Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02956/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16th February 2017
On 23rd February 2017

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

Mr h h
(ANONYMITY DIRECTION made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms A Radford (instructed by Turpin & Miller, Solicitors)
For the Respondent: Mr S Kotas (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. This is an appeal to the Upper Tribunal by the Appellant against the Decision of First-tier Tribunal Judge Shand. Following a hearing at Hatton Cross on 5th September 2016, in a Decision and Reasons promulgated on 17th October 2016 Judge Shand dismissed the appeal on all grounds.
2. In short the appellant's claim was that he would be at risk on return to Tanzania by reason of his sexuality, namely that he is gay. That was the issue to be decided by the First-tier Tribunal and thereafter, if he was found to be gay whether that would place him at risk.
3. Permission to appeal was granted by a Judge of the First-tier Tribunal who found it arguable that the Judge reached a conclusion on the appellant's sexual orientation before assessing all of the evidence because at paragraph 65 of the Decision and Reasons the judge had said that he accepted the witness's evidence that he was in a relationship with the appellant but nevertheless did not accept the appellant to be homosexual.
4. Mr Kotas on behalf of the Secretary of State argued that the Decision and Reasons was entirely sustainable. The central dispute was whether the appellant was gay. He argued that the judge had not focused on inappropriate questions to do with the appellant's conduct or appearance and had not looked at peripheral issues. He argued that the judge did what he was supposed to do and focused on the core of the appellant's claim as to why he had fled Tanzania. He then took me through the Decision and Reasons paragraph by paragraph identifying the numerous adverse findings and arguing that the judge had rejected the appellant's main witness's evidence for entirely sustainable reasons. The judge had said that in light of the previous adverse findings, whilst it was the case that the witness might have believed himself to be in a genuine relationship with the appellant, he found that the appellant had entered into the relationship solely for the purposes of advancing his asylum claim. Mr Kotas argued that the credibility findings were so damning it was inconceivable that the appeal could have gone any other way.
5. Miss Radford on the other hand argued that the most important piece of evidence before the judge was the evidence of the appellant's partner that they are in a sexual relationship. She argued that the fact that they are in a homosexual relationship proves that the appellant is gay. She submitted that the Judge erred in making a variety of adverse credibility findings before considering the evidence of the appellant's partner and then dispensing with that evidence on the basis of the previous adverse findings.
6. She also argued that the numerous adverse findings were flawed because they were based on matters that had not been put to the appellant in cross examination and were not matters that were contained in the letter of refusal, save for inconsistencies.
7. In response Mr Kotas argued that the burden of proof lay with the appellant and it was for him to advance a credible case and the Judge was entitled to make adverse findings.
8. I disagree with Miss Radford that the fact that the appellant is in a homosexual relationship proves that he is gay. It is important evidence but not determinative. It is well known that many gay men and lesbian women enter into heterosexual relationships to conceal the fact that they are gay or lesbian even to the extent of having children. However, I am concerned that many of the adverse credibility findings rely on the appellant's lack of explanation for matters or lack of reason for incidents taking place when these were not put to him. The appellant cannot be blamed for not explaining something if he has not been asked for an explanation. That taken together with the bold dismissal of his partner's evidence leads me to conclude that the Decision and Reasons contains material errors of law such that it must be set aside in its entirety.
Notice of Decision

For that reason the Decision as a whole must be set aside and will need a full hearing on all matters. That being the case it is an appropriate case to be remitted to the First-tier Tribunal for a full re-hearing.

The appeal to the Upper Tribunal is allowed to that extent

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 him 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 Date 22nd February 2017

Upper Tribunal Judge Martin