Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01889/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 November 2016
On 16 December 2016

Before

UPPER TRIBUNAL JUDGE blum

Between

KH
(anonymity direction MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr B Bundock, Counsel, instructed by Turpin Miller Solicitors
For the Respondent: Mr T Wilding, Senior Home Office Presenting Officer

DECISION AND REASONS

1. Mr KH (Appellant) appeals against the decision of Judge of the First-tier Tribunal Thew, promulgated on 18 August 2016, dismissing his protection and human rights appeal against the Respondent's decision of 11 February 2016 refusing his protection and human rights claims and maintaining the deportation order made against him under the automatic deportation provisions of the UK Borders Act 2007.

Background

2. The Appellant is a national of Malaysia, date of birth 11 January 1977. He is of Chinese descent. His parents divorced when he was 6 months old and he lived with his paternal grandmother who treated him badly and beat him before eventually going to live with his father when he was a teenager. The Appellant did not have a good relationship with his stepmother and left school aged 18 without any qualifications. He had only seen his mother once when he was 6 years old. The Appellant did not enjoy a happy childhood, had no close friendships and had great difficulty trusting people.

3. After leaving school the Appellant went to Kuala Lumpur and, although lonely to begin with, his life did improve. He worked in different jobs taking whatever he could get that would provide him with accommodation. When he was around 19 years old the Appellant realised he was gay. He believed that if his homosexuality was known he would be "treated as a freak". He was "too afraid" and "did not want trouble". For these reasons he never disclosed his sexuality. He had no relationships in Malaysia and nobody knew he was gay.

4. He left Malaysia in 2006 and made his way to the UK entering as a visitor, although there was no evidence before the judge that the Appellant had been issued with a visitor entry clearance. In any event, the Appellant overstayed and began working illegally.

5. The Appellant met his current partner, AW, via Gaydar, a gay dating website, in 2009. AW is a British citizen born in 1937. He is a retired mechanical engineer. He has been HIV positive for over 20 years. At the time they met the Appellant was living in Wakefield and would visit AW every 3 weeks or so for approximately 4 years. During this time they were not "exclusive". In 2014 the Appellant was diagnosed with HIV having been very unwell in 2013. After he became unwell the Appellant asked AW if he could stay with him in his London flat. They lived together for about 4 or 5 months until the Appellant's arrest.

6. The Appellant was arrested on 15 July 2014 and pleaded guilty on 22 July 2014 to two offences of possessing or controlling identity documents with intent. He was found in possession of two false Chinese passports when attempting to open a bank account in a false identity. The Appellant received two sentences of 12 months imprisonment to run concurrently. He was served with a notice of decision to deport him on 28 November 2014 and a deportation order was signed on 8 January 2015.

7. The Appellant claimed asylum on 4 February 2015. If returned he feared he would be asked why he was away from Malaysia for so long and would be unable to hide his HIV status. He feared he would go to jail and believed his life would be over and that his removal would breach Article 8. Following his release from detention in June 2015 the Appellant continued to live with AW.

The First-tier Tribunal hearing

8. The First-tier Tribunal heard evidence from the Appellant and from AW and CMP, a former long-term partner of AW. AW had had a spinal operation a few months before the hearing and the Appellant cared for him and undertook the cleaning, cooking, and shopping. The Appellant gave evidence regarding the type of jobs he did in Malaysia and the circumstances leading up to his criminal conviction. The Appellant was cross-examined about statements made by the Sentencing Judge suggesting that the motivation for the Appellant's criminality was to obtain money to enable him to return to Malaysia. AW was aware that the Appellant was an overstayer. The Appellant said he no longer had any relationship with his family. The Appellant described how he and AW would go out for meals, walks and shopping. AW spent Christmas 2015 in Canada with his sister as she was having chemotherapy. The Appellant said that he and AW cared for one another and that they worried about each other.

9. AW described how he and the Appellant met and the contact they had with each other until they began to cohabit in February 2014. Their relationship was described as being "very close, loving and comforting", and the more they were together the closer they got. AW had angina and had had 2 stents inserted a couple of years ago in addition to his spinal difficulties that made walking difficult. He was registered disabled. The Appellant did the cooking and provided emotional support. The Appellant was described as a very private person. Evidence was additionally given by CMP who described the Appellant and AW as inseparable since the Appellant's release and said they were a loving and committed couple.

10. The judge recorded that the Reasons For Refusal Letter accepted that a gay man, as a member of the LGBT community in Malaysia, was capable of being a member of a Particular Social Group for the purposes of the Refugee Convention.

11. After setting out the relevant provisions of the immigration rules (paragraphs 398 to 399A) the judge considered the evidence relating to the Appellant's relationship with AW. The judge noted that the Appellant had not disclosed his sexuality or his relationship with AW until after the deportation order was made. The judge found that AW's evidence had "a ring of truth about it" and found there was credible evidence of a relationship between him and the Appellant.

12. At [43] the judge set out the approach to be followed by Tribunals set out in HJ (Iran) v SSHD [2010] UKSC 31 when assessing the Appellant's asylum claim. The judge analysed the background evidence contained in the Appellant's bundle and found that, although there was no documentary evidence of widespread persecution, it was clear that the current regime in Malaysia was intolerant of the LGBT community and that gay sex was illegal [49]. The judge concluded [50] that gay people who lived openly in Malaysia would be liable to persecution. There has been no challenge to this principle finding.

13. The judge noted that the Appellant had lived in Malaysia for 29 years and, at [51], the judge referred to the Appellant's asylum interview where he said that, for his first three years in the UK, his behaviour did not change. He did not thereafter change his outward behaviour but he did tell people about his sexuality if he was certain that they were gay. The Appellant said he became more confident in telling people that he was gay after he went to prison. In his asylum interview the Appellant, when asked if he left Malaysia for fear of harm or for another reason, said "For lots of other reasons", stating that he was homosexual and lived in a Muslim country and wanted to try and forget his past. He said he feared the Muslim government on return because he would be asked why he had been away for so long and didn't think he could hide his HIV status and would end up in jail.

14. The judge was not satisfied that the Appellant was as committed to AW as AW was to the Appellant [52] and found that prior to February 2014 the Appellant and AW only had a close friendship. At [54] the judge noted AW's evidence that the Appellant was still not comfortable with the gay scene, preferred to stay at home and did not like to show public displays of affection. At [55] the judge took into account the Appellant's criminality, AW's view that it was connected with the Appellant's wish to provide some financial contribution to their relationship, and posed the question as to why the Appellant would put his relationship at risk. The judge additionally attached significant weight to the Sentencing Judge's remarks concerning the Appellant's criminal motivation. Whilst noting the Appellant's explanation that he was "pretty ill" there was said to be no evidence that the Appellant's mental health was such that he did not give a truthful explanation for committing the offences when he said that he wanted to accumulate money to return to Malaysia [56]. The judge concluded that the evidence pointed to the Appellant being extremely discreet about his sexuality [57]. Based on the Appellant's behaviour in both Malaysia and in the UK the judge concluded that he was "most unlikely to be a gay man who would openly flaunt his sexuality" (at [58]).

15. At [59] the judge stated,

I must then consider why this particular Appellant would live discreetly if returned to Malaysia. I find on the evidence before me that this Appellant has adopted that way of life in the past, that is a way of life of being discreet about his sexual orientation not only until he was aged 29 while living in Malaysia but in particular in the approximate 8 years that he has lived in the UK. Despite being in a relationship with AW the evidence shows that he does not openly display to others his sexual orientation. I conclude that that is how he himself has shown that he has lived in the past and it is reasonably likely that that is how he would wish to live. Although he has referred in his interview to not wishing to return to Malaysia because he would be a second-class citizen and that he would have to be careful and he has said that he has become more confident and comfortable with who he is but he still found it difficult to trust people and to be open with everyone. I find that the evidence before me is such that it shows a man who would choose to live discreetly because that is how he himself would wish to live and he would not tell his family about his sexual orientation.

16. The judge concluded that there was no evidence to show that disclosing his HIV status would entail a real risk of persecution for that reason. The judge did not find that the Appellant would live discreetly for fear of persecution, but that he would choose to live discreetly because that is how he had lived and this continued to be his preference, even in the UK [61].

17. It was accepted that the Appellant could not meet the requirements of paragraph 399 as his relationship commenced when he was not lawfully in the UK. The judge then set out the factors identified in s.117C of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) that must be considered when assessing the public interest in respect of foreign nationals subject to deportation, and relevant extracts from MM (Uganda) v SSHD [2016] EWCA Civ 450. The judge then considered whether the effect of his deportation would be unduly harsh on AW. The judge acknowledged that the Appellant's offence was at the lowest end of seriousness capable of triggering automatic deportation and that he had no other criminal convictions. This weighed in the Appellant's favour. The judge additionally took into account the OASys report assessing him at low risk both in relation to the commission of further offences and in respect of any harm to the public. The Appellant was adhering to his medication and there was an absence of evidence suggesting that the Appellant would be unable to access appropriate medication in Malaysia. The judge found it was likely that the Appellant would face some discrimination as a person who is HIV positive. The judge took into account the Appellant's immigration history and the fact that his relationship with AW commenced when he was unlawfully in the country.

18. The judge acknowledged AW's age, his disabilities, and his HIV-positive status. It was noted however that AW had been able to spend a number of weeks with his sister in Canada at Christmas 2015. The judge took into consideration the amount of time that the Appellant and his partner had actually lived together, the explanation given by the Appellant to the Sentencing Judge and the timing of his cohabitation with AW. This led the judge to conclude that the Appellant was not as committed to his relationship as he had declared. The judge did not doubt that there would be a considerable impact upon the Appellant's partner if he returned to Malaysia given that AW is British with a settled long-term life in the UK. The judge recognised that AW's age, his medical circumstances and the different approach in Malaysia to people who were gay compared with the UK would, in reality, mean that it was unlikely that AW would go there with the Appellant. The judge recognise this would have a significant impact on AW [77]. But weighing up all the factors set out in the decision, and taking account of the Appellant's immigration and criminal history, the circumstances in which the relationship occurred and the period of cohabitation, the judge found that the harshness that would be occasioned by the Appellant's deportation would not amount to undue harshness either for the Appellant or his partner, or that there were very compelling circumstances sufficient to warrant a grant of leave to remain pursuant to Article 8.

The grounds of appeal, the grant of permission, and the oral submissions

19. The grounds took issue with the judge's approach to the question why the Appellant would act with discretion on return to Malaysia. It was submitted that the judge failed to consider whether the Appellant's fear of persecution constituted a material reason for his discretion. It was submitted that the judge failed to take into account important evidence indicating that a fear of persecution was a material reason for the Appellant's discretion. It was additionally submitted that the judge was not rationally entitled to conclude that the Appellant would "wish to live" discreetly given that the manner in which he previously lived in Malaysia was caused by the cruel and degrading circumstances of his upbringing and the long period of time it had taken for him to come to terms with his sexuality.

20. It was further contended that the judge failed to take into account the life the Appellant would be facing in Malaysia as he was very unlikely to be able to form a meaningful family relationship given the evidence of a culture openly hostile to and repressive of homosexuality, and the stigmatisation he would face on account of his HIV status. The judge failed to take into account evidence suggesting that the relationship the Appellant had with AW was very important to the Appellant, and failed to take into account the significance of AW's age when considering the effect of the deportation on him. It was finally submitted that the judge acted irrationally in concluding that the effect of the deportation would not be unduly harsh on AW having regard to the seriousness of the Appellant's offending, the OASys report, and AW's personal circumstances.

21. In granting permission Upper Tribunal Judge Rimington stated,

It is arguable that although the judge accepted the Appellant's sexuality [38] and found that those who lived openly in Malaysia would be liable to persecution [50], he erred in his consideration of whether the Appellant would live discreetly in Malaysia and why. The judge factored into his analysis as to how the Appellant would live in the future, his discretion whilst in Malaysia, but did not acknowledge relevant and recorded evidence that the Appellant throughout stated he had lived discreetly in Malaysia because of the homophobic society there [15] and was afraid of getting into trouble [8]. It was also acknowledged that the Appellant is living with another man in the UK albeit that he does not openly display to others to sexual orientation. The grounds that the judge has misapplied HJ Iran v SSHD [2010] UKSC 31, are arguable and would arguably affect the Article 8 assessment and thus all grounds are arguable.

22. In his oral submissions Mr Bundock expanded upon his written grounds. Mr Bundock identified the evidence that the judge failed to take into account when assessing whether the Appellant held a fear of serious ill-treatment in Malaysia if his sexuality was disclosed. The judge failed to explain what she understood by the words "fear" and "troubles" and did not refer to the Appellant's evidence, contained in his witness statement, that he was too afraid and did not want trouble. It was not clear from the determination that the judge concluded that the overriding reason why the Appellant would act discreetly was because he found being gay shameful. The judge's decision in this regard was irrational or insufficiently reasoned. Nor was it clear what the judge meant when she said that the Appellant would "wish" to live discreetly in light of his harsh and degrading upbringing. With respect to the Appellant's private and family life it was submitted that Article 8 was forward looking and the judge was required to consider the Appellant's ability to establish relationships in Malaysia. The Appellant would be unable to have meals with a partner or to go for walks together. The general climate of discrimination against gay people in Malaysia, and the fact that an openly gay man would face persecution, made it much more likely that the Appellant would be more cautious in establishing a relationship. It was submitted that the judge made no reference to the impact on the Appellant's private life and the limitations that would be placed upon any gay relationship that may arise in the future.

23. Mr Wilding submitted that the judge properly considered the evidence through the HJ (Iran) v Secretary of State for the Home Department [2007] EWCA Civ 1024 principles. The judge recognised that persecution may arise from society as well as the authorities. The judge was entitled to find that the Appellant's reasons for acting discreetly did not include a fear of serious harm. The Appellant's statement was, at its best, ambiguous as to why he would live discreetly. At paragraph 59 the judge did consider why the applicant would choose to live discreetly and concluded that this was the Appellant's choice. With respect to Article 8 the judge noted that the Appellant may face discrimination in his private life but that this was limited to access to medical treatment and not in respect of inhibitions on the establishment of relationships. There was very limited evidence in respect of the Appellant opening up to other people and becoming more comfortable with his sexuality.

24. In reply, and with reference to paragraph 59, Mr Bundock submitted that the judge had inverted the burden of proof when stating that the way the Appellant lived in the past show that it was reasonably likely that that is how he would wish to live.

Discussion

25. When asked in his asylum interview about the time he realised he was first gay, the Appellant stated "when I realised I was gay I thought I could get into a lot of trouble and would have to be careful." Later in the interview, when asked why he did not tell his family, friends and colleagues about his sexuality, he stated, "I don't want people to call me a freak and end up in trouble." In his witness statement the Appellant said that he "? knew that it was not possible for me to tell people. I was too afraid. I did not want trouble." Whilst the judge does make reference to this evidence (see [8] and [50]), nowhere in the decision does the judge undertake any analysis of what the Appellant meant. In the context of an asylum appeal involving a gay man from a country where it was accepted being openly gay could expose one to persecution, this is a significant omission.

26. I accept Mr Bundock's submissions that the judge did not adequately analyse what the Appellant meant when he said that he could 'get into a lot of trouble' and 'would have to be careful'. Nor did the judge address the Appellant's assertion in his witness statement that he did not tell people of his sexuality because he was 'too afraid' and 'did not want to get into trouble'. These assertions, on their face, and when considered in the context of the Appellant's other evidence, is capable of supporting a finding that the Appellant feared he would be subjected to serious ill-treatment if his sexuality was publicly exposed. I note that in his asylum interview the Appellant said he feared the Muslim government on return because he would be asked why he had been away for so long and he did not think he could hide his HIV status and would end up in jail. This reference suggests the Appellant held a fear of the authorities and feared being jailed. The Appellant's fear of being jailed by the authorities can only realistically be ascribed to his being gay.

27. I am satisfied that the judge failed to take account of or analyse relevant evidence in concluding that the Appellant would act discreetly for reasons other than a fear of persecution. I find that this error is material as it underpinned the judge's consequential assessment of why the Appellant would choose to live discreetly if returned to Malaysia (at [59]).

28. The judge's legal error related not to her primary findings of fact but to her legal analysis of the evidential matrix accepted by her. It is therefore open to me to remake the decision by assessing the Appellant's evidence, as disclosed in his asylum interview and witness statement, and the evidence of AW, and determine why this particular Appellant would live discreetly if returned to Malaysia (a finding made by the judge at [58]).

29. In re-making the asylum aspect of this appeal I have taken account of the evidence addressed above. I am satisfied that the Appellant's references in his asylum interview and his statement to fearing trouble in Malaysia, to being afraid, and his concerns at being jailed, strongly indicate that he holds a fear of serious ill-treatment in Malaysia, both from the authorities but also society in general. I am satisfied, on the lower standard of proof, that the references to 'trouble' and 'fear' do not relate to feelings of shame or to fears of being isolated or suffering discrimination not amounting to persecution.

30. I have taken into account AW's statement which described the Appellant as being "not comfortable with the gay scene". The Appellant preferred to stay at home when his partner went to gay clubs and bars, and they did not have house parties or gatherings with all of their friends because the Appellant "would not be comfortable with that." The Appellant was described as "a very private person" who "hides behind AW a lot" and had not informed his friends or family about his sexuality because he did not feel comfortable with that. The Appellant did "not like to show public displays of affection" and was "still very ashamed of his sexuality." I have also taken into account the Appellant's asserted motivation for committing his criminal offences.

31. This evidence must be considered in the context of the Appellant's biographic history and the treatment to which he was subjected in the past. The Appellant indicated in his appeal statement that it took him a long time to come to terms with his sexuality. He described his life in Malaysia as being one of isolation and, when he was a youngster and teenager, harshness and cruelty. I accept that it was not easy for him to change his behaviour and to remove the behavioural shackles imposed on him over a very long time by uncaring guardians and a homophobic society. The Appellant's unchallenged evidence was that he is now able to be open with friends, is beginning to socialise more and more, and is beginning to confide in more people. The judge noted the Appellant's evidence that he became more confident in telling people he was gay after he went to prison [51]. It would be unrealistic to expect the powerful influences that caused the Appellant to act discreetly in the past, including a fear of serious ill-treatment, to dissipate even after living several years in the UK. It is impossible to ignore the particular background of this Appellant and the impact that his upbringing is likely to have had on him when assessing the reasons for his discretion. The reference in the Sentencing Judge's remarks to the Appellant wishing to return to Malaysia must be considered in the context of the Appellant not having disclosed his sexual orientation and his wish to provide mitigation for his offending. The fact that the Appellant has not lived openly as a gay man in the UK is not of itself a determinative indication that he would choose to act discreetly in Malaysia for reasons other than a fear of persecution. To conclude that the Appellant would 'choose to live discreetly because that is how he himself would wish to live' jars violently with his biographical background.

32. In HJ (Iran) the Supreme Court concluded that the need to avoid the threat of persecution must be a material reason why a person would act discreetly, but it need not be the only reason. I am satisfied, based on the unchallenged evidence relating to the Appellant's very difficult childhood and the isolation he experienced in Malaysia for a very long time, and the answers given by the Appellant in his interview, and having applied the lower standard of proof, that a material reason why he was not openly gay in Malaysia was due to a fear of persecution.

33. For the reasons given above I am satisfied that a material reason for the Appellant living discreetly on his return to Malaysia would be a fear of the persecution which would follow if he were to live openly as a gay man. I therefore allow the appeal on protection grounds.

34. In light of the above conclusion it is not necessary for me to consider the appeal under Article 8.

Notice of Decision

The First-tier Tribunal decision is vitiated by a material error of law. I remake the decision allowing the appeal on asylum/protection grounds.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his 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.

14 December 2016
Signed Date

Upper Tribunal Judge Blum