Upper Tribunal (Immigration and asylum chamber), 2020-04-27, PA/13572/2018
| Jurisdiction | UK Non-devolved |
| Date | 27 April 2020 |
| Published date | 11 May 2020 |
| Hearing Date | 10 March 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/13572/2018 |
Appeal Number: PA/13572/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/13572/2018
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 10 March 2020 |
On 27 April 2020 |
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Before
UPPER TRIBUNAL JUDGE SMITH
Between
M k
(ANONYMITY DIRECTION made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr I Khan, Counsel instructed by Immigration Aid
For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer
Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
No anonymity order was made by the First-tier Tribunal. However, as this is an appeal on protection grounds, it is appropriate to make that order. Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies, amongst others, to both parties. Failure to comply with this direction could lead to contempt of court proceedings.
DECISION AND REASONS
BACKGROUND
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The Appellant appeals against the decision of First-tier Tribunal Judge G J Ferguson promulgated on 17 October 2019 (“the Decision”) dismissing his appeal against the Respondent’s decision dated 17 November 2018, refusing the Appellant’s protection and human rights claims.
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This matter first came before me on 16 January 2020 at which time the Appellant was unrepresented and had apparently received contradictory advice from those advising him. I therefore adjourned the hearing to a later date to allow him to find representation. My adjournment decision is annexed hereto for ease of reference.
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As I explained in the adjournment decision, the Judge who granted permission to appeal almost certainly intended to refuse it (see the substance of the decision cited at [3] of my decision). However, as I also explained, the position in law is that permission is granted as that is what the decision says. Accordingly, I have to determine whether the Decision contains an error of law.
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By way of brief factual background, the Appellant is a national of Bangladesh who came to the UK as a student on 14 November 2009. Following various applications, refusals and an appeal, his leave in that capacity came to an end on 10 October 2014 and he has remained since without leave. Having made an unsuccessful human rights’ claim in 2016, based it appears on his relationship with a Ms B who was expecting his child (which application was refused finally in November 2016), the Appellant claimed asylum on 31 May 2017.
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The basis of the Appellant’s asylum claim is that he is a gay man who fears return to Bangladesh as he says he is at risk from Islamic extremists or his family members on account of his sexuality.
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Although the Judge expressed doubts about the Appellant’s sexuality, he nonetheless accepted based on the lower standard of proof and the benefit of the doubt, that the Appellant “has established that he identifies as being gay” ([7] of the Decision).
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The Judge went on to apply the guidance laid down in HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 (“HJ (Iran)”) and reached findings as to how the Appellant could be expected to behave on return to Bangladesh and why. He concluded at [21] of the Decision that “[o]n return to Bangladesh, if [the Appellant] chooses to have a partner at all, he will conduct the relationship discreetly simply for social or cultural reasons, not out of a fear of persecution.”
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The Judge then turned to consider the background evidence concerning the position for a gay man who chose to live discreetly as such in Bangladesh. In that regard, he found at [23] and following of the Decision that the Appellant could relocate to areas of Bangladesh away from his family and that in general the evidence did not make out a risk from Islamic extremists. He therefore concluded that the Appellant did not have a well-founded fear of persecution on return and therefore dismissed the appeal.
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The Appellant appeals on two pleaded grounds. Ground one challenges the Judge’s conclusions concerning the protection claim. Ground two challenges the dismissal of the appeal on human rights grounds (Article 8 ECHR). Mr Khan expanded on the pleaded grounds in his oral submissions. I deal with those submissions below.
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The matter comes before me to assess whether the Decision does disclose an error of law and to re-make the Decision or remit to the First-tier Tribunal for re-hearing.
DISCUSSION AND CONCLUSIONS
Ground One: The Protection Claim
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In essence, the Appellant’s case is that, having been accepted to be gay, applying HJ (Iran) and taking into account the background evidence, he is entitled to succeed. Accordingly, he says, the Judge erred in law by dismissing the appeal.
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It is common ground that homosexuality is a criminal offence in Bangladesh. However, that is not the end of the matter. As the Judge pointed out at [22] of the Decision, “the law prohibiting sexual activity between men is not enforced and .. there has been no case of legal proceedings resulting in any punishment under Section 377 of the Penal Code”.
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Although whether there would be sufficient protection for the Appellant from the police in Bangladesh forms no part of the pleaded challenge to the Decision, Mr Khan’s oral submissions were largely directed at that issue and I deal with them for completeness.
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Mr Khan relied on the Respondent’s Country Policy and Information Note entitled “Bangladesh: Sexual orientation and gender identity” published November 2017 (“the CPIN”) which appears at [AB/177-212]. Section 6 of the CPIN deals with “State attitudes and treatment”. That refers first to reports of physical and sexual assault by the police dating back to 2015 and earlier. At [6.3] of that report, reference is made to official discrimination including harassment and a reluctance of LGBT individuals to identify as such to the police if reporting a crime. However, the point is made at [6.3.3] that it is difficult to know whether such persons are treated worse by the police than anyone else in Bangladesh. Section [6.4] of the CPIN also refers to unwillingness of LGBT individuals to approach the police for support. The point is made however at, for example, [6.4.4] that “members of the press noted that the police were obliged to take on a case, irrespective of the sexuality of the reporter of the crime; and the Bangladesh Legal Aid and Services Trust (BLAST) noted that there was ‘very little research on these issues’”.
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In any event, the prior issue is whether the Appellant would have cause to seek protection from the authorities. It is doubtless due to the Judge’s findings on that issue that the sufficiency of protection or otherwise was not considered by the Judge other than peripherally at [24] of the Decision.
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The first issue for the Judge to consider was that directly raised in the pleaded ground one, namely how the Appellant would behave on return. As I have already recorded, the Judge’s conclusion in this regard is that the Appellant would conduct any relationships discreetly ([21]).
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The Appellant’s pleaded ground can be summarised as follows. First, the conclusion that the Appellant would conduct himself discreetly was not open to the Judge on the evidence (as set out at [4] of the grounds). Second, that because there is a risk of prosecution, there is a risk of persecution. Third, the Judge has failed to consider whether the Appellant’s behaviour would arise because of a fear of persecution. Fourth, because the Appellant would have to modify his behaviour, the appeal should have been allowed.
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The Judge’s findings on this issue appear at [20] and [21] of the Decision as follows:
“20. The second aspect of the HJ test is a group of questions for which the focus is what will happen in [the Appellant’s] country of origin: ‘the question is how each applicant, looked at individually, will conduct himself if returned and how others will react to what he does’. [The Appellant’s] actions in the UK, where he accepts he has lived with freedom are a guide as to how he will conduct himself if returned. He has not established that he has had any same sex relationship in the ten years he has resided here. The only relationship about which there is any evidence is with a woman. He claims that he was compelled into a relationship with her to satisfy his family but the evidence does not establish that he was acting under any compulsion in 2015 other than the pressure he imposed on himself of wanting to have some basis on which to make a further application for leave to remain in the UK.
21. The reasons for the breakdown of that relationship are also not established. [The Appellant] claims it ended in acrimonious circumstances but that does not establish the cause of the acrimony. It is significant that [the Appellant] has provided no evidence of any same-sex relationship prior to the date of the refusal on 17th November 2018. The evidence that he has provided to demonstrate that he is gay...
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