TH (Eritrea) v Secretary of State for the Home Department

LORD JUSTICE DAVIS: The Applicant is a citizen of Eritrea who arrived in the United Kingdom on 2 September 2008. In the subsequent years, he has had great experience of the tribunal system. His claims for asylum and other relief have been rejected variously by Tribunal Judges Iqbal and Andrew, but armed with fresh evidence there has been a yet further appeal.

That appeal came before First-tier Tribunal Judge Snape and was dismissed by her by a lengthy determination dated 4 October 2013. Permission to appeal was granted from First-tier Tribunal Judge Snape's decision. That appeal was dismissed by Deputy Upper Tribunal Judge Parks. The Applicant then sought permission to appeal to the Court of Appeal. That was refused by Upper Tribunal Judge Warr. Undeterred by that, the Applicant then sought permission to appeal from this court. That application was refused by Richards LJ on the papers.

The matter now comes before me today at an oral hearing. I will thus be the fifth judge to have heard this particular matter on this evidence. This of course is a second appeals case and therefore the second appeals test falls to be applied.

Ms Rutherford has appeared on behalf of the Applicant before me and she has advanced the arguments both concisely and carefully.

It is said that First-tier Tribunal Judge Snape erred having regard to the evidence and in particular erred with regard to the treatment of the evidence relating to whether or not there had been evangelising activities on the part of the Applicant. What is said is that in effect the judge conflated the evidence about evangelising with the evidence about whether or not the Applicant was genuinely a Pentecostal Christian and thereby at risk if returned to Eritrea.

It seems to me that the comments of First-tier Tribunal Judge Snape have to be put in context. As she records in her determination, a part of the Applicant's case was that he had attended a Pentecostal church on a regular basis since arriving in the United Kingdom and, as a Pentecostal Christian, it was his duty to evangelise his faith. The judge then assessed the evidence and found that he had not shown that he had evangelised his faith. That was a conclusion open to her to reach.

Ms Rutherford complains that even if that was a finding open to the judge, it did not follow at all that the Applicant was not genuinely a Pentecostal Christian. It is of course quite right that a judge may reject evidence in part and accept it in other parts; but equally a judge may reject the entirety of evidence in the light of inconsistencies or unsatisfactory elements and fairly read, in my view, that is precisely what First-tier Tribunal Judge Snape did.

Ms Rutherford complains that the judge in that regard did not have sufficient regard to the entirety of the evidence about the Pentecostal Christian activities of the Applicant, including that of a Pastor Teckley and the written evidence of Pastor Fyeni. But as the judge said in paragraph 54, there were certain deficiencies in that evidence and at all events, she was not bound by it to conclude that this Applicant was indeed genuinely a Pentecostal Christian.

A further complaint is made that the judge had applied the wrong standard of proof. In particular, Ms Rutherford latches on to the paragraph in the First-tier Tribunal Judge Snape's determination, paragraph 57, which says:

In my view, with all respect, that too takes the remark out of context. It is the background fact that adverse credibility findings had previously been made on the evidence then available by Judge Iqbal and Judge Andrew. Ms Rutherford accepts that Devaseelan considerations come into play.

Of course, Judge Snape had to asses the position on the basis of the evidence before her, but it is noteworthy that at the very outset of her determination she had in terms directed herself that the standard of proof "is a very low one" and then goes on to give the conventional self directions in that regard. I cannot think that the judge had overlooked that self direction and her comments about compelling evidence are easily understandable set in context.

Overall, the judge was entitled to find, as she did, that she had not found the Applicant's evidence concerning his faith to be credible. It seems to me, looking at the matter overall, that Deputy Upper Tribunal Judge Parks was fully entitled to conclude that no error of law had been shown and he dismissed the appeal as he did.

In my view, there is no arguable basis for an appeal. I have to say, as it seems to me this application would not even satisfy the first appeals test. It most certainly does not satisfy the second appeals test and accordingly, I refuse it.