Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001322

First-tier Tribunal No: PA/60754/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

20th June 2025

Before

UPPER TRIBUNAL JUDGE HANSON

Between

SKW
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Mustafa instructed by IIAS Solicitors
For the Respondent: Mr McVeety, a Senior Home Office Presenting Officer.

Heard at Phoenix House (Bradford) on 16 June 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 the judge of the First-tier Tribunal (‘the Judge’) who dismissed his appeal against the refusal of his application for leave to remain on international production and/or human rights grounds.
2. Permission was initially refused by another judge of the First-tier Tribunal but granted on a renewed application by the Upper Tribunal.
3. At conclusion of today’s hearing I announced that I will find no material legal error in the decision of the Judge, for which I now give my reasons in writing.
4. The Appellant is a citizen of Pakistan born on 13 March 2000. He entered the UK legally on 26 October 2020 as a student and made his application for leave to remain on 29 July 2021. The application was refused by the Secretary of State on 29 November 2023.
5. The Appellant appealed the refusal and in his appeal application requested the First-tier Tribunal to determine the merits of the appeal on the papers, for which he paid the appropriate fee.
6. The First-tier Tribunal case management system shows the Secretary of State initially raised the question of whether the appeal should be listed for an oral hearing, having received notice of a paper hearing, but following confirmation the Appellant had only asked for the matter to be determined on the papers, accepted that that was the appropriate venue and method of determining the merits of the appeal.
7. Directions were given by the First-tier Tribunal in response to which the Appellant filed his evidence. The Judge was properly entitled to consider that the Appellant had, in accordance with the directions, provided all the evidence he was seeking to rely upon in support of his claim that he faced a real risk on return to Pakistan as a result of his sexual orientation as a gay man who comes from a conservative Muslim family.
8. The Judge’s findings are set out from [12] of the decision under challenge.
9. The Appellant sought permission to appeal on 4 grounds, being procedural unfairness and failure to apply anxious scrutiny, misapplication of the lower standard of proof, inadequate engagement with the HJ (Iran) principles, and failure to consider the private life/article 8 ECHR aspect of the Appellant’s claim.
10. Although the judge of the upper Tribunal who granted permission expressed doubt in relation to Grounds 1, 2, 3, he did not limit the grant of permission to appeal; meaning all the pleaded grounds were available to be argued by Mr Mustafa.
11. Ground 1 is disingenuous. It asserts the Tribunal decided the matter on the papers observing only that the Respondent consented with no explicit indication that the Appellant or its representatives actively agreed to waive an oral hearing. The First-tier Tribunal case management notes reveal the correct situation:

Submission details
Home Office decision letter sent
3 Nov 2023
Appeal submitted
13 Nov 2023
Was the appeal submission late?
No
How do you want the appeal to be decided?
Decision without a hearing. The fee for this type of appeal is £80
Payment status
Paid
Payment date
2023-11-13T16:41:53.190+0000

12. Whilst it is accepted the Judge had the power to direct the appeal should be listed for an oral hearing it is not made out there was anything in the evidence that required the Judge to do so. I find no legal error made out in the Judge proceeding to determine the merits of the appeal on the papers as requested.
13. The argument there should have been an oral hearing as there are credibility issues is without merit. There is nothing to support an argument that if credibility was in issue there should have been an oral hearing per se. The Appellant and his representatives were aware of the issues and the evidence they wished to adduce.
14. The ground also asserts error for what is described as “mental health overlooked” but this does not establish legal error in the decision actually made. Again, the Appellant’s representatives will have been aware of his health issues. The argument that where mental health or vulnerability is raised the Tribunal is obliged to consider special measures, such as an in-person hearing, is an unsubstantiated comment and one without merit. Again, the Judge had the power to direct an oral hearing but did not as there was nothing to show the matter could not be properly determined in the requested manner.
15. No material legal error is made out in relation to Ground 1.
16. Ground 2 asserts misapplication of the lowest standard of proof, but this claim is without merit. The ground asserts the Judge placed disproportionate emphasis on the delay in the Appellant claiming asylum “effectively overshadowing other plausible explanations offered by the Appellant”.
17. It is important to read the determination as a whole. The Judge records the Respondent's criticised the timing off the asylum claim. The Judge also records at [13] the Appellant’s explanation for the delay. The Judge then goes on to accept the Respondent’s argument and found the failure to claim asylum earlier undermined to a degree the credibility of the Appellants claim to be in need of international protection, but then specifically writes ”however, this matter is not determinative in itself”. That is a correct legal self-direction in relation to how such evidence should be treated.
18. It is not made out the Judge did not apply the correct burden and standard of proof when assessing the evidence as a whole or when considering how the delay in making his claim factored into the overall matrix.
19. This ground also asserts an overreliance on the absence of corroborative evidence but such a claim is totally without merit. The Judge does not dismiss the appeal on the basis they required evidence from a third-party source before they would believe any aspect of the claim. The ground refers to [15-16] of the decision under challenge in which the Judge wrote:

15. However, the Appellant has been in the UK for several years, claiming to be living openly as a gay man, has said that he mixes with people the LGBTQ+ community, and that he has attended Gay Pride marches. If all of that were correct, I would have expected him to be able to provide witness and/or other evidence from people in the UK, to support his claims. The only real evidence I have before me is of some photographs. These show the Appellant with a small group of people, in an undisclosed location, at an unknown time and date. It is not clear that this is a Pride event, or, if so, when and where it occurred. There are Pride flags apparent, and in two photographs the Appellant is holding one, but it is not clearly established from these photographs that the Appellant is a gay man.

16. In interview, the Appellant has stated that he volunteers at a gay club in Bradford. He states that he has had relationships with a few gay men, and is on good terms with them. He has also said in interview that he occasionally speaks to his brother in Pakistan. However, there is no supporting evidence from any of these potential sources, to confirm he is gay. There is a notice from a Pakistan newspaper dated 3 September 2021, purporting to say the Appellant's father has disowned him, but this is described as being for ‘defiance, waywardness and obstinacy’. This is not adequate to show that he has been disowned for his sexuality.

20. The observations by the Judge a relation to the poor quality of the evidence provided is a finding reasonably open to the Judge. At [17] the Judge writes that on all the evidence that was made available the Appellant had not provided sufficient evidence to prove to the lowest standard that he is a gay man or that he had the experiences in Pakistan which he describes. That is not a finding by the Judge that they dismissed the claims for want of corroboration but a finding that the evidence that was provided was insufficient to meet the required legal test.
21. Whilst the Appellant disagrees with the outcome of the assessment it does not mean that the Judge erred in the manner in which the evidence that was made available was assessed. No legal error is made out relation to Ground 2.
22. Ground 3 asserts an inadequate engagement with the HJ (Iran) principle but such claim is without merit. The ground is a distortion of the correct application of this principle on the facts of this case, accusing the Judge of legal error in not undertaking a structured approach required in that case, but focusing upon whether the Appellant had proved he was gay. The reason the Judge focused on that question is because that was at the core of the Appellant’s claim that he will face a real risk on return to Pakistan as a gay man. HJ(Iran) established that if a person has a belief, orientation, or something that forms part of their fundamental identity, and that they are not able to express that in their home state for fear of persecution, they are entitled to be recognised as a refugee. In this case the Appellant alleged the fundamental element is his sexual identity as a gay man. The Judge gives ample reasons why the Appellant did not establish his claim and had not made out that his claimed sexual identity as a gay man was credible. That is a legally and factually sustainable finding. As a result, there was nothing else in the evidence so would engage the HJ (Iran) principle. The Judge did not find the Appellant’s claim to be gay was credible and there was nothing in the evidence to warrant a finding that he would be perceived as being gay, and therefore nothing to show that he would live openly in a manner that would expose him to persecution in Pakistan, or that he needed to hide to avoid persecution.
23. Ground 4 asserting the Judge erred in failing to consider the Appellant’s private life under Article 8 ECHR has merit. There was discussion during the hearing as to what evidence was actually available before the Judge in relation to this aspect of the claim. The reality is there is a brief mention in the final paragraph of the Appellants witness statement that sending him back to Pakistan will infringe his Article 8 rights and a very brief mention in his representative’s skeleton argument repeating that claim.
24. The Judge’s finding in relation to the core issue mean no family life element is made out, although the Appellant’s friends and social activities in the UK as well as studies and similar, would form part of his private life. Those matters were not, however, particularised.
25. Mr Mustafa was asked how, in light of the findings actually made, if the Judge had undertaken the necessary assessment it was likely to be found that the decision of the Secretary of State was disproportionate. Despite his best efforts he could not establish this was the case.
26. The Appellant enters the United Kingdom on 26 October 2020. Although he initially entered lawfully as a student his status has always been precarious. He formed his private life during the time when he had no long term right to remain in the United Kingdom and had had no legitimate expectation he will be entitled to remain. The evidence before the Judge in relation to the nature of the private life was, as with all the other evidence, practically non-existent.
27. The Secretary of State in her review dated 17 May 2024 rejected the Appellants claim that there will be very significant obstacles to his integration into Pakistan, the Appellants claim he could not establish a private life in Pakistan or that to do so would entail very serious hardship, his claim to succeed under Article 3 ECHR on medical grounds in relation to mental and physical health, and any claim he would not be able to access any treatment he required in Pakistan. Despite knowing that these issues were a large, the Appellant did not satisfactorily address any of them to a degree sufficient to establish any basis for the Judge finding he was entitled to succeed on any basis under the ECHR or Human Rights Act.
28. There is nothing in the evidence to show there will be a breach of Article 3 on medical grounds, the core aspect of the claim he relied upon to support his argument he could not return was found not to be credible by the Judge in sustainable findings, and when one balances the limited evidence made available in relation to his private life in the UK with the strength of the public interest in the effective enforcement of immigration control, with particular regard to the limited weight to be given to the Appellant's private life under section 117B of the Nationality, Immigration and Asylum Act 2002 as it was formed during the time the Appellant’s status in UK is precarious, it is not made out the Appellant would have come anywhere near to establishing any interference in his private life in the UK is not proportionate.
29. On that basis I find that even though the Judge did not specifically deal with this issue any error is not material as had the Judge dealt with it, the outcome would have been the same with the appeal being dismissed.

Notice of Decision

30. The First-tier Tribunal has not been shown to have materially erred in law.
31. The determination shall stand.

C J Hanson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

16 June 2025