Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005516

First-tier Tribunal No: PA/64223/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
13 March 2025

Before

UPPER TRIBUNAL JUDGE HANSON

Between

UG
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Morsud of IIAS Solicitors.
For the Respondent: Mr Tan, a Senior Home Office Presenting 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 following a hearing on 19 September 2024, in which the Judge dismissed his appeal against the refusal of his claim for international protection made on 31 May 2022 and refused on 5 December 2023.
2. The Appellant’s immigration history shows he entered the UK lawfully on 30 October 2019 with leave to enter as a spouse. He returned to Pakistan on 27 December 2021 and re-entered the UK using the spouse Visa on 19 March 2022. The basis of his claim for international protection is an assertion he faces a real risk of persecution in Pakistan is a result of his sexuality as a gay man.
3. The Judge’s findings are set out from [12] of the decision under challenge.
4. The Judge found to Appellant had given different accounts when he realised he was attracted to other males [13], was generally unclear in his account as to whether he lived openly as a gay man in Pakistan or whether he kept it hidden, [14], that he had given different accounts of how he felt about his sexuality [15], that his account of the incident when he was caught having sexual relations at school varied in different accounts [16], and that he exaggerated his claim in his oral evidence to the point his account became inconsistent with previous accounts [17].
5. The Judge finds the above relevant to the credibility of the claim, but at [18] also writes:

18. The above all credibility issues to be considered in the round. However, I find the most significant credibility matter to be as follows: the appellant describes being arrested and receiving death threats and mental torture in Pakistan before coming to the UK as a spouse in 2019 but then chose to return there on 28/12/21 when he still had a valid leave to remain in the UK and had no need to return. He said that his wife “sent him to Pakistan” but I find it very unlikely that he would have returned to Pakistan voluntarily if in fear of persecution there when he did not need to. When asked why he hadn’t claimed asylum rather than go back to Pakistan he said “ Q135 – It did not come to my mind - I thought it was better to go back”.

6. The Judge finds at [19] that despite claiming to have faced problems with his sexuality when he returned to Pakistan the Appellant did not claim asylum at Port and went straight to his wife’s house, although he claims she would not let him in. The Judge finds that he intended to resume his life with his wife despite claiming they had separated because people told her about his history and having returned in fear of persecution as a gay man to Pakistan.
7. The Judge also notes the Respondent’s position that the Appellant’s credibility was damaged in accordance with section 8 of the 2004 Act as he failed to claim asylum until he was notified of an immigration decision which was that his spouse Visa was subject to cancellation. The Judge notes information shows the Appellant was arrested for domestic abuse and was told that his Visa was subject to cancellation [20].
8. The Judge finds that the delay in claiming asylum and the fact he claimed asylum when he was notified of the cancellation of his spouse Visa undermined his credibility, as he could have claimed asylum immediately on his return from Pakistan. The Judge finds the Appellant had no intention of claiming asylum before being notified of the decision to cancel his existing leave [22].
9. The Judge considers the Appellant’s evidence provided to support his claim to be living as an openly gay man in the UK but was not satisfied that the evidence supported the claim the Appellant is a credible witness. It was found the account given of his sexuality or the problems faced in Pakistan was not credible, that it was not accepted he is a gay man, and not accepted he was at risk of persecution or harm in Pakistan as a gay man or for any other reason [25].
10. The Judge notes submissions were made that the Appellant would face insurmountable obstacles to integration into Pakistan due to his sexuality but based upon the findings made, the Judge was not able to accept there were other circumstances that would result in the decision breaching his rights under Article 8 ECHR [27].
11. The Appellant sought permission to appeal which was refused by another judge of the First-tier Tribunal was granted by an Upper Tribunal Judge on 2 January 2025 on limited grounds, in the following terms:

2. The appellant’s challenge to the judge’s decision on protection grounds is not arguable.

3. Notwithstanding what is argued in the grounds (Ground 1 of the grounds submitted to the First-tier Tribunal), at [13]-[25] the judge gave detailed reasons why she did not accept the credibility of the appellant’s claim to be a gay man or the problems he claimed to have in Pakistan. The findings were not based solely on any one reason or indeed just on the areas highlighted in the grounds of appeal. Neither were any one of them treated in isolation because at [25] the judge said she had taken everything into account and looked at the evidence in the round. Nothing in the grounds calls that into question. The reasons the judge gave for the adverse credibility findings were sufficiently detailed and open to the judge to make on the evidence before her. Neither it is arguable that the judge applied too high a standard of proof as the judge set out correctly at [8] the applicable standard. There is nothing contained in the grounds to call that into question. Permission on this ground is refused.

4. Permission is also refused in relation to Ground 2 of the grounds submitted to the First-tier Tribunal (Ground 1 of the renewed grounds). Neither version of the Grounds particularise 2 the way in which the judge erred. In particular, the grounds do not demonstrate that the appeal was argued before the judge on the basis of delay.

5. However, I do grant permission in relation to Ground 3 of the grounds submitted to the First-tier Tribunal (Ground 2 of the renewed grounds) namely that it is arguable the judge failed to have regard to the appellant’s private life in the UK when dismissing his appeal on human rights grounds. It is clear from the appellant’s skeleton argument (“ASA”) and the respondent’s review, that the appellant argued Article 8 and this was an issue for the judge to consider. It is further clear from the ASA and the appellant’s witness statement that the appellant relied on his private life in the UK not just obstacles he would have returning to Pakistan as a gay man. At [27] the judge dismissed the appeal on Article 8 grounds largely because she had rejected his claim to be a gay man. Whilst the judge made reference to there not being any other circumstances which would result in a breach of the appellant’s Article 8 rights, at no stage in the decision did the judge make any reference to the need for a proportionality assessment under the Rules; nor section 117B of the Nationality, Immigration and Asylum Act 2002; nor that it was an issue for her to consider; nor to any findings about the appellant’s life in the UK (outside of his claim to be here as an openly gay man).

6. Whilst it may be that the resulting decision would be the same, this ground identifies an arguable error of law. It remains for the appellant to show that there has been an error and, if so, that it would have made a material difference to the outcome.

7. Permission is granted in relation to Ground 3 of the grounds to the First-tier Tribunal only.

Discussion and analysis

12. The Appellant’s skeleton argument filed for the purposes of this hearing, after referring to the claim the Judge dismissed and against which he was not granted permission to appeal, asserts the Judge found against him on Article 8 ECHR without undertaking any meaningful structured proportionality assessment, setting out the five Razgar questions, and asserts the Judge also failed to apply or properly engage with section 117B Nationality, Immigration and Asylum Act 2002. It is also claimed the Appellant’s private life is particularly relevant in light of his sexual orientation as removal would expose him to potential discrimination, stigma, and persecution in Pakistan, thereby implementing both the Refugee Convention, (as it pertains to membership of a particular social group) Articles 3 and 8 ECHR.
13. In the skeleton argument produce for the purpose of the hearing before the Judge the Appellant clearly raised the issue of family and private life and posed the question whether removing him from the UK would violate his rights under Article 8 of the ECHR, meaning this was an issue the Judge was required to determine, which the Judge did in the determination under challenge.
14. A person challenging a decision of the judge of the First-tier Tribunal must have regard to the guidance provided by the Court of Appeal 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].
15. It cannot be an error by the Judge to have concluded the Appellant had no claim based on family life in the UK as any family life with his wife clearly ended following the incident of domestic violence, which led to the Secretary of State cancelling his leave to remain in the UK on the basis of his spouse Visa.
16. Similarly, it cannot be legal error by the Judge not to have determined the merits of the family and private life claim on the basis of the Appellant’s claim to be living as an openly gay man in the UK. The Judge’s findings are that she did not accept this was credible and the application for permission to appeal in relation to the protection issues has been refused.
17. The Appellant was well aware of the Secretary of State’s position in relation to Article 8 ECHR in the refusal letter, where it is written:

Family and Private Life

I have also considered whether you qualify for a grant of permission to stay on the basis of Article 8 of the European Convention on Human Rights (right to respect for private and family life). I am satisfied that removing you from, or requiring you to leave, the UK would not be contrary to Article 8.

Family Life

• You have not told us that you have a partner, dependent children or other dependent relatives in the UK, therefore I do not accept that you have a family life in the UK..

Private Life

• You are a national of Pakistan and entered the United Kingdom on 30 October 2019. He went back to Pakistan on 27 December 2001 before returning to the UK on 09 March 2022. You claimed asylum on 31 May 2022.

• You were over 18 when you claimed asylum and have not demonstrated that you had been in the UK for more than 20 years prior to the date of your asylum claim. You have not demonstrated any very significant obstacles to your integration into country because you were brought up and lived the majority of your life in Pakistan until you left that country in 2019. It is therefore considered that you have extensive knowledge of, and familiarity with, the prevailing social norms and values of Pakistan. You also speak Urdu and Punjabi which are widely spoken in Pakistan (SCR 1.10, 1.11). Moreover, you have been educated to secondary school level in Pakistan and gained work experience as a florist (SCR 1.14, 2.6, AIR 27). It is therefore considered that you have the linguistic ability, the education, and employment experience necessary to find gainful employment and support yourself on your return to Pakistan.

• You have not raised any exceptional circumstances in relation to your private life.

Compassionate circumstances

• You have not raised any exceptional compassionate circumstances in your case.

Discretionary Leave

• You do not qualify for discretionary leave because;

• You have not raised any such exceptional compassionate circumstances or other compelling reasons to grant leave on a discretionary basis.

18. In his witness statement dated 22 July 2024 the Appellant wrote:

16. I have been living in the UK over two years as a peaceful citizen. Although there were ups and downs in my life I did not involve myself in any illegal activities. I wish to state that I am well integrated into the multicultural society of the UK and have adapted my life according to its norms. I am now accustomed to the local food, climatic conditions and liberal fear-free atmosphere in the UK. I have made many other helpful friends in the UK who also provide me with their moral support and encourage me to face my problems boldly. I have established a strong private life with my friends in the UK. If I am removed from the UK it will be a breach of my human rights under Article 8 of the ECHR.

17. My circumstances are of an exceptional nature bearing many compelling and compassionate grounds; I am still passing through exceptional circumstances. I have no one to return back in my country. I do not want to lose my life at the hands of my family and society or spend a long imprisonment. There are insurmountable obstacles to my returning back to Pakistan after a gap of over two years enjoying my gay life in the UK. The SOS should have also considered my Asylum claim under paragraph 276 ADE (vi and the material facts involved in my case.

18. I strongly believe that instead of taking into account the material facts regarding my well established private life with my friends in the UK, the vulnerability and hardship which I will face in case of my removal to my home country to my life from my family and extremist society, the SOS refuse my asylum application which is not fair. The SOS decision is not in accordance with the provisions in the Immigration Rules and is also in breach of my human rights under Articles 2, 3 & 8 of the ECHR.

19. Mr Morsud was asked which elements of the Appellant’s private life are such that they are sufficient to outweigh the public interest relied upon by the Secretary of State. He repeated the Appellant’s claim as put to the Judge and the points raised in the skeleton argument.
20. First-tier Tribunal judges are deemed to know and apply the law. The current Practice Statement to such judge’s emphasis the need for any determinations they write to be issue based, concentrating on relevant issues and not producing screeds of quotes from statutes, case law, or other determinations, if the same are not necessary. The approach of the Judge in relation to this appeal is therefore in compliance with the Practice Statement.
21. Reliance on a private life based upon the Appellant’s claimed sexuality or a claim of insurmountable obstacles if returned to Pakistan based upon his sexuality, is without merit as the Judge rejected that aspect of this claim as not being credible. What the Appellant is therefore left with is a period of five years in the UK and any friendships he has developed since.
22. The Appellant was right to refer to section 117 as that sets out the Secretary of State’s view of how an Article 8 claim should be considered, specifically in this appeal by reference to section 117B.
23. The public interest is the maintenance of immigration controls. Whilst the Appellant entered the UK lawfully as a spouse his leaving that capacity was cancelled. He has, on any basis, never had the right to settle in the UK.
24. Section 117B(4) provides that little weight should be given to (a) a private life, or (b) relationship formed with a qualifying partner, established by a person at the time when the person is in the UK unlawfully. Section 117B(5) states that little weight should be given to a private life, established by a person at a time when the person’s immigration status is precarious.
25. The Appellant’s status has always been precarious. Whilst it is accepted that the little weight provision involves a spectrum that when it self-contained boundaries will result in the measurement of the quantum of weight considered appropriate to the fact sensitive context of every case – see Kaur (children’s best interests/public interface) [2017] UKUT 14 (IAC) - it is not made out on the facts of this particular appeal that there was anything that warranted anything other than little weight being given to the Appellant’s private life in the UK.
26. The decision of the Judge is that the Secretary of State’s decision is proportionate. That is the decision under challenge. I find the Appellant has failed to establish that is a finding outside the range of those reasonably open to the Judge on the evidence. I find the Appellant as failed to establish legal error material to the decision to dismiss his appeal.
27. On that basis I must dismiss this appeal.

Notice of Decision

28. Appeal dismissed.

C J Hanson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

10 March 2025