Tribunal decisions

The decision

IAC-AH- -V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00782/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 January 2017
On 17 January 2017

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

MD
(ANONYMITY DIRECTION made)
Respondent

Representation:
For the Appellant: Mr C Avery, Senior Home Office Presenting officer
For the Respondent: Ms H Foot, counsel instructed by Tower Hamlets Law Centre

DECISION AND REASONS

Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge Andonian, promulgated on 7 November 2016. Permission to appeal was granted by First-tier Tribunal Judge Page on 24 November 2016.

Anonymity
2. A direction has been made previously, and this is repeated below.
Background
3. It is the respondent's account that he and his two brothers were brought to live in the United Kingdom during 1997 by his father. The respondent's presence in the United Kingdom came to light on 18 May 2003 when he was arrested for an offence. Shortly thereafter, the respondent made a human rights application which was refused. His appeal against that decision was dismissed on 21 April 2006.
4. On 16 November 2010, the respondent was convicted of two offences related to fraud and sentenced to 20 months' imprisonment. On 22 December 2011, he was convicted of intending to pervert the course of justice, six counts of false representations and sentenced to a further 20 months' imprisonment.
5. The Secretary of State advised the respondent of his liability to deportation on 19 December 2011. The deportation order was signed on 15 May 2013. The appellant's appeal against deportation was dismissed following a hearing on 27 September 2013. His appeal rights were exhausted on 13 January 2014.
6. The respondent then made an application for a residence card as an extended family member of a European Economic Area national. That application was refused on 22 January 2014. A further application on the same basis was refused on 20 February 2014 with a right of appeal which the respondent exercised. The decision of 20 February 2014 was withdrawn and following reconsideration, the Secretary of State refused the application again on 11 April 2014 with no right of appeal.
7. On 17 February 2014, the respondent applied for asylum on the basis that he feared persecution on religious grounds. On 26 February 2014, the respondent amended the basis of his claim to include sexual orientation as well as to include a human rights claim.
8. The Secretary of State, on 2 September 2014, refused the claims and certified them under section 96 of the Nationality, Immigration and Asylum Act 2002. Ultimately, those claims were reconsidered and refused on 5 August 2015, with an in-country right of appeal. Essentially, the Secretary of State did not accept that the respondent was a bisexual man or would be treated as such in Ghana owing to the lack of detail or evidence to support his claims. Nor was it accepted that there was any evidence that he would face persecution as a Nyahbinghi Rastafarian, which it was accepted he was. In relation to the respondent's Article 8 claim, it was not accepted that he was in a genuine and subsisting relationship with his claimed partner, HW principally owing to the respondent's failure to mention her previously. Alternatively, it was not considered to be unduly harsh for HW to accompany the respondent to Ghana or remain in the United Kingdom without him. The Secretary of State was of the view that the respondent did not meet the requirements of paragraph 399A of the Rules in relation to his private life and there were no very compelling circumstances to outweigh the clear public interest in his deportation.
The hearing before the First-tier Tribunal
9. At the hearing before the First-tier Tribunal, the respondent, his siblings, friends and a previous partner (MK) gave evidence. There was also expert evidence from an anthropologist and consultant psychiatrist. The judge concluded that the respondent was bisexual; that he had a well-founded fear of persecution in Ghana on that basis and allowed the appeal on refugee grounds.
The grounds of appeal
10. There were two grounds of appeal in support of the Secretary of State's application. Firstly, that the judge failed to give any or any adequate reasons for his findings as to the respondent's sexual orientation. Secondly, it was argued that the judge failed to resolve conflicts of fact or opinion in relation to the respondent's sexuality and failed to take into account his convictions for fraud and dishonesty, his immigration history and the late disclosure of his sexuality.
11. Permission to appeal was granted on the basis sought.
12. The respondent's Rule 24 response, received on 5 January 2017, argued that the grounds of appeal amounted to no more than a disagreement with the judge's factual findings. Otherwise, in essence, it was argued that the judge gave "cogent and discernible" reasons for finding that the respondent was bisexual; the respondent's case was supported by witness evidence and that the Secretary of State's representative did not challenge the respondent's credibility, other than by relying on the refusal letter. It was contended that the judge considered the respondent's offending behaviour and his submissions regarding the delay in disclosure.
The hearing
13. Mr Avery submitted that the Secretary of State's challenge was founded on a lack of reasoning and a failure by the judge to take into consideration the respondent's history in relation to the key issue of his sexuality. The judge heard evidence from witnesses at the hearing and in a short determination said no more than that. He reached no conclusions regarding the credibility of those witnesses; gave no reasons for accepting the respondent's sexuality, or why would be at risk on return to Ghana. What the judge said at [20] of his decision and reasons was all that he said about the nature of the evidence. He gave very little reasoning for finding the respondent credible.
14. Mr Avery referred to the grounds of appeal where the respondent's criminal history, previous appeal hearings and the very late claim to be bisexual were set out at 1(f). None of these matters were factored into the judge's credibility findings as far as it was possible to tell. Mr Avery accepted that a judge does not have to explain every issue, however the respondent's sexuality was the key issue and some reasoning was required.
15. Ms Foot accepted that it was a relatively brief determination, not as detailed as many but she argued that it did not meet the threshold for a reasons challenge. She relied on VV (grounds of appeal) Lithuania [2016] UKUT 00053 (IAC). Ms Foot argued that the Secretary of State must establish that the judge's reasons were so unclear that it is not possible to discern what they were or that they were irrational which was not the case here.
16. Ms Foot referred to the volume of evidence before the judge including the respondent's witness statement setting out his sexual identity and behaviour plus traumatic experiences including a homophobic attack and rape when in prison. There was a psychiatric report from Professor Katona mentioning that the respondent's symptoms of depression, anxiety, suicidal ideation were consistent with his account. In addition, there were several witnesses, including a current partner, previous partner, a bisexual friend and a sibling. Ms Foot argued that it was clear that the judge accepted that evidence as credible. With reference to [20] Ms Foot contended that if the judge had rejected the evidence, only then would it have been necessary to give more reasons. It was sufficient for the judge to describe it as it was given the volume of evidence. At [24] the judge referred to a plethora of evidence. Ms Foot, who was before the judge, stated that the Presenting Officer said nothing by way of submissions other than that the reasons for refusal letter was relied on. The main issue before the judge was whether the respondent would be discreet on return to Ghana. At this point, Mr Avery stated that the Presenting Officer's note said nothing, one way or the other, regarding what submissions were made. Ms Foot continued, stating that the respondent's past criminal history was clearly and expressly taken into account at [25]; the only relevance of these document offences were that it may impact on credibility, but it was not a deportation appeal. The decision in the respondent's previous appeal (P1 of the Secretary of State's bundle) had limited relevance as sexuality was not raised before and there was no credibility challenge.
17. With regard to delay, Ms Foot argued that it was not unusual for there to be such in disclosure of sexual orientation. She conceded that the judge did not expressly deal with delay but argued that one could infer that delay was not significant and that he had addressed one of the credibility issues made in the reasons for refusal letter at [14
18. In reply, Mr Avery asked me to note that it was argued that the judge accepted the credibility of the witnesses, however there was no evidence of this. Nor was there any evidence the judge addressed the late disclosure. He argued that the judge should have dealt with these points which were relevant in view of the respondent's previous record of dishonestly. What the judge said at [20] was wholly inadequate. Mr Avery stood by the grounds of appeal.

Decision on error of law
19. The judge made a material error owing to providing no or inadequate reasons for his positive credibility findings.
20. Ms Foot relied upon the decision in VV. The headnote at (1) reads as follows;
An application for permission to appeal on the grounds of inadequacy of reasoning in the decision of the First-tier Tribunal must generally demonstrate by reference to the material and arguments placed before that Tribunal that (a) the matter involved a substantial issue between the parties at first instance and (b) that the Tribunal either failed to deal with that matter at all, or gave reasons on that point which are so unclear that they may well conceal an error of law.
21. The judge's decision and reasons was particularly brief, at some 26 paragraphs over around 4 pages, given that it was an asylum claim relating to a person with a 19-year complex immigration history, significant offending and two previous determinations and where the credibility of his account was in dispute.
22. The key issue was of course whether the respondent to this appeal was bisexual. Paragraphs 23 to 33 of the reasons for refusal letter went into some detail in rejecting this aspect of the respondent's claim owing to the lack of detail given by him when interviewed and the lack of supporting evidence. At [33] it was noted that he was in 5-year relationship with a female and he would not be perceived as gay were his partner to accompany him to Ghana. In addition, the respondent had a deportation appeal dismissed in 2013 in which it was noted that he was known by at least seven aliases; that the judge at his sentencing hearing on 16 November 2010 remarked that he was part of a sophisticated operation to defraud the banking system and the judge at his sentencing hearing on 22 December 2011 noted that over many years he had adopted false identities and used them to his own financial advantage. The most recent offences including submitting false documents to the Department of Work and Pensions. There is also the very late stage at which the respondent raised his claim to be bisexual. The judge had the following to say about the credibility of the respondent's claim to be bisexual at [20];
"The appellant had put forward a consistent and plausible account of his sexual orientation was supported by third party evidence form(sic) former partners and siblings. One of his former partners had also attended and gave evidence. His name was (MK) and details have been given above."
23. The above paragraph is devoid of adequate reasoning in the circumstances of this case. As conceded by Ms Foot, the judge did not address the issue of delay at all. Nor did the judge make anything other than a passing reference to the respondent's offending history. At [25] he merely notes that there were several criminal convictions and the use of aliases. There was no discussion of the nature of these convictions in relation to the credibility of the respondent's protection claim.

24. Only at [14] is there a glimmer of a reason for a positive credibility finding, where the judge states that it could not be said that the respondent gave no details or that no supporting evidence was supplied. Indeed, as the judge notes there was a plethora of documentary evidence before him. Unfortunately, the judge failed to assess that evidence, give reasons why he found the witnesses credible or why the respondent's offending and immigration history was held not to adversely affect the credibility of his claims. Therefore, both limbs of 1) in VV are satisfied; in that the respondent's sexuality was a substantial issue and the judge's reasons failed to deal with the respondent's concerns as to the credibility of that account.

Conclusions
The making of the decision of the First-tier Tribunal did involve the making of an error of on a point of law.
The decision of the First-tier Tribunal is set aside.
The appeal is remitted, de novo, to the First-tier Tribunal to be reheard at Taylor House, with a time estimate of one day by any judge except First-tier Tribunal Judge Andonian, KR Moore & Colyer.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant MD is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their 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.

Signed Date 23 June 2021

Upper Tribunal Judge Kamara