Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00958/2016

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On April 24, 2017
On April 26, 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

MR W F Y
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
Appellant Mr Ell, Counsel, instructed by R & A Solicitors
Respondent Mr McVeetie (Senior Home Office Presenting Officer)
Interpreter Mr Asghar

DECISION AND REASONS
1. I extend the anonymity order previously made under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 as amended).
2. The appellant is a national of Pakistan. The appellant entered the United Kingdom on February 15, 2014 as a Tier 4 dependant (on his wife’s visa). His stay was extended until September 25, 2015 at which time he claimed asylum. The respondent refused his application on January 15, 2016 under paragraphs 336 and 339M/339F HC 395.
3. The appellant appealed that decision on February 2, 2016 under Section 82(1) of the Nationality, Immigration and Asylum Act 2002 and his appeal came before Judge of the First-tier Tribunal O’Rourke (hereinafter referred to as “the Judge”) on September 29, 2016. In a decision promulgated on October 11, 2016 the Judge allowed the appeal on asylum and human rights grounds.
4. The respondent appealed the Judge’s decision on October 24, 2016 and permission to appeal was granted by Judge of the First-tier Tribunal Grimmett on November 4, 2016. The matter came before me on January 23, 2017 and I heard submissions from both representatives
5. The Judge had recorded the appellant’s own evidence at paragraphs [10] to [18 in his decision but neither the appellant nor the Judge addressed how the appellant would act if he was returned to. The Judge did not explore any issues of safety on return, sufficiency of protection and most importantly whether the appellant would intend to continue to live his life as he did now. For this reason I found an error in law.
6. At the resumed hearing today I took oral evidence from the appellant and his witness Mr S A was also in attendance.
7. During questioning the appellant made it clear that he lived openly as a gay man and had done so for some time. He currently lived with his partner, Mr S A, as partners and they regularly went out together and acted intimately in public. His family were very much against his chosen way of life and he feared that either they or his neighbours, regardless of where he lived, would kill him.
8. Having questioned the appellant Mr McVeetie indicated that he had no questions for the witness and he would accept his statement without challenge.
9. The error in the Judge’s decision was that he failed to explore any issues of safety on return, sufficiency of protection and most importantly whether the appellant would intend to continue to live his life as he did now.
10. Mr McVeetie accepted the background material demonstrated that it would not be possible for him to live openly as a gay man in Pakistan. There was no sufficiency of protection if he chose to lead the life he had in the United Kingdom in Pakistan. He accepted he would be at risk of both persecution and serious harm.
11. I did not require submissions from Mr Ell. Paragraph 3.1.2 of the respondent’s own guidance makes it clear there is a real risk if the appellant chooses to live openly.

DECISION
12. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law and I have remade the decision.
13. I allow the protection claim on asylum grounds.
14. I allow the appeal under article 3 ECHR.

Signed: Dated:

Deputy Upper Tribunal Judge Alis

FEE AWARD
RESPONDENT
No fee is payable so I make no fee award.

Signed: Dated:

Deputy Upper Tribunal Judge Alis