Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/07908/2017

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 6th April 2018
On 30th April 2018

Before

UPPER TRIBUNAL JUDGE COKER

Between

AS
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Coleman, instructed by OA Solicitors
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellant in this determination identified as AS. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings

1. First-tier Tribunal Judge Morgan dismissed AS' appeal against the refusal of his protection and human rights claim for reasons set out in a decision promulgated on 27 September 2017. Permission to appeal was granted by UTJ Gill:

"although it may well be that the Upper Tribunal may decide ultimately that First-tier Tribunal Judge Morgan did not materially err in law, I am just about persuaded that, at this stage at least, it is just about arguable that the judge may have failed to consider the appellant's explanation's fully. Much will depend on the view the Upper Tribunal takes of the fact that the judge did mention the appellant's explanations for various issues taken by the Presenting Officer and whether this means he did take the appellant's explanations into account."

Background

2. The appellant, a Nigerian citizen, arrived in the UK in October 2002 as a student, such leave being extended until October 2012. Thereafter he remained unlawfully. An application for leave to remain based on long residence and caring for his brother, made in October 2012 was refused and his appeal dismissed for reasons set out in a decision in November 2013. AS did not leave the UK. He was subsequently arrested and detained by the respondent and, in January 2017, he claimed asylum based on his claimed sexuality as a gay man. That protection claim was refused on 2 August 2017 and his appeal came before First-tier Tribunal Judge Morgan on 14 September 2017.

Error of law

3. The First-tier Tribunal Judge records the appellant's evidence in the decision under the subheading "The appellant's claim" and notes the evidence that the appellant had no homosexual relationships in Nigeria and no-one there was aware of his sexuality. He records the appellant's evidence that he has had three relationships in the UK, one with a woman and two with two different men which he "consciously kept" secret. The judge records that the appellant was subject to lengthy and robust cross-examination.

4. The First-tier Tribunal Judge does not summarise the reasons for the respondent's refusal under the subheading "respondent's reasons for refusal" but notes that the presenting officer summarised the respondent's position as being that the appellant was "not a homosexual" as claimed and that the central question was whether he was. The respondent did not suggest that if the appellant were gay the appellant could internally relocate within Nigeria or be discreet.

5. Under a subheading "Evidence and findings" the First-tier Tribunal judge states that he has considered all the evidence before him, that he notes the credibility concerns raised by the respondent which were reiterated and expanded upon by the presenting officer ([16]). The judge notes the failure of the appellant to claim asylum earlier and that this is damaging to his credibility ([17]). Between [18] and [22] the judge sets out in detail the respondent's submissions and refers to the appellant's responses to questions put in cross examination. In [23] the judge states that he has considered the appellant's evidence "in its totality" and concludes that he is

"persuaded by the respondent's concerns ?. And in particular the respondent's submission that the appellant has failed to provide a reasonable explanation as to why he has not sought to provide any corroborative evidence particularly of his previous two homosexual relationships, given that his homosexuality was explicitly not accepted within the refusal and this is the sole matter in issue in this appeal?."

6. The grounds relied upon in the appeal before me include the assertion that because the earlier appeal in 2013 was for a different application and on a different basis, then the adverse credibility findings should not have been a starting point for First-tier Tribunal Judge Morgan's consideration. This is plainly incorrect. It is further incorrect for the grounds to state that no reasons were given by Judge Morgan why s8 of the 2004 Act was considered by him to apply. Reasons were given and in any event, having been in the UK since 2002, a claim for asylum not being made until 2017 clearly engages s8; the delay in making such a claim is plainly a matter that must be considered by the judge.

7. Although poorly worded in the written grounds but clarified and explained in oral submissions by Mr Coleman, the appellant submits that there is unacceptable and inordinate emphasis placed by the judge on the respondent's views and the lack of any corroboration from the appellant as to his relationships. It is correct that there is considerable emphasis in the assessment of the evidence by the judge of the respondent's submissions but within that emphasis there is also specific reference to the appellant's evidence. The judge refers to the lack of corroboration and the failure by the appellant to attempt to obtain some form of corroboration from the two people with whom he claims to have had a relationship. Submissions were made to the First-tier Tribunal by the appellant's representative that the lack of corroboration was because of the nature of the relationships and their secrecy together with the time that has passed since the relationships ended. Nevertheless, there is a dearth of evidence from the appellant about the relationships which lasted between one and four years. It is not asserted by Mr Coleman that the appellant gave detailed evidence of his relationships for example how frequently they met, where they met, the activities they enjoyed together, what mutual celebrations they had, whether other friends saw them together even though they were not acknowledged to be gay, and so on. There is scant evidence of the nature and context of the relationships in the papers that were before the judge or in the oral evidence. The judge can only take account of that which is before him. As said by the judge, the fact of whether the appellant is or is not gay was the central issue and yet the evidence relied upon by the appellant was little more than assertion. Of course, it may well have been difficult to contact the individuals with whom he claimed to have been in a relationship with but that does not prevent the appellant from providing day to day details of those relationships. A relationship that lasts for a year or more inevitably consists of shared events for which a description can be given. That evidence is missing.

8. The burden of proof is upon the appellant. Although the First-tier Tribunal judge has produced a decision that gives the impression of over emphasis on the respondent's views, the evidence relied upon by the appellant was scant and was referred to by the judge. The lack of reference by the judge to the potential cumulative effect of the appellant's shyness and the age of the relationships is insufficient to conclude that reference to those matters and the specific consideration of those matters could have led to any different decision. There was simply insufficient evidence before the judge to enable a conclusion to be drawn that the appellant was, as he claimed, gay.

9. There is no material error of law.

Conclusions:

The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

I do not set aside the decision. The decision of the First-tier Tribunal stands.

Anonymity

The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I continue that order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008).

Date 26th April 2018

Upper Tribunal Judge Coker