Upper Tribunal (Immigration and asylum chamber), 2019-02-28, PA/03276/2018
| Jurisdiction | UK Non-devolved |
| Date | 28 February 2019 |
| Published date | 08 April 2019 |
| Hearing Date | 12 February 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | PA/03276/2018 |
Appeal Number: PA/03276/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03276/2018
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 12 February 2019 |
On 28 February 2019 |
|
|
|
Before
DEPUTY UPPER TRIBUNAL JUDGE FROOM
Between
I L
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr S Chelvan, Counsel
For the Respondent: Mr S Kotas, Senior Home Office Presenting Officer
DECISION AND REASONS ON ERROR OF LAW
-
The appellant appeals with the permission of the First-tier Tribunal against a decision of Judge of the First-tier Tribunal Bart-Stewart dismissing his appeal against a decision of the respondent, dated 15 February 2018, refusing his protection claim.
-
The appellant is an Algerian national. He arrived in the UK on 21 April 2009 with leave to enter in order to study. He claimed asylum on 1 August 2016. He gave an account of fearing serious ill-treatment at the hands of his family, who had been abusive towards him in the past, because he is gay. The respondent accepted the appellant’s account of what had happened to him in the past, even though his delay in claiming asylum was behaviour which undermined his overall credibility. As to the situation on return, the respondent considered the appellant did not risk persecution if he were to live openly as a gay man in Algeria. He could relocate away from his family. Reliance was placed on the country guidance decision in OO (Gay Men) Algeria CG [2016] UKUT 00065 (IAC).
-
It is helpful to set out the summary of country guidance provided by the Upper Tribunal in OO (Algeria):
“1. Although the Algerian Criminal Code makes homosexual behaviour unlawful, the authorities do not seek to prosecute gay men and there is no real risk of prosecution, even when the authorities become aware of such behaviour. In the very few cases where there has been a prosecution for homosexual behaviour, there has been some other feature that has given rise to the prosecution. The state does not actively seek out gay men in order to take any form of action against them, either by means of prosecution or by subjecting gay men to other forms of persecutory ill-treatment.
2. Sharia law is not applied against gay men in Algeria. The criminal law is entirely secular and discloses no manifestation, at all, of Sharia law in its application.
3. The only risk of ill-treatment at a level to become persecution likely to be encountered by a gay man in Algeria is at the hands of his own family, after they have discovered that he is gay. There is no reliable evidence such as to establish that a gay man, identified as such, faces a real risk of persecutory ill-treatment from persons outside his own family.
4. Where a gay man remains living with his family to whom he has disclosed his sexual orientation in circumstances where they are prepared to tolerate that, his decision to live discreetly and to conceal his homosexuality outside the family home is not taken to avoid persecution but to avoid shame or disrespect being brought upon his family. That means that he has chosen to live discreetly, not to avoid persecution but for reasons that do not give rise to a right to international protection.
5. Where a gay man has to flee his family home to avoid persecution from family members, in his place of relocation he will attract no real risk of persecution because, generally, he will not live openly as a gay man. As the evidence does not establish that he will face a real risk of persecution if subsequently suspected to be a gay man, his decision to live discreetly and to conceal his sexual orientation is driven by respect for social mores and a desire to avoid attracting disapproval of a type that falls well below the threshold of persecution. Quite apart from that, an Algerian man who has a settled preference for same sex relationships may well continue to entertain doubts as to his sexuality and not to regard himself as a gay man, in any event.
6. For these reasons, a gay man from Algeria will be entitled to be recognised as a refugee only if he shows that, due to his personal circumstances, it would be unreasonable and unduly harsh to expect him to relocate within Algeria to avoid persecution from family members, or because he has a particular characteristics that might, unusually and contrary to what is generally to be expected, give rise to a risk of attracting disapproval at the highest level of the possible range of adverse responses from those seeking to express their disapproval of the fact of his sexual orientation.”
-
The appellant appealed on protection and article 8 grounds. The appeal was heard at Taylor House on 28 September 2018. In a lengthy and detailed decision, the judge gave reasons for coming to similar conclusions to the respondent about the appellant’s claim. She found that parts of the evidence suggested the appellant was not at risk from his family because, for example, he had continued to live with them for four years after ‘coming out’ and they had supported his studies abroad. His evidence about being cut off from his family had not been consistent. In any event, he could reasonably be expected to relocate away from his family, who lived in Algiers, and, whilst there was discrimination against openly gay men in Algeria, this did not amount to persecution. She applied OO (Algeria).
-
Permission to appeal was refused by the First-tier Tribunal on three of the four grounds submitted. Ground 1 argued the judge erred by going behind the concession made by the respondent that the appellant had given an accurate account of past events. Ground 3 argued the judge erred by failing to identify an alternative place of relocation in Algeria. Ground 4 argued the judge erred by dismissing the appeal on private life grounds given the acceptance of discrimination encountered by openly gay men in Algeria.
-
However, permission to appeal was granted by the First-tier Tribunal in respect of one of the four grounds (ground 2). At paragraph 57, the judge had recorded that she did not consider the expert report adduced by the appellant, prepared by Professor Emile George Joffé, provided any reason to depart from the country guidance. She recorded that counsel had not referred to the report. The grounds seeking permission to appeal argued the judge had erred because the report had been referenced in counsel’s skeleton argument.
-
The grounds argued this error was material because, had the judge had regard to the report, she would have considered whether the accumulation of discriminatory measures might be considered as persecution in accordance with Article 9(1)(b) of the Qualification Directive1.
-
The Upper Tribunal subsequently granted permission to argue all the grounds.
-
I heard submissions from the representatives as to whether the judge made a material error of law in her decision. I had the benefit of receiving skeleton arguments from both representatives in advance of the hearing for which I am grateful. Mr Chelvan also provided a further skeleton responding to Mr Kotas’s skeleton. I shall consider each ground in turn.
Ground 1
-
Mr Chelvan’s first ground essentially argues that the judge materially erred in law by going behind certain important concessions of fact made by the respondent in the reasons for refusal letter (see Carcabuk and Bla (00TH01426) unreported, 8 May 2000, IAT, referred to in NR (Jamaica) v SSHD [2009] EWCA Civ 856, [2010] INLR 169).
-
In summarising the respondent’s reasons for refusal, the judge stated,
“14. [The appellant’s] account of ill-treatment he had received from his family because of his sexuality is internally consistent as is his account of the process about his realisation of his sexuality and coming out. He had provided copies of emails from his partner and supporting letters from friends and associates with ID consistent with his account and as such given weight in support of his claim. He [had] given evidence of activities in London including attending Gay Pride in 2010 and 2011 and volunteering with Naz, an LGBT group and provided a letter from Naz confirming this. His volunteering, attendance at events and supporting letters are considered consistent with his account of being open about his sexuality in the UK and weight was given to the supporting evidence. The appellant provided a detailed account of his claim to be a gay man which is internally and externally consistent, detailed and plausible and is accepted.
15. The appellant said he fears his family and this is the reason he will act differently if returned to Algeria. It is based on fear of repercussions from his family and their unpredictability...
To continue reading
Request your trial