Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/05599/2016

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On Thursday 2 February 2017
On 8th February 2017

Before
UPPER TRIBUNAL JUDGE SMITH

Between

MS SOLONGO BIBISH

Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Usman, Solicitor, Gill Law Chambers
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
No anonymity order was made by the First-tier Tribunal. There is no good reason to make an anonymity direction in this case.

DECISION AND REASONS

Background
1. The Appellant appeals against the decision of First-tier Tribunal Judge Chapman promulgated on 6 June 2016 ("the Decision"). By the Decision the Judge dismissed the Appellant's appeal against the Respondent's decision dated 10 February 2016 refusing her leave to remain on human rights grounds on the basis of a same-sex relationship.
2. The facts of the Appellant's case are not in dispute. She is a national of Mongolia as is her partner. The Appellant entered the UK with her partner (on her case) in September 2005 unlawfully using a false passport. She made an application for leave to remain in May 2012 on compassionate grounds based on her same-sex relationship. That was refused in July 2013 with no right of appeal. When a removal decision was made in January 2016 she repeated the claim leading to the Respondent's decision under appeal.
3. The Appellant claims that she and her partner were in a relationship in Mongolia but were cautious about disclosing their feelings due to the culture of hate against lesbians in that country. She also claimed that she has no ties with her family who have ostracised her on account of the relationship and she says that she and her partner would be discriminated against on return. The Appellant does not claim to have been subject to persecution on account of her relationship in the past. She has not made a protection claim. She was invited to do so by the Respondent's letter but has not done so since.
4. Rather curiously, the Respondent did not reach any conclusion whether the relationship which the Appellant claimed did or does in fact exist. This appears to be because, although Mr Usman submitted that the Appellant's partner was dependent on the Appellant's application, the section of the claim dated 21 January 2016 relating to dependents states "N/A". It may be that the Appellant included her partner as dependent in the earlier application but, as noted by the Respondent in her decision letter, she did not claim in January 2016 that she had a partner in the UK.
5. The Respondent did not dispute though the fact that the Appellant is a lesbian. She therefore considered the claim on the basis whether return to Mongolia would interfere with her private life. She concluded, based on background information, that whilst there is societal discrimination against same-sex partners in Mongolia which can include harassment, abuse and some violent incidents, nonetheless homosexuality has been legal since 1961. She observed, as I have already noted, that the Appellant did not claim asylum and did not report having suffered any ill-treatment in the past on account of the same-sex relationship which she and her partner were able to conduct in Mongolia. She therefore rejected a claim that there would be "very significant obstacles" to the Appellant's integration in Mongolia and decided that there were no very compassionate factors which required consideration outside the Immigration Rules ("the Rules").
6. The Appellant asked for her appeal to be determined on the papers. In support of her case she produced a witness statement dated 8 April 2016 which I refer to below, a number of bank statements and a number of photographs (undated) said to be of her and her partner. Although she says in her statement that she continues to reside with her partner, there was no statement from her partner.
7. The Judge accepted that the Appellant is a lesbian and that she has been in a relationship with her partner before coming to the UK and remains in that relationship although he did note the paucity of evidence in this regard ([14] of the Decision). He noted the basis on which the claim was made and the difficulties which the Appellant said would confront her if forced to return to Mongolia. He noted the background information relied upon by the Respondent. He noted also that the Appellant had not made an asylum or protection claim.
8. The Judge considered the Appellant's case within the Rules and outside them at [15] to [33] of the Decision. He concluded that there were not "significant obstacles" to her integration in Mongolia ([18]) and went on to conclude at [33] that the decision to remove the Appellant was proportionate.
9. Permission to appeal was granted by Upper Tribunal Judge Bruce in the following terms:-
"The Tribunal found there not to be "very significant obstacles" to integration on the basis that the Appellant was able to establish her same-sex relationship whilst in Mongolia [at 18]. This conclusion was arguably reached without having regard to the earlier finding that the Appellant and her partner had felt compelled to leave Mongolia because of the "culture of hate against lesbians" in that country. It is further arguable that in invoking refugee and Article 3 considerations the Tribunal applied the wrong tests.
Permission is granted on all grounds"
In passing, I infer that the earlier finding to which Judge Bruce intends to refer is at [6] of the Decision although I note that this sets out the Appellant's evidence rather than being a finding. I can find no other finding to that effect.
10. The appeal comes before me to determine whether there is an error of law in the Decision and if so to either re-make the decision or remit to the First-tier Tribunal to do so.
Grounds and submissions
11. Before turning to consider the substance of the Appellant's grounds, I deal with the Respondent's assertion that the Tribunal does not have jurisdiction to consider the appeal on the basis on which UTJ Bruce granted permission because this was not one of the Appellant's pleaded grounds. I disagree. Although [5] of the Appellant's grounds is not precisely on this point and is certainly not formulated in the same way, it does take issue more generally with the basis on which the Judge found that the Appellant could continue her relationship in Mongolia.
12. In relation to this ground, Mr Usman drew my attention to what is said at [3] to [5] of the Appellant's statement concerning the problems she would face in Mongolia. I refer to that below. Mr Usman did not dispute though that the Judge's summary of that evidence at [6] to [7] of the Decision is an accurate record of that evidence. He submitted that the Appellant was forced to leave Mongolia because she was "not comfortable" with continuing her relationship in Mongolia. He did though accept in response to a question from me that "not comfortable" could not be equated with there being "very significant obstacles" to continuing that relationship in Mongolia.

13. Mr Usman accepted that the Appellant had not suffered any actual ill treatment as a result of her relationship whilst in Mongolia. He submitted however that this was because she and her partner had conducted the relationship discreetly or in secret. He relied on what was said in her evidence about being "very cautious in letting our feelings be known". He submitted that the Judge had misunderstood the impact of that evidence.
14. In light of the pleaded formulation of ground [5], I pressed Mr Usman about why the Appellant contended that the Judge had erred in his approach to the background evidence. He accepted that the Appellant had not submitted any background evidence of her own to undermine the evidence on which the Respondent relied. He also accepted that the Judge was entitled to have regard to that material when deciding the Appellant's case.
15. Mr Usman also submitted that the finding at [32] of the Decision was not open to the Judge on the evidence. This forms part of the Judge's consideration of the Appellant's case outside the Rules and that therefore brings me on to the other parts of the grounds which challenge that consideration.
16. Mr Usman referred me to [1] to [3] of the grounds which are general submissions about the proper analysis of Article 8 ECHR. The submission there made is that, since this is not a criminal deportation case, the only legitimate aim in play is the economic well-being of the country. It is said that as the Appellant has been self-sufficient since being in the UK and has not had recourse to public funds and would continue to live in this way, this is not a case where economic well-being of the country is impacted.
17. Mr Usman argued his case orally under this head however on the basis of what is said at [4] of the grounds concerning the Judge's comment at [16] of the Decision regarding the issue whether the Appellant entered the UK in 2005 or 2009. Mr Usman submitted that this made a difference when it came to assessing the proportionality of the interference with the Appellant's private life and he submitted that the Judge had erred by finding that it was irrelevant. I pointed out to Mr Usman that the Judge in fact said that this was not "highly material" not that it was irrelevant which Mr Usman accepted. He continued to submit that the question of whether the Appellant had been in the UK for seven years or eleven years made a substantial difference in the consideration outside the Rules. Mr Usman could not however point to any evidence to show that the Appellant's private life formed in the period between 2005 and 2009 was qualitatively any different to that formed since. He submitted nonetheless that an additional four years' residence made a difference.
18. Mr Tarlow relied on the Respondent's rule 24 response and continued to insist that the Appellant had not pleaded the ground on which permission was granted. I have already recorded my disagreement with that submission and Mr Tarlow did not press the point.
19. Mr Tarlow submitted that the grounds were really nothing more than a disagreement with the findings. He asked me to note that the Appellant had asked for the appeal to be determined on the papers and that she had not made a protection claim. It was for her to make her case and Mr Usman had accepted that, when considering whether there were "very significant obstacles" under the Rules, the Judge was entitled to have regard to the background material relied upon by the Respondent.

20. In relation to the case outside the Rules, Mr Tarlow asked me to find that whether the period of residence was seven or eleven years made no material difference. He submitted that the Judge's conclusions in relation to proportionality were clearly reasoned at [32] and [33] of the Decision. The Judge had found (as he was entitled to do) that there was nothing compelling for consideration outside the Rules but had in any event gone on to consider the case outside the Rules and the conclusion at [33] was open to him. Mr Tarlow pointed out that section 117B Nationality, Immigration and Asylum Act 2002 ("section 117B") is in play in consideration of the case outside the Rules. The Appellant has been in the UK unlawfully throughout her stay. He submitted therefore that, whether the length of residence is seven or eleven years makes no difference.
21. At the end of the hearing, I indicated that I reserved my decision in relation to whether there is an error of law in the Decision and would issue my decision in writing which I now turn to do.
Discussion and conclusions
22. The starting point for my consideration is the basis on which permission to appeal was granted, particularly in light of the disagreement between the parties whether this was actually a basis of challenge raised by the Appellant.
23. Judge Bruce referred to [18] of the Decision on which Mr Usman also focussed his submissions in relation to whether there are very significant obstacles disclosed by the Appellant's case on this paragraph. The paragraph reads as follows:-
"With regard to the situation in Mongolia, the objective evidence shows that, whilst homosexuality is legal there, there is ostracism and discrimination. The evidence falls short of showing that this amounts to persecution, or inhumane or degrading treatment such as to attract international protection or to engage Article 3. Although the Appellant refers to difficulties there, such that they caused her to prefer the quality of life that could be found elsewhere, her evidence shows that, notwithstanding those difficulties, she was able to establish, develop and maintain a relationship with her same-sex partner before she left her country of origin. The Appellant asserts that her family have ostracised her, but there is no detail or other evidence to satisfy me that this is the case. For these reasons, I am not satisfied that there are significant obstacles to the Appellant returning to Mongolia or to her integration there."
24. I have already noted at [9] above that the reference to an earlier finding appears in fact to be a reference to the summary of the Appellant's evidence. Those findings therefore have to be looked at in the context of the evidence before the Judge. As I have already noted, in this case, the Appellant asked for the appeal to be determined on the papers. This meant that the Judge had to rely on the written evidence before him and did not receive submissions as to how that evidence was to be analysed. The evidence could not be tested or expanded upon orally.

25. Mr Usman relied on what is said at [3] and [4] of the Appellant's statement as being the crux of her claim that she could not return to Mongolia to continue her relationship there. I would add to that paragraphs [7] to [9] which deal with the problems the Appellant says she had with her family and her fears if she returned to Mongolia. Those paragraphs read as follows:-

"[3] We both resided in the same region of Mongolia and met with each other in 2002. We happened to like each other and became friends. Subsequently our friendship developed into a serious relationship. As there is a culture of hate against lesbians in Mongolia we were very cautious in letting our feelings be known to our respective family members in Mongolia.
[4] We continued to enjoy our same-sex relationship with due care. It was difficult for us to stay apart from each other. As it was difficult for us to disclose our relationship in Mongolia we started considering leaving Mongolia and going somewhere else where we could disclose and enjoy the same-sex relationship with freedom.
?.
[7] I have established my private life with my same-sex partner in the UK. I believe that I would be discriminated and socially outcaste by my family members and the community at large in Mongolia which would undermine my physical and moral integrity. In addition, I would not be able to get employment in Mongolia.
[8] I have broken my ties with my family as my family members never approved my same-sex relationship. They blamed me that I had brought shame and disrepute to them and defamed them within the community. They would not accept me if I were sent back to Mongolia.
[9] We both draw a lot of comfort from our relationship and have established private life in the UK. An apprehension of being deprived of my same-sex relationship would plunge me into deep anxiety. I have had genuine concerns, which has made me extremely upset. I cannot afford to lose my relationship with my partner."
26. The Judge dealt with the basis of the Appellant's claim to remain at [6] to [7] of the Decision. Since Mr Usman did not challenge the summary of the evidence, I also set that out:
"[6] The Appellant states that she and her partner met and formed a same-sex relationship in Mongolia. There is a culture of hate against lesbians in Mongolia so they were cautious about disclosing their relationship to family, friends, and others. They decided to come to live in the United Kingdom so they could enjoy their relationship with greater freedom. They engaged an agent to bring them to the United Kingdom. The Appellant entered the country unlawfully using a false passport.
[7] The Appellant states that she entered the United Kingdom in September 2005, and that she has lived with her partner since then. They have met their living costs without recourse to public funds, have established their private lives here, and have integrated into the community. The Appellant states that she has no ties with her family in Mongolia, and believes that she would be discriminated against and outcast by them if she was to return. Removal would "plunge me into deep anxiety leaving a negative impact on my physical and moral integrity and wellbeing"."
27. In order to consider what is said at [18] of the Decision, it is also necessary to look at the context of the findings about the background evidence. Indeed, consideration of this evidence is required in light of the pleaded basis of ground [5] which states that:

"The First-tier Tribunal seems to have not given appropriate weight to the objective information regarding homosexuality in Mongolia considered by the Respondent which reads "There is widespread social and institutional discrimination against, and intolerance of lesbian and bisexual women and transgendered persons in Mongolia which is manifested in varying forms, from ostracism and harassment to physical and sexual violence". If appropriate [sic] had been given to the objective information the tribunal would have found that the interference with the appellant's right to respect for private/family life would be disproportionate and unjustifiable."
28. Interestingly, the extract there cited from the rather wider consideration of the background evidence in the Respondent's decision letter is lifted directly from [9] of the Decision. It is difficult therefore to maintain that the Judge did not have regard to that part of the evidence.
29. The basis on which Judge Bruce appears to have been persuaded to grant permission is the juxtaposition of the Judge's findings about the background evidence as it would be considered in the context of a protection claim against the finding that there were no very significant obstacles to integration in Mongolia. I am not persuaded that the Judge has in fact fallen into such error.
30. Although the Judge does start paragraph [18] by looking at whether the background material would be sufficient in a case such as this to justify a protection claim, he does so only to record that it would not meet the requisite threshold for establishing a real risk. Thereafter, he goes on to consider that material in the context of the Appellant's own claim and to summarise her evidence as to the difficulties she faced before coming to the UK and what she feared on return. As to the latter, it was clearly relevant what the background evidence recorded. However, the Judge has not erred in applying the threshold required for a protection claim when considering whether there would be very significant obstacles. It is abundantly clear from the last sentence of that paragraph that the Judge was aware that the test under paragraph 276ADE is a different one. Indeed, if anything, the reference to "significant obstacles", rather than "very significant obstacles" suggests that the Judge may have been more generous to the Appellant than the Rules require.
31. Before moving on to the remainder of the Appellant's grounds, I consider what is said about the way in which the Judge considered the Appellant's relationship in Mongolia prior to her arrival in the UK. This arises from Mr Usman's submission that the Judge has misunderstood the Appellant's evidence about the relationship at [32] of the Decision which reads as follows:-
"[32] In essence, I find this to be the case of an Appellant seeking to exercise her choice of where she lives with her same-sex partner, and choosing to do so in the United Kingdom because, in her view, it provides a better quality of life, in particular with regard to her sexuality. In the light of the fact that she had lived with that same partner in Mongolia, and in the absence of any significant or satisfactory evidence about the adverse consequences to them of doing so there, I find nothing in these circumstances to be compelling or exceptional sufficiently to justify allowing the appeal outside the Rules under Article 8. A preference for the quality of life in the United Kingdom does not amount to an exceptional or compelling circumstance."

32. As I understand Mr Usman's submission, the challenge is that the Judge's findings ignore the Appellant's evidence that the relationship had to be conducted in secret. I am however unable to read the Appellant's evidence in that way. At the very least, and bearing in mind that the Judge was deprived of the opportunity of exploring that evidence with the Appellant as she did not want an oral hearing, those findings were open to the Judge on the evidence. Evidence that she and her partner found it "difficult to disclose" their relationship or had to be "very cautious about letting [their] feelings be known" does not amount to evidence from which the Judge was bound to conclude that they conducted their relationship in secret. Indeed, it is clear from [8] of the Appellant's statement that her family did know about the relationship because they are said to have disapproved of it.
33. That then disposes of the Appellant's challenge in relation to the findings about the impact of her relationship on the claim under and outside the Rules. The other paragraphs of the grounds are a more general challenge to the finding that the Appellant's claim fails outside the Rules. I can deal with this shortly.
34. The Appellant came to the UK in either 2005 or 2009. She did so unlawfully. Contrary to the Appellant's contention, the Judge did not find that whether it was the first of those dates or the second was not relevant at all. What he said was that it was not "highly material" to his findings because "in either case, she has been here for several years, and it is accepted that she has established a private life here". I add that it is also not highly material because in relation to either period, the Appellant was in the UK unlawfully. Mr Usman expressly accepted that there was no evidence before the Judge that the Appellant's residence during the period 2005 to 2009 was qualitatively different. Whilst calculation of the period of residence may become relevant when considering length of residence under the Rules (with which this Appellant cannot comply) that is only because those represent the periods of residence which the Secretary of State accepts outweigh the public interest. In relation to a lesser period, unless there is something qualitatively different, a period of an additional four years' unlawful residence would not, without more, outweigh the public interest.
35. The remaining grounds challenge the reliance on the public interest in removing the Appellant and whether that is justified. Those completely ignore however section 117B which the Judge rightly refers to at [26] of the Decision as being relevant to the public interest when assessing the case outside the Rules. The Appellant points to being able to maintain herself as a reason why the public interest does not require her removal. However, as determined in AM (S 117B) Malawi [2015] UKUT 0260 (IAC), that factor operates only in the negative if it is not present. It does not increase the weight to be given to the Appellant's private life if it is present. In any event if, as appears from the bank statements to be the case, the Appellant is working in the UK, she is doing so unlawfully.
36. At [27] of the Decision, the Judge placed reliance as he was required to do on section 117B(4) and placed little weight on the private or family life of the Appellant. As he observed, in any case, there was little or no evidence about the Appellant's partner and nothing to suggest that she had any status in the UK. The Judge proceeded nonetheless on the basis that the Appellant did have a private and family life in the UK with which removal would interfere to a sufficiently serious degree. He accepted as he was bound to do that the legitimate aim of immigration control was engaged. Although at [32] of the Decision, the Judge found that there were no compelling circumstances which required to be considered outside the Rules, he nonetheless went on to carry out a proportionality assessment outside the Rules at [33]. His analysis is impeccably reasoned.

37. For those reasons, I am satisfied that the Decision does not disclose a material error of law and I uphold the Decision.

DECISION
The First-tier Tribunal Decision did not involve the making of an error on a point of law. I therefore uphold the First-tier Tribunal Decision of Judge Chapman promulgated on 6 June 2016 with the consequence that the Appellant's appeal is dismissed.

Signed Dated: 7 February 2017

Upper Tribunal Judge Smith