Tribunal decisions

The decision

IAC-AH- -V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aa/10025/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 November 2016
On 30 November 2016

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

RKN
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr T Bahja, counsel instructed by Duncan Lewis & Co Solicitors
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge Dineen, promulgated on 26 August 2016. Permission to appeal was granted by Upper Tribunal Judge Gill on 21 October 2016.

Anonymity
2. An anonymity direction was made by the First-tier Tribunal and this is maintained.
Background
3. The appellant entered the United Kingdom during January 2010, having been granted leave to enter as a Tier 4 migrant. That leave was due to expire on 30 September 2012 but was curtailed to take effect on 8 March 2012. On 6 June 2012, the appellant applied for further leave to remain under Tier 1 (Entrepreneur). That application was refused with no right of appeal. The appellant sought judicial review of that decision but was unsuccessful in that his application was refused on 16 April 2013. The appellant remained in the United Kingdom and his continued presence came to light when he reported a matter to the police on 21 October 2014. Removal directions were set on 22 October 2014 but were deferred when the appellant applied for asylum on 28 October 2014.
4. The appellant's asylum claim was based on his sexuality; in that he is a gay man. The appellant's family learned of his sexuality at an early stage, after his grandmother caught him having sex with a male cousin. The difficulties caused by this revelation caused the appellant stress and to develop anorexia. In 2004 the appellant was sexually abused by an uncle, T. The appellant had a relationship with a male friend, A, but this ended after around 2 years, in 2005, when his friend's mother caught them having sex in his parent's bed. A's mother beat the appellant, as did his own father. The appellant was sexually assaulted by his uncle for a second time in 2005. Thereafter the appellant had a sexual relationship with a neighbour, S, between 2007 and 2008. He also resumed his relationship with A. During 2008, A's mother caught them having sex in the back of a lorry and told everyone in the neighbourhood that the appellant was gay and misleading her son. Following this, the appellant was singled out for verbal abuse and people in his village would throw stones at him. The appellant was sexually assaulted while being given a lift by a lawyer in 2008 and was beaten and gang raped by a group of men at the end of 2008. During 2009, the appellant was caught once more having sex with his cousin and beaten. The appellant has had five same-sex relationships since arriving in the United Kingdom.
5. The Secretary of State's decision on the asylum claim is dated 18 November 2014. The respondent accepted the appellant's identity, nationality and sexuality. Nonetheless, it was thought that the appellant's credibility had been damaged by his delay in making an asylum claim. It was accepted that the LGBT community faced societal discrimination in Sri Lanka but not that this amounted to persecution. It was considered that there was no need for the appellant to live discreetly in Sri Lanka.
6. After considering relevant background information, the respondent concluded that the appellant could return to his home area and live as he had done in the past. There were considered to be avenues of redress available to the appellant, which he could attempt to use on his return. Alternatively, it was considered reasonable to expect him to relocate to avoid the those he feared.
7. The appellant succeeded before the First-tier Tribunal, on asylum and Article 3 grounds, following a hearing on 22 May 2015. That decision was set aside by Deputy Upper Tribunal Judge Shaerf on 11 August 2015 and the matter remitted to the First-tier to be heard afresh.
The hearing before the First-tier Tribunal
8. The appeal proceeded by way of submissions only. First-tier Tribunal Judge Dineen concluded that the appellant would not be at risk of further ill-treatment on return to Sri Lanka and that he could avoid his relatives and others in his home area by relocating to a town or city other than Colombo.
The grounds of appeal
9. The grounds of appeal argued that the judge erred in his findings relating to internal relocation.
10. Permission to appeal was granted on the following basis:
1. It is arguable that the judge may have applied LH and IP (gay men: risk) Sri Lanka CG [2015] UKUT 00073 (IAC) too restrictively. LH and IP did not preclude the possibility that individual claimants may succeed in showing that they are at real risk of persecutory ill-treatment. It is arguable that the judge may have failed to take account of the appellant's previous experiences in having been raped by more than one individual on account of his homosexuality in deciding the future risk, especially given his evidence that he is naturally an out-spoken person and would not choose to hide his homosexuality except for fear of persecution.
2. In addition, it is arguable that the judge may have erred by failing to consider the appellant's past experiences in deciding whether it would be unreasonable to expect him to relocate in Sri Lanka.
11. The respondent's Rule 24 response, received on 16 November 2016, indicated that the appeal was opposed. It was argued that the judge considered all the factors of the case including his outspokenness and his past ill-treatment. Mention was made of the timing of the asylum claim.
The hearing
12. For the appellant, Mr Bahja argued that the only matter in dispute was that of internal relocation, regarding which the judge did not adopt the correct approach. He emphasised that the appellant was previously living in Colombo, that he had been ill-treated there and his partner had been killed. Mr Bajha contended that the appellant wished to live as a proud gay man but that this would put him on a collision course with police and those who had harmed him in the past. It could be inferred that he would come to the attention of the authorities and suffer persecution based on what occurred in the past.
13. Mr Clarke's submissions were based on LH and IP. He argued that the grounds had taken sections of this decision out of context. At 108-110 of that decision there was a differentiation between the treatment of sex workers and gay men in general.
14. Mr Clarke could not see that the appellant would fall into one of the risk groups identified in the country guidance, that is he would go to a pick-up venue or be a sex worker. His case was based on him previously being in relationships and being raped, albeit not by the police. The reach of the appellant's aggressors was not established and he was no longer at specific risk of harm. The fact that the appellant is a Buddhist was found in LH and IP not to put him at risk. The judge's findings were consistent with the country guidance. The same guidance did not say that being an openly gay man in a city was enough to engage the 1951 Convention.
15. In reply, Mr Bahja argued that the Country Guidance did not say that no gay man is a refugee. The appellant had established past persecution; being openly gay would put him on a collision course with authorities and he was without family support or a network.
16. At the end of the hearing, I reserved my decision as to whether a material error of law had been made.
Decision on error of law
17. By the time of the hearing before Judge Dineen, there was no challenge by the respondent to the credibility of the appellant's account of having suffered many instances of serious ill-treatment by a range of individuals over a five-year period in Sri Lanka owing to his sexuality. The case advanced before Judge Dineen focused on whether the appellant remained at risk of persecution and whether it would be unduly harsh for him to relocate from his home area of Colombo.
18. In LH and IP, headnote (5) stated;
"Where a risk of persecution or serious harm exists in an appellant's home area, there may be an internal relocation option, particularly for individuals returning via Colombo from the United Kingdom."
19. The respondent's Operation Guidance Note on Sri Lanka of July 2013, version 14, was before the panel in LH and IP. The most relevant parts are as follows;
3.14.8 Conclusion: Caseworkers must refer to the Asylum Instruction on sexual orientation and gender identity in the asylum claim. Homosexuality is illegal in Sri Lanka but there is no evidence of systematic state persecution. Opportunistic targeting, societal hostility and discrimination against LGBT persons does exist and in individual cases may reach the Article 3 threshold.
3.14.9 Given the level of social hostility, internal relocation in such cases is unlikely to be a viable alternative, however the personal circumstances of the individual applicant should be carefully considered when assessing whether it would be unduly harsh to expect them to do so.
20. Considering the appellant's account of his serious ill-treatment in Sri Lanka for a 1951 Convention reason was no longer in dispute, it is fair to say that he had established that he is reasonably likely to remain at risk from a range of people known to him in his home area. As is apparent from the respondent's own guidance, internal relocation is "unlikely" to be a viable alternative where the Article 3 threshold has been reached.
21. I have also taken into consideration the guidance in Januzi [2006] UKHL 5, that "decision makers must give careful consideration to the relevance and reasonableness of internal relocation on a case-by-case basis taking full account of the individual circumstances of the particular person."
22. The judge's consideration of the internal flight alternative available to the appellant fell short of the careful consideration recommended in Januzi. While this appeal proceeded on submissions alone, I note that there was a 7-month delay between the hearing of the appeal and the decision and reasons being promulgated. Furthermore, the reasons were particularly brief. In deciding whether it would be unduly harsh for the appellant to relocate, there was no reference to the many violent acts carried out against the appellant in his home area; there is little recognition of the fact that his home area is Colombo to which removal is likely to take place; little attempt to identify a safe area of Sri Lanka; no consideration of the fact that the appellant had been rejected (and indeed persecuted) by his family and that he had no network of support anywhere in Sri Lanka. The judge did not engage with the content of the OGN, albeit he set out the relevant sections earlier in his decision.
23. The decision and reasons did not adequately engage with the appellant's evidence that he was determined to live openly as a gay man and the submission that this would put him on a collision course with the authorities. In view of the evidence in LH and IP of rapes of gay men by police; the danger identified to those using pick-up areas in Sri Lanka and attacks on the appellant's partners, one of which resulted in death, I consider the judge's reasons for finding there to be no risk of future ill-treatment to be insufficient.
24. The submissions I heard on the appellant's behalf, were not of a high enough standard for me to confidently proceed to fairly remake the decision. In view of the fact that the credibility of the appellant's account is intact, this matter is remitted to the First-tier Tribunal with favourable findings preserved. The matters which remain in issue are firstly, whether the appellant is at risk of persecution in Sri Lanka and secondly, that of whether it is unduly harsh for the appellant to relocate from his home area in Colombo.

Decision
The making of the decision of the First-tier Tribunal did involve the making of an error of on a point of law.
The decision of the First-tier Tribunal is set aside.
The appeal is remitted, to the First-tier Tribunal to be reheard at Hatton Cross by any judge except First-tier Tribunal Judge Eban, Dineen and Lever.

Directions
Those representing the appellant are to serve a detailed skeleton argument on the First-tier Tribunal and the Secretary of State which addresses any current risk to the appellant and the internal flight alternative issue. The said document is to be served no later than 5 working days prior to the rehearing of this appeal.

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 him 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

Upper Tribunal Judge Kamara