YMKA & Ors (‘westernisation’) Iraq [2022] UKUT 16 (IAC)
The Upper Tribunal in the case of YMKA & Ors came to a significant decision in attempting to define ‘westernisation’ and how it can relate to protection under the refugee convention. While the Refugee Convention does not protect people from socially conservative societies, and therefore, there is no official protection for people who are ‘westernised’, Judge Bruce determined that a person’s ‘westernisation’ could afford them protection as the concept of ‘westernisation’ could be a general term hiding deeper characteristics that are covered by the Refugee Convention.
This case concerned an Iraqi family (5 members, all unnamed under an anonymity direction) who were applying to remain in the UK on Human Rights grounds. Their appeals had previously been dismissed before reaching the Upper Tribunal. The family’s immigration history involved them entering the UK with their daughter who was accepted into a boarding school here. The daughter (referred to as A4 in the judgment), a woman now in her twenties, had been in the UK since she was six years old. The family argued that they were all ‘westernised’ individuals who held views that were not and are not accepted in Iraqi society today. They contended that their views would place them at a real risk of harm were they to return to Iraq.
The family set out clearly that they did not believe in any god and that they were not Muslims. They do not celebrate religious holidays such as Eid or Ramadhan. The father (referred to as A1 in the judgment) said that he has never prayed. He stated that he would probably know the movements, but he certainly did not know the words. The mother (A2) stated that she feared the family would not be accepted as atheist in Iraq and that they were not willing to pretend to be religious in order to fit in.
Further to this, the women in the family do not wear the Hijab and expressed that they did not want to. A4 also explained that she was diagnosed with PTSD and that she was worried for her mental health if she was forced to return to Iraq and hide her views. A4 was also an active feminist who was vocal about women’s issues and the issues facing the LGBT+ community, both in person at events, and online. A4’s ‘westernisation’ continued into her private life as she was (at the time of the judgment) dating a British man with whom she said she wanted to live with. She said that she did not want to marry her boyfriend though, as she did not accept the concept of marriage.
Judge Bruce then considered a selection of background evidence and came to the conclusion that if this family were to be sent back to Iraq, they would indeed face a range of consequences. It was accepted that the family could be persecuted by anyone from individuals encountered on the street all the way up to the state itself, which still prosecutes people for blasphemy from time to time. Judge Bruce then considered whether the family could be expected to modify their behaviour so that they did not suffer this ill treatment. The first thing she considered was whether ‘westernisation’ could afford protection.
Is being ‘westernised’ a protected right?
Judge Bruce noted that many cases in the past have made reference to ‘westernisation’ but attempts to define the word had been vague. She suggested that ‘westernisation’ “like obscene material, … we know it when we see it”. She then attempted to nail down a more comprehensive idea of what the concept entailed. Her view of ‘westernisation’ was as a
“fairly loose bundle of characteristics; an adherence to a particular set of values, a rejection of religion, and prominently, the freedom to enjoy a socially liberal way of life.”
“They [the family] mix freely with members of the opposite sex; they… go out and socialise without fear of saying the wrong thing; they cherish friendships with individuals of diverse backgrounds; they enjoy an unfettered range of entertainment and culture; the children will grow up free of the expectations placed upon them by Iraqi society, particularly in terms of gender roles and personal choices; the girls make it clear that they do not want to wear conservative Islamic clothing.”
Judge Bruce then acknowledged that these things were not protected directly under the refugee convention. She pointed out that there was “no human right to listen to a particular kind of music, drink alcohol or to wear jeans”. However, she then challenged this view by illustrating that there was, in fact, more at stake than these surface level aspects. Judge Bruce found that beneath these desires lay deeply held ideological beliefs. Different ideological stances held by the family could be traced back to political opinions which they all held. Judge Bruce thus found that, as political opinions, these aspects could be protected by the Refugee Convention.
Judge Bruce then went on to point out that certain harms that women can be subjected to in societies like that of Iraq could mean that they should be afforded protection as members of a particular social group. She also mentioned that the International Covenant on Civil and Political Rights of 1966 protected the right not to believe in any god. Therefore, different things which can constitute aspects of ‘westernisation’ were found to be able to be protected by the Refugee Convention.
The ability for ‘westernisation’ to afford someone protection was also extended to those who may be required to “pretend” in order to fit into a given society. A1 expressed in the case that he has a decent grasp of the different movements that Muslims do when they pray and that he might be able to fake this. He did say though that he did not know what the words were. This raised an issue for Judge Bruce who said that it would therefore not be possible for A1 to safely pretend. She recognised that he could attempt this, but she also saw the risk that existed for A1 should he make a mistake in his pretence and be found out. She stated
“in a particularly hostile environment, such as those discussed in the country guidance cases I mention above, this could expose him to harm. It would then matter little what he himself believed: the necessary nexus is created by the perspective of the persecutor”.
This point may have far-reaching effects as Judge Bruce essentially says that what matters is the perception of those around an individual in these circumstances, and not the actual beliefs of the individual themselves.
Judge Bruce concluded her exploration by stating that ‘westernisation’, so defined, can lead to successful claims of protection. She found first that A4 should not be expected to supress her political beliefs in order to avoid suffering harm. She then found for the other family members that, though they were not as outspoken about their political beliefs as A4, they were genuinely not religious. Judge Bruce pointed out that, especially in modern Iraqi society, a person does not have to do much for his lack of faith to be apparent. The family would not be able to go about their daily life without suspicion falling on them that they are irreligious. In modern Iraq, it was accepted that this suspicion could quickly turn into persecution.
In light of this, Judge Bruce found for the family as a whole and each appeal was allowed on protection and human rights grounds. Significantly, it is worth noting that Judge Bruce did not limit her findings in this case to just Iraq. This allows room for her findings to be applied more generally.