AA/09104/2015

• Status of case: Unreported
• Hearing date: 28 Jul 2016
• Promulgation date: 8 Aug 2016
• Publication date: 5 Dec 2017
• Last updated on: 5 Dec 2017

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09104/2015


THE IMMIGRATION ACTS


Heard at North Shields
Decision & Reasons Promulgated
On 28th July 2016
On 8th August 2016



Before

UPPER TRIBUNAL JUDGE D E TAYLOR


Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

[T M]
(ANONYMITY DIRECTION NOT MADE)
Respondent


Representation:
For the Appellant: Mr Diwncyz, Presenting Officer
For the Respondent: Ms Soltani of Iris Law Firm


DECISION AND REASONS
1. This is the Secretary of State's appeal against the decision of Judge Holmes made following a hearing at North Shields on 1st February 2016.
Background
2. The claimant is a citizen of Zimbabwe born on [ ] 1985. He was arrested on 30th December 2014 at Belfast Airport in possession of identity documents to which he was not entitled on suspicion of having entered the UK illegally. He claimed asylum and his application was refused on 12th May 2015.
3. The claimant said that he was a refugee from Zimbabwe because he was perceived in that country to be a homosexual and had suffered persecution in the past at the hands of both members of the general population and the state authorities. He was an actively homosexual man and would wish to live openly as such. He also claimed to be a family member of an MDC activist who has been granted refugee status in the UK and would be identified as a person of interest to the CIO upon return to the airport.
4. The judge had considerable doubts about much of the claimant's story but he was satisfied that he was in an active sexual relationship with a UK national and that his current sexual preference was for sex with other men. He allowed the appeal on the basis that it was realistic to infer either that the claimant would feel unable to pursue his sexual interests through fear or that if he did so he would be at risk of persecutory ill-treatment.
5. He also allowed the appeal because he was satisfied that there was a real risk of persecutory ill-treatment at the airport. He wrote as follows
"It is argued before me that the appellant is without a Zimbabwean passport and thus the authorities would have to issue a travel document to him before he could be returned. Whether by way of a replacement passport or by way of an ETD it is argued that inquiries into the appellant's identity would disclose the family link between the appellant and his mother and thus lead him to be perceived as MDC. There is merit in that argument, given the Tribunal's acceptance of his mother's account, even if there is no merit in the claim that the appellant is already perceived by the CIO to be homosexual. Thus I accept that there is a real risk that he would be identified by the CIO as of interest to them from the passenger manifest in advance of arrival, based upon their intelligence activities. Thus there is a real risk of second stage questioning by the CIO, and thus I am satisfied that he would face a real risk of ill-treatment amounting to persecution, or a breach of their Article 3 rights, as a result of, or in the course of inquiries at the airport by, or on behalf of the CIO."
The Grounds of Application
6. The Secretary of State sought permission to appeal on the grounds that the judge had materially erred in law by departing from the country guidance case of LZ (homosexuals) Zimbabwe CG [2011] UKUT 00487 which concluded that there was no general risk to gays or lesbians in Zimbabwe.
7. It was also argued that the judge had departed from CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 00059 in holding that the claimant would be at risk on return on account of his links with the MDC. He had no MDC profile and would not be at risk; the fact that his mother was granted asylum in 2007 did not establish that the claimant would be in difficulty now.
Submissions
8. Mr Diwncyz relied on his grounds in relation to the LZ point but accepted that, in reality, his grounds had not engaged with the basis upon which the judge had allowed the appeal in relation to his mother's political profile.
Findings and Conclusions
9. As Mr Diwncyz properly acknowledged, the judge did not allow the appeal because of the claimant's own MDC profile. It was his case, and the judge was entitled to accept it, that the risk to him arose at the point of return when he would be likely to be identified as the son of a refugee. Ms Soltani reminded me that the claimant's mother had a reasonably significant profile in Zimbabwe, it having been accepted that she was of interest to the then Vice President, Simon Muzenda who had in fact visited her farm shortly before she was evicted and then severely assaulted by war veterans there. The Vice President had subsequently taken over the farm.
10. The grounds simply fail to engage with the core of the decision. Accordingly whether or not his conclusions with respect to risk on return as a gay man were or were not adequately reasoned is immaterial to the decision.
Notice of Decision
11. The original judge did not err in law and his decision stands. The Secretary of State's appeal fails.

No anonymity direction is made.



Signed Date 7 August 2016
Upper Tribunal Judge Taylor