Tribunals took wrong approach to asylum seekers' faith claims: Inner House
Two Iranian nationals whose claims for asylum, based in part on fear of persecution following their conversion from Islam to Christianity since their arrival in the UK, were rejected by the Home Secretary and on appeal by the First-tier and Upper Tribunals, have won appeals to the Court of Session on the basis that the tribunals took the wrong approach to assessing the genuineness of their professed conversion.
Three appeal judges remitted the cases of two men referred to as TF and MA to be heard by fresh tribunals, because the tribunal judges hearing the evidence had allowed themselves to be unduly influenced by the appellants having not been truthful regarding other information relative to their claims, to the extent that it led them not to accept the independent evidence from church witnesses.
TF had arrived legally oin a student visa in October 2013, and claimed asylum in July 2015. In addition to his conversion he claimed to have been involved in political activities agaiinst the Iranian regime and to have been arrested and tortured there, evidence which was held not to be credible. MA entered the UK illegally in about October 2015 and claimed asylum based on risk of persecution as he was perceived as homosexual, which evidence was rejected for inconsistencies. Both also founded on their conversion through attending the Tron Church in Glasgow.
Evidence was led on their behalf, before separate tribunals, from members of the church who had supported thema dn spoke to their involvement. The judge in TF's case considered it "reasonable to conclude that his failure to be truthful in [the other] matters undermines his claimed conversion to Christianity", and that he had not genuinely converted. In MA's case the judge described the supporting evidence as "generic" and insufficient to establish genuine change in his life and belief.
Giving the opinion of the court, Lord Glennie, who sat with Lady Paton and Lord Drummond Young, said 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 judges had to be careful to observe. "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."
He noted: "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."
Regarding the supporting evidence, Lord Glennie continued: "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."
He accepted that the question whether a religious conversion was or was not “genuine” involved an assessment of the state of mind of the person claiming to have undergone such a conversion, of which the only direct evidence was that of the person himself. But "But before arriving at [its] 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."
He stressed: "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... 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."
Evidence from church members on the church's practices, and on their observations of the appellants in their activities in the church and espressing the belief that their conversions were genuine, was to be regarded as expert evidence. "The ability of these witnesses to give expert evidence about the genuineness of the belief of TF and MA is therefore based not only on their personal knowledge of those two individuals but also upon their knowledge of what is involved and their experience of others in the same position setting off down the same path."
Regarding the weight to be attached to it, "In some cases it may be appropriate to question the objectivity of the assessment made by the witness, or to suggest that there may be an element of wishful thinking given the evangelical mission of the particular church. But, as we have already made clear, that exercise should not start with any predisposition to reject the evidence because it does not fit in with some a priori view formed as to the credibility of the appellant. The evidence should be considered on its merits and without any preconception, based upon an assessment of the individual appellants, that it is suspect or otherwise falls to be disregarded."
In assessing the evidence, "there ought at least to have been a question as to whether the appellant could have maintained his dishonest facade over such a period without being discovered or, at least, without some doubts being raised as to the genuineness of his interest in and conversion to Christianity. But again there is no hint in the decision of the FTT judge that he has given any thought to this. The decision gives the appearance of starting from a position where the FTT judge disbelieves the appellant’s account and proceeds from that point to dismiss without adequate consideration the independent evidence from church witnesses as to his conduct over a lengthy period and their belief in the sincerity of his conversion".
The Upper Tribunal had erred in concluding that there had been no errors of law in the FTT judges' reasoning and no lack of adequate reasoning. The appeals would be allowed because both tribunals "had "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".