AA/13323/2015

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The decision


IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13323/2015


THE IMMIGRATION ACTS


Heard at Field House
Decision sent to parties on
On 23rd January 2017
On 8th February 2017



Before

UPPER TRIBUNAL JUDGE GLEESON


Between

the Secretary of State for the Home Department
Appellant

and

H K (Pakistan)
(anonymity DIRECTION made)
Respondent

Representation:

For the Appellant: Ms A Fijiwala, Home Office Presenting Officer
For the Respondent: Mr J Dhani, Counsel instructed by AH Solicitors

DECISION AND REASONS
Anonymity
I make an anonymity order pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008: unless the Upper Tribunal or a court directs otherwise, no report of these proceedings or any form of publication thereof shall identify the original claimant or his spouse, whether directly or indirectly. This order applies to, amongst others, all parties. Any failure to comply with this order could give rise to contempt of court proceedings.
1. The Secretary of State appeals with permission against the decision of the First-tier Tribunal at Birmingham allowing the claimant's appeal against her decision to refuse him international protection, either asylum or humanitarian protection, for leave to remain in the United Kingdom on human rights grounds on the basis of his status as a homosexual from Pakistan.
2. The undisputed facts are that the claimant is indeed gay, that he is married to his partner, Mr Shah, whom he married on 27th February 2015, and that this is durable relationship and the parties both live together. However, the First-tier Judge fell into error by failing to consider the last two questions at [35] in the opinion of Lord Rodger in HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31, with whom Lord Hope, Lord Walker, Lord Collins and Sir John Dyson SCJ agreed, that is to say, how the parties would behave on return to Pakistan and why, and then to follow the steps which are set out before completing the analysis of the risk on return.
3. For that reason, this decision does contain an error of law and will be set aside and remade in the First-tier Tribunal with the findings that the claimant is gay and is in a durable, married relationship with his gay partner, also a Pakistani citizen, being expressly preserved.
4. The First-tier Tribunal did not make an anonymity direction, but this is an asylum appeal and I consider that it is appropriate for the Upper Tribunal to direct anonymity. I make an anonymity direction.
Conclusions
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law. I set aside the decision. The decision in this appeal will be remade in the First-tier Tribunal on a date to be fixed.


Signed: Judith A J C Gleeson Date: 7 February 2017
Upper Tribunal Judge Gleeson