Tribunal decisions

The decision

IAC-AH-co-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06837/2015

THE IMMIGRATION ACTS

Heard at Stoke
Decision & Reasons Promulgated
On 8th February 2017
On 17th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

PKA
(ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mrs M Christopher of Burton and Burton Solicitors
For the Respondent: Mr A McVeety, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction and Background
1. The Appellant appeals against a decision of Judge Meyler of the First-tier Tribunal (the FFT) promulgated on 6th October 2016.
2. The Appellant is a male citizen of Ghana born in November 1979.
3. The Appellant claimed asylum based upon his sexuality, in that he claims to be gay, and also in relation to a dispute over the chieftaincy of his village in Ghana.
4. The Respondent refused the application on 30th March 2015 and the Appellant appealed pursuant to Section 82 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act). The appeal was heard by the FTT on 16th September 2016. The FTT found that the Appellant had not proved that he is either gay or bisexual, and that he would not be at risk if returned to Ghana, because of the chieftaincy dispute. The FTT dismissed the appeal on all grounds.
5. The Appellant applied for permission to appeal to the Upper Tribunal and permission to appeal was granted by Upper Tribunal Judge Coker in the following terms;
1. It may be the judge has placed adverse weight upon the Appellant's use of the terms 'homosexual' in reaching his conclusions, such weight being imported either through his own knowledge or independent research.
2. It is arguable that in the absence of such weight, the judge may not have reached the conclusion he did, in particular whether the Appellant was bisexual. Permission is granted on the grounds that the finding as to the Appellant's sexuality is arguably unsafe.
3. Permission to appeal is not granted in relation to the Appellant's family relationships. The judge considered the evidence before him on the nature of the Appellant's relationship with his child and reached conclusions that were unarguably open to him.
4. The Appellant had not sought permission to appeal the findings as regards the chieftaincy and the decision insofar as that is concerned stands.
6. Following the grant of permission the Respondent lodged a response pursuant to Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008. In summary it was contended that the FTT directed itself appropriately, and made findings open to it on the evidence. It was contended that the grounds display a disagreement with the FTT findings but do not disclose an error of law. Directions were subsequently issued making provision for there to be a hearing before the Upper Tribunal to decide whether the FTT decision contained a material error of law such that it should be set aside.
The Oral Submissions
7. Mrs Christopher submitted that the FTT had erred by placing too much weight on the Appellant's use of the terms homosexual and bisexual. It was contended that the FTT had failed to take into account that the Appellant's use of these terms could be attributed to the fact that he was born and brought up in Ghana where being gay is illegal.
8. It was contended that the FTT had erred at paragraph 26 by assuming that the Appellant would have been informed of the politically correct terms to be used in the UK.
9. The FTT had adopted an incorrect starting point for finding that a gay person would not use the term homosexual, and this had infected the FTT findings throughout the decision.
10. Mr McVeety submitted that there was no error of law and the decision needed to be read as a whole. At paragraph 26 the FTT had correctly noted that it was not the case that the Appellant had made a claim for asylum based upon his sexuality immediately upon his arrival from Ghana. He had been in the UK for approximately six years and claimed to have had gay relationships. The FTT was entitled to find if that was the case he would not use the term homosexual.
11. Mr McVeety pointed out that the FTT had given other reasons for not finding the Appellant's claim in relation to his sexuality to be credible. These included the fact that he had admitted relationships with women, and had fathered three children. This included relationships in the UK with females.
12. In response Mrs Christopher submitted that the FTT had erred by attaching too much weight to the term homosexual, and had made incorrect assumptions.
13. At the conclusion of oral submissions I reserved by decision.
My Conclusions and Reasons
14. The issue that I have to decide is whether the FTT wrongly placed adverse weight on the Appellant's use of the terms homosexual and bisexual. I do not find that the FTT erred for the following reasons.
15. The FTT findings are contained at paragraphs 25-40. I do not find that the FTT was wrong to draw an adverse inference from the Appellant's use of the words homosexual or bisexual. The FTT finding at paragraph 26 that the Gay and Lesbian Alliance Against Defamation has placed homosexual on its list of offensive terms has not been challenged.
16. The FTT noted at paragraph 26 that at the time he made his asylum claim the Appellant had lived in the UK for six years, spoke fluent English, and claims to have engaged in several relationships with gay men.
17. The explanation put forward on behalf of the Appellant to the effect that he was born and brought up in Ghana where being gay is illegal, was not found to be an adequate explanation by the FTT, who did not err in law in so finding, taking into account the length of time that the Appellant had been in the UK, and the relationships that he claimed to have had.
18. I find that the FTT gave adequate and sustainable reasons for finding that the Appellant had not proved that he is gay or bisexual. At paragraphs 27 and 28 the FTT noted numerous inconsistencies in the Appellant's account as to whether he was attracted to both men and women, or only towards men. The FTT noted one explanation given by the Appellant was that he slept with women only due to family and social pressures, but noted that this did not explain why he had relationships with women in the UK when he had the freedom to express his sexual identity. The FTT noted that the Appellant had married a woman in the UK, and had a relationship with another woman who bore him a child on 2nd August 2016.
19. The FTT was entitled to note that none of the men with whom the appellant claimed to have had a relationship attended the hearing to support him, and did not submit letters or witness statements. The FTT was entitled to place little weight upon the Appellant's explanation that he did not think that this evidence was necessary.
20. The FTT examined printouts from Gaydar, noting the Appellant could not be identified in the photographs and there was no name attached to the posts. The Appellant accepted that he opened his Gaydar profile only three months prior to lodging his asylum claim. He did not give a satisfactory explanation as to why he did not have such a profile at an earlier stage when he claimed to have been actively engaged in dating and sexual relationships with gay men. The FTT did not err in placing little weight on these internet printouts.
21. The FTT examined a letter from Birmingham LGBT dated 18th December 2013, noting that this did not assert the Appellant's sexuality, and only confirmed his attendance and the letter did not purport to have explored or assessed the genuineness of his claim to be gay. The FTT was entitled to note the Appellant arrived in the UK in September 2010, and therefore waited three years before attending the LGBT centre, and that he attended two months before he claimed asylum.
22. The FTT has carefully examined all the evidence submitted by the Appellant. Having examined that evidence, the FTT concluded that the Appellant had failed to discharge the burden of proof, and did not accept that he had proved that he is a gay man. The FTT has made findings which were open to make on the evidence, and in my view has given adequate and sustainable reasons for those findings.
23. The decision of the FTT discloses no material error law.

Notice of Decision

The making of the decision of the FTT did not involve the making of a material error on a point of law. I do not set aside the decision. The appeal is dismissed.

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 15th February 2017

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

The appeal is dismissed. No fee has been paid or is payable. There is no fee award.

Signed Date 15th February 2017

Deputy Upper Tribunal Judge M A Hall