Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01484/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 October 2016
On 20 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

M M N
(ANONYMITY DIRECTION MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr D Sellwood, Counsel, Wimbledon Solicitors (Merton Road)
For the Respondent: Mr L Tarlow, Home Office Presenting Officer

DECISION AND REASONS

1. This is the appeal of MMN. It is linked to the appeal of ABMH, whose error of law decision was also listed before me.
2. The appellant is a national of Pakistan born on 17 January 1991. He arrived in the United Kingdom on 11 April 2010 with a valid student visa which was renewed until 6 February 2012. He made a Tier 4 application for further leave which was refused and on 25 September 2012 he applied for leave to remain as the spouse of SA. This was granted in 2013 valid until 27 September 2015.
3. However the appellant divorced on 7 March 2014 and he made an asylum claim on 27 September 2015 on the basis of his sexual orientation and that he would be at risk on return to Pakistan due to his membership of a particular social group, i.e. gay men from Pakistan.
4. The appellant also claimed to be in a same sex relationship with ABMH, a national of India born on 11 June 1985, who made his own claim which was linked to that of this appellant, MMN, and heard by the same judge on the same day.
5. In a decision dated 25 July 2016, First-tier Tribunal Judge Pears dismissed the appeal. He did not accept the appellant's sexual orientation and at [86] rejected his claim to be a homosexual or in a same sex relationship with ABMH. He made a number of adverse credibility findings against the appellant at [70] through to [86].
6. An application for permission to appeal to the Upper Tribunal was made in time on 11 August 2016, essentiality on three different bases: firstly, a failure to take account of material evidence or make findings on matters in dispute; secondly a failure to give adequate reasons for findings of fact and thirdly, on the basis that the judge had materially misdirected himself in law.
7. Permission to appeal was granted by First-tier Tribunal Judge Lambert on 22 August 2016 for the following reasons:
"3. However the relatively brief content of the findings at paragraphs 70-86 on the face of it discloses - particularly at paragraphs 76-77 - an arguable lack of adequate reasoning. This taken with the point as to application of the lower standard of proof argued at paragraph 6 renders the grounds arguable."
Hearing
8. At the hearing before me, Mr Selwood on behalf of MMN, made detailed and clear submissions in support of the grounds of appeal. He submitted that the judge had failed to take account of the appellant's evidence that he had had a relationship with a man called Zeeshan in Pakistan as a result of which he was persecuted. No consideration was given to this relationship as to whether the appellant had experienced past persecution and whether he would be at risk on return as a result. The focus of the judge was the relationship that the appellant is currently in.
9. It was submitted that the judge had further at [73] failed to address the inconsistency identified in the asylum refusal at paragraph 38 which was the fact that in his interview the appellant makes reference to his wife as his partner rather than ABMH But the judge makes no findings on this. Mr Sellwood pointed out that it is clear when one considers these questions in the asylum interview in context, the appellant was being asked at that part of the interview about his former wife and not about his partner, and that is why clearly the reference was made to his former wife rather than his partner.
10. Mr Sellwood further submitted that there was no consideration given to what happened when the appellant was detained at the police station and how he came to be released. There was no reference to the background evidence at page 11 of the appellant's bundle as to the prevalence of bribery of the Pakistani police and that this was how the appellant came to be released by people that his father knew.
11. In relation to the fact that in his asylum interview the appellant stated that he intended returning to Pakistan and whether this was consistent with him being gay and at risk there, Mr Sellwood submitted that the Appellant made this statement in September 2013 when he was still married albeit with problems, and he was not in the relationship with his partner as he is now. Whilst he knew his partner before he married his wife, it was only after his divorce was concluded that the relationship commenced in early 2015.
12. In relation to the second ground of challenge and the failure to give reasons, reference was made to [77] of the judge's decision where he says:
"I do not accept his explanation of why it was only in August 2015 that he realised he should not return to Pakistan."
13. No reasons are given as to why the judge did not accept his explanation as to why it was only in August 2015 that the appellant said he would not return.
14. At [84] the judge rejected the photographic evidence on the basis there are no photographs of the appellant and his partner together with friends and he went on to find in relation to Mr Hydera which he relied upon [79] that "The photographs show only them and there is a feel that they were staged for the purpose of furthering the application rather than recording the relationship".
15. Mr Sellwood pointed out that no reasons were given as to why the judge took that view. He further submitted that the judge's approach to the two additional witnesses was problematic. I shall deal with that aspect in relation to ABMH claim.
16. In relation to the third ground, the material misdirection in law, Mr Sellwood accepted that at [6] of his decision the judge correctly directed himself as to the real risk test but submitted that the language that follows thereafter is inconsistent with the proper application of such a test. For example, at [63] the judge rejected the appellant's evidence on the basis that it was "hardly compelling" which is to apply far too high a standard of proof.
17. Mr Sellwood submitted that there were also issues of procedural unfairness in that the judge took against the appellant in relation to points that had not previously been taken by the respondent in her refusal letter, nor it appeared that they were put to the appellant during the hearing either in cross-examination or by the judge himself.
18. At [83] the judge found that there was no evidence that the appellant had entered into a relationship with ABMH in February 2014, which fails to take account of the fact that there was evidence in the form of oral evidence from both the appellant and his partner and from two independent witnesses.
19. At [85] the judge relied on the fact that the appellant had not produced the divorce petition "because it might have set out matters that the appellant now relies on such as lack of sexual interest on his part".
20. I accept Mr Sellwood's submission that this is an entirely speculative finding. Moreover it was not put to the appellant for him to comment on.
21. Mr Selwood finally submitted that whilst it was not a straightforward task to make findings of fact or credibility in respect of individuals from other cultures, and that the learned judge noted that at [70], having done that at [82] he went on to make a finding that was unsustainable on the basis that it focused solely on the demeanour of the appellant and his partner where the judge stated: "I observed them when they were in the hearing room together which was for an extended period and I could see no mutuality of support and reassurance of one for the other."
22. In his response, Mr Tarlow relied on the Rule 24 reply and submitted in short that the grounds and submissions were a disagreement with the findings that the First-tier Tribunal Judge was entitled to make. The judge was not obliged to give reasons for every finding. The judge rejected the appellant's evidence that he was gay and does so quite emphatically and that was a finding that was open to him. The judge was not oblivious to the fact that there were two appeals before him and the questions and answers in the interview at [189] to [198] were very vague when they are supposed to relate to people who claim to know each other and be in a relationship. He submitted that the conclusions of the judge are sustainable and that the reasoning was adequate.
Decision
23. I find for the reasons set out in the grounds of appeal that the judge did err materially in law in dismissing the appeal. In particular, I find an absence of proper or adequate reasons for rejecting the appellant's central claim to be gay and to be in a same sex relationship with ABMH. This was particularly the case given that the judge had the benefit of hearing evidence from both individuals, evidence which was supported by two further witnesses and also photographic evidence. The judge further failed to assess the credibility of the claim in the light of the background evidence as well as the evidence specific to these two appeals. Moreover, in finding that the appellant is not gay the judge failed to make any findings in respect of his evidence as to the appellant's relationship in Pakistan as a consequence of which he was detained and ill-treated. It was incumbent on the judge, in my view, to determine that aspect of his claim in order to properly consider the appellant's claim based on his sexual orientation and his current relationship with ABMH.
24. In light of my findings I remit the appeal for a de novo hearing before a different First-tier Tribunal Judge other than First-tier Tribunal Judge Pears.

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

Deputy Upper Tribunal Judge Chapman 20 October 2016

_______________________

DIRECTIONS
_______________________
1. The appeal is remitted back for a hearing de novo at York House Hearing Centre.
2. An Urdu interpreter is required.
3. The appeal is to be listed for 2 hours and linked to the case of ABMH - AA/00259/2016 and should be heard by the same First tier Tribunal Judge.

Signed Date

Deputy Upper Tribunal Judge Chapman 20 October 2016