Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/12491/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29th March 2017
On 12th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE J G MACDONALD

Between

MS SMK
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mrs P Glass, Counsel instructed by Shan & Co
For the Respondent: Mr C Tarlow, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a citizen of Malawi whose appeal that she required international protection on asylum and human rights grounds was dismissed by First-tier Tribunal Judge Taylor in a decision promulgated on 11th January 2017. Grounds of application were lodged which noted that the Appellant had been found to have homosexual tendencies and was likely to be bisexual. The judge had failed to make a finding on the Appellant’s sexual orientation, had failed to determine which country the Appellant would be returned to, had erroneously made an adverse finding based on Section 8 factors in the late asylum claim first, had required corroborative evidence and had failed to give reasons. Furthermore the judge had not adequately assessed paragraph 276ADE(1)(vi) and had not properly carried out an Article 8 assessment outside of the Rules with no consideration given to Huang or the five stage Razgar test.
2. Permission to appeal was granted by First-tier Tribunal Judge Foudy. The Secretary of State lodged a Rule 24 notice. It was said that the judge had taken into account all the evidence before him and there was no requirement to take the evidence in any order. The judge had given a number of reasons for concluding that the Appellant had not established that she was a lesbian at risk on return. It was open to the judge to conclude that the Appellant would not be at real risk on return with regard to the background evidence notwithstanding the law in Zimbabwe or Malawi. The Appellant’s own evidence indicated that she chose to live a discreet lifestyle and did not share her sexuality with others.
3. Thus the matter came before me on the above date.
4. Before me Mrs Glass adopted her grounds. The judge needed to determine the sexuality of the Appellant. I was referred to HJ (Iran) and Others v SSHD [2010] UKSC 31 and in particular paragraph 131 of that decision where it was said that the mere fact that the Appellant had acted discreetly in the past and would do so in the future had been wrongly held to be determinative of the issues. I was also referred to Dudgeon v United Kingdom an ECHR case on human rights decided on 22nd October 1981 which the supported the Appellant’s claim that to return her to either country would be a breach of her fundamental rights under Article 8 ECHR. I was asked to find that the judge had erred in law, to set the decision aside and allow the Appellant’s appeal.
5. For the Home Office Mr Tarlow relied on the Rule 24 notice and referred to various findings of the judge which showed that the decision should stand. In particular, with reference to paragraph 33, the judge had looked at all the evidence and it was clear that the Appellant would not live openly as a gay person and would choose voluntarily to live discreetly in Zimbabwe as she had done in the UK. It was submitted that there was no error in law and the decision should be undisturbed.
Conclusions
6. One of the points taken against the First-tier Tribunal Judge (the judge) is that he should not have taken the Section 8 point against the Appellant first in that the judge should always look at all the evidence as a whole to decide which parts are more important than others. However the delay in claiming asylum in this case was very significant. The judge noted that she had overstayed her visa by more than thirteen years and did not claim asylum until April 2016, more than four months after she was apprehended and served with the appropriate papers (paragraph 27). There is no merit in this ground of appeal.
7. The grounds also say that the judge erred in requiring corroborative evidence. Contrary to the grounds, the judge did not say that in any way. Rather he said, correctly, that there were no witnesses to support the Appellant’s claim and that on the Appellant’s own evidence she preferred to be discreet and keep her sexuality to herself (paragraph 29). The judge found that it was significant that there was no evidence from her sister in South Africa who is said to be tolerant of her sexuality – paragraph 30. Again contrary to the grounds the judge was fully entitled to comment on what evidence had been produced (and not produced) by the Appellant.
8. In paragraph 32 the judge acknowledged that the Appellant may have homosexual tendencies and that she is also likely to be bisexual. A complaint in the grounds is that the judge should have gone further in his assessment on what was said at paragraph 32. However the judge did go on in the very next paragraph to take the Appellant’s claim at its highest. He had regard to the steps laid down in HJ (Iran). For the reasons he gave he was not satisfied that the Appellant would be treated as gay in her country of origin. He referred to the background material on both Malawi and Zimbabwe noting that whilst homosexuality was criminalised in both countries prosecutions and societal harassment in both countries was rare. The Appellant herself is a woman now aged 51 who said she had not been in a relationship for more than eight years and in any event her friends and family in this country did not know her sexuality and her children did not know it. As the judge noted HJ (Iran) required him to consider how the Appellant would behave on her return and on all the evidence before the judge it was clear that she would not live openly as a gay person and would thus chose voluntarily to live discreetly in Zimbabwe as she had done in the UK.
9. It is clear that the judge was deciding this case on the basis of the evidence presented by the Appellant. On that evidence the judge was entitled to find that she would not be liable to persecution because of her sexuality.
10. The grounds do not challenge the fact that the Appellant did not meet the requirements of paragraph 276ADE of the Rules. As such there was no requirement on the judge to carry out an Article 8 assessment outside the Rules or to consider the terms of Huang or the five stage Razgar test. The Article 8 case presented to the judge was very much linked to the Appellant’s claim that she would be persecuted if removed from the UK but the judge found, for clear reasons, she would not be. There is therefore no merit in the Article 8 claim.
11. There is therefore no error of law in the judge’s decision which must stand.

Notice of Decision

The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

I do not set aside the decision. Absent any submission from Mrs Glass I shall simply maintain the 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 her 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 Dated 10th April 2017

Deputy Upper Tribunal Judge J G Macdonald