Tribunal decisions

The decision

IAC-FH-AR-V3

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01646/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 November 2016
On 17 January 2017

Before

UPPER TRIBUNAL JUDGE ALLEN

Between

IMRAN [A]
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mrs N Khan, Buckingham Legal Associates
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a national of Pakistan. He appealed to a judge of the First-tier Tribunal against the respondent's decision refusing his asylum claim. The appellant claimed to be at risk on return to Pakistan on account of his homosexuality. There was a concession by the Presenting Officer, noted by the judge at paragraph 22 of her decision, that if the appellant were found to be credible as to his sexuality then asylum should be granted. The judge however did not find the appellant to be credible and as a consequence dismissed the appeal.

2. Permission to appeal against this decision was sought, and was granted by a First-tier Judge on the basis that the timing of a particular point had not been considered, it was arguably not clear whether the judge rejected the evidence of the witnesses in their entirety and as a consequence the decision was unarguably unsafe. The respondent subsequently put in a Rule 24 reply arguing that the judge had directed herself appropriately and the matter raised in the grounds were not material to the outcome of the appeal.

3. In her submissions Mrs Khan argued that it was clear that the evidence of the witnesses and the appellant was not inconsistent. There was a variation but they were not far apart. It was unclear to what the judge referred. The reasoning was inadequate. There were also the judge's doubts about the letter from the support organisation and there were issues about the appellant speaking without an interpreter to the different parties and it was argued that he needed an interpreter and had not had one at the hearing.

4. In his submissions Mr Tufan argued that the determination was comprehensive and the evidence had all been considered. There had been a significant section 8 issue bearing in mind the failure to claim asylum until late in the day. The evidence of the witnesses had been taken into account and also the evidence of ELOP. It was open to the judge to find the discrepancies that she did. It was perplexing that he should say that discrepant answers were due to not understanding the questions, as he had come to the United Kingdom to do advanced study. There was no material error of law in the decision.

5. By way of reply Mrs Khan argued that although the appellant spoke good English the judge might have underestimated the degree of scrutiny in the court room. It was not argued that the discrepancies were due to the lack of an interpreter but the judge had not set out what inconsistent answers were given, for example, with regard to the relationship with Mr Khan, the evidence had been found to be discrepant but it was really just a little more information given by one of them. The judge had not given reasons for finding discrepancies and the evidence had therefore not been considered adequately which led to unfairness issues concerning the consideration of the evidence.

6. I reserved my decision.

7. The appellant came to the United Kingdom in July 2008 as a student. A subsequent human rights application was made and refused in January 2015 and a subsequent appeal was dismissed. The asylum claim was made on 8 September 2015.

8. The appellant claimed that he had become aware of his sexuality from a young age and referred to a relationship in his teens and attendance at gay nightclubs and going on gay dating internet sites when he went to college at the age of 18. After he came to the United Kingdom he had two gay relationships, one in 2011 and another one in 2012. Thereafter he had a major argument with his father in or around August 2014 around the time when his latest Tier 4 Student visa was expiring. He told his father he was gay and did not wish to marry and this upset his father who went to a solicitor and made an affidavit disinheriting the appellant under his will and then published an advertisement in the paper announcing the appellant's disinheritance in an Urdu newspaper in Pakistan.

9. As a consequence of being upset at this the appellant told his longstanding friend, Mr Bashir, about the family argument and also told his friend and landlord Mr Usman. As a consequence Mr Usman, realising that the appellant was no longer being funded by his father, agreed that he could live in the boxroom of his house free of charge and could eat with him and his wife, again, free of charge. The appellant said that after August 2014 he became openly gay, attending the Gay Pride festival in Birmingham in May 2015 and joining Stonewall in April 2015. He met Mr Khan in a gay nightclub in February 2016 and subsequently an arrangement was made and as it became clear that Mr Khan was looking for accommodation to rent that he would move into Mr Usman's property and together with the appellant shared both the room that the appellant had been given and also Mr Khan's room together.

10. Mr Khan in evidence confirmed that he was gay and had refugee status in the United Kingdom because of his sexual orientation. He said that he would support the appellant financially if the appellant asked him for money. He said that he and the appellant got on well together but were not committed to each other and they saw other people. Mr Khan wanted to take his time about building the relationship with the appellant but there was a strong bond between them at the moment.

11. Mr Usman's evidence was that he either realised the appellant was gay at a small party held at his home in July 2014 or realised in September 2014 when the appellant todl him about his problems with his father just after he had told his family in Pakistan that he was gay. As regards the role he saw Mr Khan as playing in the appellant's life Mr Usman said that "they are kind of together". He was not sure how deep their relationship was, but they occasionally shared moments together. He had not given the appellant immigration advice about lodging an application for further leave to remain in August 2014 but had told him to go to a solicitor because he understood the appellant was being forced to marry someone on return to Pakistan.

12. The third witness was Mr Bashir who had known the appellant from January 2010 and was aware that he was under pressure to return to Pakistan and get married. He had always suspected the appellant was gay but the appellant had only disclosed this to him in 2014.

13. The judge expressed concern at the fact that although the appellant was aware of his sexuality since before he left Pakistan, it took him seven years to claim asylum. She accepted that he had not met Mr Khan until well after his claim for asylum had been made and around the time of the refusal. She noted that Mr Khan's description of meeting the appellant and moving in and the domestic arrangements in Mr Usman's house seemed to match much of what the appellant had said except in one crucial respect.

14. The appellant in evidence had described Mr Khan as his partner whereas Mr Khan said they had the share of two rooms and were not committed entirely to each other and saw other people and said in respect of the appellant "I like him a lot". When pushed in cross-examination he had only stated later on that he did have a sexual relationship with the appellant and they had gone to LGBT groups and clubs together. This the judge regarded as contrasting with the appellant's oral evidence and witness statements in which he had failed to mention Mr Khan. She would have thought that if this had been a relationship of any significance the appellant would have mentioned that in the witness statement, at least that of 25 July 2016. She concluded that it was not a relationship of any significance.

15. With regard to the evidence of Mr Usman, the appellant said at his asylum interview that Mr Usman had told him to apply for the further leave to remain application in 2014. Mr Usman would have known the significance of admitting to being gay, with his Pakistani background, the judge considered, and yet he still encouraged the appellant to make a human rights to make a human rights application without mentioning this crucial fact.

16. He was asked about this in the interview and said:
"Because at that time I had no idea because my family completely cut off with me and I was in a depression and at time he just advised me to do something like that, I believe he didn't know about this. That's why he advised me. And all this happened very quickly too, I didn't have enough time to ...".
17. The judge regarded this answer as being entirely inadequate. He was then asked why when in his further leave to remain application he was asked whether there were any exceptional circumstances why he could not return to Pakistan and he had said it was because he would be destitute he had not mentioned his sexuality and said at that time he had no idea what he had to do and he just wanted to remain lawfully in the United Kingdom and was too shy to mention it, and he had grown up in a conservative culture in Pakistan and could not say these things openly. The judge commented that, however, the appellant had told Mr Usman around that point that he was in fact gay and so it had been openly said.

18. The judge noted that in oral evidence Mr Usman denied ever advising the appellant to apply for further leave to remain and said that at most he thought it was appropriate that the appellant get a lawyer. He had not given the appellant any immigration advice but suggested that he check out all his options. He had searched on Google for the appellant's options because he was trying to help and accepted that one of those options might have been to claim asylum. Also he did not mention the appellant coming out at a small party at Mr UIsman's house but said that he was told by the appellant some time in August that he was gay.

19. As regards Mr Bashir, the judge found his evidence to be inconsistent. She said that it appeared from Mr Bashir's statement that he was only told of the appellant's sexuality around August or September 2014. Up to that point the appellant's sexuality was never disclosed. He denied having suspected the appellant was gay in 2010 and then said he did not know and the suspicion gradually dawned on him. He suspected the appellant of being gay at the end of 2010.

20. I have set out above the grounds of challenge and the submissions that were made on both sides with regard to the decision.

21. The judge found that there were considerable discrepancies both within and between the evidence of the witnesses. She had the impression that one of them was imperfectly learning their script and this seemed to be obvious even during cursory cross-examination. He considered that the matter of the appellant attending Gay Pride events and joining LGBT groups were all significantly after he had decided to claim asylum.

22. As regards the letter from ELOP (East London's Lesbian and Gay Centre) dated 7 July 2016, it indicated that the appellant first contacted the group on 5 April 2016 and the judge set out some of the points made in that letter including the fact that the appellant had has some casual experiences with other men after rejection by his family but recently he had not engaged in this which he regarded as entirely contrary to the evidence provided by the appellant, Mr Khan and Mr Usman. He also did not understand why the appellant's father should have thoughtfully provided an English translation of his affidavit and what the purpose of sending it to the appellant was.

23. On balance I consider that the judge's findings are flawed as contended. I think that the points made in the grounds are sound. In particular, as noted by the judge who granted permission, there is arguable merit in the point that the judge made no comment on the fact that it was only after the family argument that the appellant needed to seek international protection and that is relevant to the section 8 issue. It is also not clear to what extent the evidence of the witnesses was not regarded as credible.

24. The judge concluded at paragraph 30 by saying that limited weight had to be placed on much of the witnesses' accounts. In my view a clearer conclusion than that needed to be reached. As Mrs Khan has argued, matters of discrepancy between for example the appellant and Mr Khan is a matter of variation and degree rather than being clearly different. It is relevant to note that Mr Khan ultimately accepted that they had a sexual relationship, and Mr Usman agreed that one of the options he searched on Google for the appellant might have been to claim asylum. I think the judge was right to observe that there are discrepancies in the evidence, but I consider that clearer findings need to be made on the conclusions to be drawn from those discrepancies as well as to the extent to which they are discrepancies of materiality.

Notice of Decision

25. Given that these matters go to the heart of the decision, it is appropriate for the matter to be reheard in its entirety and as a consequence for it to be reheard in the First-tier Tribunal rather than being remade in the Upper Tribunal.

26. Accordingly the appeal is allowed to the extent that it is to go back for full rehearing before a judge other than Judge Mozolowski at Taylor House.

No anonymity direction is made.

Signed Date

Upper Tribunal Judge Allen