Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000713

First-tier Tribunal No: PA/02424/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 13th of May 2025

Before

UPPER TRIBUNAL JUDGE LOUGHRAN

Between

MA
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms B Efurhievwe, Counsel instructed by Buckingham Legal Associates
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

Heard at Field House on 11 April 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 the permission of First-tier Tribunal Judge C M Monaghan against the decision of First-tier Tribunal Judge Lucas (‘the judge’) dated 13 December 2024.
Background
2. The appellant, a citizen of Pakistan, born on 7 January 2000 appeals against the decision of the respondent made on 21 September 2023 to refuse his protection and/or human rights claim. The appellant entered the UK on 13 January 2021 on a student visa. He claimed asylum on 21 October 2021. He had a screening interview on 25 October 2021 and a substantive asylum interview on 18 August 2023.
3. The appellant claims that he is a bisexual man and that he will be killed or otherwise persecuted by his family or others on return to his home country. The appellant states that he informed his father about his sexuality during a phone call on 22 September 2021. He states that after he informed his father he received other calls from his mother and members of his family and he was told by his older brother that he would be killed on return. He claims that his uncle and father have political connections in Pakistan. The appellant also claimed that he had been cohabiting with a gay man since March 2024.
The appeal to the First-tier Tribunal
4. The appeal came before the judge on 12 December 2024. The appellant gave evidence. The appellant’s claimed partner did not attend the hearing and it was said that their relationship had ended one month before. Another witness did attend the hearing and he gave evidence that the appellant had told him about his fears in Pakistan, that he had seen the appellant with his former partner and that he believed their relationship to be a genuine one.
5. In the decision dated 13 December 2024 the judge dismissed the appeal. The judge’s findings included the following:
a. It was not credible that just before the expiry of his student visa and before he claimed asylum the appellant decided to tell his father about his sexuality. The judge found despite that the appellant’s explanations it was incredible, implausible and manufactured simply to submit an opportunistic claim for asylum. [paragraph 53]

b. The appellant was able to hide his sexuality in Pakistan. [paragraph 55]
c. There was very little evidence to support the appellant’s claim other than the evidence of the appellant himself. His comments about his sexuality and its development “appear practised and rehearsed and have clearly been developed for this appeal.” There was no evidence of calls or threats made to the appellant from his father, uncle or other family members. There was little or no evidence of his relationships in the UK. His former partner had not had his evidence cross examined as he did not attended the hearing and the judge “doubt that it occurred at all.” [paragraphs 56-60]
d. The judge noted that there was evidence from a supporting witness, but considered that his evidence “is almost totally dependent upon what the appellant told him.” The judge acknowledged that the witness said that they saw the appellant with his partner in a relationship, but had produced no evidence of that assertion. [paragraph 61]
e. There was no evidence from any independent source to suggest that that the appellant had attended any LGBT events or functions at all. [paragraph 62]
f. There was little or no evidence of the appellant’s alleged promise to be married to his cousin. In any event the judge considered that that fact may or may not be the case, but it would not place the appellant at risk on return and was not unusual within the context of Pakistan. [paragraph 64]
g. The judge accepted that the appellant may have mental health issues but in his view they were unconnected with a claim that was otherwise implausible. In any event there were mental health facilities available in Pakistan. The judge did not accept that Article 8 ECHR was activated by the claim. The appellant has a large family in Pakistan and came to the UK to study. The appellant had been able to maintain himself in the UK and could continue to do so in Pakistan. [paragraph 66]
The appeal to the Upper Tribunal
6. The appellant applied for permission to appeal to the Upper Tribunal relying on the following grounds.
Ground 1: Inadequate assessment of credibility.
The appellant submitted that the judge ’s reliance on plausibility as the basis for rejecting his account demonstrates a flawed approach to the credibility assessment. It was submitted that the appellant’s actions were not so implausible that no reasonable decision maker could have believed them and that it was not uncommon for individuals who were gay or bisexual to disclose their sexuality to their parents. In addition, it was submitted that the appellant had addressed these issues in his witness statement and that the Home Office guidance on assessing credibility supported the appellant’s approach to his claim. It was also submitted that the judge’s insistence on corroborative evidence was a material error of law.
Ground 2: Failure to engage with Article 3 ECHR arguments.
It was submitted by the appellant that while the judge referred to the supplementary bundle the analysis of Article 3 arguments was inadequate. The appellant claims that there would be a breach of Article 3 because there would be a serious, rapid and irreversible decline in his health leading to intense suffering and that this had not been addressed by the judge at all.
Ground 3: The judge dismissed the supporting evidence from the witness as hearsay without substantive reasoning.
The witness corroborates key elements of the appellant’s account including his openness about his sexuality in the UK and threats from his family. Requiring the witness to provide corroborative evidence of what he was told adds an additional hurdle.
7. It was also submitted at the hearing by Ms Efurhievwe that the errors cumulatively showed that the judge had applied a higher burden and standard of proof on the appellant.
8. On 29 January 2025, the First-tier Tribunal granted permission to appeal on ground 1, but refused on grounds 2 and 3. The First-tier Tribunal stated:

It is arguable that the Judge has fallen into error in his assessment of credibility and may have placed too much weight on whether the actions of the Appellant were plausible.
There is no arguable error in respect of ground 2. The Judge was not asked to consider a breach of Article 3 on health grounds. This was not in issue in the Appeal.
The Judge made no material error in his assessment of the witness evidence. Further he came to a conclusion which was open to him, namely that there was insufficient evidence to establish the Appellant’s bisexuality. However this finding may arguably be infected by the inadequate assessment of credibility raised in ground 1.
Discussion
9. I am satisfied that the judge materially erred in his assessment of the appellant’s credibility.
10. The Court of Appeal in HK v SSHD [2006] EWCA Civ 1037 and MAH (Egypt) [2023] EWCA Civ 216 has emphasised that the plausibility of an account could not be gauged by domestic standards. The appellant explained that he disclosed his sexuality to his father because of the pressure placed on him to return to Pakistan to marry his cousin, that he felt he could not continue hiding his true self and he believed he needed to be honest with his father.
11. In rejecting the appellant’s account to have told his father about his sexuality on the basis that it was “incredible, implausible and manufactured” I am satisfied that the judge looked through his own prism of what was reasonable without considering what a bisexual man from Pakistan might reasonably do.
12. There is no requirement that the applicant must adduce corroborative evidence [Kasolo v SSHD (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. For example, if 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.
13. The judge repeatedly comments on the lack of evidence in the appeal. The judge notes the evidence from the supporting witness that he say the appellant with his partner in a relationship but comments that he “produces no evidence of that assertion.” The judge does not identify what corroborative evidence he expected the witness to provide. I am satisfied that the judges repeated requirement of corroborative evidence amounts to a material error of law.
14. In respect of the appellant’s claim to have been in a relationship in the UK, the judge found that he “doubt that it occurred at all.” The appellant claimed asylum before 28 June 2022 and his case is therefore to be assessed without reference to the statutory changes wrought by s31-36 of the Nationality and Borders Act 2022. The judge was required to make a finding as to whether the relationship occurred to the lower standard of proof i.e. a reasonable degree of likelihood. Accordingly, the judge’s doubt that it occurred did not exclude a finding to the lower standard that had occurred. I am satisfied that this indicates the judge applied a higher standard of proof to the appellant’s claim.
15. The hearing will need to be heard afresh. No findings of fact can be preserved.
16. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), 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.
17. Given that credibility is in issue and the appellant relies on his own evidence, witness evidence and there are significant findings of fact will need to be made, I am satisfied the matter should be remitted to the First-tier Tribunal to be reheard.
Notice of Decision
18. The decision of the First-tier Tribunal contains an error of law, and accordingly the decision is set aside in its entirety with no findings of fact preserved.
19. This appeal is remitted to the First-tier Tribunal for a fresh hearing to be heard by a different judge.

G. Loughran
Judge of the Upper Tribunal
Immigration and Asylum Chamber

6 May 2025