MH (Review; Slip Rule; Church Witnesses) Iran
| Jurisdiction | UK Non-devolved |
| Judge | Lane J,Blundell UTJ |
| Judgment Date | 11 March 2020 |
| Neutral Citation | [2020] UKUT 125 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2020] UKUT 125 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Lane J (President) and Blundell UTJ
Ms B Jones instructed by Freedom Solicitors, for the Claimant;
Ms S Cunha, Senior Home Office Presenting Officer, for the Secretary of State.
A v Switzerland 2017 ECHR 60342/16
AAW (expert evidence – weight) Somalia [2015] UKUT 673 (IAC)
AB and Others (Internet activity — state of evidence) Iran [2015] UKUT 257 (IAC)
AS v Secretary of State for Work and Pensions [2011] UKUT 159 (AAC)
AS (Afghanistan) v Secretary of State for the Home Department [2019] EWCA Civ 208; [2019] 1 WLR 3065; [2019] 3 All ER 36; [2019] Imm AR 941; [2019] INLR 551
AS (Safety of Kabul) Afghanistan CG [2018] UKUT 118 (IAC)
Awala v Secretary of State for the Home Department [2005] CSOH 73
Bristol-Myers Squibb Co v Baker Norton Pharmaceuticals Inc (No 2) [2001] EWCA Civ 414; [2001] RPC 45
Devaseelan (Second Appeals – ECHR – Extra-Territorial Effect) Sri Lanka* [2002] UKIAT 702; [2003] Imm AR 1
Dickinson and Others v Tesco and Others [2013] EWCA Civ 226
FS and Others (Iran – Christian Converts) Iran CG [2004] UKIAT 303
Gilchrist v Commissioners for Her Majesty's Revenue and Customs [2014] UKUT 169 (TCC); [2015] 1 Ch 183; [2015] 2 WLR 1; [2014] 4 All ER 943
HJ (Iran) v Secretary of State for the Home Department; HT (Cameroon) v Secretary of State for the Home Department[2010] UKSC 31; [2010] 3 WLR 386; [2011] 2 All ER 591; [2010] Imm AR 729; [2010] INLR 425
HK v Secretary of State for the Home Department [2006] EWCA Civ 1037
KV (Sri Lanka) v Secretary of State for the Home Department [2019] UKSC 10; [2019] 1 WLR 1849; [2019] 3 All ER 727; [2019] Imm AR 836; [2019] INLR 424
Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449; [2000] Imm AR 271; [2000] INLR 122
Katsonga (“Slip Rule”: FtT's general powers) [2016] UKUT 228 (IAC)
Kennedy v Cordia (Services) LLP (Scotland) [2016] UKSC 6; [2016] 1 WLR 597
MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49; [2011] 2 All ER 65; [2011] Imm AR 292; [2011] INLR 188
Markos v Goodfellow [2002] EWCA Civ 1542
Mearns v Smedvig Ltd 1999 SC 243; 1999 SLT 585
OK (PTA; alternative findings) Ukraine [2020] UKUT 44 (IAC)
PS (Christianity — risk) Iran CG [2020] UKUT 46 (IAC)
R v Bonython (1984) 38 SASR 45
R+V Versicherung AG v Risk Insurance and Reinsurance Solutions SA [2007] EWHC 79 (Comm)
R (on the application of SA (Iran)) v Secretary of State for the Home Department [2012] EWHC 2575 (Admin)
R T (Zimbabwe) v Secretary of State for the Home Department; KM (Zimbabwe) v Secretary of State for the Home Department[2012] UKSC 38; [2013] 1 AC 152; [2012] 3 WLR 345; [2012] 4 All ER 843; [2012] Imm AR 1067; [2012] INLR 562
SJ (Christian apostates – evidence) Iran [2003] UKIAT 158
SR (Iran) v Secretary of State for the Home Department [2007] EWCA Civ 460
SS (Sri Lanka) v Secretary of State for the Home Department [2012] EWCA Civ 155
ST (Corroboration – Kasolo) Ethiopia [2004] UKIAT 119
SZ and JM (Christians – FS confirmed) Iran CG [2008] UKAIT 82 (IAC)
Santos-Albert v Ochi [2018] EWHC 1277 (Ch); [2018] 4 WLR 88; [2018] 4 All ER 265
Secretary of State for the Home Department v Maheshwaran [2002] EWCA Civ 173; [2004] Imm AR 176
Secretary of State for Trade and Industry v Rogers [1996] 1 WLR 1569; [1996] 4 All ER 854
TD and AD (Trafficked women) Albania CG [2016] UKUT 92 (IAC)
TF and MA v Secretary of State for the Home Department [2018] CSIH 58; 2019 SC 81
TK (Burundi) v Secretary of State for the Home Department [2009] EWCA Civ 40; [2009] Imm AR 488
Thapa & Ors (costs: general principles; s 9 review) [2018] UKUT 54 (IAC); [2018] Imm AR 724; [2019] INLR 145
Y v Secretary of State for the Home Department [2006] EWCA Civ 1223
Civil Procedure Rules, rule 40.12(1)
Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, rules 14(2)(a), 31, 35 & 36
Tribunals, Courts and Enforcement Act 2007, section 9; paragraph 15(1) of Schedule 5
Evidence — assessment of evidence — witnesses — Christian conversion — church witnesses not expert witnesses — procedure and process — review — obvious error of law rule 35 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 — ‘slip rule’ — rule 31 of the 2014 Procedure Rules — overriding objective Katsonga[2016] UKUT 228 (IAC) no longer followed
The Claimant, a citizen of Iran, entered the United Kingdom in 2017 and applied for asylum based on her imputed political opinion. The Secretary of State for the Home Department refused the application. On appeal the First-tier Tribunal (“FtT”) did not accept the Claimant's assertion that she was perceived as a spy by the Iranian regime and dismissed the appeal in March 2018. The FtT noted the Claimant's statement that she had become disillusioned with Islam and attracted to Christianity but concluded that this had merely been added to bolster what was otherwise a weak claim. In January 2019. the Claimant made further representations regarding her conversion to Christianity. The Secretary of State considered those representations as a fresh claim but did not accept that the Claimant had converted to Christianity and would be at risk on return to Iran. The Claimant appealed.
At the hearing in July 2019, the FtT Judge heard evidence from the Claimant and from Dr MN, a senior member of the church which the Claimant had been attending in Wigan. Dr MN confirmed that the Claimant attended church every week and opined that she was a “true believer” because she had been to the Claimant's house unannounced and had seen her through the window, reading a Farsi bible and making notes. Letters were also submitted from other members of the church, attesting to the Claimant's attendance and to her adherence to the faith. The Judge attached limited weight to Dr MN's evidence finding it unsatisfactory in one particular aspect: when asked about the case of another claimant for whom she had provided testimony in early 2019, Dr MN did not know the outcome of that appeal. Although the Judge was satisfied that the church witnesses genuinely believed that the Claimant was a Christian, he did not consider that her regular attendance at church was because of a genuine conversion to Christianity. Regarding the Claimant's submission that her internet activity would come to the attention of the authorities on return to Iran, the Judge found that the Claimant could delete her posts, since they were not reflective of her genuinely held beliefs. The Judge also did not accept that the Claimant would be at enhanced risk as a single woman. He found her claim to have become separated from her husband untrue, partly because he considered their actions as a couple to be implausible and partly because there was an absence of evidence of the husband's reaction to her conversion.
Based on the FtT Judge's extensive reasons for concluding that the Claimant's protection claim failed, it was accepted by both parties that the Judge intended to dismiss the appeal in his decision issued in August 2019. Unfortunately, in recording his decision on the appeal, the Judge stated: “Decision Asylum Appeal: allowed”. The Secretary of State appealed against that part of the decision, submitting that it was plainly in error when considered in the light of the Judge's reasons. The Claimant also appealed, contending that the reasons given by the Judge for disbelieving her account were legally unsustainable or insufficient.
Before the Upper Tribunal, the Claimant submitted, first, that the Judge had erred when he “expected some written communication” between the Claimant and her husband to demonstrate the difficulties in their relationship as a result of her conversion; secondly, the Judge had erred in imposing his own “subjective views” regarding the plausibility of the Claimant's account; thirdly, there was no rational reason given by the Judge for discounting the evidence given by the church witnesses, and in particular Dr MN; and, fourthly, the Judge had erred in his analysis of the risk to the Claimant, as the finding in relation to the risk from her internet activity was not genuinely in the alternative.
Held, setting aside the FtT decision and remitting the matter for a de novo hearing:
(1) The Judge did not require the Claimant to corroborate her account of the difficulties in her marriage but merely stated that he would have “expected some written communication” regarding her husband's reaction to her conversion. A judge was plainly entitled to take into account the absence of supporting evidence which was or should be readily available: TK (Burundi) v Secretary of State for the Home Department[2009] EWCA Civ 40 applied. Given that the Claimant had been in the United Kingdom for some time and had been in contact with her husband before and during her conversion to Christianity, it was open to the Judge to note that there was no documentary evidence of the husband's dissatisfaction with the Claimant. Finally, there was no evidence whatsoever to support the submission that the point was not squarely raised, whether by the Judge or the Presenting Officer (paras 21 – 25).
(2) The Claimant's second submission was rejected. The Judge took demonstrable care to inform himself about the conditions in Iran for Christian converts. He undertook an extensive review of the relevant reported decisions on the subject before he made his findings of fact. No more was required of him. To require him to set out tracts of the relevant authorities would be to substitute formulaic for substantive justice: SR (Iran) v Secretary of State for the Home Department[2007] EWCA Civ 460 applied. It was properly open to the Judge to note various respects in which he considered the Claimant's account to be implausible. He was entitled, for...
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