Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/12176/2016

THE IMMIGRATION ACTS

Heard at Newport
Decision & Reasons Promulgated
On 4 October 2017
On 30 October 2017

Before

UPPER TRIBUNAL JUDGE GRUBB
DR H H STOREY, JUDGE OF THE UPPER TRIBUNAL

Between

Secretary of State for the Home Department
Appellant
and

b s
(ANONYMITY DIRECTION made)
Respondent

Representation:

For the Appellant: Mr Richards, Home Office Presenting Officer
For the Respondent: Ms Bayomi, instructed by Qualified Legal Solicitors

DECISION AND REASONS

1. The respondent (hereinafter "the claimant") is a national of India. In a decision sent on 5 July 2017 we (Upper Tribunal Judges Grubb and Storey) set aside the decision of First-tier Tribunal Judge Kimnell for material error of law. Judge Kimnell had allowed the appellant's appeal. One of the reasons we gave for our decision was that the judge had failed to give "cogent reasons" for departing from the Country Guidance decision in MD (same-sex oriented males: risk) India CG [2014] UKUT 00065 (IAC). We also stated that we saw considerable merit in the Presenting Officer's (Mr Kotas's) submission that the conclusions of the country expert relied on by the claimant, Dr Osella, appeared to be sweeping generalisations that were not set in the context of the CG decision in MD. We relisted the hearing to re-make the decision, namely whether the claimant had established that he is at real risk of persecution as a gay man returning from India.

2. We heard submissions from Ms Bayoumi who contended that since the decision of the UT in MD matters had moved on. She pointed out that although Dr Osella did not address the case of MD, the expert had been shown the Home Office refusal decision, which had relied on MD. Dr Osella identified the existence of a clear culture of violence directed against gays in India and a continuing possibility of arrest. Whether or not Section 377 of the Indian Penal Code (IPC) remained on the statute book, LGBTI individuals faced serious harm against which there was ineffective state protection and there would not be a viable option of internal relocation. Dr Osella's report reflected the findings of the Canadian IRB report of December 2015 (post-dating MD) which noted that gays were stigmatised and there had been violent incidents directed against gays. Prosecutions were rare but the law was used to intimidate and harass and blackmail gays. It was difficult to report partner assault. Thus there had been developments since MD.

3. Mr Richards submitted that the evidence relied upon by the claimant did not represent evidence sufficiently cogent to justify departure from the guidance in MD.

4. Mr Richards said that Dr Osella's report did contain sweeping generalisation and unsourced assertions. The Country Information and Policy report on India: Sexual orientation and gender identity, Version 2.0, February 2017 in Section 377 confirmed that prosecutions brought against gays are extremely rare; whilst there are arrests, a significant proportion of those concerned men seeking sexual relations with children.

Our assessment

5. We are not persuaded that there is a sufficient evidential basis for departing from MD. Indeed it seems to us that the basic findings of MD have been strengthened by the more recent evidence contained in the aforementioned Country Policy and Information report. Given that Ms Bayoumi places particular emphasis on the fact that there continue to be arrests of gay men by police authorities enforcing Section 377 IPC, it is pertinent to cite what the aforementioned Note states at paragraph 4.3:

"4.3 Enforcement and consequences of Section 377 IPC

4.3.1 The Supreme Court of India noted in its judgment of 11 December 2013 that fewer than 200 people had been prosecuted under Section 377 IPC since it came into force 150 years ago. A minority of those cases involved consenting adults.

4.3.2 According to various reports cited by the Immigration and Refugee Board of Canada, the threat of being charged under section 377 is sometimes used by police to harass and discriminate against LGBT people in public spaces.

4.3.3 The Times of India reported on 29 September 2016 that, according to the National Crimes Record Bureau, police in various states and Union Territories registered 1,347 cases and arrested 1,491 people under section 377 during 2015, including 207 minors and 16 women. In 2014, 1,148 cases were registered. The article noted, 'Though the figures do not give a [break-down] of the gender of the victims, it mentions that in 814 cases, the crimes were committed against children. The remaining crimes were committed against adults, but the report does not specify whether the acts were consensual.

4.3.4 The organisation Erasing 76 Crimes commented in October 2016, 'Some observers believe that the vast majority of arrests under India's Section 377 have been for sexual assault of minors, especially boys.'

4.3.5 The National Crime Records Bureau recorded the following data:

'2015 (Source: Crime in India 2015 Statistics)

1,347 cases were registered (reported by the police) in 2015 under Section 377 IPC (table 1.3); charge-sheets were submitted in 1,006 cases (tab.4.1); 1,491 persons were arrested (tab.12.1), of whom 177 were children and 16 were women. Transgender persons were not counted separately (tab.12.2). Trials were completed in 378 cases, resulting in 175 convictions, 203 were acquitted or discharged (tab.4.5). In 814 of the 1,347 cases registered, the victims were children (tab.6.3) At the end of the year 2015, 199 persons were in custody while their cases were being investigated; a further 480 were in custody pending trial; a total of 1,841 persons were on bail (tabs. 12.3-12.4).

2014 (Source: Crime in India 2014 Statistics)

1,148 cases were registered in 2014 under Section 377 IPC (table 1.3); 113 cases for investigation were carried over from 2013 (tab 4.1); charge-sheets were submitted in 879 cases (tab.4.1); 1,279 persons were arrested in 2014 (tab.12.1), of whom 207 were children and 14 were women. Transgender persons were not counted separately (tab.12.2). Trials were completed in 233 cases, resulting in 100 convictions, 133 were acquitted or discharged (tab.4.5). In 765 of the 1,148 cases registered, the victims were children (tab.6.2).'

4.3.6 The National Crime Records Bureau, in recording arrests and convictions under section 377, did not differentiate between consensual or non-consensual sexual relations.

4.3.7 CPIT has not found evidence in other reports or articles that any persons have been tried and convicted under section 377 since December 2013 in cases involving sexual relations between consenting adults.

4.3.8 The Pink News, in February 2015, quoted the chairman of India's Law Commission as stating:

'Section 377 is discriminatory in its application, unreasonable in its intent, deprives a group of its personal autonomy and violates individual privacy and human dignity ... Consequences of the laws in our country on gay sex include damage to the psychological well-being of homosexuals, encouragement of violence and facilitation of police harassment and discrimination against the LGBT community.'"

6. This Note provides compelling reasons for not attaching significant weight to the figures for arrests relied on by Ms Bayoumi since it is stated that on analysis of the 2014 cases registered under Section 377 IPC, in 765 of the 1,148 cases registered the victims were children (see 4.35 above) and it also appears unsafe to rely fully on the remaining cases as evidence of persecutory prosecution since the National Crime Records Bureau, in recording arrests and convictions under Section 377 did not differentiate between "consensual or non-consensual sexual relations" (see 4.3.6 above).

6. To the extent that Ms Bayoumi seeks to rely on Dr Osella's report, we do not consider that it is a report to which we can attach significant weight. A great many of the report's assertions are unsourced. Further, the author does not appear, in reaching his own evaluation of risks facing gay men in India, to take into account their scale and frequency. For example the (unsourced) reference to two murders on p. 44 is not considered against the backings of the size of the population of India.

7. Put simply, even taking the figures relied on by Dr Osella regarding the number of arrests and incidents of physical harm against gays in India, they do not constitute evidence of sufficient cogency to justify reaching a different conclusion as to general risk to gay men in India from that reached in MD.

8. The claimant's case is not based solely on the existence of general risk to gay men in India. Before Judge Kimnell he gave evidence that his parents are totally against gay men and they had tried beating and bullying him into marrying and that they will not support him in any way if he lives as a gay man. The judge also accepted that he had already made three suicide attempts because of his family's bullying. A report from Professor Graham, also accepted by Judge Kimnell, found he had scars and lesions on his body as a direct result of an assault as described by the claimant and that he had borderline anxiety and suicidal ideation.

9. In our assessment there are no good reasons to consider that the claimant will face a repetition of the mistreatment he suffered at the hand of his family because he will be able to avoid that by living elsewhere in India. His borderline anxiety and suicidal ideation are not sufficiently severe to prevent him from living a normal life in India as a gay man. Whilst he may face some level of societal discrimination, we do not find on the available evidence that it would reach the level of persecution or serious harm or ill treatment. Nor do we consider (even if relocation within his own city did not achieve safety and the ability to live normally) that it would be unsafe or unreasonable for him to relocate within India.

10. For the above reasons, the decision we re-make is to dismiss the claimant's appeal, as he has not established that he would be at risk merely by virtue of being a gay man on return to India.

In summary

11. We have already found that the FtT judge materially erred in law.

12. The decision we re-make is to dismiss the claimant's appeal.

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: 27 October 2017

Dr H H Storey
Judge of the Upper Tribunal

TO THE RESPONDENT
FEE AWARD

We have dismissed the appeal and therefore there can be no fee award.

Signed Date 27 October 2017

Dr H H Storey
Judge of the Upper Tribunal