United Kingdom - YMKA and Ors v Secretary of State for the Home Department, Upper Tribunal, 1 November 2021

Facts:

The Appellants are a family of four, all nationals of Iraq. (A1) is the father, A2 is the mother, A3 is their daughter born in 2006, A4 is a daughter born in 1999, and A5 is a son born in 1997 [Para 1].  They lived in Jordan and the United Araba Emirates for a few years and they entered the UK by virtue of a visa enabling the daughter to attend boarding school in the country [Para 3]. Their leave to reamin was refused by the respondent and the Appelants argued that such a decision was disproportionate interference with their rights under Article 8 [Para 3].  In their case before the First-tier Tribunal they argued that [SP1] [Office2] they each have a well-founded fear of persecution in Iraq and stated that they are ‘westernised’ atheists who hold views antithetical to those prevailing in Iraqi society today, and that this fact would place them at a real risk of serious harm and/or present very significant obstacles to their integration in Iraq [Para 3].

The First-tier Tribunal dismissed all of the appeals on all grounds. Permission was granted to Upper Tribunal  and the Upper Tribunal set aside the decision of the First-tier Tribunal by concluding that the First-tier Tribunal erred in its approach to atheism and ‘westernisation’ [Para 2]. The Tribunal also found that protection risk assessment was flawed and should be re-evaluated considering all of the potential risk factors.

Following the Court decision of December 2020 the Respondent undertook a review of the case [Para 4]. In the hiatus between that hearing and the review A3 had reached the point where she had spent seven years of her childhood living continuously in the UK [Para 4]. Having had regard to the findings made by First-tier Tribunal, the Respondent accepted that as a ‘qualifying child’ she would be entitled to leave to remain under paragraph 276BE(2) with reference to 276ADE(1)(iv) [Para 4]. The Respondent further accepted that as a result, A1 and A2 would attract a grant of leave in line with their daughter, having regard to the provision relating to the public interest at s117B(6) Nationality, Immigration and Asylum Act 2002 [Para 4]. A1-A3 continued to pursue their appeals on protection grounds. A4 and A5 both relied on protection and private life grounds [Para 4].

 [SP1]It is unclear what happened between their arrival in the UK and their case before the First-Tier Tribunal. Could you add a sentence explaining what happened, whether a leave to remain was refused or not renewed?

 [Office2]

Decision & reasoning:

Examining the evidence, the Appellants’ refugee claims,  and their human rights claims, the Upper Tribunal decided that each appeal is allowed on protection and human rights grounds.

1.       Examining the Evidence

First, the Tribunal relied on the statements made by family members and their friends and found that Appellants are atheists [Para 6-12]. The Tribunal stated that although Appellants were all nominally Muslim at birth, none of them have ever been practising and that they are not even culturally Muslim – they do not  for instance fast during Ramadhan or celebrate Eid [Para 8]. Second, the Upper Tribunal assessed ‘Country Background Material’  [Paras 13-18] and noted that there have been reports of government-affiliated militias and non-state actors committing human rights abuses against minorities with impunity [Para 13].

2.       The Refugee Claims

The Tribunal referred to Article 1A(2) of the Refugee Convention and country information asserting that if the family were to be transplanted from Liverpool to Baghdad, they would face social disapprobation and mistrust [Paras 19-21]. Also, the unveiled women would face continual pressure to cover their heads and that would become particularly intense during holy months such as Ramadhan and Muharam [Para 22]. Therefore, there is a real risk that this kind of harassment could escalate to harms serious enough to unarguably engage the Refugee Convention [Para 22]. Although the chances of persecution by the state for an offence such as ‘blasphemy’ appears statistically small, it does remain a risk [Para 22].

In relation to the second question, the Tribunal first assessed the meaning of being ‘westernised’ [Paras 24-26] and provided that based on the evidence, ‘westernisation’ appear to amount to a fairly loose bundle of characteristics: an adherence to a particular set of values, a rejection of religion, and prominently, the freedom to enjoy socially liberal way of life [Para 27].

The Tribunal further moved to assess whether the Appellants can be reasonably be expected to relinquish these freedoms to live safely in Iraq. Relying on (Iran) (FC) v SSHD [2010], the Tribunal stated that the function of the Refugee Convention is not to protect people from social conservatism [Para 29]. However, integral to the Appellants’ claim to be ‘westernised’ are their values such as abhorrence of extremism, support for a secular and democratic society, and a strong belief in gender equality [Para 31]. Such political opinion is capable of attracting protection under the international framework.  The Tribunal asserted that  in a particularly hostile environment such as Iraq, the Appellants would not be able to effectively mask their ‘western’ identity and could thus expose themselves to harm. It would then matter little what they themeselves believed: the necessary nexus is created by the perspective of the persecutor [Para 32].

Also, in Iraq of 2021 religion permeates the public space and for the vast majority of Iraqis a lack of of faith is regarded as something “shocking and unacceptable” [Para 39]. In this context, an individual’s lack of faith is apparent in his/her everyday action and that leads to a suspicion if he is never seen at mosque or insist on remaining unveiled [Para 40]. In these circumstances this ‘westernised’ family do face a real risk of persecution because they are atheists [Para 40]. They should not be expected to do adhere to conservative Islamic norms in order to remain safe [Para 40].

3.       The Human Rights Claims

A4 and A5 have argued that it would be disproportionate to interfere with the ‘private lives’ that they would established in the UK [Para 43]. The Tribunal, asserted that the fundamental aspects of A4’s life could not be replicated in Iraq [Para 45]. She would face ostracization, ridicule and harassment for being herself [Para 45]. In relation to A5, the Tribunal asserted that although he never lived away from the family home, he is close with his parents and sisters [Para 46]. He is also emotionally, and to an extent financially, dependant upon his parents [Para 46]. The Respondent also accepted that A5’s relationship with his parents and sisters was protected by Article 8 as a significant aspect of his private life [Para 46]. Furthermore, A5 has lived in the UK for 9 years, has spent formative years in the UK, and is a very average ‘British’ twenty-four years old [Para 46]. Therefore, he would face very significant obstacles in integrating into contemporary Iraq and it would be disproportionate to refuse to grant him leave on human rights grounds [Para 46].

Outcome:

Application granted.

Each appeal is allowed on protectin and human rights grounds [Para 48]. There is an order for anonymity in respect of each Appellant [Para 49]. 

Observations/comments:

The Upper Tribunal examined varied sources of evidence. As such, the instances of killings and kidnappings of religious minorities for sectarian or criminal motives – on account of their perceived wealth – or combination of both have also been reported by the UNHCR. The CPIN reports indicated that atheists have been persecuted for “desecration of religions” and related charges and that societal tolerance is very limited towards atheists. The Tribunal also considered a report by Alison Pargeter of King’s College London where she provided her evidence on atheism by citing several examples of young Iraqis forced into exile or hiding for having expressed secular beliefs.  The Tribunal also considered that the Iraqi society is deeply patriarchal and women who challenge its norms are viewed as transgressing social codes. Ms Pargeter wrote that in 2018 there was a spate of killings of westernised women who tried to challenge the status quo.