The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/09554/2016


Heard at Field House
Decision & Reasons Promulgated
On 15 November 2017
On 20 November 2017







For the Appellant: Mr A Chakmakjian, counsel.
For the Respondent: Mr D Clarke, Home Office Presenting Officer

1. The appellant is a citizen of Uganda who appealed the respondent's decision to refuse her asylum and human rights claims. Her appeal against that decision was dismissed by Judge of the First-tier Tribunal N J Bennett ("the FTTJ") in a decision promulgated on 23 March 2017.
2. The parties agreed, before me, that the surname of the appellant in these proceedings should be amended to reflect the correct spelling of her name, as in her passport.
3. I maintain the anonymity direction made in the First-tier Tribunal.
4. Permission to appeal was granted by Upper Tribunal Judge Plimmer on 20 September 2017 in the following terms:
"1. It is arguable that the findings at [58] are very difficult to reconcile with later findings and the First-tier Tribunal Judge's findings on the appellant's awareness of her sexual orientation are irrational.
2. All grounds are arguable.'
5. Thus the matter has come before me.
6. The appellant entered the UK from Uganda on a business visit visa. Her application for a business visit visa suggested she and her husband were people of some financial means, with both parties in permanent employment. The appellant declared a child born in 2012 and employment as deputy head of a kindergarten in Uganda.
7. Before the expiry of her visit visa the applicant claimed asylum on the grounds of fearing persecution on return as a result of her sexuality: she claimed to be a lesbian. The appellant stated that the content of the visa application was false and had been submitted by an agent who was assisting her to escape from Uganda. The appellant referred to ill-treatment, harassment and persecution in Uganda during her childhood and adolescence, as a result of her sexuality. She claimed to have been beaten and raped when a lesbian relationship was discovered. She claimed to have been detained when she reported this to the police because the police had already been informed she was a lesbian. The appellant claimed she was raped again by a prison officer. She was able to escape but the appellant had a child born in 2015 as a result of the rape. The appellant claims to have hidden with her grandmother and the child but was recognised and forced to escape and flee the country leaving her daughter behind.
8. Mr Chakmakjian, for the appellant, relied on the grounds of appeal and made additional oral submissions. I summarise the appellant's challenge as follows:
(i) The FTTJ's failure to treat the appellant's account of her realisation of her sexuality as worthy of consideration was irrational/discriminatory. The positive finding at [58] was sufficient to demonstrate the appellant's sexuality. Yet at [69] the FTTJ made a baseless finding that the appellant's evidence of the realisation of her sexuality was similar to that which might be experienced by anyone with a "strict evangelical Christian background".
(ii) The FTTJ failed to consider, or properly consider, inconsistencies in the respondent's asserted case. The FTTJ failed to have regard to inconsistencies in the entry clearance (EC) application; these supported her claim that it was made by an agent on a false basis and with false documents. Nor did the FTTJ consider whether the respondent had any positive evidence to show its contents were true (as asserted by the respondent). There was no consideration as to whether the application was inherently unlikely/implausible. Instead the FTTJ made a finding which was not postulated by either party and which was not based on the evidence, namely that the appellant was escaping an unhappy marriage. This was to overlook the supporting evidence of the appellant's purported husband in support of the application.
(iii) The FTTJ failed to consider the significance of the application containing addresses which were not consistent with the evidence adduced at the hearing for the kindergarten sites.
(iv) Without any indication to the parties at the hearing that he intended to do so, the FTTJ referred to a 2011 Country of Origin report regarding the prevalence of forgeries in Uganda. He did not consider that material even-handedly, namely in the context of each parties' case.
(v) The FTTJ failed to consider whether the applicant was a lesbian and therefore facing real risk irrespective of adverse findings as to the appellant's account of events in Uganda. The FTTJ accepted Mr Kiwanuke was a credible witness, the appellant had attended various events yet the FTTJ had failed to make substantive reasoned findings as to whether this was because the appellant was a lesbian or had deliberately deceived. The findings were inadequate. The FTTJ had not considered the possibility that the appellant was a dishonest witness but nonetheless a lesbian.
9. For the respondent, Mr Clarke submitted there were no material errors of law. The FTTJ accepted at [58] the appellant's account was consistent and that Mr Kiwanuke believed the appellant to be a lesbian. At [59] to [68] the FTTJ sets out matters on the other side of the balance, primarily at [59]-[63] which pertained directly to the EC application. The FTTJ addressed the appellant's counsel's submissions. At [69] the FTTJ addressed further the matters identified at [58]. While the FTTJ accepted the appellant had given a consistent account of her realisation of her sexuality, that could be explained "from the basis of high standards of faith" and their impact on her. It was open to the FTTJ to find that such self-realisation was not determinative. As regards the second ground of appeal this was a perversity challenge on three bases. The appellant had posited a specific case of fraud in connection with her EC application; it was for her to prove it. The FTTJ identified at [59] inconsistencies between the EC application and the asylum claim. The difficulty for the appellant was that, to demonstrate her EC application was false, she had to rely on an admission of dishonesty. The appellant's submissions as to plausibility had been addressed. It was open to the FTTJ to find that the inconsistencies in the addresses, job description, professional activities were not sufficient for a finding of fraud. The findings were open to the FTTJ. The findings with regard to the birth certificates were unimpeachable. The appellant had, for example, given inconsistent evidence in interview regarding the date of birth of her child. The appellant had made limited effort to repair the damage of the EC application. The application of the country of origin report was appropriate as was the weight given to reliability of the birth certificate. The FTTJ made appropriate findings with regard to the evidence of Mr Kiwanuka; it was difficult to see how much further this could have been taken. The FTTJ made an express finding the appellant was not a lesbian at [70]. The difficulty for the appellant was that, on her own case, she had acted dishonestly. The findings were adequate.
10. In reply, Mr Chakmakjian clarified that it was not submitted that homosexuals and heterosexuals should be treated in a particular way in terms of their realisation of their sexuality but it was incumbent on the decision-maker to consider the matter on a case by case basis in the assessment of credibility. There was no objective evidence to support the FTTJ's assertion that anyone with a strict evangelical upbringing would have similar experiences. There was a fundamental and material insufficiency in the reasoning. The respondent had made a positive assertion as regards the EC application and the FTTJ should have addressed that rather than making an alternative finding which had not been raised. It was one thing to find she had not demonstrated what had occurred to her in Uganda; but this did not necessarily mean she had always been a heterosexual. Sometimes people lied to bolster a genuine claim. This should have been considered. The evidence had not been given anxious scrutiny. This was particularly important because the appellant was unusually vulnerable in discharging the burden on her; the use of dishonesty through an agent was no different to entering the UK clandestinely. Discretion should have been exercised in favour of the appellant.
11. I agree with Judge Plimmer that there is a discrepancy as between the content of [58] and the subsequent findings. On the one hand, the FTTJ states the appellant was able to give a "detailed account which has largely been consistently told and that she was able to explain how she realised her sexuality and how she gradually reconciled herself to it"; on the other, the FTTJ identifies various discrepancies in the appellant's account (eg at [59] where he notes a discrepancy in the dates given for the appellant's daughter's date of birth) and finds an alternative reason for the appellant's explanation of how she realised her sexuality and how she came to terms with it [69].
12. Thus there are directly contradictory findings on two issues: first, the appellant's detailed account (which covers the whole of her claim) and, secondly, her realisation of her sexuality and how she came to terms with it.
13. As regards the former, the FTTJ refers at [58] to the appellant's "detailed account" being "largely ? consistent?" Despite this, the FTTJ states further at [65] that "there are aspects of her claim which lack credibility". The FTTJ then relates the appellant's evidence as regards her relationship with Rita but does not state in what respect the account is not credible. It appears, by inference, that the FTTJ considers the appellant's account is not plausible. However, in making this adverse finding the FTTJ fails to refer to his earlier finding as to the consistency of the appellant's account.
14. Indeed, this is a criticism which applies to all the subsequent adverse findings on the credibility of the appellant's account: the FTTJ has not taken into account the positive finding at [58] in his assessment of discrete issues.
15. In addition, despite the positive finding at [58] that the appellant was able to explain how she realised her sexuality and how she gradually reconciled herself to it, at [69] the FTTJ then goes on to make the following adverse credibility finding:
"I am similarly unable to accept that the Appellant's account of how she realised her sexuality and how she came to terms with it establish her bona fides because it would be understandable for anyone coming from a strict evangelical Christian background to be frightened and worried about his or her sexual feelings and inclinations during adolescence, whatever his or her sexual orientation, and how such feelings and inclinations could be reconciled with the high standard set by their faith, which abhors premarital sex and homosexuality alike. It is also not unheard of for adolescents to be sexually attracted to other members of their sex as they grow up and for this to change to an attraction to the opposite sex. The Appellant's case is based on her coming from a strict Christian background because she explained at her interview that she learnt about Sodom and Gomorrah at church and that she was "preached" to about homosexuality at home, at school and at church (Q+A42). She also said that she was a born again Christian and that she attended church regularly (Q+A49/50). Mr Kiwanuka said in his statement that she grew up in a very religious family, that she attended a Pentecostal born again church, that she was raised on strong religious principles and that she was taught to avoid sin, which would distance her from God".
16. Again, the FTTJ does not refer to the earlier, apparently positive, finding in reaching this conclusion. Nor is there any background material or evidence to support this adverse finding. It was not a proposition put to the appellant. The FTTJ refers to the appellant's evidence of learning about homosexuality at home, at school and at church yet does not indicate whether he rejects this. Instead he finds the appellant would have experienced such self-realisation in any event irrespective of her sexuality because of her strict evangelical upbringing. Even on the FTTJ's own reasoning it is based on a proposition which "is not unheard of", namely that adolescents are "sexually attracted to other members of their sex as they grow up and for this to change to an attraction to the opposite sex". Thus the finding is based on speculation. It is not a conclusion which is sustainable on the evidence or background material. It is based on conjecture. It is irrational and unreasonable in the Wednesbury sense (R & Ors v SSHD [2005] EWCA Civ 982).
17. The FTTJ has thus erred in two ways: in failing to take into account earlier positive findings in reaching adverse credibility findings and, secondly, in basing his decision, in part, on an unsustainable finding as to the appellant's realisation of her sexuality.
18. These are material errors of law: the outcome of the appeal might have been different if the positive findings had been taken into account, not least because the negative finding as regards the appellant's self-realisation is at the core of the appellant's claim to be a lesbian. It may be that, were the matter to be decided again, the outcome is no different but fairness dictates that a proper analysis of the evidence is undertaken, in the light of the background material and authorities. That requires a fresh hearing (as was agreed by the parties' representatives before me).
19. The making of the decision of the First-tier Tribunal involved the making of a material error on a point of law. The decision is set aside. The appeal is remitted to the First-tier Tribunal, to be dealt with afresh, pursuant to Section 12(2)(b)(i) of the Tribunal Courts and Enforcement Act 2007 and Practice Statement 7.2(v), before any judge aside from Judge N J Bennett.

Signed A M Black Dated 18 November 2017
Deputy Upper Tribunal Judge A M Black

Direction Regarding Anonymity - R14, 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 her or any member of their 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 A M Black Dated 18 November 2017
Deputy Upper Tribunal Judge A M Black