Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01285/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 August 2016
On 22 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

SI
(ANONYMITY DIRECTION made)

Appellant
and

Secretary of State FOR THE Home Department

Respondent

Representation

For the Appellant: Ms H Masood, Counsel instructed by Law Dale Solicitors
For the Respondent: Mr S Walker, Home Office Presenting Officer

Anonymity

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) we make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

DECISION AND REASONS
Introduction
1. By my decision promulgated on 27 June 2016 (appended to this decision), I set aside the decision of the First-tier Tribunal ("FtT"). I hereby remake the decision of the FtT.
2. The appellant is a citizen of Bangladesh born on [ ] 1982. In his asylum application, made on 6 January 2016, he claimed to fear persecution for three reasons: 1) his sexual orientation; 2) his political affiliation; and 3) threats he received over an unpaid loan. The respondent rejected his application in its entirety.
3. At the error of law hearing, I found that the FtT had made an error of law in respect of its consideration of the appellant's sexuality but not with regard to the other parts of the appellant's asylum claim. Accordingly, the only aspect of the asylum claim at issue before me at the rehearing was the appellant's claim to be at risk on return to Bangladesh because he is homosexual. I also heard submissions on the appellant's claim that his removal from the UK would breach Article 8 ECHR.
Evidence and findings of fact
4. At the rehearing of the appeal I heard oral evidence from the appellant and his partner.
5. The consistent and unchallenged evidence before me was that the appellant has, since 2011, been in a homosexual relationship with his UK national partner and that they are now cohabiting civil partners. In his submissions, Mr Walker, on behalf of the respondent, accepted that the evidence of the appellant's partner was credible and that he and the appellant have been in a homosexual relationship since 2011.
6. Having considered the evidence before me, both written and oral, and having regard to the submissions of Mr Walker as to the appellant's partner's credibility, I make the following findings of fact:
a. The appellant is homosexual.
b. The appellant is in a genuine and subsisting homosexual relationship with a UK citizen with whom he has entered into a civil partnership.
c. The appellant has not revealed his sexuality to family members, both in the UK and Bangladesh, as he fears they would react negatively due to their cultural and religious attitudes.
d. The appellant's partner, who was born on 21 July 1943, helps support his step brother who has Parkinson's. He visits his step brother, who lives alone, 3 or 4 times a week.
e. Both the appellant and his partner consider it unlikely the partner would move to Bangladesh if the appellant were removed from the UK, given the attitude to homosexuality in that country and how they anticipate they would be perceived if they lived together even if they tried to conceal their homosexuality.
7. The objective country evidence about Bangladesh adduced by the appellant describes a situation in which homosexuality is unlawful and where the authorities fail to provide protection to homosexuals in an increasingly hostile cultural and religious environment. Ms Masood referred to a number of reports and articles in her submissions to support her contentions about the risks faced by homosexuals in Bangladesh. Mr Walker did not express any disagreement with her submissions or seek to argue that the situation in Bangladesh is other than that described by Ms Masood.
Submissions
8. Ms Masood made detailed submissions about the appellant's sexuality and the risks he would face, in consequence of his sexuality, in Bangladesh. She also argued that the appellant, who has a civil partner, is able to satisfy the conditions of both Appendix FM and Paragraph 276ADE of the Immigration Rules.
9. Mr Walker, although not conceding the appeal, accepted that the evidence as to the appellant's sexuality was credible and did not challenge the country information evidence as to the position of homosexuals in Bangladesh. In respect of the Article 8 claim, Mr Walker acknowledged the appellant is in a civil partnership and that the relationship had been in existence since 2011.
Consideration
10. Following the approach of the Supreme Court in HJ (Iran) [2010] UKSC 31, there are a series of questions to address where a person claims asylum on the basis of his sexuality (see paragraphs [35] and [82] of HJ where the applicable test is set out).
11. The first question is whether the appellant is homosexual or would be treated as homosexual in Bangladesh. I am satisfied, for the reasons I have given, that the appellant is homosexual and therefore that this stage is satisfied.
12. The next question to ask is whether homosexuals in Bangladesh who live openly are liable to persecution. The objective country evidence before me, which was not challenged by Mr Walker, supports the view that there is a real risk of persecution to an openly homosexual man in Bangladesh.
13. The next question to ask is what the appellant would do if he were returned to Bangladesh. My finding in respect of this question is that he would conceal his homosexuality and live discreetly. The appellant has not revealed his homosexuality, or that he has entered into a civil partnership, to his family (either in the UK or Bangladesh) and I consider it very unlikely that he would voluntarily disclose this information upon return to Bangladesh. Indeed, one of the concerns of the appellant about his civil partner moving to Bangladesh with him is how they would manage to live together whilst concealing their homosexuality.
14. The next question to ask is why the appellant would live discreetly in Bangladesh and whether a material reason for so doing would be a fear of persecution that would follow if he were to live openly as a homosexual. Whilst part of the reason the appellant would be discrete is to avoid conflict with family and to maintain relationships that might be irreparably damaged by a revelation that would be subject to strong disapproval, the evidence of appellant - which I accept - is that a significant reason for discretion would be to avoid the adverse attention, threats and risks that he fears will ensue if it becomes known in Bangladesh that he is homosexual.
15. Accordingly, I am satisfied, applying the lower standard of proof applicable in asylum cases, that the appellant has a well founded fear that he will be persecuted in Bangladesh as a consequence of his sexual orientation.
16. Having found that the appellant is entitled to protection as a refugee, it is not necessary for me to determine his appeal under Article 8 ECHR. However, for completeness, I have considered the appellant's claim under Article 8 and find that he is able to satisfy the requirements of Appendix FM to the Immigration Rules.
17. In order to meet the requirements under EX.1(b) of Appendix FM, the appellant must show, on the balance of probabilities, that (a) he is the partner of a British citizen; (b) he has a genuine and subsisting relationship with his partner; and (c) there are insurmountable obstacles to family life with his partner continuing outside the UK.
18. The appellant is in a civil partnership with a British citizen. A civil partner falls within the definition of a "partner". I have found, and am satisfied, that the appellant and his civil partner have been together for several years and their relationship is subsisting and genuine. The remaining question is whether there would be insurmountable obstacles to family life continuing outside the UK.
19. The appellant's partner is an openly homosexual man in his 70s with minimal connection to Bangladesh. Given the attitude towards and legal position of homosexuals in Bangladesh, I am satisfied that the obstacles the appellant's partner would face in continuing his life with the appellant in Bangladesh (where he would most likely have to conceal his sexual orientation and have living arrangements that would not lead to people suspecting he was in a homosexual relationship with the appellant) are so serious that they could not realistically be overcome and therefore that the insurmountable obstacles test under EX.1(b) is met.
Notice of decision
For the reasons I have given above, I allow the appellant's appeal on both asylum grounds and under the Immigration Rules.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 19 August 2016