Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/10115/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17th February 2017
On 21st February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MANDALIA

Between

LB
Appellant
and

THE SECRETARY OF STATE
Respondent

Representation:
For the Appellant: Ms. S Iqbal, Counsel, instructed by Wimbledon Solicitors
For the Respondent: Mr. J Parkinson, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by LB against the decision of First-tier Tribunal ("FtT") Judge Aujla promulgated on 7th November 2016. The FtT Judge dismissed the appellant's appeal against the respondent's refusal of her asylum claim for the reasons set out in the respondent's decision of 7th September 2016.
2. An anonymity direction was made by the FtT Judge. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I also 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. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.
3. The appellant is a national of Uganda. She entered the UK on 27th July 2002 as a visitor with entry clearance valid until 12th January 2003. She has remained in the UK unlawfully since that date. On 17th March 2016, she claimed asylum. I borrow a summary of the matters that give rise to the claim for asylum from paragraph [32] of the decision of the FtT Judge:
"The Appellant claimed to be a lesbian from the age of approximately 14 when she was at a boarding school. She then fully realised that she was a lesbian by the time she was 16/17. She got married to her husband in 1983 when she was 29 years old. She had 3 children from that marriage who are now adults. She claimed that in 2002 she was caught when she was engaged in a sexual act with RN. She was beaten by the family and members of the community. She was taken to a police station where she was detained and then released when her uncle paid a bribe. Her uncle arranged for her to obtain a passport and visa and she left the country arriving in the United Kingdom on 27 July 2002. Her visa expired on 12 January 2003. She did not leave the United Kingdom and made no applications for further leave to remain until 17 March 2016 when she claimed asylum."
4. Having heard evidence from the appellant and a witness called by her, FtT Judge Aujla dismissed the appeal.
The grounds of appeal and the appeal before me
5. The appellant advances five grounds of appeal. First, in finding that the appellant's account of her relationship with SK is implausible, the Judge failed to properly consider the evidence before him. It is said that the sleeping arrangements in the girls' dormitory would not have been unusual and that in considering this part of the appellant's account, the Judge has assumed that the appellant and SK were sleeping together and engaging in sexual acts in the dormitory, whereas on the evidence, the appellant and SK did not do anything that would have aroused suspicion. It is said that the Judge has also assumed that the dormitories were regularly visited.
6. Second, as to the relationship between the appellant and RN, the Judge proceeds upon a mistake as to fact. At paragraph [38] of his decision, the Judge refers to the appellant and RN being caught by RN's husband, whereas the appellant's case has consistently been that they were caught by the appellant's husband, at their home. The appellant contends that the Judge erroneously found that it is not plausible that the appellant would have engaged in sexual activity with RN in circumstances in which they exposed themselves to the risk of being caught with adverse consequences to follow. It is said by the appellant that the account given by the appellant is completely plausible when considered in the context of an ongoing relationship that had already endured for a period of about two years.
7. Third, the Judge erred in finding that the evidence of the appellant's witness does not assist whatsoever in determining the appeal. The witness gave evidence as to the appellant's sexuality from his own observations of the appellant in the UK. The evidence ought to have been afforded some weight in relation to the appellant's activities for the 'Rainbow Across Borders' group, and her involvement in LGBT issues in the UK.
8. Fourth, the Judge failed to properly consider the evidence in respect of two material matters. They are, the willingness of the appellant's uncle to assist her leave Uganda, and the appellant's attempts to form relationships in the UK. As to the former, it is said that the Judge failed to assess the appellant's evidence on the lower standard of proof that is applicable to protection claims. As to the latter, it is said that the Judge failed to appreciate that the appellant's account was that she had made advances to someone she had met at the park, whilst babysitting the children of the household for whom she worked, rather than making advances towards the woman of that household.
9. Finally, in considering the delay between the appellant's arrival in the United Kingdom and her making a claim for asylum, the Judge failed to have any regard to the matters set out in the Asylum Policy Instruction 'Sexual orientation in asylum claims, version 6.0 - 3 August 2016' that had been relied upon by the appellant. The guidance indicates that when assessing credibility and late disclosure of sexual orientation, it must be recognised that a person's sexual orientation may lead some LBG claimants to have developed beliefs that their sexual orientation is in fact 'wrong', and which needs to be either changed and more probably, hidden. Many claimants will have engaged in avoidance strategies such as only revealing their orientation to a very limited circle of people (or to no one at all), or abstaining from any sexual or emotional relationships or living extremely discreetly. The guidance recognises that consideration must be given to any possible reasons for not disclosing the issue of sexuality at the first available opportunity during screening. Feelings of shame, cultural implications, or painful memories, particularly of a sexual nature, may have led some claimants to feel reluctant about speaking openly about such issues and late disclosure may not be uncommon. It is said that the Judge failed to properly consider the delay in making a claim for asylum, by reference to that guidance.
10. Permission to appeal was granted by Upper Tribunal Judge Plimmer on 10th January 2017. The matter comes before me to consider whether the decision of the First-tier Tribunal involved the making of a material error of law, and if so, to remake the decision.
11. Before me, Ms Iqbal adopted the appellant's grounds of appeal. She submits that the mistakes as to fact that have been identified in the grounds, establish that the Judge failed to give anxious scrutiny to the appellant's account of events. She submits that in reaching his findings that the appellant's relationships with SK and RN are implausible, and thus undermine her credibility, the Judge failed to carefully analyse the evidence given by the appellant, and the Judge failed to consider the account given by the appellant in its proper context. She submits that the Judge failed to consider how those relationships had developed, and what had in fact occurred.
12. Ms Iqbal submits that the Judge erred in finding that the evidence of the appellant's witness does not assist him whatsoever, in determining the issues in the appeal. The witness statement of GD confirms that the appellant is a member of 'Rainbows Across Borders' and has attended and participated at meetings since March 2016. The witness states that the appellant is passionate about LGBT rights and confirms her attendance at the London Pride event on 25th June 2016 and a similar event in Brighton, on 6th August 2016. The witness confirmed that throughout these events, social or political, the appellant has been open about her sexuality and the fact that she fled Uganda for fear of being harmed because she is a lesbian. She is said to be eloquent in raising awareness about homophobia based on her personal experience in Uganda, and has been able to do this more with the confidence gained through membership of the group, and the freedom guaranteed by the UK. Ms Iqbal submits that the evidence of GD is not simply a recital of what he has been told by the appellant, but also includes evidence of his own observations of the appellant that should have been considered by the Judge.
13. Ms Iqbal submits that in reaching his findings and conclusions, the Judge should have looked at all the evidence together before deciding whether the appellant has made out her claim, to the lower standard, that she is a lesbian and at risk upon return.
14. The respondent has filed a rule 24 response dated 10th February 2017. She opposes the appeal and submits that the Judge comprehensively considered the evidence before him. The respondent submits it was open to the Judge to conclude that the appellant is not a credible witness and has fabricated her entire account.
15. Before me, Mr Parkinson submits that as the Judge says at paragraph [34] of his decision, he has considered the appellant's account with care. He concluded that she is not a credible witness. The Judge properly dealt with the core of the appellant's account of events, and the conclusions reached were based upon an accurate reflection of the evidence that was before the FtT. The findings were properly open to the Judge. Mr Parkinson, accepts, rightly in my view, that when considering the relationship between the appellant and RN, the Judge mistakenly refers to the appellant and RN being caught by RN's husband. He submits however that that mistake as to fact is immaterial, because it is clear at paragraph [39] of the decision that the Judge did not find it plausible that the appellant would have engaged in sexual activity with RN in circumstances in which they exposed themselves to the risk of being caught. What the judge found to be implausible was that the appellant and RN would engage in a sexual relationship in the way that has been described by the appellant in her interview, and in her evidence before the Tribunal. The appellant's account of that relationship was that she and RN had been careful, but they had sometimes not closed one of the three doors, because they were "in a rush", and they had not expected the appellant's husband to return home. Mr Parkinson submits that it was open to the Judge to find that the account given by the appellant was simply implausible.
16. Mr Pakinson submits that it was common ground between the parties that the outcome of the appeal depended upon the credibility of the appellant and her account of events. He accepts that there will sometimes be a delay in making a claim for international protection, but the delay here is a significant one of 13 years, and the Judge had proper regard to that delay, at paragraph [42] of his decision.
Decision as to 'Error of Law"
17. As was submitted on behalf of the appellant before First-tier Tribunal, the appeal turned upon the credibility of the appellant. At paragraph [29] of his decision, the Judge records that he has taken into account, and carefully considered all the evidence of the appellant and her witness, and the documentary evidence that was placed before him. I have no reason to believe that he did not do so in reaching his decision as to the credibility of the appellant.
18. I remind myself that it is now well established that what is required in a decision is that the reasons provided must give sufficient detail to show the parties and the appellate Tribunal, the principles upon which the lower tribunal has acted, and the reasons that led it to its decision, so that they are able to understand why it reached its decision. The reasons need not be elaborate, and need not deal with every argument presented. The Court of Appeal in R & ors (Iran) v SSHD [2005] EWCA Civ 982 held that a finding might only be set aside for error of law on the grounds of perversity if it was irrational or unreasonable in the Wednesbury sense, or one that was wholly unsupported by the evidence. Similarly, the Court of Appeal held that before the Tribunal can set aside a decision of a Judge on the grounds of error of law, it must be satisfied that the correction of the error would have made a material difference to the outcome, or to the fairness of the proceedings.
19. In my judgement, in a carefully structured decision, the Judge of the FtT carefully considered the appellant's claim for international protection. The appellant's immigration history and the background to the appeal is set out at paragraphs [1] to [5] of the decision. As I have said, the Judge heard oral evidence from the appellant and a witness. The evidence that was before the Judge is set out at paragraph [11] of the decision. The basis upon which the appellant claims international protection is summarised at paragraphs [14] to [17] of the decision, and at paragraphs [18] to [22] the Judge sets out the respondent's reasons for refusing the appellant's claim. At paragraphs [23] to [25] of the decision, the Judge sets out the oral evidence of the appellant and at paragraph [26] the Judge sets out the oral evidence of the appellant's witness. The Judge's assessment of the evidence and his conclusions are to be found at paragraphs [29] to [46] of his decision.
20. I reject the submission made by the appellant that the Judge failed to properly consider the evidence of the appellant as to her relationship with SK. A summary of that aspect of the appellant's claim is to be found at paragraph [15] of the decision of the FtT. At paragraph [36] of his decision, the Judge refers to the evidence of the appellant and the reasons why the account advanced on behalf of the appellant was doubted by the respondent. The Judge noted the account of the appellant that she used to sleep in the dormitory where there were 10 other female students. The Judge noted the account of the appellant that she used to sleep in the same bed with SK and that she did that for three months before the matron found out that she and SK were sleeping together. The account given by the appellant during interview is to be found at questions 42 to 77 of the interview record. I have carefully read that account, and in my judgement the account given by the appellant has been carefully considered by the Judge.
21. I reject the submission that the Judge assumed that the appellant and SK were sleeping together and engaging in sexual acts in the dormitory, and that the Judge had assumed that the dormitories were regularly visited. At paragraph [37] of his decision the Judge again sets out the account advanced by the appellant. On the appellant's own account, she and SK had been sleeping together. The Judge notes the appellant's own account that she had a relationship with SK. The Judge does not say anywhere in paragraph [37] that the appellant and SK had been engaging in sexual acts. The Judge noted at paragraph [37] that the matron and other staff would have been visiting the dormitory regularly to ensure that the girls were safe and to generally keep an eye on them. In fact, on the appellant's own account (see Q.75 of her interview), it was on an occasion when the matron "was doing her rounds in the evening" that she found the appellant and SK in the same bed. In my judgement, it was therefore open to the Judge to find it implausible that the appellant would have been able to keep her relationship with SK discreet for as long as three months if they were truly engaged in a same-sex relationship, in the form suggested by the appellant.
22. It is accepted by Mr Parkinson that in considering the appellant's relationship with RN, the Judge mistakenly refers to the appellant and RN having been caught by RN's husband. That is undoubtedly correct. The account given by the appellant of that relationship during interview is to be found at questions 133 to 177 of the interview record. The appellant has always maintained that she and RN would go to the appellant's home, and that they were caught by her husband. In my judgement, that mistake as to fact is immaterial. At paragraph [38] of the decision, the Judge considers the account given by the appellant of that relationship and the precautions that she and RN took. He refers to the explanation offered by the appellant as to why they would lock two of the three doors to the property. The reasons why the Judge did not find it plausible that the appellant would have engaged in sexual activity with RN in the way claimed by the appellant, exposing themselves to the risk of being caught with the adverse consequences that would follow, are to be found at paragraph [39] of the decision. In my judgement, it was properly open to the Judge to find the account given by the appellant to be implausible for the reasons given by the Judge. The fact that the Judge refers to the appellant and RN having been caught by RN's husband is immaterial to that finding. The focus of the Judge was not upon where that relationship was continued or by whom the appellant had been caught, but upon the general account advanced by the appellant of the way in which she and RN conducted their relationship. Whether the appellant and RN were caught by RN's husband, or the appellant's husband, would not have altered the finding made by the Judge.
23. The Judge rejected the core of the appellant's account as to the relationships that she had claimed to have formed in Uganda. The Judge found that the appellant is not a credible witness. The Judge could not be assisted in reaching his findings as to the events that the appellant had claimed had occurred in Uganda, by the evidence of appellant's witness GD. In my judgement, it is right, as the Judge states at paragraph [34] that whatever GD knew about the appellant was based on what the appellant had told him. I note that in his witness statement, GD accepts that the appellant has only attended and participated in meetings since March 2016. He states (at paragraph 5) that the appellant been open about her sexuality and the fact that she fled Uganda for fear of being harmed because she is a lesbian. The Judge rejected the account of the appellant of the events that led her to leave Uganda, for reasons that in my judgement were properly open to him. In the circumstances, the evidence of GD that the appellant has been open about her sexuality and the fact that the appellant has claimed that she fled Uganda for fear of being harmed because she is a lesbian, adds nothing. It was for the Judge to determine whether the appellant fears return to Uganda, for the reasons that she claims. The Judge did so, and rejected the appellant's account. I have carefully read the statement of GD. In my judgment, the observations made by GD are not such as would have materially assisted the appellant. GD could not give any evidence of the appellant's experiences in Uganda, and beyond making observations as to the activities that the appellant has participated in openly since March 2016, GD offers no evidence that is capable of undermining any of the findings made by the Judge.
24. In my judgement, the appellant's submission that the Judge failed to properly consider the evidence relating to the willingness of the appellant's uncle to assist her leave Uganda, amounts to nothing more than a disagreement with a finding of the Judge that was properly open to him. The Judge sets out at paragraph [40] of his decision his analysis of the material evidence. The Judge had already rejected the appellant's account of her relationship with RN in the previous paragraph. At paragraph [40] the Judge was considering the appellant's account of her subsequent arrest, detention and release. I reject the submission that the Judge applied something other than the lower standard of proof. In my judgement, having considered all matters together, it was open to the Judge to conclude as he does at paragraph [40]:
"I do not find it credible that the appellant was caught whilst engaged in a sex act with RN, arrested, detained at police station with a view to prosecution and then released with payment of a bribe. I find that the appellant has simply made up her claim to the incident or being caught whilst engaged in a sexual act with RN simply to reinforce her asylum claim"
25. As to her attempts for form relationships in the UK, when asked at interview, the appellant stated (Q.180) that she had tried to form a relationship when she had "just arrived". She stated (Q.181) that she has not had any proper relationships in the UK. At paragraph [23] of his decision, the Judge records the oral evidence of the appellant. Her evidence was that "She was babysitting in a household where she made advances towards the woman of the house. The woman told her that she had a partner.". At paragraph [24], the Judge records the appellant's evidence in cross examination that the appellant had no lesbian relationship in the UK. Her evidence was that "She just tried one relationship with a girl who she met on a bus. The girl was very young. It did not work. The relationship only lasted a month. That was in 2005.". The Judge clearly considered the evidence of the appellant and in my judgement, his finding at paragraph [41] that the appellant's account is not credible and that the appellant has made a claim to these incidents purely to enhance an otherwise unsustainable asylum claim, is a finding that was properly open to him on the evidence.
26. I turn finally to the Judge's assessment of the delay in the appellant making her claim for international protection. The appellant accepts, as she must, that she took no steps to regularise her immigration status in the UK until March 2016, almost 14 years after her arrival in the UK. That on any view, is a significant delay, particularly given the claimed background to the claim. Mr. Parkinson rightly accepts that there will often be a delay in making a claim for protection in circumstances where an applicant has developed a belief that their sexual orientation is 'wrong', or because of feelings of shame, or cultural reasons. Here, the appellant entered the UK as a visitor. In her interview, the appellant explained that she did not claim earlier because she was in fear, and she had no-one to explain matters to her properly. In my judgement, at paragraph [42] of his decision, the Judge carefully considered the reasons for the delay. The Judge accepts that the appellant may not have wanted to disclose her lesbian tendencies to strangers after arrival in the United Kingdom. However, the Judge notes that 13 years was far too long for her to decide whether to seek protection. In my judgement, having considered all the evidence in the round, it was open to the Judge to find that the appellant's claim after 13 years of living in the United Kingdom was nothing less than a gross abuse of the asylum process. I reject the submission that in reaching his decision the judge failed to consider the reasons for not disclosing the issue of sexuality at the first available opportunity, and failed to consider the reasons for the delay advanced by the appellant.
27. In my judgement, it was open to the Judge on the evidence before him and the findings made, to dismiss the appeal for the reasons he gave. There is no error of law and it follows that the appeal against the decision of the First-tier Tribunal is dismissed.
Notice of Decision
28. The appeal is dismissed and the decision of the First-tier Tribunal shall stand.
29. An anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Mandalia

TO THE RESPONDENT
FEE AWARD
The First-tier Tribunal made no fee award. I have dismissed the appeal and the decision of the First-tier Tribunal is to stand.

Signed

Deputy Upper Tribunal Judge Mandalia