Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01099/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 September 2016
15 September 2016
Given orally at the hearing

Before

UPPER TRIBUNAL JUDGE MCGEACHY

Between

UJW
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Seehra, of Counsel
For the Respondent: Mr T Melvin, Home Office Presenting Officer

DECISION AND REASONS
1. I have decided to set aside the determination in this case. The appellant, who is a citizen of Sri Lanka, born on 12 July 1966 appeals with permission against a determination of Judge of the First-tier Tribunal Maxwell, promulgated on 27 July 2016 in which he dismissed his appeal against the refusal of asylum.
2. The appellant's application was based on his fear of persecution because he was a gay man but not only that he was a gay man but because he had been picked up by the police and detained by them and ill-treated and that that would happen to him again on return because there was still outstanding proceedings against him. In that regard he referred to a letter from a Sri Lankan Attorney-at-Law called Mr A A Seneviratne who had made enquiries of the local court and produced relevant documentary evidence. The judge, without notice to the parties, in his determination stated that he did not accept the certificate from the Attorney-at-Law or his details and went on to say that he was placing weight on the fact that there was no evidence from the Sri Lankan High Commission here that Mr A A Seneviratne was qualified to act as an Attorney-at Law and that this could therefore be a genuine letter. The Judge did not, as one would have expected, refer to the determination in Tanveer Ahmed and view the documentation from the Attorney-at-Law within the relevant context. What he did was that he said he disregarded it and the reason he disregarded it was based on evidence which was not before the court and to which the appellant's representative's attention had not been drawn. That I consider is a clear error of law.
3. Secondly, he makes a finding that the appellant's encounter with a gay man had taken place "in full view" on the beach and that, he found, was lacking in credibility. But that was not the evidence that was before him. The evidence before him was that the encounter had taken place behind the beach or in the undergrowth onto which the beach backed. That is a totally different matter. That again I consider is an error of law.
4. The judge did refer to relevant country guidance but the country guidance is somewhat nuanced because although it states that a gay man would, generally, not have any problems it does indicate that there can be risks of detention and so on and that therefore it cannot be said that the appellant's fear, if he has been picked up by the police, is clearly unfounded. These are matters of fact, and I consider that they need to be looked at again by a judge in the First-tier Tribunal and I consider that this is a case which meets the Senior President of the Tribunal's direction regarding remittals and I remit this appeal to the First-tier for a hearing afresh. The only finding that I will preserve is that the appellant is a gay man.
Notice of Decision
The appeal is allowed only to the extent that it is remitted to the First-tier tribunal for a hearing afresh.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant 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

Upper Tribunal Judge McGeachy 15 September 2016