(Immigration and Asylum Chamber) Appeal Number: PA/03298/2019
THE IMMIGRATION ACTS
Heard at The Royal Courts of Justice
Decision & Reasons Promulgated
On 2 September 2019
On 14 October 2019
UPPER TRIBUNAL JUDGE blum
(anonymity direction MADE)
SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Ms V Easty, Counsel, instructed by Osprey Solicitors
For the Respondent: Mr T Lindsey, Senior Home Office Presenting Officer
DECISION AND REASONS
1. This is an appeal against the decision of Judge of the First-tier Tribunal Oxlade (the judge) who, in a decision promulgated on 24 May 2019, dismissed the appellant's protection and human rights appeal against the respondent's decision of 22 March 2019 to refuse his protection and human rights claim made on 26 June 2018.
2. The appellant is a national of Pakistan born in February 1988. He entered the UK on 7 March 2010 as a Tier 4 (General) Student. He applied for further leave to remain in the same capacity, but this was refused and an appeal before the First-tier Tribunal dismissed on 26 June 2012. Further applications that did not attract a right of appeal were also refused.
3. In 2015 and 2017 the applicant made applications for an EEA residence card on the basis of his durable relationship with a female EEA national. An application made on 22 June 2015 was refused on 23 December 2015 and an appeal dismissed on 3 April 2017. A further application was also refused on 10 August 2017.
4. In his protection claim made on 26 June 2018 the appellant stated that he was gay and that he held a well-founded fear of persecution in Pakistan as a result of his sexual orientation. I summarise the appellant's account. He was raped at the age of 14 by a caretaker of the mosque. He was attracted to both boys and girls and had two boyfriends in Pakistan, S and K. His relationship with S lasted for one year and occurred when the appellant was 18. His relationship with K lasted for 8 months and occurred when the appellant was 19. The appellant's father beat him with a bat because he suspected the appellant was gay after being alerted that the appellant and K were seen kissing and touching each other in a public park.
5. When the appellant came to the UK he lived with cousins for 4 years and concentrated on his studies. He commenced a relationship with a female EEA national but did not find the physical side of the relationship to be satisfying and when she went away in January 2017 he went to several clubs and had two one-nightstands with men. After this he realised that he could not be with a woman and wanted to be with men. The relationship ended in October 2017.
6. In November 2017 the appellant joined Outcome, Islington Mind, a LGBT mental health service. In May 2018 The appellant got chatting on-line with AG via an app designed for gay people. They would masturbate to each other via an internet connection. Unknown to the appellant AG videoed the appellant masturbating while naked and later sought to blackmail the appellant threatening to share the videos online through the appellant's Facebook account with his family. AG carried out his threat by sharing the video with the appellant's brother. On 15 June 2018 the appellant's father told the appellant that he was a disgrace and that he would be killed if he returned to Pakistan. The appellant received threatening texts from his family. He reported the blackmail to the police but there was, at the time the hearing, no outcome as a result of the reportage.
7. Around December 2018/2019 the appellant had a brief sexual relationship with Sergio [C], a gay Portuguese national residing in the UK. Although the relationship ended they remain friends. A family friend, IN, travelled to Pakistan for a family wedding and spoke to the appellant's father who indicated that he had seen the video footage and remained furious and ashamed and believe that the appellant should be killed because of his conduct.
8. The respondent did not accept the appellant gave a credible account of being gay. The respondent pointed to inconsistencies in the appellant's evidence relating to when he first became aware of his sexual orientation and rejected the appellant's account of his relationship with S. The respondent found other aspects of the appellant's account incredible and inconsistent, particularly in relation to his relationship with the EEA national and his dealings with AG.
9. The appellant exercised his right of appeal under s.82 of the Nationality, Immigration and Asylum Act 2002.
The decision of the First-tier Tribunal
10. The judge had before her a bundle of documents prepared by the appellant's legal representatives running to 208 pages. This included a witness statement from the appellant, a witness statement from SC, a witness statement from IN and letters from Islington Mind, Hounslow IAPT, the NAZ and MAT Foundation, a letter from the Metropolitan Police Service, translated text messages, screen-prints of the messages allegedly sent between the appellant and AG, and background country evidence. The appellant additionally relied on a witness statement from Dr Philip Gatter, the appellant's counsellor. Dr Gatter, a psychotherapist, had written a letter of support on 7 November 2018 issued on Islington Mind letter-headed paper.
11. The judge heard oral evidence from the appellant, Dr Gatter, PC and IN. The judge summarised the Reasons for Refusal Letter and the submissions by the Presenting Officer and by the appellant's Counsel. The judge properly directed herself according to the correct burden and standard of proof .
12. In the section of her decision headed 'Discussion' the judge indicated that she took into account the treatment being received by the appellant for depression and that she considered him a vulnerable witness. The judge additionally directed herself that delay in making an asylum claim based on one's sexual orientation could only carry limited weight.
13. At  the judge stated,
"I accepted the point made by Dr Gatter, that in individual's "sexual biography" (his words) is often not straightforward; a complicated path may arise for a number of reasons, which can involve societal or parental expectation or approval/disapproval, personal development, or exposure to certain experiences or influences. What comes to mind, is those who marry a person of the opposite sex in order to conform with to what is expected of them/self-preservation and as a cover for what they believe to be their sexuality; this marriage/union would betray their real sexuality, so be a poor barometer of it. Furthermore, he made the point that sex is not an identifier of sexual identity. So, I accept the point which can be made, that having a sexual relationship with a woman, is not necessarily determinative of the man's heterosexuality or even bisexuality; the converse is also true, that men who have sex with men are not necessarily homosexual. This would mean in the Appellant's case that his relationship with [the female EEA national], would not define him. I further accept the point which can be made, which is that a man having sex with a man does not necessarily define him as homosexual: indeed it is fairly well accepted that in some Muslim societies, men who have sex with men ("MSM" of which Mr [C] spoke), do so because women are not available to them in a conservative society, and so the act of having such sexual contact with men does not define them as homosexual. So, in the Appellant's case, his having sexual relationships in Pakistan and the UK with men, do not define him as homosexual. Further, it is commonly known that sexual identity may fluctuate and develop over time, so it is not "fixed" at a specific age or time in life as is awareness and recognition."
14. At  the judge recognised that there was a "valid argument to be made" that the appellant's failure to have any sexual relationships with men whilst in the UK from 2010 to 2017, his relationship with the EEA national from 2014 to 2017, and his late claim for asylum, showed a complicated sexual biography and were not necessarily indicators of a person seeking to fabricate an asylum claim. then at  the judge stated,
"In order for me to conclude that he [ sic] Appellant's sexual biography supports his claim to be homosexual and at risk on return - rather than being evidence of a constructed claim - it relies on his credibility, but for the following reasons, I did not accept as credible his claim to have suffered persecution, to be gay, or for there to be a real risk of persecution on account of his claimed sexuality if returned to Pakistan."
15. At  the judge identified inconsistencies in the appellant's evidence relating to when he became aware of his sexual orientation. At  the judge drew an adverse inference from the fact that the appellant made two further EEA residence card applications after his one-night stands in December 2016/January 2017. The judge also pointed to an inconsistency in the appellant's account given that, in his interview, he said at one stage that he wanted the EEA national "physically."
16. At  the judge did not find credible the appellant's account of why he got involved with AG and why he shared his family details with AG in light of the appellant's other evidence concerning his involvement with and support by the LGBT organisations and in light of the obvious risk that "the two sides of his life would come into contact with one another."
17. At , whilst accepting that corroboration was not needed, the judge declined to attach weight to the printout of exchanges with AG, the report of the crime to the police and the texts purporting to come from the appellant's brother. The printouts did not show who the senders or recipients were, the police report did not contain information about what was reported to them, and the appellant had lost the phone containing the text messages although he had not reported the loss to the police. There was also an inconsistency in his oral evidence and his witness statement as to whether he offered the phone itself to the interviewing officer at his interview or merely offered up copies of the information contained on the phone.
18. At  the judge found that the evidence from Outcome, Islington Mind did not suggest that the appellant had informed the organisation of the blackmail events and the subsequent threats from his family. The judge found DR Gatter's evidence relating to his 1-2-1 meetings with the appellant to be muddled and, in any event, the disclosure to him of the blackmail event and the threats from his family were not around the time of the blackmail. The letters from Outcome, Islington Mind dated 14 November 2018 and 27 November 2018 did not specifically speak of blackmail. The judge stated, "By the end of the evidence, it appears that Dr Gatter was clear that he had not known about this [ sic] parents threats to kill him until the day of the hearing."
19. At  the judge said she found no support for the appellant's claim that it was Islington Mind who encouraged him to claim asylum and there was no supporting evidence from the Naz and Matt Foundation as to when he first consulted them. The judge found it odd that the appellant did not consult with them contemporaneously with the events given the clearly built-up relationship he had with them.
20. At  the judge explained why she found IN to be "partisan" and to have "adopted a hostile stance to answering perfectly appropriate questions." There was no evidence that IN had been out of the country at the relevant time and the judge found he exaggerated or misstated what the appellant's father had said. Nor did the judge find it credible that the appellant's father would have discussed the appellant's conduct at a wedding.
21. At  the judge stated,
"The Appellant relied on the evidence of Paul [C], who is active in gay rights, and closely associated with the Pakistani/Asian community, who attend the club that he is involved in running. His opinion was that the Appellant was a gay man, and confident in this when they started their relationship, though he was not put forward as an expert witness; in cross-examination he clarified this saying that they had two sexual encounters, and thereafter became friends. He accepted as he had in another case before me, that not all men who attend gay clubs (including his club, Disco Rani) are gay, and that there is a well-recognised aspect of sexuality, given the acronym "MSM", which means men who have sex with men, which does not equate to a sexual identity as a gay man. In the final analysis, I found that the evidence of this witness partisan, exaggerated in parts, and I place no weight on his opinion on whether the Appellant is gay."
22. At  the judge stated,
"I should add that Dr Gatter offered an opinion in his witness statement, of the Appellant's homosexuality but it was not argued by Ms Ferguson that Dr Gatter - though a person with professional qualifications - was called as an expert witness, whose opinion could be relied upon."
23. Having found a further discrepancy in the dates the appellant claimed to have started to harm himself by reference to the time his family found out about his sexuality, the judge did not find the appellant to be credible in his account of his sexual identity and the events that caused him to claim asylum. The appeal was dismissed.
The challenge to the judge's decision
24. The written grounds are poorly particularised and difficult to follow. They variously contend that the judge overlooked a large amount of evidence that the applicant was part of the LGBT community and that she acted in an unfair or irrational manner by declining to treat the evidence of Dr Gatter as that of a professional witness. Dr Gatter did not know the appellant in a personal capacity, he gave his professional address and his witness statement started by listing his qualifications. The grounds asserted that Dr Gatter was "an expert on sexual identity" and that he had had seen the appellant over the course of more than 18 months and had found his account to be credible. The grounds contend that the ideas about MSM "seems stereotypical and do not address why these men continue to have sex with men once they are in the UK." It was submitted that the judge approached the appeal on the basis that the appellant was MSM at most.
25. The judge was criticised for holding against the appellant his inconsistencies concerning how he chose to characterise himself with respect to his attractions despite accepting Dr Gatter's point that some individuals may have a more tortuous journey to arrive at the final view of their sexual identity. The judge, it was submitted, was not entitled to hold against the appellant the inconsistencies in his evidence given her acceptance that sexual identity can change over time. The grounds offer a different interpretation of the appellant's evidence in his interviews and oral evidence.
26. The grounds additionally took issue with the judge's assessment of Dr Gatter's evidence and contended that the appellant raised the blackmail letter with him in November 2018. Counsel who appeared for the First-tier Tribunal and who drafted the grounds did not however provide any contemporaneous record of the hearing. The grounds contended that the judge was not entitled to draw an adverse inference from the appellant's evidence that he offered his phone to the interviewing officer during his substantive asylum interview as the relevant guidance made clear that interviewers were not to accept evidence that might be sexually explicit or to ask any inappropriate or intrusive questions.
27. The grounds contend that the judge misunderstood the appellant's evidence relating to how AG was able to contact the appellant's family through Facebook and inappropriately applied her own standards of what was reasonable or understandable behaviour. Although the judge accepted the appellant's vulnerability she did not appear to consider that this might amount to evidence of past persecution or a well-founded fear of future persecution. The judge applied the wrong standard by using the term "I am not sure" when assessing the appellant's self-harm by reference to the parental rejection and threats. The grounds further contended that the Presenting Officer asked questions "with incredulity" and that "from the outset the witness was treated as if he was lying about everything including being a British citizen." It was alleged that the respondent adopted a partisan and hostile approach.
28. In granting permission Judge P J M Hollingworth stated,
"It is arguable that the Judge has fallen into error in relation to not treating Dr Philip Gatter as an expert witness given that which Dr Gatter states with regard to his qualifications and practice. It is further arguable that Dr Gatter having seen the Appellant since December 2017 was in a position to provide a professional view. It is arguable that the credibility analysis has been affected."
The error of law hearing
29. Mr Easty, who did not appear before the First-tier Tribunal and who did not draft the grounds of appeal, amplified the grounds by submitting that the judge erred in law by failing to set out the oral evidence given at the hearing, at least in summary form. This failure prevented a clear understanding of the reasons why the appeal was dismissed. Ms Easty submitted that the judge failed to make necessary findings in respect of the appellant's relationships with S and K, materially relevant to the central issue of the appellant's sexual orientation. Expanding upon the grounds of appeal it was submitted that the judge failed to take account of relevant evidence including the evidence from Outcome, Islington Mind and failed to adequate consider the evidence from the Naz and Matt Foundation. The judge was said to have erred in law in failing to consider Dr Gatter's evidence as a psychotherapist and counsellor dealing with gay men who have experienced trauma.
30. Mr Lindsay submitted that the criticism of the decision was a disagreement with factual findings open to the judge. The references to MSM was said to be a 'red herring' and the judge was plainly entitled to find that a person who has sex with someone of the same sex did not make them gay. The judge reached her conclusion principally based on adverse credibility findings and the grounds did not effectively challenge those findings. The judge gave cogent reasons for her conclusions, particularly at  to . Although the judge did not record all the oral evidence from the witnesses it was open to the appellant to have requested a copy of the judge's notes and/or the Presenting Officer's notes. The judge was not obliged in any event to set out all the evidence given. The judge did refer to evidence from Outcome, Islington Mind and the Naz and Matt Foundation and was entitled to conclude that that evidence was not central to the determination.
31. I reserved my decision.
32. The judge's decision is well-structured, setting out first the basis of the appellant's claim and identifying the evidence upon which he relied, and then setting out the respective positions of the parties. It is unfortunate that the judge did not however provide a summary of the oral evidence given at the hearing. Whilst the judge does refer to some of the oral evidence in her reasoning it is not always easy to discern what the relevant oral evidence was and there is a general danger that material evidence given during the hearing may be overlooked. The appellant's representatives did not however request from the Upper Tribunal the judge's notes of the hearing and they have not provided any contemporaneous note from counsel then representing the appellant.
33. The judge was clearly aware of the appellant's vulnerability as someone suffering from mental health issues and appeared to make appropriate allowance , and she was demonstrably aware of the guidance relating to late disclosure of asylum claims from members of the LBGTQ+ community . At  and  the judge accepted that a person's "sexual biography" (coining a term used by Dr Gatter) was not straightforward and accepted that the fact of marriage or the nature of a person's sexual relationships do not necessary reflect their sexual orientation, especially in conservative societies. In so doing the judge was entitled to refer to the term "MSM" and to observe that sexual relationships between men did necessarily mean that those men defined themselves as gay. The judge recognised that, in principle, the appellant's relationship with the female EEA national, his late asylum claim and the absence of any sexual relationships with men between 2010 and 2017 did not mean that the appellant was not gay.
34. At  the judge gave cogent and legally sustainable reasons for drawing an adverse inference based on discrepant evidence from the appellant relating to when he first became aware of his sexuality, and at  the judge was entitled to rely on a contradictory explanation given by the appellant as to why he made two further EEA residence card applications in 2017 even after realising he could not be with a woman. At  the judge was unarguably entitled to her concerns flowing from the appellant's evidence that he gave AG access to his Facebook account. It was rationally open to the judge to find it incredible that the appellant would have done so given his family's stance on homosexuality and given the other support available to the appellant. At  the judge was again rationally entitled to her expressed concern that the printouts of the messages allegedly between the appellant and AG did not disclose the identity of the sender or recipient, and that the report of a crime to the police contained no details of the crime alleged. It was also open to the judge to note the absence of any reference in the asylum interview to an attempt by the appellant to give either his phone or copies of the information contained on his phone to the interviewing officer. At  the judge explained, by way of an example, why she found IN to have exaggerated his evidence and why he adopted a hostile stance. In the absence of any statement from counsel representing the appellant in the First-tier Tribunal or any contemporaneous record from counsel there is no merit in the ground asserting that it was in fact the Presenting Officer who adopted a hostile approach.
35. Despite the reasoned adverse credibility findings noted above, I nevertheless have concerns with other aspects of the judge's approach to the issue of credibility.
36. At  the judge stated that there was nothing in the supporting evidence from the Naz and Matt Foundation (a registered charity working to end religious and cultural homophobia) as to when the appellant first consulted them. The judge found it "extremely odd" that the appellant failed to consult them contemporaneously with "the events" in light of the trust he had in them. The letter from the Naz and Matt Foundation dated 19 November 2018 did however indicate when the appellant first consulted them. The letter stated, "[the appellant] first contacted Naz and Matt Foundation on 4 th September 2019 requesting support." The judge was factually wrong to state that the appellant already had trust in the Foundation and had built up a relationship with the Foundation by the time of the events that he claims caused him to make his asylum application. The appellant only approached the Foundation after the events. There was therefore no basis for the judge to find it "extremely odd" that the appellant failed to consult the Foundation contemporaneously with the events. To this extent the judge has attached weight to irrelevant matters when finding the appellant incredible.
37. At  the judge places "no weight" on the evidence of Sergio [C] (who the judge wrongly identifies as 'Paul [C]'), and had previously made the same mistake at ) because she found his evidence "partisan" and "exaggerated in parts." The judge however fails to explain which parts of Mr [C]'s evidence was exaggerated, or how the evidence was exaggerated. There is a distinct lack of reasoning in respect of this aspect of the judge's finding. It is incumbent on judges to give clear, albeit brief, reasons in respect of all material findings. The reasons given by the judge for attaching no weight at all to Mr [C]'s evidence are inadequate. Nor is it entirely clear why the judge found Mr [C]'s evidence to be "partisan". The Judge noted that Mr [C] was "active in gay rights and closely associated with the Pakistani/Asian community", that Mr [C] had previously given evidence in another case before the judge, and that he was involved in running a club the appellant attended. The mere fact of being an activist does
38. Nor were there any clear findings of fact in respect of Mr [C]'s evidence regarding his relationship with the appellant. Following a brief intimate relationship Mr [C] maintained that he and the appellant were good friends, that they got to know each well, and that the appellant would often break down when talking about his previous experiences. Whilst the judge was not obliged to accept that the appellant was being truthful in his interaction with Mr [C] there was no suggestion that Mr [C]'s evidence was untruthful. Nor are there any clear factual findings as to whether the appellant and Mr [C] had a brief sexual relationship. Whilst mindful of the fact that a same sex relationship cannot define a person's sexual orientation, and having full regard to the abbreviation 'MSM', whether the appellant had in fact been intimate with Mr [C] was still a relevant factor that had to be considered in the round.
39. There is similar lack of necessary findings by the judge in respect of the appellant's claimed relationships with S and K. It is not clear from , indeed or the decision read as a whole, whether the judge accepted or rejected the appellant's claim to have had relationships with S and K in Pakistan. At  the judge discussed the term 'MSM' and properly noted that simply because a man has sex with a man does not necessarily define the person as being homosexual. But if the appellant had actually had relatively long-term intimate relationships with two men in Pakistan this would still be a relevant factor in determining whether the appellant may be gay. If the judge was suggesting that the appellant did have relationships with S and K in Pakistan but that the relationships was due to the unavailability of women in a religiously and culturally conservative society, then she needed to make an explicit finding to this effect. If the judge rejected the appellant's claimed relationships with S and K, she again needed to make a clear finding in respect of this relevant issue. By failing to make clear findings of fact in respect of this particular assertion the judge erred in law.
40. I am additionally satisfied that the judge failed to take account of relevant evidence including the evidence from Outcome, Islington Mind detailed in the letter dated 23 April 2019. Although the judge mentioned this letter at  and referred in general terms to the evidence from Outcome, Islington Mind at , there was no adequate engagement with the content of the April 2019 letter. This letter indicated that the appellant had been attending the organisation since November 2017, significantly before his alleged involvement with AG in May 2018 and his asylum claim made on 26 June 2018. The letter indicated that appellant's active involvement with the organisation in respect of discussions and workshops and his participation in day trips. The letter also stated that it was the organisation's experience of supporting LGBTQ+ people with mental health problems over 20 years that heterosexual people felt uncomfortable in an environment that was so clearly defined as LGBTQ+ and where people referred to same sex relationships freely and naturally. As the appellant attended the organisation's services for almost 17 months and was actively involved and appeared to feel comfortable engaging in conversations about LTBTQ+ relationships, it was believed that the appellant was a gay man. This was clearly relevant evidence in determining whether the appellant was gay. Although the judge was not bound to accept the assertions in the letter she was required to engage with the assertions.
41. The assertion in the written grounds that Dr Gatter was "an expert on sexual identity" have no foundation. Dr Gatter is a psychotherapist and counsellor at an organisation assisting members of the LBGTQ+ community suffering from mental health issues. Neither his statement nor his letter dated 27 November 2018 suggest that he is an "expert on sexual identity." Although there was no challenge, either at the First-tier Tribunal hearing or in the 'error of law' hearing, to his standing as an expert dealing with, inter alia, gay men who experience mental distress, Dr Gatter did not, at least in his brief written evidence, give an explanation as to why he believed the appellant was gay based on his professional experience. The judge did not summarise Dr Gatter's oral evidence and it is unclear whether he was asked to give his opinion of the appellant's sexual orientation by reference to his experience in dealing with gay men with mental health issues. The grounds were not accompanied by any statement or record of hearing by the appellant's representative. The judge appears however to have attached no weight to Dr Gatter's opinion of the appellant's sexual orientation even though he had been seeing the appellant in general counselling sessions and 1-2-1 sessions since December 2017. Whilst not an "expert on sexual identity" Dr Gatter's opinion, based on his interaction with the appellant in the specific context of a LBGTQ+ organisation, and as a psychotherapist and counsellor dealing with gay men who have experienced trauma, may have been worthy of at least some weight, a point considered by the First-tier Tribunal when granting permission. To the extent that the judge appears to have attached no weight at all to Dr Gatter's opinion because she believed he was not giving his evidence as an expert witness, I find that the judge failed to take account of potentially relevant evidence.
42. At  the judge stated, "By the end of the evidence, it appears that Dr Gatter was clear that he had not known about this [ sic] parents threats to kill him until the day of the hearing." The judge did not summarise the oral evidence given by Dr Gatter than supported this conclusion. Moreover, it is unclear how this can be reconciled with the letter from Dr Gatter dated 27 November 2018 where he states, "I understand that [the appellant] is now known to be a gay man to his family who have threatened to kill him if he returns to Pakistan and he feels he will never be accepted as a gay man in Pakistan." Nor did the judge appear to take into account, when making an adverse credibility finding at  based on the absence of contemporaneous disclosure by the applicant of the blackmail allegation, that the disclosure would not have occurred in the general counselling sessions and that the appellant did not have a 1-2-1 session with Dr Gatter until November 2018.
43. I have found this a difficult decision to make. I bear in mind the various adverse credibility findings reasonable open to the judge. I am however ultimately satisfied that the errors of law I have identified may have resulted in a different conclusion had they not occured. I am consequently satisfied that the decision must be set aside.
44. Given that the errors of law relate to the adverse credibility findings made by the judge, which were pivotal to her conclusion that the appellant's protection claim was not made out, I consider it appropriate to remit the matter back to the First-tier Tribunal for a fresh hearing.
Notice of Decision
The decision of the First-tier Tribunal involved the making of an error on a point of law and requires the decision to be set aside.
The case is remitted back to the First-tier Tribunal for a fresh (de novo) hearing, to be heard by a judge other than Judge Oxlade.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant in this appeal is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.
D.Blum 10 October 2019
Upper Tribunal Judge Blum