In a guest post, Elijah Z Granet looks at a very unusual immigration appeal.
The Hadith (Bukhari) relates that, as far as Islamic law is concerned, attesting sincerely that there is no God other than Allah and that Muhammad is his Messenger is sufficient for salvation. How, then, to tell, as a matter of secular law, if someone who made that statement (the shahada) sincerely intended it (and thus converted to Islam) or did not really mean it (voiding any acts that person subsequently purported to take qua being a Muslim)? This question was considered last month by the Upper Tribunal in KS (Thailand) v SSHD  UKAITUR PA090582018 (unreported).
KS is a Thai national, who was raised Buddhist and came to the UK as a teenager, where she met her partner, a Pakistani national and a Muslim. KS and her partner carried out an Islamic marriage ceremony (nikah) in the UK in 2015, but this was not a valid legal marriage for the purposes of UK law. At the ceremony, KS said the shahada before an imam but subsequently continued to practise Buddhism.
The couple subsequently had two children together. After some time in the UK without leave, KS claimed asylum on the basis that she and her partner would face violations of their human rights in either Thailand or Pakistan. In Thailand, in addition to societal disapproval of Buddhist/Muslim intermarriage, the fact that the marriage was not recognised in the UK meant that it would not in turn be recognised in Thailand for the purposes of a spousal visa. This meant that the case hinged on whether or not Pakistan was suitable for resettlement. As the Home Office conceded, a false conversion to Islam would make this impossible, because it would suggest that either the marriage was Islamically invalid (as a Muslim man can only validly marry a woman who is Muslim or one of the People of the Book) or that KS was an apostate, which could put her life in jeopardy.
UTJ Gleeson gave the point only the briefest consideration, finding that KS had continued to be a Buddhist and had not made any effort to live as a Muslim . This, in turn, meant there was no suitable country for resettlement, and thus that KS’s claim succeeded.
This case produced the unusual argument from the Home Office that a woman who publicly said that she was not a Muslim and for whom there was no evidence of engagement with Islam, was nonetheless still Muslim. It is difficult to see how, short of serious evidence of deception, someone publicly insisting that they falsely took the shahada can be safely removed to a country where blasphemy carries extreme penalties.
Even if the Home Office were to insist that the conversion at the wedding was binding, the fact that KS continued to practise Buddhism would at the least make her an apostate, again putting the Home Office in a bind. Had the Home Office succeeded, it would have had the bizarre effect of declaring a woman a Muslim against her will. This case suggests that matters of religious conversion need to be regarded as distinct from other binary yes/no facts in an immigration history (employment, language proficiency, criminal record, etc) because it is a subjective fact that cannot be reduced to the singular point that someone said out loud a converting formula (be it the shahada, the Nicene Creed, or anything else).
Elijah Z Granet