Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA073172014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 June 2016
On 15 June 2016

Before

LORD TURNBULL
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)
DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

CST
(ANNONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr S. Chelvan (of Counsel), instructed by South West Law.
For the Respondent: Mr T. Wilding, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction

1. The appellant was born on [ ] 1983 and is a national of Cameroon. On 4 March 2014 she arrived in the United Kingdom from South Africa on a business visa valid until 6 August 2014. Shortly after her arrival she took unwell and came to be admitted to hospital, where she was diagnosed as suffering from HIV and tuberculosis. She has had treatment and currently appears to keep reasonably good health.

2. On 7 July 2014, having been discharged from hospital, she made an application for asylum on the basis of her fear of persecution if returned to Cameroon on account of her sexual orientation. The appellant claimed that she identified herself as a lesbian. She also sought humanitarian protection and claimed that her return to Cameroon would be contrary to the European Convention on Human Rights. By letter dated 2 September 2014, the Secretary of State rejected all of the appellant's applications and made a decision to remove her.

3. The appellant's appeal against the Secretary of State's decision was heard before the First-tier Tribunal on 27 October 2014. By decision promulgated on 21 November 2014 that appeal was dismissed on all grounds. Permission to appeal having been refused in the First-tier Tribunal on 16 December 2014, her renewed application to the Upper Tribunal was successful. Permission was granted on 13 April 2015, upon the view that it was arguable that the Judge of the First-tier Tribunal may have erred in law in her assessment of the appellant's credibility.

4. At a hearing on 1 July 2015, before Upper Tribunal Judge Martin, it was held that the First-tier Tribunal Judge did err in her assessment of the core of the appellant's claim, namely that she was a lesbian, and the decision was set aside in its entirety. As directed, the re-hearing of the appellant's appeal took place in the Upper Tribunal.

Background

5. It may be helpful to set out something of the background to the appellant's claim for asylum before turning to the evidence led at the hearing before us.

6. The appellant was interviewed in connection with her application for asylum on 25 July 2014. In the course of that interview she explained that she was born in Cameroon and had lived with her father, mother and twin sister until she was aged around 14, when her father arranged for her to be forcibly married to a local tribal chief. She was then regularly forced to have intercourse with the chief and his brother and subsequently gave birth to a daughter. Her husband already had four other wives and the appellant explained that from shortly after her marriage to the chief she had embarked upon a lesbian relationship with one of his other wives.

7. The appellant's account was that after living in these circumstances for around 10 years she and her daughter were able to escape in 2007, with the assistance of the other wife. They took that wife's son with them as she died during the course of the escape and the appellant thereafter treated the boy as her adopted son. Having succeeded, the appellant said that she met another woman called Stephanie and moved to live with her in a village outside the city of Douala. In around 2008 they moved to live in the city. Throughout this time she claimed that they had lived together in a lesbian relationship. She claimed that they were the subject of public abuse whilst living in Douala and matters became worse in around 2010 when a photograph of them kissing together was taken surreptitiously and distributed to members of their respective families. Her account was that as a consequence of the reaction to disclosure of their relationship Stephanie moved to France and, around the end of 2011, the appellant moved to live in South Africa. She left her daughter and her adopted son with her sister.

8. After moving to South Africa the appellant explained that she maintained contact with her sister and the two children. On an occasion in September 2013 when she was visiting them in Cameroon she claimed that she was attacked by a group of men who came to her sister's home with the intention of detaining her on account of her sexuality. Having assaulted her, they were persuaded to desist by a local woman who interceded on her behalf.

9. The appellant also explained that her husband had arranged for her father to be attacked because she was a lesbian and that she was aware from ongoing contact with her sister that her husband, and others, were trying to ascertain her whereabouts. The appellant explained that she and Stephanie remained in a relationship, maintained contact and that they planned to try and live together again in due course.

The Secretary of State's Decision

10. As mentioned above, the appellant's application for asylum was refused by the Secretary of State on 2 September 2014. In the letter explaining the reasons for refusal the factual background to the appellant's claim was summarised. Many aspects of the appellant's claim were characterised as being internally consistent. In particular, at paragraphs 14 and 16 of the letter, the Secretary of State summarised the appellant's account of the appreciation of her own sexuality and characterised this as an internally consistent account. Despite these observations, it was noted that the appellant's account of her sexuality had not been externally verified and would therefore require to be considered in the context of paragraph 339L of the Immigration Rules.

11. At paragraph 41 of the letter, the Secretary of State turned to the paragraph 339L considerations. She accepted that the appellant had made a genuine effort to substantiate her asylum claim and accepted that all material factors at the appellant's disposal had been submitted. Despite this, the Secretary of State concluded that the statements which the appellant had provided throughout her interviews had not been coherent and plausible, that the conditions of paragraph 339L had therefore not been met, and that the appellant had failed to substantiate the relevant aspects of her claim, including her sexuality. The Secretary of State then set out that notwithstanding this conclusion consideration had been given to whether or not it was appropriate to afford "the benefit of the doubt" in the appellant's case. She then explained that as there were: "numerous inconsistencies throughout all the accounts that you provided" it was not considered appropriate to do so and the material elements of the appellant's case, including her sexuality, were rejected.

12. At the hearing before the First-tier Tribunal the appellant testified in support of her earlier statements and gave evidence of her relationship with Stephanie, which she sought to support by relying on two letters from her. The Judge took the view that the evidence concerning her relationship with Stephanie was crucial to the appellant establishing her case in relation to sexual orientation. For various reasons, principally in relation to what she saw as the lack of appropriate detail concerning the relationship in the letters provided, the Judge concluded that the appellant had failed to substantiate her claim concerning her relationship with Stephanie and therefore held that she had failed to establish her case that she was a lesbian. In these circumstances the whole basis of the appellant's claim fell away.

The re-hearing before the Upper Tribunal

13. In advance of the hearing before us Mr Chelvan submitted a skeleton argument setting out a number of grounds of attack on the Secretary of State's decision which focussed on the manner in which the appellant's claim to be a lesbian had been rejected. These included an overarching legal proposition, based upon the duty of co-operation set out in Article 4 of the Qualification Directive 2004/83/EC, arguing that the Secretary of State's approach to credibility decision-making, through the prism of paragraph 339L of the Immigration Rules, was incompatible with European Union law. Separate arguments addressing how, in an asylum claim, an applicant could properly be expected to externally verify sexual identity and asserting that in the circumstances the respondent was bound to accept the appellant's account were identified, along with a general proposition that the Secretary of State was factually incorrect in asserting that there had been numerous inconsistencies in all of the accounts which the appellant had provided.

14. In addition though, there had been a development in the appellant's personal circumstances. In a statement dated 30 January 2016, the appellant set out further details of her background circumstances and explained that, as a consequence of learning that she was HIV positive, Stephanie had broken off their relationship. The appellant went on to explain that in around November 2014 she had commenced a new relationship with a French woman called Sonia, whom she had met through an internet dating site. That relationship had developed, Sonia had moved to Leeds to be with the appellant, and, in January 2015, they became engaged. As a result of difficulties in obtaining reasonably paid employment Sonia had returned to France in July 2015 and obtained a job as a receptionist. Nevertheless, they continued to see each other with Sonia visiting reasonably regularly. She explained that they also kept in regular touch through telephone calls and other forms of social media.

15. At the hearing the appellant gave evidence of her background circumstances, her sexuality and the nature of her relationship with Sonia. Sonia also attended and, as the appellant had, gave evidence through a French interpreter. They both gave evidence of the nature of the relationship which they had with each other and of the depth of feeling which they had one for the other. Sonia was examined, and cross-examined, in detail, on the background to her relationship with the appellant and upon her knowledge of the appellant's circumstances and family.

16. Various photographs of the appellant, Sonia and others at their engagement party were relied upon. Their engagement rings were exhibited, as was a bracelet which Sonia had given to the appellant in celebration of her forthcoming birthday. Transcripts of text messages between the two vouching affection and tenderness were relied upon, documentation demonstrating visits from Sonia was produced and witness statements from others concerning the nature of their relationship were relied upon.

17. After the conclusion of the evidence, which had been characterised by notably sensitive and professional cross-examination on his part, Mr Wilding intimated he accepted that the appellant had made out her case as to her sexuality. He also accepted that the appellant would wish to live openly as a lesbian and that to do so in Cameroon would lead to a well-founded fear of persecution.

Discussion and Conclusion

18. Our analysis is, of course, greatly assisted by the position taken on behalf of the Secretary of State. Nevertheless, we should state that we found the evidence of both the appellant and Sonia to be credible and reliable. On that evidence, as supported by the other adminicles and statements mentioned in paragraph 16 above, we are satisfied that the appellant identifies herself as a lesbian, that she is in a stable and full-time relationship with her partner and that they intend to marry.

19. It is acknowledged by the Secretary of State that, as a lesbian, the appellant would fall to be recognised as a member of a particular social group, namely individuals defined by the shared characteristic of their sexual orientation. The issue is whether she has a well-founded fear of persecution within the meaning of article 1A(2) of the Convention and Protocol relating to the Status of Refugees (1951) in the country of her nationality based on membership of that particular social group.

20. It has all along been accepted by the Secretary of State that prejudice against sexuality by state and non-state actors is both common and public in Cameroon (see paragraph 44 of the reasons for refusal letter). The country background evidence in the appellant's bundle B amply supports this conclusion.

21. The outcome of the appeal in this case is determined by applying the guidance given by Lord Rodger of Earlsferry in the Supreme Court decision of HJ (Iran) and HJ (Cameroon) v Secretary of State for the Home Department [2011] 1 A.C. 596 at paragraph 82. The relevant questions for determination are these:

i. Are we satisfied on the evidence that the appellant is a lesbian?

ii. If so, are we satisfied on the available evidence that gay (or lesbian) people who lived openly would be liable to persecution in her country of nationality?

iii. If so, do we consider that the appellant would want to live openly as a lesbian woman and thereby be exposed to a real risk of persecution if returned to Cameroon?

We are satisfied that the answer to each question is yes and that the appellant therefore has a well-founded fear of persecution as a result of her membership of a particular social group. It follows that her appeal succeeds on asylum grounds and that for the same reasons the appellant has established that she would face a real risk of suffering serious harm in Cameroon and is therefore entitled to humanitarian protection.

22. The appellant has also sought to rely on articles 2 and 3 of the European Convention on Human Rights. In her appeal these claims stand or fall with her asylum claim. In light of the findings made above we are satisfied that if she returns to Cameroon the appellant may be subjected to torture, inhuman or degrading treatment or punishment or face death in breach of articles 2 or 3 of the ECHR.

23. In these circumstances it was not necessary to consider any of Mr Chelvan's other interesting and potentially important arguments and he did not seek to advance them.

Decision

24. The appeal is allowed on asylum grounds, humanitarian protection grounds and human rights grounds.

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 her or any member of her 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

Alan D. Turnbull

Date

15/6/2016

Judge of the Upper Tribunal