Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03044/2018

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
on 7th December 2018
on 14th January 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE DEANS

Between

P M
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr K Forrest, Advocate, instructed by Latta & Co, Solicitors
For the Respondent: Mrs M O'Brien, Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against a decision by Judge of the First-tier Tribunal David Clapham dismissing an appeal on protection and human rights grounds.

2. The appellant is an Iranian national. He claims to fear persecution because he has converted to Christianity. He previously had an unsuccessful appeal in November 2016 on similar grounds. Since the earlier appeal he has been attending a different church and has been baptised. In the current appeal Judge Clapham did not accept the appellant's conversion as genuine and did not believe he would proselytise in Iran. The judge also found against the appellant on human rights grounds, having considered the appellant's relationship with his girlfriend, who is a British citizen.

3. Permission to appeal was granted principally on the ground that the Judge of the First-tier Tribunal arguably erred in carrying out a proportionality assessment under Article 8. The other ground of the application, which was also considered arguable, was that the judge applied too high a standard of proof, having regard to support for the appeal by the evidence of a clergyman with personal knowledge of the appellant.

Submissions

4. Mr Forrest addressed me on the grounds of the application. In relation to the question of the appellant's alleged conversion he relied on TF & MA [2018] CSIH 58, which set out, at paragraphs 41-52, the correct approach to assessing whether a conversion is genuine and considered, at paragraphs 52-59, the status of a minister of religion as a witness. Mr Forrest submitted that the assessment of the genuineness of the appellant's faith was not approached properly and adequate reasons were not given for the findings made.

5. Mr Forrest explained that since the earlier unsuccessful appeal a fresh claim for protection had been made. This was based on the evidence of the Pastor who appeared as a witness before Judge Clapham. Nevertheless, Judge Clapham had relied upon the Devaseelan principles in applying the findings made in the earlier appeal to the decision in the present appeal (Devaseelan [2003] Imm AR 1). This was contrary to TF & MA, where it was pointed out that even if an appellant was not believed on one issue, he could be believed on another. In addition, the judge erred in his approach to the evidence of the Pastor by not giving him the status of an expert witness.

6. Mr Forrest further contended that Judge Clapham erred when considering the appellant's Article 8 claim. The judge had asked whether the appellant 's girlfriend would face persecution as a Christian in Iran but this was irrelevant. The question was whether there would be a disproportionate interference with the relationship between the appellant and his girlfriend. The judge did not consider proportionality properly.

7. For the respondent Mrs O'Brien acknowledged the difficulty of making a finding of fact on a matter which no one could know but the individual themselves. There was a question of whether the decision in the current appeal had been unduly infected by the previous appeal. The current appeal did not arise from a second claim in the classic sense. In TF & MA the original claim had been on different grounds, not on alleged religious conversion. The appellant in the current appeal was someone who had previously made an unsuccessful claim to be a Christian attending an established Church. He then made his second claim with a different Church. The outcome of the previous claim could not be disregarded in the manner which was suggested in TF & MA. The appellant's claimed conversion had already been disbelieved.

8. Mrs O'Brien further submitted that the evidence of the Pastor in the present appeal was nowhere near the standard of the evidence of church involvement expected in TF & MA. The evidence had very little depth in relation to matters such as how a person goes through the church process and how the Pastor comes to know a convert is genuine, by reference for example to Bible classes and eagerness to participate in faith-related activities. In TF & MA the Church had clearly defined processes to attest and affirm faith. There were classes and interviews. In the present appeal there had been no cross-referencing to the Pastor's expertise, for example in relation to how many people he had spent time with discussing conversion. The Judge of the First-tier Tribunal found the Pastor did not explain why the appellant had converted. There was no "road to Damascus" interaction. Not every religious witness was to be regarded as an expert. The judge was entitled to look at the differentiation of the evidence and its quality, as the judge had done. The judge was concerned over the depth of the evidence. The judge would have acted incorrectly by ignoring the fact that the appellant had not proceeded to baptism in a structured and well-ordered organisation. The evidence in the present appeal was not infected by a previous claim on different grounds. The previous appeal was refused because the appellant was unable to secure baptism at his previous church. The judge also found relevant the timing of the appellant's move from one religious organisation to another. This was contemporaneous with the adverse decision in the previous appeal. The previous appeal was on the same basis for seeking protection as the present appeal. There was no error as described in TF & MA.

9. Mrs O'Brien then turned to the proportionality assessment. The Article 8 assessment was very brief but the question was whether it was sufficient. The judge found at paragraph 71 of the decision that the quality of the relationship was not such as to engage Article 8. It would have been best practice to have fleshed out the issues but the decision was sufficient.

10. In reply Mr Forrest referred to the question of whether the evidence showed a "road to Damascus" conversion. It was not necessary to show a Damascene conversion. In terms of paragraph 43 of TF & MA what was required was an assessment of the appellant's state of mind. The evidence recorded by the Judge of the First-tier Tribunal at paragraph 37 of his decision showed a genuine belief by the Pastor in the appellant's conversion.

11. I informed the parties that I would reserve my position on the issue of error of law. If I found in favour of the appellant the appeal would be remitted.

Discussion

12. Mrs O'Brien made the obvious point that no one but the appellant can really know what is in his mind. With respect, this is not the way in which a tribunal should approach its fact-finding role in an appeal of this nature. The tribunal has to assess what is in an appellant's mind by examining his or her statements and actions while taking account also the evidence of other witnesses, particularly evidence from any minister of religion or equivalent person with knowledge of the appellant. This point is made at paragraph 44 of TF & MA.

13. The issue for me to decide is whether the Judge of the First-tier Tribunal made an error of law. Mrs O'Brien made a number of potentially cogent criticisms of the evidence before the Judge of the First-tier Tribunal. Had the judge rejected the evidence for the appellant specifying all the matters raised by Mrs O'Brien, it might have been that the judge would have given adequate and valid reasons for his decision. A major difficulty I perceive with the decision is that the judge did not give sufficient reasoning for the findings which he made along the lines suggested by Mrs O'Brien.

14. At paragraph 37 of his decision the judge summarised the evidence if the Pastor of the appellant's church. The Pastor appeared to be entirely satisfied that the appellant is a practising Christian. The reasons why the judge did not accept the Pastor's evidence, however, were not wholly those to which Mrs O'Brien referred. The principal reason why the judge did not accept the pastor's evidence seemed to be that the appellant had been found in his previous appeal not to be a genuine convert. At paragraph 56 of his decision Judge Clapham states that he adopts the negative credibility findings made by the judge in the previous appeal. Subsequently, at paragraphs 65-67 he considers in some detail the Pastor's evidence but by the time he reaches this point he appears to have already found against the appellant.

15. It is not for me to decide at this juncture whether the appellant is a genuine convert. My concern is whether the Judge of the First-tier Tribunal gave adequate reasons for finding he was not. When addressing the evidence of the Pastor, however, the judge specified very few reasons along the lines of those inferred by Mrs O'Brien. The judge commented that anyone seeking to portray himself as a genuine convert would be a regular attender and active participant at the church. The judge referred to a lack of depth in a supporting letter from the Pastor, notwithstanding that the Pastor appeared at the hearing to give evidence and offered himself for cross-examination. The judge stated nevertheless that he would have expected the Pastor to give detailed information in his letter about what had attracted the appellant to Christianity. By this point in the decision it appears that the judge had already made up his mind that the appellant was not a genuine convert before he turned his consideration to the Pastor's evidence. The reader is left with the impression that the Pastor's evidence was rejected because the appellant was found in his previous appeal not to be a genuine convert. This is not a proper application of the Devaseelan principle nor does it comply with the holistic approach endorsed at paragraph 50 of TF & MA. I do not consider that the judge gave adequate reasons for the findings he made and this amounts to an error of law in his decision.

16. I am not without sympathy for the position of the judge, who gave his decision without the benefit of having seen the decision of the Inner House in TF & MA. Nevertheless, by the standards of that decision it cannot be said that the judge dealt with the evidence of the Pastor in a proper manner.

17. The other issue before me was the sufficiency of the judge's consideration of the appellant's private and family life under Article 8. It was contended for the appellant that the question of the safety of the appellant's girlfriend as a Christian in Iran was irrelevant. I do not entirely agree. This was a matter potentially relevant to the reasonableness of the couple carrying on family life together in another country. However, as Mrs O'Brien pointed out, the judge did not find that there was a private or family life sufficient to engage Article 8. While the reasons for this finding were very brief, in the absence of any other factor I think it unlikely this would have amounted to an error of law requiring that the decision should be set aside. As it is, however, if the decision is to be set aside and re-made then the decision under Article 8 should also be re-made.

18. The position is that the Judge of the First-tier Tribunal erred in law in his assessment of the evidence relating to the appellant's alleged conversion. The decision is set aside. The findings of fact required are such that it is appropriate to remit the appeal to the First-tier Tribunal in terms of paragraph 7.2(b) of the Practice Statement. The appeal will be reheard before a differently constituted tribunal with no findings preserved from the decision of Judge Clapham.

Conclusions

19. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.

20. The decision is set aside.

21. The appeal is remitted to the First-tier Tribunal to be heard before differently constituted tribunal with no findings preserved.

Anonymity

The Judge of the First-tier Tribunal did not make an anonymity direction. I consider that such a direction should be made in the following terms in order to preserve the positions of the parties until the appeal is finally decided. No report of these proceedings shall directly or indirectly identify the appellant or any member of his family. This direction applies to the appellant and the respondent. Failure to comply with the direction may lead to contempt of court proceedings.

M E Deans 31st December 2018
Deputy Upper Tribunal Judge