted that the youngest daughter was a qualifying child and that the appeals of her and her parents should be allowed on human-rights grounds.

The remaining issues included whether the family’s atheism, feminist and socially liberal beliefs, and claimed westernisation created a real risk of persecution in Iraq, and whether removal would be proportionate under Article 8.

1. All five appeals were allowed on protection and human-rights grounds. The evidence established a real risk of persecution in Iraq arising from the family’s atheism. The Tribunal also allowed the eldest daughter’s claim independently because her outspoken feminist and progressive political beliefs would expose her to serious harm.

2. The Tribunal held that the Refugee Convention does not guarantee a right to retain a socially liberal lifestyle in a country whose values are more conservative. Accordingly, ordinary preferences concerning clothing, music, alcohol or social life do not alone establish a Convention claim. The label westernised must not obscure protected religious, political or other Convention characteristics.

3. Where lifestyle choices express a protected belief, the claimant cannot be expected to suppress that belief to remain safe. A claim may also succeed where a claimant without a protected motivation would be unable effectively to mask westernisation and persecutors would impute a protected characteristic. The inquiry requires an assessment both of the meaning of the claimant’s conduct and of the practical ability to conceal it.

4. A4’s feminism, support for LGBTQI+ rights, rejection of prescribed gender roles and public advocacy were genuine political opinions. She would be perceived in Baghdad as openly challenging social norms and faced a real risk of serious harm. Her long residence and socialisation in the United Kingdom also made sustained conformity to the expected role of a modest and religiously compliant Iraqi woman unrealistic.

5. All appellants were genuine atheists. In contemporary Iraq, everyday non-observance and conduct inconsistent with conservative Islamic norms could reveal their lack of faith. The Tribunal found that they could not be expected to conceal their atheism or conform to those norms to avoid harm. No internal-relocation case was advanced.

6. The Article 8 appeals also succeeded. A4 would face very significant obstacles to integration under paragraph 276ADE(1)(vi) of the Immigration Rules. A5 would be separated from his close family and, as a westernised atheist who had spent formative years in the United Kingdom, would also face very significant obstacles. An anonymity order was made under Rule 14.

• Upper Tribunal (Immigration and Asylum Chamber): On an earlier error-of-law decision dated 30 December 2020, the Tribunal set aside the relevant protection and private-life findings of the First-tier Tribunal and directed remaking.
• First-tier Tribunal: The linked protection and human-rights appeals had been dismissed. The decision was set aside in part by the Upper Tribunal.