Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13338/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 November 2016
On 24 November 2016

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

A N
(Anonymity direction made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms G Peterson, Counsel, instructed by Duncan Lewis & Co Solicitors
For the Respondent: Mr P Armstrong, Senior Home Office Presenting Officer
DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 I make an order prohibiting the disclosure or publication of any matter likely to lead members of the public to identify the respondent. Breach of this order can be punished as a contempt of court. I make this order because the Appellant is an asylum seeker and it publicity might create a risk for her that would not otherwise exist.
2. This is an appeal by a citizen of Uganda against a decision of the First-tier Tribunal dismissing her appeal against a decision of the respondent refusing her asylum, humanitarian protection or leave to remain in the United Kingdom on human rights grounds.
3. Permission to appeal was given by Upper Tribunal Judge Hanson, who said:
"The claim is based upon a real risk on return as a lesbian.
The grounds assert the Judge 'closed his mind' to the credibility of the claim in relation to sexual identity as a result of the adverse credibility findings made in relation to the claim relating to events in Uganda. It is also asserted the Judge failed to consider relevant evidence from Ms Jo Foster and failed to give adequate reasons."
4. In order to explain my decision, I summarise Ms Peterson's arguments as being the contention that the First-tier Tribunal Judge's finding that the appellant is not in fact gay showed unlawfully little regard for apparently credible and informed independent evidence supporting her case.
5. With that introduction in mind I now consider the First-tier Tribunal Judge's decision.
6. He began by noting that the appellant had applied for entry clearance as a visitor in March 2004. She said that she wanted to visit her brother N? M? and when she listed her family members at an asylum interview N? M? was not mentioned.
7. On 16 January 2006 she applied for admission as the family member of an EEA national when she identified her brother as M? B? She produced correspondence purportedly from her brother in which he signed himself Uncle M. She made a further application for a family visitor in May 2012 when M? B? was again identified as her brother and sponsor. In support of that application she said that she was a married woman with two children who would remain in Uganda when she visited her brother.
8. She supported the application with a marriage certificate and birth certificates for the two children. Her appeal against refusal was supported by an argument in which she asserted that she had a job and family in Uganda. This claim was expressly supported by her brother M? B? in a statement relied on at the appeal. A witness identified as M? B? gave evidence at an appeal hearing and repeated that the appellant had a husband, children and a job in Uganda. He had an explanation for being known as "Uncle M" which the Tribunal doubted but the appeal was allowed because the Judge was satisfied that the appellant had a family life and a job in Uganda.
9. Her alleged brother was unable to explain in answer to explain why the applicant had said untruthfully that she had not previously been refused a visa.
10. In her claim for asylum she said that she feared serious ill-treatment because she is a lesbian.
11. She explained how she had become attracted to women as an adolescent and had her first relationship with one H? S? while studying at an educational institute.
12. She told her mother about her feelings. The news was received badly and relationships within the family began to break down. She explained how her brother M had encouraged her by providing a home where she could stay for a while and suggested that she should run away. She removed with her lover to a village but was traced and they were attacked and beaten. She was threatened with death if she did not renounce her relationship. Her documents including her passport and photographs were destroyed. She and her lover ran away. They lost contact on the night they ran off. The appellant got a job as a housemaid for three years.
13. Her claim was supported with a statement from her brother M? B? that he had invited her to the United Kingdom to help her escape.
14. The appellant relied on an expert report (curiously described as an 'Expert' Report in the Decision and Reasons) by one Dr Phyllis Turvill prepared under the auspices of the Helen Bamber Foundation.
15. It was Dr Turvill's opinion that there were marks on the appellant's body "consistent with" that attribution given to them by the appellant, and certain others were "highly consistent" with the appellant's attribution." The Judge noted that this led the doctor to the conclusion that the overall scarring "accords with the account" given.
16. The Judge noted that in the account given to the doctor the appellant had said that she was the youngest of a large family consisting of four sisters and four brothers. During her screening interview she had referred to only three brothers and two sisters. She had been asked to set out their names and dates of birth.
17. The Judge then noted the appellant's bundle of documents comprising witness statements. The Judge did not believe that the appellant was a lesbian or that she had been persecuted for being a lesbian in Uganda.
18. The Judge noted that it was the essence of the appellant's case that with the person known as M? B? and described variously as her brother and uncle she had conspired to, and did, obtain entry clearance as a visitor as a consequence of a very detailed application supported by a range of forged documents purporting to show that she had a husband and children in Uganda. One of the documents is a sworn statement that the appellant intended to return to Uganda at the end of the visit. It was also an apparently clear fact in the case that, notwithstanding the claim now made that the basis of entry into the United Kingdom as a visitor was an application devised for her own protection, the appellant did not claim asylum on arrival in the United Kingdom in February 2013 but she waited until April 2013.
19. Additionally the Judge noted what he described as the appellant not being "consistent in the account that she has given of her sexual history". She had said in her asylum interview that she had an intimate relationship when she was at school with a girl called S? and had said in her statement that her first relationship was at the vocational institute with one H? The girl S?, allegedly her first intimate partner, was not mentioned in either her statement or her interview with the Helen Bamber Foundation.
20. The Judge also found the appellant incredible because she could not remember when she was attacked and beaten. It was the Judge's view that she would have been able to remember at least approximately when such a significant event took place.
21. He also found parts of the account of her attack to be inherently unbelievable and he explained this view.
22. The Judge then found an inconsistency between the appellant saying in her witness statement that her family had disowned her because she had "come out" at a time when, according to the appellant, her "Uncle Michael" was in contact with her.
23. The Judge then considered the appellant's alleged relationship with one H? R? The appellant said that she had met H? R? when she was at Yarl's Wood and that they had had a sexual relationship "it turned out from the Appellant's oral evidence, that she had only spent a long weekend with H". The appellant had referred to staying in the same house as H? R? for four days but in H? R?'s statement H? R? had said that the relationship had lasted for more than six months and they did spend four days together.
24. The Judge accepted that some sexual relations had taken place but did not accept that the appellant was a lesbian. The Judge clearly thought it possible that the appellant had staged a sexual encounter with H? R? to bolster her case.
25. The Judge then considered the evidence of one Jo Foster, who works as a counsellor with a lesbian support group known as "Women on Women" or "WoW". He was impressed with Jo Foster, describing her as a "totally genuine witness" and according to the Judge's note she had said "I am not aware of any relationship the appellant has had with women other than friendship within the group".
26. This was clearly used as one of the reasons for finding that the appellant had not shown herself to be a lesbian.
27. It is the main contention of the appellant that this part of the decision does not consider properly the evidence of Jo Foster. It will not be possible to ascertain now precisely what Ms Foster may or not have said in answer to questions but her written statement is before me in the form of a letter. She refers there to the appellant contemplating killing herself "because she is a gay woman". Read strictly, this could be no more than Ms Foster recording how the appellant described herself. It does not strictly show that Ms Foster endorsed that description. However, later in the statement Ms Foster said: "I hope too that she will be able to fully be herself as a gay woman and allow some part of these wounds she has experienced to heal". I cannot read that without concluding that Ms Foster identified the appellant as a gay woman and formed that view after some prolonged detailed contact.
28. Further, she says in the statement that she understood the appellant to have gone to a "LGBT Positive Church in Manchester when she went there with her girlfriend in November 2013, who she had met in Yarl's Wood."
29. The Judge said at paragraph 66 of his decision:
"I find it significant that the appellant does not necessarily remember certain other members of the group with whom she has been photographed, and that the witness, Miss Jo Foster, did not actually state that she knew the appellant to be a lesbian."
30. It is not immediately clear to me how anyone can "know" the sexuality of another human being. At the very highest a person might be able to comment on part of it. Ms Peterson emphasised, and she was right, that Ms Foster is an apparently credible and experienced witness and it is impossible to read her statement without seeing it as an endorsement of the appellant's claim to be gay.
31. It was also a generally supporting statement signed by several people from WoW. This has not been mentioned expressly.
32. The essence of the appeal before me is that although the Judge has given many reasons for disbelieving the appellant he has not had proper regard to the potentially crucial witness evidence from Jo Foster. He has misunderstood that evidence. Contrary to the decision Jo Foster did know that the appellant had a gay girlfriend outside the friendship group at WoW and did endorse her claim to be gay.
33. It is trite law that the appellant might be both a liar and a refugee. Without wishing to bind any future decision maker, if the appellant in fact is gay her claim to be at risk of persecution in Uganda will have to be taken very seriously.
34. Although I have listened carefully to Mr Armstrong's submissions and read the determination carefully because that is the key to it all, I have to find that the First-tier Tribunal has erred in law. Although there are lawful reasons given for disbelieving the appellant in many respects the evidence that matters here, arguably, is not the evidence of the appellant at all but the evidence of Jo Foster. Jo Foster, contrary to the findings of the Judge, as I read her evidence, did state that she knew the appellant to be a lesbian. She had not used those words but she described her as being "gay" and one of the references, as I read the evidence, was not simply quoting what the appellant had said but indicating her own view. Jo Foster is not only credible but also experienced. I am satisfied that the Judge mangled her evidence and the consequence is that the decision is unsound and I set it aside.
35. It will have to be heard again. The fact that the First-tier Tribunal has, in my judgment, given proper reasons for making general adverse credibility findings is not binding. Credibility assessments need to be made in the round and when the case is heard again none of the existing findings will be carried forward.
36. I make it clear that if Ms Foster is called to give evidence the First-tier Tribunal Judge will not have to find her a credible witness and it is entirely rational to find a witness to be truthful but wrong. The difficulty here is that she has not been found to be wrong but she has been misunderstood and I cannot avoid finding that this undermines the determination as a whole.
37. Having found an error of law I cannot remedy it. The case has to be heard again and as the effect of my decision is that the decision of the First-tier Tribunal was unfair it needs to go back to the First-tier Tribunal to be decided again.
Notice of Decision
38. The appeal is allowed.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 23 November 2016