TF and MA v Secretary of State for the Home Department [2018] CSIH 58 is a recent Court of Session (Inner House) decision which addresses two key themes within the immigration and asylum sphere. Firstly, the extent to which adverse credibility findings against an appellant on the basis of one ground of appeal can be used in the refusal of a separate unrelated ground. Secondly, in cases based on religious persecution, the nature of evidence given by church witnesses, its admissibility and the weight to be attributed to it.

In particular, the judgment considers the positions taken in the cases of Dorodian and SJ (Iran) on verifying that somebody has converted to Christianity – which had provided that church ministers should vouch for a conversion and that the court should be satisfied of the bona fide nature of the church in question respectively – and provides a long sought after update on the correct approach for these type of cases.

The Court of Session found against the Dorodian principle, preferring that tribunals take a “holistic” approach when assessing evidence. Crucially, it also confirmed that the evidence of church witnesses can be considered “expert evidence of fact”.

An all too familiar decision

Both appellants were Iranian nationals. Both converted to Christianity after arriving in the UK: so-called “sur place” conversions. Neither had mentioned their sur place conversion until their cases reached the First-tier Tribunal. TF’s original claim had been on the basis of his political activities, while MA’s had been on the basis of being perceived as homosexual.

In relation to the sur place conversion claims there was a wealth of supporting evidence provided by both appellants. This included letters of support from people involved in the Tron Church, a church attended by many asylum seekers in Glasgow. Mr John S Taylor, a respected member of the Tron Church, gave oral evidence at both appeals.

Despite this, the tribunal dismissed both appeals, primarily on the basis of adverse credibility findings against the appellants in respect of their original claims.

Tribunals must consider evidence “in the round”

The Court of Session reiterated a well-established principle of asylum law, which is unfortunately sometimes overlooked, that being that tribunals should adopt a “holistic approach”, assessing all the evidence in the round, before arriving at a conclusion on the facts. Each piece of independent evidence requires to be assessed on its own merits, without any prior assumption based on inconsistencies within the appellant’s own evidence. To put it another way – there can be no cart before the horse.

Practitioners will appreciate that credibility issues are often used by the tribunal, and Home Office presenting officers, in order to avoid assessment of complex claims.

Sur place religious conversion claims fall firmly within this bracket. The Court of Session identified the difficulties involved in such claims, noting that this “involves an assessment of the state of mind of the person claiming to have undergone such conversion”, one which only the asylum seeker can provide evidence on.

Adopting an approach from the criminal law sphere, the court emphasised that merely because an individual may have lied about one point, this does not mean they have lied about other matters:

the same words of caution should be taken to heart by tribunal judges hearing evidence in immigration and asylum appeals. People have different reasons for not telling the truth, or the whole truth, about particular matters. They may not wish to get someone else into trouble, or to reveal something about themselves. People may not think that it matters if they omit to give certain details about a particular event or series of events – but that does not mean that they are necessarily lying or have a propensity to lie about everything.

One would hope that the frequency of these types of determinations will be reduced as a result of the court’s remarks.

Church witnesses can provide expert evidence

Another crucial finding was that evidence explaining church practices, as well as opinion evidence by individuals in positions of responsibility within the church who have observed the appellants and expressed the belief that they are genuine converts, constitutes “expert evidence of fact”. The court further stressed that the evidence of church witnesses who have observed the appellant in the church setting are “likely to be a very powerful consideration”. This certainly takes the law further than the usual practice of alleging that everyone has been fooled/querying how a decision-maker can look into a person’s soul.

In addition, appellants no longer require vouching from a church minister, as had been suggested previously by the Upper Tribunal in Dorodian:

it is more important that the evidence be given by someone who has knowledge of the individual whose commitment is in question…

…it would be wrong for this court to insist that any relevant evidence be given from someone at a particular level within the hierarchy (if any) of any particular church. What matters is that they have sufficient knowledge of the practices of the church of which they are a member; sufficient experience of observing and interacting with those seeking to become members of the church; sufficient knowledge and experience of others who have gone through similar processes of engagement in church activities with a view to becoming members of the church; and, in cases such as these, sufficient knowledge of the individuals concerned and of the manner in which they have thrown themselves into church activities.

As a result, greater weight can now be attributed to the evidence of those involved in a church who are not in a ministerial position, and who are better placed to provide evidence as to whether the appellant’s conversion is genuine.

Decision and implications

Both appeals were allowed and remitted for rehearing. The court noted that both the First-tier and Upper 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”.

One potential consequence of the decision is a more thorough assessment of the evidence by tribunal judges in sur place conversion claims, whether that be the sole ground or one of multiple. Tribunals should not disregard an appellant’s religious conversion claim by reference to adverse credibility findings in respect of an unrelated claim.

Taken with the court’s disregarding the well-established and frequently used Dorodian principle, the decision represents a move in the right direction for asylum claims, and a useful attempt to clarify a very subjective and complex area of law.