Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00457/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29 September 2016
Extempore judgment
On 18 October 2016

Before

UPPER TRIBUNAL JUDGE COKER

Between

A A
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr N Armstrong, Counsel, instructed by Sutovic & Hartigan
For the Respondent: Mr S Walker, Home Office Presenting Officer

DECISION AND REASONS

1. I have found a material error of law by the First-tier Tribunal in this appeal, who allowed the appellant's appeal on Article 3 grounds, and I set aside that element of the decision to be remade. I dismissed the other grounds of appeal which were made by both the appellant and the respondent.

2. The reasons for that decision are set out in the error of law decision which was promulgated on 7 June 2016. That error of law decision also included directions. Those directions were for the appellant if so advised to file and serve a witness statement to stand as evidence-in-chief concerning her conduct in the UK and her conduct in Uganda in terms of HJ (Iran); that witness statement to be filed and served within 21 days of the sending out of my error of law decision.

3. The Secretary of State was then to notify the appellant through her solicitors and to notify the Tribunal within 21 days of the filing of that witness statement whether she wished to cross-examine the appellant. Unfortunately, there appears to have been an administrative failure on the part of the Secretary of State and they misfiled or did not note properly the receipt of the witness statement although it is acknowledged by Mr Walker that the witness statement was received. The witness statement was filed a couple of days late. The Secretary of State did not respond to the direction that she notify the appellant and the Tribunal whether she wished to cross-examine the appellant.

4. On 5 September the appellant's solicitors wrote to the Secretary of State pointing out the non-compliance and saying that in the absence of an application, presumably they mean a notification, then the appellant would not now be brought to the Tribunal for cross-examination. The Secretary of State acknowledged having received that letter but did not respond to it and on 28 September, the day before this hearing, the appellant's solicitors received a telephone call from the Presenting Officers' Unit saying that the directions had been logged incorrectly. It was confirmed that the letter of 5 September had been received but there was no request for the appellant to attend.

5. Mr Walker was placed in quite a difficult position and says that he had considered whether to ask for an adjournment but had reached the view that that adjournment request would be objected to and the Secretary of State had had opportunity to say that she wished the applicant to attend even as late as yesterday and that that request was not made. He was therefore not asking for an adjournment for the appellant to come to court to enable her to be cross-examined.

6. At the commencement of today's hearing I asked if it was accepted by the Secretary of State that the appellant would only behave discreetly on return to Uganda because of the fear of being at a real risk of serious harm. Mr Walker accepted that on that basis she would receive Article 3 protection. He said that the issue of whether the appellant would be at real risk of serious harm would have to be looked at through the prism of HJ (Iran) and the current circumstances that the appellant would face on return to Uganda.

7. The Secretary of State's position was that the appellant would not be at risk on return although Mr Walker accepted the, now unchallenged, evidence in the appellant's statement was that she fears return because of her sexuality and the risk of serious harm that she would sustain if she failed to hide her sexuality.

8. The appellant in her witness statement makes very clear that she would want to express her sexuality freely and openly and that if returned to Uganda she would fear a real risk of persecution and serious harm because of being a gay woman. She states that she would be forced to live somewhere where she could not express her sexuality at all and that she could not bear to live her life in that way. She says that she would have to regress and hide away, having now come to terms with who she was and that this would be disastrous for her. She states that she is comfortable with her sexuality and she wanted to be in an open, loving and committed relationship which she could exist in safely without having to be secretive and always looking over her shoulder in fear.

9. On the basis of her uncontested and unchallenged evidence I am satisfied that if the appellant returned to Uganda she would only behave discreetly because of a real objectively sustainable fear of serious harm from the authorities in Uganda. On that basis and given the Secretary of State's position, having looked at those matters through the prism of HJ (Iran) I am satisfied that the applicant meets all of the criteria set out in paragraph 82 of HJ (Iran). Those questions and the appellant's responses identify that this appellant would be at real risk of serious harm and I therefore allow her appeal on Article 3 grounds.

Decision

The appeal is allowed on 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 her or any member of her 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.

Date 17th October 2016

Upper Tribunal Judge Coker