Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05801/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 February 2017
On 27 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE I A LEWIS

Between

shayan [n]
(anonymity direction not made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Richardson of Counsel instructed by Woodgrange Solicitors
For the Respondent: Mr D Clarke, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against the decision of First-tier Tribunal Judge Beg promulgated on 22 November 2016 dismissing the Appellant's protection appeal.

2. The Appellant is a citizen of Pakistan born on 19 November 1992 and initially entered the United Kingdom as a student in September 2012, but thereafter became an overstayer. On 12 August 2015 he made an application for asylum claiming to be at risk of persecution in Pakistan as a gay man. The Respondent refused the application for reasons set out in a 'reasons for refusal' letter ('RFRL') dated 19 May 2016. It was not accepted that the Appellant was homosexual and his account of his experiences and problems in Pakistan was rejected. The Appellant appealed to the IAC.

3. The First-tier Tribunal Judge dismissed the Appellant's appeal for reasons set out in her Decision and Reasons. The Judge concluded at paragraph 22, "I do not find that the appellant is a homosexual. I find that the appellant has fabricated almost the entirety of his claim".

4. The Appellant sought permission to appeal which was granted by Designated First-tier Tribunal Judge Macdonald on 20 January 2017 for the following reasons - which helpfully encapsulate the essence of the Appellant's challenge as set out in his Grounds of Appeal:

"The grounds of application contend that the judge relied on matters that were not raised in the refusal letter nor put to the appellant at the hearing. Numerous examples are given.
It is arguable, for reasons given in the grounds, that many of the points relied [on] by the judge could have been put to the appellant for his comments given that there may have been an explanation provided which might have been consistent with the appellant's evidence."

5. The Appellant's grounds of appeal are a combination of points based on unfairness and inappropriate reliance upon the notion of 'inherent probability' or implausibility. Mr Richardson, in light of acknowledging this morning that many of the issues raised in the Grounds of Appeal were in fact also raised in the RFRL, focused his submissions primarily upon the issues of plausibility, or implausibility. This is an area not without its difficulties in that a challenge based on notions of implausibility may easily blur into, or disguise, an attempt to re-argue the case. Fortunately, there is some guidance in this regard by way of the decision in HK v Secretary of State for the Home Department [2006] EWCA Civ 1037 in which Lord Justice Neuberger offered the following observations at paragraphs 29 and 30:

"29. Inherent probability, which may be helpful in many domestic cases, can be a dangerous, even a wholly inappropriate, factor to rely on in some asylum cases. Much of the evidence will be referable to societies with customs and circumstances which are very different from those of which the members of the fact-finding tribunal have any (even second-hand) experience. Indeed, it is likely that the country which an asylum-seeker has left will be suffering from the sort of problems and dislocations with which the overwhelming majority of residents of this country will be wholly unfamiliar. The point is well made in Hathaway on Law of Refugee Status [1991] at page 81:

'In assessing the general human rights information, decision-makers must constantly be on guard to avoid implicitly re-characterising the nature of the risk based on their own perceptions of reasonability'.

30. Inherent improbability in the context of asylum cases was discussed at some length by Lord Brodie in Awala v Secretary of State [2005] CSOH 73. At paragraph 22, he pointed out that it was 'not proper to reject an applicant's account merely on the basis that it is not credible or not plausible. To say that an applicant's account is not credible is to state a conclusion' (emphasis added). At paragraph 24, he said that rejection of a story on grounds of implausibility must be done 'on reasonably drawn inferences and not simply on conjecture or speculation'. He went on to emphasise, as did Pill LJ in Ghaisari, the entitlement of the fact-finder to rely 'on his common sense and his ability, as a practical and informed person, to identify what is or is not plausible'. However, he accepted that 'there will be cases where actions which may appear implausible if judged by Scottish standards, might be plausible when considered within the context of the applicant's social and cultural background'."

6. I am duly guided in my consideration of the challenge herein.

7. Mr Clarke on behalf of the Secretary of State has argued that far from relying upon implausibility the Judge has in substance relied upon reasonable inferences from primary facts and has moreover adequately explained her conclusions and reasoning process in this regard. I accept in respect of paragraphs 20 and 21 that that is indeed the case. In my judgment the Judge did deal with two aspects of the Appellant's case at those paragraphs adequately. I consider that the Judge explained why she did not accept the plausibility or credibility of the Appellant's account that his friend had informed his father - that is, the Appellant's father - of the Appellant's sexuality and sexual activities. The Judge identified that this was indeed a friend and impliedly that this was not the action to be expected of a friend, and also reasoned that the friend had not discussed the matter with the Appellant in advance of the revelation to his father. It seems to me that those are factors upon which the Judge reached a sustainable conclusion.

8. Similarly, in respect of the suggestion in the Appellant's Grounds of Appeal that the Judge was 'second guessing' in a manner that was not acceptable the Appellant's father's perceptions of western society, I accept Mr Clarke's counter submissions to the effect that the Judge adequately explained that the Appellant's father was a person from a middle class background, employed as a manager in an internationally-recognised bank, and that it was not credible that he would not have an awareness of the permissive nature of UK society compared with that in Pakistan.

9. However, at the core of the Appellant's account is his claim with regard to his sexuality, and in that regard of central significance is the analysis both in the RFRL and in the decision of the First-tier Tribunal Judge in respect of his account of the development of his sexuality and his becoming aware of it.

10. I pause to note in this regard that it is of course entirely possible for a homosexual from Pakistan to establish an entitlement to protection even if there were to be a rejection of the account of events that had befallen him in Pakistan before leaving the country. Whether or not that is so will depend upon the sort of lifestyle that the individual would wish to pursue given the freedom of opportunity. In other words, the fact that there may be a sound basis for rejecting aspects of the Appellant's account of events in Pakistan is not inevitably determinative of the outcome of his appeal if the reality is that he is indeed homosexual.

11. The Judge considered this aspect of the Appellant's case at paragraph 18 of the decision. It is acknowledged very fairly and properly by Mr Clarke that there is a clear factual error in the concluding part of that paragraph. The Judge says this:

"At question 54 [of the asylum interview] the appellant stated that when he was 9 or 10 years old there were two boys in his group and at question 55 he stated that he liked their 'activities'. At question 56 he was asked what he meant by activities and he stated sexual activities. I do not find it credible that [at] the age of 9 or 10 the appellant liked the sexual activities of his friends".

12. It is acknowledged that the Appellant did not state that these matters had taken place at the age of 9 or 10 but rather that they had taken place when he was in "9 or 10 standard" (see question 54). At questions 27 and 28 the Appellant explains that his problems dated back to when he was in either year 9 or year 10 at school and this would have been at the age of 15 or 16. As I say, it is acknowledged on behalf of the Secretary of State that the Judge made a clear factual error in this regard. It seems to me that that factual error must necessarily affect the rest of what is contained in paragraph 18 because the Judge is essaying an 'in the round' consideration of the Appellant's account of the development of his sexuality, and has made a fundamental error with regard to the Appellant's sense of its commencement.

13. Further challenge is raised in respect of two more aspects of paragraph 18: in respect of the Appellant's account as to when he first had a sense of his sexuality; and in respect of his emotions or feelings towards girls. In this latter regard it is appropriate to make reference to an exchange at interview over questions 49 to 53. The following is set out in the interview record:

"Q49: I now want to understand how you came to realise your sexuality. Was there any point in your life when you began to realise that you were different from other boys

A: Yes when I was in the school. From the beginning, I was in a boys school and when I was growing up I realised that I had interest in other boys. Whenever I interact with any girls, I would not have feelings and interest in those girls as what I was getting when I was with boys. So when I was in a school, I realised that I was different from other boys.

Q50: At what age did you realise this?

A; 15, 16, 14. In between this time.

Q51: Tell me about how you felt at the time you realised that you were different.

A: I liked spending more time with boys, going out with them and their company. And when we were having interactions I was having different feelings.

Q52: What feelings?

A: Like excitement and different things that I was not having with the girls.

Q53: What different feelings were you having with girls?

A: When I am with girls if I am sitting with them talking with them or if I touched them then I would feel like they were just piece of meat."

14. In this context the Judge says this at paragraph 18:

"I find that when the appellant was asked about his feelings for boys at question 52 he referred to feelings of excitement however at question 53 he stated 'when I am with girls if I am sitting with them or if I touch them then I would feel like they were just a piece of meat'. I do not find the appellant a credible witness. I find that the appellant's reference to girls being just a piece of meat does not credibly explain his feelings towards girls as compared to boys. I find that the appellant did not mention his emotions around girls as compared to boys."

15. In my judgment this is wholly unsustainable reasoning. It seems to me that it is absolutely plain that the Appellant gave adequate answers at the interview over questions 49 to 53 to the questions posed to him, and in my judgment he plainly and clearly offered an adequate expression of his comparative indifference towards girls - a matter that, plausibly, is in any event not easy to articulate. I find that his reference to feeling like girls were just 'a piece of meat' is a very clear and obvious indication that he felt emotional and sexual indifference towards them. In such circumstances I consider the Judge to be fundamentally in error in characterising the Appellant's answers at interview as 'not credibly explaining' his feelings to an extent that he himself lacked credibility.

16. The final aspect of paragraph 18 in which the Judge explores the Appellant's developing sexuality is specifically rooted in the answers given at questions 49 and 50 of the interview, quoted above, where he gave answers to the effect that it was between the ages of 14 and 16 that he came to a realisation of his sexuality.

17. Issue was taken with the Appellant's account in this regard in the RFRL at paragraphs 18 and 19. At paragraph 18 the Respondent suggests that the Appellant's account of his sexuality "is vague and often your responses have been found to be unclear". The Judge similarly considered the Appellant's account to be vague in this regard. The Judge says this at paragraph 18:

"The appellant claimed that when he was at school he developed feelings towards boys rather than girls. However I find that at question 50 he was unable to state at what age he began to develop feelings towards boys. He stated, '15, 16, 14. In between this time'. I find that if the appellant genuinely developed feelings towards boys whilst he was still at school, he would know the year in which this realisation came or at least the grade at school that he was in when he first realised."

18. I accept the soundness of Mr Richardson's submission to the effect that the expectation of the Judge was to require a certainty from the Appellant about a matter that is inherently nebulous, being a matter subject to uncertainty, change, and development. In my judgment the Judge reached a conclusion in this regard on unsustainable reasoning. The Judge essentially proceeded on a premise that any and all homosexuals should be able to identify with precision the date upon which they realised their sexuality: there is no basis for such a premise either in evidence or common sense.

19. The Appellant provided a wealth of supporting evidence in respect of his exploration and experience of his sexuality in the UK, including documents such as membership cards for various gay clubs and - perhaps more pertinently - receipts for expenditure at a number of gay clubs and bars dating back to August 2013. This dates back to a time which, albeit just after the Appellant's leave expired in July 2013, was some two years before he made his application for asylum. Although not explicitly stated as such, implicitly this supporting evidence was likely considered by the Judge in accordance with the principles of Tanveer Ahmed: it seems to me inevitable that the Judge's approach to this supporting evidence took into account her assessment of the Appellant's (rejected) account of his sexuality and his realisation as a teenager of his preferences. Necessarily it seems to me that the rejection of this evidence as not being corroborative of the Appellant's claim to be gay must be seen through that prism.

20. In all the circumstances I conclude that the Judge has erred in law in her approach to the Appellant's sexuality both in that she has proceeded upon a misconception of facts that amounts to an error of law, and that she has relied upon an 'inherent improbability' in respect of the Appellant's inability to specify a particular date or year in which he realised his sexuality. I also find, for the reasons given, that the Judge's reasoning in respect of the Appellant's supposed absence of detailing any emotions towards girls is unsustainable. In those circumstances the decision of the First-tier Tribunal Judge must be set aside. It is common ground between the representatives that in that event the just disposal of this appeal is that it should be sent back to the First-tier Tribunal to be considered with all issues at large before any First-tier Tribunal Judge other than First-tier Tribunal Judge Beg.

21. For the avoidance of any doubt, in requiring the next First-tier Tribunal Judge look at all issues at large, notwithstanding the sustainability in isolation of the Judge's consideration at paragraphs 20 and 21, those matters must necessarily be reappraised in light of all of the evidence 'in the round' at the rehearing. No element of Judge Beg's findings and reasoning is to be preserved.

Notice of Decision

22. The decision of the First-tier Tribunal contained material errors of law and is sets aside.

23. The decision in the appeal requires to be remade before the First-tier Tribunal by any Judge other than First-tier Tribunal Judge Beg, with all issues at large.

24. No anonymity direction is sought or made.

The above represent a corrected transcript of an oral decision given at the conclusion of the hearing.

Signed: Date: 26 February 2017

Deputy Upper Tribunal Judge I A Lewis