Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02796/2016
PA/02797/2016

THE IMMIGRATION ACTS

Heard in Birmingham
Decision & Reason Promulgated
On Tuesday 21 February 2017
On Wednesday 1 March 2017

Before
UPPER TRIBUNAL JUDGE SMITH

Between

MR S A N
MR L B N M
(ANONYMITY DIRECTION MADE)

Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mrs Andersen, Legal representative, Immigration Legal Advice Centre
For the Respondent: Mrs Aboni, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the case involves protection issues. It is appropriate to continue the order. Unless and until a tribunal or court directs otherwise, the Appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the Appellants and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

DECISION

Background

1. The Appellants appeal against a decision of First-Tier Tribunal Judge Hussain promulgated on 12 October 2016 (“the Decision”) dismissing their appeals against the Secretary of State’s decisions dated 15 March 2016 refusing their protection and human rights claims.

2. The Appellants are nationals of Cameroon. The Judge accepted that they are both homosexuals and are in a relationship with each other ([9] of the Decision). Their protection claim made following arrival in the UK on 14 September 2015 is based on that relationship. It is also based on events said to have occurred in August 2015 when the First Appellant was arrested and detained. The Appellants assert that the First Appellant was able to secure his release by payment of a bribe following which they left Cameroon for the United Kingdom.

3. The Judge did not accept the Appellants as credible in relation to what occurred in August 2015. He found that, as they had not suffered any past persecution on account of their sexuality or relationship, there would not be a real risk on that account on return. The Appellants say that this finding was not open to the Judge as it was accepted by the Respondent that there is a real risk of persecution for homosexuals in Cameroon. They also say that, if it is not accepted that they have faced such persecution in the past, that is because they have conducted their relationship discreetly. They have done so, they say, not because that is the way they wish to live but because of fear of the consequences if they did not. As such, they also challenge the Judge’s finding at [22] of the Decision that they lived discreetly because they preferred to do so. They say this is inconsistent with their evidence which the Judge did not reject.

4. Permission to appeal was granted by First-tier Tribunal Judge Martins on 2 November 2016 in the following terms:-

“….[2] The grounds assert that the Judge has erred in law, in that having accepted that the appellants are homosexual partners and the concession that on the objective evidence, it is clear that there is a real risk of persecution in Cameroon to gay men, the Judge finding that only if there has been past persecution, would there be risk of future persecution (the Judge rejects the lead Appellant’s claim to have been arrested and detained in Cameroon). The Judge it is asserted, also contradicts himself in the decision and appears not to have fully considered the case of HJ (Iran) & HT (Cameroon) v SSHD [2010] UKSC 31.
[3] The assertions in the grounds are evident on the face of the decision.
[4] All grounds are arguable…”

5. The matter comes before me to decide whether the Decision contains a material error of law and, if so, to re-make the decision or remit the appeals for rehearing to the First-Tier Tribunal.

Discussion and conclusions

6. At the outset of the hearing, I asked Mrs Aboni whether the Respondent had in fact conceded that the Appellants would be at risk on return if it were found that they were homosexuals and would wish to live openly in their relationship. It appears from the second paragraph of the Appellants’ grounds that this was accepted by the Respondent. She indicated that there was no concession recorded on the file. However, she did accept that the Judge had so found at [22] of the Decision and that this had not been challenged.

7. Paragraph [22] of the Decision reads as follows:-

“[22] In considering this case, I have taken into account the guidance provided in the case of HJ (Iran) and HT (Cameroon) [2010] UKSC 31. In particular, I am satisfied that if the appellants were to live openly as gay people they would be liable to persecution in Cameroon. However, the appellants have never lived openly but rather have preferred to live discreetly because this gave them a comfortable life, the trappings of success and foreign travel. According to the second appellant, the lead appellant loved his job, further indicating that they chose to live discreetly out of the lead appellant’s love for his job. I note that even when the lead appellant was living in Germany, he chose to return to live in the same discreet way when, having lived outside of Cameroon, the potential for living outside of Cameroon was available to him.”

8. The Appellants were found credible as to their relationship and sexuality and the above paragraph records the Judge’s acceptance that, if they were obliged to live discreetly because of the situation in Cameroon for homosexuals, they would succeed in their appeal. Mrs Aboni accepted, in light of this, that the real issue in these appeals is why the Appellants lived discreetly in Cameroon, whether they would do so again on return and, if they did, whether that would be their choice of lifestyle or would be forced upon them to avoid risk.

9. I directed Mrs Aboni’s attention to paragraph [20] of the Decision which summarises the First Appellant’s evidence. In particular, I drew her attention to the sentence which reads:-

“…Whilst it is true that the lead appellant had a strong financial background in Cameroon, he was nevertheless frustrated by his inability to be openly affectionate and to live freely as a gay man with his partner in Cameroon.”

I sought Mrs Aboni’s submission whether that was inconsistent with the finding at [22] that the Appellants chose to live discreetly. She accepted that it probably was. She asked me to note that the Respondent’s Rule 24 response indicates only that the Respondent did not have sight of the Decision at the time of drafting and therefore no substantive response was made as to why the Decision should be upheld. In light of the apparent inconsistency between [20] and [22] of the Decision, she conceded that there was an error of law in the Decision. I therefore set aside the Decision and indicated that I intended to re-make it in the Upper Tribunal as there are no issues of credibility arising from the Appellants’ grounds.

10. I then discussed with Mrs Aboni the appropriate course to dispose of the appeals. She accepted that the Appellants’ evidence amounted to a claim that they would only live discreetly because of the risk if they did not do so. The lack of past persecution is a reflection only of the fact that they felt bound to live in this way and had therefore avoided any repercussions previously. It is not and could not be determinative of whether there would be a real risk if they did not live discreetly in the future. Mrs Aboni accepted that, to expect the Appellants to return to Cameroon and live discreetly if they would, but for the risk, wish to live openly would run contrary to what is said in HJ (Iran) and HT (Cameroon) v SSHD [2010] UKSC 31 (“HJ (Iran”).

11. Having previously considered the evidence contained in the Appellants’ witness statements and that summarised in the Decision, and in light of the Respondent’s concessions, I indicated that I intended to allow the appeals. The Judge recited the Appellants’ evidence about their previous lifestyle choices at [13] of the Decision in the following terms:-

“[13] Throughout his time working for the government, the appellants lived discreetly and were happy to do so because of the lifestyle they enjoyed. They did not see the need to disclose their sexuality and never did. The lead appellant took the second appellant to government functions passing him off as his younger brother. This was not seen as unusual in government circles because the lead appellant was not married and had no wife to take with him unlike the others. The lead appellant, according to the second appellant, loved his job more than anything else. All these circumstances were instrumental in the appellants leading a discreet life. They did so out of choice, a fact further illustrated by the lead appellant’s willingness to return to Cameroon despite having spent a number of years in Germany, to carry on living in the same restricted way. What changed was when the lead appellant started a relationship with the second appellant. He found it frustrating that he could not hold hands or kiss and to be otherwise openly affectionate towards the second appellant.”
[my emphasis]

12. As noted in HJ (Iran), the question of how a person has behaved in the past is not determinative of how that person would behave in the future. Of greater import, in any event, in a case involving a person’s sexuality, is the question of why the person has behaved in that way in the past. Here, the evidence which was accepted by the Judge, is that the Appellants did so because to do otherwise would not have been accepted. They did not choose to do so because that is the way they wished to live their lives. They did so because otherwise the First Appellant would not have been able to continue in the job he loved and, more importantly, because, as the Judge noted at [22] of the Decision, if they were to live openly as homosexuals in Cameroon, they would be liable to persecution. Their evidence is that they wished to be able to demonstrate their relationship openly. They did not choose their previous lifestyle. They adopted it to avoid the repercussions which would otherwise flow. That is not a choice but arises because of the risk to them if they did not do so.

13. For those reasons, I am satisfied that the Appellants are at real risk of persecution on return to Cameroon and I allow their appeals.

DECISION

I am satisfied that the Decision contains a material error of law. The decision of First-tier Tribunal Judge Hussain promulgated on 12 October 2016 is set aside. I substitute a decision allowing the Appellants’ appeals.

The appeals are allowed on protection grounds

Signed Dated: 27 February 2017

Upper Tribunal Judge Smith