Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00807/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
On 28 October 2016
On 1 November 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

ABUBAKER [A]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr A J Bradley, of Peter G Farrell, Solicitors
For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant appeals against a determination by Designated First-tier Tribunal Judge J G Macdonald, promulgated on 5 April 2016, dismissing his appeal against deportation.
2. The appellant's case was that he is gay, and thereby protected from removal to Somalia.
3. The grounds assert that the judge overlooked evidence which was before him. The judge implied that the claim to be gay was "cooked up at the last minute for the purposes of the appeal", but did not note that the appellant had been charged with domestic assault and breach of the peace in relation to his partner, who was a man. This person gave evidence of a relationship in the past. This showed that contrary to this state of affairs occurring "at the last minute before a deportation hearing in 2016? some 2 years earlier the Procurator Fiscal viewed the relationship as sufficient in nature to conclude that the appellant and [JD] were partners and the appellant should be charged with domestic abuse."
4. Mr Bradley relied on the grounds, and said that the appellant's argument was based on the one clear issue.
5. Mr Matthews submitted as follows. The complaint was dropped. There was no information as to why the Procurator Fiscal decided not to proceed. The existence and terms of the complaint established very little. This feature of the case showed no error in the judge's carefully nuanced reasoning, leading to the conclusion that even if the appellant had a short homosexual relationship, the evidence did not disclose that he is a gay man.
6. Mr Bradley in response said that while the decision gave apparently sensible reasons, they did not withstand reference to the evidence in the criminal complaint. At paragraphs 56 and 57 the judge upheld the respondent's argument that the claim to be homosexual was a last ditch invention, which if true would have emerged much earlier, particularly as the appellant had numerous earlier opportunities to state it. The significance of the criminal complaint was that the appellant had identified himself as gay in quite another context, over a year before he had the motivation of avoiding deportation, and that undermined the judge's reasoning on a crucial issue.
7. I reserved my decision.
8. I think that the appellant's grounds rather overplay the significance which might reasonably attach to the criminal complaint. It does not imply that the Procurator Fiscal must have reached a view on the appellant's general sexual orientation or on the degree of permanence of any same-sex partnership. The apparent fact of a gay relationship was only an additional item in a charge, and the case did not proceed to court.
9. The grounds suggest that the judge may not have been referred directly to the copy of the criminal complaint at the hearing, which would have alerted him to the fact that the allegation was a domestic assault. (The appellant at the time had the same representatives.)
10. The judge's final conclusion might have been the same, even if he had specifically alluded to this point.
11. Nevertheless, I find substance in the ground that it was an important aspect of the judge's thinking that the claim to be homosexual was only an invention when faced with deportation, and that the existence of the complaint was an indication that the appellant acknowledged a homosexual identity, at least to some extent, well before that incentive existed.
12. The point does not appear to have been put to the judge as clearly as it might have been, but the evidence was there. I am persuaded that the absence of reference to this item is a significant enough omission to require the decision to be set aside.
13. Although the refusal letter held that the appellant would not be at risk, even if he is a gay man, the judge did not deal with the case on that alternative.
14. The decision of the first-tier Tribunal is set aside. None of its findings are to stand. The nature of the case is such that it is appropriate in terms of section 12(2)(b)(i) of the 2007 Act and of Practice Statement 7.2 to remit the case to the first-tier Tribunal for an entirely fresh hearing.
15. The member(s) of the first-tier Tribunal chosen to consider the case are not to include Designated Judge Macdonald.
16. No anonymity direction has been requested or made.

31 October 2016
Upper Tribunal Judge Macleman