Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05105/2019

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 November 2019
On 29 November 2019

Before

UPPER TRIBUNAL JUDGE PERKINS
HER HONOUR JUDGE STACEY
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)

Between

A B
(ANONYMITY DIRECTION maDE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms K McCarthy, Counsel, instructed by A & A Solicitors
For the Respondent: Mr N Bramble, 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. We make this order because the appellant claims to be a refugee and so is entitled to privacy.
2. This is an appeal by a citizen of Trinidad and Tobago against a decision of the First-tier Tribunal dismissing his appeal against a decision of the Secretary of State refusing to recognise him as a refugee or giving him leave to remain on a protection basis or on Article 8 grounds.
3. We are entirely satisfied that the First-tier Tribunal has erred materially.
4. Our first concern is that the findings of fact are unsustainable. The appellant was found to have been untruthful but one of the reasons for finding him untruthful is based on a straightforward misreading of the evidence of the interview record. The appellant was disbelieved for saying he had come to see his girlfriend but he had never made such a claim. The finding was an error that clearly affected the other findings.
5. It is also a matter of concern to us that, in the judge's reasoning, he describes the appellant as having been in the United Kingdom for "some time" and having been in the United Kingdom during the period of transition in Trinidad and Tobago, where the law has changed so that matters relating to gay sex are no longer criminal offences. This too is just wrong. The evidence is that the appellant has been in the United Kingdom for a much shorter period of time and was in Trinidad and Tobago when the changes took place. This again has clearly misinformed the judge's conclusions.
6. We are also unhappy that the judge has failed to make a clear finding on the appellant's evidence that he has been ill-treated in Trinidad and Tobago as a result of being gay and has made reports to the police but was brushed aside and not provided with any support. The judge has made a partial finding in this regard where we read at paragraph 21 of the Decision and Reasons that he has been previously attacked in Trinidad as a result of his homosexuality but not "as frequently as indicated by him". That is a tantalising finding that is, for our purposes, useless. We do not know if it is accepted that the appellant has been attacked in the recent past or he has been attacked on many occasions or whether it was an isolated incident. There needed to be clear findings on this evidence or, just possibly, an explanation why clear findings are not possible.
7. We are also concerned at the overall structure of the First-tier Tribunal's decision because the judge has decided that, because of the change in law, the attitude in the country has changed to the point where at least this appellant would not be at risk. This finding does not sit easily with clear evidence produced by the Respondent that the change in the law is controversial, that there has been social objection to the change and a certain amount of unrest. Additionally gay people have complained that they had been further ill-treated as a result of the change. It may be that this evidence is unreliable, untypical, or related to a particular short period of time but it is the evidence that was before the Tribunal and it does not appear to have been considered properly or at all.
8. We are very far from saying that gay people will be persecuted in Trinidad and Tobago. It is obvious from a very careful reading of the evidence that there is some sort of gay scene in the country and some people are happy to go there and express their sexuality but it does not follow that everyone is and it certainly does not follow from that that this appellant might be somebody who can return. The decision is just not satisfactory.
9. We are grateful to both representatives, Ms McCarthy and Mr Bramble, who essentially agreed that the decision would not do.
10. We do have to say something about an application to adjourn. The appellant relied on that as the first ground of appeal and we do understand from Ms McCarthy that the appellant's representatives had, in their phrase, "flagged up" at an early time they were looking for expert evidence and subsequent events have shown that such evidence would have been highly desirable. We content ourselves with saying the following. It would have been very much better if the application for an adjournment had been made at an earlier opportunity rather than the morning of the hearing. Once a case is listed people can be expected to have made consequential arrangements and adjourning inconveniences them and other people and causes delays to other cases. However, we acknowledge that the possibility of an adjournment was at least indicated at an earlier opportunity and we do not make any more of the point than we have said.
11. In the circumstances, we find the First-tier Tribunal erred.
12. The First-tier Tribunal, unlike the Secretary of State, accepted that the appellant is gay. Ms McCarthy said that we should preserve that finding of fact. The submission was made very slightly teasingly, because it is clearly in the appellant's interests that accede to the submission, but she is right; it is not only convenient to the appellant but it is also justified because none of the reasons for disbelieving him impact on the finding on that point, for which there was considerable evidence and support. When the case is heard again it goes from the starting point that the appellant is gay.
Notice of Decision
13. We find the First-tier Tribunal erred in law for the reasons we have given. We set aside this decision. We direct that the case be heard again in the First-tier Tribunal.

Signed

Jonathan Perkins

Judge of the Upper Tribunal
Dated 27 November 2019