JM v The Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeSenior Immigration Judge King TD
Judgment Date30 November 2007
Neutral Citation[2008] UKIAT 65
CourtImmigration Appeals Tribunal
Date30 November 2007

[2008] UKIAT 65

Asylum and Immigration Tribunal

THE IMMIGRATION ACTS

Before

Senior Immigration Judge Goldstein

Senior Immigration Judge King Td

Mrs A J F Cross De Chavannes

Between
JM
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation:

For the Appellant: Mr S Chelvan of Counsel instructed by Wesley Gryk, Solicitors

For the Respondent: Mr C Bourne, Counsel, instructed by the Treasury Solicitor

JM (homosexuality: risk) Uganda CG

Although there is legislation in Uganda which criminalises homosexual behaviour there is little, if any, objective evidence that such is in fact enforced. Notwithstanding a prevailing traditional and cultural disapproval of homosexuality, the evidence does not establish that in general there is persecution of homosexuality in Uganda.

DETERMINATION AND REASONS
1

The appellant is a citizen of Uganda born on 2 nd May 1975. He first arrived in the United Kingdom on 17 th August 2000 and was given six months leave to enter as a visitor. After that he did not seek to renew his leave but claimed asylum on 28 th March 2002. Essentially, the basis of his claim was that as a homosexual he would face persecution or other degrading treatment in Uganda were he to return.

2

By a decision of 4 th April 2002, the Secretary of State refused to recognise the appellant as a refugee and issued directions for his removal. The matter came before an Adjudicator, Mrs P Wellesley-Cole, for hearing on 12 th March 2003. The appeal was dismissed in all respects.

3

The appellant sought to appeal to the Immigration Appeal Tribunal which appeal was heard by a panel of two Vice Presidents on 28 th July 2003. The appeal was dismissed.

4

Thereafter an appeal was made to the Court of Appeal against the decision of the AIT. By an order of Keene LJ on 23 rd November 2004, the decision of the Immigration Appeal Tribunal was quashed and the matter remitted to the AIT for a fresh hearing before a differently constituted Tribunal.

5

There was a further period of delay before the matter came back before the Asylum and Immigration Tribunal. The first stage for reconsideration was conducted by a panel of Senior Immigration Judges on 24 th July 2006, the focus of that reconsideration being the original determination of the Adjudicator. The Tribunal did not find her determination to be clear as to the central issues. A material error of law was found giving rise to a second stage reconsideration, all issues to be at large. Details of the decision are set out as follows:–

“REASONS FOR THE DECISION THAT THERE IS AN ERROR IN THE DETERMINATION:

This appeal came before an adjudicator (Mrs P Wellesley-Cole) on 12 March 2003. The adjudicator dismissed the appeal and an appeal against the determination of the adjudicator was dismissed by the Immigration Appeal Tribunal on 30 April 2004 following a hearing on 28 July 2003. The reasons for the delay are unclear. The appellant appealed successfully to the Court of Appeal who in a consent judgment quashed the decision of the Immigration Appeal Tribunal and remitted the appeal before a differently constituted Tribunal.

Unfortunately the reasons given by the parties in the consent order are not before the Tribunal but the representatives told us it revolved around the question of the Tribunal's approach to the British High Commission letter dated 20 July 2000.

The discussion before us centred on the interpretation to be given to the adjudicator's findings about the appellant's homosexuality. In paragraph 16 of the determination the adjudicator said “Whilst I accept this sensitive young man who nervously gave his evidence in barely a whisper is quite possibly homosexual, I believe that this application which was made some eighteen months after his entry to the United Kingdom and a year after his leave had expired does to some extent damage his credibility to be in need of international protection. Despite his explanation that he needed to gather the necessary evidence, I am of the opinion that if genuinely fearing persecution in Uganda to which he returned after a sojourn in Kenya, he would have applied for asylum at the earliest opportunity and not ostensibly when he had no further leave to remain in this country.” One particular sentence in paragraph 22 of the determination was interpreted by Mr Chelvan for the appellant as evidencing an error. Having referred to the appellant's belief that it would be a matter of time before his homosexuality was discovered on return to Uganda, the adjudicator observed:

“However, in my view this is mere speculation on his part if he indeed is in a discreet homosexual relationship which I consider he could be in.”

Mr Chelvan submitted that the adjudicator was in effect requiring the appellant to be discreet on return to Uganda. However, an alternative interpretation was that the adjudicator was simply making a finding that the appellant was being discreet in a relationship in the United Kingdom.

We gave Mr Chelvan the opportunity to take further instructions about whether further findings of fact were necessary because of an arguable lack of clarity in the adjudicator's findings. The adjudicator appeared to have had at least reservations about the appellant's general credibility and there are at least question marks about whether the appellant had a subjectively held fear at all. Having had the opportunity to speak both to his instructing solicitors and to the appellant counsel accepted that the case should be adjourned for a fresh hearing to enable clear findings of fact to be made. Mr Gulvin for his part accepted the need for fresh findings but stated that the appellant's homosexuality would not appear to be in contention.

We do not find the adjudicator's determination to be clear on what may prove to be a central issue. If the adjudicator was finding that the appellant was discreet in the United Kingdom then there would be no particular reason to suppose he would not be discreet in another country. In so far as it was necessary to be “discreet” in Uganda the appellant would not arguably be required to modify his behaviour and so it might be difficult to argue that his human rights had been infringed, although we appreciate there are other issues that require investigation.

This is an appeal where the issues are not limited to issues of law. We find the adjudicator's findings to be lacking in clarity. Accordingly it is necessary to have fresh findings of fact and the Tribunal can then consider the up-to-date background material in addition. In view of Mr Gulvin's statement as to the Secretary of State's position, the Tribunal is unlikely to disturb the finding that the appellant is a homosexual.”

6

Thus the matter comes before us by way of that second stage reconsideration.

7

We were presented with a substantial volume of documentation and evidence which will be identified in greater detail in the annex attached hereto. Essentially Mr Chelvan, who is acting for the appellant, submitted detailed evidence in the form of statements, expert evidence and background evidence to be found in bundles 1 and 2. A large number of authorities were also submitted under cover of bundles 1, 2 and 3. In addition to the bundles, we were presented with further documents and reports which will be referred to below.

8

Mr Chelvan, who represents the appellant, submitted for our attention a skeleton argument dated 15 th October 2007 and a supplementary skeleton argument dated 18 th October 2007.

9

On behalf of the respondent, Mr Charles Bourne, Treasury Counsel, presented for our attention a skeleton argument and a number of documents contained in the respondent's bundle.

10

The appellant was interviewed in connection with his claim on 1 st April 2002. There are some three statements which he made in response to the letter of refusal and in further amplification of his claim. The last such statement was dated 12 th October 2007. In addition, the appellant gave oral evidence and called a number of witnesses.

11

In summary the appellant was born in Kampala as one of five children, all boys. At the time when the appellant submitted his statement of evidence in support of his claim for asylum, his eldest brother worked for UNESCO, another brother worked for the Post Office and a third for the United Nations in Sierra Leone. The last brother was then still at school.

12

After completing the formal part of his education the appellant studied for a diploma in Nairobi at a beauty school to learn the art of hairdressing and beauty care. He applied for a job in Nairobi and became a hairdresser in the Urumbo Beauty Centre in Nairobi. In Nairobi he attended gay nightclubs and would see gay men. However, the government began to close down such clubs and arrest gay people and the appellant decided to return to Uganda.

13

He opened a small hairdressing and beauty salon which he ran for a number of years. There came a time when he received an invitation from his cousin Josephine, who lived in the United Kingdom, to come and visit her. This he did. At first he was reluctant to speak about his homosexuality but eventually confided in her. It is the case, as advanced on behalf of the appellant, that in the United Kingdom he was able to express his sexuality to its fullest extent and enjoys frequenting gay bars and being with other homosexual or lesbian people as well as heterosexual people. It was his contention that if his family in Uganda were to know about his lifestyle they would reject him and that he would be the subject of persecution at the hands of the authorities in Uganda were he to return. Whilst in the United Kingdom the appellant has enjoyed a number of homosexual relationships, indeed one of his former partners was present at the hearing. The appellant in his written statements described himself as “feminine and softly spoken”. From our observations of...

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