Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-000002

First-tier Tribunal No: PA/00178/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
13 March 2025

Before

UPPER TRIBUNAL JUDGE HANSON

Between

UA
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No appearance.
For the Respondent: Mr Tan, a Senior Home Office Presenitng Officer.

Heard at Manchester Civil Justice Centre on 10 March 2025

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 appeals with permission a decision of a judge of the First-tier Tribunal (‘the Judge’), promulgated on 9 June 2023, in which the Judge dismissed his appeal against the refusal of his claim for international protection.
2. The Appellant failed to attend today’s hearing. I am satisfied he has been served with notice setting out the date, time, and venue of the hearing. There is no evidence of the notice of hearing being returned and no application for an adjournment that has been granted, or at all, and no explanation for the Appellant’s failure. It is also the case that there is nothing to support a finding other than the interests of justice require the case to proceed in his absence especially when considering the Overriding Objective.
3. The Judge notes the Appellant, a citizen of Pakistan born on 18 November 1996, arrived in the UK on 23 February 2019 lawfully with a student visa. He did not leave the UK when his leave expired. The Appellant was encountered by Immigration Officers and served with notice as an overstay on 20 November 2019, at which point he claimed asylum.
4. The application was refused on 26 January 2023 as the Respondent did not accept the claim that he faced a risk of persecution on the basis of being a member of a particular social group, a gay man in Pakistan, was credible. The Appellant claimed his return to Pakistan will place him at risk of death or ill-treatment, sufficient to amount to persecution or in breach of his rights pursuant to Articles 2 and 3 ECHR. The Judge records that Counsel indicated the Appellant no longer relied on Article, leaving the single issue the Judge was required to determination related to the Appellant’s sexual orientation.
5. The Judge sets out findings of fact from [12] of the decision under challenge.
6. At [14] the Judge refers to the Appellant’s evidence regarding his first sexual encounter with his friend A, who he stated was the only person who he had been attracted to, in reply to questions in his asylum interview, which the Judge finds was a reference to December 2017 being the first occasion the Appellant had sex with a person he was attracted affectionately to another male. The Judge finds his evidence contradicted his witness statement dated 25 May 2023 when he claims that he was caught engaging in sexual activity with other males in 2013 and 2014, and that altogether he was caught 5 to 6 times [15].
7. The Appellant claimed that sexual encounter with A in 2017 was recorded by A, without his knowledge or consent, and that after he came to the UK in February 2019 the video was seen by his brother, who shared the contents with the Appellant’s family, which the Appellant claimed led to his being threatened over the phone by his father, who the Appellant claims that said “I’m going to finish you off” [17 – 18]. The Judge finds his evidence contradicted by other evidence in that the claim he had spoken directly with his father was different from his earlier answer that he had had no contact with his parents since he had been in the UK [18 (i)]. It is also said to be inconsistent with the Appellant’s witness statement in which he stated he admitted in front of his mother that he was homosexual in 2016 [18 (ii)]. The Judge also notes the Appellant had stated that in 2017 he was caught by a relative whilst having sex with A [18 (iii)] and that when cross-examined he stated that his father had seen him and A engaging in unspecified sexual acts together [18 (iv)].
8. The Judge therefore found the Appellant’s account of his sexual history was inconsistent [19]. The Judge rejected the explanation for the inconsistencies at [32] of the Appellant’s witness statement based upon the number and nature of the significant discrepancies in his account [20].
9. The Judge agrees with the Respondent’s analysis that the account was lacking in both specificity and sufficient detail [21].
10. The Judge rejected the Appellant’s explanation for failing to claim asylum when he arrived in the UK or as soon as possible thereafter. He only claimed asylum when he was served with papers following his being discovered as an overstay, at which point he claimed asylum immediately [25].
11. The Judge finds the Appellant’s behaviour engages section 8(5) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 [26].
12. The Judge finds it although the Appellant relies on participation in events that support the LGBTQ+ community and his evidence that he is gay, the Judge finds that although he attended those events he gave little weight to the evidence as that evidence can support both the claim of being gay but also attending to bolster a weak claim, as suggested by the Respondent [27].
13. The Judge considered the evidence from the Appellant’s brother which is referred to. At [28] is one point at which the brother said he had met the Appellant’s current sexual partners, although the Appellant had said he only met one, which is a further inconsistency.
14. The Judge also records the Appellant’s brother stating he was aware of his brother sexuality from the age of 13 and that the Appellant had been caught doing ‘certain things’ in 2013 or thereabouts but could not remember the year, and also was caught in 2014 and badly beaten and tortured, which is in accordance with one of the Appellant’s claims [29], but at [30] when considering the evidence in the round the Judge rejects the claim that the Appellant is or ever was gay, finding the accounts are internally inconsistent in many respects.
15. The Appellant sought permission to appeal which was refused by another judge of the First-tier Tribunal granted on a renewed application by a judge of the Upper Tribunal on 11 January 2024, the operative part of the grant being in the following terms:

1. The core of the protection claim was based on the appellant’s sexual orientation. In reaching his decision the FtTJ accepted that the issue he was determine was the assessment of the appellant’s evidence and that of his witness (see paragraph 3). In that assessment, the FtTJ identified a number of inconsistencies in the evidence as to the past history (see summary at paragraph 19). However it is arguable that there was other evidence in support of the appellant’s sexual orientation which the FtTJ failed to address consistently in determining the overall issue at paragraph 30. That evidence included the witness evidence of the appellant’s brother. The FtTJ appeared to accept that witnesses evidence ( see paragraphs 28 and 29) which included evidence concerning the appellant’s current sexual partner but also some support for the events in Pakistan which arguably was inconsistent with the conclusion at paragraph 30 where he rejected the appellant’s claim that he is or was ever gay.

2. The grounds are arguable.

Discussion and analysis

16. A person challenging a decision of a judge of the First-tier Tribunal must have regard to the guidance provided by the Court of Appeal in in Volpi v Volpi [2022] EWCA Civ 462 at [2], Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 at [26], and Hamilton v Barrow and Others [2024] EWCA Civ 888 at [30-31]. I have done so.
17. In this appeal the Appellant is challenging the weight the Judge gave to the evidence. It is settled that weight is a matter for the judge. The Judge did take all the evidence provided into account, including that from the Appellant’s brother, as there is a clear reference to it in the determination; including the fact that some aspects of the brother’s evidence accorded with the appellant’s own evidence but also that there was a discrepancy in that evidence, as set out at [28 – 29].
18. The Judge heard the evidence, considered the evidence in the round, and made findings supported by adequate reasons. The reasons only need to be adequate, not perfect. The Judge’s finding is that whatever may have been said by the Appellant’s brother and the Appellant himself, the material discrepancies identified in the evidence as a whole meant the Appellant had not discharged the burden of proof upon him to the required standard to show that what he was claiming was true.
19. In addition, the judge was entitled pursuant to the 2004 Act to find the Appellant’s immigration history and his failure to claim asylum until he was served with notice as an overstay damaged his credibility.
20. The Court of Appeal have made it clear that appellate judges should not interfere with decisions of judges below unless there is a clear genuine error material to the decision under challenge.
21. In this case the Appellant disagrees with the findings and attempts to reargue his case but has failed to establish that the Judge’s finding is outside the range of those reasonably open to the Judge on the evidence.
22. On the information I have available to me I find the Appellant fails to establish legal error material to the decision to dismiss his appeal.
23. On that basis the appeal must fail.

Notice of Decision

24. Appeal dismissed.

C J Hanson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

10 March 2025