Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/10158/2017

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23 July 2019
On 8 August 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

Between

AETZ
(anonymity direction MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms. N. Braganza, Counsel instructed by Hackney Community Law Centre
For the Respondent: Ms. J. Isherwood, Senior Home Office Presenting Officer

DECISION AND REASONS

1. By way of a decision promulgated on 28 May 2019 I set aside the decision of the First-tier Tribunal. The appeal came before me to be re-made.

2. I continue the anonymity direction made at the error of law hearing.

The hearing

3. I heard oral evidence from the Appellant, from Ms. Nina Nasim, from Michel and from Mr. AE. Michel gave evidence from France, in French. He was assisted by the interpreter, Ms. Z. Kabangu, who confirmed before proceeding that they both fully understood each other. It had been intended to hear evidence from Michel first as he needed to get to work as soon as possible, bearing in mind the time difference. However, there were problems establishing a video link. I first heard evidence from Ms. Nasim, then from AE. At this point it was decided not to wait for the video link to work and Michel gave evidence via the telephone. There was no objection from Ms. Isherwood to Michel giving evidence over the telephone rather than by video link. The Appellant was not present while these witnesses gave evidence, with the agreement of Ms. Braganza.

4. I heard oral submissions from both representatives. I reserved my decision.

5. It was agreed at the outset of the hearing that, were I to find the Appellant credible and to find that he was a gay man who wished to practise his sexuality openly, he would be at risk on return to Cameroon.

6. The burden of proof lies on the Appellant and the standard of proof is reasonable likelihood.

7. I do not intend to set out here the Respondent's reasons for refusing the Appellant's asylum claim. In short, the Respondent did not accept that the Appellant was a gay man. This is the sole issue before me in this appeal hearing. Neither do I intend to set out all of the Appellant's evidence, including that contained in the Appellant's bundle (833 pages). I will refer to the evidence as and when necessary in coming to my decision.

Decision and reasons

8. I found the Appellant to be an honest and credible witness. He was cross-examined at some length. He was not evasive. He attempted to answer all the questions as best he could, but both he and I had to ask for clarity from Ms Isherwood. His evidence has been consistent since the start of his claim which was made in 2017. The witness statements provided for all three hearings are consistent, and his evidence is consistent with that of the other witnesses. I find that his evidence can be relied on.

Relationship with Michel in Cameroon

9. I found Michel's evidence to be consistent and credible. His evidence was consistent with that of the Appellant and consistent with that in his witness statement. As I observed in my error of law decision, he was not cross-examined on the last occasion in the First-tier Tribunal. Before me, the core of his claim to have been in a relationship with the Appellant was challenged only on the basis that he could not be precise as to the months and years when the relationship started and finished. I find that they were in a relationship from 2006 to 2009, and so it started thirteen years ago. Given this, I attach no weight to the fact that Michel could not give an exact date for when the relationship had started. His evidence was consistent with that of the Appellant that they met at the start of the academic year of 2006/2007, that the relationship started shortly afterwards, and that it continued for the three years that they were at university. There was no specific date on which it ended, but it fizzled out as the Appellant and Michel were not living in the same town anymore. Although Michel made a few visits to the Appellant in the town where he was studying dentistry, the relationship gradually petered out.

10. Similarly, there was no challenge to the evidence of Michel as to the events on the German bridge when the Appellant and he were arrested. They both gave consistent evidence that they were arrested sometime in the afternoon and held for three days. As I stated at the hearing, I do not intend to go back into the issue of whether the fact that they were not tortured means that their evidence was not consistent with the background evidence. It is clear from my error of law decision that the torture of homosexuals who are arrested in Cameroon is not automatic.

11. Criticism was made of the fact that their statements did not contain details of the day-to-day aspects of their relationship. I find that this does not cast any doubt on their claim to have been in a relationship. In any event, I find that the Appellant did set out some evidence of the time that they spent together in his witness statements. In his first witness statement dated 27 September 2017 the Appellant explained how he was living alone in a house owned by his mother and therefore he and Michel used to spend time there, as Michel was staying with family relatives. At [15] and [16] he described how they spent a lot of time together. At [18], consistent with his evidence at the hearing, he said that Michel came back to his house to work on assignments. At the hearing he said that they used to spend time at his house studying and hanging out together.

12. I find that some details of the day-to-day aspects of their relationship are given. I accept the evidence of Michel that, in his statement, he focused on the fact that they were in a relationship and on the arrest when they went to visit the German bridge in 2008.

13. I find that there is nothing untoward in the fact that the Appellant kept his relationship with Michel secret. I find that he had no option. When the messages on William's phone were found and the Appellant was accused of being a homosexual, he lost contact with his father and was forced to leave Cameroon. This was the consequence of his sexuality being found out. I find that there is nothing implausible or inconsistent about him keeping his relationship with Michel a secret, just as there is nothing implausible or inconsistent in his keeping his short holiday relationship with William a secret.

14. I found the evidence of the Appellant's relationship with Michel to be credible. The fact that Michel has now twice given evidence from France adds weight to the Appellant's claim. It would be very easy for Michel to refuse to assist the Appellant. Their evidence was clear and consistent and has been throughout the time of the Appellant's claim. There is no inconsistency with the background evidence. I find, taking into account all of the evidence, that the Appellant and Michel were in a relationship as claimed. I find that they were arrested and detained following the incident on the German bridge when they were caught kissing by a policeman.

Other events in Cameroon

15. I find the Appellant's evidence of his time in Cameroon credible and consistent, including the evidence of being caught kissing a boy at school, and the evidence of his short relationship with William in 2000. Contrary to Ms Isherwood's submissions, the Appellant has explained how he re-established contact with William. He had met William when he was on a family holiday in 2000. In 2012 William returned to Cameroon from travelling abroad, and asked the Appellant's parents for his phone number. There is nothing incredible or implausible in this account. The Appellant's parents knew that William and the Appellant were friends and therefore it casts no doubt on the Appellant's claim that they would give him his phone number.

16. I find that it was after William had died that messages were found on his phone between him and the Appellant. The Appellant said that these were "not just messages of friendship". I accept the Appellant's account of the three week relationship with William when he was on a family holiday. I accept his account of William getting back in touch with him when he returned from travelling abroad.

17. I attach no weight to the submission that the Appellant was lying, because denying his sexuality was lying. The fact that, while he was a school boy in Cameroon, the Appellant denied that he had been kissing a boy, that he later denied to the police in Cameroon that he had been kissing Michel, and that he denied to his family and William's family that he was in a relationship with William, is totally credible. Clearly he was living in Cameroon at the time. There is no reasonable likelihood that he would have admitted to any homosexual feelings or activities. The fact that the Appellant denied these things while living in Cameroon does not detract from his claim to be gay.

18. For the same reason the Appellant cannot be criticised for not actively coming out in Cameroon. It is quite clear that when his homosexuality was suspected the consequences were very serious and he had to flee the country. He had to deny his sexuality while he was there.

19. I attach no weight to the fact that the lawyer's letter appears to imply that the Appellant's father stopped contact with him after the incident when he was caught kissing a boy at school. That does not go to the core of the Appellant's claim to be gay. It is clear that, after the Appellant was found kissing a boy at school, his parents moved him to another school. His mother set that out in her witness statement. Everything in her statement is consistent with what the Appellant has said. She provided details of what happened following the incident at school. She set out what she and her husband did and how they moved the Appellant to another school. She also gave details of what happened when William's family found the mobile phone with the messages from the Appellant. Her evidence is consistent with that of the Appellant.

Events in the United Kingdom

20. I found the evidence of Ms. Nasim to be reliable and credible. Criticisms were made by Ms. Isherwood of the fact that she did not have any qualifications, and was not able to give a detailed description of the assessment procedure at UKLGIG. It was further asserted that she had "preconceptions", was "not independent" and was "biased". I find that there is no basis for this. Ms. Nasim said that she had no personal interest invested in her clients, and was there to serve as a support worker. I find this credible. I find that she has worked both in a voluntary and a paid capacity in the LGBT sector. As she said in her statement and at the hearing, it is not a given that the charity she works for will continue to offer support to all those who come looking for it. She gave evidence that sometimes support is withdrawn if it is felt that there is an ulterior motive.

21. I find that Ms. Nasim has been working with the Appellant for over two years. I find that weight can be given to her evidence, as she has known the Appellant for a long time, and I do not accept the unfounded accusation that she approaches her clients with preconceptions. I find that her evidence can be relied on.

22. I found AE to be an honest and credible witness. He has been found by the Respondent to be gay, but the Respondent does not accept that he will be at risk on return to Morocco. He is waiting for his appeal against this decision to be heard. His evidence was consistent with that of the Appellant as to when and how they had met. They met in September 2018 but, given the distance between where they live, they did not meet again until May 2019. This is when their relationship started.

23. I do not find there is anything untoward in the fact that their relationship started in May 2019. The Appellant's claim had been ongoing since 2017. I find the fact that the Appellant is now in a relationship is not an attempt to enhance his claim, but is just due to circumstance. He is living an openly gay lifestyle and has met somebody with whom he wishes to have a relationship. Their evidence was clear, consistent and credible. I find that the Appellant and AE are in a relationship.

24. I find that the Appellant has been living an openly gay lifestyle since he left his uncle's home in December 2016. I find that he could not come out to his uncle. When his uncle discovered that he was gay, he threw him out of the house. I find that it would have been very difficult for the Appellant to live an openly gay lifestyle while living under the same roof as his uncle. It was his uncle who was supporting him through university, and the Appellant would have been aware that he could not jeopardise that.

25. I have set out in my error of law decision how the Appellant had gained a place at a university in Germany. He set out in his statement dated July 2019 that he had intended to move to Germany because he thought that he could live openly there without a problem. At [37] he said that that he had thought about moving somewhere where he did not have a family member and where he could be open about his sexuality. This is entirely credible, and is consistent with him being unable to live an openly gay lifestyle while living with his uncle. He has had no contact with his uncle since December 2016.

26. I attach no weight to the fact that the Appellant had not had a relationship in the United Kingdom before his screening interview. As I have set out, the Appellant was living with his uncle at the time. He could not live an openly gay lifestyle as his uncle was supporting him financially. He knew that his uncle did not know that he was gay and would not react well if he discovered, as was shown in December 2016. The Appellant had applied to university in Hamburg in order to be away from family members so that he could express his sexuality freely. I do not attach any weight to the fact that he had not had a relationship before his asylum screening interview.

Documentary evidence

27. I have considered the documentary evidence. I attach no weight to the fact that the Appellant did not know whether Michel had received any documents such as an arrest warrant. There is a credible logic to the Appellant being served the arrest warrant relating to events in 2008 in 2013. As the Appellant said, he and Michel denied that they had been kissing so it was just the policeman's word against theirs. They were released without charge, having been verbally abused by the police, as there was no evidence to show that they were homosexual. However, in 2013 when William's family went to the police with William's phone, this showed contact between the Appellant and William, which indicated homosexual feelings towards another man. I find that there is a logic to the fact that the Appellant was not served with the arrest warrant until 2013. In 2013 the police would have considered that they had concrete evidence of the Appellant's attraction to members of the same sex.

28. I find it adds to the Appellant's claim that the documents date from 2008, not from 2013. Ms. Isherwood submitted that this had not been explained by the lawyer. I find that it is reasonably likely that, had the documents been fabricated, they would have contained dates which were nearer the time that the messages between the Appellant and William were discovered.

Section 8 of the 2004 Act

29. I have considered section 8. As set out in my error of law decision, the Appellant was thrown out of his uncle's home in December 2016. He claimed asylum in April 2017, only a few months later. He gave evidence at the hearing that at the time he had an EEA application outstanding as the dependant of his uncle. He said that he had phoned the Tribunal and was told that the appeal was still outstanding. In any event, he did not go underground, but made an asylum claim within four months of having been thrown out by his uncle, having taken advice. I accept his evidence that he did not know about claiming asylum.

30. It was submitted that he said at Q24 of his asylum interview that he had no choice but to claim asylum. I find that there is nothing untoward in this. He had been able to live in the United Kingdom up until that point without his homosexuality being discovered. He had made plans to leave the United Kingdom and go and study in Hamburg so he could be open about his sexuality. I find that the Appellant's behaviour in failing to claim asylum immediately having been thrown out of his uncle's home and denied support by his uncle does not cast doubt on his credibility.

31. Taking all of the evidence into account, and attaching weight to the evidence of the Appellant and the witnesses, bearing in mind that this claim has been ongoing since 2017 during which time the Appellant's evidence has been consistent, and that he has been supported by witnesses throughout that time, I find that the Appellant is a gay man who wishes to live an openly gay lifestyle in Cameroon.

32. Ms. Isherwood accepted on behalf of the Respondent that, were I to find the Appellant's claim credible, he would be at risk of persecution on return to Cameroon.

33. Considering all the above, I find the Appellant's claim to be a genuine refugee in need of international protection to be well founded. I find that there is a real risk that he will suffer persecution on return to Cameroon, and so his claim succeeds on asylum grounds. As I have allowed his appeal on asylum grounds, I do not need to consider his claim to humanitarian protection. I find that returning him to Cameroon would cause the United Kingdom to be in breach of its obligations under Articles 2 and 3 of the ECHR.

Notice of Decision

34. The appeal is allowed on asylum grounds.

35. The appeal is allowed on human rights grounds.

36. I have made an anonymity direction.

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.

Date 5 August 2019

Deputy Upper Tribunal Judge Chamberlain

TO THE RESPONDENT
FEE AWARD

As I have allowed the appeal. In the event that a fee has been paid or is payable, I have considered making a fee award. I have decided to make a fee award as the Appellant has been consistent throughout the period of his claim for asylum that he is a gay man, and the Respondent accepted that, were this the case, he would be at risk on return to Cameroon.

Date 5 August 2019

Deputy Upper Tribunal Judge Chamberlain