Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2022-004417
UI-2022-000885

First-tier Tribunal No: PA/00310/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 22 August 2023

Before

UPPER TRIBUNAL JUDGE McWILLIAM
UPPER TRIBUNAL JUDGE STEPHEN SMITH

Between

M Z
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr T Emezie, Solicitor Advocate instructed by Dylan Conrad Kreolle Solicitors
For the Respondent: Mr T Terrell, Senior Presenting Officer

Heard at Field House on 16 May 2023

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. The Appellant is a citizen of South Africa. His date of birth is 20 September 1988.
2. The Appellant applied for asylum on the basis that is at fear of persecution on return to South Africa as a result of his sexuality. The SSHD refused his application on 18 January 2021. The Appellant appealed against this decision. The First-tier Tribunal (Judge Atkinson) dismissed his appeal.
3. We have anonymised the Appellant with reference to Guidance Note 2022 No 2: Anonymity Orders and Hearings in Private. The Appellant is an asylum seeker. His claim is based on his sexuality. We have weighed the competing interests of the Appellant and the need for open justice. We find in favour of anonymising the Appellant in this case.
4. The Appellant sought permission to appeal. This was refused by the First-tier Tribunal. The Appellant made an application to the Upper Tribunal for permission to appeal. The application came before Upper Tribunal Judge Norton-Taylor. He granted permission in a decision dated 6 May 2022. That decision was sent to the parties on 8 February 2023.
5. In the intervening period, the permission application was put before Upper Tribunal Judge Macleman. In a decision dated 7 November 2022, he refused permission to appeal. That decision was issued to the parties on 24 November 2022.
6. Up until 16 May 2023, the parties prepared for the hearing on the basis of the decision of Upper Tribunal Judge Norton -Taylor. It was not clear from the papers before us that the parties were aware of the decision of Judge Macleman. The day before the hearing we sent a direction to the parties attaching Judge Macleman’s decision and indicating that we would need to engage with the this as a preliminary issue.
Preliminary Issue
7. Both parties were agreed that the material decision was that of Judge Norton-Taylor granting permission. Mr Emezie submitted that the decision of Judge Macleman was “null and void” and Mr Terrell stated that the decision of Judge Macleman should be set aside pursuant to Rule 43 of the Procedure Rules.
Rule 43 of the Procedure Rules
8. “Setting aside a decision which disposes of proceedings
43.— (1) The Upper Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision or the relevant part of it, if—
(a) the Upper Tribunal considers that it is in the interests of justice to do so; and
(b) one or more of the conditions in paragraph (2) are satisfied.
(2) The conditions are—
(a) a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party’s representative;
(b) a document relating to the proceedings was not sent to the Upper Tribunal at an appropriate time;
(c) a party, or a party’s representative, was not present at a hearing related to the proceedings; or
(d) there has been some other procedural irregularity in the proceedings.
(3) Except where paragraph (4) applies, a party applying for a decision, or part of a decision, to be set aside under paragraph (1) must make a written application to the Upper Tribunal so that it is received no later than 1 month after the date on which the Upper Tribunal sent notice of the decision to the party.
(4) In an asylum case or an immigration case, the written application referred to in paragraph (3) must be sent or delivered so that it is received by the Upper Tribunal—
(a) where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application is made, no later than twelve days after the date on which the Upper Tribunal or, as the case may be in an asylum case, the Secretary of State for the Home Department, sent notice of the decision to the party making the application; or
(b) where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application is made, no later than thirty eight days after the date on which the Upper Tribunal sent notice of the decision to the party making the application.
(5) Where a notice of decision is sent electronically or delivered personally, the time limits in paragraph (4) are ten working days.”
9. We agreed with the parties that the decision of Judge Norton-Taylor granting permission is the operative decision. We find that Judge Macleman had no jurisdiction to determine the permission application. Of course, he was unaware of the decision of Judge Norton- Taylor. A procedural irregularity arising from an administrative error by the Upper Tribunal lead to the application being allocated to him to determine. We set aside the decision of Judge Macleman pursuant to Rule 43 on the basis that it is in the interests of justice to do so (Rule 43 (1) (a)) and finding that condition in Rule 43 (1) (d) is met. We approach Judge Macleman’s decision on the basis that it was a decision that purported to finally determine the proceedings, and therefore is within the scope of rule 43. Lest there be any doubt as to whether rule 43(1) is capable of being engaged in these circumstances, we consider that section 25(2)(c) of the Tribunals, Courts and Enforcement Act 2007 would permit the decision to be set aside in any event, pursuant to R (oao Singh) v Secretary of State for the Home Department [2019] EWCA Civ 1014.
The Decision of the First-tier Tribunal
10. The Appellant was not represented before the First-tier Tribunal. The judge stated the following:-
“7. The appeal proceeded by way of video hearing due to the circumstances surrounding the covid 19 pandemic. The appellant was unable to establish a sustainable video link. The clerk to the tribunal made arrangements for the appellant to join the hearing by telephone. The appellant was content to proceed with the hearing in this manner. I was satisfied that the appellant was able to effectively participate in the hearing. I was satisfied that I could determine the appeal fairly and justly and note that no submissions to the contrary were made.
8. At the outset of the hearing I noted that the appellant was not represented. I indicated to the appellant that, in the absence of a representative, I considered myself to be under a duty to take steps to enable the appellant to put forward his case. In so doing I followed the guidelines in the case of Surendran. The appellant confirmed that he was content to proceed without representation on this basis and I was satisfied that it was fair and just to do so.”
11. The judge proceeded to hear oral evidence from the Appellant in English by telephone. The Appellant adopted as his evidence-in-chief his asylum interview record (AIR) dated 29 January 2018. The Appellant, a litigant in person, had not submitted a witness statement.
12. The judge summarised the Appellant’s evidence at [14] – [17] of the decision. In brief, the Appellant’s evidence was in that he is a member of the Zulu tribe and was born in Johannesburg. He realised he was gay at the age of 14. He did not talk to anybody about this because “being gay was against his culture”. He has had three relationships with men, the first relationship was when he was aged 19. Since 2017 he has been in a relationship with MM. Photographs of him and MM having sex were sent to the Appellant’s mother who has as a result disowned him. MM’s family are searching for the Appellant and MM. They have received death threats.
13. The judge considered the background evidence relating to members of the LGBT community in South Africa at paragraphs [18] – [22] of the decision.
14. The judge heard submissions from the Home Office Presenting Officer and the Appellant. The Presenting Officer relied on the RFRL. He submitted that the Appellant’s account of his sexuality was vague, and that limited weight should be attached to the news article that the Appellant submitted to support that his family were seeking him. The SSHD’s case was that even if the Appellant is gay, he would not be at risk on return to South Africa. The judge recorded the Appellant’s submissions at [26] - [27] of the decision.
15. Under the heading “Findings of Fact and Credibility” the judge stated as follows:
“28. I find that there are a number of features of the appellant’s evidence which tend to undermine the credibility of his account of his sexual orientation. I find that the appellant’s account in a number of respects is inconsistent and lacking in the sort of detail which could reasonably be expected to be put forward, as explained further below.
29. At interview with the respondent, the appellant was asked about how he came to realise his sexual identity and how he felt about such matters. In response, the appellant gave limited information, with limited detail and, on further questioning, was unable to elaborate. He said that he was born like that and had a loving feeling towards men. He also said that he had realised at the age of 14 that he was gay and that he felt happy about it.
30. I find that there are a number of aspects of these responses that tend to undermine the credibility of his account. First, it is reasonable to expect that an individual would be able to provide a significant amount of detailed information about their personal development and sexual orientation to a much greater extent than the appellant has put forward.
31. Second, not only are the appellant’s responses unreasonably vague, but they also give rise to a degree of inconsistency with other aspects of the appellant’s account. Thus, the appellant’s account of feeling happy, without further explanation, about his sexual orientation and acceptance of being gay is inconsistent with his account of the extent of his claimed awareness of cultural and societal disapproval of homosexuality. Given that it is a core aspect of the appellant’s case that his tribe and family members persecute gay men, I find that the appellant has failed to put forward a reasonable explanation of his feeling of being happy, within that social context he describes as giving rise to a risk of persecution.
32. Further, I find the appellant’s account of being happy with his sexual orientation to be inconsistent with his account of not talking to others about his orientation. The appellant has failed to put forward an explanation as to how he was able to reconcile his feelings of being gay with the lack of opportunity to speak to others about a core aspect of his identity. Similarly, the appellant’s account of losing a friend because the friend suspected that the appellant was gay, is not consistent with his claimed feelings of feeling happy.
33. Third, the appellant’s chronological account of his realisation of being gay is also inconsistent. Thus, the appellant, initially at his interview, claimed that he realised he was gay when he was aged 14. However, in response to questions put to him later in the interview, he said that he had undertaken research through the Internet when he was aged 18, and that it was after this research that he came to the conclusion about his sexual orientation. In subsequent questioning, the appellant sought to explain this inconsistency and said that he had realised that he was gay aged 14 but did not become experienced until he was aged 19. I do not find that to be a satisfactory explanation. That is because his original answers about his realisation at age 14 were in response to straight forward questions and the appellant made no mention, at that stage of his undertaking research on the Internet.
34. I also find that there are other aspects of the appellant’s account that are vague and inconsistent. For example, the appellant, in a document headed further evidence to support the grounds of appeal, stated that he had received death threats from his family. The appellant also claimed that the only contact that he had had with his family, after the sending of the intimate photographs, was on the day after they were sent, when he spoke to his mother by telephone.
35. In light of the above, the appellant, in oral evidence, was asked if there were any particular individuals he feared, if he were to return to South Africa. In response, the appellant said that he feared his family and tribe as a whole because of their cultural intolerance for homosexuality. In oral evidence the appellant was given a number of opportunities to provide further information about specific individuals, but was unable to do so. Ultimately, in response to questioning, the appellant said that his family did not threaten him directly. I find this aspect of the appellant’s evidence, about being subject to threats, to be both inconsistent and vague to a degree that tends to undermine the credibility of his account of having a well-founded fear of persecution.”
16. The judge went on to attach limited weight to the Appellant’s evidence that he was in a relationship with MM, bearing in mind there was no direct evidence from MM. The judge attached limited weight to media articles relied on by the Appellant because he found them to be of a general nature about homophobic incidents in South Africa. He attached limited weight to screenshots of media publications that the Appellant submitted supporting that he and MM are subject to missing persons enquiries. The judge found that the provenance of those documents was unclear and the content not reliable and, in any event, the judge found that any family may make a missing person’s enquiry if they had not had contact with a relative for some time irrespective of their sexuality.
The Grounds of Appeal
17. The first ground is that the judge did not apply HJ (Iran) v SSHD [2010] UKSC 31. The second ground is that the decision is “inadequate and erroneous in law.”
The Rule 24 Response
18. Mr Terrell relied on the SSHD’s response under Rule 24 of The Tribunal Procedure (Upper Tribunal) Rules 2008. In relation to ground one, the SSHD’s position is that the failure of the judge to cite HJ (Iran) does not give rise to a material error. In any event, the judge did not accept the Appellant’s sexuality. The Appellant failed at the first stage of the HJ (Iran) test.
19. In relation to ground 2, it was submitted that the findings were open to the judge. The SSHD relied on the AIR on which the judge relied. While the SSHD was concerned that some of the judge’s analysis could be characterised as “plausibility considerations” this does not apply to most of it. The point made by the judge is that the Appellant’s account lacked sufficient of detail and was not internally consistent. Sufficiency of detail and consistency are largely distinct from plausibility. The SSHD’s guidance, which makes that distinction has been found to provide a helpful framework within which to conduct a credibility assessment (see KB and AH (credibility – structured approach: Pakistan) [2017] UKUT 491. The judge found that the Appellant had provided insufficient detail and that his evidence had been internally inconsistent. In respect of the Appellant feeling happy, the SSHD’s submission was that the point that the judge was making was that many of the answers given by the Appellant during his interview as to the development of his sexual orientation were lacking in detail.
Submissions
20. Mr Emezie made lengthy oral submissions which we will try to summarise. At the start of his submissions, he said that the Appellant had been told that his hearing would be via video link. However, the judge persuaded him to accept a telephone hearing. The judge did not advise him of the “advantages and disadvantages of a telephone hearing.” Mr Emezie submitted that demeanour of a witness is an important and essential element when considering credibility.
21. Mr Emezie submitted that the judge failed to consider that the Appellant may have been gay at some point in the past or that he may be perceived as gay on return. He stated that these were Robinson obvious points.
22. In respect of ground two, Mr Emezie submitted that the judge was wrong to rely on the AIR. He should have exercised caution when considering the unrepresented Appellant’s evidence. The Appellant was unable to articulate his claim properly and he was not assisted by the judge. The judge was obliged to do more to help him than he did. The judge did not try to clarify issues and just proceeded to kick holes in the asylum interview. His findings are speculative. He submitted that the findings are irrational and the judge’s basis for rejecting the claim is unsound.
23. Mr Terrell took issue with Mr Emezie raising issues at the hearing which had not been raised in the grounds of appeal in an attempt to ambush the SSHD. Fairness was not an issue raised. In relation to the assessment of demeanour Mr Terrell relied on SS (Sri Lanka) EWCA [2018] 1391 Civ. Moreover, the Appellant’s case was not presented on the basis that he would be perceived as gay on return to South Africa. None of the issues raised by the Appellant are Robinson obvious (R v SSHD ex parte Robinson) [1997] 3 WLR 1162.
24. Mr Terrell stated that SSHD does not understand the judge’s decision to be based on inherent likelihood. Rather, it is based on a lack of detail. While making oral submissions Mr Terrell, pragmatically in our view, acknowledged our concern about aspects of the judge’s decision particularly at [30] and [31]. However, he maintained the position that the Appellant’s account was lacking in detail. The judge was concerned about the tension in the Appellant’s account specifically at [31]. He said that the findings at [32] and [33] are straightforward credibility findings.
25. In response Mr Emezie said that whilst “demeanour was not overriding” it is a factor to be considered. He said that the decision should be sufficiently clear to be understood in the same way by all readers.
Assessing Sexuality
26. There is some guidance to be found in the Asylum Policy Instruction: Sexual Orientation in Asylum Claims Version 6.0 of 3 August 2016. It is, however, guidance specifically to case workers. The document comprises 41 pages. We make no findings about the guidance which the parties did not refer us to. However, we summarise the following points made therein which we find could be helpful to a decision maker when assessing credibility in the context of sexuality.
i. Sexual orientation is a concept that creates space for an individual to explore and determine their self-identification. Its expression can range along a continuum that includes exclusive and non-exclusive attraction to the same or the opposite sex.
ii. For most people there is little or no sense of choice about their sexual orientation.
iii. While for most people sexual orientation is determined at an early age, for others they may continue to evolve across a person’s lifetime. Different people realize at different points in their lives that they are LGB. In many cases, an LGB person’s first awareness of their developing sexual orientation may be a perception of feeling ‘different’ from other peer members of their community.
iv. Such perceptions of difference need not necessarily relate to feelings around sexuality, they may well pre-date sexual awakenings and begin in childhood.
v. Conversely, feelings of being different may arise from the attitudes and behaviour of others towards the claimant, there could be situations where the individual is perceived by those around him as being different and which results in hostility and stigmatising behaviour by those people.
vi. A wide variety of indicators may be presented in narratives by claimants, which may suggest a sense of being different or ‘apart from’. Such indicators may include childhood behaviours indicating strong identification with the opposite gender, while for others experiences of difference may be manifested in unusual feelings and strong emotions towards another person of the same sex.
vii. Indicators of being gay may be:
a. recognition that the claimant is not like other girls/boys in childhood or adolescence
b. feelings of isolation self-doubt and loneliness
c. gradual recognition of sexual and emotional attraction to members of the same sex or feelings of not wanting to be exposed to others.
viii. Where any such issues are raised during interview, they should be explored in order to identify material facts and relevant circumstances. Not every LGB person will have experience of, or be able to communicate, any sense of being different. Caseworkers must be mindful that a narrative, from which the idea of difference is absent, should not imply that the claimant is being untruthful in presenting their claim.
ix. For some the process of understanding and accepting their sexual orientation may not have been accompanied by life changing ‘turning points’ or experiences which can be helpful in providing narrative to present their case at interview.
x. Caseworkers should not expect narratives to contain evidence of any such turning points or milestones such as first romantic encounters, declarations of feelings to others or the joining of LGB organisations. Conversely where a narrative does express the idea of difference, caseworkers must have no expectations of any ‘common’ themes to be presented.
xi. The development of an individual’s sexual orientation will be different for each person and caseworkers must recognise that any feelings of being ‘different’ will vary from person to person and for many, any recognition of being different may only have begun in adulthood. Caseworkers should also be mindful that it can often be the case that in societies where sex and sexuality is a taboo or where genders are separated from each other in many spheres of life, it may take longer for LGB individuals to realise any idea of difference than societies where there is more sexual freedom and where genders are in continuous contact with each other.
xii. Where a narrative indicating difference is presented, caseworkers should never assume that it will or should be accompanied by evidence of discomfort or evidence indicating a desire not to conform to the society’s normal gendered expectations of activities and roles. For example, many gay men, as boys, may have been perfectly happy to play stereotypical male games such as football and many lesbians may have been happy to have married and become mothers. Caseworkers should not however assume at interview, that the claimant will have experienced the idea of ‘difference’ and must never ask a direct and leading question, such as ‘when did you realise you were different’? Questions that explore ‘difference’ should focus on what realising their sexual identity meant to the individual concerned and use the non-pejorative (having an unpleasant of disparaging connotation) terminology with which the claimant has indicated they are comfortable with.
xiii. A detailed account of someone’s experiences in relation to the development and realisation of their sexual orientation can help to establish their credibility by establishing how and when they realised that they were of that orientation. It is therefore important to establish the range of life experiences that may have informed or affected an individual’s sexual orientation or how they are perceived. The focus of any such enquiry must not be on sexual activity.
xiv. In establishing the individual’s sexual orientation and determining whether protection is needed, it is reasonable to expect that the level and nature of the information provided by the claimant should demonstrate personal experience and knowledge, allowing for any underlying factors. Vague and limited statements will not generally meet reasonable expectations of sufficiency of detail or personal experience.
xv. Consideration of the claim should first focus upon whether the account itself is credible. This means considering whether the account is sufficiently detailed. Levels of detail and specificity are not only about requiring the claimant to provide objectively known facts and minutiae. They are also about establishing, for example, what has motivated the individual into realising their sexual orientation, which they may not previously or openly have been able to acknowledge in their country of origin.
27. The Equal Treatment Bench Book (ETBB) is a valuable source of guidance to a judge determining sexuality. Chapter 10 deals specifically with LGBT people claiming asylum. We summarise the salient points in so far as it relates to the assessment of credibility:
i. A report by the Independent Chief Inspector of Borders and Immigration in 2014, 29 expressed concern that a proportion of detention interviews revealed underlying stereotyping. It cautioned against applying misleading stereotypes as to appearance or way of life, e.g.: Assuming that gay men will dress flamboyantly or in a feminine manner, assuming that a LGB person would attend gay bars or rallies, or would ‘reach out’ to others in the LGB community. Such assumptions might impact on those coming to terms with their sexuality or those who had decided not to express it openly in the UK e.g. for religious reasons or those who had no inclination to attend bars or participate in large organised events.
ii. Other, often culturally loaded, misconceptions might be that someone cannot be LGB because: they keep in touch with their grandchildren, they do not have any anxiety or inner conflict about being gay, they do not experience a sophisticated internal conflict with their religious. Beliefs, they have not had short-term relationships, they cannot describe their emotional journey to realising their identity. Ability to identify these milestones is a very Western concept. LGB people from countries which repress expression of different forms of sexual orientation, or which have a collective social orientation, are unlikely to have seen matters that way.
iii. People are different. Like their heterosexual counterparts, not every LGB person likes socialising, pubs, dating apps, social media etc. Some will be introverted and shy and may struggle to make friends and/or meet partners. There will be differences between LGB women and men, those who are transgender or nonbinary, and those who are of differing cultures and religions.
iv. It is important for judges not to make stereotypical assumptions or receive evidence which may be similarly tainted. Like any other type of person, some LGB people may conform to stereotypes and others may not, and may well find such stereotypes offensive. Some people are very private, some are not. It is important to treat every person individually.
28. We draw the following conclusions:-
a. The Equal Treatment Bench Book (ETBB) is a valuable source of guidance to a judge determining sexuality.
b. It is unreasonable for a judge to assume that all gay appellants would be able to give evidence in significant detail about their personal journey to realisation of sexual identity.
c. It is unreasonable for a judge to assume that that a gay appellant would not accept his sexuality because of societal disapproval.
d. It can often be the case that in societies where sex and sexuality is a taboo or where genders are separated from each other in many spheres of life, it may take longer for individuals to realise any idea of difference than in societies where there is more sexual freedom and where genders are in continuous contact with each other
The AIR
29. The Appellant was interviewed on 29 January 2018. He was asked in total 210 questions. He said he was claiming asylum because he and his partner, MM, were scared of their families because they are gay and it is against our culture.
30. It is worth summarising what the Appellant said in the AIR because this was relied on by the judge. When asked questions about his sexuality, he said that he was gay. He was born gay and he is attracted to men. He has always been attracted to men. He had a loving feeling towards men. He was asked about his specific feelings. Again, he said that he found men attractive adding that he has never been attracted to women. When asked about his sexual realisation, he explained that he had grown up with lots of boys and he started to have feelings and love in his heart and he was happy. He said he was aged 14 when he realised his sexual identity. Before that time, he was trying to find himself and he was confused. He did not speak to anyone about how he was feeling because of his culture. He was asked by those interviewing him whether he had done any research into being gay when he was growing up and he said that he had. He researched about how people become gay and he read articles. He searched is it normal to feel this way. He said that nothing had happened to make him realise he was gay. When he realised his sexual identity, he accepted it and was happy with it. He was asked to be more specific about his feeling when he realised his sexual identity and he said that at first it was hard to take as I had no one to talk to, but I accepted it and I allowed myself to be happy and I accepted it . Before he realised that he was gay he felt normal with the boys at school. He was asked what that meant, and he said before I discovered, they were just boys. I was struggling in my head as I was working out who I was and I just saw them as boys. He was asked about the time after he realised his sexual identity and he said that it was difficult at school because of the culture and religion. He said that he had his first relationship aged 19. He was aged 18 when he researched on the internet in an internet café.
Error of Law
31. The Appellant’s appeal turned on his credibility. The Appellant has self-identified as gay. The first issue for the judge to decide was whether he was telling the truth about his sexuality. The difficulty of assessing credibility in this context is especially pronounced. The RFRL on which the SSHD relied stated that the Appellant had given a lack of description of any emotional journey and there was a lack of first-hand emotional narrative. Moreover, feeling normal is a vague description of the Appellant’s feelings at a crucial moment in his life. There was a lack of detail about the Appellant’s emotional journey prior to realising his sexuality. There is a lack of detail about a pivotal moment in the Appellant’s life.
32. The Judge did not have a witness statement from the Appellant. The Appellant gave evidence during what turned into a telephone hearing. The judge agreed with the RFRL. He relied on the AIR which the Appellant adopted as his evidence-in chief. It is difficult to understand the basis of Mr Emezie’s submission the judge was not entitled to rely on the AIR. He clearly was. The reasons for not accepting the Appellant’s sexuality can be summarised:
33. The Appellant’s evidence was inconsistent. This appears to relate to the Appellant’s account of feeling happy about his sexual orientation. The judge said this was inconsistent with (1) his awareness of the cultural and societal disapproval of homosexuality (2) his account of not being able to talk to others about his sexuality and (3) his account of having lost a friend who suspected the Appellant of being gay. The judge also found that the chronological account of realisation that he was gay given by the Appellant was inconsistent. In the AIR the Appellant said he was aged 14; however, later in the same interview he said that he had undertaken research through the internet when he was aged 18 and it was after this that he came to the conclusion that he was gay. In the AIR when the inconsistency was put to him, he said that he realised he was gay at age 14 but did not become experienced until he was aged 19.
34. The evidence was lacking in detail and vague. This was because the Appellant had failed to put forward a reasonable explanation of feeling happy within the social context. The Appellant was unable to elaborate in his interview about how he came to realise his sexual identity and how he felt about such matters. The judge said that it is reasonable to expect that an individual would provide a significant amount of detail about their sexual orientation to a much greater extend than the Appellant put forward .
35. We take on board Mr Terrell’s submission in respect KB & AH which offers a helpful framework when assessing credibility. We accept that sufficiency of detail and inconsistence are largely distinct from plausibility. However, we find that the judge’s findings that the evidence was insufficient in detail and that it was inconsistent are flawed.
36. We find that the judge expected the Appellant to provide a narrative of a life changing turning point or experience. The Appellant did not have such an account to give. He was asked during the interview whether anything had happened when he was aged 14 to make him realise his sexuality. He answered in the negative. Not being able to describe an emotional journey to realising sexual identity is described in the ETBB as a very Western concept. Caseworkers in the Home Office guidance are told not to expect narratives to contain evidence of turning points or milestones expressing ideas of difference.
37. We find that the judge erred in expecting the Appellant to provide a “significant amount of detail” about his sexual orientation. The judge unreasonably assumed that all gay appellants would be able to give evidence in significant detail about their personal journey to realisation of sexual identity.
38. We acknowledge that it is reasonable to expect an appellant to give sufficient information to demonstrate personal experience and knowledge of their sexual identity. Whether it is sufficient to discharge the burden of proof was a matter for the judge; however, the judge unreasonably in our view, expected a level of detail that a gay appellant may simply be unable to give.
39. The Appellant’s evidence was that he was happy and accepted that he was gay. The judge made adverse credibility findings based on this. We find that the judge unreasonably expected evidence of inner conflict based on cultural disapproval. We find that this is a “culturally loaded misconception” of the type judges are warned against making in the ETBB. The judge’s finding that the Appellant’s acceptance of his sexuality is “inconsistent” with the factors identified above at (1) – (3) is irrational. We fail to see an inconsistency or tension ( as suggested by Mr Terrell) in the Appellant’s feelings about his sexually and the separate issues of social isolation or the loss of friendship. It is unreasonable for a judge to assume that that an Appellant would not accept his sexuality because of societal disapproval.
40. We cannot find any inconsistency in the chronology. This issue is not raised in the RFRL. The Appellant said that he was aged 14 when he realised his sexual identity. The Appellant said that that he undertook research when he was aged 18. When he was aged 19, he had his first gay relationship. The Appellant was extensively interviewed. We cannot find the inconsistency raised by the judge in the answers that the Appellant gave. In any event, we find that the judge unreasonably failed to acknowledge that the realisation of sexual identity can be a gradual process.
41. With reference to the RFLR, there is nothing to support that every gay person would feel different from peers. Recognition that the Appellant is not like other boys in adolescence may, as put forward in the guidance may be an indicator of being gay, but nothing more. In any event, the Appellant said it was just normal with the boys at school before he discovered he was gay. However, he expanded on this when probed and stated in answer to Q 54, Before I discovered, they were just boys. I was struggling in my head as I was working out who I was and I just saw them as boys. He stated in answer to Q 38 that he felt confused before he realised that he was gay. We observe that that the Home Office guidance advises caution in assuming that a narrative will be accompanied by evidence of discomfort or evidence indicating a desire not to conform to society’s normal gender expectations. Caseworkers are told that they should not assume that a claimant would experience the idea of difference. Caseworkers are reminded that it can often be the case that in societies where sex and sexuality is a taboo or where genders are separated from each other in many spheres of life, it may take longer for individuals to realise any idea of difference than in societies where there is more sexual freedom and where genders are in continuous contact with each other. While the judge did not engage with this issue, we mention it is as another example of decision makers generally making unreasonable assumptions. It is not clear to us how much, if any, weight the judge attached to the flawed reasoning in the RFRL.
42. We summarise; the judge did not adequately reason why he found the Appellant’s account lacking in detail and inconsistent. We find that the judge made unreasonable assumptions based on stereotypes and a misunderstanding of sexual identity. We therefore find that ground 2 is made out. All the findings are infected by the error of law. We set aside the decision of the First-tier Tribunal to dismiss the Appellant’s appeal.
43. We were not assisted by Mr Emezie’s oral submissions which we will briefly deal with. The Appellant has not raised fairness as a ground of appeal. The submission in respect of demeanour was misconceived. The Appellant’s case was not that he has been gay at some point in the past or that he is not gay but may be perceived as being gay.
44. Had the fairness issue been properly pleaded and the Appellant had permission to argue this as a ground, we would have had some sympathy with the submissions on this point. It is not clear to us whether the judge properly considered whether fairness demanded an adjournment. While he noted the Appellant did not make submissions to the contrary objecting to the hearing proceeding by telephone, we find that it was incumbent on the judge to raise with the Appellant that he could request an adjournment or to consider adjourning on his own volition. The case turned on credibility. There were no witness statements. The judge said that he followed the guidelines in the case of Surendran. This is a reference to MNM (Surendran guidelines for Adjudicators) Kenya* [2000] UKIAT 00005 which gives guidance to judges about how to act in the absence of a Home Office Presenting Officer. We question the relevance of this to the appeal before the First-tier Tribunal. We may have considered whether the Appellant understood the proceedings and the implications of the steps taken namely to change the hearing into a telephone hearing. We may have considered whether fairness demanded that the judge to adjourn the hearing on his own volition. While there is no need for us to consider whether the point is Robinson obvious, we may have concluded that the ground has a strong prospect of success for the Appellant properly applying AZ (error of law: jurisdiction; PTA practice) Iran [2018] UKUT 00245.
Notice of Decision
45. The decision of the First-tier Tribunal to dismiss the Appellant’s appeal is set aside.
46. Having had regard to Begum (Remaking or remittal) Bangladesh [2023] UKUT 46, bearing in mind the nature of the error of law (our observations about fairness) and the need for a re-hearing, we have decided to remit the matter to the First-tier Tribunal for a de novo hearing.

Joanna McWilliam

Judge of the Upper Tribunal
Immigration and Asylum Chamber

12 July 2023