Tribunal decisions

The decision

IAC-fH-nl-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/11219/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27 February 2017
On 09 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

m s a a
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms B Asanovic, Counsel, instructed by D J Webb & Co Solicitors
For the Respondent: Mr P Armstrong, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Hawden-Beal (the judge), promulgated on 24 November 2016, in which she dismissed the Appellant’s appeal. That appeal had been against the Respondent’s decision of 30 September 2016 rejecting a protection claim. The claim was based upon the Appellant’s assertion that he was gay and that he would be at risk on return to Bangladesh.

The judge’s decision
2. Between paragraphs 27 and 35 the judge makes a number of adverse findings in respect of the Appellant’s evidence of what was said to have occurred whilst he was still in Bangladesh. In essence the judge finds that the Appellant had fabricated an account of people suspecting him of being gay whilst there. At paragraph 36 the judge accepted that the Appellant had had homosexual relations with two men whilst in the United Kingdom. At paragraph 37 the judge takes issue with the Appellant’s representative’s assertion that the Respondent accepted that gay men were at risk on return to Bangladesh. It was the judge’s view that there was no such concession made by the Respondent. At paragraph 38 the judge makes reference to the decision of the Supreme Court in HJ (Iran) [2010 UKSC 31 and makes a number of comments about the application of the facts in this case to the legal framework set out in that case. At paragraph 39 the judge concludes that there was no risk on return to the Appellant. The appeal was dismissed on all grounds.

Grounds of appeal
3. The grounds are threefold. First it is asserted that the Respondent had conceded that there was a risk on return if the Appellant was in fact gay. Second, it is said that a number of the credibility findings set out in paragraphs 27 to 33 were flawed. Third it is said that the judge had failed to apply HJ (Iran) properly.
4. Permission to appeal was granted by Designated First-tier Tribunal Judge Shaerf by a decision dated 19 January 2017.

The hearing before me
5. At the outset of the hearing I indicated my preliminary view to both representatives that the judge’s decision contained errors of law. Ms Asanovic and Mr Armstrong acknowledged this and Mr Armstrong did not seek to persuade me that no such errors existed.

Decision on error of law
6. I conclude there are several errors of law in the judge’s decision.
7. First, with respect to the judge I do not understand what is meant by the final sentence in paragraph 36 of the decision. There it is said:
“However the fact that the appellant has had sexual relations with two men does not automatically mean that he is gay, but it is highly likely that if that information was common knowledge, then the appellant would be considered to be gay”.
The test (if it can be described properly as a test) is not whether information of sexual relationships is a matter of common knowledge, but whether they represent a true reflection of the Appellant’s sexuality. It is true that deception can be relevant to an assessment of risk but it does not seem to me to be the context in which the judge was making this observation in paragraph 36.
8. Second, the first sentence of paragraph 38 asserts that the Appellant would not be at risk on return because his relationships have been in the United Kingdom and not in Bangladesh. Again, that is not the test to be applied in this case. It certainly does not represent a proper consideration of the HJ (Iran) principles. Notwithstanding the adverse findings on what had been said to have occurred in Bangladesh previously, the core issue was the Appellant’s sexuality, what he would or would not do upon return, and the reasons for his actions or, indeed, inactions. Similarly, where the judge has said that there was no reason why anyone in Bangladesh would know of his relationships in the United Kingdom, this is once again a failing to address the relevant issues in a case such as this.
9. Third, in assessing how the Appellant would wish to live if returned to Bangladesh, the judge has failed to have regard to paragraph 13 of the Appellant’s witness statement contained in the appeal bundle in which he clearly said that he had chosen to live an open and active gay life in the United Kingdom and that if returned to Bangladesh he would not be able to continue in this way and would have to keep his sexuality a secret in order to avoid being harmed by his family or, importantly, the police. There is a failure to address the important issue of not only how a person might live on return, but why.
10. Fourth, a failure to consider the relevant evidence is apparent once again in paragraph 39 where the judge concludes that the Appellant would live discreetly because of social pressure and for that reason alone. Within that same paragraph there appears to be a contradictory finding by the judge in stating that the Appellant could be perceived to be gay. This does not appear to sit well with what the judge’s finding in the preceding paragraph that the Appellant would not be known to be or suspected of being gay.
11. Taking all of the above into account and, with respect to the judge, the findings and conclusions are to my mind unclear and disclose a failure to apply the correct legal framework as set out in HJ (Iran).
12. The question then arises as to whether the errors are material or not. There has in this case been some dispute as to what was or was not conceded by the Respondent’s representative at the hearing before the judge. The Appellant’s representative before the First-tier Tribunal (not Ms Asanovic) had asserted that a concession was effectively made by the Presenting Officer and has provided a witness statement in support of that. There is nothing to this effect in the Record of Proceedings on my file (the issue of any discussion at the outset of the hearing is simply not noted at all) and there was no information held on Mr Armstrong’s file. It appears as though the judge herself had not been asked for any comments on this point.
13. If such a concession had been made then the judge has clearly erred in failing to follow it without putting the parties on notice at the hearing. If no such concession was made, in my view the judge has failed to deal adequately with the country information on the treatment of gay men in Bangladesh in the context of this particular case. It is right that the evidence on risk is not clear-cut in terms of the existence of a risk. However, there was before the First-tier Tribunal country information indicating that this could be the case. The lack of clarity in the judge’s findings on how this particular Appellant would wish to live his life if returned is relevant to an assessment of the country information and in the context of HJ (Iran). In my view taking all this into account the errors I have identified above are, on balance, material to the outcome of the appeal.
14. I therefore set aside the judge’s decision.

Disposal of this appeal
15. It was agreed by both representatives that if the agreed errors were material, the appeal should be remitted to the First-tier Tribunal. In my view this must be right given that the issue of credibility was and is a live one.
16. Ms Asanovic sought to persuade me that the particular findings in paragraph 36 (that the Appellant had had sexual relations with two men in the United Kingdom) should be preserved. She suggested that these could be properly seen in isolation from the adverse findings made by the judge in respect of matters pertaining to Bangladesh. She submitted that the judge had committed errors in respect of those adverse findings but that in any event they were not of particular significance.
17. Mr Armstrong suggested that the matter should be remitted and re-heard afresh with no preserved findings.
18. I conclude that no findings of fact should be preserved in this particular case. Whilst I can see Ms Asanovic’s point in seeking to preserve the particular finding in paragraph 36, it would in my view be artificial to pick this out whilst ignoring everything that went before it. There are a number of findings that are on the face of it adverse to the Appellant (all of which were open to the judge) and on remittal the judge is going to have to make an assessment of credibility not only in respect of past events but the situation on return. The Appellant would in some respects be put at a disadvantage at the remitted hearing if, despite the preservation of the limited findings at paragraph 36, all other adverse matters were to be preserved. The Appellant cannot cherry pick findings.
19. Taking the matter as a whole it is right that there should be a clean slate at the remitted hearing.

Notice of Decision
The First-tier Tribunal’s decision contains material errors of law.
I set aside the decision of the First-tier Tribunal.
I remit the appeal to the First-tier Tribunal.

Directions to the First-tier Tribunal
1. This appeal is remitted for a complete re-hearing with no preserved findings of fact.

Directions to the Parties
.1 Both parties shall comply with any further directions issued by the First-tier Tribunal.
.2 The Respondent shall no later than 21 working days before the next hearing serve on the Appellant and file with the First-tier Tribunal a written position statement addressing the issue of whether she accepts that gay men are at risk on return to Bangladesh.

Directions for Listing
1. The appeal is remitted to the Sheldon Court Hearing Centre.
2. The new hearing date for the remitted hearing shall be fixed by the Sheldon Court Hearing Centre.
3. There is a time estimate of three hours.
4. A Bengali (Sylheti dialect) interpreter is required for the remitted hearing.
5. The remitted hearing shall not be heard by First-tier Tribunal Judge Hawden-Beal.

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 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 Date: 8 March 2017
Deputy Upper Tribunal Judge Norton-Taylor