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

On a second appeal, the Court of Appeal will intervene only where an arguable error of law is shown. A tribunal judge may reject evidence in part or in its entirety where inconsistencies or other unsatisfactory features justify that assessment. A reference to compelling evidence does not necessarily demonstrate that the wrong asylum standard of proof was applied, particularly where the judge expressly directed herself that the standard was very low. Earlier adverse credibility findings may form part of the context, but the later tribunal must assess the evidence before it.

An Eritrean national challenged the dismissal of a further asylum claim. First-tier Tribunal Judge Snape rejected his evidence that he was a genuine Pentecostal Christian who had evangelised in the United Kingdom and would be at risk on return. The Upper Tribunal dismissed his appeal, finding no error of law. Permission to appeal was refused by the Upper Tribunal and by Richards LJ on paper. The applicant renewed his application orally before the Court of Appeal. The central issues were whether Judge Snape had conflated evangelising activity with genuine religious belief and whether she had applied the wrong standard of proof.

1. Application refused. The matter was a second appeal, and the applicant had to satisfy the second appeals test. No arguable basis for an appeal had been shown. The application would not have satisfied even the first appeals test.
2. The First-tier Tribunal judge was entitled to assess the evidence that the applicant attended a Pentecostal church and regarded evangelising as a religious duty. Her conclusion that he had not shown that he had evangelised was open to her.
3. A judge may reject evidence in part and accept other parts. Equally, the judge may reject the entirety of a body of evidence where inconsistencies or other unsatisfactory features justify that conclusion. Read fairly and in context, Judge Snape had rejected the applicant’s evidence about his faith as a whole, rather than treating the absence of evangelising as conclusive of the absence of genuine Pentecostal belief.
4. The judge had considered the evidence from Pastor Teckley and Pastor Fyeni, but identified deficiencies in it and was not bound to accept it. Her express self-direction that the asylum standard of proof was very low was significant. The reference to compelling evidence, read against the background of earlier adverse credibility findings and Devaseelan considerations, did not establish a misdirection on the standard of proof.
5. Deputy Upper Tribunal Judge Parks was entitled to conclude that no error of law had been shown. The renewed application for permission to appeal was refused.

• Court of Appeal (Civil Division) — The oral renewal of the application for permission to appeal was refused under the second appeals test: [2015] EWCA Civ 723.
• Upper Tribunal (Immigration and Asylum Chamber) — Deputy Upper Tribunal Judge Parks dismissed the appeal from the First-tier Tribunal decision, finding no error of law. No citation is stated.
• First-tier Tribunal — Judge Snape dismissed the applicant’s further asylum claim by a determination dated 4 October 2013. No citation is stated.
• Permission to appeal was refused on paper by Upper Tribunal Judge Warr and subsequently by Richards LJ.