Upper Tribunal (Immigration and asylum chamber), 2020-03-11, [2020] UKUT 125 (IAC) (MH (review; slip rule; church witnesses))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge Blundell |
| Status | Reported |
| Date | 11 March 2020 |
| Published date | 17 April 2020 |
| Hearing Date | 28 January 2020 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | review; slip rule; church witnesses |
| Appeal Number | [2020] UKUT 125 (IAC) |
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Upper Tribunal (Immigration and Asylum Chamber) |
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MH (review; slip rule; church witnesses) Iran [2020] UKUT 00125 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 28 January 2020 |
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Before
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE BLUNDELL
Between
MH (iran)
(ANONYMITY DIRECTION made)
Appellant/Respondent
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent/Appellant
Representation:
For the Appellant: Ms Bronwen Jones, instructed by Freedom Solicitors
For the Respondent: Ms Susana Cunha, Senior Presenting Officer
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Part 4 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 contains a ‘toolkit’ of powers, the proper use of which saves time and expense and furthers the overriding objective.
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A judge of the FtT who is minded to grant permission to appeal on the basis of a seemingly obvious error of law should consider whether, instead, to review the decision under appeal pursuant to rule 35.
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A decision which contains a clerical mistake or other accidental slip or omission may be corrected by the FtT under rule 31 (the ‘slip rule’). Where a decision concludes by stating an outcome which is clearly at odds with the intention of the judge, the FtT may correct such an error under rule 31, if necessary by invoking rule 36 so as to treat an application for permission to appeal as an application under rule 31. Insofar as Katsonga [2016] UKUT 228 (IAC) held otherwise, it should no longer be followed.
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Written and oral evidence given by ‘church witnesses’ is potentially significant in cases of Christian conversion (see TF & MA v SSHD [2018] CSIH 58). Such evidence is not aptly characterised as expert evidence, nor is it necessarily deserving of particular weight, and the weight to be attached to such evidence is for the judicial fact-finder.
DECISION AND REASONS
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Both members of this Tribunal have contributed to this decision.
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On 15 August 2019, a judge of the First-tier Tribunal issued his decision and reasons in this appeal. It is clear – and it is accepted by both parties – that the judge intended to dismiss the appeal on all grounds. Extensive reasons were given for concluding that the appellant’s protection claim was a fabrication and that the appellant’s removal to Iran would not place the respondent in breach of her international obligations. Unfortunately, in recording his decision on the appeal, the judge stated
“Decision Asylum Appeal: allowed; Human Rights appeal: dismissed; Humanitarian Protection appeal: dismissed.” [emphasis added]
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The Secretary of State appealed against the underlined part of the decision, submitting that it was plainly in error when considered in light of the judge’s reasons. Permission to appeal was granted by a judge of the First-tier Tribunal on that basis.
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The appellant also sought permission to appeal, contending that the reasons given by the judge for disbelieving her account were legally unsustainable or insufficient. Permission to appeal was granted by Upper Tribunal Judge Blum, who considered each ground to be arguable.
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We will refer to the parties as they were before the FtT: MH as the appellant; the Secretary of State as the respondent.
Background
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The appellant is an Iranian national who was born on 1 November 1967. She entered the UK in 2017 and claimed asylum on the basis of her imputed political opinion. That claim was refused by the respondent and an appeal to the First-tier Tribunal was dismissed by Judge Siddiqi in March 2018. Judge Siddiqi did not accept the appellant’s claim that she was perceived as a spy by the Iranian regime. The judge also noted that the appellant had stated that she had become disillusioned with Islam and attracted to Christianity, although she did not seek to argue at that time that she would be at risk on that basis. The judge nevertheless expressed her view that this aspect had merely been added to bolster what was otherwise a weak claim.
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The appellant’s appeal against Judge Siddiqi’s decision was ultimately unsuccessful and, in January 2019, she made further representations to the respondent. She relied on her conversion to Christianity and submitted that the claim she was advancing in that respect had not been considered in any detail by Judge Siddiqi. The respondent interviewed the appellant in connection with these submissions, after which she accepted that the further representations amounted to a fresh claim under paragraph 353 of the Immigration Rules. The respondent did not accept, however, that the appellant would be at risk on return to Iran, since she rejected her claim that she had converted to Christianity. Whilst it was accepted that the appellant had been attending church in the UK, and that she had been baptised, the respondent did not accept that the appellant had any genuine commitment to the Christian faith.
The Appeal to the First-tier Tribunal
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The appellant exercised her right of appeal and the appeal came before a judge of the First-tier Tribunal, sitting in Manchester on 25 July 2019. The appellant was represented by counsel, the respondent by a Presenting Officer. The judge heard evidence from the appellant and from Dr MN, a senior member of the church which the appellant had been attending in Wigan. Letters were also submitted from other members of the church, attesting to the appellant’s attendance and to her adherence to the faith.
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At [20]-[30], the judge reviewed the extensive case law on Christian conversion in Iranian protection claims. At [31], he turned to consider the primary question in the appeal, of whether the appellant had genuinely converted to Christianity. He noted that the appellant had attended church; that she had been baptised; and that she had demonstrated knowledge of the “basic details” of Christianity in her second interview. Nevertheless, for reasons he gave at [32]-[33], the judge did not accept that the appellant had genuinely converted. He considered aspects of the appellant’s account to be implausible, with particular reference to the manner in which the appellant had behaved at around the time she had converted to Christianity: [32](i)-(iv). At [32](v), the judge attached limited weight to Dr MN’s opinion about the appellant’s claimed conversion for the following reasons:
“The appellant relied upon a witness from her church, [Dr MN], who spoke of the appellant’s attendance and participation at the church. [Dr MN] recalled an occasion when she attended the appellant’s home and saw her reading the bible and making notes. I found [Dr MN’s] evidence unsatisfactory in one important regard. When asked whether she had attended the Tribunal before to give evidence, [Dr MN] said that [sic] provided testimony for one such appellant earlier in 2019 in respect of their faith. When questioned further about the outcome of the appeal, the witness was hesitant and said that she did not know. She said that she has not asked the person of the outcome of their appeal and that she would not want to put them under pressure. I was left with the impression that [Dr MN] did not know the person very well and I do not consider this evidence credible. If [Dr MN] is to attend the Tribunal and give evidence about something as personal as a person’s faith then I would expect her to know that person sufficiently well and for their relationship to be such that they could discuss with one another their status in the UK. When weighing [Dr MN’s] evidence into the assembly of evidence in this appeal I conclude that this witness honestly does believe the appellant is a Christian convert but that her evidence is limited to that which the appellant displays externally whilst in the church environment.”
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The judge turned at [33] to consider the written evidence given by two other members of the church. He was satisfied that the appellant had spent time with them in a Christian setting and that they genuinely believed that she was a Christian but, having considered the evidence in the round and in light of the concerns he had expressed previously, he did not consider that her regular attendance at church was on account of a genuine conversion to Christianity.
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At [34], the judge reminded himself of FS & Ors (Iran – Christian Converts) Iran CG [2004] UKIAT 303. He had cited that decision and SZ & JM (Christians – FS confirmed) Iran CG [2008] 82 (IAC)1 in an earlier section of the decision. He did not accept that the appellant was an evangelist (as she had claimed) because the evidence of any such activity in the UK was limited and because her...
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