(Immigration and Asylum Chamber) Appeal Number: PA/05801/2016
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 31 January 2019
On 20 February 2019
DEPUTY UPPER TRIBUNAL JUDGE ESHUN
(ANONYMITY DIRECTION not made)
For the Appellant: Mr W Rees, Counsel
For the Respondent: Mr D Clarke, Home Office Presenting Officer
DECISION AND REASONS
1. The appellant has been granted permission to appeal the decision of First-tier Tribunal Judge L K Gibbs dismissing his appeal against the decision of the respondent to refuse his asylum claim.
2. The appellant entered the UK on 22 September 2012 with leave to remain as a Tier 4 Student valid from 4 September 2012 to 30 July 2013. He claimed asylum on 12 August 2015 on the basis of his sexuality. His claim was refused in a decision dated 19 May 2016. The appellant appealed against that decision and attended an appeal hearing on 7 November 2016. His appeal was dismissed in a decision promulgated on 22 November 2016. In a decision promulgated on 27 February 2017, the First-tier Judge's decision was set aside in order to be reheard. Judge Gibbs reheard the appeal and dismissed the appellant's appeal. It is against this decision that the appellant has been granted permission.
3. The appellant claimed that as a school boy he realised he was interested in boys and had no attraction to girls. Within his friendship group were two other boys who felt the same way as he did and the three of them started a sexual relationship which lasted for three to four years. They rented hotel rooms to engage in their sexual activities once or twice a month.
4. The appellant said he was around 15 or 16 years of age when a friend, who did not approve of his activities, told his father that he was gay. His family tried to get him to change and when this was unsuccessful tried to arrange a marriage for him in 2001 but he refused. As a result he was beaten by his family. The appellant agreed with his family that if they let him travel to the UK to finish his degree, he would agree to get married on his return to Pakistan.
5. The appellant claimed that since arriving in the UK he has lived openly as a gay man, enjoying relationships with men. He is a member of various gay clubs. He did not claim asylum earlier because he was unaware that he could. He said his father died in September 2013 and he has not had any contact with his family since then. He is afraid of his family and society in general if he had to return to Pakistan.
6. The appellant has criminal convictions. On 4 July 2016 he was convicted at Cambridgeshire Magistrates' Court for making a false representation to make gain for self or another or cause loss to other/expose other to risk and was sentenced to four weeks' imprisonment and a victim surcharge of £115. On 20 May 2017 he was convicted at Northumbria Magistrates' Court on similar charges. He was committed to Newcastle Crown Court and sentenced to sixteen months' imprisonment concurrent to a sentence imposed at Portsmouth Crown Court on the same day. On 29 June 2017 at Portsmouth Crown Court the appellant was convicted of seventeen counts of dishonestly making false representations, similar charges as those before and was sentenced to a total of eighteen months' imprisonment and twelve months concurrent imprisonment. As a consequence of this the respondent made a decision on 19 October 2017 to deport the appellant.
7. The respondent rejected the appellant's claim in its entirety. The respondent did not accept that the appellant is a gay man and was not persuaded that he would be at risk on return to Pakistan.
8. The judge heard oral evidence from the appellant in English.
9. The judge's findings and conclusions are set out at paragraphs 19 to 30.
10. At paragraph 19 the judge said the medical evidence relied on the appellant only said that the appellant underwent a scrotal ultrasound because of a suspected " epididymal cyst" on 24 January 2016. She said the appellant's representative who happened to be a Professor Rees was unable to explain why this was evidence of the appellant's sexuality although the appellant maintained in oral evidence that it was evidence of a sexually transmitted disease following intercourse with a man. The judge was not satisfied that this was true. The judge found that the evidence before her was simply that the appellant had a suspected cyst on his right testicle which he was satisfied was not a sexually transmitted disease and was not evidence of the appellant's sexuality. I note that this finding was not challenged by the appellant.
11. At paragraph 20 the judge said she placed weight on the Home Office Presenting Officer's submission that the fact of the appellant's criminal convictions was evidence of the appellant's proclivity to dishonesty. The judge said that although it would appear that the appellant told the probation service that he had been forced to carry out these activities, she placed weight on the fact that he did not address this issue in his witness statement or oral evidence. She said that at no stage in the report (despite there being sections on " lifestyle and associates" and " emotional wellbeing") did the appellant mention his sexuality.
12. Professor Rees submitted that the appellant accepted the criminal activities, simply pleaded guilty and took the punishment. This was because according to the probation service report, he committed the offences due to threats to himself and also to his brother in Pakistan; and pleaded guilty because he did not have the evidence of the threats. Professor Rees submitted that the Home Office did not push this point but the appellant was criticised for not dealing with this in oral evidence.
13. I find that the judge's decision at paragraph 20 cuts both ways in that both parties failed to address this issue at the hearing.
14. In any event, I find that the judge made a fair finding that the fact of the appellant's criminal convictions was evidence of his proclivity to dishonesty. He had pleaded guilty to the offences and therefore the judge could not go behind the decisions made by the criminal courts. I find, as submitted by Mr Clarke, that in the probation service report there was no mention by the appellant of attending gay clubs or being part of the gay community when asked about his lifestyle and associates and emotional wellbeing. Consequently, I find that paragraph 20 does not disclose an error of law in the judge's decision.
15. At paragraph 21 in assessing the appellant's credibility the judge placed weight on the fact that despite entering the UK as a student, the appellant has failed to achieve any qualifications. Although in a letter written by the appellant's representatives to the UK Visas and Immigration on 12 October 2015 asserting that he had been unable to study because of illness, the judge found that there was no evidence produced by the appellant to corroborate this assertion which she found in any event was contrary to the appellant's oral evidence that he stopped studying when his father stopped paying his course fees. She also found that with regards to his father, the appellant initially said in cross-examination that his mother and father were in Pakistan but then claimed that his father had died in 2013. She considered that this was a simple issue about which it was reasonable to expect the appellant to provide consistent evidence, and the appellant's failure to do so cast further doubt on his credibility.
16. I find that the judge's finding at paragraph 21 does not disclose an error of law. Whilst the appellant's failure to get a degree does not go to his credibility, what the judge was saying was that the appellant had given inconsistent evidence as to why he had been unable to study. There was further inconsistency as to whether his father had died in 2013. I find that these inconsistencies undermine the appellant's credibility.
17. At paragraph 22 with regards to her assessment of the subsistence of the appellant's claim, the judge reminded herself that each person's realisation regarding their sexuality will be an individual journey which some are better able to articulate than others. With his in mind she considered the appellant's evidence, particularly in light of the criticisms raised in the Reasons for Refusal Letter and the respondent's assertion that the appellant's evidence had been vague and often his responses were found to be unclear. At paragraph 23 the judge did not place significant weight on when the appellant said his father found out about his sexuality.
18. At paragraph 24 the judge calculated that the appellant would have been around 12 or 13 when his relationship with two of his class members started. While this in itself did not lack credibility, what she found implausible was that at this young age the appellant and his friends were able to rent hotel rooms without arousing suspicion once or twice a month. Further she found that this chronology was out of kilter with the appellant's answers at AIR Q79 that they were at college when they went to a hotel for sex, although his father found out about this when he was 15 or 16. I find no error of law in this decision.
19. At paragraph 25 the judge found that the appellant's evidence regarding the consequences of this revelation was inconsistent. On the one hand he said that he was beaten and spent most of his time indoors (AIR Q38 and 41) but he also then claimed to have continued to spend time with his gay friends (AIR Q41). The judge found that it lacked credibility that if the appellant had contact with gay friends in Pakistan that he would have continued to live with his parents for a further three to four years prior to coming to the UK, or that, having refused to enter into an arranged marriage in Pakistan, the appellant's father would have agreed to finance the appellant's student visa to a country where homosexuality is accepted on the basis that his son would agree to marry at the end of his studies.
20. I found no error of law in the judge's findings at paragraph 25. The judge made findings that were reasonably open to her.
21. At paragraph 26 the judge agreed with the respondent's conclusions that the appellant's answers regarding his attraction to his friends Zuheb and Jamal were vague and lacking credibility despite the questions themselves being simple. There appeared to be no challenge to this finding either in the grounds or by Professor Rees.
22. At paragraph 27 the judge found that the appellant's description regarding how he discovered that his two friends were also gay lacked credible detail, given the country background information regarding societal perception of gay people in Pakistan, and possible repercussions if a person is discovered. She found that when asked about this the appellant was only able to say at question 61 that whenever they went out as friends, he noticed they would not talk to girls, but they would take an interest in boys. On the other hand, the other friends of his would be interested in contacting girls.
23. Professor Rees submitted that in this decision the judge was focusing on how the appellant discovered that his two friends were gay rather than the actual gay relationship that developed between them.
24. I find no error of law in the judge's decision at paragraph 27 because in the previous paragraphs the judge had disbelieved the appellant's evidence that he was gay and had a gay relationship with two of his school friends. I find that the judge did not err in exploring how the appellant would have found out that his two friends were gay. She found that the evidence was vague and not particularised. I find that this finding was open to her.
25. At paragraph 28 the judge found that in the light of her concerns, and the timing of the appellant's asylum claim, some two years after his leave to remain had expired, cast further doubt on his credibility. She did not accept his evidence that he did not know about claiming asylum, particularly as his evidence is that his father stopped paying his fees some six months after his arrival which meant that he was at risk of removal quite early on. The judge found that this was inconsistent with a person who has a genuine fear of return to their home country.
26. The judge said at paragraph 29 that along these findings, she did not find that the documentary evidence regarding the appellant's membership of gay organisations, clubs and bars was persuasive, particularly in the absence of witnesses to corroborate that these are used and are genuine.
27. The challenge to this finding in the grounds was that the judge fell into material error in not placing any real weight on the documentary evidence submitted by the appellant concerning his membership of gay clubs as establishing his sexuality. This would include the letters as long ago as August 2013 from the Gloucestershire Gay and Lesbian Society and his membership of this grouping. The grounds went on to say that it is very hard to believe that the appellant would have joined gay clubs if he was not gay and this point has not been taken by the judge seemingly because of her focus on her credibility findings, which run counter to Awala  CSOH 73 where at paragraph 22 it was pointed out that it was "not proper to reject an applicant's account merely on the basis that it is not credible or plausible".
28. Professor Rees submitted that the appellant's membership of the gay clubs was genuine and that the judge did not consider the evidence in the round. She rejected the objective evidence without considering the evidence in the round.
29. I find no error of law in the judge's finding at paragraph 29. I find that the judge's decision was open to her. If the appellant had joined a gay club in 2013, I agree with the judge that in the absence of witnesses to corroborate that he was actually using the clubs and that his membership was indeed genuine. When one looks at the provision service report, in the sections on "lifestyle and associates", the appellant said he spent most of his time with friends, going to movies and visiting the town centre. And an emotional wellbeing it said that he suffers from asthma otherwise he is fit and well. No self-harm, suicidal thoughts. There was no mention that he was gay and that if the Secretary of State's decision went against him, he would suffer emotional harm. I find on the evidence that the judge's decision was fair.
30. Professor Rees's main argument was that the judge did not have any regard to HJ (Iran). He had submitted to the judge at the hearing that the appellant was actually gay and even if he is treated as gay on return, the perception would be sufficient to qualify him for asylum. He argued that the judge's failure to consider this submission was a material error of law.
31. I noted that this submission did not appear in the decision or the judge's record of proceedings. I accepted Professor Rees's submission that the judge may not have recorded everything that was said to her at the hearing. Nevertheless, I find that the judge's failure to consider the submission did not materially undermine her decision. The judge did not believe that the appellant is gay. Therefore, if he is not gay there is no real likelihood of the appellant being treated as a gay man on his return to Pakistan.
32. I find that the judge's decision discloses no error of law. The judge's decision dismissing the appellant's appeal shall stand.
No anonymity direction is made.
Signed Date: 18 February 2019
Deputy Upper Tribunal Judge Eshun