Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/10467/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 February 2019
On 19 March 21019

Before

DEPUTY UPPER TRIBUNAL JUDGE WOODCRAFT

Between

MR U
(ANONYMITY ORDER NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr J Dhanji, Counsel
For the Respondent: Mr T Melvin, Home Office Presenting Officer

DECISION AND REASONS

The Appellant

1. The Appellant is a citizen of Pakistan born on 5 August 1992. He appeals against a decision of Judge of the First-tier Tribunal Raymond sitting at Hatton Cross on 26 September 2018 in which the Judge dismissed the Appellant's appeal against a decision of the Respondent dated 16 August 2018. That decision was to refuse the Appellant's claim for international protection.

2. The Appellant applied for a visa to enter the United Kingdom on 24 March 2011. He arrived here on 18 April 2011 with a Tier 4 (General) student visa valid until 7 August 2012. The Appellant had no leave thereafter and consequently overstayed his visa. On 16 February 2018, some 5 years after the expiry of his visa he applied for asylum the refusal of which has given rise to the present proceedings.

The Appellant's Case and the Respondent's Refusal

3. The Appellant's case was summarised by the Judge at [3] of the determination. The Appellant was gay, and this would expose him to risk of death upon return to Pakistan where his family and community had come to know of his sexual orientation. The Appellant had known in Pakistan that he preferred the company of boys since the age of 16 but he had a confused understanding of his sexuality. He only came to realise he was gay after he began to look into homosexuality in 2016 which led him to visit a gay club where he had since had a number of different partners and had LGBT friends who had refugee status on that basis. The Appellant attended other gay clubs in London and had first revealed his sexuality to his friends in the United Kingdom a few days after visiting a club.

4. In November 2017 the Appellant's father requested the Appellant to return to Pakistan in order that the Appellant should marry a cousin, but the Appellant refused because of his sexuality. This led his father to want to kill the Appellant and to disown him publicly by advertising that fact in a newspaper. As a result of this publicity the Appellant's sexual orientation became known within the community.

5. The Respondent took issue with the credibility of the Appellant's claim stating it was unclear why if the Appellant's father was ashamed of the Appellant he would publicise this by putting an advertisement in a newspaper claiming to disown the Appellant. Little weight was attached to a copy deed of disinheritance dated 27 July 2018 produced by the Appellant in confirmation. Although the Appellant had claimed to receive threatening telephone calls and texts from his brother, no evidence of these threats had been provided. A letter from the Metropolitan police related to a recent crime incident but did not confirm that that incident was to do with threatening calls from the brother. Little weight was given to copy photographs, a letter from the Appellant's sister, a print out of a group chat and a print out of mobile phone accounts and chat. The Appellant's sexual orientation could not be confirmed but the Respondent held against the Appellant the delay in claiming asylum pursuant to section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004.

The Decision at First Instance

6. At [7] of his determination the Judge stated that an assessment of the credibility of the Appellant's narrative "must inevitably focus on the journey of self-discovery which he claims to have made as a gay man, from knowing he was attracted to boys only, when aged 16 in Pakistan, to when as a result of investigating the Koran on homosexuality and seeing a film on clubbing young men, he was led to come out as gay in 2016".

7. In a lengthy determination which ran to some 51 pages the Judge held that the Appellant was not a credible witness. At [134] the Judge pointed to what he described as a stark contradiction between the September 2018 appeal statement and the Appellant's earlier August 2018 asylum interview. The appeal statement said that the Appellant wanted to be a couple with an individual called T, a boy he knew at school when he was 16, and about whom he had fantasies of intimacy. Whereas in his asylum interview the Appellant said that he had no notion of his own sexuality when in Pakistan. The Judge considered at [137] that the account given by the Appellant in the asylum interview was different to that in the appeal statement.

8. The appeal statement was an assertion that the Appellant's awareness of his sexuality in 2016 was of the same order as that which he felt towards T in 2007. The Judge did not accept the criticism that this had arisen through some fault of the Home Office interviewer. The Appellant was being interviewed as a 25-year-old man who was supposed to have had a number of casual gay encounters not as a 16-year-old who was confused about his sexuality. There was nothing to stop the Appellant in interview expressing the fuller and more extensive account which he had given in his later appeal statement of how he wanted at the time to be a gay couple with T.

9. After the Appellant came to the United Kingdom in 2011 he said he was watching movies as well as reading online material. The Judge found that the Appellant was living a full social life in 2015 before he was supposed to have started to explore his sexuality in 2016. The Appellant appeared to be saying in his appeal statement that he had come to a full realisation of his gay identity in 2007 when he was aged 16. It was only a hostile homophobic environment in Pakistan that stopped him at that time from exploring his sexuality so there could have been no confusion in his mind then. This made it more incomprehensible that in an open society like the United Kingdom the Appellant had only begun to explore his identity in 2016, 5 years after arriving here. If the Appellant had been suffering mental torture since 2007 because of the conflict within himself over being gay, there was no comprehensible reason why 2016 would be a turning point for the Appellant to explore his sexuality and visit a gay bar for the first time.

10. The Appellant had also said that watching a film called "Desi Boyz" acted as a revelatory moment that led him to visit his first gay club in 2016. The film is in fact about two heterosexual Asian men who go clubbing in London. The Appellant had changed his evidence about the impact of this film between his August interview and his September statement. From being a revelatory moment that led to him wanting to go to a gay club, the film was now portrayed as one that made him more interested in the idea of close friends clubbing together. The Judge held at [187] that the Appellant had manipulated his relationship with a drag queen as part of his fabricated asylum narrative.

11. The Appellant had given two inconsistent accounts of himself, one in the August 2018 asylum interview, as a liberated and happy gay man and the other was the picture presented to his GP and mental health workers of being an isolated, cowed and depressed gay man given to suicidal ideation. This dichotomy pointed to the Appellant as having manufactured his account of his journey of self-realisation as a gay man. The self-referrals to GPs and mental health workers were part of the strategy of a fabricated gay profile.

12. At [238] the Judge noted that the Appellant had achieved nothing academically since entering the United Kingdom in April 2011. In the following paragraph he analysed the explanation given by the Appellant for this situation The Appellant claimed that by the time funds came through from his parents to enable him to apply for a visa extension his visa had already expired, and he was told by solicitors that it was too late for him to do anything about it. The Judge was particularly unimpressed by the claim that the Appellant's solicitors appeared to be looking for a college for the Appellant rather than the Appellant himself assuming that responsibility. The Appellant had lied to his parents telling them that he had made an application for an extension but had not received a reply from the Respondent when in fact he had made no application at all.

13. It was unclear why the Appellant should have made a disclosure to his family out of choice, he could have just refused to return to Pakistan. The Appellant had not apparently visited his family in Pakistan since arriving in the United Kingdom in April 2011 and it was implausible to suggest that the Appellant's father and family could have had any ability to persuade the Appellant to return for a marriage. The Appellant had not had to give his father the explanation that he did not wish to return to Pakistan to marry because he, the Appellant, was gay.

14. There were a number of other discrepancies in the evidence presented. At [381] the Judge concluded that he did not accept the Appellant had a gay sexual identity. He did not accept the Appellant had had gay sexual relationships or that he would be perceived to be a gay man in Pakistan. Neither the Appellant nor his two witnesses at the appeal hearing had been honest and truthful in their evidence. The Appellant had only made an asylum claim at a time of his convenience which had been fabricated with a high degree of cynicism. Concealment and evasion had been a characteristic of the evidence of the Appellant. He dismissed the appeal.

The Onward Appeal

15. The Appellant appealed against this decision making two main points. The first was that the Judge had used unacceptable terminology in his determination. On 5 occasions, in [9], [18], [28], [71] and [184] the Judge had used the term "gays" as a way of referring to gay men. The Equal Treatment Bench Book stated that "gays" was not an acceptable term.

16. The 2nd ground argued that there had been a reliance on a stereotype as the basis for identifying a contradiction in the Appellant's evidence that was cited repeatedly by the Judge as a reason for concluding that the Appellant had not proved he was a gay man. The Judge had mischaracterised the Appellant's evidence basing his assessment of the credibility of that evidence on the stereotype that a man who was physically attracted to another man would have realised he was gay. In this case the stereotype was that the Appellant would have realised he was gay when he felt physically attracted to T.

17. The grounds quoted from paragraph 6 of the Appellant's witness statement arguing that nowhere had the Appellant addressed his understanding of his sexual identity. Rather the Appellant had given evidence about the feelings of attraction he felt towards T which were arguably distinct from his understanding of whether he was gay. The Appellant's understanding developed over time culminating in his decision to identify as a gay man and the grounds quoted from the witness statement at paragraphs 12 and 13. The Judge's error was a material one. The Judge relied on the conclusion he reached that there was a contradiction between the Appellant's evidence that he was physically attracted to T in 2007 but did not come out until 2016 as a reason for concluding that the Appellant's claim that to be a gay man was not credible. He returned to it throughout his determination as a reason that undermined the Appellant's overall credibility.

18. The application for permission to appeal came on the papers before Judge of the First-tier Tribunal Wilson on 17 January 2019. In granting permission to appeal he wrote: "The grounds assert that the Judge erred in that he failed to make findings in accordance with the evidence. In particular the Judge failed to draw a distinction between the Appellant's feelings towards a male friend and his realisation that he was gay. It is arguable that the Judge failed adequately to consider the Appellant's credibility within the context of this distinction. That is potentially significant, is definitely material; and is arguably a material error. This arguably material error of law having been identified, all the issues raised the grounds are arguable".

19. The Respondent replied to the grant of permission to appeal by letter dated 26 February 2019 pursuant to rule 24. In opposing the onward appeal, the Respondent submitted that the Judge had forensically examined all aspects of the Appellant's claim to be a gay man. There were dozens of references to the Appellant as a gay man throughout this determination. It was unclear whether the grounds were challenging that the Judge was somehow showing bias against gay men by his use of the term "gays" in three or four paragraphs of this determination. This made no material difference to the careful and full assessment of the Appellant's claim to be a gay man.

20. As to ground 2, the Judge directed himself properly to the task before him focusing on the journey of self-discovery which the Appellant claimed to have made. There was a serious contradiction about when the Appellant's awakening of the understanding of his sexual identity began. The Judge had considered all aspects of the claim at great length including the evidence of the witnesses. The Respondent quoted from the House of Lords authority of HJ Iran: "the Tribunal should first ask itself whether it is satisfied on the evidence that the Appellant was gay or that he would be treated as gay by potential persecutors in his country of nationality".

21. The Judge noted the stark contradiction in evidence between the original statements and the last appeal statement. (I assume that reference to the "original statements" is meant to be a reference to the asylum interview.) The reply continued that the Judge had given numerous examples to support the finding that the Appellant's claim to be gay was not credible. The grounds of appeal challenged only a few points that were incapable of making a difference to the overwhelming sustainable findings. The Judge had directed himself appropriately and the Respondent opposed the appeal.

The Hearing Before Me

22. As a consequence of the grant of permission to appeal the matter came before me to determine in the first place whether there was a material error of law in the decision of the First-tier Tribunal. If there was not the decision would stand, if there was, then I would make directions for the rehearing of the appeal.

23. For the Appellant counsel argued that the case turned on an assessment of the Appellant's credibility. The Judge had used unacceptable terminology. This was a claim involving sensitive issues and it was of fundamental importance that the Judge making the credibility assessment was able to appreciate the facts of the Appellant's journey of self-discovery. The use of inappropriate terminology left the Judge open to the perception of bias and that was not rescued by other use of appropriate terminology in other parts of the determination.

24. The 2nd ground related to the assessment of the Appellant's credibility. The focus of the Judge's adverse findings was at [134] to [154]. The Judge stated that upon the Appellant being attracted to T he would have realised he, the Appellant, was gay. What the Judge had done was to conflate the Appellant's evidence that he was attracted to T with the issue of the Appellant's awareness that he was a gay man. These were two distinct matters but the Judge instead of treating them as one and had then found a contradiction. This appeared repeatedly throughout the determination in the Judge's assessment of the Appellant's claim. The Judge made that same point over and over again.

25. In reply, the Presenting Officer relied on the rule 24 response which he had drafted. The use of the word "gays" was not a material point unless the accusation was made that the Judge was homophobic or otherwise biased against the Appellant which did not seem to be what was being said. The Judge had assessed what the Appellant had said were his feelings in 2007. It was open to the Judge to take a point against the Appellant that he had lived for a long time in the United Kingdom without exploring his sexuality. The Judge had considered the witnesses called on the Appellant's behalf but had rejected their evidence. The focus of the case was on the questions raised in HJ Iran particularly the first question. The Judge considered the evidence and reached a conclusion that was open to him. The grounds were an attempt to reargue the appeal by making semantic points. There was no material error of law. There were no further submissions made and I reserved my decision.

Findings

26. As I have already indicated, there are two main challenges to the determination in this case. The first is a complaint against the Judge of perceived bias because in five places in the determination he refers to "gays" rather than "gay men" in breach of the guidance in the Equal Treatment Bench Book. In other parts of the determination as the Appellant himself acknowledges, the Judge does refer to gay men. It would appear therefore that the Judge's use of the term "gays" is something of an aberration and does not truly reflect the Judge's understanding of the need for sensitivity in preparing his determination and deciding this case.

27. The test of perceived bias is whether a reasonable person, in all the circumstances of the case, would have a reasonable apprehension that there would not be a fair trial from an impartial Judge. As it is an objective test, it does not invoke the apprehension of a Judge, or any party; it invokes the reasonable apprehension of a reasonable person, who is in possession of all the relevant facts.

28. Applying that test to the instant case, I do not consider that a fair-minded person would be apprehensive that the Appellant would not receive a fair trial from this Judge. Had the only references in the determination to gay men been "gays" or had there been some other evidence from the determination such as derogatory comments made by the Judge which went beyond reason-based criticism, the position might be different but that is not the case here. The mischief which the guidance is aimed at is the indication of bias by the poor or improper use of language. I reject the argument made by the Appellant of perceived bias. Occasional lapses in the use of language when taken in the context of the determination as a whole where appropriate language is used, do not demonstrate a particular mindset on the part of the Judge or bias. This was a very small proportion of an otherwise impeccably worded determination. It is clear from a fair reading of the determination that the Judge gave anxious scrutiny to the Appellant's claim in this case and rejected it on grounds of credibility not prejudice.

29. The 2nd complaint made by the grounds is that the Judge's treatment of credibility erred in law. As such it is a reasons-based challenge and I remind myself that the Judge had the benefit of hearing the Appellant and his witnesses give oral testimony and be cross-examined.

30. The core issue in the case turned on the Appellant's claim that he had been aware of his feelings towards males at the age of 16 but did not explore his sexuality further until some years after living in the United Kingdom. The Judge found that to be implausible. Firstly, the Judge found that the Appellant changed his evidence between what was said in interview and what the Appellant later said in his witness statement, see paragraph 7 above. The Judge was entitled to assess what he found to be an inconsistency and to weigh that in the balance when deciding whether the Appellant was a credible witness. That was a matter for the Judge. It was neither perverse nor irrational for the Judge to find an inconsistency in the Appellant's evidence on this point. The Appellant had difficulties in explaining why it had taken him so long to explore his sexuality further in the United Kingdom. If his evidence was that he had not explored his sexuality further in Pakistan because it was a homophobic country, it was not credible that he would then take so long to explore his sexuality in the United Kingdom where a very different societal attitude towards sexual orientation prevailed.

31. The Judge was concerned that the Appellant had changed his evidence as the case had progressed about how he was said to have felt at the age of 16. The Appellant's argument that there were somehow two quite distinct aspects to the Appellant's case namely his attraction to T at the age of 16 and his later exploration of sexuality in the United Kingdom is in reality the splitting of hairs. The Judge found that the Appellant had exaggerated his case. That was a conclusion which was open to him on the evidence.

32. There were other aspects of the Appellant's case such as inconsistency between watching a heterosexual film about Asian men going clubbing which provoked the Appellant's interest in clubbing generally and the Appellant deciding that as a result of watching the film he specifically he wanted to go to a gay club. It was open to the Judge to draw an adverse conclusion from that because he did not accept that watching heterosexual men would lead the Appellant to want to go to a gay club.

33. This was a lengthy determination and the grounds complain that there was an element of repetition in the points taken against the Appellant by the Judge. It might be argued that the determination was perhaps longer than was necessary to make the points which the Judge sought to make. That would be a material error of law if as a result of the length of the determination it was not clear to the losing party why they had lost but I do not consider that argument has any merit. It was clear what point the Judge was making in his determination. The Appellant had changed his evidence about when the awakening of his understanding of his sexual identity began. Ultimately it was for the Judge to decide whether the Appellant could explain the very long delay in the time spent in the United Kingdom before the Appellant began his claimed exploration of his sexual identity for example by visiting gay clubs.

34. The Judge evidently decided that the Appellant could not explain this. What the Appellant had done, the Judge held, was to construct a claim for international protection that was not credible. The first question posed by HJ Iran: was the Appellant gay or was he likely to be treated as gay by potential persecutors, required an answer. The Judge did not find the Appellant was gay because he found that the Appellant had manufactured his claim. He did not accept that the Appellant would be treated as gay for example by the Appellant's father. The Judge did not accept that the Appellant had told his father that the reason why he, the Appellant, did not wish to return to Pakistan to marry was because of sexual orientation. There was no need for the Appellant to give that as a reason, the Appellant had not returned to Pakistan earlier and there was no possibility of pressure being put on the Appellant.

35. The Appellant had demonstrated that he was not a reliable witness by admitting that he had lied to his parents about his academic studies which, as the Judge pointed out, had achieved nothing in the time the Appellant was here. There was also the point made by the Respondent in the refusal letter which the Judge was entitled to take into account that it made no sense for the Appellant's father to complain about the shame brought upon the family by advertising the whole affair in the local newspaper. The Judge gave other cogent reasons (which I have summarised at paragraph 14 above) for his conclusions and which taken as a whole entitled the Judge to take an adverse view of the Appellant's credibility. The grounds of onward appeal amount to no more than a disagreement with the decision of the Judge. As such I do not consider that any material error of law is indicated by either the grounds or the submissions made to me and I dismiss the Appellant's onward appeal.

Notice of Decision

The decision of the First-tier Tribunal did not involve the making of an error of law and I uphold the decision to dismiss the Appellant's appeal

Appellant's appeal dismissed

I make no anonymity order as there is no public policy reason for so doing.

Signed this 13 March 2019

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Judge Woodcraft
Deputy Upper Tribunal Judge

TO THE RESPONDENT
FEE AWARD

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

Signed this 13 March 2019

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Judge Woodcraft
Deputy Upper Tribunal Judge