MH (Iran) v The Secretary of State for the Home Department

A tribunal may correct a clerical mistake or accidental slip in its notice of decision under the slip rule where the correction gives effect to the judge’s plain original intention. This remains so although the correction reverses the apparent outcome. The rule cannot be used where the judge’s intention is ambiguous or to permit second thoughts.

A First-tier Tribunal judge considering an application for permission to appeal should also consider review, which may avoid delay and expense. In conversion claims, church witnesses may give factual and lay opinion evidence. Their evidence can be significant, but it is not expert evidence and its weight is for the judicial fact-finder.

The appellant, an Iranian national, appealed against the refusal of her protection claim based on conversion to Christianity. The First-tier Tribunal gave reasons for rejecting her claim but mistakenly recorded that the asylum appeal was allowed.

Both parties appealed. The appellant challenged, in particular, the treatment of evidence from members of her church. The Secretary of State challenged the apparent allowance and raised the proper use of the First-tier Tribunal’s review and slip-rule powers.

The Upper Tribunal considered whether the error in the notice of decision could have been corrected without an appeal and whether the flawed treatment of church evidence required the protection appeal to be reheard.

1. The First-tier Tribunal’s decision was set aside and remitted for a de novo hearing. Although its notice purported to allow the asylum appeal, the judge’s reasons made it absolutely clear that he intended to dismiss it. That accidental error could have been corrected by the First-tier Tribunal.

2. Under Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, rule 31 permits correction of a clerical mistake or accidental slip or omission so that the formal decision reflects the judge’s original intention. The material question is not whether the correction substantially changes the apparent effect of the order, but whether it corrects an accidental error rather than introducing second thoughts. Where the intention is unclear, the slip rule should not be used.

3. A judge considering permission to appeal should consider review under rule 35. Rule 36 permits an application for permission to appeal to be treated as an application for correction or review. Those powers advance the overriding objective by avoiding unnecessary delay, cost and uncertainty. Katsonga [2016] UKUT 228 (IAC) should no longer be followed insofar as it precluded correction of such an obvious error under rule 31.

4. The First-tier Tribunal erred materially in discounting Dr MN’s evidence because she did not know the outcome of another person’s appeal. That concern did not logically undermine her factual evidence or her opinion, which included an observation made at the appellant’s home. The error also materially affected the treatment of other church evidence.

5. If the appellant were a genuine convert who had publicised genuinely held beliefs online, she could not properly be expected to delete the posts before return. The First-tier Tribunal’s purported alternative analysis did not cure the error because it depended on its finding that the conversion was not genuine.

6. As material guidance, evidence from church witnesses may assist in determining whether conversion is genuine. It is lay factual and opinion evidence, not expert evidence. There is no recognised methodology for measuring the genuineness of conversion, and the tribunal must decide the weight of the evidence in the round.

• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal decision was set aside for legal error and the appeal was remitted for a fresh hearing.
• First-tier Tribunal: The judge intended to dismiss the protection appeal but the notice of decision mistakenly stated that the asylum appeal was allowed.