Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09746/2015
AA/10492/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23 December 2016
On 15 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE BAGRAL

Between

(1) ASAD [I]
(2) UZAIR [I]
(ANONYMITY DIRECTION NOT made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the 1st Appellant: Mr S Hyder, Legal Representative
For the 2nd Appellant: Mr A Maqsood, Counsel
For the Respondent: Ms Brocklesby-Weller, Home Office Presenting Officer

REMITTAL AND REASONS

1. The Appellants are citizens of Pakistan born on 26 July 1982 and 5 September 1989 respectively. They appeal, with permission granted on 23 November 2016 (Upper Tribunal Judge Coker) against a decision of the First-tier Tribunal (Judge Chana) which, in a decision promulgated on 5 August 2016, dismissed their appeals against a decision of the Secretary of State to remove them to Pakistan following the refusal of their claim for international protection. The appeals were consolidated and heard together before the First-tier Tribunal as there were common issues for determination.
2. Essentially, the Appellants' case is that they are gay. They both claim to have individually engaged in homosexual activity in Pakistan and say that they have been in a cohabiting relationship together in the UK, which they could not replicate in Pakistan without fear of persecution and/or serious harm.
3. In her Asylum Decision Letter of 22 July 2015 the Secretary of State did not accept the Appellants' account.
4. The First-tier Tribunal in dismissing the Appellants' appeal took a number of points against them leading the Judge to find the Appellants claim not to be credible. She noted various inconsistencies in the account. In particular, in respect of the First Appellant the Judge observed that homosexuality is a criminal offence in Pakistan. She thus did not find it credible that his father and brother attempted to dissuade him from his sexual preferences rather than take action against him or, that thereafter, he would then commence a relationship with his cousin who would have been perceived as a brother. Further, the Judge did not accept that he had engaged in intimate acts in public places in Pakistan. Further still, the Judge was not persuaded that a complaint(s) had been lodged against him to the police and, in turn, she rejected the reliability of the First Information Reports produced in evidence.
5. As for the Second Appellant, the Judge did not find it credible that he was able to live in Pakistan without event between 2007 and 2011 if indeed he was gay. She did not believe he would not be aware that others sharing his accommodation in the UK were gay or not. Further, the Judge observed that he was unable to identify the author of a letter attesting to the relationship. The Judge finally noted that both Appellants only claimed asylum after their leave was curtailed.
6. The grounds of appeal to the Upper Tribunal take issue with the Judge's decision in several respects. First, it is argued that there are mistakes of fact in the evidence that she took into account; second, that she failed to take into account material evidence, and, third, reached conclusions on her own perceptions of how a gay man would act rather than assessing the evidence within the applicable cultural context.
7. At the hearing both representatives for the Appellants expanded on the grounds of appeal save for some revision, in that, Mr Hyder accepted that his criticisms of paragraph [56] of the Judge's decision amounted to a disagreement rather than identifying an error of law.
8. On behalf of the Respondent, while Ms Brocklesby-Weller, amplified her Rule 24 reply and invited me to uphold the decision, she properly acknowledged that there were difficulties with the Judge's decision in particular with respect to the First Appellant.
9. The Appellants appeals are inextricably linked insofar as they both claimed that they had been in a gay relationship together in the UK. The decision in respect of both Appellants therefore is either to be upheld or remitted to the First-tier Tribunal if the credibility findings are flawed. I have borne in mind that it is not necessary for the Judge to tussle with every limb of the evidence, but all the evidence must be assessed with anxious scrutiny and findings reached on the correct factual premise. It is not necessary for me to deal with every point raised by Mr Hyder and Mr Maqsood because, while I do not accept that the Judge erred in all respects claimed, I have concluded that there are a number of errors in the Judge's decision and approach to the evidence which result in her adverse credibility findings being flawed.
10. First, while I accept that it was for the Appellants to prove their case before the First-tier Tribunal those proceedings must necessarily be objectively fair and its decision based soundly on the evidence. I am not satisfied that this has occurred in this case for the following reasons.
11. At [49] the Judge's conclusion that it was not credible the First Appellant's brother and father took no action when they discovered him engaging in homosexual activity other than to try and dissuade him is not in accordance with the evidence. The First Appellant makes it plain in his witness statement that he was beaten by his father and brother after he was discovered. While the Judge makes reference to this evidence while setting out the First Appellant's claim, her conclusions omit to take this evidence into account and is plainly contrary to the evidence.
12. Further, at [55] the Judge made reference to the First Appellant's claim that he was "caught swimming in a public pool during an intimate act". The Judge went on to refer to the consequences of being openly gay in Pakistan and concluded that it was not credible that he would swim in a public pool and engage in homosexual acts when he knew he could be caught. The First Appellant's evidence does not suggest however that this event took place in a public pool, but rather that the pool/pond was inside his poultry farm and that the acts were conducted in solitude away from public view.
13. The Judge's reasoning in respect of the Second Appellant's claim is much shorter in consideration and is set out at [60] to [63]. I am satisfied that these paragraphs do not demonstrate an adequate consideration of the evidence adduced on his behalf, which included evidence or cohabitation, letters of support attesting to the relationship and photographs of the Appellants together. While none of that evidence is conclusive evidence of a relationship, there is no reference to it and I am not satisfied that any of it has been considered in the round.
14. Further, the Judge found that the timing of the Second Appellant's asylum claim made after his leave was curtailed infected his credibility, is a conclusion that is not squarely based on the evidence before her. It failed to take into account that the curtailment notice was returned undelivered to the Home Office; that leave was subsequently granted until October 2015, and that, prior to expiration of leave the Second Appellant claimed asylum on 22 July 2014.
15. Taking these matters together, while the Judge gave a number of reasons for finding the claim wanting, it seems to me that there are a multitude of errors that suggest the Appellants case has not been adequately considered by the Judge with anxious scrutiny. I cannot be satisfied that the errors that I have identified were not material to her findings. I do not say that the Judge was bound to reach a different view but rather that the assessment of the evidence and the process leading to the Judge's findings are materially flawed. These errors fatally undermine the Judge's adverse findings.

Decision
16. For these reasons the First-tier Tribunal's decision to dismiss the appeal involved the making of a material error of law. The Judge's decision cannot stand and is set aside.
17. Given the nature and extent of fact-finding required in re-making the decision, the appeal is remitted to the First-tier Tribunal for a re-hearing de novo before a Judge other than Judge Chana. None of the Judge's findings are preserved.

Signed

Deputy Upper Tribunal Judge Bagral