Upper Tribunal (Immigration and asylum chamber), 2022-06-15, PA/02542/2019
| Appeal Number | PA/02542/2019 |
| Hearing Date | 12 May 2022 |
| Published date | 30 June 2022 |
| Date | 15 June 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: PA/02542/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02542/2019
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 12 May 2022 |
On 15 June 2022 |
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Before
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
Between
E H
(anonymity directioN MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellant or members of his family. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.
Representation:
For the appellant: Mr M Symes and Ms A Nizami, Counsel, instructed by Duncan Lewis Solicitors
For the respondent: Ms S Walker, Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
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This is the re-making decision in this appeal following the error of law decision made by Upper Tribunal Judge Jackson, promulgated on 9 August 2021, by which she concluded that the First-tier Tribunal had erred in law and that its decision should be set aside. Judge Jackson’s decision is annexed to this re-making decision and the two should be read together.
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The appellant is a citizen of Bangladesh, born in 1981. He came to the United Kingdom in 2007 as the spouse of a British citizen. In December 2008, the appellant was convicted of murdering his wife, for which he was sentenced to life imprisonment with a minimum term of 12 years. Deportation proceedings were instigated, in response to which the appellant made an asylum claim in 2015, based in essence on a claimed risk from his wife’s family. This claim was refused in 2018, with the respondent issuing a certificate under section 72 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). An interview and further submissions followed and a supplementary decision letter was issued in 2019.
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By the time the appellant’s case went before the First-tier Tribunal, he was claiming to be at risk on return to Bangladesh because (i) his wife’s family would harm him (ii) he was a convert to Christianity and (iii) he was bisexual. No Article 3 medical claim was put forward at that stage. Article 8 was relied on in what was described as a “subsidiary argument” to the protection claim, it be said that very compelling circumstances existed.
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Judge Jackson’s error of law decision deals in comprehensive detail with the findings made by the First-tier Tribunal and the errors of law committed. To summarise the material aspects of Judge Jackson’s decision, she found that the following findings from the First-tier Tribunal decision were to be preserved:
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the appellant had rebutted the statutory presumption under section 72 of the 2002 Act (with the consequence that he was entitled to the protection of the Refugee Convention);
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the appellant was a genuine convert to Christianity;
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the appellant was not gay or bisexual and even if he were, he would choose to live discreetly on return to Bangladesh for reasons other than a fear of persecution;
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there were no very compelling circumstances to outweigh the very strong public interest in deporting the appellant.
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Following the error of law decision, further evidence was provided on the appellant’s mental health. The appellant asserted that this gave rise to two additional issues in his case: first, that he was a member of a particular social group and would be at risk in Bangladesh because of discrimination shown by society to those suffering from mental health conditions; second, that his removal would violate his rights under Article 3, both in terms of appropriate treatment in Bangladesh and the risk of suicide. These two issues were deemed to constitute a “new matter” under section 85 of the 2002 Act. The respondent proceeded to consider the issue and gave consent for it to be determined by the Upper Tribunal. A supplementary decision letter dated 7 April 2022 was issued, in which both claimed risks were rejected.
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Having regard to the foregoing, the live issues to be addressed at the resumed hearing appeal are therefore:
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whether the appellant would be perceived as being gay or bisexual if he was removed and whether this would place at risk, having regard to the principle set out in HJ (Iran) [2010] Imm AR 729?
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whether the appellant’s conversion to Christianity would put him at risk, having regard to the principle set out in HJ (Iran) [2010] Imm AR 729 (that principle applying to matters of religion: see WA (Pakistan) [2019] EWCA Civ 302)?
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whether the appellant’s acknowledged mental health conditions present a risk of persecution?
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whether the appellant’s wife’s family would present a risk to him?
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whether the appellant could obtain sufficient state protection in respect of any risk, or whether he could internally relocate?
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whether the appellant could make out an Article 3 case in light of AM (Zimbabwe) [2020] Imm AR 1167, including whether the appellant could demonstrate a risk of suicide.
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Article 8 is no longer in play.
The evidence
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I have been presented with a good deal of documentary evidence contained in the respondent’s original appeal bundle (under cover of letter dated 26 March 2019), the appellant’s main bundle (indexed and paginated 1-411) and his consolidated supplementary bundle (indexed and paginated 1-330). In addition, the appellant filed and served an updated letter from the appellant’s treating psychiatrist, Dr R Din, dated 19 April 2022.
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The appellant’s bundles contain two psychiatric reports by Dr Michael Shortt dated 23 December 2019 and 5 January 2022, together with two country reports from Dr Ashraf-ul Hoque, dated 13 January 2020 and 5 January 2022.
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I was referred to certain passages in the respondent’s CPIN on religious minorities and atheists, published in March 2022.
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The appellant, who now prefers to be known by his Christian name, John, attended the hearing remotely (he remains in hospital on account of his mental health conditions), but did not give evidence, based on opinions expressed by Dr Shortt in his most recent report. Notwithstanding this, I have had regard to the appellant’s two witness statements contained in his bundles.
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A witness appeared remotely on the appellant’s behalf, Reverend Dr Geoffrey Burn. He relied on letter on 23 July 2019 and witness statement dated 5 January 2022. He confirmed his regular interactions with the appellant over the course of time, together with his knowledge of the appellant’s faith and its practice. In the witness’ opinion, the appellant’s faith defined who he now was in the world and it was inevitable that he would proclaim his faith to others. It was significant that the appellant no longer went to Muslim prayers - this would stand him out. The appellant had, to the best of the witness’ knowledge, experienced problems whilst in prison on account of his conversion and it is likely that these would be exacerbated if he lived in Bangladesh.
The parties’ submissions
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Mr Walker and Mr Symes both made helpful oral submissions (with the latter also relying on a detailed skeleton argument), which are a matter of record. I intend to address relevant arguments put forward when considering the various elements of the appellant’s case, below.
Findings and conclusions
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There are a number of different heads of claim in this appeal. In assessing the evidence and reaching my findings of fact and conclusions, I have of course viewed the evidence and the parties’ respective submissions in the round.
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Although the appellant did not give evidence before me, I have treated him as a vulnerable witness in the sense that his written evidence (particularly his latest witness statement) should be viewed through the prism of vulnerability by virtue of his mental health conditions.
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I have borne in mind the proposition that an individual may be untruthful about one aspect of their claim, whilst truthful about others.
The sexuality issue
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The first protection-based issue can be dealt with relatively briefly.
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There is a preserved finding of fact that the appellant is not gay or bisexual. That represents a significant, although not insurmountable, obstacle to this aspect of his protection claim. As HJ (Iran) made clear at paragraph 82, the fact-finding tribunal’s first task is to ask itself whether the individual is gay, “or that he would be treated as gay by potential persecutors in his country of nationality.”
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Judge Jackson left open the possibility that the appellant might be perceived as being gay or bisexual with reference to the evidence of him having been allegedly called a “lady-boy” by (apparently) his siblings and wife (see paragraph 40 of her decision). That evidence is contained in the appellant’s first...
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