Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001571

First-tier Tribunal: PA/59974/2023
LP/01396/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

27th June 2025

Before

UPPER TRIBUNAL JUDGE NORTON-TAYLOR
DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

SK
(ANONYMITY ORDER MADe)
Appellant
v

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Karue, Malik & Malik solicitors
For the Respondent: Ms Mackenzie, Senior Home Office Presenting Officer

Heard at Field House on 4 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 is a national of Pakistan, born in 2001. He claims to have discovered that he was gay in 2015. On 10 March 2020 the Appellant was granted a Tier 4 visa and he entered the UK on 25 March 2020. He claimed that in August 2020 his family in Pakistan discovered his sexual orientation through the Appellant’s childhood friend, S, and threatened to kill him as a consequence. The Appellant claims that this father withdrew funding for his course. His student visa was curtailed on 19 August 2020.

2. The Appellant made a protection claim on 23 September 2020. This application was refused in a decision dated 11 October 2023 on the basis that his sexual orientation was not accepted. The Appellant appealed against this decision and his appeal came before a First tier Tribunal Judge for hearing on 24 January 2025. In a decision and reasons promulgated on 17 February 2025 the appeal was dismissed.

3. The Appellant sought permission to appeal to the Upper Tribunal on 26 February 2025 on the following grounds:

(a) Inadequate weight and/or consideration afforded to the significant corroborative evidence of the Appellant’s transgender friend KK;
(b) Flawed credibility finding and material factual error – ability to name some gay clubs;
(c) Inadequacy of reasons, reliance on implausibility and procedural unfairness regarding findings at [32]-[33];
(d) Failure to make findings and consider relevant evidence – no finding regarding the Appellant’s relationship with S; no finding as to whether or not the judge accepted that the Appellant lost his phone; failure to take account of his full explanation for this as the judge provided no factual or expert basis for his finding relating to the Appellant’s ability to obtain data from stolen phone. Inadequate reasons provided for finding photos could have been staged;
(e) Inadequate assessment of article 8 – perceived to be gay.

4. In a decision dated 8 April 2025, permission to appeal to the Upper Tribunal was granted on the basis that:

“it is arguable that the findings in relation to the Appellant’s sexuality are flawed for the reasons and on the evidence set out in detail in the grounds of appeal. It is arguable in light of the evidence averred to in the grounds that the finding that the Appellant’s account was vague and lacked detail was inadequately reasoned and that material corroborative evidence was not engaged with and/rejected without adequate reasoning.”

5. Prior to the hearing the Respondent served a typed copy of the Presenting Officer’s minute or record of proceedings before the First tier Tribunal.

6. At the hearing before the Upper Tribunal, we heard submissions from Mr Karue on behalf of the Appellant in line with the grounds of appeal. He pointed out that both the Appellant and the witness, KK, mentioned GAY club and the 800 Club and that the judge had failed to recognise the similarity in their evidence in this respect. The Appellant also mentioned Little Ku, Halfway to Heaven and Bar Soho in his witness statement of 11 March 2024 at [38]. He also stated he had been in contact with Iman (Imaan) LGBT and used an app called Grindr.

7. Mr Karue accepted that the Appellant had not made headway in respect of his lost phone and the inability to retrieve his messages. There was no expert evidence on data recoverability that contradicted his account and he relied on [23] of the grounds of appeal.

8. Mr Karue submitted that at [24] the judge’s finding in respect of the photographs of the Appellant with various friends was highly speculative. The Appellant has produced a membership card for a Gay club and the judge had failed to provide adequate reasons to find that the photographs and evidence provided in support of his claimed sexual orientation was insufficient. The Appellant was not aware he could obtain evidence from Grindr. It was clear from the record of proceedings that this point was put to the Appellant and he said he had shared images with his solicitors and he had done what was asked of him in interview.

9. In her submissions, Ms Mackenzie opposed the appeal and submitted that the grounds of appeal were no more than a disagreement with the judge’s findings. With regard to the witness, KK, at [32](e) the judge found his account to be plausible and attached some weight to it but this is not a straitjacket and the fact that the judge found his evidence to be plausible certainly did not mean that the Appellant’s account of be a gay man should be accepted. Ms Mackenzie submitted that there were some discrepancies in the answers given by KK as set out in the Presenting Officer’s record of proceedings and the judge was entitled to take that into account.

10. With regard to gay clubs, whilst Ms Mackenzie accepted that there was an error in the judge’s analysis she submitted that it was not material because mention of all the gay clubs was not contained in the Presenting Officer’s minute and the judge found that even without GAY being mentioned that none of the information said by KK was mentioned by the Appellant at any time. Whilst KK mentioned Club 800 and Kahli there is still a discrepancy as KK does not mention other clubs.

11. As to Ground (c), Ms Mackenzie accepted that this was a reasons challenge but that where the judge says there is a lack of corroborative evidence this is sufficient reason and there has been no challenge to the fact that the judge required corroborative evidence with regard to information about the Appellant’s family and how he found out he was gay. Ms Mackenzie relied on the fact that there was no expert evidence cf. Lata and responsibility was on the Appellant to provide the court with any evidence.

12. With regard to the photographs, Ms Mackenzie submitted that it was not speculation at all and that the judge set out an alternative point to the photographs being staged which was more of a comment with regards to the SSHD’s refusal decision at [5] which said that photographs were staged. She submitted that the judge is referring to the review at [5]–[21] which refers to AB 52-133 and so to all the photographs that were submitted.

13. In reply, Mr Karue submitted that with regard to the issue of the clubs attended by the Appellant, the names provided in his witness statement are consistent with KK’s evidence. Further, the judge failed to assess the evidence of both that they attend private parties. On the point that the judge found that the Appellant had not mentioned as many names as KK, he submitted that if the judge found KK’s account of the clubs attended is credible that would also suggest that the Appellant’s account as to the clubs he attended has been credible. On the point about a lack of evidence regarding corroborative messages, Mr Karue submitted that the judge’s factual conclusion is an error given the Appellant’s evidence that he tried to recover messages from his lost phone but that it was not possible. Whilst he accepted that the burden of proof is on the Appellant, he submitted that when the issue arose at the hearing, he said that he had attempted to recover the data and that he asked other people (in phone shops) he was not asked why it would not be possible to retrieve this given it happened 18 months before.

14. We reserved our decision which we now give with our reasons.

15. We make the following findings:

15.1. With regard to Ground (a) and whether the judge gave inadequate weight and/or consideration to the significant corroborative evidence of the Appellant’s transgender friend, KK, we note that the weight to be attached to evidence is a matter for the judge hearing that evidence. In this case the judge at [32](e) attached “some weight” to KK’s evidence and at [33] repeated this finding, but then proceeded to find that this evidence, that the Appellant is gay, was outweighed by “the other evidence in this case.” We find this approach was open to the judge and does not constitute a material error of law.

15.2. Ground (b) asserts that the judge made flawed credibility findings and a material factual error. At the hearing before us, the focus of this ground of appeal was the judge’s finding at 32(a) that the Appellant was unable to recall the names of gay clubs he attended which was, the judge found, in stark contrast to his friend, KK, which the judge found was not determinative but undermined the Appellant’s credibility. However, we find that, in fact, the Appellant did recall a number of names of clubs across the evidence. In his witness statement of 11 March 2024 at [38] the Appellant mentioned the 800 club in Walthamstow, GAY, Little Ku, Halfway to Heaven and Bar Soho. In oral evidence, in response to cross-examination the Appellant said he would go to Soho and that there are a quite a few clubs there, he would go to gay lit and GAY bar but generally they have private parties. He was asked if GAY bar was the only one he remembered and he said he could not remember the names and did not want to cause confusion if he got the name wrong. We note that there is a slight divergence between the Presenting Officer’s note which records only GAY bar and his representatives’ note which records GAY bar and gaylit. KK said that they would normally go to Asian clubs and explained there are clubs where the majority of people who go to them are Asian eg club Kali and club 800. The judge also questioned KK about clubs, whether club 800 was just for Asians, to which the witness said it was for everyone and whether the Appellant also goes to club Kali to which the witness said that he did sometimes. He added that the Appellant went to club 800 in a dress. Whilst the evidence of the Appellant and KK was not identical, it is the case that both the Appellant and KK consistently referred to the 800 Club and we find that the judge failed to provide sufficient reasons for finding against the Appellant on this issue. We further find that the judge does not appear to have factored into his credibility assessment the fact that both the Appellant and KK mentioned that they attended private parties. We find that the judge’s approach to this evidence amounts to a material error of law.

15.3. With regard to Ground (c), which asserts the judge at [32](a) and (b) provided inadequate reasons and utilised implausibility to arrive at a credibility finding and procedural unfairness, this primarily concerns how the Appellant’s parents would have discovered his sexual orientation. The judge found that the circumstances in which his family came to know of his sexuality, that his former intimate partner, albeit not a sexual partner, S, was messaging the Appellant from Pakistan on his wedding night and his wife saw the messages and informed her parents, who informed the Appellant’s parents, was “highly improbable and appears to be tailored to explain how his family discovered he is a gay male in August 2020.” The judge noted that this account was inconsistent with what the Appellant said in his asylum interview, which was that the Appellant’s family found out about his sexuality through friends in August 2021 and does not mention S as the source of disclosure to his family. We find that this finding was open to the judge for the reasons he gave.

15.4. Ground (d) asserts that the judge failed to make findings or consider relevant evidence, in particular that the judge failed to mention or make any findings in respect of a statement from the Appellant’s friend, Abdullah Kochay which states he and the Appellant attended parties and clubs together, nor did he make any finding as to whether or not the Appellant had an intimate relationship with S in Pakistan. We find that the judge erred in failing to take into consideration the potentially corroborative evidence in the form of Abdullah Kochay’s statement or make a finding in respect of the Appellant’s claimed intimacy with S.

15.5. At [32](c) the judge held that the lack of corroborative messages with S, evidence of online activity on the gay dating scene and the absence of any WhatsApp messages from his family evidencing their knowledge of his sexuality and threats to kill and harm him was another weakness in his case. The judge held: “I Cloud and WhatsApp data is accessible from a user account regardless of the phone terminal used to access it. Accounts can be recovered and new passwords set.”

15.6. The Appellant stated in cross-examination that he had the evidence of threats on his phone but he lost that phone in Edgware. He was asked why he did not think to seek advice to help him retrieve the evidence and he said he spoke to two or three people and did go to some mobile (phone) shops but they said they could not do anything for him. The Presenting Officer’s record of proceedings shows that the judge also questioned the Appellant on this issue, asking whether he had an android or an apple phone and whether the Appellant had tried to re-set the password on a new phone. The Appellant was also asked in cross-examination why his photos and messages were not backed up on the cloud to which the Appellant responded that he had tried his best to recover them but he could not remember the password. He also said that he did share images (with regard to Grindr) with his solicitors so he did what was asked of him at his interview. He did not know if he had given his solicitors a Grindr timeline. Whilst the judge took the view that the information was accessible, there was no expert or any other evidence to support that view and we find that it is not a matter for judicial notice as to how the Appellant could or should access information from a lost phone. We find that this is material to the judge’s overall consideration and that the Appellant’s explanation was only rejected by the judge on the basis of what he believed the overall situation to be. We find this constitutes a material error of law.

15.7. At 32 (d) the judge held in relation to a large number of photographs [AB 88-169 and SB 12-20] that: “I have to accept these could be staged or at the very least depict homosexual males and the appellants simply having his photograph taken with them and that the photographs do not necessarily mean that he too is gay. I therefore attach limited weight to these photographs.” The judge repeated this finding in similar terms at [33] stating: “I attached limited weight to it because of the real possibility that those photographs are staged and contrived for the purpose of projecting a gay lifestyle that does not in fact exist.” The Appellant was asked about the photographs in cross-examination when he said that: “those photographs were taken from everywhere at parties, get togethers, when we go to the sauna.” We find that the large number of photographs and the number of different persons depicted, although some are the same and include the witness, KK, in a variety of different settings would mitigate against the possibility that they are staged. Whilst the weight to be attached to the evidence was a matter for the judge, we find that the judge erred materially in law by failing to give clear and sustainable reasons as to why he ultimately concluded that the photographs were staged and not a genuine representation of the Appellant’s lifestyle, particularly when considered alongside the evidence of KK who the judge found to be plausible. The reasoning which was provided proceeded from the either or premise that the photographs were contrived unless proved otherwise by the appellant (in respect of the first quote set out earlier in this paragraph), or that the standard of proof had been reversed (in respect of the second quote).

15.8. We find no error of law with regard to ground (e), which asserted that the judge erred his assessment of article 8 and whether there would be very significant obstacles to the Appellant’s integration into Pakistan as we find this ground stands or falls with the protection claim.

16. However, for the reasons set out above we find material errors of law in the decision and reasons of the First tier Tribunal Judge which go to the heart of the claim i.e. the credibility of the Appellant’s account that he is a gay man. For that reason, we find that the decision as a whole cannot stand.

17. We have considered whether to remit this appeal or retain it in the Upper Tribunal. Given the nature of the errors of law we have identified and their centrality to the question of credibility, it is appropriate to remit.

Notice of Decision

18. We set the decision of the First tier Tribunal aside and remit the appeal for a hearing de novo with no findings preserved.

Directions to the First-tier Tribunal

(1) This appeal is remitted to the First-tier Tribunal (Hatton Cross hearing centre) for a complete re-hearing;
(2) The remitted hearing shall not be conducted by First-tier Tribunal Judge Dobe.

Rebecca Chapman

Deputy Upper Tribunal Judge Chapman
Upper Tribunal (Immigration & Asylum Chamber)

16 June 2025