Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01462/2014

THE IMMIGRATION ACTS

Heard at Birmingham City Centre Tower
Decision & Reasons Promulgated
On 19 October 2016
On 20 October 2016

Before

UPPER TRIBUNAL JUDGE PITT

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

LB
(ANONYMITY ORDER MADE)

Respondent

Representation:

For the Appellant: Mr D Mills, Senior Home Office Presenting Officer
For the Respondents: Ms E Rutherford, instructed by TRP Solicitors

DETERMINATION AND REASONS
The Appeal
1. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I continue the anonymity order made by the First-tier Tribunal. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. I do so in order to avoid a likelihood of serious harm arising to the appellant from the contents of the protection claim.
2. This is an appeal against the determination dated 16 June 2016 of Designated Immigration Judge McCarthy and First-tier Tribunal Judge Grimmett which allowed appellant's appeal against deportation on the basis that she was found to be a refugee.
3. For the purposes of this appeal I refer to the Secretary of State for the Home Department as the respondent and to LB as the appellant, reflecting their positions before the First-tier Tribunal.
4. The grounds of appeal were as follows (verbatim):
"Failing to give reasons, or adequate reasons for finding on a material matter
It is respectfully submitted that the Panel of the FTTJ have failed to give adequate reasons for their positive finding in relation to the appellant's sexuality and subsequent risk on return to Jamaica. It is asserted that they have based their conclusions purely on the evidence of the appellant's alleged ex partner LH and in doing so have neglected to consider the credibility issue raised both in the RFL and highlighted in the determination at paragraphs 17-20.
It is asserted that the Panel have failed to look at the evidence holistically and balance the extensive issues of credibility including the fact of a number of witnesses were found to have given completely contradictory evidence against the evidence given by LH. It is respectfully submitted that the substantial errors in evidence is indicative of a manufactured claim and it is incumbent upon the FTTJ to give reasons for why they are satisfied these errors in witness evidence and fabrications [17-20] by the appellant have not been found to be material to the outcome. They have failed to do so and as such it is asserted that their findings are therefore misdirected and the determination in error."
5. Permission was granted on 1 August 2016 by Upper Tribunal Judge Kekic.
6. It was not my conclusion that the grounds made out an error on a point of law for the following reasons.
7. At [13], at the outset of their findings, the Tribunal specifically indicates that it made the credibility findings only after considering "the evidence as a whole" i.e. holistically.
8. The Tribunal reminds itself at [15] of the possibility of some parts of the account being credible and others not. It is difficult to see, certainly materially so, how the First-tier Tribunal can be said to have been unaware of the need to bear in mind all aspects of the evidence, both positive and negative, when reaching their conclusions, given that additional self-direction.
9. At [17]-[20] adverse credibility findings are made concerning the claim by the appellant to have manifested her sexual orientation at a young age and to have been perceived as a lesbian in Jamaica before coming to the UK in 2000. The panel found this to be so because she had been in heterosexual relationships in Jamaica, because the written evidence in unsigned letters was not sufficiently reliable to make out this part of the case and because there would be no reason for this perception to have arisen given that the applicant specifically did not claim to have been in same-sex relationships before coming to the UK.
10. The respondent's argument is that having found the applicant and some of her witnesses not to be reliable regarding her profile in Jamaica, this should have been weighed more heavily when deciding whether the evidence about her being in a genuine lesbian relationship with LH in the UK was credible.
11. Read fairly, the First-tier Tribunal gave a rational and adequate explanation for finding the relationship with LH and the appellant's sexuality credible. Although the account of her activities and perceived profile whilst in Jamaica was not accepted, the decision is clear as to the evidence of LH and supporting written and oral evidence of CW and SG, the appellant's siblings, being sufficient to make out the claim on the appellant's sexuality. Having made those clear and rational findings and having indicated that the evidence was assessed holistically it was not incumbent on the panel to state in terms that the credibility findings on the "Jamaican" part of the claim were not sufficient to undermine the "UK" part of the claim.
12. In addition, although it was not found that the appellant was perceived to be lesbian in Jamaica before she left in 2000, this was not necessarily something that was fatal to the evidence of SG and CW, relied on by the panel at [22] as capable of supporting the claim to have been in a relationship with LH. SG and CW provided witness statements and gave oral evidence to the Tribunal, putting the panel in a good position to judge their credibility on the relationship with LH whatever was said about the appellant when she was in Jamaica.
13. Further, [22] makes it clear that a significant aspect of the positive finding on the relationship with LH was the evidence of LH herself, stating "The evidence of LH was very persuasive being clear and detailed." That was a finding open to the panel, additionally so as the evidence of LH relating only to events in the UK and not being capable of being undermined by referring to events in Jamaica and the negative credibility findings. that were found not to have occurred. That was also true regarding the evidence of the appellant's brother, CW, whose written evidence did indicate that he knew or heard that the appellant was perceived to be lesbian when she was in Jamaica.
14. It is my conclusion that the decision assesses the material evidence within the correct legal framework and does not disclose a legal error, the grounds really seeking to disagree with the weight put by the panel on the evidence of the core aspect of the claim, the relationship with LH.
Decision
16. The decision of the First-tier Tribunal does not disclose an error on a point of law such that it should be set aside and shall stand.

Signed: Date: 19 October 2016
Upper Tribunal Judge Pitt