Upper Tribunal (Immigration and asylum chamber), 2022-08-24, LP/00257/2021
| Appeal Number | LP/00257/2021 |
| Hearing Date | 04 August 2022 |
| Published date | 14 September 2022 |
| Date | 24 August 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Numbers: UI-2021-001366
PA/52874/2020
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: UI-2021-001366
PA/52874/2020; LP/00257/2021
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 4 August 2022 |
On 24 August 2022 |
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Before
UPPER TRIBUNAL JUDGE O’CALLAGHAN
Between
SW (Malaysia)
(ANONYMITY DIRECTION Made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr. A Briddock, Counsel, instructed by Milestone Solicitors
For the Respondent: Mr. E Tufan, Senior Presenting Officer
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. This direction applies to, amongst others, the appellant and the respondent. Any failure to comply with this direction could give rise to contempt of court proceedings.
DECISION AND REASONS
Introduction
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The appellant appeals a decision of Judge of the First-tier Tribunal Napier (‘the Judge’), sent to the parties on 14 September 2021, dismissing her international protection and human rights appeals.
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The respondent conceded at an earlier CMHR held at Field House on 27 April 2022 that the Judge erred in his consideration of the appellant’s human rights (article 8) appeal. The sole issue remaining at the error of law stage is whether the Judge erred in his consideration of the appellant’s refugee and human rights (article 3) appeals.
Anonymity Direction
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The Judge made an anonymity direction, and no request was made by either party for it to be set aside. I consider that it is appropriate that the order be confirmed and I detail it above.
Brief Facts
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The appellant is a national of Malaysia and is presently aged 35. She is of Chinese ethnicity and is Buddhist.
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She was in a heterosexual relationship whilst in Malaysia which broke down when she was aged 25. In the aftermath of the relationship coming to an end she became close to a female friend, developing feelings for her. She then identified herself as lesbian and entered a year-long same-sex relationship whilst in Malaysia. The relationship was conducted discreetly. She subsequently had a second, discreet, same-sex relationship in Malaysia.
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She arrived in the United Kingdom in September 2018 and later claimed asylum, asserting a well-founded fear of persecution arising from her sexual orientation.
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She states that she was involved in a same-sex relationship conducted openly whilst in the United Kingdom
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The respondent refused the appellant’s application for international protection by a decision dated 3 December 2020. It was not accepted that she was a lesbian. I note that the decision letter is silent as to the issue of whether a real risk of persecution exists in Malaysia if the appellant were to establish to the requisite standard that she is a lesbian.
First-tier Tribunal Decision
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The appellant’s appeal was heard remotely at Newport by means of CVP on 3 September 2020. The appellant attended and gave evidence.
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The Judge gave detailed consideration as to the appellant’s sexuality:
‘26. The Appellant’s account across her interviews was consistent and I do not regard the Respondent’s criticisms of inconsistencies as being borne out. What internal inconsistences there are are minor in the overall context of the account. The Appellant’s evidence in chief to the Tribunal was detailed and contained a high level of detail and explanation about the Appellant’s life in Malaysia, her relationships with men and then with women, and her life with a partner in the United Kingdom. She has submitted photos which she says are her and her partners and from looking at them and the close female friendship they appear to show, they do help corroborate her account.
27. I agree with the Respondent that it was far from satisfactory that no statement has been produced from any of her partners. No good reason has been provided. However, it is not a condition of proving her sexuality that partners must give evidence and I have to consider all the evidence in the round and her account has been consistent and credible enough to prove this aspect to the lower standard.
28. I have weighed anxiously the credibility of the Appellant. She admits that she was removed from the United Kingdom a few years’ ago when she was found to be working in breach of her visit visa. She was found by immigration officers in a restaurant with staff accommodation in Warrington, nowhere near where her sister was living. The Respondent has produced her internal CID notes from her detention which record the following:
‘She initially showed [redacted] a photograph of a UK driving licence on her phone and gave false details. The driving licence actually belonged to her sister. IO [redacted] had looked at the picture and did not believe it to be the subject. He also observed a photograph of a passport on the phone. He asked the subject who this was and she admitted it was her. She then provided her true details …
… Prior to any referral notice the owner of the business had already stated she had started work today having produced a driving licence to secure employment.’
29. Her conduct was put to her at the hearing. She accepted she had been working without permission but maintained she only had a copy of her sister’s driving licence in case of emergency so people could know who to contact. She said that she had not used it to try and deceive the authorities. The Respondent, rightfully, said the weight that could be placed on the statement of the owner is lessened because he had every motivation to avoid the financial consequences of being found with illegal workers. I have to consider also that the record is double hearsay evidence and this also means I must treat it with caution.
30. Whether or not the Appellant was dishonest is a factor going to her credibility. Sexual orientation claims are inevitably highly dependent on the word of an appellant. Having considered her explanation, it is plausible and I can place limited weight on the contrary account from the business owner for the reasons stated above. I find the Appellant did not knowingly mislead or deceive the immigration officers when they identified her. However, it is undisputed that she was engaged in work when she was not permitted to do so and I have not heard any evidence which persuades me the Appellant was unaware of the law in this regard. This speaks to the motivations for her conduct whilst in this country and this does damage her credibility to a limited extent.
31. I find also that the Appellant did not claim asylum until she had been in this country for over a year. She said that she decided to stay because, in summary, she liked it here and did not want to return with her father. I infer from her evidence that she consciously made a decision to overstay but did not consider asylum at the point of time she decided to overstay. She said she was unaware of the concept, which is plausible, but equally she has not provided an explanation of how she came to learn of the possibility of seeking international protection.
32. Weighing these aspects together, I find that her general credibility is damaged and this means I must treat and weigh her evidence with greater circumspection. She is not entitled to the benefit of the doubt. However, personal credibility is one factor I must pay regard to when assessing the Appellant’s claim in the round – albeit an important one. Credibility of the claim is a holistic assessment of a number of factors including sufficiency of detail, internal and external consistency and, to a very limited extent in immigration appeals, plausibility.
33. In this case, I am satisfied that the internal and external consistencies in her account are enough to discharge the standard of proof notwithstanding the limitations on her credibility. I find the Appellant has proved it is reasonably likely that she is a lesbian.’
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Having concluded that the appellant was truthful as to her sexual orientation, the Judge turned to the issue of risk of persecution upon return to Malaysia. Having identified the tests set out by Lord Rodger in HJ (Iran) v. Secretary of State for the Home Department [2010] UKSC 31; [2011] 1 AC 596, the Judge proceeded to consider the respondent’s CPIN “Malaysia: Sexual orientation and gender identity or expression” (Version 1.0) (June 2020). I observe at this point that no express reference was made in the decision as to the objective documentation relied upon by the appellant, nor to the numerous references to these documents running over eight pages of the appellant’s skeleton argument dated 1 March 2021.
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The Judge concluded:
‘41. The Appellant said in her interviews that she could not live openly with a female partner in Malaysia and would have to conceal her sexuality. She has never said she fears violence or exceptional repercussions from her family. She has given an account of two female relationships she began and maintained until they broke down for reasons not connected with discrimination or ill-treatment. She lived and worked in Kuala Lumpur until she chose to return...
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