Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01819/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27 July 2016
On 17 August 2016

Before

THE HONOURABLE MRS JUSTICE MAY DBE
UPPER TRIBUNAL JUDGE ALLEN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

[K G]
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr T Melvin, a Senior Home Office Presenting Officer
For the Respondent: Mr Simon Harding of Counsel

DECISION AND REASONS
1. This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge Cohen promulgated on 1 April 2016 allowing the appellant [KG]'s appeal against the Secretary of State's decision dated 6 October 2015 to deport [KG] and against her further decision dated 9 October to refuse [KG]'s asylum and human rights claims. Permission to appeal the First-tier Tribunal decision was granted by Upper Tribunal Judge Deans on 10 May this year.
2. Ms Gardner is a Jamaican citizen. She arrived in the UK on 3 October 2008 on a visitor's visa valid until 15 February 2009. On 26 February 2009 she applied for further leave to remain outside the Rules to care for her uncle. That application was refused on 8 September 2009. Successive requests for reconsideration were turned down until the final decision maintaining the refusal dated 13 December 2010. A further application was made on 1 December 2011 again asking to stay to care for her uncle. That too was refused. On 16 May 2014 [KG] pleaded guilty to two offences of possessing class A drugs with intent to supply for which she received a sentence of imprisonment of four years. Notice of liability to deport was served on 4 August 2014 and notice of a decision to deport was served on 10 November 2014. On 19 November 2014 [KG] wrote to the Home Office claiming asylum on the basis of her sexuality. She said that her family and friends in Jamaica did not know of her lesbianism as she had kept it a secret from them through shame. She provided information to the Home Office that she had been in a same-sex relationship with a woman named [J] since 1 June 2009.
3. A Section 72 notice was served notifying [KG] that by reason of her conviction and sentence of more than two years she was presumed to be a danger to the community and not entitled therefore to the protection conferred by Article 33 of the Refugee Convention prohibiting return ("refoulement") to the country of origin. By letter dated 15 October 2015 the Secretary of State refused her protection and human rights claims on the basis that she would not be readily recognisable as a gay person and that even if she had been in a same-sex relationship her behaviour was, and would be, discreet. The Secretary of State was not persuaded therefore that [KG] would be persecuted in Jamaica on the grounds of her sexuality. We note at this point that nowhere has it been suggested that an actively gay person would not be at risk of persecution in Jamaica. The Secretary of State appears to accept, in accordance with the country guidance of SW, that persons in same sex relationships, particularly lesbians, would be at risk by reason of their sexual orientation in Jamaica. There is no appeal against the First-tier Tribunal's finding that this was and is the case.
4. There was an oral hearing before First-tier Tribunal Judge Cohen at which both [KG] and her partner [J] gave evidence. The learned judge made findings that [KG] was gay, had been with her partner [J] since 2009 and that it was a real and subsisting same-sex relationship which had endured [KG]'s incarceration. He decided that [KG] was entitled to remain on protection and also on human rights grounds under Article 8.
5. The Secretary of State's grounds of appeal were set out at some length in her document dated 14 April. I do not propose to recite at length from that as the arguments were concisely and very helpfully presented and developed at the hearing by Mr Melvin. The case for the Secretary of State may be summarised under the following heads.
6. First, it is said that there was insufficient consideration of Section 72 in the light of [KG]'s conviction and sentence. Second, that there was insufficient justification for the finding that she was credible on matters of her sexuality. Linked to this, thirdly, it is said that the judge failed to take into account the timing of events leading to the asylum application including the fact that [KG] had made several applications for leave to remain over the years without once mentioning lesbianism or making an asylum claim, that she had made a facilitated return scheme application in July 2014 effectively asking to go back to Jamaica and that the notice of liability to deport had come before the date on which, on the evidence from the prison authorities, [KG] had spoken to them about her sexuality. Fourthly, that the judge omitted to assess the weight to be given to the witness [M]'s evidence of a crucial text "outing" [KG] in Jamaica, said by her to be the spur to her asylum claim. Fifthly and finally, Mr Melvin criticised the judge's Article 8 findings and as Mr Harding for [KG] accepted that he could not defend these we record simply that the Article 8 part of Judge Cohen's decision, whilst understandable perhaps, given the very firm conclusions he had reached as to [KG]'s lesbianism and her likely persecution in Jamaica, did not take account of all balancing factors; because it did not we find that it cannot stand as an independent decision to allow leave on human rights Article 8 grounds.
7. Mr Harding maintained that Judge Cohen's decision and findings in relation to the asylum claim did not disclose any material error and were therefore not susceptible of being set aside on appeal. He accepted that the learned judge's reasoning was in some places hard to follow, for instance paragraph 27 of the judgment appears to relate to some completely different case. However on the key findings, in relation to Section 72 and [KG]'s lesbianism, Mr Harding submitted that the decision was clear, sufficiently reasoned and unassailable.
8. We agree. We are not persuaded that Judge Cohen erred. The judge's conclusions in relation to the two Section 72 presumptions are clearly dealt with at paragraphs 33 to 35 of his decision. As to the first presumption, namely whether dealing in class A drugs was to be regarded as a particularly serious crime, the judge clearly concluded that in his view the criminality on this occasion did not fall to be considered as such. It is not suggested that he was wrong to make that finding. We simply observe that we cannot see what more he could have said about it. As to the second of the presumptions the evidence is summarised shortly by the judge at paragraph 35 of his decision but despite the brevity it is clear what has lead him to conclude that the presumption regarding danger to the community in the UK has been rebutted. Again the finding itself is not challenged as irrational or wrong.
9. As to his findings that [KG] was a credible witness and that she had given credible evidence about her sexual orientation and her relationship with [J], the judge gave full reasons for these: in the course of dealing with the evidence at paragraphs 19 to 27 of his judgement there are repeated references to identical details of their relationship having been given by [J]. At paragraph 36 for instance he described [KG]'s evidence as detailed and compelling supported by the evidence from [J] and from the previous partner [M]. At paragraph 38 he refers to highly consistent credible and detailed evidence from [KG] and [J].
10. It is clear that the judge did have the full history in mind, including the FRS application in July, as he refers to this in the last sentence of paragraph 11 of his decision. He did not get the factual position wrong: at paragraph 36 of the judgment he refers to the report to prison authorities of her lesbianism in September/October 2014 before going on to note the deportation decision notified in November 2014. It is true that the judge did not specifically refer in paragraph 36 to the notice of the liability to deportation sent in August 2014 but his earlier recital of the history at paragraph 3 of his decision mentions this notice in August, demonstrating that he had it in mind. The key finding which he made concerned her sexuality and whether or not she would be perceived as a lesbian in Jamaica, i.e. whether or not she met the country guidance criteria for persecution set out in the case of SW. He recited his conclusions in that respect at paragraph 41 of his decision.
11. As Mr Harding rightly pointed out it is very clear from the judge's decision what view the judge had reached regarding [KG]'s lesbianism. His reasons for finding her credible are manifest from the way in which he sets out her and [J]'s matching evidence regarding the details of their first meeting and subsequent relationship. The judge saw and heard both women give evidence and was plainly in no doubt whatsoever about his findings in relation to their sexual orientation. Therefore even if we had decided that he left out of account the fact that notice of liability to deportation had been served before any report to the prison authorities, we are quite satisfied that this would have made no difference to the conclusion he had reached having heard and seen the witnesses give evidence.
12. Regarding [M]'s evidence and the "outing" text, Mr Harding rightly reminded us that the quality of evidence which is acceptable and regarded as persuasive at an immigration hearing need not be high. It was open to Judge Cohen to accept [M]'s written email evidence and [KG]'s hearsay evidence of the text and to take it into account as he did. He was not wrong to do so nor did he have to specify what weight he had attached to it or make reference in his decision to the fact that it had been untested. We accept also Mr Harding's submission that the "outing" evidence was more nuanced and varied than simply the single text. Mr Harding referred us in this respect to paragraph 11 of [KG]'s witness statement and to the full text of the email from [M]. We are quite satisfied that the judge's conclusions at paragraph 41 of his judgment were well-founded and proper ones to reach. Again, despite the brevity, it is plain what conclusion he had reached on the evidence and why.
13. In conclusion therefore having considered the points made by the Secretary of State we are satisfied that the First-tier Tribunal Judge's findings in relation to the protection claim did not contain any error of law and were adequately reasoned and we decline to interfere with his conclusions. The appeal is accordingly dismissed.
Notice of Decision
The appeal by the Secretary of State is dismissed.
No anonymity direction is made.

Signed Date 17 August 2017

Mrs Justice May

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

Signed Date

Mrs Justice May