Upper Tribunal (Immigration and asylum chamber), 2017-01-23, PA/02244/2015

IAC-AH-KRL-V1

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/02244/2015

THE IMMIGRATION ACTS

Before

DEPUTY upper tribunal judge ROBERTS

Between

I.I.

(ANONYMITY DIRECTION MADE)

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Chelvan, Counsel

For the Respondent: Mrs Pettersen, Senior Home Office Presenting Officer

Anonymity

Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008

An anonymity direction is hereby made on account of this matter being a protection claim.

DECISION AND REASONS

1. This is an appeal with permission against a decision by Judge of the First-tier Tribunal Moran, dismissing an appeal against the Respondent’s refusal to grant I.I. asylum/humanitarian protection on account of his sexual orientation.

Background

2. The Appellant, who was born on 13^th April 1973 is a national of Pakistan. He arrived in the UK in 2009 travelling on a visit visa lawfully. On expiry of his visa however he remained without permission.

3. In August 2015 he was encountered by Police Scotland attempting to embark on a ferry sailing to Belfast. He was detained and served with removal directions but on 3^rd September 2015 he claimed asylum.

4. The basis of his claim to asylum amounted to this. The Appellant realised when he was about 20 years of age that he was gay. He and a friend F. engaged in a clandestine sexual relationship in Pakistan for about fifteen years. The Appellant hid his sexuality from his family and he succumbed to family pressure, by entering into an arranged marriage.

5. In 2009 he was at home when he was seen by his wife, engaging in sexual activity with F. his friend with whom he had had the relationship for fifteen years.

6. His wife informed her brothers of what had happened. They turned up at the Appellant's home, assaulted him and informed the religious extremist authorities. The Appellant was warned about his conduct by the religious authorities and told he must desist. He refused to do so. Three weeks after being discovered, he came to the UK.

7. The Appellant’s claim is that he lost contact with F. but has since been told that his friend’s body has been found in a river. The Appellant considers that F. was either murdered or that he committed suicide.

8. The Respondent’s starting point of refusal was that she did not accept the credibility of the Appellant’s core claim, nor did she accept his claim to be gay. Further she did not accept the Appellant’s history of his sexual activity in the UK. That being so, there was no reason on the basis of his discredited claim of sexuality, for the Appellant to fear to return to Pakistan and she refused his application. The Appellant appealed that decision to the First-tier Tribunal.

The FtT Hearing

9. When the appeal came before the FtT, that Tribunal took oral evidence from the Appellant and other witnesses who came in support of him. In addition the judge took note of a medical report which dealt with the scarring which the Appellant said he had received as a result of the assault upon him by his brothers-in-law.

10. The judge referred to the leading case of HJ (Iran) v SSHD[2010] UKSC 31 and directed himself to the four-limb test set out in that case. In [27], the judge accepted with reasons, that the Appellant is gay. The judge also accepted the Appellant’s evidence that he had a relationship with a man in Pakistan, that they were caught in the course of a sexual act and that the Appellant was then attacked by members of his wife’s family and he then fled to the UK. The judge also accepted that once in the UK, the Appellant had pursued a number of gay relationships, including an ongoing one with one of the witnesses who attended on his behalf. Those findings are not the subject of any challenge.

11. The judge then asked himself the question of whether gay men in Pakistan are at risk of persecution. He said the following

“Taken as a whole the country information proves that a man that lives an openly gay lifestyle in Pakistan is very much at risk of persecution. This is from a variety of sources including the community generally but also the state.” [28]

12. The judge then looked at how the Appellant would conduct himself on return to Pakistan. In looking at conduct on return the judge considered that the Appellant would not live an openly gay lifestyle if returned to Pakistan but would conduct himself discreetly.

13. At [30] the judge then asked himself the question of why the Appellant's conduct would be discreet. He then drew the conclusion that taking the evidence as a whole the Appellant would live discreetly not through fear of persecution but because of cultural or religious reasons and a desire to keep his sexuality private (my emphasis).

14. The judge then went on to say that the Appellant would be at risk of persecution from his family, his wife’s family and any religious extremists that they are in contact with. In other words he would be at risk in his home area. However it would not be unduly harsh to expect the Appellant to relocate elsewhere in Pakistan [32]. He found that relocation was viable because the Appellant would conduct himself discreetly and on that basis, he dismissed the appeal.

Onward Appeal

15. The Appellant sought and was granted permission to appeal.

16. The grounds seeking permission are set out under two headings:

• the FtT materially erred in law by addressing discretion on return where this is now an unlawful element of an asylum claim;

• the FtT materially erred in law in any event because the 3rd and 4th limbs of HJ (Iran) were met. The judge had made an unchallenged finding that the Appellant would be at risk of persecution in his home area. It follows from that the Appellant would not be able to relocate internally and yet live discreetly through choice. He would only do so from a fear of being found out by the authorities, particularly if he were to seek a new partner. The only way he could live discreetly would be to deny his sexuality altogether.

Thus the matter comes before me to decide whether the FtT’s decision contains a material error requiring it to be set aside.

The UT Hearing

17. Mr Chelvan’s submissions before me kept to the grounds seeking permission. In summary the main thrust of his argument centred on the Court of Appeal decision in SSHD v MSM (Somalia) [2016] EWCA Civ 715, handed down on 12^th July 2016.This case he acknowledged was not brought to the attention of the FtT judge by either representative at the hearing on 16th September 2016 and clearly it should have been. This omission had led the FtT into error by taking the wrong approach when evaluating the four limb guidance given in HJ (Iran).

18. Essentially, he submitted, the decision in HJ (Iran) was considered by the Upper Tribunal in MSM (journalists; political opinion; risk) Somalia [2015] UKUT 00413 (IAC) and affirmed by the Court of Appeal above. That decision contains a focused and detailed discussion of the concept of forced modification or discreet behaviour of an asylum seeker on return to their country of nationality [35-48]. The Upper Tribunal's discussion also considered the CJEU's decision in the joined cases of C-199-201/12 X,Y and Z, where the following was said at [75];

"It follows that the person must be granted refugee status in accordance with article 13 of the Directive, where it is established that on a return to his country of origin his homosexuality would expose him to a genuine risk of persecution within the meaning of Article 9(1) thereof. The fact that he could avoid that risk by exercising greater restraint than a heterosexual in expressing his sexual orientation is not to be taken into account in that respect."

19. As I understood Mr Chelvan’s submissions he drew particular strength from [44] and [45] of MSM which say as follows:

“As to the submission that the requirement to take reasonable steps to avoid persecution is part of the test for determining whether a person will face persecution within the meaning of Article 9, that was expressly rejected by Lord Dyson in HJ (Iran) at [120]. His lordship stated that ‘the phrase “being persecuted” does not refer to what the asylum seeker does in order to avoid such persecution’.”

"In short the possibility of conduct entailing the avoidance of modification of certain types of behaviour related directly to the right engaged is irrelevant. Thus the possibility must be disregarded."

20. Therefore, Mr Chelvan submitted, the Appellant should succeed in his appeal. There were unchallenged findings that he had overcome limbs 1 and 2 of the guidance in HJ (Iran). In finding that the Appellant will be at risk in his home area (a finding not challenged by the Respondent) but would be able to relocate internally by living discreetly, it follows that the FtT erred in law. Having accepted that the Appellant will...