Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04499/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 9th September 2016
On 14th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE LEVER

Between

Ayodeji [A]
(ANONYMITY not retained)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Khan
For the Respondent: Mr Harrison

DECISION AND REASONS
1. The Appellant born on 9th August 1989 is a citizen of Nigeria. The Appellant who was present was represented by Mr Khan of Counsel. The Respondent was represented by Mr Harrison, a Presenting Officer.
Substantive Issues under Appeal
2. The Appellant had made application for asylum and that was refused by the Respondent on 1st March 2015. The Appellant had appealed that decision and his appeal was heard by Immigration Judge Smith sitting in the First-tier Tribunal in May 2015. The judge had dismissed the Appellant's claim on all grounds. Application for permission to appeal was made and permission to appeal was refused in the first instance on 17th July 2015. Application was renewed and permission was granted by the Upper-tier Tribunal on 10th September 2015.
3. Upper Tribunal Judge Davey sat on this case on 21st March 2016 in order to decide whether or not the First-tier Tribunal had made an error of law. The judge concluded that an error had been made and the original Tribunal's decision could not stand and the matter would have to be remade in the Upper Tribunal and he reserved it to himself. A transfer order dated 7th July 2016 was made transferring the appeal to be heard by a differently constituted Tribunal and the matter comes before me as a result of such transfer order.
The Proceedings - Introduction
4. The Appellant was present and had no need for an interpreter.
5. The documents before me in this case consist of the Respondent's bundle which contains:
Immigration history.
Those documents listed at folios A to I on the index sheet.
6. The Appellant's documents consist of:
Original bundle containing those documents at pages 1 to 120 on the index sheet.
First supplementary bundle containing those documents listed at pages 1 to 21 on the index sheet.
Second supplementary bundle containing those documents listed at folios 1 to 66 on the index sheet to the bundle.
7. We briefly discussed the issues in this case. The first issue was whether or not the Appellant was gay as claimed. The second issue was whether there was a real risk of persecution on his return to Nigeria if he was found to be gay. Whilst Mr Harrison relied upon the refusal letter it was accepted having carefully considered the original determination and indeed the error of law decision by Upper Tribunal Judge Davey that the first issue was not necessarily a difficult one to make.
The Proceedings - Evidence
8. The Appellant was called to give evidence. He identified himself. He identified his latest witness statement dated 31st August 2016 within the second supplementary bundle. He confirmed that that witness statement was true and correct.
9. In cross-examination he said that he had first come to the UK in January 2008. When he was living in Nigeria he had not lived openly as a gay man. He said that he and his community had been taught not to like gay people and he was afraid if it was known that he was gay he would be beaten to death. He was a regular church goer and at the churches he attended it was said that gay people were different, were not part of God's plan for humanity and were treated as people with afflictions or infirmities. He was 18 in 2008 when he left Nigeria. He said that he had to come to terms with what he was first when he arrived in the UK and had not been openly gay on arrival. He had ventured into gay bars and restaurants in the Canal Street area of Manchester as time had gone on and had a number of friends that he had met in that community. He said he had an original group of friends who were all straight and when he had told them of his sexuality some had remained as friends but others had not. He said that he had not been back to Nigeria. He said he had not had any lasting gay relationships in the UK but had had sexual relationships with men. He said that he was naturally a hesitant person and had not originally mentioned about his sexuality but had in time done so and found now that it was easier as time went on to tell people about his sexuality. He said that he was by nature generally a private or discreet person.
10. He said that he had mentioned it to family in Nigeria in particular his elder brother and uncle. The elder brother he said was now head of the household following the death of his father. His brother and uncle had been angry with the disclosure. They looked to blame many people and circumstances for the Appellant's sexuality including themselves, the people that he met or society in the UK. They had not mentioned the matter to his younger sister. His elder brother was an environmental manager and toxicologist employed by a firm and the government in Nigeria. He accepted that he would be hiding his sexuality to keep away from persecution if he returned to Nigeria. He said he did not want to face the risk or the gamble of how society would treat him in that country.
11. At the conclusion of the hearing I indicated that I would allow the appeal but would provide my decision with reasons.
The Law
Asylum
12. Paragraph 334 of the Immigration Rules states that the applicant will be granted asylum if the provisions of that paragraph apply. The burden of proof rests on an Appellant to satisfy me that he falls within the definition of a refugee in Regulation 2 of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006. In essence an Appellant will have to show there are substantial grounds for believing the Appellant is outside his country of nationality or if applicable his country of former habitual residence by reason of a well-founded fear of persecution for a Refugee Convention reason, and is unable or unwilling owing to such fear to avail himself of the protection of that country.

Humanitarian Protection
13. Paragraph 339C of the Immigration Rules states that an applicant who does not qualify as a refugee will be granted humanitarian protection if the provisions of that paragraph apply. The burden of proof rests on an Appellant to satisfy me he is entitled to humanitarian protection under paragraph 339 of the Immigration Rules. In essence an Appellant will have to show there are substantial grounds for believing that if returned he would face a real risk of suffering serious harm and he is unable or owing to such risk unwilling to avail himself of the protection of the country of return.
The ECHR
14. The burden of proof rests on an Appellant to satisfy me there are substantial grounds for believing that as a result of the Respondent's decision he will be exposed to a real risk of torture or inhuman or degrading treatment or punishment contrary to Article 3.
Decision and Reasons
15. The Appellant's case was heard in the First-tier Tribunal by Immigration Judge Smith an experienced judge. He had considered the Appellant's evidence and for clear and well-considered reasons found the Appellant was gay and accepted the credibility of the Appellant's account. In like manner when the error of law decision was being considered by Judge Davey that aspect of Judge Smith's decision was not one that was considered either unsafe or erroneous. I have had the benefit of considering the documentary evidence as listed above and also the oral evidence presented by the Appellant who was cross-examined. I entirely agree with the decision of Judge Smith that the Appellant presented as a credible witness, not prone to exaggeration or stereotypical comments and I accept his account that he is gay.
16. The reason why Judge Smith dismissed his case was that he had taken the view that the Appellant would and could be discreet about his sexuality if returned to Nigeria as he had been discreet about it in the UK. I have carefully considered that matter. Firstly I accept that the Appellant as an individual is a person who is private and discreet and would neither be flamboyant or vociferous about any aspect of his life. To that extent he is no different to many individuals. I further accept that when he first arrived in the UK he was particularly discreet regarding his sexuality because he had many years of indoctrination from his home that it was wrong for him to be gay. It is clear that it took the Appellant some time to come to terms with his sexuality but as time has moved on in the UK he has firstly come to terms with that matter and has been able to be somewhat more open and expressive about his life. He has referred the matter to his family in Nigeria. I accept his evidence as to the manner in which they have taken that information namely that they are angry and seeking to find blame from a number of sources including themselves. They are unlikely to deliberately make reference to the matter outside of the family because they would feel that such knowledge would reflect badly on themselves. It does not however guarantee that such knowledge would not inadvertently be communicated to others or found out from those family members in Nigeria who know about the Appellant's sexuality. That is a particular risk to the Appellant. However I am also satisfied that the Appellant whilst exercising some level of privacy and discretion as he would naturally do in regard to other aspects of his life would nevertheless seek to be somewhat open and express his sexuality when appropriate and meet others openly as he has done in the UK. However the Appellant has made it clear that he would be prevented from living a normal life such as he currently leads in the UK because of his fear of retribution from Nigerian society.
17. I have carefully considered the country material regarding Nigeria in this respect and that provides an insight into the position in Nigeria. The Home Office's own country guidance notes that the existence of criminal laws such as those which specifically target homosexuals supports the finding that those persons must be regarded as forming a particular social group. It noted that same-sex sexual relations between men are criminalised in federal law in twelve northern states and that the Same-Sex Marriage Prohibition Act 2013 prohibits same-sex marriage, the public show of same-sex amorous relationships and the registration and operation of support groups. Further at paragraph 1.3.5 it is noted that when assessing an application for refugee status the Competent Authorities cannot reasonably expect in order to avoid the risk of persecution the applicant for asylum to conceal his sexual orientation in his country of origin or to exercise reserve in the expression of his sexual orientation. That is consistent with the ruling in HJ (Iran). The Same-Sex Marriage Prohibition Act 2013 was enacted as recently as January 2014. Further the report notices that Nigeria is a religious and culturally conservative country where homophobic attitudes are widely held and a survey conducted in 2013 noted that 98% of Nigerians stated they believed homosexuality should not be accepted by society. It further notes that such individuals have experienced loss of accommodation, jobs and denial of access to health services. It is said that because of societal attitudes and the threat from the state with the legislation internal relocation is not a viable option.
18. It is necessary to look at cases individually. I accept the Appellant is gay and I further accept that in his time in the UK he has increasingly become more open about his sexuality and the life that he has led. I find that if returned to Nigeria additional to a potential risk of information deliberately or inadvertently coming from his family the Appellant would be at risk of persecution if he led the life he leads in the UK in the same manner. The Appellant would by necessity suppress and alter the manner in which he conducted his life but that would be largely out of fear of retribution from society generally or specifically from the authorities who have recently enacted legislation that would open the Appellant to the prospect of arrest and prosecution. There is not in my view an option for relocation and indeed the area of the country where the Appellant is from presents a slightly less of a risk than other parts of the country.
19. When applying the country material, the Home Office guidance and the principles established in the case of HJ (Iran) I find the Appellant has a well-founded fear of persecution for a Convention reason namely being a member of a particular social group as a gay person and therefore his asylum claim succeeds.
Notice of Decision
20. I allow this appeal on asylum grounds.
21. Anonymity not retained.

Signed Date 14th October 2016

Deputy Upper Tribunal Judge Lever

TO THE RESPONDENT
FEE AWARD

As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make a fee award of any fee which has been paid or may be payable

Signed Date 14th October 2016

Deputy Upper Tribunal Judge Lever