Tribunal decisions

The decision

IAC-AH--V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/08948/2015
AA/13607/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Decision & Reasons Promulgated
On 28 February 2017
On 8 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

XK
EM
(anonymity direction made)
Appellants
and

Secretary of state for the home department
Respondent

Representation:
For the Appellants: Mr J Howard, Fountain Solicitors
For the Respondent: Ms R Pettersen, Specialist Appeals Team

DECISION AND REASONS
1. The appellants appeal from the decision of the First-tier Tribunal (Judge Moan sitting at Birmingham on 21 July 2016) dismissing their appeals against the decision of the Secretary of State to refuse to recognise them as refugees from Malawi on account of their claimed sexual orientation. The First-tier Tribunal made an anonymity direction in favour of the appellants, and I consider that is it appropriate that this anonymity direction is maintained for these proceedings in the Upper Tribunal.
Relevant Background
2. XK was born on 12 January 1989. EM was born in Malawi on 3 September 1993. XK came to the United Kingdom from Malawi with her father on 24 September 2002 on a 6-month visit visa. She was 13 years of age at the time. She has remained in the UK ever since. EM lived in Malawi until 2003 and she came to the UK on a 6-month visa with her father. She was 10 years of age at the time. She has also remained here ever since. XK claimed asylum on 20 October 2014, and EM claimed asylum two days later. On 22 May 2015 the respondent refused the asylum claims of each appellant.
3. Both of them are friends, and both of them claim to be lesbian. EM’s account was that she had moved in with XK in August 2013, and their friendship had developed into a romantic relationship such that they had been cohabiting as a same-sex couple since May 2014. EM’s account was that XK was her first sexual partner. XK’s account was that she had had two lesbian relationships, of which her relationship with EM was the second.
4. The common theme of the two refusal decisions was that the appellants had given an inconsistent account of their relationship with each other. They disagreed about how the relationship had begun, and EM’s account of what she said XK had told her about her previous sexual history and experiences was not consistent with XK’s account.
The Hearing Before, and the Decision of, the First-tier Tribunal
5. At the hearing before Judge Moan, the appellants were represented by Mr Howard of Fountain Solicitors, and Miss Venables, a Home Office Presenting Officer, appeared on behalf of the respondent.
6. In her decision, the Judge’s assessment of the evidence began at paragraph [15]. Having considered the Country Information and Guidance on Malawi on the topic of “Sexual Orientation and Gender Identity” and the additional objective evidence submitted by the appellants, the Judge held (at paragraph 16) as follows: “There was no objective evidence before me that indicated that the treatment of the appellants as lesbians in Malawi would be sufficiently serious to be an attack on their basic rights such as life or freedom.”
7. The Judge went on to review the evidence bearing upon the question of whether the appellants were in fact lesbians. In sub-paragraphs (a) to (g) of paragraph [26] the Judge enumerated the inconsistencies identified by the Home Office as arising in the appellants’ claim that they were in an intimate relationship.
8. The Judge went on to identify the inconsistencies which she found to be particularly significant, and to give her reasons for so finding. At paragraphs [31] and [32] she identified further adverse credibility points which had, in her view, emerged during the oral evidence given at the hearing. At paragraphs [33] to [36] the Judge addressed the evidence of the supporting witnesses. She explained why she placed little weight on what they had said. EM was clear in interview as to whom she had disclosed her (alleged) relationship with XK. This did not include either of the two witnesses. The evidence of the two witnesses contradicted the evidence of the appellants as to when they spent time together, and when Chidimma was told about their relationship. In addition, she could not accept Nazra’s evidence that having been so shocked at her friend’s sexuality, she would readily have attended a same-sex club with her. Nazra also described those clubs as being in a different area of Birmingham than that described by EM.
9. At paragraph [37], the Judge expressed additional concern about the evidence which EM had given regarding her passport. She found that EM had not told the truth in her interview in October 2014, when she said that she had lost her passport in 2012 because of her house move. She believed that EM had always had her passport, but she had not submitted it for fear of return, but had then submitted her passport when it supported her claim.
10. At paragraph [38], the Judge found XK to be credible in her claims to be a lesbian. Her account in her asylum interview was very detailed, credible and plausible. She was consistent about discovering her sexuality, and she had provided letters of support. She had been recognised by a number of people in her community as being part of the LGBT community. The Judge found the letters regarding her sexuality to be reliable.
11. At paragraph [39], the Judge said that she was unable to accept EM’s account as credible. She had been very contradictory about her wish to live her life openly, and yet had cultivated a very secret relationship. She was inconsistent about who she told about her relationship with XK, and the Judge was unable to place much weight on the two witnesses. She would expect the evidence of a young woman finding her sexuality to be very clear about what would be a sensitive time in her life. EM was not clear. She also had concerns about EM’s evidence regarding her passport.
12. Having found that XK was a lesbian, the Judge addressed the issue of risk on return, at paragraphs [41]-[43]. She held that the objective evidence did not support a finding that XK would be at real risk of arrest and detention as the result of her sexuality. The objective evidence suggested that she might be subject to societal harassment and discrimination, but this was by no means widespread or inevitable. Harassment and discrimination fell short of persecution, and would not amount to a violation of either Article 2 or Article 3 ECHR rights. So, her asylum claim failed, as the Judge was not satisfied that XK had a well-founded fear of persecution if returned to Malawi.
13. The Judge allowed both the appellants’ appeals under Rule 276ADE. EM qualified for a grant of leave under Rule 276ADE(1)(v), as she was under the age of 25, and she had resided in the United Kingdom for more than half of her life. XK qualified for leave to remain under Rule 276ADE(1)(vi), as there would be very significant obstacles to her integration into the country to which she would have to go if required to leave the UK. The Judge’s reasoning which led her to this conclusion was contained in paragraph [58]. She would have difficulties in Malawi as a lesbian. She would not face persecution, but she was likely to encounter some local harassment and discrimination as the result of her sexuality.
The Application for Permission to Appeal
14. The appellants’ application for permission to appeal advanced three grounds. The first ground was that the Judge had erred in not finding that EM was also a lesbian, particularly given that XK’s evidence was that she was in a relationship with EM. The Judge had not given any reason as to why XK’s evidence in relation to her account of her relationship with EM was not to be believed.
15. Ground 2 was that the Judge had failed to assess adequately the persecutory risk that the appellants faced on return to Malawi. The Home Office County Guidance Report of 17 March 2016 cited by the Judge contained the following passage at paragraph 3.1.2: “In some cases, the cumulative impact of anti-LGBT legislation and societal intolerance may amount to persecution ….” Furthermore, the Judge had failed to assess whether the appellants would be forced to act in a discreet way on return to Malawi in order to avoid persecution: see HJ (Iran).
16. Ground 3 was that the Judge had failed to assess the persecutory risk that both appellants would face on return to Malawi as failed asylum seekers.
The Eventual Grant of Permission
17. Permission to appeal was initially refused by First-tier Tribunal Judge O’Garro on 2 September 2016. In his view, the Judge had manifestly demonstrated that she had in mind the correct approach to the evidence and she dealt with all the pertinent issues, providing adequate reasons for her findings.
18. Following a renewed application for permission to appeal to the Upper Tribunal, Upper Tribunal Judge Pitt granted permission on 6 October 2016 for the following reasons:
It is arguable that the decision does not indicate an assessment of whether the first appellant would be forced to be discreet concerning her sexuality on return in line with HJ (Iran) -v- SSHD [2010] UK SE31, given the country conditions for lesbians in Malawi. It is also arguable that the decision errs in finding the first appellant credible, but failing to take that into account when assessing the claim of both appellants to be in a relationship.
The Hearing in the Upper Tribunal
19. At the hearing before me to determine whether an error of law was made out, Mr Howard developed the arguments advanced in the permission application. He did not, however, address me on Ground 3. In reply, Ms Pettersen adhered to the Rule 24 response settled by a colleague. A similar approach had been taken by the Upper Tribunal in OO (Gay Men) Algeria CG [2013] UKUT 0065. Although homosexual acts were presently criminalised, arrests were infrequent and there has been a Government proposal to amend the law. Societal discrimination was not said to meet the persecutory threshold. In line with the approach taken by the Upper Tribunal in OO, the Judge’s conclusions in these appeals were sustainable.
Discussion
20. When refusing permission to appeal, Judge O’Garro bore in mind the guidance given in Krasniqi -v- SSHD [2006] EWCA Civ 391. The Court said that when grounds of appeal take issue with an Immigration Judge’s findings of fact, care must be taken that there is sufficient foundation for an argument that the findings are both demonstrably, not merely arguably, unfounded or erroneous and, capable of affecting the outcome.
21. I consider that Ground 1 falls well short of meeting the first limb of this test. The Judge has given extensive and detailed reasons for finding that neither appellant was consistent, and hence credible, about the nature of their relationship. It was not in dispute that they were good friends and that they lived together in the same household. The issue was whether they were in a lesbian relationship.
22. It is clear from the Judge’s discussion of the inconsistencies that she is making adverse credibility findings about both appellants on the discreet topic of their relationship. At paragraph [29], the Judge says: “I would expect the appellants to be consistent about when appellant XK disclosed her sexuality to appellant EM.” At paragraph [30], the Judge says: “I would also expect the appellants to be very clear about how their relationship started.”
23. There is no inconsistency between these adverse credibility findings directed towards both appellants and the Judge’ conclusion at paragraph [38] as follows: “I found the appellant XK credible in her claims to be a lesbian.” It is clear from what the Judge goes on to say in paragraph [38] that this conclusion is not based on XK’s claimed lesbian relationship with EM, which the Judge has rejected, but on the remainder of XK’s account.
24. Accordingly, the Judge gave adequate reasons for finding that XK (although credible in her claim to be a lesbian herself) did not corroborate EM’s claim to be a lesbian. The Judge has also given adequate reasons as to why the evidence of Nazra and Chidimma did not assist EM.
25. It is contended that the Judge failed to explain why weight could not be attached to letters from two other people who both confirmed that they were aware of the relationship between XK and EM. Since these people had not been called as witnesses, and thus their evidence had not been tested in cross-examination, the weight that could be reasonably attached to their evidence was always going to be less than the weight which could be attached to the evidence of Nazra and Chidimma. Moreover, the Judge was not obliged to refer to every piece of evidence relied on by EM as a condition precedent of reaching a sustainable conclusion on the question of whether EM had discharged the burden of proving, to the lower standard of proof, that she was a lesbian. Accordingly, Ground 1 is not made out.
26. Turning to Ground 2, I remind myself that the relevant part of the test propounded by the House of Lords in HJ (Iran) at paragraph [82] is as follows:
When an applicant applies for asylum on a ground of a well-founded fear of persecution because he is gay, the Tribunal must first ask itself whether it is satisfied on the evidence that he is gay, or that he would be treated as gay by potential persecutors in his country of nationality.
If so, the Tribunal must then ask itself whether it is satisfied, on the available evidence, that gay people who lived openly would be liable to persecution in the applicant’s country of nationality.
27. I consider that the Judge has given adequate reasons for answering this second question in the negative. I do not accept that the Judge has been unfairly selective in her citation of relevant passages from the Home Office Country of Information and Guidance on the topic of sexual orientation and gender identity in Malawi. It is convenient to quote paragraph 3.12 of the policy summary in full:
There is no evidence that there is widespread harassment of or violence against LGBT persons. Whilst societal intolerance and discrimination occurs, such treatment does not generally amount to a real risk of persecution or serious harm. In some cases, the cumulative impact of anti-LGBT legislation and societal intolerance may amount to persecution. Each case needs to be considered on its individual merits, with the onus on the person to demonstrate that they are at real risk.
28. In order to differentiate herself from the generality of LGBT persons in respect of whom there is no real risk of persecution or serious harm, the onus was on XK to show that in her particular case the cumulative impact of anti-LGBT legislation and societal intolerance might give rise to a real risk of persecution. In oral argument before me, Mr Howard did not identify any particular characteristics of the appellant which would enable her to differentiate herself in this way.
29. Prima face, the position for lesbians in Malawi is much more propitious than it is for male homosexuals. The penalty for consensual same-sex activity Malawi is much greater for men than it is for women. A survey of a number of prisons conducted by a NGO in 2014 reported that there were 6 men serving sentences relating to same-sex activity laws, and that over 21 men were in prison under these laws during 2011 and 2014. In the survey of 2015, two men were arrested on suspicion of engaging in homosexual acts in their house. They were released on bail and ordered to Court to face sodomy charges. Subsequently, the two men were released from custody and all charges dropped. The moratorium on arrests and prosecution under the laws was said to remain in place. There were a number of NGOs openly and actively supporting LGBT persons, and there are signs of growing societal tolerance of their rights: see paragraphs 2.2.7, 2.2.8, 2.2.9, 2.2.10 and 2.2.15 of the Country Information and Guidance.
30. The Judge found that XK would be forced to be discreet in Malawi about her sexual orientation. But this was in order to avoid discrimination and social stigma, not in order to avoid persecution. Accordingly, Ground 2 is not made out.
31. Ground 3 was not pursued before me, and in any event it is academic, as both appellants have been granted leave to remain on private life grounds. So if either of them subsequently returns to Malawi as the result of them not being able to obtain further leave to remain in the United Kingdom, they will not be returning as failed asylum seekers, but as persons who have not qualified for further leave to remain under the Rules.

Notice of Decision

The decision of the First-tier Tribunal did not contain an error of law, and accordingly the decision stands. These appeals to the Upper Tribunal are dismissed.

Direction Regarding Anonymity

Unless and until a tribunal or court directs otherwise, the Appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the Appellants and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date March 2017

Judge Monson
Judge of the First-tier Tribunal