Upper Tribunal (Immigration and asylum chamber), 2021-11-12, PA/11961/2017
| Jurisdiction | UK Non-devolved |
| Date | 12 November 2021 |
| Published date | 30 November 2021 |
| Hearing Date | 07 October 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/11961/2017 |
Appeal Number: PA/11961/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/11961/2017
THE IMMIGRATION ACTS
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Decided without a hearing |
Decision & Reasons Promulgated |
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On 7 October 2021 |
On 12 November 2021 |
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Before
UPPER TRIBUNAL JUDGE SHERIDAN
Between
AM
(ANONYMITY DIRECTION continued)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
DECISION AND REASONS
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By my decision promulgated on 24 January 2020 I set aside the decision of the First-tier Tribunal. I then, by my decision promulgated on 16 April 2020, remade the decision of the First-tier Tribunal in part. I now continue (and conclude) the remaking of the First-tier Tribunal’s decision.
Background
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In my decision promulgated on 16 April 2020, I found that the appellant, a stateless Palestinian who was habitually resident in Lebanon before coming to the UK in 2016, is (a) gay; (b) would either live as an openly gay man or be discreet in order to avoid persecution in Lebanon; and (c) would be at risk from his uncle, who is a member of the Hezbollah, in his home area. I decided to adjourn the hearing, part heard, as neither party was adequately prepared to address me on relocation to Beirut. I identified the following issues as remaining to be determined:
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the position of, and risk faced by, gay men in Beirut;
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whether the appellant would be at risk in Beirut from his uncle, who is a member of Hezbollah; and
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any other issues relevant to the reasonableness of the appellant relocating to Beirut.
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At a hearing on 4 December 2020 I adjourned the matter, at the request of the respondent, in order for the appellant to obtain up-to-date evidence from Dr Whittaker Howe on his mental health. On 2 June 2021 I again adjourned the matter, this time at the request of the appellant (with the respondent’s agreement), because the respondent filed detailed written submissions shortly before the hearing (on 1 June 2021) which the appellant’s representative stated that she had not had time to consider and which, in her view, necessitated the obtaining of further evidence from Dr Whittaker Howe. The representatives of both the appellant and respondent proposed that, after further evidence and submissions were submitted, I should decide the appeal without a hearing. I agreed to do so, as I was satisfied that that it was consistent with the overriding objective, as expressed in rule 2, to accede to the wishes of the parties and decide the remaining issues without a hearing.
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In accordance with the directions I gave on 2 June 2021, the appellant submitted an addendum report by Dr Whittaker Howe. He also submitted further written submissions. The respondent has confirmed that she is content to rely on her submissions of 1 June 2021.
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The issue for me to determine is whether the appellant can be expected to relocate to Beirut. In order to answer this, the following questions need to be determined:
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The first question is whether there is a real risk of the appellant being persecuted in Beirut. The appellant claims that there are two distinct reasons he is at risk of persecution in Beirut. These are:
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he is an openly gay man; and
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his uncle, who is in the Hezbollah, will find and then kill or seriously injure him.
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The second question, which is only necessary to consider if the first question is answered in the negative, is whether the appellant can reasonably be expected to relocate to Beirut. This requires a holistic assessment encompassing all relevant considerations pertaining to him in Lebanon
Findings of Fact
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The following findings of fact were either made by me in my previous decision (promulgated on 16 April 2020) or are not in dispute. They are that:
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The appellant is a Palestinian who was born and grew up in the Rashidieh refugee camp in southern Lebanon. He has family who live in that part of Lebanon.
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He is openly gay.
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His uncle is a member of Hezbollah. Upon discovering that the appellant is gay, his uncle attacked him, causing injuries that required hospitalisation for 20 days. The appellant believes that he would be at risk from his uncle if he were to return to Lebanon (and even if he relocates to Beirut).
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The appellant’s mental health is an area of contention. The appellant relies on a report (and addendum report) by a clinical psychologist, Dr Whittaker Howe. Dr Whittaker Howe expresses the view that the appellant suffers from severe depression and anxiety. She describes him as presenting with reduced motivation, persistent fatigue and cognitive disturbances. In her view, the appellant’s mental health significantly affects – and impedes- all aspects of his life.
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Mr Clarke’s submissions make a number of valid criticisms of the report. These include that (a) Dr Whittaker Howe stated in paragraph 37 of her report dated 12 February 2021 that there had been a significant increase in dose of the appellant’s medication when, in fact, as she accepts in her letter of 9 July 2021, there had just been a change in medication; and (b) the report appears to make assumptions, which are not consistent with the objective evidence, about the lack of treatment available in Beirut. Although I share Mr Clarke’s reservations about the report, I am satisfied that the evidence before me, which includes a detailed letter of support from Ms Hartley of the UK Lesbian and Gay Immigration Program (UKLGIG), as well as some NHS correspondence, establishes, to the requisite low standard of proof, that the appellant suffers from depression and anxiety, although not to a severe extent.
Risk of Persecution in Beirut
Risk as a gay man
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The appellant submitted a report by an expert on the Middle East, Dr Fatah, to establish that gay men in Beirut face persecution. Dr Fatah states that although Beirut is amongst the most tolerant cities in the Middle East for gay men, and has a gay nightlife, this must be understood in the context of a region (and country) where hostility to gay men is prevalent. He referred to a survey showing only 6% of Lebanese felt that homosexuality was acceptable.
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Dr Fatah explained that article 534 the Lebanese penal code prohibits sexual acts “contrary to the laws of nature” and whilst some court rulings have concluded this is not applicable to homosexuality, gay men in Lebanon have been convicted under it and may be punished by up to one year in prison. Dr Fatah noted that there were 76 arrests in 2016 under article 534 and there are reports of the article’s increasing use. He also notes the use of another penal provision (article 521, which concerns public indecency) to target LGBT individuals. He also stated that although anal examination to determine if a person is gay was banned in 2012, there are reports of this occurring.
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Dr Fatah also stated that police raid and suppress LGBT events and spaces, and gay friendly nightclubs impose strict restrictions. He noted that in 2017 a gay pride event took place in Beirut, but it was not possible to repeat it due to pressures on organisers.
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Relying on Dr Fatah’s report, Ms Daykin, on behalf of the appellant, in her written submissions, states that Beirut does not provide a place of safety for the appellant as he would be at risk of harassment and abuse, could not depend on state protection, and would face a risk of arrest, imprisonment and ill-treatment from the police and security forces.
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Mr Clarke, on behalf of the respondent, argues in his written submissions that the difficulties and discrimination faced by gay men in Beirut, as described by Dr Fatah, do not meet the threshold of persecution/serious harm. He referred to recent authorities YD (Algeria) v Secretary of State for the Home Department [2020] EWCA Civ 1683 and BF (Albania) v The Secretary of State for the...
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