Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/12609/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 March 2017
On 27 March 2017

Before

Upper Tribunal Judge Southern

Between

WAQAR KHAN
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A. Alam, counsel instructed by JS, solicitors.
For the Respondent: Mr T. Wilding, Senior Home Office Presenting Officer

DECISION

1. The appellant, who is a citizen of Pakistan, arrived in the United Kingdom in July 2011 and was admitted as a student with leave to remain until 9 December 2013. He overstayed that leave and next came to notice on 16 February 2014 when he was served with notice of liability to be removed. He then failed to report as required and was listed as an absconder. He was next encountered on 31 August 2016 and, having been detained for the purpose of removal, he claimed asylum on 5 September 2016.

2. The appellant’s asylum claim was founded upon an asserted risk on return on account of being a gay man. An asylum interview arranged for 3 October 2016 was abandoned when the appellant said he felt unwell. The interview was rescheduled for 18 October 2016 but, although the appellant had been medically assessed a few days earlier and considered to be fit for interview, he declined to proceed with the interview because again he said he felt unwell. The respondent made a written request of the appellant’s representatives that they provide a witness statement for the appellant within five working days but this they failed to do.

3. The respondent refused the appellant’s asylum and human rights claims by a decision made on 31 October 2016. The basis of the refusal was not simply non-compliance by the applicant. The respondent did not accept to be true the appellant’s claim to be a homosexual man and rejected also the appellant’s account of the difficulties he had claimed to have experienced on that account, including of having been attacked by villagers who had discovered his sexuality. The respondent noted that, having secured entry clearance as a student, the appellant did not leave Pakistan until a month later. This was not considered to be consistent with the appellant’s claimed need to flee Pakistan to save his life. Also, his leave to remain in the United Kingdom having expired in 2013, it was not until after he had been detained and removal directions given in August 2016 that he claimed asylum, even though he had been encountered in 2014 and 2015 and so then plainly had the opportunity to advance such a claim. The respondent considered that the appellant’s credibility had thereby been damaged. The respondent refused also the appellant’s claim that there would be an impermissible infringement of rights protected by article 8 of the ECHR if he were now removed from the United Kingdom.

4. The appeal against that refusal came before First-tier Tribunal Clarke on 5 December 2016. Having heard oral evidence from the appellant, and oral submissions from counsel on his behalf, the judge dismissed the appeal. In so doing, he did not accept to be true the appellant’s claim to be a gay man. The judge gave a number of reasons for reaching that conclusion, including the following. The evidence of the appellant was that he has had three homosexual relationships with men in the United Kingdom but the judge observed that there was no evidence from any of them in support of the appellant’s claim to be a gay man, which he knew was disputed by the respondent and was the issue at the heart of this appeal. The judge said:

“I take account of the fact that it may be difficult to ask an ex-partner to attend a Tribunal hearing, especially if the relationship ended on bad terms. When the appellant was asked why none of his ex-partners were in attendance, his evidence was that he had broken up with them so none could attend. He did not make the case that any of the break-ups had been acrimonious. In any event, it is improbable in my view that all three relationships ended so badly that none of the ex-partners were able to provide even a letter of support for the appellant. I also rely on the fact that the appellant had been unable to provide any photographs of himself with any one of his three ex-partners…”

The judge then observed that even if there was a reason why letters of support could not be secured from any of those three ex-partners, it was notable that there was no evidence, either oral or in the form of letters or witness statements, from friends and acquaintances in support of his claim to be homosexuality. The judge explained why he found this significant:

“In a letter dated 12th September 2016 from the appellant’s solicitors to the Home Office the assertion is made that the appellant has been living an openly gay life in the United Kingdom and has made a number of friends…”

5. The judge then considered the appellant’s evidence that he had entered into a new same sex relationship with his roommate while detained at Harmondsworth. But, again, there was no evidence at all from this person to support that claim. The judge observed that the appeal was being heard at Harmonsdworth, in the same complex as where the detention facility was located.

6. The judge went on to give a number of further reasons for rejecting the appellant’s claim to be a gay man. He had not left Pakistan until a month after being granted entry clearance to come to the United Kingdom. The judge identified chronological difficulties with the appellant’s account and noted that when this was pointed out the appellant had changed his evidence but in so doing sought to explain the change in his evidence for reasons that the judge found altogether lacking in credibility. The judge also found devoid of credibility the appellant’s evidence of discovering about homosexuality by buying a book on the subject from a local stall where, because homosexuality is unlawful in Pakistan, such books were kept secretly. The appellant said that he had not spoken to anyone at the stall but had found the book by looking through the books on display. The judge found lacking in credibility that the appellant would have been able to find a book kept secretly by looking through those on display because such books were not likely to be kept on display as they would not then be kept secretly. The appellant, who has said that he fled Pakistan because his parents had discovered his homosexuality, also gave contradictory and inconsistent evidence as to whether he remained in contact with his parents.

7. Further reasons still were identified by the judge for considering the appellant’s evidence to be untrue. The appellant said both that he had come to the United Kingdom to save his life and that his delay in claiming asylum was because he was unaware of the asylum process. Given that the appellant had been admitted as a student, had been living in the United Kingdom for 3 years when he was first encountered by those concerned with his unlawful presence here and that he was encountered again in 2015 but it was only when faced with the prospect of removal in 2016 that he claimed asylum, the judge simply did not accept that the appellant’s asserted ignorance of the possibility of making an asylum claim was true. In any event, in oral evidence the appellant said that he had found out about the process of claiming asylum from one of his partners two years earlier and so plainly was in a position then to make his claim, even if in doubt as to how to do so before then. After a meticulous examination of all the evidence, and for all these reasons the judge concluded, at paragraph 88 of his decision, that the appellant’s asserted sexuality had not been established.

8. Finally, the judge carried out a careful and detailed analysis of the appellant’s article 8 claim and explained why it could not succeed.

9. In seeking and being granted permission to appeal, the appellant advanced six grounds. Realistically, Mr Alam did not attempt to pursue the last three of those grounds but as they were not specifically abandoned I shall address each in turn.

10. The first ground complains that in holding against the appellant that none of his former partners attended the hearing the judge made findings adverse to the appellant on the basis of assumptions rather than facts and he should have enquired further into these matters. Developing that ground in his oral submissions, Mr Alam said that it was speculation on the part of the judge to conclude that it was improbable that the three relationships had ended on bad terms. I do not accept that submission. As the judge made clear, it was not the appellant’s evidence that any of those relationships ended acrimoniously. The judge accepted that there might be good reason why those three former partners could not attend in person but nothing was offered to explain why a letter of support or witness statement could not have been provided. In any event, this fell to be considered together with the absence of any other evidence from friends or acquaintances of the appellant, who was said by his lawyers to be living an openly gay life style, to confirm that which the appellant and his legal advisors knew was in dispute and the issue determinative of the outcome of the appeal. This was not speculation on the part of the judge but a reasonable and logical finding drawn from the facts that he had carefully examined.

11. The second ground asserts that in finding absent any credible evidence that the appellant had lived the openly gay lifestyle asserted, the judge fell into legal error by failing to give significant weight to a letter dated 12 September 2016 said to support that claim. But the judge has addressed this matter directly at paragraph 71 of his decision. The letter of 12 September was one written by the appellant’s solicitors to the respondent and is no more than a restatement of the appellant’s claim to be living an openly gay lifestyle with nothing offered in support.

12. A second aspect of the second ground is the complaint that the judge was wrong to draw the inferences he did from the fact that the appellant’s roommate from Harmondsworth had not attended to provide evidence in support of the appellant’s claim to have entered into a relationship with him. The grounds state that the appellant was unaware that he could call this person as a witness at his appeal. This ground is little short of fanciful. The appellant has been represented by solicitors throughout, and was represented by counsel before the First-tier Tribunal. His roommate was detained, as was the appellant, in a detention facility very close to the hearing room and even if it were not possible for this person to be produced as a witness without prior notice having been given, it is notable that there was no application for an adjournment for this to be arranged. Further, there was no witness statement or letter of support from him and, if the appellant truly believed that he would not, for some reason, be allowed to call this important witness to give oral evidence in support of his appeal, there was nothing to prevent him asking this person, with whom he was sharing a room, to provide a letter of support which the appellant could bring with him to the hearing.

13. In his oral submissions, Mr Alam, who did not appeal before the First-tier Tribunal, said that his instructions were that there was in fact written evidence from the roommate put before the judge. He produced a hand-written document that had been sent by fax to the respondent upon which is one paragraph in manuscript written by the appellant and a second written by the roommate both confirming the existence of a relationship between them. But this document bears just one date, that being a fax transmission stamp demonstrating that it was sent to the respondent just after 7 pm on 5 December 2016, which was the day of the First-tier Tribunal hearing. This it was sent to the respondent several hours after the hearing for reasons that go wholly unexplained. There was no copy of that document on the Tribunal’s file as it was before the First-tier Tribunal judge and no reason to suppose it had been put before the judge.

14. However, there is a handwritten document on the Tribunal’s file which contains the handwritten paragraph attributable to the appellant, as it appeared on the document discussed above, but not that written by the roommate. It appears from this that the document handed into the judge was the written assertion by the appellant that such a relationship had been formed and the document with the paragraph written by the room mate was sent only after the hearing and only to the respondent and so the judge was plainly correct to say that there was no evidence from any of the appellant’s partners put before him.

15. The third ground is that the judge has provided inadequate reasoning to support his rejection of the appellant’s evidence of the circumstances in which the appellant obtained the book on homosexuality from the stall in Pakistan. This ground asserts that the judge “failed to give a sufficient explanation of why books on homosexuality would not secretly be open to the public”. That, however, is to misrepresent what the judge is saying. He does not find incredible the suggestion that a bookseller in Pakistan might, as the appellant said, hold secretly books on a forbidden subject. What the judge found incredible and untrue was the appellant’s account of not having spoken to anybody at the stall for fear of bringing on to himself difficulties but simply coming across the book on homosexuality, which he said was kept secretly, when looking through books on display.

16. As Mr Wilding has pointed out, the judge has carried out a careful and comprehensive examination of all of the evidence and has given very clear reasons for each of his findings of fact. He was entitled to find that the appellant was not a witness of truth and his rejection of his account of acquiring a book on homosexuality in the circumstances described was entirely reasonable rational and sufficiently reasoned.

17. As I have said above, Mr Alam did not seek to pursue the remaining three grounds and so I can deal with them briefly.

18. The fourth ground alleges that in rejecting the appellant’s factual account the judge “misdirected himself and failed to consider relevant evidence”. However this ground makes no attempt to identify the manner in which the judge is said to have misdirected himself nor the evidence he is said not to have considered. That ground leads nowhere at all.

19. The fifth ground complains that the judge was wrong to find that the appellant’s credibility was damaged by his delay in claiming asylum because he failed to consider that the appellant said he was unaware that he could claim asylum until two years earlier and that “he is a layman and not a legal professional”. That also is wholly unarguable. One does not need to be a legal professional to be aware that there is in the United Kingdom a process to enable claims for asylum to be made and even if, which by any view is exceedingly unlikely, the appellant was unaware that he could claim asylum until two years before he did, that does not explain the delay of those two years. In this case, the judge was plainly correct to consider the appellant’s credibility to be damaged for this reason but it is unambiguously clear that this was not remotely determinative of the question of the appellant’s credibility and I have no doubt at all that the outcome would have been the same had the judge not taken into account the appellant’s delay in making his asylum claim.

20. The sixth and final ground is that the judge fell into legal error in failing to recognise that the threshold of engagement for the purposes of the appellant’s claim under article 8 of the ECHR was not a high one. But the judge has done precisely that which he is accused of not doing. At paragraph 111 of his decision, the judge directed himself in terms of AG (Eritrea) v SSHD [2007] EWCA Civ 801, reminding himself that the threshold of engagement “is not a specially high one” and then went on to say, specifically that:

“Given that the threshold to engage article 8 is a low threshold, I find that the article 8(1) rights of the appellant are engaged”

although, for the reasons then given, not infringed. Therefore, this ground also is simply unarguable. This was an altogether hopeless article 8 claim that had no prospect whatever of succeeding.

Summary of decision:

21. The Judge of the First-tier Tribunal made no material error of law and the decision of the judge to dismiss the appeal shall stand

22. The appeal to the Upper Tribunal is dismissed.

Signed

Upper Tribunal Judge Southern

Date: 22 March 2017