Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/12850/2011
AA/12843/2011

THE IMMIGRATION ACTS

Heard at Field House
Determination Sent
on 15 May 2013

Before

UPPER TRIBUNAL JUDGE SPENCER
UPPER TRIBUNAL JUDGE RINTOUL

Between

HAFIZ ABUBAKAR SIDDIQUE
AWAIS TALLHA

Appellants

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: Mr I MacDonald, QC, instructed by V R & Shaw Solicitors
For the Respondent: Mr P Deller, Senior Home Office Presenting Officer

DECISION AND REASONS

1. We have both contributed to the writing of this determination.

2. The appellants are citizens of Pakistan born on 19 October 1985 and 21 October 1987 respectively. They appeal with permission against the determination of First-tier Tribunal Judge Chana, referred to as “the First-tier Tribunal judge” hereafter, promulgated on 30 November 2011, dismissing their appeals against the decisions of the respondent, made on 18 November 2011, to refuse their claims for asylum and to give directions for their removal from the United Kingdom under section 10A of the Immigration, Nationality and Asylum Act 1999.

3. The appellants are first cousins. It is their case that they are gay; that they have been in a relationship for some years; that they both came to the United Kingdom to study; that they lived here together in the house of Ms Saima Tariq (sister of the second named appellant) and her husband; that they entered into a civil partnership on 1 October 2011; that their relationship and civil partnership has come to the knowledge of their families and the wider community in Pakistan; that this has put their lives in danger from their families and the wider community; and, that in consequence they face persecution on return on account of their sexuality.

4. The respondent did not accept that the appellants’ accounts were credible, due primarily to inconsistencies in their respective accounts. Although she did accept that they had entered into a civil partnership, she did not accept that it was genuine or that they were gay. Therefore she considered that they would not be at risk on return to Pakistan of ill-treatment of sufficient severity to engage either the Refugee Convention, or articles 2 & 3 of the ECHR; or, that they were otherwise entitled to humanitarian protection. She further considered that removing the appellants to Pakistan would not be a disproportionate interference with their protected rights under article 8 of the ECHR.

5. As noted above, this matter came before the First-tier Tribunal judge on 30 November 2011. Both cases were at that point within the fast track procedure. The First-tier Tribunal judge rejected a request that the appeals be adjourned to allow Ms Tariq to attend to give evidence in support of the appellants, it being explained [27] that their daughter had to go to hospital. The First-tier Tribunal judge found, in consequence, that:

i. The appellants were not and never had been gay [62];
ii. Their claim to have had homosexual experiences with each other was not credible [62];
iii. Their claim to be at risk from relatives in Pakistan was not credible [62];
iv. That they had not shown they were at risk of persecution, or mistreatment, or had been threatened by reason of being, or being suspected of being gay [62];
v. That the appellants were here for economic reasons, and that their claims to be gay were invented [62];
vi. That the appellants’ civil partnership had been entered into deliberately and opportunistically to found asylum claims [60];
vii. That although this point had not been made by the appellants [64], they had never been perceived to be gay and thus would not be at risk in Pakistan, merely because they had a certificate of civil partnership.

6. Permission to appeal was granted on 12 December 2011, and the appeals, still within the fast track procedure, then came before Upper Tribunal Judge Kebede on 19 December 2011. In a determination promulgated on 20 December 2011 she concluded that the First-tier Tribunal judge’s determination did not involve the making of an error of law.

7. The appellants then sought permission to appeal against the decision of the Upper Tribunal to the Court of Appeal. The application was refused by Upper Tribunal Judge Kebede in the Upper Tribunal and on renewal to the Court of Appeal by Sir Scott Baker. A renewed, oral application was granted on 2 April 2012 by Elias LJ but limited to what he described as “paragraph 7 of the Applicants’ Skeleton Argument, the 2 grounds advanced by Counsel today”. In effect the two grounds upon which permission was given were that the refusal to adjourn to allow the first named appellant’s sister to give evidence was unfair as the appellants were not given the opportunity to bring evidence before the tribunal and that the First-tier Tribunal judge failed to give any or any adequate consideration to the fact that the appellants had entered into a civil partnership and the consequences of it if either of the appellants returned to Pakistan. In giving his reasons Elias LJ said that he had to say that he thought it would was going to be a difficult case for Mr MacDonald to sustain.

8. The respondent conceded that there had been an error of law in the determination of the Upper Tribunal, however, and on 14 June 2012, having considered a statement of reasons, by consent the Court of Appeal allowed the appeals without considering their merits and ordered that the matter be remitted to the Upper Tribunal. Paragraph 5 of the statement of reasons provided as follows: –

“The Respondent agrees that it is arguable that the Immigration Judge (sic) arguably erred in failing to grant an adjournment to hear the Appellants’ witness evidence and failed to make findings in relation to the risk on return based on a perception of the Appellant’s claimed sexuality because of their civil partnership. It is accordingly expedient and the parties agree, that the appeal be remitted to the Upper Tribunal to reconsider (sic) the appellant’s appeal on this basis.”

9. At the outset of the hearing Mr MacDonald indicated that he did not intend to call the appellants to give evidence. He said he understood that the hearing was a hearing to re-make the decision of the First-tier Tribunal judge, particularly given the length of time the appeal had been listed for. We observed that the length of the listing was in order to accommodate further evidence in the event that an error of law were to be found in the determination of the First-tier Tribunal judge. After reference was made to paragraph 5 of the statement of reasons, set out above, the parties’ representatives agreed that the first task of the Upper Tribunal was to determine whether the two arguable grounds had been made out, in other words whether the First-tier Tribunal judge had made an error of law in her determination of the appeal.

10. In the course of argument it was agreed by both representatives that the legal framework against which our decision had to be made in relation to the first ground was as set out in the decision of the Court of Appeal in SH(Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284. The test in relation to whether the First-tier Tribunal judge should have adjourned the hearing is not whether the decision not to adjourn was properly open to her or was Wednesbury unreasonable or perverse but whether fairness demanded an adjournment. Moreover we would need to set aside a determination reached by the adoption of an unfair procedure unless we were satisfied that it would be pointless because the result would inevitably be the same. In determining each question we could look at evidence postdating the date of the determination.

11. In relation to the first ground Mr MacDonald accepted that the First-tier Tribunal judge had correctly directed herself as to the law in deciding whether to grant an adjournment in paragraph 29 of her determination, but asserted that it was unjust for the First-tier Tribunal judge to determine the appeals without giving the appellants the opportunity to have Ms Tariq, a person in whose house they had been living, give evidence in their support. Her evidence was relevant since the case of the appellants was that she had telephone her mother about the appellants’ relationship both before and after the civil partnership ceremony. He conceded that the husband of Ms Tariq, Mr Arif Hussein, had given evidence but submitted that he had only attended the hearing to produce the appellants’ rings and had been questioned on that subject only. He suggested that it was an injustice for the First-tier Tribunal judge to have prevented an important witness from giving evidence in appeals which were in the fast track system. In relation to the statement by the First-tier Tribunal judge that the appellants had not produced any evidence that their witnesses had to attend hospital, he submitted that it would have been worthwhile for the First-tier Tribunal judge to wait for a medical certificate.
12. In connection with Mr Macdonald’s suggestion that there was some overlap between the two grounds of appeal, any connection lies in the fact that Ms Tariq’s evidence would have been relevant to the issue of whether the fact of the appellants’ civil partnership had been communicated to their families in Pakistan. We can see from the statements which have now been served by her and her husband, dated respectively 9 April 2013 and 13 May 2013, that neither Ms Tariq nor her husband provided any evidence which could be said amount to independent support of the existence of a homosexual relationship between the appellants, apart from their evidence about the civil partnership, at which ceremony they were present.

13. Mr Deller acknowledged that there was some overlap between the first and second grounds, although he suggested that it was slight. He submitted that the First-tier Tribunal judge had correctly directed herself in law by reference to the fast track rules; she had considered the merits of the application and had given adequate reasons for her decision. It was a decision which was properly open to her in the sense that it satisfied the requirements of legal fairness and was properly made in the interests of justice.

14. In considering whether the first ground of appeal is made out, there are a number of matters which have come to light as a result of the further evidence served on behalf of the appellants. The application for an adjournment was made for three reasons, of which we are concerned with the second only. The first was that an expert report was needed and the third was the appellants had not had sufficient time in which to instruct counsel. The second reason advanced was that Ms Tariq and her husband could not attend as they had a daughter and had to go to hospital. This supposed an intention to call them both as witnesses. In paragraph 11 of his witness statement, dated 13th May 2013, however, Mr Hossain stated that on the date when the appeals were listed for hearing “… the solicitor acting for them [the appellants] had told me that I was not required to attend the hearing as there was no need for me to do so.” Mr MacDonald was not able to given an explanation for this as those instructing him on the appellants’ behalf were different from those acting at the date of the hearing before the First-tier Tribunal.

15. On the contrary, the explanation offered by the appellants’ previous representatives in their letter, dated 15th May 2012, to the Treasury Solicitors’ Department differed from the reason given by Mr Hossain and that given at the hearing for their non-attendance. It was said that the child of Ms Tariq and Mr Hussain had a high temperature and they were advised by a relative to give the child some calpol syrup and monitor her condition before taking her to the family GP. Nothing was said about whether the child was taken to the GP.

16. Although, as indicated above, Mr MacDonald suggested that the First-tier Tribunal judge should have waited for a medical certificate, none has ever been forthcoming, even by the date of the hearing before us.

17. It is also the case that Mr Hussein did attend the hearing and give evidence, as is obvious from the determination. In paragraph 11 of his witness statement, referred to above, he said that between 12.00 and 1.00 o’clock that day he received a call from the appellants’ solicitors asking him to take to the Tribunal the rings which the appellants had exchanged at the civil partnership ceremony and he did so. Given that the determination of the First-tier Tribunal judge did not contain a summary of Mr Hossain’s evidence, we thought it right to extract from the file her note of his evidence and make it available to the parties’ representatives and give them the opportunity of considering it, taking instructions upon it and making representations about it. It is apparent from the note of Mr Hussain’s evidence that it went beyond the question of the rings, because he was asked in cross-examination about a number of matters.

18. The evidence which it is now said was important, was evidence that Mr Hussain told Ms Tariq to telephone her mother and tell her about the appellants’ relationship, which she did in his presence. This was the channel by which, so far as Ms Tariq’s family was concerned, it was said, the appellants’ sexual orientation became known in Pakistan. It is odd, to say the least, that if the expectation was that Ms Tariq and Mr Hussain were to have attended the hearing but were prevented from doing so by the unexpected illness of their child, when he did attend Mr Hossain was not asked about this telephone conversation in evidence in chief. Moreover if Mr Hossain was able to attend the hearing after all, there seems to have been no good reason why Ms Tariq could not have attended, even if it meant Mr Hossain returning to look after the child, to give whatever evidence was required.

19. In the absence of confirmatory evidence that Ms Tariq and Mr Hossain were unable to attend we do not think that it was unfair of the First-tier Tribunal judge to have refused to adjourn the hearing. We are not persuaded that the appellants were deprived of the opportunity of relying upon the evidence of Ms Tariq by the failure of the First-tier Tribunal judge to adjourn the hearing because the indications are that prior to the request for an adjournment no attempt had been made to ensure her attendance at the hearing.

20. If we were wrong in this regard it would be necessary to consider whether the result would inevitably have been the same if Ms Tariq had given or were to give evidence.

21. The essence of Ms Tariq’s evidence, as it appears from her witness statement, dated 9th April 2013, is that when the appellants arrived in the United kingdom in July 2010 they were offered a bedroom in her home in which they shared a bed. In April 2011 her brother, the appellant Tallha, told her that he was in a gay relationship with her cousin, the appellant Siddique. She asked Saddique if it was true and he confirmed that it was. That evening she told her husband who was very shocked and angry. The next evening he told her to telephone her mother in Pakistan and tell her about the appellants’ relationship, which she did in his presence. Her mother became hysterical and blamed her for what had happened and when her uncle’s wife took the phone she also told her. Her husband decided to throw them out of the house but had them back because they were living in bad conditions. They had no choice but to go along with their wishes regarding entering a civil partnership and they attended the ceremony and a meal in a restaurant with the appellants afterwards.

22. The credibility of Ms Tariq’s evidence would have to be judged in the light of the remainder of the evidence. The First-tier Tribunal judge concluded that neither appellant was credible on the grounds, that:

i. the appellants could not recall when their relationship had begun, whether it was the second named appellant’s 19th or 20th birthday [39];
ii. the first named appellant could not recall when asked in interview when he first kissed the second named appellant yet was able to do so in his evidence at the appeal hearing [40];
iii. there were inconsistencies between the appellants’ accounts as to when the second named appellant had first kissed the first named appellant [41]; the second named appellant said that he had not had any sexual feelings towards nor kissed a man before he watched a pornographic film with the first named appellant on his birthday but the first named appellant’s account was that he and the second named appellant used to kiss romantically and do other things before that birthday,
iv. there were inconsistencies as to the circumstances and the house in which the appellants claimed they first had sex together[42] and inconsistencies as to who sourced the pornographic film they watched [44];
v. there were inconsistencies as to how the appellants conducted their relationship at college, the [48]; why the appellants had stopped studying at college [49]; inconsistencies as to their hobbies [51-52] despite having been together for six years; inconsistencies as to when Ms Tariq found out about their relationship [53] and inconsistencies as to how the appellants’ parents found out about the relationship [56]; initially the first named appellant said he telephoned his parents and told them, then he said Ms Tariq had done so and then he said a friend, Asif, told them.
vi. there were inconsistencies as to who had been living in Ms Tariq and Mr Hussain’s house and why the appellants had to share a room [57];
vii. there was an absence of any credible explanation for why Ms Tariq would tell her (and the second named appellant’s) parents about the relationship when she knew they would disapprove [54]; or, why, if threats had been made as a result, she would then contact the appellants’ parents to tell them about the civil partnership [55];
viii. when describing the rings they had exchanged at their civil partnership ceremony, the first named appellant said his ring was silver with blue and red stones and the second named appellant’s was black with a red stone, but the second named appellant said his ring was a gold band and the first named appellant’s ring was a silver band [46];
ix. when the rings had been produced in court, they did not match the descriptions given yet the appellants identified them as the rings they had exchanged and worn; further the second named appellant’s ring was clearly too small to fit his finger[47].

23. The point made by the First-tier Tribunal judge, that there was an absence of any credible explanation for why Ms Tariq would tell her (and the second appellant’s) parents about the relationship when she knew they would disapprove applies equally to Ms Tariq’s evidence. Moreover it is significant that she made no mention in her witness statement of having telephoned her mother and informed her that the appellants had entered into a civil ceremony, which the appellants claimed she had done and which the First-tier Tribunal judge found not to be credible [55].

24. In relation to the note of Mr Hussain’s evidence made by the First-tier Tribunal judge, Mr MacDonald made the point that it had not featured in any previous hearing and he was not certain anything was to be gained from it in determining whether there was an error of law in the determination of the appeal. We do not think that the fact that the note was not previously mentioned is a reason for us not to take it into account. Although it was produced by to the parties’ representatives on the morning of the hearing, we granted a short adjournment so that the parties’ representatives could consider it and neither asked for more time. Mr Macdonald had the opportunity of taking instructions upon it and although he described it as scant he did not suggest that it was not accurate.

25. A significant aspect of the evidence of Mr Hossain in the First-tier Tribunal, was that when he was asked in cross examination whether the family in Pakistan knew about the appellants’ relationship, he said they were very upset and had disowned them. He said he did not know how they found out.

26. Furthermore in evidence in chief, when Mr Hossain was asked what his reaction was to learning about the appellants’ relationship, he said that he had been brought up in this country. He was broadminded. His thinking was different and they were entitled to live their lives. This is in stark contrast to Ms Tariq’s claim that when she told her husband he was shocked and angry.

27. In these circumstances we take the view that had the First-tier Tribunal judge considered the evidence of Ms Tariq, the conclusion that the appellants’ claim to be homosexual (and necessarily to be in a homosexual relationship with each other) was an invention and a ploy to remain in the United Kingdom [62] and her finding that they had deliberately and opportunistically entered into a civil ceremony in order to lay the basis for their asylum claim [60] would inevitably have been, the same.

28. In reaching this view we have taken account of any evidence which Ms Tariq would have been able to give had there been an adjournment in the fast track system. This evidence would not have included evidence about allegedly transpired during the trip she made with Mr Hossein to Pakistan in February 2012. Even if it had been, however, we take the view that the inevitable conclusion would have been that the she and her husband were parties to the fabrication of the claim, so that none of their evidence could be relied upon.

29. So far as the second ground of appeal is concerned, in his skeleton argument Mr MacDonald set out paragraph 82 of the judgement of Lord Rogers in HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31, the first sentence of which said that when an applicant applied for asylum on the ground of a well-founded fear of persecution because he was gay, the tribunal must first ask itself whether it was satisfied on the evidence that he was gay, or that he would be treated as gay by potential persecutors in his country of nationality. In his submissions to us Mr MacDonald asserted that the First-tier tribunal judge gave no consideration to what would be perceived in Pakistan as a result of the appellants having entered into a civil partnership. A civil partnership was a public avowal by two persons of the same sex saying that they wished to live together in an intimate relationship. There was evidence that the news of the civil partnership had been relayed to the family in Pakistan. Mr Macdonald submitted that the First-tier Tribunal judge had missed out 50% of the question which was required to be asked in the formula set out by Lord Rogers. There was no-where in her determination a direction relating to the risk of the appellants being perceived as homosexuals in Pakistan. He submitted that there could be such a perception arising from the civil partnership even if the appellants were not homosexuals.

30. Mr Deller submitted that this aspect of the appellants’ claim stood or fell depending upon what ramifications the fact that they had entered into a civil partnership would have in the light of the question whether the civil partnership has come to anyone’s knowledge in Pakistan. The finding of the First-tier tribunal judge was that it was not credible that the fact that the appellants had entered a civil partnership had been communicated to the appellants’ families in Pakistan.

31. It seems to us that the situation could be said to be an analogous to a sur place claim, where an applicant has fabricated a claim for asylum by, for example taking part in demonstrations outside his country’s embassy without any commitment to the oppositionist cause, but who nonetheless on that account was said to be at a real risk of serious harm on return. The deciding factor in such a case would be whether his activities would be likely to have come to the attention of the authorities in the country of return.

32. The determination of the First-tier Tribunal judge did not contain a direction in the terms set out by Lord Rogers. She did deal, however, as a matter of fact, with the issue whether the appellants would be perceived as being homosexuals in Pakistan and thus be treated as gay by potential persecutors in their country of nationality. In paragraph 62 of her determination she said that she did not accept their claims to be at risk from their relatives in Pakistan or that they feared persecution or mistreatment or had been threatened by anyone by reason of being homosexual or of being suspected of being gay. It is the case that the direction in relation to whether the appellants would be treated as gay by potential persecutors by reason of the civil partnership should it become known and the risk of it becoming known could have been better expressed. In paragraph 64 of her determination, the First-tier Tribunal judge said that for the sake of completeness she considered whether the fact that the appellants had entered into a civil partnership, albeit not a genuine one, would have an adverse impact upon their return to Pakistan. She said she had found that they were not homosexuals and had never been perceived to be such and therefore they would not be at risk in Pakistan from anyone merely because they had a certificate of civil partnership.

33. The reality of the situation, however, is that the First-tier Tribunal judge clearly did not believe that the appellants’ families in Pakistan had been informed that they had entered into a civil partnership. She did not believe that Ms Tariq would have told her mother that they had done so. There is no reason to suppose that on return the appellants would wish to reveal that they had entered into a civil partnership, which on the finding of the First-tier Tribunal judge, was not reflective of a genuine homosexual relationship. If they did so they could not be expected to lie and when asked why they had done so would be obliged to say that they were not homosexuals and it had been done in order to found a false claim for asylum.

34. In these circumstances we are satisfied that had the First-tier Tribunal judge posed the question exactly as set out by Lord Rogers, on the facts as she found them, the inevitable answer would have been in the negative and if she had asked whether they was any realistic chance of it becoming known in Pakistan that the appellants had entered into a civil partnership the inevitable answer on the facts as she found them would also have been in the negative.

35. In these circumstances, for the reasons which we have given, the First-tier tribunal judge did not make an error of law which warrants her determination being set aside and accordingly we dismiss the appeal to the Upper Tribunal.

Signed Date

P A Spencer