Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03449/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decisions and Reason Promulgated
on 12 January 2017
On 17 January 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

S I
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Ms H Cosgrove, Latta & Co, Solicitors
For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant sought asylum as a Christian convert from Iran. The respondent found his claim incredible, and refused it for detailed reasons set out in a letter dated 1 December 2015.
2. FtT Judge Blair heard the appellant's appeal against that decision on 24 August 2016. In his decision, promulgated on 2 September 2016, the judge records at paragraph 4 the agreement of the parties that credibility was the issue; that if the appellant was a convert, and reasonably likely to evangelise, he would be at risk on return; and that illegal departure from Iran did not by itself qualify the appellant for protection. The judge held at paragraph 38 that the appellant's conversion "from a nominal Islamic faith to Christianity" was not genuine, and dismissed the appeal.
3. The appellant sought permission to appeal to the UT on grounds submitting that the credibility assessment was flawed in four respects:
1) The issue covered at paragraph 37 was not material to the claim, but mistakenly treated as such.
2) The concerns at paragraphs 32 to 35 were "of insufficient weight to displace the overwhelming body of evidence in favour of the appellant".
3) The lower standard of proof was "not properly applied given the evidence lodged in the appellant's favour."
4) The judge "potentially fell into the trap identified in SA (Iran) [2012] EWHC 2575 at paragraph 24"; the point was "not only whether the appellant is a genuine convert (to be considered primarily by reference to attendance at church) but that where a person has held themselves out to be Christian, that may also lead to risk on return, which the judge failed to consider.
4. On 28 September 2016 FtT Judge Pooler refused permission to appeal, on the view that there was nothing to indicate that the judge had not applied the appropriate standard of proof; the weight to be given to evidence was a matter for the judge, and the adverse credibility findings were open to him; that as explained in AH (Sudan) [2007] UKHL at paragraph 30, the specialist tribunal was the judge of the facts, and its decision was to be respected unless "it is quite clear that they have misdirected themselves in law"; and that the issue of risk to the appellant, even if not a genuine convert, had not been raised before the judge, and so there could be no arguable error of failing to deal with it.
5. The appellant renewed his application to the UT, relying upon the same grounds and advancing an additional ground:
5) The judge erred by failing to take [into account] a submission made on the appellant's behalf ? 2 witnesses from the appellant's local church attended and a further letter of support from a member of the church was lodged ? it was submitted that in total 3 individuals spoke to the genuineness of his faith and therefore due weight should be given to this. The judge failed to consider this.
6. On 7 November 2016 UT Judge Finch granted permission, on the view that the application disclosed arguable errors of law.
7. The submissions by Ms Cosgrove for the appellant were along the lines of the grounds, and as follows. The judge correctly stated the standard of proof, but failed to apply it. There were 2 main points to make. Firstly, the judge made too much of the fact that Arman had not disclosed to the appellant how he came to convert. Essentially, paragraphs 29-35 constituted not a number of reasons but variations on that one theme. The second point was that the appellant produced evidence from 3 witnesses who were persuaded of the genuineness of his conversion, two giving evidence in person and one in writing. Ms Cosgrove fairly conceded that ground 4 was not the strongest, because the case cited had not been referred to in the first-tier tribunal, nor had an argument been made of risk on return even to an ostensible but not genuine convert. The point had been introduced by her colleague who was not the representative at the first-tier tribunal hearing and who drafted the grounds in the absence of Ms Cosgrove.
8. Mr Matthews submitted thus. Ground 4 is even weaker than had been conceded, because although it states that it is based on an authority of the Court of Appeal it is in fact only the decision of a deputy judge of the High Court, and on reference to full report the passage quoted is obiter, not decisive. The case does not establish any legal principle of general application to Christian conversion cases. Ground 3 is of no substance, because the judge plainly stated the correct standard of proof and there is nothing in the decision which suggest that anything else was applied. The other complaints are no more than disagreement with the weight given by the judge to various aspects of the evidence, which short of perversity was a matter for him, and the grounds stopped short of that allegation. The criticism of paragraph 37 acknowledges that there was an inconsistency. The weight to be given to it was for the judge. Even if not at the heart of the claim, the fact that an appellant was an unreliable witness in one respect was relevant to the valuation of his overall evidence. The judge did not simply base himself on Arman's lack of disclosure about his conversion, but gave a number of other reasons. The judge had the benefit of hearing the evidence, including the testing of the appellant's evidence during cross-examination. As to the additional ground, ground 5, the judge at paragraphs 19 to 21 took full account of the evidence and accepted the witnesses as sincere, with no doubt in their own minds about the appellant's conversion. That gave the evidence all the weight it could possibly bear in favour of the appellant, but it was not bound to decide the case in his favour. The judge's assessment was rounded and far from one-sided, the evidence of the witnesses and other points being taken in his favour. The grounds disclosed no legal error, only disagreement.
9. Ms Cosgrove in response said that she had not submitted that the point about Arman's non-disclosure was irrelevant. Her argument had been that the appellant made it clear that his own conversion was a gradual not an instantaneous process, and that he had not at first accepted what Arman told him. It took some months before this developed into a full-blown interest in Christianity.
10. I reserved my decision.
11. The case on the facts for the appellant has been pressed as strongly as it properly could be, both in the first-tier tribunal and in the upper tribunal, but there is nothing in the grounds and submissions which discloses that the first-tier tribunal made any error on a point of law.
12. There is nothing in grounds 3 or 4.
13. It would be an extraordinary error for a judge highly experienced in this jurisdiction to go wrong on one of its most basic features, the lower standard of proof in protection claims. The decision correctly sets it out, and there is nothing to suggest that anything else was applied.
14. The authority relied upon at ground 4 is not upon examination an authority at all; it is a passing statement (although a very strong one) of the difficulty of examining the genuineness of a claimed religious conversion. Further, there was no argument and no evidence before the first-tier tribunal by which it might have found a risk to a "non-genuine" convert.
15. Grounds 1, 2 and 5 resolve into no more than disagreement on the facts.
16. The determination of the first-tier tribunal has not been shown to error on any point of law, and it shall stand.
17. No anonymity direction has been requested or made.

12 January 2017
Upper Tribunal Judge Macleman