The decision



IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003975

First-tier Tribunal Nos: PA/59660/2023
LP/04691/2024
Extempore decision

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 16 January 2025

Before

UPPER TRIBUNAL JUDGE LOUGHRAN

Between

TA
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr C Williams (Legal Representative), Fountain Solicitors
For the Respondent: Ms A Nolan, Home Office Presenting Officer

Heard at Field House on 19 December 2024

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 the permission of Upper Tribunal Judge Sheridan against the decision of First-tier Tribunal Judge French dated 14 July 2024.
2. The appellant is a national of Pakistan born on 30 August 2002. He arrived in the UK on 16 March 2021.
The appellant’s claim
3. The appellant claimed asylum on 28 October 2021. The basis of the appellant’s asylum claim is that he is gay, he wants to live openly as a gay man and he would be at real risk of serious harm if he was to do that in Pakistan.
4. The appellant claims to be in a relationship with a man I will refer to as AH. They met in Pakistan and began a relationship but were caught on a school trip and were beaten by their respective parents. AH also came to the UK in March 2021 and they claim to have been living together as a couple in the UK.
5. On 3 August 2021 the appellant claims to have received a telephone call from his father. His father threatened him because his father had discovered that AH was living with him in the UK. The appellant claims to have had no contact with his father since.
6. In a decision dated 23 October 2023 the respondent refused the appellant’s protection and human rights claim.
The appeal to the First tier Tribunal
7. The appellant appealed against the refusal of his protection and human rights claim and the appeal came before the judge on 11 July 2024.
8. The appellant, AH and Mr Hoar, a support worker from Journey LGBT+ Asylum Group, all attended the hearing and gave oral evidence.
9. In a decision dated 14 July 2024, the judge dismissed the appellant’s appeal. Under the heading “Findings of Fact” the judge made the following findings:

(i) I accept that the Appellant is a Pakistani national who was born on 30/08/2000, and who came to the UK under a student visa on 16/03/21.
(ii) The Appellant did not apply for asylum until 19/10/21- more than 7 months after he arrived in the UK and another 2 months after he claimed that he was threatened by his father. In my view that was not consistent with someone who had well-founded fear of persecution and therefore had genuine grounds to apply for asylum
(iii) According to the Appellant his personal situation had not changed fundamentally since he arrived in the UK. The Appellant arrived in the UK as an educated intelligent man and I do not believe that he was unaware of the asylum procedure.
(iv) I did not find the Appellant to be a credible witness. I reached that conclusion because in my view his account of how he met AH was implausible. He was vague about how far he lived from AH. It is reasonable to conclude that it was not very close or they would have met before they did. If that is the case it was difficult to understand how both his family and AH's family discovered that allegedly they were living in a homosexual relationship. In addition the only witness who could provide conclusive proof of his homosexuality was AH but he had a vested interest in saying that the Appellant was homosexual because his own chances of remaining in the UK were dependent on the Appellant being granted asylum and him being accepted as a dependent of the Appellant. Those features combined with the delay in submitting the asylum application persuade me that the Appellant's claims should not be believed.
(v) I do not find the photographs and other "gay" documentation to be probative that the Appellant is homosexual. In my view they were circumstantial.
(vi) I respect the integrity of Mr Hoar but he can only express his opinion on the information provided to him by the Appellant and AH and I believe that that they are intelligent men who were capable of concocting an account to persuade Mr. Hoar about a homosexual relationship that did not exist.
(vii) I do not believe that the Appellant is homosexual. I believe that his attempt to persuade the Home Office that he is homosexual is cynically motivated by his wish to circumvent the UK's immigration rules.
(viii) Because I am satisfied that the Appellant is not homosexual the issues of relocation and sufficiency of protection are not relevant.
(ix) For the avoidance of doubt I feel that there is no merit in the appeal.
10. Under the heading “Conclusion”, the judge explained that the key matter for him to determine was the credibility of the appellant and that he did not find the appellant to be a credible witness. He stated, “There are inconsistencies in his evidence and I consider that the delay in the submission of the asylum claim is influential.”
The appeal to the Upper Tribunal
11. The appellant applied for permission to appeal to the Upper Tribunal.
12. The First-tier Tribunal refused permission on 21 August 2024 but the Upper Tribunal granted permission on 10 September 2024.
13. At the hearing the appellant was represented by Mr Williams and the respondent was represented by Ms Nolan.
14. It is the appellant’s case that that the judge’s assessment of credibility was irrational and/or inadequately reasoned.
15. The appellant asserts that although the judge reminds himself of what is required for a decision to be considered adequate, the judge failed to engage with the evidence and as a result the appellant does not know what was made of the evidence that he relied on.
16. The appellant addresses the reasons given by the judge for rejecting his account and points out that it was the appellant’s account as given in his asylum interview and corroborated by his and AH’s school certificates that they met at school. It is submitted that there is nothing implausible about that account and that the judge has not addressed how this undermines the appellant’s credibility.
17. The appellant states that he was never asked how far he lived from AH. Accordingly, the appellant submits it is unclear how his description could be described as vague by the judge.
18. The appellant asserts that the judge’s rejection of AH’s evidence is inadequately reasoned. The judge's only reasons for rejecting it is in effect that it is self-serving and the judge has failed to have regard to the consistency between the appellant’s and AH’s accounts.
19. The appellant also submits that the judge’s rejection of Mr Hoar’s evidence is inadequately reasoned. It was not the respondent’s case that Mr Hoar had been misled by the appellant and that was not put to him.
20. Finally, the appellant submits that nowhere in the decision does the judge identify what inconsistencies he has identified in the appellant’s account.
21. At the hearing, having listened to Mr William’s submissions, Ms Nolan stated that she was willing to accept that the judge’s reasoning in respect of the appellant’s credibility was inadequate. She noted that the judge refers to the Practice Direction from the Senior President of Tribunals: Reasons for decisions, a number of times but she accepted that the reasoning in respect of the appellant’s credibility was insufficient. However, Ms Nolan did not accept that the judge’s reasoning in respect of AH’s and Mr Hoar’s evidence was inadequate or that it was not open to him to reject their evidence for the reasons he gave.
22. I agree that the judge’s assessment of the appellant’s credibility was inadequately reasoned. It is impossible to tell from the determination why the judge found the appellant’s account to have met AH at school to be implausible, why the judge found the appellant to be vague about how far he lived from AH and what inconsistencies he identified in the appellant’s account.
23. Given Ms Nolan’s concession, I do not need to consider whether the judge erred in his approach to AH’s or Mr Hoar’s evidence. I am satisfied that the judge’s consideration of the appellant’s evidence infects the whole decision.
24. The parties confirmed that no findings of fact could be preserved and I agree.
25. I have considered whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statement and AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), and taking into account the representatives submissions.
26. The hearing will need to be heard afresh. In all the circumstances, I accept that the proper course is to remit rather than to remake the decision on the appeal in this Tribunal.

Notice of Decision

27. The First-tier Tribunal decision involved the making of an error of law.

28. I set aside the decision of the First-tier Tribunal and remit the case to the First-tier Tribunal to be heard by a different judge, with no findings of fact preserved.

G.Loughran

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Transcript approved on 13 January 2025