Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00259/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 October 2016
On 20 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

A B M H
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Sellwood, Counsel, instructed by Wimbledon Solicitors (Merton Rd)
For the Respondent: Mr L Tarlow, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a national of India born on 11 June 1985. He arrived in the United Kingdom on a valid student visa on 17 February 2009. He extended his leave but on 14 August 2014 he was served with a notice of person liable to removal. The Appellant then made an asylum claim. He had a screening interview on 11 November 2015 but his application was refused on 10 February 2016. The basis of his claim is that he would be at risk on return to India because of his sexual orientation and membership of a social group, i.e. gay men in India. This Appellant also stated that he was in a same sex relationship with MMN, to whom his case has been linked.
2. His appeal came before First-tier Tribunal Judge Pears on 21 July 2016. In a Decision and Reasons promulgated on 8 August 2016 the judge dismissed his appeal.
3. Permission to appeal was sought in time on 21 August 2016, essentially for the same reasons as in the linked case of his partner, i.e.
(1) a failure to take account of material evidence or make findings on matters in dispute,
(2) a failure to give adequate reasons for findings of fact and
(3) the judge had materially misdirected himself in law.
4. Permission to appeal was granted by First-tier Tribunal Judge Baker on 5 September 2016 on the following basis:
"2. The grounds have merit. It is apparent the FtTJ may have overlooked the evidence of witnesses, in not giving reasons for concluding three witnesses' evidence was generalised and vague, paragraph 61.
3. All other grounds asserted in 4 - 6, 10, 12 are arguable."
Hearing
5. At the hearing before me this Appellant was also represented by Mr Sellwood, who adopted the submissions that he had made in respect of the linked case of MMH. In addition he relied upon paragraphs 11 to 12 of the grounds of appeal in relation to the treatment by the judge of the supporting evidence including the witness evidence of Mr Butt and Mr Waheed at [44] to [48].
6. The effect of that evidence was that in MMH statement he says that he met his partner at a party given by Mr Waheed in December 2011. He then married under pressure from his family and later resumed his friendship with the Appellant, the relationship became sexual at either the end of 2014 or early in 2015.
7. In relation to Mr Butt, his evidence was that he allowed the Appellant to live with him rent-free and he supports him financially. He confirmed that the Appellant is a gay man and that he had met MMH and was aware that he was in a relationship with the Appellant.
8. It is the case that there are no clear findings apart from that brief record of the witnesses' evidence at [44] to [45] through to [48]. All the judge says at [58] is:
"There are a number of coincidences and implausibilities I simply do not accept
i. A meeting at a cricket match which led to extensive free accommodation
ii. A meeting on a train that led to a party invitation
iii. A telephone call in 2015 which prompted his claim for asylum
iv. A visit from the RSS in 2015 when he has not been in India since 2010."
9. There are no reasons provided or analysis given as to why the judge does not accept the four points that he makes, the first two of which form part of the content of the witnesses' evidence. The only comment the judge makes about the witnesses is at [61]: "The witnesses in my view do not assist the Appellant about the existence or persistence of the relationship as they are generalised and vague." This finding is not particularised, however and I find this to amount to a material error when statements were produced by both Mr Waheed and Mr Butt, who were available to give evidence and to be cross-examined by the Respondent. It was also open to the judge to ask the witnesses any questions that she wished to.
10. Mr Sellwood additionally drew attention to a procedural fairness issue in relation to this Appellant and that was the judge's finding at [59]: "As to his relationship with Mr MMN, they do not live together and there has been no real explanation that I accept of why they do not." Mr Sellwood's submitted that this point was not put to the Appellant to give him the opportunity to provide the reason why they do not live together, which was essentially because of financial hardship.
Decision
11. Following my decision in respect of the linked appeal of MMN I find that the judge erred materially in law for the reasons set out in the grounds of appeal. The findings are contained at [52] to [63] of the judge's decision. The findings are brief and in my view do not provide proper or adequately clear reasons so that the Appellant is properly able to comprehend why his appeal has been dismissed and why his claim to be gay and in a relationship with MMN has been rejected by the judge.
12. There are of issues of credibility that remain unresolved, but the judge's central findings in relation to sexual orientation and the Appellant's same sex relationship with MMN I find are not sustainable and cannot be upheld. Therefore, I remit the appeal to be heard with that of MMN
Notice of Decision
13. The appeal is allowed to the extent that it is remitted back to the First Tier Tribunal for a hearing de novo.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Deputy Upper Tribunal Judge Chapman 20 October 2016

_______________________

DIRECTIONS
_______________________
1. The appeal is remitted back for a hearing de novo at York House Hearing Centre.
2. An Urdu interpreter is required.
3. The appeal is to be listed for 2 hours and linked to the case of MMN PA/01484/2016 and should be heard by the same First tier Tribunal Judge.

Signed Date

Deputy Upper Tribunal Judge Chapman 20 October 2016