Upper Tribunal (Immigration and asylum chamber), 2017-08-01, PA/12452/2016

Appeal Number: PA/12452/2016

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/12452/2016

THE IMMIGRATION ACTS

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

K M

(ANONYMITY DIRECTION MADE)

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr A Swain instructed by Virgo Consultancy Services Ltd

For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS

1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or Court directs otherwise, no report of these proceedings shall directly or indirectly identify the Appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.

Introduction

2. The appellant is a citizen of Kenya who was born on 19 March 1980. He arrived in the United Kingdom as a student in 2009. He entered with leave and that leave was extended, first as a student and then as a Tier 1 Highly Skilled Migrant and then as a Tier 2 Skilled worker until 24 October 2016.

3. On 4 May 2016, the appellant claimed asylum. The basis of his claim was that he is gay and would be at risk of persecution if returned to Kenya.

4. On 31 October 2016, the Secretary of State refused the appellant’s claims for asylum, humanitarian protection and under the European Convention on Human Rights.

The Appeal to the First-tier Tribunal

5. The appellant appealed to the First-tier Tribunal. In a determination promulgated on 19 December 2016, Judge C J Woolley dismissed the appellant’s appeal on all grounds. The judge accepted that the appellant was gay but did not accept that there was a real risk of persecution due to criminal prosecution for consensual same-sex conduct between adults or, on the basis of the background evidence, arising from societal intolerance of gay men.

The Appeal to the Upper Tribunal

6. The appellant sought permission to appeal to the Upper Tribunal on the basis that, in dismissing the appellant’s appeal on asylum grounds and under Art 8 of the ECHR, the judge had failed properly to consider the background evidence concerning the risk to gay men in Kenya and by taking into account that the appellant had been able to live in Kenya whilst in a gay relationship free from persecution without also taking into account that the appellant had concealed his sexual orientation in order to avoid persecution.

7. On 23 March 2017, the First-tier Tribunal (Judge Nightingale) granted the appellant permission to appeal.

8. On 5 April 2017, the Secretary of State lodged a rule 24 response seeking to uphold the judge’s decision.

The Submissions

9. On behalf of the appellant, Mr Swain submitted that the judge had failed to take into account the background evidence to which he was referred, in particular passages from the Home Office, “Country Information and Guidance, Kenya: Sexual orientation and gender identity” (22 March 2016)”. Mr Swain referred me to a number of paragraphs in that document including paras 2.3.7, 5.1, 5.1.5, 5.2.4, 6.3 and 6.2.1. These passages, he submitted, demonstrated a level of intolerance and violence (including mob violence which the appellant in his evidence specifically feared). Mr Swain also drew attention, in relation to the risk of prosecution, to the prosecution referred to in para 5.2.2 of two gay men in February 2015 for “unnatural offenses” under the Kenyan Penal Code. He submitted that the judge had erred in law in reaching his finding that the appellant had not established a real risk of persecution by failing to take into account this evidence, together with that of violence and police inactivity and the targeting of gay people by the press.

10. In addition, Mr Swain submitted that the judge had been wrong in para 35 of his determination to take into account that the appellant had been able to live previously in Kenya whilst in a gay relationship free from persecution because the appellant’s evidence had been that he had lived discretely in order to avoid persecution. Mr Swain submitted that the judge had wrongly, in effect, reasoned that because the appellant had experienced no problems previously then he would experience no problems in the future. That was impermissible reasoning because it would require the appellant to live discretely which was something he could not be required to do in order to avoid persecution.

11. Finally, in his reply, Mr Swain submitted that the judge had also erred in his adverse finding under para 276ADE(1)(vi) of the Immigration Rules (HC 395 as amended) and Art 8 by failing properly to assess whether there were “very significant obstacles” to the appellant’s integration into Kenya. He submitted that the judge had, again, failed to take into account the background evidence and had simply been wrong in para 43 of his determination to state that “homosexuals are integrated” in Kenya. The evidence showed that they plainly were not.

12. On behalf of the respondent, Mr Mills submitted that the judge had properly directed himself in accordance with HJ (Iran) v SSHD [2010] UKSC 31 at para 20 of his determination. Mr Mills submitted that the judge had accepted that the appellant was gay and that finding was not now challenged by the Secretary of State. Thereafter, Mr Mills submitted, the judge had properly and adequately considered the background evidence in paras 32 and 36 of his determination. Mr Mills submitted that it was not necessary for the judge to set out all the evidence. He had set out sufficient and in para 36 had stated that he had “considered the wider country evidence on the position of homosexuals in Kenya”. Mr Mills submitted that the judge was entitled to find that the appellant had not established a real risk of persecution on return. He accepted that the background evidence was ambiguous and that another judge could have made a different decision but the judge’s finding was not irrational.

13. Mr Mills accepted that the judge’s reference to the appellant having been able to live previously in Kenya free from persecution in para 35 “muddied the waters”. Nevertheless, he submitted that it did not affect the judge’s finding based upon the background evidence.

14. As regards Art 8, Mr Mills submitted that the judge had been entitled to find that there were not “very significant obstacles” and that his reasoning in para 43 was adequate to sustain that finding even though the judge’s reference to homosexuals being “integrated” in Kenya was troubling. Nevertheless, given the judge’s adverse finding in respect of the appellant’s international protection claim, namely that he could safely live openly as a gay man in Kenya, there was nothing in the evidence to reach the high threshold set by the “very significant obstacles” test.

Discussion

The Asylum Claim

15. In reaching his adverse decision, the judge correctly identified the approach to be followed in determining the appellant’s claim based upon him being at risk as a gay man in Kenya as set out in Lord Rodgers’ judgment in HJ(Iran) at [82] (see para 20 of the determination). Mr Swain did not suggest otherwise.

16. The first issue, which the judge determined in the appellant’s favour, was that he accepted the appellant was gay (see paras 22-28 of the determination).

17. The judge then went on to consider the second issue namely whether gay men who lived openly in Nigeria would be liable to persecution (see paras 29-37).

18. At para 37, having concluded that there was no real risk of persecution, the judge correctly observed that it was unnecessary for him to consider any of the further issues identified in HJ (Iran). I point that up because, although Mr Swain initially appeared to contend to the contrary, what the judge says in para 35 about the appellant having previously lived in Kenya in a gay relationship free from persecution, did not involve a consideration of a further question identified in HJ (Iran), namely whether the appellant would on return live openly and, if not, why he would not do so. I will return to Mr Swain’s submission in relation to para 35 of the judge’s determination shortly.

19. There were, before the judge, two limbs to the appellant’s argument that he faced a real risk of persecution on return to Kenya as a gay man. The first was that he would be at real risk of prosecution and conviction for consensual same-sex conduct with a partner. Secondly, he would be at risk from societal attitudes and intolerance (including violence) directed against gay men.

20. As regards to the first limb, it was common...