Iranian asylum seekers win appeal for rehearing of religious persecution claims after tribunals ‘disregarded’ churchgoers’ evidence



Lord Glennie
Lord Glennie
Two Iranian nationals whose claims for asylum based on their fear of persecution arising out of their conversion from Islam to Christianity following their arrival in the UK were rejected by the Home Secretary have successfully appealed against the decisions.
 
The Inner House of the Court of Session allowed the appeals after ruling that the First-tier and Upper Tribunals, which did not believe that the “sur place” conversion was genuine and refused the refused both appeals on that basis, “erred in law” in both cases.
 
The cases of “TF” and “MA” against the Secretary of State for the Home Department were remitted for a rehearing before differently constituted tribunals after the judges held that the FTT and UT effectively disregarded “independent evidence” from church witnesses relating to the genuineness of the appellants’ conversions.
 
Sur place conversion
 
Lady Paton, Lord Drummond Young and Lord Glennie heard that TF had arrived legally on a student visa in October 2013 and in July 2015 claimed asylum on two grounds, namely his alleged conversion to Christianity and his involvement in political activities against the Iranian regime.
 
TF claimed that his involvement with an anti-regime organisation led to his arrest and tortured there, but his story was rejected by the FTT on the grounds that it was not credible, and the judge found that his failure to provide full and accurate information in this regard “further damages his credibility and the credibility of his claim for asylum”.
 
The court was told that MA entered the UK illegally in about October 2015 and claimed asylum based on risk of persecution as he was perceived to be a homosexual, as well as his alleged conversion to Christianity, but a separate FTT rejected both grounds after describing his account as a “multi-layered contrivance”. 
 
Both TF and MA had founded on their conversion through attending the Tron Church in Glasgow.
 
Supporting evidence was led on their behalf from members of the church who knew them and spoke to their involvement. 
 
‘Incredible and unreliable’ 
 
But the FTT judge in TF’s case did not accept that his conversion was genuine, saying that there had been certain areas where the appellant had “failed to provide honest information” in his claim for asylum and that he considered it “reasonable to conclude that his failure to be truthful in these matters undermines his claimed conversion to Christianity”.
 
In MA’s case the FTT judge described an alleged homosexual encounter as a “fabrication” which “casts very serious doubt on the credibility of the appellant’s claims as a whole”. 
 
The UT dismissed TF’s appeal after ruling that there was “no error of law” in finding that the appellant’s failure to provide honest information on another aspect undermined his claimed conversion to Christianity, while in MA’s case the UT rejected a submission that the FTT judges had, in effect, decided the matter on credibility grounds and then simply applied those findings adverse to his claim to be a genuine convert to Christianity.
 
However, the Court of Session held that FTT and UT “erred in law” in both cases.
 
The judges observed that while an appellant’s failure to provide honest information on one aspect undermines his evidence on another aspect was “a rational approach to finding the facts”, there were “limits” to that approach which tribunal judges had to be “careful to observe”. 
 
‘Words of caution’
 
Delivering the opinion of the court, Lord Glennie said: “Juries in a criminal trial are commonly directed that the fact that an individual may have lied about one point does not necessarily mean that he is lying about other matters, and the same words of caution should be taken to heart by tribunal judges hearing evidence in immigration and asylum appeals.
 
“Even if an appellant is found to be generally incredible, it does not mean that his claim must necessarily fail. At worst, it is only his evidence and evidence derived from what he has said and done which is potentially undermined. Other evidence may put the appellant’s evidence in a better light and may enable his claim to succeed.
 
“[T]he appellant’s case has to be considered in the round, not only on the basis of the appellant’s own evidence, which may or may not be accepted as credible, but also on the basis of other evidence that may be available. It does not follow from the fact that the appellant himself is disbelieved, even on very large parts of his story, that other evidence in support of his case cannot be relied upon.”
 
He added: “The present cases each concern evidence from individuals in positions of responsibility within the Tron Church which is based in part upon what the appellant has said directly to those individuals, partly from his conduct as observed by them and partly from the knowledge and understanding which those individuals have about the traditions and processes of the church and the context in which the actions of the appellant can be understood. 
 
“The FTT judges approached the matter, as we read their decisions, on the basis that if the appellants were shown to be dishonest and capable of fabricating a web of deceit, then the tribunal could, in effect, discount the evidence from these church leaders – the church leaders could not give evidence about the sincerity of the appellants, and insofar as they gave evidence about what the appellants had said or done then that was of no independent value since it was subject to the same adverse assessment of the appellants’ credibility.”
 
‘Error of law’
 
The court observed that the question whether a religious conversion is or is not “genuine” involved an assessment of the state of mind of the person claiming to have undergone such a conversion, and in order to make findings of fact the FTT, as a “fact-finding tribunal”, it is likely to have to make findings on the credibility and/or reliability of all the witnesses, and particularly the appellant.
 
“But,” Lord Glennie continued, “before arriving at such findings on credibility and reliability the FTT should have regard to all the material before it which may be relevant to the point. It is far from clear that the FTT has done this in either case.
 
“Any court or tribunal must be very careful not to dismiss an appeal just because an appellant has told lies. For reasons we have already set out, the judge should not jump too readily to the conclusion that because the appellant has told lies about some matters then his credibility on all matters is fatally undermined.   
 
“The judge should not allow his adverse finding about the credibility of the appellant to sway his assessment of the credibility and relevance of other independent evidence bearing upon the issue before him. So here, where the FTT judges have disbelieved the appellants’ evidence that they are genuine converts to Christianity, their evidence to that effect will be put to one side, given no weight. 
 
“But the rejection of their evidence on this point does not become evidence that their conversion is not genuine, to be set against other, independent, evidence from which the genuineness of their conversion can be inferred. That other evidence requires to be assessed on its merits, without any a priori assumption derived from the complainer’s own false evidence that it is in some way suspect or of little value.
 
“It is wrong in principle to form a concluded view of the probable veracity of particular items of evidence and then, from that fixed point, to allow that view to govern the assessment of other evidence in the case. The proper approach is to adopt what is sometimes called an ‘holistic’ approach, considering all the evidence ‘in the round’ before arriving at any concluded view on the facts.”
 
The judges concluded: “For the reasons set out at some length in this Opinion, we have concluded that the FTT and the UT have erred in law in both cases. They have failed properly to take account of the independent evidence relating to the genuineness of the appellants’ conversions to Christianity. And they have failed to give adequate reasons for, in effect, disregarding such evidence. We shall therefore allow the appeal in each case, set aside the decisions of the FTT and the UT and remit the appeals against the decisions of the Secretary of State to the FTT for a rehearing in each case before a differently constituted tribunal, i.e. a tribunal whose member or members have not so far been involved in either appeal.”

© Scottish Legal News Ltd 2018



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