Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/09980/2015

THE IMMIGRATION ACTS

Heard at Field House
Decisions and Reasons Promulgated
On Tuesday 22 November 2016
On Monday 20 December 2016

Before

UPPER TRIBUNAL JUDGE SMITH

Between

MR M H K
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr G Davison, Counsel instructed by Nandy & Co solicitors
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. Although this is not a claim under the Refugee Convention, the Appellant nonetheless claims to have a fear on return to his home country. It is therefore appropriate to make an anonymity direction in this case.

ERROR OF LAW DECISION AND REASONS

Background

1. The Appellant appeals against a decision of First-Tier Tribunal Judge Hodgkinson promulgated on 8 April 2016 ("the Decision") dismissing the Appellant's appeal against the Secretary of State's decision dated 24 February 2015 refusing him leave to remain and directing his removal to Bangladesh.

2. The Appellant arrived in the UK from Bangladesh as a student in September 2009. His leave was extended in this category albeit only following an appeal until December 2014. He made an in time application for leave to remain on human rights grounds outside the Immigration Rules ("the Rules") on 12 December 2014 and it is the refusal of that application which is the decision under challenge in this appeal.

3. The basis of the Appellant's claim is that he fears return to Bangladesh because he is a homosexual, his family are prominent people in Bangladesh and they do not accept his sexuality. He also fears the father of his ex-wife who has discovered that he is a homosexual. He also fears what will happen to him more generally on account of his sexuality in Bangladesh.

4. Rather unusually, in spite of the fact that the basis of the Appellant's claim is a fear of return to Bangladesh, the Appellant has refused to make a protection claim. He was invited to do so by the Respondent's decision. It is made clear by his solicitor's letter dated 17 February 2015 that he declines to do so.

5. The basis of the Appellant's claim is rather that he seeks a period of discretionary leave until such time as his situation in Bangladesh improves. It is not quite clear given the nature of his claim what it is that he thinks will change. He says though that he should be entitled to remain based on either Article 3 ECHR or because there are very significant obstacles to his integration in Bangladesh and that his appeal should therefore be allowed applying paragraph 276ADE(1)(vi) of the Rules.

6. Judge Hodgkinson did not accept that the Appellant had a subjective fear or objectively well-founded fear of persecution on return ([20] of the Decision). He found that there would be no real risk to him on return. Based on that finding, he also did not accept that the Appellant could meet paragraph 276ADE(1)(vi).

7. Permission to appeal was granted by First-tier Tribunal Judge Hollingworth on 12 October 2016 on the basis that the Judge's analysis was arguably insufficient to justify his conclusion in particular that the Appellant did not face very significant obstacles on return. The matter comes before me to decide whether the Decision contains a material error of law and, if so, to re-make the decision or remit the appeal for rehearing to the First-Tier Tribunal.

The grounds and submissions

8. The Appellant's grounds of appeal relate to both Articles 3 and 8 ECHR. It is asserted that the Judge failed to consider whether the Appellant's case met the test in paragraph 276ADE(1)(vi) of the Rules namely whether there are very significant obstacles based on what is said to be his inability to "live in peace due to his issues surrounding his sexuality and his previous experience of harassment by the hands of his family members and recently due to fear of the Appellant's former wife's father". It is said that due to his sexuality, he would not be able to integrate and would continue to live in fear due to his past experiences. He says he could not relocate due to the prominence of his family and his ex-wife's father. He also says that he would face societal pressure.

9. In relation to Article 3, the Appellant says that no consideration has been given to the Appellant's account of harassment, forced marriage and that he has suffered ill-treatment amounting to torture.

10. Mr Davison drew my attention to [20] of the Decision which he said contained the conclusions of the Judge. That paragraph, he submitted, fails to make any reasoned findings on the core of the Appellant's claim. The findings which he said that the Judge has failed to make are whether the Appellant is homosexual, whether he is able to move back to live with his family and if not how he could relocate particularly in light of the Appellant's claim about the influence of his family and whether he would face a risk more generally on account of his sexuality.

11. Mr Davison accepted that the Appellant has so far refused to make a protection claim in proper form. He submitted that this did not matter. I pointed out that the effect of this is that the Respondent has not been able properly to investigate the claim by way of an interview. His response was that the Appellant had given evidence at the hearing and therefore could be cross-examined. I also pointed out that if the Appellant had not made a protection claim, then the Judge in fact had no jurisdiction to deal with one. This is a pre-Immigration Act 2014 appeal and as such the previous case law concerning the inability of an appellant to bring an initial claim to the Tribunal applies. Mr Davison submitted that this did not obviate the need for the Judge to make findings about the various elements of the Appellant's claim or to determine the issue arising in relation to Article 3 risk.

12. There was also some discussion about whether it was in fact the case that the Judge had failed to make findings on the various elements of the claim. I pointed Mr Davison to various paragraphs which it seemed to me did contain findings albeit the Decision was not structured in such a way as to enable those to be clearly seen at once.

13. I also explored with Mr Davison whether the basis of the Judge's conclusion that there would be no very significant obstacles was justified in terms of the protection elements by the fact that the Appellant refused to make an asylum claim. It might be said that for this reason the Appellant was unable to show that he had a genuine and well-founded fear of persecution on return. The basis of the Article 8 claim is predicated on what the Appellant says he fears on return and so the conclusion on one might be said to be the justification for the conclusion on the other.

14. Mr Davison indicated that, if that were the basis on which the Judge had decided the case, the Appellant might not be able to show that there was an error of law. However, he submitted that this was not what the Judge decided. He continued to rely on the inadequacy of reasons given for rejecting the core of the Appellant's claim. He focussed in particular on the failure by the Judge to make a finding whether the Appellant is credible in relation to his sexuality. Even if the core of his claim were not accepted, if the Appellant was accepted to be credible in relation to his sexuality then, Mr Davison submitted, it was incumbent on the Judge to consider the risk to the Appellant based on his sexuality. Background evidence was included in the Appellant's bundle at [71] to [93] but the Judge failed to deal with this. That material included evidence that homosexuality is a criminal offence in Bangladesh.

15. Mr Tarlow relied on the Respondent's rule 24 response. The Respondent's position is summarised at [3] of the response as follows:-

"The findings from the Judge are based on the evidence provided and it is clear that the appellant does not fear persecution. The Judge found the appellant's evidence to be vague, the appellant maintains a relationship with his family in Bangladesh. The Judge was entitled to reach a dismissed decision."

16. Mr Tarlow drew my attention to the letter from the Appellant's solicitors dated 17 February 2015 following the Home Office's request that the Appellant book an appointment to make his asylum claim in person. That reads as follows:-

"We continue to act for the above client in relation to his immigration matter and write in response to your letter dated 13th February 2015 in which you have advised our client to book an appointment to attend in person to make an asylum claim.
However, in our letter of 09th December 2014 we only made a request to consider our client's case under the human rights grounds together with the accompanied evidence. We confirm that our client does not wish to claim asylum at this stage and only request further leave to remain in the UK until he find means to resolve his issues.

Therefore, we kindly request you to proceed with his FLR(O) application and grant him with a favourable decision outside the Immigration Rules using your discretion."

17. Mr Tarlow accepted that the structure of the Decision was such that the findings were mixed with the recital of the evidence which at times made it difficult to ascertain what findings had been made without reading the Decision as a whole. However, he submitted that the starting point had to be that the Appellant had not made and declined to make an asylum claim. Paragraph [18] of the Decision took that as the starting point. That was a finding that the Appellant is not at risk on return. Mr Tarlow accepted that the Judge had not made a finding whether the Appellant is in fact a homosexual. However, what the Judge finds at [18] of the Decision is that it does not matter what is the Appellant's sexuality because he has lived in Bangladesh discreetly in the past as he has in the UK and the Judge finds that he would do so again in the future.

18. Both representatives were agreed that, if I found a material error of law, I should remit the appeal to the First-tier Tribunal. The challenge is to a lack of reasoned findings on the Appellant's claim. As such, the Appellant should be entitled to a further hearing at first instance for findings of fact to be made in the event that I find the Appellant's grounds to be made out.

Discussion and conclusions

19. I begin by considering the nature and grounds of the appeal which were before the Judge. The starting point in that regard is the claim(s) made to the Respondent and how the Respondent replied to those. I have referred above to the solicitor's letter declining to make an appointment for the Appellant to make an asylum claim. That letter was a response to a letter from the Home Office dated 13 February 2015 which is headed "REFUSAL TO ACCEPT POSTAL CLAIM FOR INTERNATIONAL PROTECTION". That letter continues as follows:-

"Thank you for your letter of 09 December 2014 and 15 January 2015 indicating that your client wishes to apply for international protection. A claim for international protection includes a claim for asylum as a refugee, humanitarian protection or a human rights claim, where the applicant fears serious harm on return to their country of origin or habitual residence. All claims for international protection will be recorded as an asylum application.

CLAIMS FOR INTERNATIONAL PROTECTION MADE BY POST ARE NOT ACCEPTED BY THE HOME OFFICE. THEREFORE, YOUR LETTER OF 09 DECEMBER 2014 AND 15 JANUARY 2015 WILL NOT BE RECORDED AS A CLAIM."

20. As I indicate at [16] above, the Appellant's response to that is a refusal to book an appointment. The reason given - that he is only seeking time to find a way "to resolve his issues" - is difficult to square with the nature of the threat claimed. This is not a claim based on the conditions in his country. It is a claim based in on immutable characteristic - the Appellant's sexuality - which it is said his family will not accept.

21. In any event, whatever the reason for declining to make a claim in person, the effect is that the Home Office has refused to treat the application made by post as a protection claim. For that reason, the Respondent has not dealt with the protection element of the claim in her decision. The Respondent expressly refers to the Appellant's refusal to make a protection claim.

22. That is not though decisive of the issues with which the Judge was obliged to deal. The Judge was not obliged to deal with an asylum claim or humanitarian protection claim. The Appellant had not made a claim under those heads and I did not understand Mr Davison to dispute that. The Appellant was served with a "one-stop notice" along with the Respondent's decision but there is, so far as I can see, no statement of additional grounds submitted in response. This is a pre-Immigration Act 2014 appeal. Accordingly, the jurisdiction of the Judge to deal with an asylum appeal is based on the definition of section 113 Nationality, Immigration and Asylum Act 2002 and the previous case law which indicates that in order for the Tribunal to have jurisdiction over an asylum claim it must be a claim made to the Respondent. Following the case of R (on the application of) Nirula v First-tier Tribunal (Asylum and Immigration Chamber) & Anor [2011] EWHC 3336 (Admin) and other cases to like effect, that does not include a claim made in the grounds of appeal. In any event, in this case, the Appellant does not raise as a ground of appeal that return to Bangladesh would breach the Refugee Convention.

23. The focus of the Appellant's claim is that his Article 8 rights would be breached because there would be "very significant obstacles" to his integration in Bangladesh. However, that turns on the risk which the Appellant says that he would face on account of his sexuality. Like the Judge, I consider that the Article 8 claim either stands or falls with the other human rights grounds of appeal which include Articles 2 and 3 ECHR. Accordingly, the Judge was obliged to deal with the Appellant's claim to be at risk on return on account of his homosexuality. The issue then is whether the Judge dealt adequately with that claim.

24. I deal firstly with the individual claim which the Appellant makes. Before he came to the UK, the Appellant lived with his family. He says that his father and mother were renowned academics although both are no longer alive. He says that as a result of his parents' status in society the family was given respect. However, he felt that he was a burden to them because of his sexuality. He says in his statement that he was in a relationship with another man when he was very young and that "as a result of my sexuality I was subject to sexual abuse from a very young age". He says that he was "tortured and harassed" at the hands of his family members and that when they found out about his sexuality, they forced him into an arranged marriage.

25. The Appellant says that, following his marriage, his wife found out that he was homosexual and therefore sought a divorce. As a result of this, the Appellant says, his father-in-law who is also a powerful and influential man in Bangladesh has discovered his sexuality and seeks revenge. The Appellant says that he is at risk of honour killing from that source.

26. In more general terms, the Appellant's claim is that as a result of his sexuality, he has suffered from a lot of rejection and stress. He says that his family "dislike him" and that since he has come to the UK, he has felt a sense of relief and security. He points to incidents in recent years where "homosexuals have been arrested, tortured and executed due to this issue being against Muslim beliefs." He also points to the fact that it remains a criminal offence to be homosexual in Bangladesh. The background material produced on his behalf includes an article relating to the treatment of homosexuals in Iran (which is not of any obvious relevance) but also a number of articles dealing with the continuing criminalisation of same-sex relationships in Bangladesh and the government's refusal to relax those laws as well as articles concerning LGBT rights in Bangladesh.

27. I begin with the Judge's consideration of the individual claim as to the risk that the Appellant says he fears from his family. I start by observing that it is not entirely clear to me from the Appellant's statement who his family members actually are since he says that both his father and mother are dead. It appears from what the Judge says at [16] of the Decision, that the Appellant's grandfather is still alive. The Judge deals at [14] to [16] of the Decision with this part of the claim. The Judge notes that the Appellant seeks only a period of discretionary leave. However, that appears inconsistent with a claim to fear return based on a characteristic which on the Appellant's case is immutable namely his sexuality. That, coupled with an inconsistency between the Appellant's case that he was ill-treated by his family but continued to live with them for many years after divulging his sexuality as well as that his grandfather paid for the Appellant's studies in the UK led the Judge at [16] of the Decision to conclude that his account was inconsistent with a claim to fear removal to Bangladesh. That finding, albeit included amongst the Judge's account of the evidence, is sufficient to dispose of that aspect of the claim.

28. What I have found more difficult to resolve however is how the Judge dealt with the other individual aspect of the Appellant's case (the fear of his ex-wife's family) and, more importantly, the general fear on account of his sexuality due to societal discrimination and criminalisation of same-sex relationships in Bangladesh.

29. In fairness to the Judge, he does point at [18] of the Decision to the delay in the Appellant claiming asylum until December 2014 when his divorce occurred in 2013 and in circumstances where the Appellant had left Bangladesh in 2009. In light of that chronology, the Judge was entitled to be sceptical about the claimed risk from the Appellant's former father-in-law. However, I cannot read that passage as a finding about the Appellant's credibility in relation to that claimed risk.

30. Of more importance is the lack of a finding about the Appellant's credibility in relation to his claimed sexuality. As Mr Davison pointed out, and I accept, there is background evidence which points to a potential risk at least to a homosexual who is in a same-sex relationship, particularly where this amounts to a criminal offence in Bangladesh. Whilst the Judge has noted that the Appellant does not claim to have been in a same-sex relationship during his time in the UK, the Appellant does say in his statement that he was in a homosexual relationship when he was young in Bangladesh. Mr Tarlow said that in essence what the Judge found was that even if the Appellant was homosexual he would live discreetly as he has done in the UK. However, I can find no consideration of the case in those terms. The Judge indicates some scepticism about the Appellant's claim to be homosexual at [18] of the Decision but does not go so far as to say that he does not accept that claim.

31. For the above reasons, I find that there is a material error of law in the Judge's reasoning by virtue of his failure to make findings on crucial aspects of the Appellant's account. Both parties were agreed that, if I found a material error of law in relation to the inadequacy of findings I should remit to the First-tier Tribunal as the Appellant is entitled to a primary consideration of his case and reasoned findings at first instance.

DECISION
I am satisfied that the Decision contains a material error of law for the reasons given at [24] above. The decision of Judge Hodgkinson promulgated on 8 April 2016 is set aside. I remit the appeal to the First-tier Tribunal for re-hearing before a Judge other than Judge Hodgkinson. I do not preserve any findings.

Signed Dated: 19 December 2016

Upper Tribunal Judge Smith