Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03388/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 October 2016
On 09 January 2017

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

o o n
(ANONYMITY DIRECTION made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Jafar Counsel instructed by Frederick Rine Solicitors
For the Respondent: Ms A Brocklesby-Weller, Home Office Presenting Officer
DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 I make an order prohibiting the disclosure or publication of any matter likely to lead members of the public to identify the Appellant. Breach of this order can be punished as a contempt of court. I make this order because the Appellant had claimed international protection and publicity about his appeal might create a risk that would not otherwise exist.
2. This is an appeal brought with permission given by Upper Tribunal Judge Rintoul against the decision of the First-tier Tribunal on 7 July 2016 to dismiss the appellant's appeal against the decision of the respondent refusing him asylum, humanitarian protection and leave to remain on human rights grounds.
3. The appellant entered the United Kingdom in September 2013 as a business visitor with permission valid until 26 December 2013. He overstayed and claimed asylum in July 2015.
4. In summary outline it is his case that he is gay and risks serious ill-treatment orchestrated by a former boyfriend who is a rich and politically influential man in Ghana and also from homophobic attitudes against the Ghanaian authorities and societies as a whole.
5. It was the appellant's case that he was being controlled by his former partner and resolved not to return to Ghana. When his former partner learned of the decision he used his influence to arrange for an arrest warrant to be issued and await his return at the airport. The appellant expressed a fear that his partner would kill him.
6. The First-tier Tribunal Judge appears to have assessed the evidence carefully. He accepted, having reminded himself of the lower standard of proof, that the appellant is gay but did not accept that there was an arrest warrant waiting for him or that his lover had the power to arrange that or otherwise harm him.
7. The Judge then, appropriately, asked himself if the appellant needed protection in accordance with the decision of the Supreme Court in HJ (Iran) v SSHD (Rev1) [2010] UKSC 31. The Judge summarised the explanation of the law given in HJ (Iran) at paragraph 26 of his decision and that summary has not been challenged. The Judge accepted that there is widespread discrimination against gay people in Ghana and that sexual activity between men could be used as a basis for prosecution and that, theoretically, prosecution could be used as a way of targeting openly gay people. However the Judge found at paragraph 45 that the discrimination that was widespread and evident against gay people was not so severe that it established a real risk of persecution of openly gay people throughout Ghana. The Judge regarded the reported examples of gay people being attacked as isolated. He concluded that the appellant had not demonstrated a likelihood of ill-treatment for being openly gay that amounted to persecution and dismissed the appeal.
8. At paragraph 42 of his decision the Judge directed himself as follows, "I have accepted that the appellant is gay. Next I must consider whether gay people who live openly would be liable to persecution in Ghana".
9. He then decided that the fact that various gay sexual practices are prosecutable did not establish a real risk of persecution in every case. Rather the judge expressed himself to be "not satisfied on the background evidence before me that it is demonstrated to the lower standard that the Ghanaian authorities systematically targeted gay people in Ghana".
10. The judge was critical of a report from on Mark Luckie of the University of California stating that many gay people had been arrested because the sourcing was not clear. Similarly a report from International Lesbian and Gay Human Rights dated February 2011 referred to "gay bashing" but not in a way that enabled the judge to establish the context of the attacks of the frequency of them. The judge found it significant that there was no evidence in that report of the authorities directing the police to track down and arrest gay people.
11. Whilst the judge may not have decided expressly that the appellant would live as an openly gay man if he were returned to Ghana it is clear to me that the judge's decision is based on the premise that if he did he would not face a real risk of persecution.
12. I must now ask myself if this finding was permissible on the evidence. Both parties relied heavily, and appropriately, on a Home Office Country Information and Guidance Report entitled "Ghana: Sexual Orientation and Gender Identity". Mr Jafar particularly drew my attention to part 5.5.1 relying on the Freedom House Report published in 2011. This referred to the Government having created a "perilous environment" for gay people in Ghana and illustrated this by reference to a Member of Parliament, one David Tetteh calling for the "public lynching of homosexuals". Other prominent people had called for the arrest of all gay men and lesbians and to gay people being "sick".
13. Perhaps most significantly at 7.1.4 there is reference to an interview with an official from the Immigration and Refugee Board of Canada where someone said that although LGBT victims can report violence "there is little recourse because homosexuality is illegal".
14. This sort of comment is unpleasant to read about from the safety of the United Kingdom. It must have a very different effect on the mind of a gay person contemplating return to Ghana. This part of the report was clearly in the mind of the judge. He mentions it at paragraph 44 of his decision. The fact that gay sexual activity is contrary to the criminal law, although relevant because it might be thought to set the mood of society, does not determine if a gay person in Ghana would be persecuted. There is little evidence of gay people being prosecuted. I found nothing in the report to indicate that there was a real risk of people engaging in consensual same sex activity facing prosecution.
15. The reference in the COI Report to Muslim and Christian groups having "mobilised their congregations against politicians who defend homosexuality" is another way of saying that there are in Ghana politicians who defend homosexuality. The CIO also points out that as well as the nasty comments indicated above the present President of Ghana, Mr J Mahama, had stated that although there was strong cultural hostility towards homosexual activity in Ghana "I believe that laws must prevail. For instance, people must not be beaten or killed because of their sexual orientation".
16. Although the evidence as a whole provides clear authority for the conclusion that there is much opposition to homosexual people in Ghana there is also some support and although there are well-documented examples of sufficiently serious ill-treatment to amount to persecution being inflicted on some people, I am unable to conclude that the judge was not entitled to say, as he did, at paragraph 46:
"With the evidence relied upon by the appellant, I am not satisfied he has demonstrated that the likelihood of him facing serious harm because of being openly gay in Ghana is so extensive or severe as to amount to persecution".
17. It follows that no error of law that is material has been established.
18. I dismiss this appeal.

Notice of Decision
The appeal is dismissed.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 6 January 2017