Tribunal decisions

The decision

IAC-AH-KRL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02914/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 8th November 2016
On 21st November 2016

Before

DEPUTY upper tribunal judge ROBERTS

Between

miss L.N.
(ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Miss Sheikh, Counsel
For the Respondent: Mr Harrison, Senior Home Office Presenting Officer

Anonymity

Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity direction was made by the First-tier Tribunal. As a protection claim, it is appropriate to continue that direction.
DECISION AND REASONS
1. The Appellant, a citizen of Cameroon (date of birth 28th May 1984), appeals with permission to the Upper Tribunal against the decision of a First-tier Tribunal (Judge Turnock) dismissing her appeal against the Respondent's decision making a deportation order against her as a foreign criminal sentenced to a term of imprisonment of twelve months.
Background
2. The Appellant arrived in the UK on 2nd August 2014 using a false entry document. On 22nd September 2014 she was convicted at Canterbury Crown Court of an offence of possessing an identity document with intent to deceive by circumventing border controls. She was sentenced to twelve months imprisonment.
3. On 2nd October 2014 the Respondent notified her of an intention to deport her under Section 32 of the Borders Act 2007.
4. On 18th November 2014 the Appellant notified the Respondent that any decision to deport her, would result in a breach of her protected rights under the Refugee Convention and Articles 2, 3 and 8 of the ECHR.
5. On 15th January 2015 the Appellant was interviewed on her asylum claim. On 23rd June 2015 the Respondent refused the Appellant's asylum/human rights claim and she became the subject of a signed deportation order. She appealed that decision to the First-tier Tribunal. It is this appeal which forms the basis of the present appeal.
The FtT Hearing
6. When the appeal came before the FtT the judge had before him the Appellant's interview record together with the respondent's decision letter. He noted that the Appellant's claim to asylum as at the date of the interview amounted to the following. She said she lived in a village with her mother and they worked farming the land. Her father had died but had left land to her and her mother. She said she could not return to Cameroon because of fear of four uncles who also lived in the village and who were intent on forcing her to marry an 80-year-old man who already had ten wives. Money had already been given for her.
7. When she refused to comply with her uncles' wishes, she and her mother were beaten. Her claim was that her uncles had been trying to force her into marriage since she was around 18 years of age. She was now around 30 years old. She arranged to sell some of her father's land and consequently fled the village living for a time in the city whilst she arranged to leave Cameroon, with the help of an agent. She also claimed that prior to any marriage taking place, she would be subject to FGM.
8. By the time of the hearing before the FtT, the Appellant submitted a witness statement. The judge noted that the Appellant's original claim had now expanded. She now claimed additionally, that she is a lesbian and she feared returning to Cameroon also on account of her sexual orientation. The judge noted that this was the first indication of this part of her claim. There was no mention made of her sexual orientation either in the Home Office interview nor in the original grounds of appeal. He noted that the Appellant had been legally represented at this time.
9. The FtT judge assessed the evidence before him and found that he comprehensively disbelieved the Appellant account, both on her original claim and on her additional claim concerning her sexual orientation. He dismissed the appeal.
Onward Appeal
10. The Appellant appealed to the Upper Tribunal on the sole ground that the FtT had made unreasonable adverse credibility findings against the Appellant in respect of her late claim relating to her sexuality.
11. Permission to appeal was refused initially in the FtT; but allowed on a renewed application before the Upper Tribunal. The grant of permission is set out here;
"The First-tier Tribunal has arguably erred in law in finding the Appellant's explanation that she did not wish to disclose her sexuality earlier (para 63) to be incredible without adequate reasoning.
All grounds are arguable".
Thus the matter came before me to decide whether the FtT's decision disclosed a material error requiring the decision to be set aside.
Error of Law Hearing
12. Before me Miss Sheikh appeared for the Appellant; Mr Harrison for the Respondent.
13. Miss Sheikh's submissions followed the lines of the grounds seeking permission. She handed in the ECJ judgment entitled ECJ December 2014, A, B and C. She acknowledged that this had not been placed before the First-tier Tribunal judge, but submitted the principle therein held good. This judgment provided that adverse credibility findings cannot be made merely because a claimant did not raise issues of sexual orientation on the first occasion in which they claimed asylum. She pointed to the following part of the judgment which says;
"In the fourth place, as regards the option for the competent authorities finding a lack of credibility when, in particular, the applicant did not rely on his declared sexual orientation on the first occasion he was given to set out the grounds for persecution, it must be held as follows.
It is clear from Article 4(1) of Directive 2004/83 that member states may consider it the duty of the applicant to submit 'as soon as possible' all elements needed to substantiate the application for international protection.
However, having regard to the sensitive nature of question relating to a person's personal identity and, in particular, his sexuality, it cannot be concluded that the declared sexuality lacks credibility simply because, due to his reticence in revealing intimate aspects of his life, that person did not declare his homosexuality at the outset".
14. In these circumstances, Miss Sheikh submitted, the FtT had erred by not following the correct approach as set out in ECJ December 2014 above.
15. Mr Harrison on behalf of the Respondent submitted a Rule 24 response. He said that the judge's findings were proper findings reasonably open to him after a full and careful consideration of all the evidence before him. The Appellant's submissions amounted to no more than a disagreement.
Error of law / Consideration
16. Miss Sheikh submits that the FtT did not tackle the question of the Appellant's sexuality correctly on account of its approach, which was she said contrary to the approach set out in the ECJ December 2014 judgment above. Furthermore she said that the approach taken by the FtT was contrary to the Respondent's own published policy on dealing with LGBT asylum claims. Such claims had to be dealt with sensitively and the Respondent recognised this in her own policy.
17. I find I disagree with Miss Sheikh's submissions and now give my reasons for so doing. Miss Sheikh relies upon the reasoning set out in paragraph 13 above in particular the part which says;
"However having regard to the sensitive nature of question relating to a person's personal identity and in particular his sexuality it cannot be concluded that the declared sexuality lacks credibility simply because, due to his reticence in revealing intimate aspects of his life that person did not declare his homosexuality at the outset."
18. In fact, I find that a full reading of the FtT's judgment shows that the judge has not simply based his finding that the Appellant's declared sexuality lacks credibility, merely because of her reticence in not declaring her sexuality at the outset. The judge in fact begins his consideration of the Appellant's declared sexuality at [62], and says;
"The Appellant's claim that she is a lesbian requires an assessment of the evidence which she has produced and of her credibility."
That is precisely the task which is before the judge.
19. I find therefore that [63] has to be read in the context of the decision as a whole. After starting his assessment at [62] it is clear that the judge correctly directs himself that the Appellant's claim that she is a lesbian has to be looked at, and required an assessment of the evidence before him. When assessing the evidence of the claim he was entitled to keep in mind the fact that he could place little reliance on the Appellant's credibility. This is because, with good reason, he found he disbelieved her account of why she had entered the UK. He went on therefore to assess her claim in the light of the further evidence she produced. He looked at this in the context of the overall evidence which led him to conclude, with good reason, that he disbelieved the Appellant's claim.
20. He assessed the Appellant's explanation that she had been reticent about explaining her sexuality until now because she felt that this was private information deep within herself. Having assessed that explanation, the judge found he could not accept it as a credible one and in [64] onwards gives cogent reasons as to why not. He assessed the evidence put before him over several paragraphs and found he could place little reliance upon it. He gave reasons for showing why the Appellant had failed to make out her case and those reasons in [65] to [71] are ones which were open to him on the evidence put forward.
21. I find therefore that contrary to what is said by the Appellant, the judge has adopted the correct approach by giving careful consideration to the issue of her claimed sexuality. He has reached conclusions which are neither perverse nor irrational. For the foregoing reasons therefore the Appellant's appeal fails and the decision of the FtT stands.
Notice of Decision
The Appellant's appeal is dismissed. The decision of the FtT promulgated on 8th August 2016 stands.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of their 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.

Signed C E Roberts Date 19 November 2016

Deputy Upper Tribunal Judge Roberts