Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01339/2018

THE IMMIGRATION ACTS

Heard at Bradford
Decisions and Reasons Promulgated:
On 5 April 2019
On 29 April 2019

Before

UPPER TRIBUNAL JUDGE HEMINGWAY

Between

O
(Anonymity DIRECTED)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S Aziz (Counsel)
For the Respondent: Mr M Diwnycz (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. I shall refer to the appellant in these proceedings as "the claimant". I shall refer to the respondent in these proceedings as "Secretary of State". On 17 January 2018 the Secretary of State issued a decision refusing to grant the claimant international protection. He appealed to the First-tier Tribunal (the tribunal) and in a decision which it sent to the parties on 14 March 2018, following a hearing of 27 February 2018, the tribunal dismissed his appeal. The claimant obtained permission to appeal to the Upper Tribunal and on 27 February 2019 I decided to set aside the tribunal's decision because I had concluded that it had made an error of law. However, I preserved certain of its findings and conclusions which I shall set out below. When setting aside the tribunal's decision I directed that it should be remade by the Upper Tribunal after a further hearing. That hearing took place at Bradford on 5 April 2019. What follows is a setting out of the relevant background circumstances and previous history and an explanation as to how I have remade the decision and why I have done so in the terms that I have.
2. The claimant, who was born on 25 December 1984, is a national of Nigeria. He came to the United Kingdom (UK) on 9 September 2009 with valid leave as a student which had been granted up to 31 December 2011. Prior to that date he had married a person present and settled in the UK and then, on 6 December 2011, he had applied for leave to remain on the basis of that marriage. That application was not successful and, ultimately, an appeal against the decision not to grant leave on that basis was dismissed. The claimant became "appeal rights exhausted" on 26 October 2015. The claim for international protection which led to the dismissal of his appeal by the tribunal and, ultimately, to this appeal before the Upper Tribunal, was made on 26 July 2017.
3. As to the account underpinning the claim for asylum, the claimant says that he grew up in Lagos as an only child. His father passed away in 2010. Prior to the unfortunate passing of his father, there had been a dispute over some land. The claimant, in seeking international protection, had asserted that if he were to be returned to Nigeria he would be harmed by various family members as a result of that dispute, and that the authorities in Nigeria would not be able to protect him. That was the first strand to his claim. The second was to the effect that he is a bi-sexual person and at risk in consequence of that. He says that he had realised his sexuality in 2001 and that he had informed his mother about it in 2003. She had told someone else and, subsequently, word had spread to other people including people at a church his mother attended. People were disapproving and would avoid him. He had had two different gay relationships in Nigeria. After he had come to the UK he had been urged by his mother to marry a female. That was because his mother had thought if he did that it would prevent her receiving abuse from family and friends. So, says the claimant, he did as he had been asked. However, there came a time when she went to visit members of her family in London and then arrived back at the family home earlier than had been planned. Having done so, she discovered him having a liaison with a male. In consequence of what she had seen, she left the family home and filed for divorce. That relationship is now at an end. There then came a time when he had confided in a family friend who was living in London, about his sexuality. However, that family friend informed other family members and, as a result of that, the claimant has received threats emanating from persons in Nigeria within his family and who now know him to be gay. In particular, he says he has received a threatening email from a cousin. Accordingly, he asserts that he will be harmed by family members if returned to his home area of Nigeria. He also asserts, in any event, that if he is returned to Nigeria he will live openly as a gay person and that that will put his life at risk. He says that he has been living openly as a gay/ bisexual person in the UK, has had a number of relationships predominantly of a casual or short-term nature, has joined the organisation called Stonewall and has been using gay dating websites.
4. The tribunal did not believe the claimant about the land dispute. Nor did it believe him about his sexuality. So, it decided he had not demonstrated entitlement to international protection. It also decided he did not meet the requirements of any of what might be described as the Article 8 ECHR related Immigration Rules. As indicated, I have preserved the adverse findings concerning the land dispute. As to that, the tribunal had said this:
"56. The appellant has also relied on an account of fearing harm from relatives following a dispute over land which has been ongoing for many years. I note that some of the land has been taken by relatives and the remainder sold by his mother who has now gone to live in Zimbabwe. There is no evidence to suggest that the appellant's father was poisoned. I note that he has not provided his father's death certificate or any other details to show how his father died.
57. The appellant stated that his mother is a citizen of Zimbabwe. I was not provided with any information to show that she is now resident there or a citizen of that country. The issue of the appellant's right to Zimbabwean citizenship was not explored by either party.
58. My conclusion is that there is no outstanding dispute remaining over the land which belonged to the appellant's father. His mother has obtained money from some of the proceeds and the appellant has not indicated that he has at any time in the past or will in the future claim land that has been taken by his family. I attach little weight to the email the appellant has provided. It is unclear why his relative would send an email at this time when the appellant has been absent for so many years. My conclusion is that the appellant has provided this as a means to try and strengthen his asylum claim".
5. As to what I have described as the Article 8 Immigration Rules the tribunal said this:
"60. The appellant does not meet the requirements of Appendix FM in relation to his family life in this country. His marriage has broken down irretrievably by his own account and he has no children here. He cannot meet the requirements in relation to his private life with reference to Paragraph 276 ADE. I conclude there will be obstacles to his integration in Nigeria given the amount of time he has lived here. However, I would not regard these as very significant obstacles. He has received tertiary education and has worked in the past. He has excellent language skills in English and he is familiar with the culture of Nigeria having lived there until the age of twenty-two. I reject his claims to be without family support and note that his mother has supported him in the past".
6. So, those findings represented my starting point when I set about my task of remaking the decision. In remaking the decision, I have taken into account all of the documentation which was before me. That included the original Home Office bundle which had been before the tribunal when it heard the appeal, the claimant's bundle for the benefit of that tribunal and an additional bundle which had been provided for the purposes of the hearing concerned with the remaking of the decision. Included amongst all of that were two witness statements of the claimant which had been made on 21 February 2018 and 1 April 2019, the record of the claimant's substantive asylum interview, a detailed decision letter produced by the Secretary of State on 17 January 2018, some background country material concerning Nigeria, some photographs provided by the claimant and some printed out emails provided by him. At the remaking hearing I viewed some footage which had been stored on a USB stick by the claimant concerning his attendance at the Hull Gay Pride event in 2018. In remaking the decision, I have reminded myself of the lower standard of proof applicable in cases where international protection is sought. That standard of proof is sometimes referred to as the "real risk" test. I have reminded myself that I should be cautious in rejecting as incredible an account offered by an anxious and experienced asylum seeker. In reaching views as to the claimant's credibility, which in truth I must do in order to properly decide the appeal, I have considered all of the evidence together as one composite whole.
7. The primary issue which I have to decide is whether or not the claimant is gay or bisexual. In deciding that discrete but, in this case, highly important issue, I have taken full account of the documentation I have referred to above together with what was said at the oral hearing before me, including the claimant's oral evidence, and a skeleton argument which Ms Aziz helpfully provided to me on the morning of the hearing.
8. I have concluded that, even to the lower standard of proof set out above, I am not able to accept that the claimant is either gay or bisexual. I set out my reasons for reaching that view below.
9. The claimant says that he married a female person whilst in the UK because his mother had wanted him to do so. At the oral hearing he told me that she had not asked him to marry whilst he was still in Nigeria because at that point he was young. I do not believe him about all this. I think if the claimant is of the sexuality he says he is, given that he had come to the UK, he would feel liberated (bearing in mind the much greater tolerance than in Nigeria) and would have wanted to lead the sort of open life he now says he will, in fact, lead even if he is returned to Nigeria. His claimed sexuality does not preclude marriage to a female but I do not believe that he would have married a female person simply because his mother had wanted him to.
10. The claimant was, in my judgment, very vague in his oral evidence when he was asked about previous relationships and liaisons he had had with males in the UK. He provided the first names only of three claimed such men but was not able to go into any significant detail as to the nature of those relationships. Had the claimant had genuine gay relationships even of a relatively short and casual nature, I believe that he would have been able to give more detailed and more concrete evidence about them than he did.
11. The claimant has not produced any letters or witness statements from any persons said to have had any sort of gay relationship with him. Nor were any witnesses called on his behalf at the remaking hearing. The claimant has been in the UK since 2007. He told me that he had been using gay websites and had been attending clubs where he would meet potential partners. Against that background I believe that if he had been pursuing gay relationships as claimed then some evidence from persons he had had such liaisons with would have been provided.
12. The claimant says that the threats from Nigeria commenced after he had confided in a family friend about his sexuality. I asked him, at the remaking hearing, why he decided to confide in that friend and he said, essentially, that he did not wish to lie to him and did not think he would be anything other than discrete. But the claimant asserts that if he has to return to Nigeria he will face death or serious ill-treatment at the hands of family members due to his sexuality and might well face similar treatment at the hands of the general populace. Against the background of such a stark risk I do not believe that he would have made such a sensitive and potentially dangerous disclosure to a family friend. It is simply not credible that he would take such a risk.
13. The claimant, despite the length of time he has been in the UK, did not make his claim for international protection until July 2017. That is despite the fact that on his own account, he had realised his sexuality prior to coming to the UK and despite the fact that on his own account, he had started to receive email threats from family members in Nigeria (such as his cousin Felix) at some point in 2015. His extensive delay in claiming is, in my judgment, something which is inconsistent with his claimed fear of return and, therefore, something which damages his credibility.
14. The claimant has provided some evidence which he says supports his claims regarding his sexuality. I have considered that evidence alongside all of the other evidence prior to reaching my conclusion as to his sexuality. As to that evidence, there are some photographs said to show him at a Gay Pride event and there was the footage which I viewed at an early stage during the remaking hearing, said to show him at a Gay Pride event in Hull in 2018. His oral evidence was to the effect that he had attended five Gay Pride events though he initially said "about five" prior to my clarifying with him whether he actually meant five or not. Mr Diwnycz did not seek to challenge the claimant's assertions that he has attended such events and I accept that he has. But that does not mean he is gay or bisexual. As I understand it anyone of any sexual persuasion is able to attend such events. There was no evidence to suggest otherwise. The claimant has provided evidence indicating that he receives standard communications from Stonewall. I am prepared to accept that he is a member of Stonewall and, indeed, Mr Diwnycz did not seek to challenge him as to that either. But all of that evidence has limited probative value given that anyone can join such an organisation. Indeed, that sort of evidence could easily be obtained by a person seeking to bolster a false claim regarding sexuality. Whilst there is a letter from the Chair of Hull LGBT Forum in which the author states his belief that the claimant is a gay man, that letter is very brief and does not explain how the author arrived at that view. Accordingly, the benefit the claimant gains from such evidence is limited.
15. The claimant has produced an email said to emanate from his first cousin Felix. He has provided a copy of the email at page 17 of the bundle prepared for the remaking hearing. It contains homophobic abuse. The claimant told me, in his oral evidence, that Felix had been able to obtain his then email address because he (that is the claimant) had been in touch with his family in Nigeria because one family member had wanted to gain admission to Bradford University. As I understand it, the claimant is saying that his family thought he might have been able to assist with that. However, I think if the claimant had been receiving long-term threats from Felix or other family members, which is what he in effect claims, he would have been reluctant to disclose his email address to any family member. The email, in any event, stands in isolation as evidence of the claimed threats from Nigeria and I do not find this evidence to be at all weighty.
16. In light of the above I have concluded that I am not able to accept the claimant's contentions regarding his sexuality. That takes away the sole remaining basis upon which he claims to be entitled to international protection. As to article 8 of the ECHR, it has not been argued before me or in the skeleton argument provided to me that the claimant meets any of the requirements of what might be described as the article 8 related Immigration Rules. Nor have I been offered any meaningful explanation as to how he might succeed under article 8 outside the Rules. I suppose, had I accepted his sexuality and the claimed history of relationships, such might have been the basis for something of an argument to be mounted on the basis of private life. But I have not accepted that. Accordingly, in remaking the decision, I have decided to dismiss the claimant's appeal.

Decision
The decision of the First-tier Tribunal involved the making of an error of law and has been set aside. In remaking the decision, I dismiss the claimant's appeal from the Secretary of State's decision of 17 January 2018 refusing to grant him international protection.

Signed: Dated: 23 April 2019

Upper Tribunal Judge Hemingway

Anonymity

I grant the claimant anonymity. Accordingly, no report of these proceedings shall name or otherwise identify the claimant or any member of his family. This applies to all parties to the proceedings. Any breach may lead to contempt of court proceedings.

Signed: Dated: 23 April 2019

Upper Tribunal Judge Hemingway

To the Respondent
Fee award

Since no fee has been paid and no fee is in any event payable, there can be no fee award.

Signed: Dated: 23 April 2019

Upper Tribunal Judge Hemingway