Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/00401/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 21 June 2016
On 15 August 2016

Before

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

SN
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Layne, Counsel instructed by Duncan Lewis & Co Solicitors
For the Respondent: Mr S Kotas, Home Office Presenting Officer

DECISION AND REASONS
1. This appeal comes back before me following a hearing in the Upper Tribunal on 5 January 2016 at which I found that the First-tier Judge ("FtJ") erred in law in his decision on the appellant's appeal. I had set his decision aside for it to be re-made in the Upper Tribunal.
2. I incorporate the error of law decision here, in order to put the further proceedings into context.
"1. This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge I. S. Lamb who allowed the appellant's appeal on asylum grounds after a hearing on 14 August 2015. Although the appellant in these proceedings is the Secretary of State I will continue to refer to the parties as they were before the First-tier Tribunal.
2. The appellant is a national of Pakistan, born on 23 August 1985. He made a claim for asylum on 22 May 2015. The basis of his claim is that he is bisexual and that his family got to know about a relationship that he had with a man in the UK. The First-tier Judge made a number of findings in favour of the appellant, in essence accepting all aspects of his account with one exception. The judge rejected the reasoning of the respondent in the refusal letter, which did not accept that the appellant's account of having had a homosexual relationship with someone in the UK was true.
3. At [65] of his decision, Judge Lamb concluded that the appellant had not been inconsistent in his account of his relationship with a person in the UK identified as M. He did not agree that the appellant's account was inconsistent about his having informed his parents of his sexuality. What the judge found was that after having been told that he was homosexual and planning to marry his male partner, the appellant's family were verbally and physically hostile to him and his father had disinherited him.
4. He did not however, accept the appellant's account in its entirety, for the reasons given at [74] of the decision. What he found was that when his relationship with M was blossoming and they intended to marry, he had been so long in the UK and influenced by a social culture of tolerance of same sex marriage, he thought he could tell his family about this development and that they would accept it. The appellant disclosed this in a police report, that report having been made to the police as a result of the treatment that the appellant had received at the hands of his family. The judge concluded that the appellant had given a credible account of having been subjected to physical attacks; one on the day of his arrival in Pakistan and another on about 9 May (2015).
5. He found that the appellant had given a credible account of then returning to the UK, but that was because he was at a loss to know where he could go in his home area and yet be safe. The judge found that it was equally because he was drawn back to the United Kingdom and the society and life which had become familiar to him.
6. The judge considered the decision of the House of Lords in HJ (Iran) v Secretary of State for the Home department [2010] UKSC 31, and in answering the questions posed by Lord Hope he concluded at [79] that the appellant is not homosexual. He stated that whether it is related to his feelings towards other men, or whether it is related to the possibility of developing any physical relationship with a man, the question is to be answered in the negative.
7. However, he also went on to consider whether the appellant would be at risk because he was suspected of being homosexual, and he accepted that he will be at some degree of risk because of past events, that is to say the verbal and physical hostility from his family. He also noted at [80] the appellant's evidence that his friend now knows of his sexuality. He concluded at [81] that the appellant would not conduct himself as a homosexual man because he has no wish to do so, and indeed that was the appellant's evidence in the asylum interview. He went on to conclude that even if he has experiences of being attracted to men, he will conceal them because of his response to social pressure and cultural or religious reasons of his own choosing, not because of the risk of persecution.
8. Going on at [82] to consider what would happen if he was directly challenged by his family, he stated that the only evidence he had to guide him on this was his previous conduct which was to try to persuade his family that he is not homosexual. However, their reaction was one of disbelief and intolerance. He said that that would be likely to be repeated.
9. He concluded at [83] that the appellant does have a well-founded fear of persecution because of his perceived sexual orientation. He took into account that Pakistan is a strongly Islamic state and that the appellant, as a man perceived to be homosexual, is subject to a real and substantial risk of being persecuted for that reason and could expect no protection from the state authorities.
10. In terms of the foregoing, the respondent makes no complaint about the judge's decision, but the grounds are really focused on what was said at [84] of the decision which consists of five lines. In that paragraph the judge stated as follows:
'I do not accept that he can avoid this risk by living in Pakistan somewhere other than Karachi. He would have to find employment, accommodation, go to the mosque, and mix with people, and at some time, there will be a real risk that he will come to the attention of friends or relatives of his family; or the attention of the religious authorities'.
11. The respondent's grounds contend, in essence, that the judge failed to explain why the appellant would attract attention given his earlier finding that he would not conduct himself as a homosexual man; or how or why the appellant's family would trace him throughout the vast and highly populated country of Pakistan.
12. It is significant to note that in cross-examination the appellant was asked about whether he could live in other areas, as recorded at [57]. He was asked whether he could live elsewhere other than Karachi, such as Islamabad. The appellant's answer was that he has relatives who live in Islamabad, Peshawar and Hyderabad, and that it is easy to find someone. He also said that his father's and brother's friends live in Lahore.
13. He went on to state that they have filed a case against him and there were adverts concerning him in newspapers. However, the suggestion that there is a case filed against him was not in actual fact an issue that was resolved in his favour by Judge Lamb. At least that did not seem to be a part of the appellant's case and it has not been argued before me that there is any case against the appellant filed with the authorities.
14. Mr Layne in submissions directed my attention to [57] of the decision and the appellant's reasons for stating that he would not be able to live elsewhere in Pakistan. He reminded me of the background evidence in relation to the conservative society in Pakistan and suggested that the judge's reasoning when taken as a whole was satisfactory, albeit that in the final conclusion at [84] the judge did not refer to [57].
15. Mr Wilding relied on the grounds, which were amplified in submissions. One of the matters advanced was that the judge had failed to articulate how the family would find him, or how they would even know that he had ever come back to Pakistan, let alone to a particular place of relocation. Aside from that, the judge had not dealt with the question of undue harshness or reasonableness of relocation.
16. I consider that the submissions made on behalf of the respondent have merit. In my judgement, in the short paragraph at which the judge dealt with the question of internal relocation there is a failure to give legally sufficient or adequate reasons as to how it could be said that the appellant's friends or family would find him in any place of relocation, aside from the places mentioned at [57], or indeed how he would come to the attention of the religious authorities bearing in mind the appellant's expressed intention not to live as an openly gay man.
17. The judge did not explain how it is the case that anyone would perceive him to be gay and therefore why a risk would eventuate in any place of relocation. Notwithstanding the very detailed and comprehensive findings of fact made by the First-tier Judge, I am satisfied that in dealing with the question of internal relocation he erred in law, and that error of law is such as to require the decision to be set aside.
18. Having regard to the Practice Statement at paragraph 7.2, it is not appropriate for the matter to be remitted to the First-tier Tribunal. Accordingly, the re-making will be dealt with in the Upper Tribunal.
19. The appellant did not attend the hearing before me. I was informed that this was because he required hospital treatment for diabetes, which it is accepted that he has. In those circumstances, and in the light of the submissions made on that issue to me by Mr Layne, supported by Mr Wilding, it is appropriate for the matter to be adjourned for further hearing. It is likely that the further hearing will be confined to submissions only but I do not rule out the possibility that further evidence may be called. To that end I make the following directions as to the further progress of the appeal.
DIRECTIONS
1. Any further evidence relied on by either party is to be filed and served no later than 14 days before the next date of hearing.
2. In relation to any person to be called to give oral evidence, there must be a witness statement drawn in sufficient detail to stand as evidence-in-chief such that there is no need for any examination-in-chief beyond the adopting of the witness statement."
3. It is apparent therefore, that the only issue to be resolved at the renewed hearing was the question of internal relocation.
4. The FtJ made comprehensive findings of fact which can be summarised as follows.
In his 20s the appellant felt an attraction towards other men, although that was not manifested by any action on his part, being confined only to a disclosure to his doctor.
In the UK in 2013 the appellant became involved in a same-sex relationship with M.
The appellant told his family on the phone about his sexuality and his plan to marry M.
His relationship with M ended in 2014.
When the appellant told his family about his relationship with M they verbally abused him and threatened that if he returned to Pakistan they would kill him.
The appellant returned to Pakistan in the hope of achieving a reconciliation with his family. His father took out newspaper advertisements disowning him. The newspaper cuttings provided were genuine.
A police document said to be a report made to the police by the appellant about his being attacked is not an official police document.
A disinheritance deed and the newspaper articles came about because the appellant told his family that he was gay and was planning to marry his male partner.
In Pakistan when he returned from the UK, he was attacked on the day of his return, being 13 April 2015. He was attacked again on or about 9 May 2015.
The appellant returned to the UK because he was at a loss to know where he could go in his home area and be safe, but also because he was drawn back to the United Kingdom and the society, culture and life which had become familiar to him.
The appellant's last relationship was with a woman. He returned to Pakistan in order to be reconciled with his family and that was on the basis that he had put behind him any manifestation of homosexuality.
The appellant had only ever had one relationship with a man which he voluntarily ended.
The appellant is not gay, whether in terms of his feelings towards other men or in terms of the possibility of developing any physical relationship with a man.
He would be at risk in his home area in the light of past events.
The appellant would not conduct himself as a gay man because he has no wish to do so. It is not a case of having to conceal his true nature and sexuality because of the risk of persecution. He would conceal any feelings of attraction towards men because of his response to social pressure and cultural or religious reasons of his own choosing, but not because of the risk of persecution.
The appellant's family would be likely to act towards him as they had previously.
He would be at risk of persecution because of his perceived sexual orientation.
He could expect no protection from the state authorities.

Submissions
5. Mr Layne referred in general terms to the decision in Januzi v Secretary of State for the Home Department [2006] UKHL 5. He submitted that Pakistan is a traditional country where there are hostile attitudes towards homosexuality. It was submitted that internal relocation was not viable for the appellant.
6. I was referred to the Home Office Country Information and Guidance entitled "Pakistan: Sexual orientation and gender identity" of April 2016 ("the CIG report"). Various paragraphs were referred to.
7. Mr Kotas pointed out that the FtJ had found that the appellant is not gay. At [81] the FtJ found that he would not conduct himself as a homosexual man because he would not wish to do so. Notwithstanding what is recorded at [57] of the FtJ's decision about the appellant's answer as to why he could not live elsewhere in Pakistan other than his home area, there were other big cities, such as Faisalabad and Rawalpindi that he could go to and be anonymous.
8. Various aspects of the appellant's background bundle were referred to, to the effect that homosexuality appears to be tolerated and that regardless of the legal position, prosecutions are not common.
9. The contention that the religious authorities would somehow find out who the appellant is was contrary to the background evidence.
10. Notwithstanding the appellant's diabetes, it would not be unduly harsh for him to relocate in Pakistan. He was receiving treatment there for 20 years before he came to the UK and could receive treatment there on return.
My Conclusions
11. It is clear that the FtJ found that the appellant could not return to his home area, which on the evidence before the FtJ was in Karachi. It is also clear that the FtJ found that the appellant was not gay and would not manifest or act on any sexual attraction towards men in Pakistan, out of choice and not out of a fear of persecution.
12. The very narrow question therefore, is whether the appellant would be able to relocate to another area of Pakistan, away from his home area, where he would not be at risk of persecution and to which it would be reasonable to expect him to go (Secretary of State for the Home Department v AH (Sudan) and Others [2007] UKHL 49, in particular at [5]).
13. Mr Layne's references to the CIG report included reference to paragraph 2.3.4 which states that lesbian, gay and bisexual persons in Pakistan can be subject to societal discrimination as well as harassment and violence, most commonly within the family, and that depending on the facts of the case are unlikely to be able to seek effective protection from the authorities. Paragraph 2.5.3 states that given that homophobic attitudes are prevalent throughout the country, there is unlikely to be any place in Pakistan to which an LGBT person "who would be identified as such" could safely relocate. That paragraph goes on to state that if the person would not be identified as LGBT in a different location, internal relocation may be viable.
14. I further note that at 2.5.2 it states that decision makers must also take into account that the Supreme Court (in HJ (Iran) v Secretary of State for the Home department [2010] UKSC 31) made the point that internal relocation is not the answer if it depends on the person concealing their sexual orientation in the proposed new location for fear of persecution.
15. Mr Kotas' references to background material related more to the question of the extent to which there was some degree of tolerance of homosexuality and the understanding of the relationship between same sex male behaviour and the availability of female partners. That background material however, does not seem to me to be particularly germane to the question in issue.
16. It was not submitted on behalf of the appellant that his diabetes is a factor in the question of internal relocation. As Mr Kotas pointed out, he had received treatment for that condition in Pakistan for 20 years before coming to the UK.
17. It seems to me that the submissions made on behalf of the appellant, with respect to Mr Layne, fail to grasp the crucial fact that the FtJ found that the appellant is not gay, and would not manifest behaviour as a gay man because he did not wish to do so. That was not out of a fear of persecution but because that was his choice, for the reasons explained by the FtJ.
18. I accept that if the appellant would be required to conceal his sexuality in order to avoid persecution in an area of internal relocation, then there would be a strong, if not irresistible, argument in favour of his being found to be a refugee. However, there is no basis from which to conclude that anyone in the area of relocation would know about his past. No evidence was advanced either before me or before the FtJ to the effect that his family has sufficient influence or reach, let alone incentive, to pursue him throughout Pakistan; that is even aside from the question of whether they would know that he had returned, again about which there is no basis to conclude that they would.
19. At [57] the FtJ recorded what the appellant said in his interview to the effect that he has relatives who live in Islamabad, Peshawar and Hyderabad and that it was easy to trace someone in Pakistan. As to Lahore, the appellant said that his father's friends and brothers live there. However, even if there are friends or relatives of his family in those places, there are other cities in which the appellant could live and in which he would be able to be anonymous.
20. On the question of whether any case had been filed against him as the appellant also said in his interview, there did not appear to be any evidence about that before the FtJ. The FtJ said at [80] that he knew little about that matter and it was not referred to in the appellant's evidence. Accordingly, he concluded that it did not add anything to his reasoning. Again, it was not submitted to me that there is any case against the appellant such that he would be at risk from the authorities. It was similarly not contended that the FtJ's reasoning on this issue was defective, or incomplete.
21. On the basis that the appellant has been found not to be gay, would not act in a way that would suggest that he is gay, and where there is no reason to conclude that any member of his family or anyone associated with them would be able to locate the appellant, I am not satisfied that there is any basis from which to conclude that he would be at risk of persecution at a place of internal relocation in Pakistan. The fact that the FtJ accepted that the appellant's father had taken out newspaper advertisements disinheriting him does not indicate that the appellant would thus be able to be identified wherever he went.
22. No factors particular to the appellant were advanced on his behalf which suggested that it would be unduly harsh to expect him to relocate. Neither his diabetes nor any other factor was relied on.
23. In these circumstances, I am satisfied that the appellant does have available to him the option of internal relocation to one of the major cities, or elsewhere, in Pakistan, where there would not be a risk of persecution and to which it would be reasonable to expect him to go.
24. It was conceded on behalf of the appellant that human rights grounds in terms of Articles 2 and 3 stand or fall with the asylum ground.
Decision
The decision of the First-tier Tribunal involved the making of an error on a point of law. Its decision having been set aside, I re-make the decision by dismissing the appeal on asylum and human rights grounds.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Upper Tribunal Judge Kopieczek 12/08/16