Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00890/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18 October 2016
On 27 October 2016

Before

THE HONOURABLE MR JUSTICE COLLINS
DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

Saihou [S]
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Lewis, Counsel, instructed by Wilson Solicitors LLP
For the Respondent: Mr T Melvin, Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal against the decision of the First-tier Judge which was promulgated on 27 June 2016 whereby he dismissed the asylum claim made by this appellant.
2. The appellant is a Gambian national. He came to this country and he raised an asylum claim which was, as is now accepted, based upon a pack of lies. It is not necessary for us to go into the detail because his original claim did not disclose the matter that he now relies on, namely that he is a homosexual and the attitude in Gambia is that the observations of the president made it clear that this is something which is totally unacceptable and prosecutions of homosexuals and serious discrimination against them has occurred.
3. The appellant did not raise that issue. He sought to rely on assertions that he had been involved in writing articles directed against the President. Unfortunately for him the articles that he relied on were shown not in fact to have been written by him at all when the matter was investigated and that aspect was totally untrue. And indeed he appealed back in 2010 against the then refusal and that appeal was dismissed on the basis that he simply was not credible.
4. Thereafter he raised the homosexuality issue and he made a fresh claim based upon that and feared persecution and the need for humanitarian protection in the alternative based upon that.
5. That was a claim which was rejected. It was at variance with, it was said, the fact that he had had a relationship for three years with a lady. Furthermore it was something which was only raised at the last moment as it was put and when his false claim for asylum was rejected. And he said that he had been involved with another gay person when his false claim for asylum was rejected and he said that he had been involved with another gay person in the Gambia but had not as it appears, suffered any persecution as a result of that. But he relied upon the claim that he was involved in a relationship with a person who he called to give evidence, Mr [R], who was unfortunately seriously disabled but was himself gay and actively involved in the furtherance of gay rights.
6. What led largely to the leave to appeal was the matter which happened in the course of the hearing that whilst there was cross-examination of the appellant it was noted that the judge appeared to have been looking at some electronic device which was thought to be a mobile phone and Counsel then appearing for the appellant sought to raise the issue with the judge because it appeared that he was not paying attention to the evidence that was being given.
7. Rather than dealing with it in what on the face of it would have been the sensible way, indicating if that was the case that he was merely using an electronic device to perhaps make notes or to refer to something or whatever the explanation was, it is said the judge's reaction was to get angry with Counsel and to threaten to report him to the Bar Council.
8. That was unfortunate because it led and reasonably led the appellant to believe the judge being thoroughly hostile to his representative was not going to give him a fair hearing.
9. No doubt the judge was amply justified in deciding that this appellant was a man who lacked credibility and indeed he had been convicted of a number of offences of dishonesty whilst in this country. So his credibility was clearly in tatters but he called Mr [R] to give evidence on his behalf. The judge without giving any reasons directed at why Mr [R] should come and give a dishonest account in favour of the appellant simply rejected his evidence that there had been a relationship. He accepted that the claimant knew and was a friend of Mr [R], but he said that this did not show he, the appellant, was homosexual, merely that he had gone to help Mr [R] because Mr [R] was disabled.
10. It is important of course that justice must be seen to be done and there was the episode which concerned the appellant's then counsel Mr Chirico, reasonably concerned him, and it is plain on what appears to be accepted that the judge had done something to indicate that he was referring to something which was not visible to those representing the parties and that his reaction was as we have indicated. In those circumstances there must be some concern that the view has been reasonably taken on behalf of the appellant that he did not have a fair hearing.
11. It may be that if the reasoning was entirely satisfactory, we would have been able to say that unfortunate though the judge's reaction was, it could not be said to justify allowing the appeal but when we add the refusal to accept Mr [R]'s evidence and the failure of any positive reasons to say that Mr [R] was himself not giving proper evidence and was effectively dishonestly seeking to support this appellant, does add to the concern.
12. The fact is of course that the appellant did not raise the homosexuality issue until after he failed on his other grounds. On the other hand, there is material, which is capable of supporting the reluctance of homosexuals, particularly when they come from a society where that is thoroughly disapproved, to out in all the circumstances.

Notice of Decision
13. In all those circumstances and for the reasons that we have indicated we take the view that this is a case where justice requires that we allow this appeal and remit the matter to be reconsidered by the First-tier Tribunal who will hear all the relevant evidence. We should make it clear that we are not saying and do not say that the appellant will necessarily succeed in his claim in due course. But it is important that he has a proper fair hearing when his case can be properly considered.
No anonymity direction is made.

Signed Date: 25 October 2016

Mr Justice Collins

TO THE RESPONDENT
FEE AWARD
No fee award is granted.

Signed Date: 25 October 2016

Mr Justice Collins