Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/07934/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 November 2016
On 2 December 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

BERNADETTE BALLESTEROS
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Adekoya, Atlantic Solicitors
For the Respondent: Mr Whitwell, a Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant, Bernadette Ballesteros, was born on 9 September 1976 and is a citizen of the Philippines. She appealed to the First-tier Tribunal (Judge Beg) against a decision of the respondent dated 27 July 2016 to refuse to grant her asylum and humanitarian protection. The First-tier Tribunal, in a decision promulgated on 21 September 2016, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. The appellant applied for a work permit visa in 2005 which was granted to her. That visa expired in 2006 but the appellant remained living in the United Kingdom. She applied for leave to remain on the basis of her family and private life in July 2015 but that application was refused. She was arrested in May 2016 when found working in an oriental supermarket. On 1 June 2016, the appellant requested voluntary departure to the Philippines. However, on 2 June 2016 she submitted an application for an EEA residence card. That application was refused on 20 June 2016. On 24 June 2016, on the day on which she was served with removal directions, the appellant claimed asylum. As a consequence, the removal directions were cancelled.
3. The appellant's claim for asylum rests on her assertion that she is a lesbian. Judge Beg found that she is not a lesbian and that she is not in a relationship with a Ms Amugod [24]. Because the appellant is not a lesbian, the judge found that she was not at risk for the reasons that she claimed on return to the Philippines.
4. The grounds of appeal challenged the judge's reasoning. At [19], the judge found that,
If the appellant was attracted to women she would have known that much before her meeting in 2012 with Ms Amugod. I find that prior to 2012 the appellant only had relationships with men. She has two children from two separate relationships. Her children reside in the Philippines and are cared for by her mother.
The appellant asserts that there was no basis "in law, psychology or medicine" for such a conclusion. Further, at [21] the judge found that "Ms Amugod did not notify the Home Office that she was in fact separated from her husband and that the marriage was no longer subsisting. I find that she continued to support the EEA application [of her husband]". In the same paragraph, Judge Beg records that Ms Amugod had claimed that her relationship with the appellant had started in 2012 at a time when she was still married to her husband. She also recorded that "[Ms Amugod's] former mother-in-law begged her not to divorce because her former husband ... had an ongoing EEA residence card application". The judge found that Ms Amugod's behaviour "cast doubt over her overall credibility". The grounds of appeal simply assert that the judge's assessment of the facts is "wrong". Although the grounds are not entirely clear, it appears to be asserted that the judge was wrong to find that any link existed between the failure of Ms Amugod to inform the Home Office of her marriage breakdown and the beginning of a relationship she claimed to have with the appellant. The ground has no merit. The clear point made by the judge is that Ms Amugod's behaviour in connection with the residence card application and her dealings with the Home Office diminished her credibility as a witness generally. The judge has not found that, because she continued the EEA residence card application, she could not have had a relationship with the appellant but simply that her (not exactly candid) behaviour indicated that she was not a reliable witness.
5. At [23], the judge noted that the appellant had been arrested on 28 May 2016 at 222A Kilburn High Road, London NW6. This was not the same address at which she claimed to be living with her partner. In her witness statement, the appellant claimed to have been living with her partner from November 2014. The appellant claimed that, because she was shocked at having been encountered by the immigration authorities, she gave a false address. The judge did not find that claim to be credible. The judge went on to attach very little weight to a supporting letter which the appellant claimed had been sent by Millwood Kane Limited indicating that the appellant and her partner lived together. The judge has given reasons for not attaching much weight to that letter and I find her reasons are sound. The appellant asserts that she could not have provided a tenancy agreement for any of the properties at which she was living because she did not have any immigration status. I consider the findings which the judge had made at [23] to be much more general in nature than the grounds suggest; where the judge has stated that no tenancy agreement has been provided, she has acknowledged that no evidence whatever, apart from that of the appellant and her partner (both found by the judge to be unreliable witnesses) had been produced to show that they lived together. In any event, the grounds fail to explain why, if the appellant and Ms Amugod were living together, any tenancy agreement or licence to occupy could not have been provided in Ms Amugod's name.
6. This leaves the first ground of appeal which I have summarised above. Had the judge found that the appellant was not a lesbian solely because she only had relationships with men prior to 2012, then there may have been some force in the ground of appeal. However, she did not do so. At [20], she found a discrepancy in the appellant's evidence as to why she had returned her son to the Philippines. The appellant's evidence on this point was not consistent with that of Ms Amugod. Further, as I have recorded above, at [21] the judge gives cogent and clear reasons for rejecting the reliability of Ms Amugod as a witness. Significantly, at [22] the judge noted that when the appellant was arrested in May 2016 for working illegally she made no mention whatever of being in a gay relationship or of fearing returning to the Philippines as a result of being gay. Indeed, throughout the appellant's lengthy immigration history (summarised above), she had made no mention of her claimed lesbianism until she was faced with the imminence of removal from the United Kingdom. In addition, the judge has quite properly attached weight to the fact that, as recently as June 2016, the appellant had voluntarily requested departure to the Philippines. The fact that she had done so and subsequently changed her mind and claimed asylum has not been adequately explained by the appellant. In consequence, it was open to the judge to find that the appellant's conduct had diminished her credibility. So far as the appellant's claim to have only in recent years become aware that she was attracted to women, that claim must be viewed in the context of all the evidence. I find that the judge has carried out a holistic analysis of the evidence and, even if she was wrong to attach weight to the appellant's late awareness of her homosexuality, the judge has given ample other reasons (which are no way undermined by the findings challenged in the grounds of appeal) for rejecting the appellant's credibility. The judge's conclusion, therefore, that the appellant is not a lesbian as she claims was plainly available to her on the evidence. It is a conclusion supported by clear and cogent reasons. The grounds of appeal provide no justification for the Upper Tribunal to interfere with those findings.
7. Finally, though it is not in the grounds of appeal, Judge Saffer when granting permission stated that the judge had "not gone on to consider whether, if the appellant is gay, she would be reasonably likely to be persecuted in the Philippines as a result". However, that comment betrays a misunderstanding of the proper application of HJ (Iran) [2010] UKSC 31. As HJ urges her to do so, the judge has first determined whether or not the appellant is homosexual. Having found that the appellant is not homosexual, there was no need for her to go on to consider whether homosexuals are at risk in the Philippines.
Notice of Decision
8. This appeal is dismissed.
9. No anonymity direction is made.

Signed Date 1 December 2016

Upper Tribunal Judge Clive Lane

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 1 December 2016

Upper Tribunal Judge Clive Lane