Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01217/2015

THE IMMIGRATION ACTS

Heard at Columbus House, Newport
Sent to parties on:
On 21 September 2016
On 17 November, 2016

Before

DEPUTY UPPER TRIBUNAL L J MURRAY

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

S A
(ANONYMITY DIRECTION MADE)

Respondent

Representation:
For the Appellant: Mr Richards, Home Office Presenting Officer
For the Respondent: Mr Neale, instructed by the Migrant Legal Project

DECISION AND REASONS

1. For ease of reference I refer to the Appellant in this appeal as the Secretary of State and the Respondent as the Claimant. The Claimant is a citizen of Morocco. The Secretary of State made a decision on 3 September 2015 to refuse his protection and human rights claim on the basis that he was a foreign criminal and his deportation was conducive to the public good because none of the exceptions in section 33 of the UK Borders Act 2007 applied.

2. The Claimant appealed against that decision under section 82 (1) of the Nationality, Immigration and Asylum Act 2002. His appeal was allowed on asylum grounds by First-tier Tribunal Judge O'Brien in a decision promulgated on 17 March 2016. The Secretary of State sought permission to appeal that decision and permission was granted on renewal by Upper Tribunal Judge Kekic. The grant of permission states that all grounds relied on by the Secretary of State are arguable.

The Grounds

3. The Secretary of State submits that the findings of the First-tier Tribunal on the Claimant's sexuality are wholly circumstantial and reliant upon irrelevant evidence to support the conclusion that he was gay as claimed. It is asserted that the First-tier tribunal accepted that the Claimant suffered sexual abuse as a child and therefore was likely to be confused about his sexual identity but this did not establish he was gay. The grounds state that the medical evidence suggests as a general presumption that victims of sexual abuse may identify themselves as gay but that this does not establish that the Claimant is a homosexual but is indicative of a trend of responses noted by Dr Battersby.

4. The Secretary of State asserts that the First-tier Tribunal has "circumvented" its role as judicial fact finder by using the medical evidence to establish the Claimant's credibility which is said not to be the correct approach (Mibanga v SSHD [2005] EWCA Civ 367). It is further submitted that the Claimant has an appalling immigration history and the First-tier Tribunal is quick to diminish those adverse credibility points on the generalised presumption that such practices are commonplace in protection claims. The Secretary of State submits that this finding misses the point as the Claimant has a poor immigration history and has sought to circumvent controls by arriving in the UK using a false document, repeatedly using false documents to evade detection, failing to claim asylum in the first safe country and delaying claiming asylum in the UK until he became liable for deportation. It is argued that such conduct is not indicative of a person with a well-founded fear of persecution as highlighted by s8 of the 2004 Act. These factors should not be ignored in the overall assessment of credibility and it was incumbent on the First-tier Tribunal to engage fully with the Secretary of State's complaints in this regard particularly as there is a lack of corroborative evidence in relation to the core of his case, namely his sexuality.

5. The Secretary of State asserts that the medical evidence does not establish the Claimant's sexuality and nor does the evidence of Mr S, his witness. The mere fact that he was seen in gay club with European men is said not to support the contention that he is gay. It is argued that the First-tier Tribunal's findings on asylum are rendered unsound. Further, the First-tier Tribunal is said to have made no findings on the likelihood that the Claimant would require international protection on the basis of perceived reprisals from the Muslim Brotherhood and noted that there was insufficient basis to suppose outside of sexuality, it would be unreasonable for him to internally relocate within Morocco.
6. With regard to deportation, the Secretary of States submits that the First-tier Tribunal has made no findings in relation to the Claimant's deportation beyond the asylum findings. The Secretary of state maintains that deportation would be appropriate.

The Hearing

7. Mr Richards said that the Claimant claimed asylum in 2014 having come to the UK 16-17 years ago. He claimed asylum on the basis of his sexuality and it was conceded on behalf of the Secretary of State that if he were gay he would be at risk on return to Morocco. The First-tier Tribunal found that he was gay and he was as a consequence at risk. The First-tier Judge in effect relied on the medical evidence to establish credibility which was not the correct approach. The Judge in effect relied on the medical evidence in discounting the Claimant's appalling immigration history. He came here with a forged Belgian passport and stayed here illegally before making his asylum claim. As was highlighted by section 8 the conduct exhibited by the Claimant was not indicative of a person with a well-founded fear of persecution and the Judge failed to give weight to section 8 in his findings. The Judge referred to the Claimant's witness who was not the sexual partner but his evidence at paragraph 38 of the determination was that he had seen him in gay clubs and believed that he was gay. It could not be sensibly argued that someone who attends a gay club is gay. The Judge in effect concluded that he was gay as a consequence of inadequate reasoning and made no findings against the Claimant's deportation beyond the asylum findings. The decision should be set aside and reheard.

8. Mr Neale submitted that this was a disagreement with the findings of the First-tier Tribunal and it was a way of disguising a perversity challenge in different clothes. At paragraphs 63 to 66 the Secretary of State misunderstood the First-tier Tribunal's reasoning. The Judge was saying at paragraph 63 that in light of the fact that he was sexually abused and persecuted in Morocco the discrepancies and inconsistencies found by the Respondent were explained. He was not saying that he was sexually abused as a child and therefore he was gay. Judge O'Brien had accepted that there was a psychological explanation. Judge O'Brien had taken the medical evidence into account as corroborative evidence in relation to sexuality. Dr Clarke's report strongly corroborated his account and the Judge was entitled to take it into account. Paragraph 6 of skeleton argument set out how the medical report should be approached. Dr Battersby did not assess whether he was gay but she was able to say that his mental condition was consistent with his history. She had taken a psycho-sexual history. The Judge had considered the medical evidence in the round and had concluded that it supported his credibility. It was not an error of law that the Judge found him to be credible. The case of JT (Cameroon) v SSHD 2008 EWCA Civ 878 made clear that s8 did not compel an adverse finding on credibility. The Judge had considered the Appellant's immigration history at paragraph 60 and 63 and explained why it did not undermine a finding of being gay. There were compelling realistic reasons why the Claimant could not raise his feelings with the Secretary of State's decision-maker. The Judge was entitled to make that finding. What the Secretary of State was really doing was making a perversity challenge and a perversity challenge would not have succeeded. There was no error of law of any kind. The Secretary of State did not like the result. The Judge did not think the witness' evidence was determinative of the claim and he took into account the evidence and found it to be corroborative. He took it into account in the round as one of the many factors and was entitled to do that.

9. Mr Richards said that the Judge made findings at paragraph 63, then quoted from guidelines and quoted from Dr Battersby's report and then accepted that he was gay. If one asked the question "why do you accept that he is gay?" there was no sensible answer and he took into account irrelevant considerations and the decision was wrong in law.

Discussion and Findings

10. The First-tier Tribunal found that the Claimant was a vulnerable witness and suffering from moderate complex PTSD and moderate depression, with at least a degree of cognitive deficit. There were two aspects of the Claimant's claim to be at risk of persecution. He claimed firstly that he would be at risk of reprisals from the Muslim Brotherhood in Morocco because he had provided the names of individuals to the police and suffered a serious physical and sexual assault as a result from the families of those arrested. The First-tier Tribunal found at paragraph 62 of the decision that the Claimant's account of being severely beaten and raped by the families of Muslim activists was reasonably likely to be true. No direct challenge has been made to this finding in the grounds or in submissions. The First-tier Tribunal gave cogent reasons, grounded in the medical evidence, why he considered this aspect of the Claimant's account to be true. However, he did not consider whether the Claimant would have a well-founded fear of persecution on return as a result of this aspect of his account and did not allow the appeal on this basis. He specifically stated that in the light of his finding that the Claimant was gay and was entitled to a grant of asylum on this basis it was not necessary to consider the alternative.

11. The First-tier Tribunal's findings and reasons as to why the Claimant was gay are set out at paragraphs 63 to 67 of the decision:

"63. Turning to whether the Appellant is gay, as he claims, I recognise that he did not raise this issue until the end of his first asylum interview. I take into account also the Respondent's submissions as to the apparent inconsistencies in this aspect of his account. However, it has been the Appellant's consistent account that he was abused as a young child by his teacher and he was deeply ashamed of what had happened. It appears to be accepted by the Respondent that gays are persecuted in Morocco. It is unsurprising then that the Appellant would go to extreme lengths to disguise his sexual preferences.

64. The UNHCR Guidelines in International Protection dealing with claims to refugee status based on sexual orientation etc (HCR/GIP/12/09) say at paragraph 33:

'Being compelled to conceal one's sexual orientation and/or gender identity may also result in significant psychological and other harms. Discriminatory and disapproving attitudes, norms and values may have serious effect on the mental and physical health of LGBTI individuals and could in particular cases lead to an intolerable predicament amounting to persecution. Feelings of self-denial, anguish, shame, isolation and even self-hatred which may accrue in response to an inability to be open about one's sexuality or gender identity are factors to consider, including the long-term.'

65. Indeed, Dr Battersby remarks on the Appellant's apparent confused sexual identity, of his pattern of needing to become intoxicated before having sex, and of 'blaming' the childhood abuse for his sexuality. In the circumstances, I accept that it is entirely plausible that he would not know Steve's surname, or birthday, whilst still considering them to be in a relationship, and also that the Appellant would use pejorative terms for other gay men.

66. It was not challenged that Mr Saleh had seen the Appellant in the company of European gay men at gay clubs in around 2009. Whilst that in itself would not weigh heavily in the balance, it adds to a general picture of a culturally conflicted individual, wanting to be openly gay but scared of the reaction of his community.

67. Considering the evidence in the round, I accept that the Appellant is gay. I further accept that he wishes to live openly as a gay man and that, if returned to Morocco, would only hide his sexuality through a well-founded fear of the consequences of doing otherwise. "

12. The Respondent set out in the refusal letter why she concluded that the Claimant was not gay. There were a number of inconsistencies in his account. Firstly, he had claimed during his third asylum interview that when he was aged 17 or 18 he was in a sexual relationship with a male British national named David who was staying in Tangiers. He also stated that he had sexual experiences with other men. However, in his second interview he had claimed that he was gay only when he arrived in the UK. He had further given an inconsistent account in interview as to who was aware he was gay in Morocco. In his second interview he had said that there were threats to his life because he was gay from the Muslim Brotherhood and had said at a different point in interview that no one in Morocco was aware he was gay. He had also provided an inconsistent account of the relationships he had had in the UK stating that he had three sexual partners and all had been male and at another point that he had sexual relationships with two females in the UK. He had stated that he was in a relationship with an Australian male named Steve for three years and that he visited every August. He sometimes spent a week with him and sometimes a night but did not know his surname and where he was from in Australia. He did not know his exact age or date of birth. The Respondent had concluded that he should have been able to provide more than this basic information about an individual that he claimed to have been in a relationship with for three years. He had also provided an inconsistent account about when he last saw Steve, stating that he last saw him in August 2013 and on New Year's Eve 2012.

13. Further, the Secretary of State concluded in the refusal letter that his account was not believable because he had only claimed asylum in the UK after 16 or 17 years living here and after his arrest and his notification of liability for deportation. Further, he had only claimed he was gay at the very end of his asylum interview.

14. The First-tier Tribunal's at paragraph 63 appears to conclude that the inconsistencies in the Claimant's account with regard to being gay are explained by his abuse as a young child by his teacher. This on the face of it appears to be a non-sequitur. However, reading the determination as a whole, at paragraph 42 the Judge records Dr Clark's observation that the late disclosure of reported childhood sexual abuse and of his sexual orientation could be caused by gender-based persecution which causes shame and stigma which could in turn affect memory and disclosure. He records her opinion that there were also significant medical reasons, including features of PTSD, which might account for late disclosure and discrepancies in interview.

15. However, what the First-tier Tribunal does not do in paragraph 63 is to make a finding that the medical evidence in relation to the Claimant's account explains the inconsistences. Whilst the medical evidence, which was not overtly referred to in paragraph 63 of the decision, provides a reason which might account for discrepancies in interview this does not obviate the need for the Tribunal to make a finding of why in this case it does, particularly in view of the large number of inconsistencies highlighted by the Respondent and addressed by the Claimant in his statement.

16. The First-tier Tribunal also relies at paragraph 65 of the decision on Dr Battersby's evidence in relation to the Claimant's apparent confused sexual identity as explaining why the Claimant would not know Steve's surname or birthday. The part of Dr Battersby's report relied on is summarised by the First-tier Tribunal at paragraph 47 of the decision. The Judge records that Dr Battersby observed that it was not uncommon for male victims of sexual assault to claim that they were gay because of the assault (as the Claimant had done) and the need to become intoxicated before sex was likely to be as a result of abuse. What the First-tier Tribunal does not do, however, is to adequately explain why, in the light of the Claimant's three year summer relationship with Steve, his confused sexual identity and childhood abuse explains the discrepancies in relation to the lack of knowledge of his exact age, his name and the last time he saw him.

17. The inconsistencies in relation to the Claimant's sexuality were numerous and the lateness of his claim after his arrest and the decision to deport were matters that needed to be engaged with fully. It is clear from JT (Cameroon) v SSHD 2008 EWCA Civ 878 that the First-tier Tribunal was not required to find that section 8 inevitably damaged his credibility. However, in this case I find that the First-tier Tribunal relied on the medical evidence and did not make sufficiently reasoned findings in the light of the numerous inconsistencies in the evidence and adverse points made by the Secretary of State in relation to the Claimant's credibility.

18. With regard to ground 2, the First-tier Tribunal did not set out the legal framework in relation to deportation in the decision. However, having found that the Claimant was a refugee he was entitled to find that he met one of the exceptions to automatic deportation in section 33 (2) of the UK Borders Act 2007 and was entitled to allow the appeal on this basis. However, I have found that there was an error of law in relation to his findings on the asylum claim.

19. The findings of fact in relation to the Claimant's past treatment by the Muslim Brotherhood are preserved. In the light of the fact finding required taking account of Part 7.2 (a) of the Practice Statements for the Immigration and Asylum Chamber of the First-tier Tribunal and Upper-Tier Tribunal I remit the matter to the First-tier Tribunal.

Conclusions:
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

I set aside the decision with the findings of fact referred to in paragraph 19 above preserved.

I remit the matter to the First-tier Tribunal for re-hearing.

Anonymity

The First-tier Tribunal made an order and I continue that order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008). Unless and until a Tribunal or court directs otherwise, the Claimant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Claimant and to the Secretary of State. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Dated

Deputy Upper Tribunal Judge L J Murray