Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09828/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 August 2016
On 7 November 2016

Before

UPPER TRIBUNAL JUDGE STOREY

Between

S Z
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Corben, Counsel, instructed by Orchid Solicitors
For the Respondent: Miss A Fijiwala, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a national of Pakistan. In a decision sent on 18 May 2016 First-tier Tribunal (FtT) Judge Spicer dismissed her appeal against the decision made by the respondent on 24 June 2016 to refuse to grant her asylum on the basis of her claim that she would be at risk on return because she was a lesbian and would face persecution from her family, the wider community and the authorities. She claimed her cousin had become aware she was gay in January 2015 during a trip she had made to Pakistan when she let him have her mobile phone.
2. The principal reason the judge dismissed the appellant's appeal was because she did not find credible her account of having been in a committed relationship with a Miss AR since 2004.
3. The grounds alleged that the judge failed to give anxious scrutiny to the appellant's version of the facts. They also alleged that the judge failed to take account of the fact that since arrival in the UK the appellant is now known to be a lesbian and that such evidence should have been treated as indicative of her future behaviour. In granting permission to appeal UTJ Coker said it was arguable that the judge imposed her own views as to what is or is not a plausible or a credible account of having been in a committed gay relationship with a Miss AR and whether that was indicative of the appellant's personal sexuality.
4. Mr Corben for the appellant accepted that in the light of the guidance given by the Supreme Court in HJ (Iran) that he could only succeed in showing the judge materially erred in law if able to fault the judge's primary finding that the appellant was not a lesbian. He submitted that as regards this primary finding the judge started off on the wrong foot by declaring at the outset of her assessment that she did not find the appellant's account credible. In ensuing paragraphs the judge displayed a lack of understanding of the unusual specifics of the appellant's claim, in particular that she had not realised her lesbian sexuality until she was 32 and had had no sexual relations until she met Miss RA in 2004. This claim had needed to be assessed in the correct cultural context which was that in the appellant's family and social circumstances in Pakistan, lesbian activity was prohibited.
5. Mr Corben also took issue with the fact that the judge attached adverse weight to the fact that the appellant's alleged partner, Miss RA, had made no mention of their relationship when she came to the UK in 2014. Since Miss RA was a student at that time, that should not have been a relevant consideration.
6. Mr Corben submitted that the judge had imposed her own view that the couple's relationship could only have been as claimed if they had lived together or (when apart) had kept in continuous contact.
7. As regards the incident with the appellant's mobile phone, there was nothing implausible about the appellant's handing the cousin her phone since if she had refused that would have strengthened his suspicion.
8. Mr Corben said that the judge was effectively saying the appellant should lie to her family to avoid persecution.
9. Miss Fijiwala submitted that the judge had properly assessed the claim in the light of country information and was entitled to find the claim not credible in view of a number of shortcomings in the appellant's and Miss RA's evidence. The lack of mention of the relationship by Miss RA when she came to the UK in 2014 was only one of many shortcomings identified.
10. I am not persuaded that the judge materially erred in law. I see nothing untoward about the judge announcing her adverse findings at the outset. In [68] the judge had already made clear that [69] would simply begin the setting out of his reasons. The reason the judge gave for her adverse credibility findings were extensive and I agree with Miss Fijiwala that the criticisms of Miss RA's failure to mention the relationship when she came to the UK was not one that had a material bearing on the judge's assessment. The judge's effective reasons for finding Miss RA's evidence lacking in credibility were her lack of detail ([74]) and her life and career choices ([75]).
11. I am not persuaded that the judge's treatment of the appellant's account of when she discovered she was gay was vitiated by legal error. It is clear from [70] that the judge's assessment took into account both the specifics of the appellant's account of her sexual identity and the cultural context of Pakistani society. The judge's approach does not betray any imposition of her own views or of stereotyped notions of plausibility or credibility.
12. The principal reasons the judge gave for disbelieving the appellant's account of her gay relationship with Miss RA were all ones with a proper basis and included: the appellant's repeated choice not to go to Pakistan to see Miss RA ([77]), the long gaps of time between their meetings despite clear possibilities to do so if they had chosen to ([78]); and lack of evidence of contact between them during those gaps ([79]). The judge also relied correctly on a number of discrepancies in the evidence, which included a number of matters that were quite central to the claimed relationship. Significantly, when analysing these discrepancies the judge noted that as regards two of them she attached little weight to them, thereby demonstrating the judge's incremental and balanced approach. At [88] the judge stated that "[a]lthough some of the discrepancies are minor, taken together they adversely affect the credibility of both the appellant and Miss RA". The judge's assessment was clearly one based on anxious scrutiny.
13. As regards the alleged incident involving the appellant handing her mobile phone to her cousin during a trip to Pakistan, I consider the grounds simply amount to a disagreement as to the facts. It was entirely open to the judge to find implausible the appellant's account of the circumstances for the reasons given, particularly as the photos the cousin was said to have accessed showed nothing more than the appellant and Miss RA at a club with their faces close together.
14. I do not consider that the judge's analysis at [93] involved any legal error. The judge was not expecting the appellant to lie to the Pakistan authorities but rather was evaluating the way in which the appellant claimed to deal with her family. Following their claimed receipt of photographs of her and Miss RA together, the judge was simply seeking to analyse the internal logic of the appellant's account and in that context to point out the implausible nature of her claim that she did venture an innocent explanation.
15. For the above reasons I conclude that the FtT judge did not materially err in law. Her primary finding of fact - that the appellant was not and had never been a lesbian - was a reasonable one based squarely on a balanced assessment of the evidence. Accordingly there was no need for her to go on to analyse the discretion issues. The appellant was personally found to fail at the first hurdle identified in HJ (Iran) in that she had failed to establish her claimed sexual identity as a lesbian or as a person in a sexual relationship with Miss RA.

Notice of Decision
16. I conclude:
The FtT judge did not materially err in law and her decision dismissing the appellant's appeal must stand.

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 their 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: 26 August 2016

Dr H H Storey
Judge of the Upper Tribunal