Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003302

First-tier Tribunal No: PA/56741/2023
LP/02479/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 5 March 2025

Before

UPPER TRIBUNAL JUDGE HANSON
DEPUTY UPPER TRIBUNAL JUDGE MOXON

Between

MLK
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Hyder, Westbrook Law Limited
For the Respondent: Mr Thompson, Senior Home Office Presenting Officer

Heard at Phoenix House (Bradford) via CVP on 24 February 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

Introduction

1. The Appellant appeals, with permission a decision of a judge of the First-tier Tribunal (‘the Judge’), dated 10 June 2024, which upheld the Respondent’s decision to refuse the Appellant’s claim for asylum.

Background

2. The Appellant is a citizen of Bangladesh. He entered the United Kingdom on 4th February 2022 pursuant to a student visa. He claimed asylum on 24th June 2022. In summary, he asserts that he fears harm upon return to Bangladesh on account of his homosexuality. He claims that he had a relationship with a male called Fahim whilst in Bangladesh. They first met in 2015. Since being in the United Kingdom, he claims to have engaged with the homosexual community by way of attending gay events, posting on Facebook and joining the Eagle gay club. He disclosed his sexuality to a friend of his father’s, who lives in Wales, as he was being placed under pressure to marry a woman of his father’s choosing. That information was passed on to his father and, in turn, his home village in Bangladesh. He fears both his father and Bangladeshi society.

3. The application was refused by the Respondent on 6th September 2023. The Appellant was not considered credible and his purported sexuality was rejected.

4. The appeal against that decision was heard by the Judge on 7th June 2024. The Appellant attended and gave evidence. He relied upon the following documentary evidence:
a. Facebook screenshots showing attendance at gay events. The account is titled ‘Gay Love’;
b. WhatsApp threats from his father;
c. Call and text message records from Fahim;
d. Letter from Fahim;
e. Letter from a Mr N Uddin, in relation to the Appellant’s sexuality now being known within his home village;
f. Eagle gay club membership card.

5. The Judge rejected the Appellant’s account of his sexuality and consequent fear.

6. Grounds of appeal were submitted on 24th June 2024, which included the following at paragraph 3.1:

“The main reason, the learned FTT IJ dismissed the appeal as he described in paragraphs 18 stating 3 factors i.e (i) not liking girls does not necessarily mean liking men / being gay indicating realization factor (ii) why would A stated about his homosexuality by way of long conversation to his father’s friend Mr Ashraf Hassan and why there was no statement or evidence from Mr Ashraf Hassan, who was in Wales (ii) why would not A think deeply how his family would react. Here the learned FTT IJ expected answers in terms of his expectation of facts or logic, which might not be same or similar in the context of A who came from a country where sexuality, realization and feelings are not taught and still a taboo. That is why to A not liking girls can be indicative to his sexual realization, which might not be the same to this western society. But it can be common in a society like Bangladesh. Furtehrmore [sic], realization is a continuous and undefined process which might not be same for everyone. In terms of second factor being open to his father’s friend Mr Hassan, the learned FTT IJ failed to understand context as his father’s friend was sent to convince him to get married to a girl in the USA as per his father’s choice. So, he had to explain him why he could not get married through a long conversation by somehow saying that he is actually gay. For obvious reason, his father’s friend is not willing to support him in his asylum appeal on the basis of sexuality. That is why it is not possible to get his evidence even though he is in the UK. In terms of the third factor, whether he thought deeply about how his family would react, was not relevant in that context as he was not thinking about that when he was trying to convince his father’s friend. He always knew that his family would not accept homosexuality that is why it required a long conversation trying to convince Mr Hassan. He did not need to think deeply about his family reactions at that particular time as he already knew about it. That is what he stated. But none of these are inconsistent with other factual matrix of this case.”

7. Permission to appeal was granted another judge of the First-tier Tribunal on 12th July 2024 upon the following limited grounds:

“The grounds assert that the Judge erred at paragraph 18, by failing to understand the cultural context about the manner of his sexuality disclosure. The Judge does not find it credible that the appellants lack of attraction to women in indicative of him being attracted to men. The Judge also refers to the fathers friend and the lack of credibility in the appellant account that he would tell this friend he was gay. The Judge records the appellant states he was forced to tell him yet does not record this was because the friend was sent to encourage him to marry a chosen women. In such circumstances the Judges point that a witness statement should have been obtained from this friend is arguably an error for adequacy of reasons.”

8. The impugned paragraph of the Judge’s determination is as follows:

“The appellant said that he realised that he was a gay man when he went to college in 2012. He said all his friends were interested in girls and he was not. He responded to a question from Ms Harrison “how did you come to realise you were attracted to men” by saying that he had no girlfriend and was not attracted to girls. I find that this is no answer to the question as non-attraction to girls does not mean that a man is attracted to his own sex. He did not respond to his father’s texts about marrying, but opened up to a friend of his father’s in Wales about his sexuality (a Mr Ashraf Hassan). He had seen him a few times in Bangladesh and there is no indication that he knew him well (he was his father’s friend). He describes a long conversation with Mr Hassan and then says he was forced to share that he was gay. He felt it was quite normal to share this with him. There is no statement from Mr Ashraf Hassan about this conversation. If he lives in Wales there would appear to be no difficulty in producing him as a witness. The failure to produce him means that the appellant’s testimony about way he has admitted to his family that he was gay rests on his credibility alone. The appellant adds he did not think deeply about how his family would react. I find that this is not credible. Bangladesh is a deeply homophobic society and there is no suggestion by the appellant that his family were more liberal in their attitudes than others in that society. The appellant I find must have thought very hard about such any such admission before making it – if indeed he did make such an admission. In his interview (Q44) he says he “was too frightened that if my family found out my father would kill me, I am too frightened of my father”.

The hearing

9. The Appellant did not attend the hearing before us but was represented by Mr Hyder.

10. Mr Hyder relied upon the written grounds of appeal. He argued that the Appellant had sought to explain his realisation that he was homosexual to the best of his ability. The Judge made adverse findings arising from the lack of corroborative evidence from of the Appellant’s father’s friend, but had not given the Appellant an opportunity during the hearing to explain the reason for his non-attendance. He argued that the resulting criticism had “…a huge impact on the appeal as it goes to the core of the Appellant’s sexuality”. He identified that it is difficult for a person to provide corroborative evidence to prove their sexuality.

11. Mr Thompson submitted there was no error of law in the Judge’s decision and that paragraph 18 of his determination should not be read in isolation. If any error of law were to be identified in paragraph 18, it would nevertheless not be material given the Judge’s credibility findings elsewhere in the determination, notably in relation to the Appellant’s purported relationship with Fahim.

Discussion and analysis

12. Throughout our consideration of the appeal, we have had regard to the guidance provided by the Court of Appeal in Volpi v Volpi [2022] EWCA Civ 462 at paragraph 2; Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 at paragraph 26; and Hamilton v Barrow and Others [2024] EWCA Civ 888 at paragraph 30-31.

13. We accept the submission by Mr Hyder that, in general, corroborative evidence is not required to support a claim for asylum.

14. However, that rule is qualified, as detailed by Thomas LJ in TK (Burundi) v Secretary of State for the Home Department [2009] EWCA Civ 40 who stated, at paragraph 16 of his judgment:

“Where evidence to support an account given by a party is or should readily be available, a Judge is, in my view, plainly entitled to take into account the failure to provide that evidence and any explanations for that failure. This may be a factor of considerable weight in relation to credibility where there are doubts about the credibility of a party for other reasons.”

15. That was reiterated in MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216, at paragraph 86:

“It was common ground before this Court that there is no requirement that the applicant must adduce corroborative evidence: see Kasolo v Secretary of State for the Home Department (13190, a decision of the then Immigration Appeal Tribunal, 1 April 1996). On the other hand, the absence of corroborative evidence can, depending on the circumstances, be of some evidential value: if, for example, it could reasonably have been obtained and there is no good reason for not obtaining it, that may be a matter to which the tribunal can give appropriate weight. This is what was meant by Green LJ in SB (Sri Lanka) [[2019] EWCA Civ 160] at para. 46(iv).”

16. We consider the Judge’s paragraph 18 can be properly split into three specific sections, as per the grounds of appeal.

17. Section 1:

“The appellant said that he realised that he was a gay man when he went to college in 2012. He said all his friends were interested in girls and he was not. He responded to a question from Ms Harrison “how did you come to realise you were attracted to men” by saying that he had no girlfriend and was not attracted to girls. I find that this is no answer to the question as non-attraction to girls does not mean that a man is attracted to his own sex.”

18. The challenge to that finding within the grounds of appeal is as follows:

“Here the learned FTT IJ expected answers in terms of his expectation of facts or logic, which might not be same or similar in the context of A who came from a country where sexuality, realization and feelings are not taught and still a taboo. That is why to A not liking girls can be indicative to his sexual realization, which might not be the same to this western society. But it can be common in a society like Bangladesh. Furtehrmore [sic], realization is a continuous and undefined process which might not be same for everyone.”

19. We accept that the realisation of one’s sexuality is different from person to person and is likely to take time and be difficult to articulate. We also accept that the realisation of being homosexual may be different in countries where there is little education and where homosexuality is taboo and / or disapproved. A person in such an environment may be slow in understanding their feelings towards the same sex to be homosexual or may be slow to accept their sexual identity.

20. However, we are satisfied the Judge did not make any improper assumptions on how a person would realise their sexuality, regardless of their cultural background. His criticism of the Appellant’s account was that the Appellant had equated not being sexually attracted to females as meaning that he was sexually attracted to males. We find no error in law arising from the Judge’s assessment of that evidence. Sexual attraction is a positive feeling and not one that can be determined by exclusion. To conclude that not being attracted to one sex means that a person must be attracted to another excludes the possibility of asexuality.

21. As outlined above, we have taken into account the relevant authorities, and, in relation to this element of the appeal had particular regard to paragraph 2(i) of the summary of Volpi, the in which the Court of Appeal stated:

“An appeal court should not interfere with the trial judge’s conclusion on primary facts unless it is satisfied that he was plainly wrong”.

22. We are satisfied that there was nothing wrong with the Judge’s conclusion and it was one reasonably reached upon the evidence and adequately explained.

23. Section 2:

“He did not respond to his father’s texts about marrying, but opened up to a friend of his father’s in Wales about his sexuality (a Mr Ashraf Hassan). He had seen him a few times in Bangladesh and there is no indication that he knew him well (he was his father’s friend). He describes a long conversation with Mr Hassan and then says he was forced to share that he was gay. He felt it was quite normal to share this with him. There is no statement from Mr Ashraf Hassan about this conversation. If he lives in Wales there would appear to be no difficulty in producing him as a witness. The failure to produce him means that the appellant’s testimony about way he has admitted to his family that he was gay rests on his credibility alone.”

24. The challenge to those findings within the grounds of appeal is:

“In terms of second factor being open to his father’s friend Mr Hassan, the learned FTT IJ failed to understand context as his father’s friend was sent to convince him to get married to a girl in the USA as per his father’s choice. So, he had to explain him why he could not get married through a long conversation by somehow saying that he is actually gay. For obvious reason, his father’s friend is not willing to support him in his asylum appeal on the basis of sexuality. That is why it is not possible to get his evidence even though he is in the UK.”

25. During oral submissions, My Hyder argued that the Appellant had not been asked during the First-tier Tribunal hearing to explain why his father’s friend had not provided evidence in support of his claim.

26. Whilst in some cases it might be prudent to ask why an individual had not provided written or oral evidence, we do not consider that it was incumbent upon the Judge to do so in this appeal. It was the responsibility of the Appellant to explain why potentially material evidence was not before the court.

27. In any event, the Judge did not draw an adverse inference from the absence of corroborative evidence, of the type permissible pursuant to TK (Burundi) and MAH (Egypt). His determination does not state that the absence of evidence from the father’s friend undermines the Appellant’s credibility. He simply noted that the only evidence of the conversation was from the Appellant and therefore consideration of whether the conversation occurred is dependent on an analysis of the Appellant’s credibility.

28. Within his determination, the Judge made various credibility findings, none of which have been subject to permitted grounds of appeal.

29. At paragraph 19, the Judge noted the Appellant’s inconsistent evidence about his purported relationship with Fahim:

“In interview the appellant was asked about the nature of his relationship with his friend Fahim. He had met him at college and they had disclosed their sexuality to one another. He was asked at Q61 whether he was just friends or whether he was in a relationship. He replied “No we are just good friends, we did not have a relationship”. There was no sexual relationship with him and no romantic attraction at all. He had no other romantic or sexual relationships in Bangladesh. In his statement prepared for the hearing (and on which he relied) he provided a different account, namely that there was a deep sense of emotional tie to Fahim. At the hearing he provided yet another account, saying that they had a “common character” and that they had progressed to stage 2 of a relationship (kissing and hugging) on a scale of 1 – 3, where stage 1 is a normal friend and 3 is like the intimate relationship of a husband and wife. I find that the appellant has provided three different versions of his relationship, from one where there was no romantic attachment, one where there were emotional ties, and only in the last was there any physical contact. I find that this is inconsistent and undermines his credibility. The mere fact that one man is a good friend with another man does not mean that either is gay, or would be perceived as being gay.”

30. At paragraph 20, the Judge noted that the Appellant had provided a statement from a Mr N Uddin from Bangladesh who stated that the Appellant’s homosexuality was big news in his village. The Judge noted that the news would have only been known within the village if the Appellant’s father, upon being told by his friend of the Appellant’s disclosure of homosexuality, had then told others. The Judge concluded:

“I find that it is not credible that the appellant’s family would have broadcast the fact the appellant was gay as this would have been a matter of deep shame to them. Yet if the appellant’s account is true the information could only have come from them. Much of Mr Uddin’s statement, I find, is self - serving in the SS sense – namely that it bears the hallmarks of being written to order (e.g. para 10 about the appellant being able to express his true identity without fear of persecution – Mr Uddin could only have been told that by the appellant). I find that little weight can be placed on his statement.”

31. That is a finding within the range of those reasonably open to the Judge.

32. At paragraph 28, the Judge considered that the Appellant’s credibility was damaged by his delay in claiming asylum in the United Kingdom:

“The respondent has drawn attention to the factors which are engaged under Section 8 of the 2004 Act. I must take these into account although following JT (Cameroon) the test is whether they actually as opposed to potentially damage the claim. The appellant came to the UK on 4th February 2022 but did not claim asylum until June 24th 2022, a period of some 4 ó months. The appellant has said how he was looking forward to coming to the UK with its gay scene, and that when he arrived he felt glad he could express his feelings and have his life and freedom. This was in contrast to Bangladesh where he feared death if he was known as gay. I have not accepted that the letter from his father can be accepted as reliable and find that the appellant’s explanation that events came to a head in June is not credible. I find that the appellant has provided no reason as to why he could not have claimed asylum on arrival. I find that the delay between his arrival and making his asylum claim is a factor which does actually, as opposed to potentially, undermine his credibility under Section 8 in relation to the fact of his homosexuality.”

33. We find that throughout the determination the Judge comprehensively assessed the documentary evidence relied upon by the Appellant, finding:

a. The Facebook entries do not comply with the evidential requirements outlined within XX (PJAK – sur place activities – Facebook) Iran [2022] UKUT 23 and the Facebook account does not contain anything personal about the Appellant save for photographs of him at public places and a gay pride event. As such, little weight is placed on that evidence (paragraph 23);

b. Little weight can be placed on WhatsApp screenshots purporting to be threats from the Appellant’s father as it has “all the hallmarks of being produced to order” and is self-serving (SS v SSHD [2017] UKUT 164 considered) (paragraph 24);

c. The letter from Fahim does not confirm that he and the Appellant had a sexual relationship or that he regards the Appellant as gay. The Judge noted call records from Fahim in which he is explicit about his homosexuality with another male and notes that “…Fahim is not backward in expressing homosexual feelings when he is in conversation with a gay man. The fact that he does not do so in this letter, I find, is indicative that he is not confirming that the appellant is homosexual” (paragraph 25);

d. The record of calls and text messages from Fahim contain a number of entries that have been deleted or not translated. The Judge noted the explicit nature of some of the messages by Fahim to another male and contrasts them to the nature of the messages to the Appellant, and concludes: “On the basis of this I find that Fahim would have been far more explicit both in his conversations with the appellant, and in the letter he wrote for him, had he himself viewed him as being gay. His silence on this point is more significant than anything he says in his letter, and I find shows that he does not regard the appellant as gay” (paragraph 26); and

e. The Appellant’s purported membership to the Eagle club, which appears to be a gay club, “…does not show his sexuality, as anyone can be a member there” (paragraph 27).

34. Under the heading ‘Global conclusion on the appellant’s sexuality’, at paragraph 29, the Judge writes:

“On all the evidence I find that the appellant has not established that he is a gay man, even to the low standard of proof applicable to protection claims. I have not accepted his account of events in Bangladesh and find that he is not regarded by Fahim as gay. I find that his participation in gay events in the UK does not show that he is a gay man. I find that his creation of a website is self-promotional with a view to supporting his claim to asylum rather than as showing that he is gay himself. I find that the documentation produced from Bangladesh cannot be relied on in accordance with Tanveer Ahmed. I have considered the various factors outlined above and cumulatively I find that the appellant has not presented a credible picture of being gay. I find that on return to Bangladesh he would not be perceived as being gay by the local or national community.”

35. We are satisfied the Judge undertook a comprehensive and detailed analysis of all of the evidence before him before reaching an adverse conclusion as to the Appellant’s credibility. The analysis and conclusion are not vitiated by error.

36. It was therefore open to the Judge to conclude that as the sole evidence of the disclose to the Appellant’s father’s friend was the Appellant’s own evidence, his credibility was a material consideration when considering the weight to be given to that evidence.

37. Section 3:

“The appellant adds he did not think deeply about how his family would react. I find that this is not credible. Bangladesh is a deeply homophobic society and there is no suggestion by the appellant that his family were more liberal in their attitudes than others in that society. The appellant I find must have thought very hard about such any such admission before making it – if indeed he did make such an admission. In his interview (Q44) he says he “was too frightened that if my family found out my father would kill me, I am too frightened of my father”.

38. The challenge to that finding within the grounds of appeal is as follows:

“In terms of the third factor, whether he thought deeply about how his family would react, was not relevant in that context as he was not thinking about that when he was trying to convince his father’s friend. He always knew that his family would not accept homosexuality that is why it required a long conversation trying to convince Mr Hassan. He did not need to think deeply about his family reactions at that particular time as he already knew about it. That is what he stated. But none of these are inconsistent with other factual matrix of this case.”

39. We find it was reasonable for the Judge to conclude that it was not credible that the Appellant would disclose homosexuality to his father’s friend, even if subject to a lengthy and arduous conversation with his father’s friend about his unwillingness to marry the woman of his father’s choice. We find it was reasonable for the Judge to conclude that, even in those circumstances, the Appellant would not disclose his sexuality given his purported fear of his father’s reaction. The Judge’s conclusions are adequately reasoned and cannot be properly characterised as “plainly wrong”. We find his conclusions are within the range of findings open to him to make.

Conclusion

40. The Judge’s determination demonstrates a thorough and detailed analysis of the evidence and contains findings of fact that were open to him. As such, no error of law is made out, either material or otherwise.

Notice of Decision

The decision of the First-tier Tribunal did not involve the making of an error on a point of law. The decision to refuse the asylum appeal stands.

DUTJ Moxon
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

25th February 2025