(Immigration and Asylum Chamber) Appeal Number: PA/12350/2017
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 25 February 2019
On 14 March 2019
DEPUTY UPPER TRIBUNAL JUDGE ESHUN
m R I
(ANONYMITY DIRECTION MADE)
For the Appellant: Mr R Parkin, Counsel
For the Respondent: Ms S Cunha, HOPO
DECISION AND REASONS
1. The appellant has been granted permission to appeal the decision of First-tier Tribunal Judge Feeney dismissing his appeal against the respondent's refusal on 13 November 2017 to grant him asylum in the United Kingdom.
2. The appellant is a citizen of Bangladesh born on 2 March 1983.
3. He arrived in the UK in October 2009 having been granted a student visa which was due to expire on 25 February 2013. On 20 February 2013 he applied for an EEA residence card as he claimed to be dependent on his cousin who had EEA residency. His claim was rejected on 10 December 2013 and he did not attend the appeal hearing scheduled on 9 June 2014. On 1 August 2014 he applied under the family and private life Rules but this claim was rejected on 29 October 2014 as he failed to enrol his biometrics. A further application was submitted on 28 November 2014 but this was rejected on 29 January 2015 with no right of appeal. On 2 November 2015 he made a further application for leave under the family and private life Rules but this was rejected on 25 November 2015. He claimed asylum on 15 May 2017.
4. The appellant claimed that he is gay and if he is removed to Bangladesh he will suffer inhuman and degrading treatment. He fears he will be prosecuted in Bangladesh because he is gay. The respondent rejected his claim that he was gay for the reasons set out in the respondent's Reasons for Refusal Letter.
5. The judge rejected the appellant's claim that he was gay for the reasons set out at paragraphs 30 to 42. The judge also rejected his claim under Article 8 of the ECHR for reasons set out at paragraphs 43 to 47. At paragraph 48 the judge concluded that the appellant's removal would not cause the UK to be in breach of its obligations under the Qualification Regulations.
6. Mr Parkin submitted that there were two errors of law made by the judge; the first was the undue weight the judge attached to the delay in claiming asylum; and the second was the failure by the judge to give adequate reasons as to credibility.
7. Taking the second ground first, Mr Parkin submitted that at paragraph 36 the judge merely said that she had taken into account copies of extracts from social media and Grindr, but also bore in mind that anyone can become a member and post photographs, as well as participate in chats. Mr Parkin argued that it is not the existence of the social media account but the purpose for which it is used. In the appellant's bundle from page 105 to page 157, there were months of contact between the appellant and other social media users making arrangements to meet. At page 155 he has a dating profile. This evidence and the evidence at page 156 does not leave much room for doubt. Mr Parkin said that this evidence was directed to the judge's attention. He said the contents of communication should have led to the significant inference that the appellant is gay. It is fairly compelling evidence of his sexual orientation. He submitted that in reducing the credibility attached to that evidence, the judge papered over the appellant's social media account and gave it no consideration and no weight. The judge failed to give reason why no weight was attached to this evidence.
8. On this issue, I accept Ms Cunha's submission that although the judge did not go into too much detail about the appellant's social media account, that account does not prove that the appellant is gay. The fact that the judge attached little weight to it does not materially undermine her decision in respect of the other matters the judge had considered.
9. At paragraph 30 the judge took into account the appellant's responses about how he first became aware of his sexuality. The judge found that there was limited explanation as to how his relationship with J began given that both were aware that being gay was a criminal offence in Bangladesh. The appellant explained that other friends were aware of the couple's sexuality and he explained that they were also participants in their sex games. Whenever asked about why he did not have any other relationships after J left, the appellant explained that he was afraid of being found out. The judge said this was inconsistent with the fact that he was able to have sexual relationships with others, in his own home, albeit while his parents were away and that his friends were aware of his sexuality.
10. The judge said the appellant provided a witness statement from MK dated 19 September 2017 and a witness statement from a Mr H dated 14 May 2017. The statements both said the appellant was gay. The judge said MK provided limited explanation as to how he knew the appellant was gay. Mr H explained that he met the appellant in a gay bar. The judge said that both witnesses did not attend to give evidence at the hearing. In any event she noted that when the appellant was asked at the interview he was unable to name these witnesses. He referred to one of the witnesses as Sajjad and explained that this was his nickname. He referred to the other witness as Murad.
11. At paragraph 33 the judge took into account the letters provided by the appellant in support of his claim. He provided an e‑mail from ELOP. It said the appellant was a member of ELOP and first attended on 18 April 2015. He is recorded as having attended two sessions. The judge noted that the author of the e‑mail did not attend to give evidence. The e‑mail itself simply confirmed membership of a group. It did not describe the appellant's involvement in that group. The e‑mail did not comment on the appellant's sexuality.
12. The judge also had a letter before her from NAZ dated 19 September 2017. It confirmed that the appellant is a NAZ service user; that he first accessed their services in May 2015, that he has been attending one-to-one support sessions and support groups for south Asian gay and bisexual men. The letter stated that the appellant identifies as a gay man and the author believed this to be true. The judge said the author of the letter did not attend the hearing to give evidence. The author did not explain on what basis he reached his conclusion that the appellant is gay. He has not identified how often the appellant attended any support sessions or outreach stalls. The judge said the provenance of this information was unclear. He did not say whether the author was reporting information in his personal knowledge, whether the information was given to him by the appellant or whether he has spoken to other members or organisers at the support groups and outreach stalls. The judge reduced the weight she attached to this letter as a consequence.
13. At paragraph 35 the judge said she had taken into account the letter dated 9 October 2018 from Reverend K. The judge acknowledged that he has worked within the Bangladesh community in London and that he has been to Bangladesh as a guest of the Bangladesh Government and he is aware of the strong opposition towards being gay. He provided the appellant with a character reference. He also said that having monitored, counselled and some personal activities with him over three years, he was assured that the appellant is a gay man. The appellant claimed that Reverend K is openly gay and that the appellant has attended his home for "sexual activities". The judge said that if this was the case then it is unclear why Reverend Kiddle would not have explained the true nature of their relationship in his witness statement or in his letter. The judge said the witness statement of Reverend K appears to have based his conclusions on questions he has asked the appellant. Again, Reverend K did not attend the hearing to clarify the position. The judge said she was told that he is now disabled and could not attend. Although she took into account the letter in support, she again reduced the weight she attached to it for the reasons given by her.
14. Mr Parkin acknowledged that at paragraph 37 where the judge refers to the provisions of Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, the judge did say that Section 8 was a factor to take into account in her overall assessment of the appellant's credibility. Mr Parkin relied on JT (Cameroon) to argue that Section 8 matters were given a status and a compartment of their own, rather than taken into account as part of a global assessment of credibility.
15. Mr Parkin referred to the judge's findings at paragraph 38 to 40. The judge held as follows:
"38. I take into account that the appellant did not claim asylum until 2017. He told me that he did not submit an asylum application at an earlier stage as he was not aware he was able to make an asylum application on the basis of gay sexual orientation. I do not accept this as a credible explanation for the following reasons.
a) The appellant is not naïve and uneducated. He is somebody who has come to the United Kingdom as a student and as a result of the various immigration applications he has made, he is familiar with immigration procedures.
b) Further, he claims to have engaged in organisations where he would have had contact with others in similar situations. It is likely that he would not have discussed his situation with them and it is unlikely he would have been ignorant of the help he could receive.
c) He had the benefit of legal advice in the course of his previous applications.
d) The appellant was well aware of the potential consequences attached to being gay in Bangladesh. It was clear to him that returning would not have been possible in the circumstances and I note that during his asylum interview he said that when he arrived in the UK he knew he could not return to Bangladesh.
e) In submitting his human rights, application it would have been obvious that this was a factor that could influence the respondent's decision and that could affect his return. However, he does not refer to it.
39. I have considered the guidance provided by the Home Office on dealing with claims based on sexual orientation. In his witness statement the appellant claims that he was feeling ashamed and degraded in claiming asylum. However, when he was asked why he didn't claim asylum during his interview, he said that he had status as a student. The rest of his response is incomprehensible. He told me during the hearing that he didn't know he was allowed to claim asylum. I find this is not a case where the appellant has found it difficult to come forward about his sexuality. His reasons for failing to claim asylum have differed over time. Further, since 2015 at least, he claims he had actively engaged in the gay club scene, NAZ and other gay support networks. Even if, when the appellant came to the UK, he was reluctant to disclose his sexuality no reasonable explanation has been provided as to why he did not discuss his fears with the respondent in 2015.
40. The appellant did not have just one opportunity to alert the respondent to his fears. He had contact with the respondent over many years and he made multiple applications. One such application was on the basis of his relationship with Jone Saveikyte, a Lithuanian national. On 16 October 2015 the respondent wrote to the appellant solicitors, ACM Immigration Experts Limited (during the hearing he confirmed that those solicitors were acting on his behalf at the relevant time). The letter invites the solicitors to submit evidence of the appellant's family and private life. The appellant replied to that letter on 18 April 2016 to assert he had family life with his partner Ms Saveikyte. However, he says he had no involvement in the application. I bear in mind that although the letter is in his name he has not signed it and I factor this into my analysis."
16. Mr Parkin accepted that the judge looked at other evidence but his main submission was that the judge attached less weight to the other evidence, namely at paragraph 30 where she found that the appellant was vague about how his relationship with J developed, at paragraph 34 there was no oral evidence by the author from NAZ and no oral evidence by Reverend K. Mr Parkin submitted that what was lacking was any reasoning as to why these pieces of evidence though not corroborative to a significant degree amounted to reasons for disbelieving the appellant's account. He submitted that delay was the judge's primary reason for refusing the appellant's account.
17. Ms Cunha submitted that the judge's assessment of the appellant's credibility was adequate, balanced and an overarching assessment. The judge did not attach undue weight to the delay by the appellant in claiming asylum. The judge addressed the reasons why delay was a factor in her assessment of the appellant's credibility.
18. I do not find that the judge gave undue weight to the delay by the appellant in claiming asylum. One has to bear in mind that the appellant had made various other applications since the expiry of his student visa on 25 February 2013. He did not claim asylum until 2017. It appears to me as did the judge that the asylum claim was a last resort, following rejection of the various applications he had made.
19. Indeed, at paragraph 41 the judge noted that Ms Saveikyte had submitted the application to help him. No reasonable explanation had been provided as to why she would falsely claim to be in a relationship with him. Ms Saveikyte did not attend the hearing to offer an explanation. In the light of the evidence the judge concluded in my view a conclusion that was open to her that the application was a further attempt by the appellant to stay in the UK and this further undermined his credibility.
20. Looking at all the evidence that the judge had to consider, I find that her treatment of Section 8 as a factor and the reasons given by the judge at paragraphs 38 to 40 did not amount to undue weight given by the judge to Section 8. I find that at paragraph 42 the judge neatly summed up her findings.
"42. I take into account the findings I made regarding the appellant's evidence about his gay experiences in Bangladesh. I take into account, in his favour the letter from NAZ and the Rev Kiddle, although I reduce the weight I attach to the letters for reasons set out above. I bear in mind the extracts from social media, although I note it is open to anyone to create a Grindr account. I take into account that the appellant did not claim asylum on arrival in the UK and did not tell the respondent that he was gay when he submitted leave to remain applications. I conclude no reasonable explanation has been provided for these omissions and I find them as damaging to the appellant's credibility in terms of the 2004 Act. Looking at the evidence overall, I find this appellant is not a witness of truth. I find his claim to be gay is contrived to enable him to remain in the United Kingdom."
21. I find that the judge's assessment of the appellant's credibility was adequate and balanced. I find that the judge's decision does not disclose an error of law.
22. The judge's decision dismissing the appellant's appeal shall stand.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their 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.
Signed Date: 12 March 2019
Deputy Upper Tribunal Judge Eshun