Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04800/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1st March 2017
On 16th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

a h
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Eaton, Counsel instructed by Duncan Lewis & Co Solicitors (Harrow Office)
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer

DECISION AND REASONS
Background
1. The appellant in this case is A H, a citizen of Bangladesh who was born on 6 February 1984. The appellant, as described by the First-tier Tribunal, has a lengthy immigration history which I do not repeat here. This culminated on 19 October 2015 in a claim for asylum which was refused by the respondent on 26 April 2016. In a decision promulgated on 1 November 2016, following a hearing on 7 October 2016, Judge of the First-tier Tribunal Obhi dismissed the appellant’s appeal on all grounds.
2. The appellant appeals to the Upper Tribunal with permission on the following grounds:
Ground 1 – Failure to Apply HJ (Iran)
At [22] the judge had noted that the applicable test was set out in HJ (Iran) & Others v The Secretary of State for the Home Department [2010] UKSC 31. The test is expressed by Lord Hope at paragraph 35 of HJ in the following terms:
“(a) The first stage, of course, is to consider whether the applicant is indeed gay. Unless he can establish that he is of that orientation he will not be entitled to be treated as a member of the particular social group. ...
(b) The next stage is to examine a group of questions which are directed to what his situation will be on return. This part of the inquiry is directed to what will happen in the future ... The question is how each applicant, looked at individually, will conduct himself if returned and how others will react to what he does. Those others will include everyone with whom he will come in contact, in private as well as in public. The way he conducts himself may vary from one situation to another, with varying degrees of risk. But he cannot and must not be expected to conceal aspects of his sexual orientation which he is unwilling to conceal, even from those whom he knows may disapprove of it. If he fears persecution as a result and that fear is well-founded, he will be entitled to asylum however unreasonable his refusal to resort to concealment may be. The question what is reasonably tolerable has no part in this inquiry.
(c) On the other hand, the fact that the applicant will not be able to do in the country of his nationality everything that he can do openly in the country whose protection he seeks is not the test ... The focus throughout must be on what will happen in the country of origin.
(d) The next stage, if it is found that the applicant will in fact conceal aspects of his sexual orientation if returned, is to consider why he will do so. If this will simply be in response to social pressures or for cultural or religious reasons of his own choosing and not because of a fear of persecution, his claim for asylum must be rejected. But if the reason why he will resort to concealment is that he genuinely fears that otherwise he will be persecuted, it will be necessary to consider whether that fear is well founded.
(e) This is the final and conclusive question: does he have a well-founded fear that he will be persecuted? If he has, the causative condition that Lord Bingham referred to in Januzi v Secretary of State for the Home Department [2006] 2 AC 426, para 5 will have been established. The applicant will be entitled to asylum.”
3. It was submitted that Judge Obhi, in considering the HJ (Iran) test, recorded that it was not in dispute that the appellant was gay as the respondent had accepted this. The judge considered (b) and (c) noting at [22] that it is not disputed that the law in Bangladesh discriminates and criminalises homosexuality. The judge at [19] recorded the respondent’s position that the relevant question was “whether he would live discreetly for his own reasons or because he feared persecution”. It was submitted therefore that it was not in dispute that the appellant would conceal his sexuality and the judge appeared to proceed on that basis at [24] of the determination. It was further submitted that the judge erroneously failed to consider (d) and (e) of the test in HJ (Iran). At [24] the judge concluded that she was satisfied that the appellant could return and live there safely. “He is unlikely to be openly gay, he has not been in the UK.”
4. It was submitted that whilst the judge addressed whether the appellant would conceal his sexuality she did not consider, as she was bound to do under HJ (Iran), why the appellant would do so. At paragraph 5 of his witness statement the appellant had explained that:
“I am fearful for my life because of the attacks against homosexuals in Bangladesh. I fear the people in Bangladesh as well as the state. If the authorities learnt of my sexuality, I fear that I can be imprisoned.”
The judge made no comment on this evidence.
Ground 2 – Failure to Consider Material Evidence
5. It was submitted that the judge’s finding, that the appellant had not been openly gay in the UK, was contrary to the evidence before the Tribunal including that the appellant stated he was happy living as an openly gay person and attended a gay pride event on 27 June 2015 and 25 June 2016. The failure to properly consider this evidence was material because it led the judge to conclude that the appellant could continue concealing his sexuality, albeit in Bangladesh rather than in the UK.
Ground 3 – 276ADE
6. The grounds argued that the judge failed to consider paragraph 276ADE(1)(vi) specifically in relation to the very significant obstacles to integration. However, Mr Eaton did not pursue that ground before me other than to rely on the grounds.
7. Mr Eaton submitted that the judge’s approach at [22] of the Decision and Reasons was flawed in that the judge found that “There was no evidence produced by the appellant to challenge this objective evidence” in relation to the situation in Bangladesh. This was not the case as the appellant had produced background information at pages 19 to 104 of the appellant’s bundle before the First-tier Tribunal of the treatment of homosexuality in Bangladesh which the judge failed to make findings on.
Discussion
8. This case turns on the judge’s approach to HJ (Iran) as set out in grounds 1 and 2 of the grounds for permission to appeal. The respondent’s Rule 24 stated that:
“2. It appears that the FtJ may not have made full findings on all of the aspects of the A’s evidence (including whether those claims are credible at the lowest standard) – it may well have been, bearing in mind the Judge’s concerns about A’s grasp of the truth, that he/she would have concluded that any attendance at gay pride was contrived in respect of the A’s desire to be public about his sexuality.
3. It is however accepted that the Judge his not really engaged explicitly in such an assessment or A’s reasoning for concealment even though he/she was aware that this was an issue at the heart of the appeal.”
9. Mr Clarke conceded that there was a material error made by the judge, although he submitted that the error was in the judge’s failure to consider the material evidence and not in relation to the concealment point.
10. I am satisfied that the decision of the First-tier Tribunal is flawed, including in the approach to the material evidence which encompassed the appellant’s attendance at Gay Pride and his evidence that he is happy living openly as a gay person in the UK. Although the judge made findings in relation to the appellant’s failure to be open about his sexuality when he was first in the UK, she failed to make adequate findings in relation to how the appellant conducts himself now, particularly given that the judge had recorded, at [13] of her Decision and Reasons, that the appellant had “come out” in 2015 after a lengthy period of concealment. The Tribunal’s subsequent findings, at [24] that “He is unlikely to be openly gay, he has not been in the UK.” fails to take into consideration the material evidence that the appellant has been openly gay in the UK and there are no reasons for the judge’s findings as to why that evidence is rejected, if that is the case, including his attendance at Gay Pride.
11. Perhaps even more significantly the First-tier Tribunal failed to adequately address why the appellant would conceal his sexuality in Bangladesh, whether that would be in response to social pressures or for cultural or religious reasons which would not lead to a grant of asylum, or whether it would be if he genuinely feared that he would otherwise be persecuted. The judge’s findings that he would be unlikely to be openly gay as “he has not been in the UK”, is not only wrong in fact, but insufficient to address the test in HJ (Iran).
12. Although there is little in the grounds in relation to paragraph 276ADE, particularly given that the judge considered that the appellant’s homosexuality did not make his case exceptional (at [25]), in light of the fact that I am satisfied there is a material error in the judge’s approach to both the evidence and the application of that evidence to the criteria set out in HJ (Iran) I am not satisfied that any of the findings in the judge’s Decision and Reasons can stand.

Notice of Decision
13. The decision of the First-tier Tribunal contains an error of law such that the decision cannot stand and is set aside. No findings of fact are preserved. The decision is remitted to the First-tier Tribunal, other than judge Obhi, for a hearing de novo. No findings of fact are preserved.

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 his 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

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD
As no fee is payable I make no fee award.

Signed Date

Deputy Upper Tribunal Judge Hutchinson