Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number PA/11163/2016

THE IMMIGRATION ACTS

Heard at Liverpool Decision and Reasons Promulgated
On 15th December 2017 On 11th January 2018

Before

DEPUTY UPPER TRIBUNAL JUDGE PARKES

Between

K Z
(ANONYMITY DIRECTION MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr S Shah (Legal Representative, 786 Law Associates)
For the Respondent: Mr C Bates (Home Office Presenting Officer)

DETERMINATION AND REASONS

1. The Appellant arrived in the UK on the 2nd of April 2016 and claimed asylum on arrival on the basis of her having converted from Islam to Christianity. The claim was rejected for the reasons given in the Refusal Letter of the 29th of September 2016. The Appellant's appeal against the decision of the Secretary of State was heard by First-tier Tribunal Judge Brookfield at Manchester on the 20th of February 2017 and dismissed in a decision promulgated on the 26th of February 2017.

2. The Appellant applied for permission to appeal to the UK but the application to the First-tier Tribunal was refused by First-tier Tribunal Judge Pedro on the 20th of June 2017. A renewed application to the Upper Tribunal was granted by Upper Tribunal Judge Finch on the 8th of August 2017 leading to the hearing in Liverpool, at the conclusion of the hearing I reserved the decision which now follows with reasons.

3. The Judge's findings are set out in paragraph 10 of the decision which itself runs to 38 sub-paragraphs. The grounds before the First-tier Tribunal Judge were under 4 points, the first is that the Judge failed to weigh all the evidence properly and in particular that of Reverend Hough and failed to weigh it in the round. Ground 2 was a variation on that theme in that it was argued that the Judge had failed to consider material parts of the evidence of the Reverend and in paragraph 10(xxx) observed that she did not have the supporting evidence that he had had. The third ground related to the Appellant's daughter's conversion which it was stated was not challenged by the Secretary of State. Fourthly the Judge was wrong to give weight to the fact that the Appellant gave a false name following advice from the agent. The renewed grounds added nothing to the original submissions.

4. In granting permission Upper Tribunal Judge Finch observed that at paragraph (xxxii) it appeared that the Judge had failed to apply the correct test in assessing the Appellant's claim. It appeared that the Tribunal had not taken into account letters at pages 27 to 29 and failed to note that the evidence supported that of the Reverend. The genuineness of the Appellant's daughter's conversion had not been considered.

5. At the hearing the representatives made submissions which are set out in the Record of Proceedings and referred to where relevant below. There have been a number of cases in the Court of Appeal where and the approach to expert evidence and the role of reviewing courts have been considered.

6. In the case of Re M-W (Care proceedings: Expert Evidence) [2010] EWCA Civ 12 in paragraph 39 Wall LJ stated "I regard the following as trite propositions of law: (1) Experts do not decide cases Judges do. The expert's function is to advise the Judge; (2) The Judge is fully entitled to accept or reject expert opinion; (3) If the Judge decides to reject an expert's advice, he or she: a. Must have a sound basis on which to do so; and b. Must explain why that advice is being rejected; (4) Similar considerations arise when a Judge prefers one expert's evidence to that of another. Judges must explain why they prefer the evidence of A to that of B."

7. In AM (Afghanistan) [2017] EWCA Civ 1123 at paragraph 37 Ryder LJ noted that in other jurisdictions the use of experts to provide veracity assessments is discouraged as that is a matter for the Judge. In cases where religious conversion is claimed the guidelines in Dorodian (01/TH/01537) apply but such evidence has to be assessed bearing in mind that the final assessment is for the Judge and not supporting witnesses and that the Judge will have regard to a wider range of evidence.

8. Burnett LJ in EA v SSHD [2017] EWCA Civ 10 at paragraph 27 gave made the following observations: "Decisions of tribunals should not become formulaic and rarely benefit from copious citation of authority. Arguments that reduce to the proposition that the First-tier Tribunal has failed to mention dicta from a series of cases in the Court of Appeal or elsewhere will rarely prosper. Similarly, as Lord Hoffmann said in Piglowska v Piglowski [1999] 1 WLR 1360, 1372, "reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account". He added that an "appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself". Moreover, some principles are so firmly embedded in judicial thinking that they do not need to be recited. For example, it would be surprising to see in every civil judgment a paragraph dealing with the burden and standard of proof; or in every running down action a treatise, however short, on the law of negligence. That said, the reader of any judicial decision must be reassured from its content that the court or tribunal has applied the correct legal test to any question it is deciding."

9. With regard to the application of the standard of proof the Judge set out directions at paragraphs 4 to 6 and there is no suggestion that these were inaccurate or unreliable. As indicated in the case of EA narrow textual analysis is to be avoided and the decision is to be read as a whole. In my view the criticism of the Judge's wording in paragraph (xxxii) being unable to discount the probability that the Appellant and her daughter attending church to enhance the asylum claim could only work by the sort of narrow textual analysis deprecated by the Court of Appeal. Given the preceding findings that the Judge had set out that paragraph, read in context, is not an error and does not undermine the decision.

10. Paragraph 10(xxxii) is also relevant to whether the Appellant's daughter's position was addressed, the implication from the criticised wording is that the Judge did not accept that the Appellant's daughter's conversion was any more genuine than that of the Appellant. The focus of the decision was clearly on the position of the Appellant and her daughter was a dependent on the claim and so in a sense subsidiary to the position of the Appellant. The decision, read as a whole, is that the conversion was not accepted and that applied to both of them.

11. The main criticisms are in relation to the approach taken to the evidence of the Reverend Hough and the other evidence relied on in relation to the Appellant's claimed conversion. With all its sub-paragraphs paragraph 10 of the decision runs to over 8 pages, it cannot be described as superficial or lacking in analysis. Obviously length alone is not a guard against error but it can indicate that matters have been considered.

12. The Judge was entitled to have regard to the Appellant's use of false identities and the destruction of the passports and her evidence on that point as discussed in paragraphs 10 (xxii) to (xxv). Once in the UK it is difficult to see why the Appellant would have provided a false identity which in any event would be contrary to her obligations under the Refugee Convention to provide full assistance to the authorities in the country where refuge is sought. If the use of the false names on arrival is put to one side there was still a significant delay in the Appellant correcting that which was a relevant consideration. In any event the discussion of what was only a part of the evidence did not show that the Judge attached undue weight to it.

13. The Judge had considered the Appellant's evidence in relation to events in Iran in the preceding paragraphs. No issue has been taken with the Judge's approach as set out in those paragraphs and the findings and observations are relevant to the evidence of the Appellant's later actions. As noted above the decision is to be read as a whole. The evidence of the Reverend Hough did not stand in isolation and the Judge had the advantage of conducting a wider review of the Appellant's case. Again it cannot be said that undue weight was given to this aspect of the evidence but it was placed in the wider context and was part of the overall information that the Judge had to consider.

14. With regard to the approach to the evidence relating to the Appellant's activities in the UK and her claimed conversion (and that of her daughter) the evidence of the Reverend Hough was, like that of an expert, not determinative of the decision and had to be assessed in the usual way. The observation in paragraph (xxx) that he had relied on the input of others was correct and evidence had not been put before the Judge to show what that input was. It could not be equated with the letters of support submitted in the Appellant's bundle which were a relatively small part of the overall evidence. The Judge did not question the honesty of the view of the Appellant's conversion but was obliged to form her own view as to its genuineness which she did. In paragraph (xxxi) the Judge had regard to other credibility factors including the Appellant's claimed escape and medical claims and found against her, these findings have not been challenged and form part of the overall circumstances to be considered.

15. In summary the Appellant's claimed conversion whilst in the UK had to be assessed in the light of her claims of events in Iran, both in relation to her medical condition and tests, her interest in Christianity and claimed ability to escape with her medication - all relevant matters that the Judge discussed and considered. To those were added her coming to the UK, the use false identities and the delay in correcting that and then her claimed conversion. The decision has to be read as a whole, in doing so I am satisfied that the Judge did not unduly concentrate on any one part of the evidence or ignore evidence that was pertinent. An analysis of the decision shows that the Judge properly considered the Appellant's case and gave sustainable reasons for the findings made. The decision does not contain any errors of law.

CONCLUSIONS

The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

I do not set aside the decision.

Anonymity

The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I continue that order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.)

Fee Award

In dismissing this appeal I make no fee award.

Signed:

Deputy Judge of the Upper Tribunal (IAC)

Dated: 10 January 2018