Appeal By Ar (ap) Against A Decision Of The Upper Tribunal (immigration & Asylum Chamber)
| Jurisdiction | Scotland |
| Judge | Lord Malcolm,Lady Clark Of Calton,Lord Drummond Young |
| Neutral Citation | [2017] CSIH 52 |
| Date | 04 August 2017 |
| Docket Number | XA108/16 |
| Court | Court of Session |
| Published date | 04 August 2017 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2017] CSIH 52
XA108/16
Lord Drummond Young
Lady Clark of Calton
Lord Malcolm
OPINION OF THE COURT
delivered by LORD MALCOLM
in the Appeal
under Sections 13 and 14 of the Tribunals, Courts and Enforcement Act 2007
by
AR (AP)
Appellant
against
a decision of the Upper Tribunal (Immigration & Asylum Chamber) dated 13 January 2016
Appellant: Winter; Drummond Miller LLP
Respondent: Maciver; Office of the Advocate General
4 August 2017
Introduction
[1] This is an appeal from a decision of the Upper Tribunal (Immigration & Asylum Chamber) dated 13 January 2016, permission to appeal having been granted by this court. The appellant, who has no right to remain in the UK, has resisted his removal to Pakistan on the basis that he would be persecuted on account of his homosexuality. At the outset it is appropriate to outline the long history of the matter.
Decision of 30 August 2013
[2] The starting point is a decision of Judge Quigley of the First‑tier Tribunal dated 30 August 2013 allowing an appeal against a decision of the Secretary of State for the Home Department (the respondent) to remove the appellant to Pakistan. The appeal was allowed on asylum and human rights grounds. The judge noted the low standard of proof in asylum appeals. She accepted the appellant’s evidence that he is homosexual. This was supported by several documents, including a First Information Report (FIR) being, on the face of it, a police record of his detention in Pakistan following an allegation of sodomy, and a Pakistan newspaper article concerning the same matter. The judge held that this material, plus documentation from a gay members club in the UK, lent support to his evidence.
[3] From paragraph 39 onwards Judge Quigley made the following findings. “It is clear from the objective evidence that the situation for homosexuals in Pakistan is extremely difficult”. Punishment can be imprisonment for life. Islamic law, which can also be enforced legally, calls for up to 100 lashes or death by stoning. Gay men receive little protection from the authorities. The United Nations Integrated Regional Information Network has stated that homosexuals in Pakistan “live in constant fear of being ‘outed’ in the country’s astonishingly conservative society which is largely ignorant and intolerant of sexual minorities.” The respondent’s own operational guidance indicates that the Pakistan authorities do not provide gay men with effective protection. Furthermore there are likely to be difficulties in finding safety through internal relocation.
[4] The judge noted that the UK Supreme Court has held that internal relocation is not the answer if it depends on the person concealing their sexual orientation in the proposed new location for fear of persecution (HJ (Iran) [2011] 1 AC 188). At paragraph 42 Judge Quigley concluded as follows:
“I find that this appellant has been the subject of adverse attention in the past by reason of his sexual orientation. I find that were he to be removed to Pakistan, he would resort to concealment of sexual orientation as a result of a genuine fear that otherwise he will be persecuted. Accordingly, on the basis of the objective information considered above, that fear is well-founded. Accordingly, I find that this appellant is entitled to a grant of asylum.”
For the same reasons the judge held that if the appellant was returned to Pakistan there was a real risk that he would suffer a breach of his protected human rights.
Decision of 16 December 2013
[5] On the face of it, Judge Quigley’s was an unchallengeable decision on the facts of the case. However, on 16 December 2013 Upper Tribunal Judge Macleman upheld the Secretary of State’s appeal, essentially on the basis that the judge failed to explain why any weight should be placed upon the documents before her. The presenting officer had made submissions to her on apparent inconsistencies arising from the documents. It had been noted that it was possible that fraudulent documents could be obtained from Pakistan. The judge failed to deal with the case put to her on behalf of the respondent. The Upper Tribunal judge stated that it seemed that the appellant’s behaviour in the UK had always been discreet and low key. “Without a finding based on past adverse attention, it might not follow that the approach explained in HJ (Iran) leads to an outcome in his favour. He has not argued that it suffices to prove that he is from Pakistan and is homosexual” (paragraph 15).
[6] The judge continued at paragraphs 18/20:
“After the hearing I located on file the copy FIR, with translation. This narrates that (the father of the person with whom the appellant was said to have committed an act of sodomy) reported to the police that the (appellant) and his son were committing an unnatural offence in a field of maize, following which ‘at hue and cry we reached the spot and witnessed the occurrence.’ A copy extract, with translation, from the ‘Daily Jang Multan’ reports that (the) father told the newspaper that his son’s friend took his son from his house and sodomised him against his will, leading to his arrest and release. The father complains that the police have not rearrested the appellant but ‘are putting pressure on us to compromise’. He appeals through the newspaper to the Chief Minister of Punjab and other authorities to order the appellant’s arrest. The appellant’s statement on the other hand is that the police were passing by the fields when they spotted the appellant having sexual relations with his friend. The police kept them both overnight and beat them. They released his friend ‘because his parents were wealthy and bribed the police officer’. The appellant then arranged for his friend to pay a bribe and permit his escape, which was followed by the police notifying all local police stations and advertising for his capture. It is not surprising that the presenting officer in the First-tier Tribunal thought that evidence raised some issues. Direct reference to it reinforces my view that its nature and the respondent’s submissions required analysis and resolution by the judge, which is missing from her determination.”
The result was that the Upper Tribunal judge set aside the findings and the determination of Judge Quigley. The matter was remitted to a First‑tier Tribunal with an order that it should not involve Judge Quigley.
Decision of 30 July 2014
[7] A rehearing took place before First‑tier Tribunal Judge Grant‑Hutchison on 30 July 2014. The appeal was refused. The judge noted that on the question of asylum it was for the appellant to establish his case. The standard of proof was not a high one, being lower than the normal civil standard. He agreed with Judge Quigley that the information indicates that Pakistani authorities do not provide gay men with effective protection. If the appellant’s version of events was established, given the terms of the FIR he would come to the attention of the authorities and would be persecuted. Furthermore, if applying HJ (Iran), the appeal would also have been successful.
[8] At paragraph 19 the judge found as follows:
“However I do not find the appellant’s version of events to be credible. The appellant has given radically different versions as to how his family came to find out that he was a homosexual and he came ‘to flee the country’. Of all the events in his life one would expect him to be clear about this. He stated that his family found out about his homosexuality the next day when he escaped from the police and he has also said that they found out when the police published details in the newspaper. However the article lodged was printed some four weeks after the incident. This is an event at the core of his claim and the two versions cannot be reconciled. In addition, as founded upon by the respondent in the letter of refusal, during the appellant’s immigration he was asked at interview if his parents knew he was gay and his response was ‘no they would kill me’. This would be sufficient for me to find that the appellant is not a homosexual and the event that he said led him to leave Pakistan did not in fact occur. However there were further serious contradictions in evidence. For example he said that he sold his kidney to raise money to flee Pakistan and then he states that he gave it to his cousin some 11 years ago. The fact that the appellant travelled on a passport and visa with his genuine name, address, date of birth again this is highly indicative that he was not fleeing Pakistan.”
[9] At paragraphs 21/2 the judge turned to the FIR:
“If there is nothing in the appellant’s version of events, why has the appellant produced a document which is at such variance with his version. There may be reasons. However its existence does render the appellant’s significantly more credible. From the totality of the evidence and submissions before me, I find that if the appellant were to be returned to Pakistan that there is no real risk of serious harm in terms of the humanitarian protection provisions.”
The judge rejected the claims based upon ECHR. The appellant had failed to satisfy him that he had a well-founded fear of being persecuted if returned to Pakistan.
Decision of 20 March 2015
[10] The dismissal of the appellant’s claim for asylum was then overturned on appeal to the Upper Tribunal. Permission to appeal had been granted on the basis that the judge did not take into consideration all the evidence before reaching negative findings about the appellant’s sexuality and the reliability of the FIR. Although the appellant called a witness, TS, there were no conclusions as to his evidence. Additionally, while the judge commented on the content of the FIR, he reached the apparently inconsistent conclusion that the existence of the document rendered the appellant’s evidence significantly more credible.
[11] The appeal was heard by Upper Tribunal Judge...
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