Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00752/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
On 1 March 2017
On 3 March 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

JEFF UGHELIE
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr M Shoaib, of Shoaib Associates
For the Respondent: Mrs M O’Brien, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant sought protection, based on being a homosexual from Nigeria.
2. The respondent’s reasons for refusing that claim are set out in a letter dated 22 January 2016.
3. The appellant’s grounds of appeal to the FtT were generic, raising no specific issue.
4. The FtT’s reasons for dismissing the appeal are set out in a decision by Judge Nicholls, promulgated on 25 November 2016.
5. The grounds of appeal to the UT contend at paragraphs 4 and 5 that the judge at paragraph 14 found inconsistency where none existed between risk of kidnap due to the wealth of the appellant’s father and risk due to his sexuality.
6. This part of the grounds tries rather vaguely to find difficulty where none exists. The decision is quite clear about the two strands of evidence and draws no “adverse link” based on “entirely unrelated facts”.
7. Paragraphs 6 to 8 of the grounds aim to show that the judge accepted that the appellant was homosexual (which would have made out his case) but wrongly based his conclusion on the appellant’s account being in detailed respects unsatisfactory.
8. This is not a fair reading of the passages cited from paragraph 20 of the decision, or of the decision as a whole.
9. Paragraph 9 of the grounds says that paragraph 21 of the decision “dismisses” medical evidence because of other concerns, “not particularised in any meaningful way”, when it ought to have been assessed “individually before cumulatively”.
10. This ground is also too vague to get anywhere. As the presenting officer pointed out, the medical evidence was only a detention centre report which showed some consistency between examination of the appellant and allegations of ill-treatment. The evidence was not “dismissed” and at highest was not significantly probative of the appellant’s claim; little more than neutral.
11. The final point made in the grounds at paragraph 10 is the one which led to the grant of permission. At paragraph 23 the judge said, “The appellant has not shown ... a real likelihood that he is actively homosexual”. This is said to have been an error of accepting the appellant’s sexuality, but doubting how open he was in Nigeria, when his orientation was all he had to show.
12. Mr Shoaib submitted further to all the grounds. He emphasised the concession by the respondent on what the appellant needed to establish; the evidence from his sister and brother; the consistency among the witnesses; the existence of a detailed police report; the background evidence, particularly the recently greater penalisation of homosexuality in Nigeria; and in particular, he said that there had been no need for the appellant to show that he had been “actively homosexual” in Nigeria.
13. I find that the judge made no finding at any point of his decision that the appellant is homosexual, and did not fall into the error of approach (contrary to the express concession he recorded) that some finding of activity rather than orientation was required; and that the rest of the grounds and submissions amount to no more than insistence and disagreement.
14. The judge set out the question to be answered clearly at paragraph 13. The rest of the decision, read fairly and as a whole, does not show that he lost sight of it. The sentence in paragraph 23 on which the only serious challenge is based is at worst carelessly worded. It is followed in the same paragraph by, “I find that the appellant has not shown a well-founded fear … on the basis of his homosexuality.” All doubt is removed by paragraph 24, “… the appellant has not shown that he is homosexual …”.
15. The determination of the First-tier Tribunal shall stand.
16. No anonymity direction has been requested or made.

2 March 2017
Upper Tribunal Judge Macleman