Tribunal decisions

The decision

IAC-AH-dh-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02460/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 September and 24 November 2016
On 16 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

M I
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms V Easty, Counsel (1 September 2016)
Mr T Hodson of Elder Rahimi, Solicitors (24 November 2016)
For the Respondent: Mr S Whitwell, Home Office Presenting Officer (1 September 2016)
Ms Z Ahmed, Home Office Presenting Officer (24 November 2016)

DECISION AND REASONS

1. This is an appeal by the appellant against a decision of the First-tier Tribunal dismissing his appeal on asylum, humanitarian protection and human rights grounds against the respondent's decision made on 23 September 2015 to reject his claim for asylum and to issue removal directions.

Background

2. The appellant is a citizen of Pakistan born on 21 December 1983. His claim can briefly be summarised as follows. He first arrived in the UK on 17 April 2011 with a student visa valid until 28 October 2013 later extended to 23 May 2015. He applied for asylum on 13 May 2015. His claim was that he would be at risk of persecution in Pakistan as a gay man. He had become aware of his sexuality during his childhood and early teens. As a teenager he had a long-term relationship with another boy. He had not told anyone about his sexual orientation. He started a fashion business in his early 20s and had a relationship with a member of staff for several years until coming to the UK. He has also had gay relationships in the UK. In December 2014 his father put him under pressure to return to Pakistan to marry but he did not wish to do so. He told his father that he was gay. His father became aggressive and abusive. His older brother threatened him and his father reported him to the police in March 2015. He feared persecution from his family and others.

3. The appellant provided various supporting documents, including a "disownment" document, a newspaper announcement relating to disownment and a police report in support of his claim. However, his application was rejected by the respondent who did not accept that the appellant was a homosexual as claimed or that he had been subject to threats from family members in Pakistan.

The Findings of the First-tier Tribunal

4. At the hearing of the appeal the judge heard evidence not only from the appellant but also from three witnesses. The judge summarised the evidence at [21]-[26] of his decision. He then heard submissions and considered the background materials summarised at [29]. The judge said that he found nothing inherently implausible in the appellant being gay and described his evidence as broadly credible and supported in respect of him having had homosexual encounters in the UK. He found the evidence all pointed towards the appellant being gay and as having engaged in homosexual relationships.

5. However, the judge did not find all aspects of the appellant's evidence to be credible. There was a document verification report (DVR), which satisfied the judge that the police report was a fabrication. He also rejected the appellant's account of revealing his orientation to his family and of their making threats. He found there was no credible evidence that they were aware of the appellant's sexual orientation or, if they were, that they would wish to publicise the matter or make threats or report the appellant to the police.

6. The judge went on to consider the proper approach for assessing whether the appellant would be at real risk on return as set out by the Supreme Court in HJ and HT v Secretary of State [2010] UKSC 31 and in particular in the judgments of Lord Hope at paras 35 - 36 and of Lord Rodger at para 82.

7. As already indicated the judge was satisfied that the appellant was gay and as to the situation in Pakistan he considered that the weight of evidence indicated that gay people who lived openly would generally be at risk of persecution sufficient to engage the Convention and that if the appellant did not conceal aspects of his sexual orientation there would be enough evidence to suggest that he might be at risk from the police and non-state actors. However, the judge said that as to the appellant's intentions on return his evidence was a little equivocal but he drew the strong inference that he wished to live discreetly in the UK as he had previously lived in Pakistan and that he would continue to live discreetly in Pakistan. At [42], the judge said

"In relation to the reason for living discreetly (para 35(d) or para 82 [of HJ and HT]), as I have found above, it is clear that the appellant wishes to keep his sexual life private, and to share it only with other sexually active men. I do not accept that the reason for the appellant's discretion is, or would be, fear of persecution, but because he wishes to live discreetly for his own reasons: that was how he himself would wish to live, or because of social pressures. To put it another way, this would relate to social pressures for cultural or religious reasons of his own choosing and not because of a fear of persecution."

For these reasons the asylum appeal was dismissed as were the appeals on humanitarian protection and human rights grounds.

The Grounds and Submissions

8. In the grounds of appeal it is argued that the judge did not apply the required standard of proof as set out by the Court of Appeal in Karanakaran [2000] EWCA Civ 11, was wrong to attach weight to the DVR, failed properly to consider the article 8 claim outside the Rules, failed properly to assess the issue of whether the appellant would live discreetly and failed properly to consider article 3 and para 276ADE(1)(vi) of HC395 as amended.

9. Permission to appeal was refused by the First-tier Tribunal but granted by the Upper Tribunal limited to the challenge to the judge's findings on whether and why the appellant would live discreetly in Pakistan as set out in paras 11-14 of the grounds.

10. Ms Easty submitted that when considering why the appellant would live discreetly on return, the judge had failed to give proper consideration to the evidence he had given at interview where at Q132, 138, 140, 143, 149, 150 and 152 he made it clear that the reason for secrecy arose from a fear of the consequences of being open. Further, in his witness statement of 26 April 2016 the appellant again set out his fears of what would happen on return and in particular that if granted asylum he could live openly as a gay man for the rest of his life and for this reason he could not relocate back to Pakistan as it would not be safe [47]. When the judge considered how the appellant would live, he had not given, so she submitted, adequate and full consideration to the issue of why he would do so.

11. Mr Whitwell submitted that the issue was whether the judge's findings were properly open to him on the evidence. The fact that a different judge may have reached a different conclusion did not without more indicate that the judge had erred in law. His approach to the evidence had been balanced. He had been entitled to accept the evidence about the appellant's sexual orientation but to reject other evidence which had been adduced in support of the claim, such as the police report. These findings were matters the judge was entitled to take into account in considering how the appellant would live in Pakistan and why he would do so. He argued that in substance the grounds were a disagreement with a finding properly open to the First-tier Tribunal.

Consideration of Whether the First-tier Tribunal Erred in Law

12. The issue I must determine at this stage of the hearing is whether the First-tier Tribunal erred in law such that its decision should be set aside. As set out in HJ and HT, once it has been accepted that an appellant's sexual orientation is as claimed the issue then to be considered is how each applicant looked at individually will conduct himself if returned and how others will react to what he does. Lord Hope said at para 35(b):

"?Those others will include everyone with whom he will come in contact, in private as well as in public. The way he conducts himself may vary from one situation to another, with varying degrees of risk. But he cannot and must not be expected to conceal aspects of his sexual orientation which he is unwilling to conceal, even from those whom he knows may disapprove of it. If he fears persecution as a result and that fear is well-founded, he will be entitled to asylum however unreasonable his refusal to resort to concealment may be. The question of what is reasonably tolerable has no part in this inquiry."

And at para 35(c):

"? the next stage if it is found that the applicant will in fact conceal aspects of his sexual orientation if returned, is to consider why he would do so. If this will simply be in response to social pressures or for cultural or religious reasons of his own choosing and not because of a fear of persecution, his claim for asylum must be rejected. But if the reason why he will resort to concealment is that he genuinely fears that otherwise he will be persecuted, it will be necessary to consider whether that fear is well-founded."

13. I am satisfied that when considering why the appellant would act discreetly on return, the judge failed to take into account what he had said at interview where he refers to not being able to tell anyone about his feelings as "I had a feeling that if I will tell someone they will kill me or beat me and I knew it was not allowed in Islam" Q132. At Q138 after describing his relationship with a friend in Pakistan he said:

"He convinced me that we wouldn't tell anyone about this. ? and we promised that day that I would not tell anyone neither he will tell anyone because if he tells anyone then my family his family or anyone in society can kill me. I was scared and he was scared so we agreed not to tell anyone."

14. At Q143 the appellant referred to being told in the madrassa that gay people were bad people and have been buried alive and at Q150 in response to a question asking him to explain why he had not told others, he said that he did not express his behaviour or feelings for other people because they could tell his family or even society and anyone could kill them. When asked how he had kept his relationship secret at Q152 he said that if anyone knew, they could be killed so they both promised to each other that they were not going to tell anyone. In the appellant's witness statement when talking about his relationship in Pakistan, he said they both decided not to tell anyone as society would inform their families who would be embarrassed and ashamed of them and they would most likely be tortured or possibly even murdered by their own families (para 21). He went on to say that even though being gay was acceptable in the UK, his sexuality was something he only discussed with extremely few people like his close friends and other members of the gay clubs he attended. He was able to practise Islam side by side with his sexuality and face no fear or problems of persecution and that in the UK he did not need to worry about receiving threats from family or the police. He said at para 47 that he could live openly as a gay man for the rest of his life and that he would be killed if returned to Pakistan.

15. This evidence is not necessarily determinative but I am satisfied that it should have been taken into account by the judge when assessing why the appellant would behave discreetly in Pakistan. In particular the judge said at [37] that the appellant had not given evidence that he was discreet because he feared persecution but there is evidence arguably at least to that effect in both the interview and his witness statement. The fact that the appellant prefers to keep his sexual life private does not without more indicate that he will exercise discretion simply in response to social pressures or for cultural or religious reasons of his own choosing.

16. In summary, I am satisfied that the judge erred in law by leaving a number of relevant matters out of account when assessing why the appellant would live discreetly in Pakistan. It was Mr Whitwell's submission that, were this to be my finding, the proper course would be for the appeal to be retained in the Upper Tribunal whereas Ms Easty submitted that the proper course would be for the appeal to be reheard de novo in the First-tier Tribunal. I am not satisfied that a full rehearing is required in the First-tier Tribunal. The decision can be re-made in the Upper Tribunal on the basis of the evidence before the First-tier Tribunal.

17. The appeal was duly re-listed for a further hearing on 24 November 2016. No application was made before the hearing to call further oral evidence and in these circumstances the appeal proceeded on the basis of the evidence before the First-tier Tribunal.

Further Submissions

18. Mr Hodson submitted that the sole issue remaining to be considered was whether the appellant would act discreetly on return to Pakistan. He relied on paras 59-65 of the judgment of Lord Rodgers in HJ and HT. He argued that reasons for the exercise of discretion may differ according to the culture and background of the country concerned. In the UK the appellant might wish to be relatively discreet about his sexuality but on return to Pakistan his discretion would arise not simply because of a wish generally not to be open about his sexuality but also because of the fear of consequences were he to be so. There would need to be total concealment by the appellant in Pakistan whereas in the UK he might only wish to disclose his sexuality to gay colleagues. In his evidence both at interview and in his witness statement, he had repeatedly expressed his fears of what would happen to him on return if his sexuality became known. Whatever other motives the appellant may have for being discreet, there must be at least a reasonable degree of likelihood that the fears he expressed about what would happen on return to Pakistan were a material factor in why he would choose to behave discreetly.

19. Ms Ahmed submitted that the evidence showed that the appellant had acted discreetly in Pakistan and that when he came to the UK he had not openly revealed his sexuality. Even though homosexuality was acceptable in the UK he had discussed it with very few people (see [25] of the First-tier Tribunal judgement). Similarly, the judge had recorded the appellant's evidence that it had only been relatively recently before that hearing that he had spoken about his sexuality to the friend he was currently residing with (para 32 of the appellant's witness statement) whereas at [42] he had said that even though being gay was acceptable in the UK, his sexuality was something he only discussed with extremely few people like his very close friends and other members of the gay clubs he attended. She submitted that the inference that should properly be drawn from the evidence was that the appellant considered his sexuality to be a private matter and that was why he would behave discreetly on return to Pakistan and not because he feared persecution.

Assessment

20. The First-tier Tribunal judge accepted that the appellant was homosexual as he claimed and that the weight of evidence indicated that gay people who lived openly in Pakistan would generally be at risk of persecution. He found that if the appellant did not conceal aspects of his sexual orientation there was sufficient evidence to indicate that he might be at risk from the police and non-state actors [41]. The sole issue for me to consider is why the appellant would live discreetly on return to Pakistan.

21. In his opinion in HJ and HT, Lord Rodgers dealt with this question as follows:

"60. The question is not confined to cases where fear of persecution is the only reason why the applicant would act discreetly. In practice the picture is likely to be more complicated.

61. A fear of persecution is by no means the only reason why an applicant might behave discreetly if he were returned to his country of nationality. For example, he might not wish to upset his parents or his straight friends and colleagues by revealing that he is gay; in particular he might worry that, if the fact that he was gay were learned, he would become isolated from his friends and relatives, be the butt of jokes or unkind comments from colleagues or suffer other discrimination. Indeed, in a society where gay men are persecuted it is quite likely that the prevailing culture will be such that some of an applicant's friends, relatives and colleagues would react negatively if they discovered that he was gay. In these circumstances it is at least possible that the only real reason for an applicant behaving discreetly would be his perfectly natural wish to avoid harming his relationships with his family, friends and colleagues. The Convention does not afford protection against these social pressures, however, and so an applicant cannot claim asylum in order to avoid them. So if, having considered the facts of any individual case, the Secretary of State or a Tribunal concluded that the applicant would choose to behave discreetly on his return simply to avoid these social pressures, his application for asylum would fall to be rejected. He would not be a refugee within the terms of article 1A(2) of the Convention because, by choosing to behave discreetly in order to avoid these social pressures, the applicant would simultaneously choose to lead a life in which he would have no well-founded fear of being persecuted for reasons of his homosexuality. A similar point arose, in the context of religion in NABD of 2002 v Minister of Immigration and Multicultural and Indigenous Affairs (25) 79 ALJR 1142, discussed at para 70 below.

62. Having examined the relevant evidence the Secretary of State or the Tribunal may conclude, however, that the applicant would act discreetly partly to avoid upsetting his parents, partly to avoid trouble with his friends and colleagues and partly due to a well-founded fear of being persecuted by the state authorities. In other words the need to avoid the threat of persecution would be a material reason, among a number of complementary reasons, why the applicant would act discreetly. Would the existence of these other reasons make a crucial difference? In my view it would not. A Jew would not lose the protection of the Convention because, in addition to suffering state persecution, he might also be subject to casual, social anti-Semitism. Similarly, a gay man who was not only persecuted by the state, but also made the butt of casual jokes at work, would not lose the protection of the Convention. It follows that the question can be further refined: is an applicant to be regarded as a refugee for the purposes of the Convention in circumstances where the reality is that, if he returned to his country of nationality, in addition to other reasons for behaving discreetly, he would have to behave discreetly in order to avoid persecution in the course of being gay?"

22. When interviewed the appellant at numerous points in the interview, as identified at [13-14] above, expressed fears about what would happen on return. In a long answer to Q132 when asked at what point in his life he came to realise that he would be gay he said "... I couldn't share that feeling with anyone at that time. I was quite mature and came to know that I couldn't tell anyone about that feeling I had, a feeling that if I will tell someone they would kill me or beat me and I knew it was not allowed in Islam." In answer to Q138 about what had attracted him to one of his friends in Pakistan he said that he was scared at that time to express his feelings to him because he might tell his family and they might beat him and if his own family found out they would beat him. He also feared that if anyone else found out he could be killed in the name of Islam. At the end of that answer he repeated that he was scared as his friend was and that agreed not to tell anyone. In his answer to Q143 he said that when he was in the madrassa they were told that gay people were bad people and had been buried alive because Islamically it was considered haram. At Q145 he was asked what kind of life he believed he would have as a gay man in Pakistan and he replied: "If anyone came to know in Pakistan I was gay even from society and the government they could kill me. No-one likes same sex people and there's no place for people like this in Islam."

23. In his witness statement at para 24 he said: "during my time in Pakistan, I never told anyone about how I felt as I was scared and that my emotions stressed me out in Pakistan." At para 27 he said that as an adult he had a better understanding of the penalties of being gay in Pakistan which was worse than he realised when he was younger. At para 36 he said that Pakistanis view homosexuality as sinful and homosexual acts are illegal in Pakistan as they are viewed as an offence against Islamic laws. He set out his family's reaction at paras 37 to 39 when he had told them about his sexuality. He says that his father was very abusive towards him and cut the telephone line. His brother had started to threaten him and told him he would get killed or lashed in Pakistan.

24. It is also the case that the appellant made it clear that when he arrived in the UK he did not openly reveal his sexuality and only informed a few people (para 30 of his statement) and at para 42 that, even though being gay was acceptable in the UK, his sexuality was something that he only discussed with extremely few people like his close friends and members of the gay clubs he attended. He added at paragraph 46 that the acceptance of his sexuality amongst his close friends and relationship with other people was a liberty and being in the UK made him happy, more comfortable and safe about his sexuality as he did not need to worry about receiving threats from family or the police authorities.

25. Looking at the evidence as a whole, I am satisfied that this is a case where the appellant's reasons for living discreetly in Pakistan are mixed. He is clearly someone who does not wish to broadcast his sexuality and, in his words, it is something that he only discusses with extremely few people like very close friends and other members of the gay clubs he attends. However, I also accept that the fears he expresses of returning to Pakistan arising from his sexuality are genuine fears which are objectively justified. As the judge found on the evidence before him there was evidence that the appellant would be at real risk of persecution on return if he was open about his sexuality. I am satisfied that the evidence leads to a conclusion that need for the appellant to act discreetly on return to Pakistan arises at least in part and perhaps even substantially from the fear he has of the consequences if his sexuality were to become known.

26. Accordingly, I am satisfied that the appellant has shown that in his circumstances the position is such that if he returned to Pakistan, in addition to any other reasons for behaving discreetly, he would do so in order to avoid persecution because of his sexual orientation. On this basis I am satisfied that his appeal should be allowed.

Decision

27. The First-tier Tribunal erred in law and the decision is set aside. I re-make the decision by allowing the appeal against the refusal of asylum. The anonymity order made by the First-tier Tribunal remains in force.

Signed H J E Latter Date: 14 December 2016

Deputy Upper Tribunal Judge Latter