TF v Secretary of State for the Home Department
| Jurisdiction | Scotland |
| Judgment Date | 30 August 2018 |
| Neutral Citation | [2018] CSIH 58 |
| Docket Number | No 4 |
| Date | 30 August 2018 |
| Court | Court of Session (Inner House) |
[2018] CSIH 58
Extra Division
Upper Tribunal (Immigration and Asylum Chamber)
AR (Pakistan) v Secretary of State for the Home Department [2017] CSIH 52; 2017 GWD 25–419
Dorodian v Secretary of State for the Home Department 01/TH/01537, UT (IAC), 23 August 2001, unreported
HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31; [2011] 1 AC 596; [2010] 3 WLR 386; [2011] 2 All ER 591; 29 BHRC 90; [2010] Imm AR 729; [2010] INLR 425; The Times, 9 July 2010; (2010) 107 (29) LSG 18; 160 NLJ 1012; 154 (27) SJLB 29
Kaizer v Scottish Ministers [2018] CSIH 36; 2018 SC 491; 2018 GWD 17–224
Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449; [2000] Imm AR 271; [2000] INLR 122; The Times, 16 February 2000; The Independent, 4 February 2000; (2000) 97 (10) LSG 36; 144 SJLB 81
Kennedy v Cordia (Services) LLP [2016] UKSC 6; 2016 SC (UKSC) 59; 2016 SLT 209; 2016 SCLR 203; [2016] 1 WLR 597; [2016] ICR 325; [2016] PIQR P9; 149 BMLR 17; The Times, 29 February 2016
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; The Times, 1 December 2010; (2010) 107 (47) LSG 18
MMY (China) v Secretary of State for the Home Department [2018] CSIH 16; 2018 GWD 11–148
R v Bonython (1984) 38 SASR 45
R (on the application of SA (Iran)) v Secretary of State for the Home Department [2012] EWHC 2575
SJ (Christian Apostates – Evidence (Iran)) [2003] UKIAT 158
Immigration — Asylum — Credibility — Status and treatment of independent evidence relating to the genuineness of religious conversion — Whether such evidence undermined by findings that an asylum-seeker's evidence is untrue or unreliable in relation to other matters
TF appealed against a decision of the Secretary of State for the Home Department to refuse his asylum claim. On 20 October 2016, the First-tier Tribunal (Immigration and Asylum Chamber) dismissed his appeal. On 17 February 2017, the Upper Tribunal (Immigration and Asylum Chamber) dismissed an appeal against the decision of the FTT. The appellant appealed to the Inner House of the Court of Session.
MA appealed against a decision of the Secretary of State for the Home Department to refuse his asylum claim. On 20 December 2016, the First-tier Tribunal (Immigration and Asylum Chamber) dismissed his appeal. On 17 July 2017, the Upper Tribunal (Immigration and Asylum Chamber) dismissed an appeal against the decision of the FTT. The appellant appealed to the Inner House of the Court of Session.
The appellants were nationals of the Islamic Republic of Iran claiming to have a well-founded fear of persecution arising, inter alia, from their conversion to Christianity. Their claims were refused and their appeals against those refusals were unsuccessful. In each case, there was evidence before the First-tier Tribunal (‘FTT’) from persons with responsibilities in the church speaking as to the appellants' involvement there and their belief that the appellants were sincere converts. The FTT was not satisfied that the appellants' conversions were genuine, on the basis that their credibility had been undermined generally by reason of their fabrication of other aspects of their asylum claims. Their appeals to the Upper Tribunal (‘UT’) were refused. The Court of Session granted permission to appeal.
The appeals were heard together because they raised similar questions relating to the appropriate treatment of certain types of evidence in cases where the genuineness of religious conversion was challenged.
Held that: (1) a judge should not jump too readily to the conclusion that because an asylum-seeker had told lies about some matters then their credibility on all matters was fatally undermined (paras 38, 48); (2) where a judge concluded that the evidence of an asylum-seeker was generally incredible that had the limited effect that such evidence was disregarded, it did not become evidence to the opposite effect to be used in contradiction of independent evidence (paras 38, 39, 49); (3) it was wrong to form a concluded view of the probable veracity of particular items of evidence (such as the evidence of an asylum-seeker) and then allow that view to govern the assessment of other evidence in the case (para 50); (4) individuals in positions of responsibility within a church could give expert evidence which: (i) explained church practices to provide a context in order to understand what an asylum-seeker was reported to have done or said and (ii) expressed the opinion as to whether an asylum-seeker was a genuine convert having observed their activities in the church even though it might be difficult to explain the basis for such an opinion and all the expert could do was give their opinion based upon long and varied experience (para 52, 54, 55, 59); and appeal allowed.
Observed that it would be wrong to insist that a witness giving evidence as to an asylum-seeker's conversion had to hold a position at a particular level within the hierarchy (if any) of any particular church; what mattered was that they had sufficient knowledge of the practices of the church, sufficient experience of observing and interacting with those seeking to become members, and sufficient knowledge of the asylum-seeker and of the manner of their involvement in church activities (para 58).
Kennedy v Cordia (Services) LLP 2016 SC (UKSC) 59 applied.
The cause called before an Extra Division, comprising Lady Paton, Lord Drummond Young and Lord Glennie, for a hearing on the summar roll, on 10 and 11 May 2018.
At advising, on 30 August 2018, the opinion of the Court was delivered by Lord Glennie—
Opinion of the Court—
[1] The appellants are both nationals of the Islamic Republic of Iran. Their claims for asylum were rejected by the Secretary of State and their appeals to the First-tier Tribunal (‘FTT’) and the Upper Tribunal (‘UT’) were refused. Anonymity directions were made by the FTT in each case and confirmed by the UT. They remain in force.
[2] By the time the appeals came before the FTT and the UT, the claims for asylum advanced by each of the appellants included claims based on a well-founded fear of persecution arising out of their ‘sur place’ conversion to Christianity, ie conversion to Christianity after their arrival in the United Kingdom. The tribunals did not believe that the conversion was genuine in either case and refused both appeals on that basis. Permission to appeal to the Court of Session was granted by this court.
[3] The appeals were heard together because they appeared to raise similar questions relating to the appropriate treatment of certain types of evidence in cases where the genuineness of the sur place conversion is challenged. They do in fact raise a number of overlapping questions, namely; as to the status of evidence from church leaders (or others holding positions of responsibility within a church) about the conduct of a person who has begun the process of admission into the church and as to the sincerity of his conversion to Christianity; as to the weight to be given to such evidence; and whether the usefulness of such evidence as a guide to the genuineness of the sur place conversion is undermined by findings that, in relation to other matters, the appellant, the applicant for asylum, has given evidence which is untrue or unreliable and/or may be said to undermine his basic credibility.
[4] We should note that it was not disputed on behalf of the Secretary of State that individuals who had converted from Islam to Christianity did face a risk of persecution if compelled to return to Iran. They would be regarded as apostates. They could not be expected to conceal their religious beliefs so as to avoid persecution (cfHJ (Iran) v Secretary of State for the Home Department, per Lord Hope, para 35, Lord Rodger, para 82, considered in the context of religious practices in MMY (China) v Secretary of State for the Home Department, para 30). Hence the importance of the question whether their conversion to Christianity was genuine; if it was not genuine they would be unlikely in Iran to act in a way which attracted attention and invited persecution. There was no suggestion in these appeals that the claim for asylum could succeed on the basis that, even if the sur place conversions were not genuine, the appellants would nonetheless be perceived as Christians because of their attendance at church in the United Kingdom and would, if returned to Iran, be persecuted as if they were Christians.
[5] In order to focus the issues of principle, it is useful to set out the nature of the evidence adduced by the appellant in each case to support his claim that he has undergone a sur place conversion to Christianity; to identify certain other claims advanced by the appellant in each case on which his evidence was not accepted and by reference to which his basic credibility was called into question; and to highlight certain aspects of the decision and reasoning of the FTT and the UT in each case which bear upon the questions to be decided by this court.
[6] TF entered the United Kingdom legally in October 2013 on a student visa valid for five years. In July 2015 he claimed asylum on two grounds, namely his alleged sur place conversion to Christianity and his political activities, both in Iran and in the United Kingdom, with an anti-regime organisation known as ‘NAMIR’ (National Movement of the Iranian Resistance).
[7] The FTT judge rejected TF's account of his activities with NAMIR. He identified what he regarded as major inconsistencies in TF's account of distributing anti-regime leaflets in Iran in 2013 before he came to the United Kingdom; and he rejected TF's claim that he had been arrested and tortured in Iran in connection with his...
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