Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02348/2015

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 27 January 2017
On 20 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MAHMOOD

Between

bg
(aNONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Respondent: Mr R Sharif, Solicitor, Fountain Solicitors.
For the Appellant: Ms A Aboni, Senior Home Office Presenting Officer

DECISION AND REASONS

Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellants. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

1. The Appellant appeals with permission against the decision of First-tier Tribunal Judge Obhi sitting at Birmingham. The Appellant had appealed against the Respondent’s decision to refuse his claim based on protection grounds and based on Article 8 of the European Convention on Human Rights.

2. The Judge of the First-tier Tribunal had dismissed the Appellant’s appeal.

3. The Appellant’s grounds of appeal state that the Judge had materially erred in law because:

(1) There was a failure to apply the Supreme Court’s judgment in HJ (Iran) and others v Secretary of State for the Home Department [2010] UKSC 31, [2011] 1 AC 596;
(2) There was a failure to assess risk on return;
(3) There was a failure to assess risk;
(4) There was a failure to give reasoning in relation to Articles 2 and 3 of the European Convention on Human Rights; and
(5) There was a failure to give any reasons in respect of Paragraph 276ADE of the Immigration Rules.

4. Permission to appeal was granted by First-tier Tribunal Judge Cruthers. I note that the grounds are somewhat discursive and not particularly focused. The real issue is whether this Appellant, a gay man would be at risk on return to Ethiopia.

5. At the hearing before me Mr Sharif said that he relied on the grounds of appeal. The Judge had accepted at paragraph 20 that the Appellant was homosexual but she failed to apply to HJ (Iran). The Judge had failed to adequately assess why the Appellant would be discreet in respect of his sexuality. If it was to avoid persecution, then that should not have led to a dismissal of the Appellant’s claim. Mr Sharif took me to various parts of the Appellant’s interview with the Home Office, including at questions 193, 197 and 200.

6. In respect of ground 2, Mr Sharif said that the Judge had failed to assess risk on return having accepted that the Appellant was homosexual. The Judge had failed to accept that there was a persecutory risk. The Judge had failed to explain why in light of the background evidence there was no risk.

7. In her submissions, Ms Aboni said that she relied on the Respondent’s Rule 24 Reply. She said that the Judge had appropriately considered the Appellant’s circumstances in line with HJ (Iran). The findings were open to the Judge. At the end of paragraph 21 the Judge said that the Appellant had practised his sexuality privately. At paragraph 23, he had been discreet in Ethiopia. The Judge did adequately consider it and it was the Appellant’s choice to do so. The submission was that it was the Appellant’s choice to be discreet. There was a mere disagreement with the Judge’s decision by the Appellant and there was no error.

8. In reply Mr Sharif said that at paragraph 21 it was the married Asian man who the Appellant was seeing that was being discreet and not the Appellant himself.

9. I had reserved my decision.

10. In HJ (Iran) Lord Rodger said at paragraph 69,

“69 The decision of the High Court is accordingly powerful authority, which I would respectfully follow, for the proposition that, if a person has a well-founded fear that he would suffer persecution on being returned to his country of nationality if he were to live openly as a gay man, then he is to be regarded as a refugee for purposes of the Convention, even though, because of the fear of persecution, he would in fact live discreetly and so avoid suffering any actual harm. The High Court has followed the same line of reasoning in subsequent cases.”

11. He then said at paragraph 75,

“75 In my view, the approach adopted by the Court of Appeal is unsound. I leave on one side my reasoning so far and also the obvious point that the Court of Appeal's test seems to require the applicant to establish a form of secondary persecution brought on by his own actions in response to the primary persecution. In my view the core objection to the Court of Appeal's approach is that its starting point is unacceptable: it supposes that at least some applications for asylum can be rejected on the basis that the particular applicant could find it reasonably tolerable to act discreetly and conceal his sexual identity indefinitely to avoid suffering severe harm.”

12. These principles were made clearer thereafter by the Supreme Court in its decision in the linked appeals of RT (Zimbabwe) v Secretary of State for the Home Department and others [2012] UKSC 38, [2013] 1 AC 152. Lord Dyson considered HJ (Iran) further and said,

“18 I would accept the analysis of Mr Fordham QC that five principal reasons were given by the court for this conclusion. First, the treatment of those who lived openly as homosexuals in Iran and Cameroon constituted persecution: paras 40–42. Secondly, sexual orientation was a protected characteristic within the category of membership of “a particular social group”: para 42. Thirdly, the underlying rationale of the Convention was that “people should be able to live freely, without fearing that they may suffer harm of the requisite intensity or duration because they are, say, black, or the descendants of some former dictator, or gay” (para 53): see also paras 52, 65, 67 and 78. Fourthly, the necessary modification in order to avoid persecution (carrying on any homosexual relationships “discreetly”) ran contrary to this underlying rationale. It involved surrendering the person's right to live freely and openly in society as who they are, in terms of the protected characteristic, which was the Convention's basic underlying rationale: see per Lord Rodger of Earlsferry JSC at paras 75–76, Lord Hope of Craighead DPSC at para 11 and myself at para 110. Fifthly, the modification was a response to the feared persecution “because of these *167 dangers of living openly”: para 40. There was a difference between a case where the individual would live “discreetly” because of “social pressures” (para 61) and the situation where he would behave “discreetly” in order to avoid persecution because he is gay: para 62. Only the latter would be entitled to refugee protection, assuming, of course, that he would suffer persecution if he were to live openly as a homosexual.”

13. In my judgment there are questions as to whether the Judge applied the correct test. Indeed, even though the Judge accepted that the Appellant was gay, she appears to have applied the wrong legal test. She said at paragraph 21 that she was giving “the appellant the benefit of the doubt” that he was gay. That is too high a test because being a protection claim only the lower standard of proof was required to be met. Similarly, in the preceding paragraph expecting the Appellant to obtain a copy of his arrest warrant, was in the circumstances of this case, perhaps too much to expect and near seeking corroboration. At paragraph 21 of the Judge’s decision it was the Asian man who appeared to be acting discreetly (he was said to be a married man with children) in the United Kingdom when in a relationship with the Appellant and not the Appellant himself who was acting discreetly. This too seems to have been misconstrued by the Judge. The issue of acting discreetly appears to have been looked in a vacuum and against the wrong factual basis.

14. Having considered the rival submissions and having looked at the Judge’s decision as a whole, I conclude that the Judge’s decision shows a material error of law. It is not possible to overlook the errors made as a slip or minor errors of no real consequence. In my judgment, the decision cannot stand.

15. I therefore conclude that the Judge’s decision must be set aside as a whole. There shall be a re-hearing at the First-tier Tribunal. None of the findings from the Judge’s decision shall stand. That includes the findings in respect of the Article 8 issues.

Notice of Decision

There was a material error of law in the decision of the First-tier Tribunal.
The decision of the First-tier Tribunal is set aside.
There shall be a re-hearing at the First-tier Tribunal

An anonymity direction is made.

Signed Date 19 March 2017

Deputy Upper Tribunal Judge Mahmood