Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03026/2015

THE IMMIGRATION ACTS

Heard at Liverpool
Decision & Reasons Promulgated
On 29th November 2016
On 20th December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

EDITH IGHOMWONYI
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In person
For the Respondent: Mr G Harrison, Home Office Presenting Officer

DECISION AND REASONS
1. This is the appellant's appeal against the decision of Judge Parker made following a hearing at Manchester on 11th July 2016.
Background
2. The appellant is a citizen of Nigeria born on 10th July 1994. She arrived in the United Kingdom on 16th May 2014 and claimed asylum. Her claim was refused on 10th October 2014 and the appellant appealed. Her appeal was dismissed by Judge Holt.
3. It is the appellant's case that she had a lesbian relationship there, with a woman called Sonia, and another woman, Stella, threatened to tell the government about that relationship. In a brief determination Judge Holt found that the appellant's fear of a return to Nigeria was not well-founded. The judge said that, whether or not the appellant was a lesbian, noting that the respondent did not really challenge the point at the hearing, she has three children and it would be a straightforward matter for her to deny that she was gay. Furthermore, Stella would not put herself at risk by denouncing her. She dismissed the appeal.
4. The appellant then made a second application for asylum, submitting a very large bundle of further evidence.
5. Judge Parker noted that the there was no concession at the previous hearing in relation to the appellant's sexuality. He placed strong emphasis on the fact that, at the time of the hearing before Judge Holt, the appellant was in a relationship with another woman, Dorcas, but she did not tell the judge about it. The fact that this was not mentioned at a previous hearing was a major factor counting against the genuineness of the relationship.
6. With respect to the further evidence, he simply said:
"I would agree with the respondent that the letters of support do add very little to evidence without them intending to give evidence."
7. The appellant, who was acting in person, sought permission to appeal which was initially refused by Judge Baker on 15th August 2016. Upon renewal it was granted by Upper Tribunal Judge Finch. Judge Finch observed that there was a substantial amount of evidence presented at the hearing before Judge Parker. He was required to treat that evidence with anxious scrutiny, especially as some of it was from professionals who on the face of it had no reason to provide the Tribunal with a false account of events. However. the evidence was not analysed and assessed.
8. On 15th September 2016 the respondent served a reply defending the determination.
The Hearing
9. At the hearing Mr Harrison accepted that the Immigration Judge had not dealt with the appellant's bundle of evidence in an adequate manner.
10. The judge erred in law. Judge Holt dismissed the first appeal without actually making any findings as to whether the appellant was gay or not. Indeed at that stage the respondent did not appear to be disputing that she was. Moreover there was a further clear error in the determination in that Judge Holt made no findings on whether the appellant would engage in gay relationships in Nigeria, and if she would not, whether her reason for not doing so would be due to a fear of persecution. Be that as it may, the determination went unchallenged.
11. By the time the case came before Judge Parker there was a very large bundle of documents from a number of different agencies attesting to the appellant's lesbian relationship. It was clearly supportive of her case that she chooses to live an openly gay life in the UK and highly relevant to the outcome of her appeal. He simply did not deal with it.
12. The judge erred in failing to deal with relevant matters and accordingly his decision is set aside.
13. It was agreed that it would be possible to remake the decision without the need for a further adjournment.
The Oral evidence
14. I heard oral evidence from Edith Ighomwonyi. She explained that she had three children with a partner in Nigeria, two girls and a boy. He was violent to her. She fled from their home, taking her son, and rented a room in another compound. There she met a woman, Sonia, with whom she became romantically involved. However, when she was threatened by Stella she went to Lagos, in October/November 2013 where she slept rough with her little boy. She was rescued from that situation by a man whom she described as a good Samaritan, a catholic, who arranged for her to leave.
15. When she arrived in the UK she was housed in a Liverpool and began a relationship with a woman called Dorcas. That relationship lasted until a couple of months ago when she found Dorcas being unfaithful with another woman. She is not in a relationship at the moment because the trauma of the loss of Dorcas is still with her. She said that she was very sociable and attended a number of different organisations for gay people.
16. Mr Harrison asked her about her family in Nigeria. She said that her parents were dead and she was in contact with her brother, but it was impossible for her to tell him of her sexual orientation because it was taboo.
17. She feared being killed if she returned. Her little girls were being looked after by her former partner's mother, who was extremely elderly. She had no direct contact with them but she heard, through her former partner's cousin, that they were fine. She became very distressed when talking about her children.
18. Sheila McCormick also gave evidence. She is a specialist health visitor who has had extensive contact with the appellant since her arrival in Liverpool, although a little less so now than when she first arrived. She knew her former partner Dorcas and was aware that the appellant attended a number of LGBT groups in Liverpool. She said that the little boy had progressed well. When he first arrived he had delayed communication skills but so far as she was aware he was now fine. The appellant however was on anti-depressants and was receiving counselling from a number of different agencies.
The Documentary Evidence
19. The appellant has produced a number of different letters from a variety of different agencies.
20. Merseyside Refugee and Asylum Seekers Pre- and Postnatal Support Group writes, in a letter dated 26th May 2016, that
"Edith is in a lesbian relationship with Dorcas Kyola Alas-Girma who is also a regular service user with our organisation. We have built a good rapport with Edith and her partner and we can confirm that they are in a steady relationship. I have also witnessed them cuddling and kissing on several occasions publicly. It seems that both are genuinely in love. We have given Edith and her partner Dorcas moral, emotional and social support without being judgmental. Edith still has a long way to go as she still fears that if returned to Nigeria she will be tortured, persecuted and even worse killed."
21. The Liverpool Asylum and Refugee LGBT Support Network, led by Sahir House and supported by Mersey Care Mental Health Heath Trust confirms that they first met the appellant at their launch event on 29th March 2016. She attended with her partner Dorcas who was also a founding member of the organisation, Many Hands One Heart. The authors, a PhD researcher at the University of Liverpool and an asylum support worker, confirm that they attend group- meetings and play an active part in the organisation.
22. The Armistead Centre Community Health Trust, a part of the Liverpool Community Health Trust is a specialised service for LGBT communities and has been in operation since 1997. Joe Lightwood writes, in a letter dated 14 June 2016, that the appellant and her partner have been accessing the centre for approximately eighteen months.
23. A letter of 24 June 2015 from Asylum Link Merseyside states that the appellant is a lesbian, and the project worker at the Armistead Centre wrote on 13th August 2015 that the appellant attends with her female partner.
24. Susan McCormick herself has written letters, one dated 15th May 2016 confirming that the appellant is in a lesbian relationship and that she has met her partner.
25. The appellant's GP confirmed that she is suffering from depression and taking anti-depressant medication and receiving counselling with Talk Liverpool. He said that she had informed him that she was very frightened of returning back to her home country of Nigeria because of her sexuality (lesbian).
26. The City of Liverpool College, Counselling Heath and Wellbeing Service reports that the appellant experiences
"high levels of fear, worry, panic and anxiety in relation to the likelihood of persecution in her home country because of her sexuality or as a LGBT person"
27. There is also a letter from the appellant's social worker dated 24 June 2015 confirming that the appellant is in a steady relationship.
28. There are also a number of other letters from individuals attesting to the relationship with Dorcas in the appellant's bundle.
Submissions
29. Mr Harrison noted that it was not accepted in the reasons for refusal letter that the appellant was gay, but he acknowledged the strength of the evidence today which he did not seek to undermine in any way. Indeed, he observed that the appellant had given her evidence in a controlled manner, recalling events which were clearly extremely traumatic to her. He did not dispute the appellant's evidence that she was living a gay lifestyle as her choice with other members of the LGBT community in Liverpool and he did not dispute that the reality for life as an openly gay woman in Nigeria would be extremely difficult. Even if the appellant herself was not prosecuted, he was content to adopt the observation in the reasons for refusal letter, at paragraph 28, which states: "The country information demonstrates that Nigeria is a dangerous place to be openly gay".
Findings and Conclusions
30. The decision of Judge Holt has not been overturned and is therefore the starting point for my consideration. Although a flawed determination, it was not appealed. The appellant was not well served by her previous representatives.
31. Since it was promulgated, the appellant has produced a wealth of documentary evidence, entirely unchallenged by the respondent today, attesting to her sexuality. She also gave powerful oral evidence, again unchallenged, that, since the assault by her previous partner, she has identified as being a lesbian. In fact when asked directly, she said that she was not bisexual.
32. The appellant's case is that she was never asked her about her present relationship at the hearing before Judge Holt, which is why she did not mention Dorcas, although in any event the relationship was in its early stages.
33. I accept her explanation. There the wealth of evidence from not only the appellant's friends, but a large number of professionals who all attest to the appellant's relationship with Dorcas. The fact that it has now finished is not evidence that it did not exist.
34. I find that the appellant is a gay woman who has had a relationships both in Nigeria and in the UK. I also find that she is actively involved in a number of different organisations, in particular Many Hands One Heart, of which she was a founder member.
35. Mr Harrison did not see to argue that the appellant could safely live her life as she chooses to live it now, if she were returned to Nigeria. HJ and HT v SSHD UKSC 31 [2010] rejected the so called discretion test, and held that it was no answer to a claim to international protection to expect a person to act discreetly if the reason for that discretion was a fear of persecution.
36. In this case the appellant has demonstrated that she wishes to live an openly gay lifestyle through her involvement in the different organisations in Liverpool. She would not be able to do so in Nigeria because if she did, she would be at risk of persecution on account of her sexuality. Accordingly she is entitled to the protection of the Refugee Convention.

Decision
37. The original judge's decision is set aside. It is remade as follows. The appellant's appeal is allowed.

No anonymity direction is made.

Signed Date 19 December 2016

Deputy Upper Tribunal Judge Taylor