Tribunal decisions

The decision

IAC-FH-LW-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/10041/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9 February 2017
On 22 February 2017

Before

UPPER TRIBUNAL JUDGE ALLEN

Between

M M S
(anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Briddock of Counsel instructed by Milestone Solicitors
For the Respondent: Mr Nath, Home Office Presenting Officer

DECISION AND REASONS
1. This is the appeal of Mr S against the decision of Judge Callow who allowed his appeal under Article 3 of the Human Rights Convention on the basis that he would be at risk on return to Bangladesh on account of his sexuality. He was found to be entirely credible and the witnesses as well. The judge looked at the background evidence and concluded that if he was to practise openly as a homosexual in Bangladesh he would run the risk of degrading treatment and punishment.
2. The judge went on to say it had not been established that the appellant would be at risk of persecution and I am minded of the country information relied upon by the respondent which has not been gainsaid by the appellant. He went on to say that the law criminalising same sex relationships was not enforced, so it had not been shown there was a risk of persecution per se, but there were substantial grounds for believing, drawing on the respondent's Country Information Reports that he would be at risk of at least inhuman treatment and/or degrading treatment, from which attempting to live openly in a gay relationship it would be unduly harsh to expect him to internally relocate, and it seems to me that there is really no difference here between the risks that he would face under Article 3 in light of the judge's positive findings in his favour in that regard, and the issue of whether he would come within the Refugee Convention. The issue is not one that is just judged by the criminalisation or lack of criminalisation of homosexual acts, it is a question of whether he faces a real risk of persecution either from the state or from non-state actors over whom the state would not exercise control, and if he is at risk of at least inhuman and/or degrading treatment on account of his sexuality, I think it must follow in the circumstances that he is also at risk of persecution. There is no argument that he would not form part of a particular social group, for example, and as a consequence therefore I consider that the judge's decision to refuse the appeal under the Refugee Convention was wrong in law and it falls to be allowed in that respect.
Direction Regarding Anonymity - Rule 14 of the 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 him or any member of his 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 Date

Upper Tribunal Judge Allen