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United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments


You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> UI2025001122 [2025] UKAITUR UI2025001122 (20 May 2025)
URL: http://www.bailii.org/uk/cases/UKAITUR/2025/UI2025001122.html
Cite as: [2025] UKAITUR UI2025001122

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IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2025-001122

First-tier Tribunal No: PA/01476/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

20 th May 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE HOSHI

 

Between

 

NJ

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: In person

For the Respondent: Ms Kerr, Senior Home Office Presenting Officer

 

Heard at Field House on 7 May 2025

 

Order Regarding Anonymity

 

Pursuant to rule 14 Tribunal Procedure (Upper Tribunal) Rules 2008, the anonymity order made by the First-tier Tribunal shall continue in force. No-one shall publish or reveal any information that is likely to lead members of the public to identify the Appellant, including her name or address. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

 

Introduction

 

1.               By a decision dated 20 November 2024, the First-tier Tribunal dismissed the Appellant's appeal against the Secretary of State's 11 October 2023 decision to refuse her 14 July 2021 protection and human rights claim.

 

2.               Thereafter, the Appellant applied for permission to appeal.

 

3.               By a decision dated 4 March 2025, the First-tier Tribunal granted the permission application on limited grounds.

 

4.               The appeal came before me for an error of law hearing on 7 May 2025.

 

Background

 

5.               The Appellant is a national of Kenya now aged 44 years.

 

6.               In short summary, the claimed factual basis for the Appellant's 14 July 2021 protection and human rights claim was that, as a lesbian, she was at risk of persecution and serious harm on return to Kenya from the authorities, members of the public, and her family.

 

7.               In her 11 October 2023 decision letter, the Secretary of State accepted that the Refugee Convention was engaged (on membership of a particular social group grounds). Further, she accepted the credibility of the Appellant's claimed identity and her claimed marriage (it was the Appellant's case that this was an arranged marriage that had taken place when she was a teenager). Nevertheless, the Secretary of State refused the Appellant's protection claim because she did not accept the credibility of her claim to be a lesbian or that she would be at risk on return as result in any event. The Appellant's claim was also refused on Article 8 ECHR grounds.

 

8.               In their 20 November 2024 decision, the Judge dismissed the Appellant's appeal on all grounds, essentially on the basis that they did not accept the credibility of the Appellant's claim to be a lesbian.

 

9.               The Appellant's grounds of appeal raised four grounds: (1) the Judge's adverse credibility findings demonstrated apparent bias; (2) the Judge's adverse credibility findings were inadequately reasoned and impermissibly required corroboration; (3) the Judge's adverse credibility findings failed to take into account material evidence and failed correctly to apply the lower standard; and (4) the Judge failed to assess risk on return from members of the public.

 

10.           The First-tier Tribunal's 4 March 2025 decision granted permission to appeal on grounds 2, 3 and 4 only. There has been no renewed application for permission in respect of ground 1.

 

11.           On 30 April 2025, the Appellant applied for an adjournment of the 7 May 2025 error of law hearing, on the following basis. Mr Abdulrahman Jafar, a barrister who had represented the Appellant on a direct access basis before the First-tier Tribunal, had agreed to represent her again before the Upper Tribunal (this time on a pro bono basis, because she could no longer afford to pay his fees). However, Mr Jafar was not available on 7 May 2025 and so the Appellant sought an adjournment so that the hearing could be relisted on a date on which he was available.

 

12.           The adjournment application was refused by a legal officer on the same day, 30 April 2025, on the basis that fairness did not require an adjournment because the Tribunal was experienced in conducting and deciding upon appeals by litigants in person. The Appellant did not renew the application in writing prior to the 7 May 2025 hearing.

 

Hearing

 

13.           The hearing was interpreted for the Appellant by a Swahili language interpreter. No difficulties in interpretation were apparent to me during the hearing, and none were raised by the interpreter, the Appellant or Ms Kerr.

 

14.           At the outset of the hearing, I informed the Appellant that she was entitled to renew her adjournment application before me and asked her whether she wished to do so. She said that she did not. I asked her whether she was sure that she wished to proceed as a litigant in person and she said that she was. I asked Ms Kerr whether she had any observations on this issue. She said that the Secretary of State's was ready to proceed and invited me to do so.

 

15.           In circumstances where both parties wished to proceed with the hearing, I did so. Throughout, I took care to ensure fairness to the Appellant and to facilitate her effective participation in the hearing. That said, I also took care also to ensure fairness to the Secretary of State and to avoid stepping into the arena on the Appellant's behalf.

 

16.           Before me, the documentation was contained in a consolidated bundle of 293 pages (Ms Kerr confirmed that the Secretary of State had not filed a review before the First-tier Tribunal or a rule 24 response before the Upper Tribunal). The Appellant did not have an electronic or physical copy of the bundle and so, at Ms Kerr's suggestion, I arranged for a physical copy to be paginated and printed for her.

 

17.           I asked the Appellant whether she wished for the anonymity order made by the First-tier Tribunal to remain in force. She said that she did. Ms Kerr had no objection to this on behalf of the Secretary of State. I acknowledge the importance of the principle of open justice. However, I grant the application because the Appellant is a protection claimant, and I consider that disclosing her identity could potentially cause her harm in the event that she is returned to Kenya.

 

18.           I offered to the summarise those of the Appellant's grounds of appeal on which permission had been granted. She accepted this offer, so I did so. They may be summarised as follows:

 

a.        Ground 2 . In concluding that the Appellant was not credible at §26, the Judge stated conclusions but did not provide reasons for them and impermissibly required corroboration in the form of oral evidence from witnesses (see MAH (Egypt) v SSHD [2023] EWCA Civ 216, [2023] Imm AR 713 ).

 

b.       Ground 3 . In concluding that the Appellant was not credible at §26, the Judge failed to take into account the evidence of the Appellant, her claimed former partner Ms GF, the organisation Lit and Proud, or the independent country expert Dr Mario Aguilar, and failed properly to apply the lower standard of proof which may require as little as a 10% chance that a protection claimant will face ill-treatment on return.

 

c.        Ground 4 . In concluding that the Appellant would not be at risk on return at §27, the Judge failed to assess risk on return from members of the public, which was a critical aspect of the Appellant's claim.

 

19.           I asked the Appellant whether she had any submissions to add to my summary of her grounds. She said that she did not.

 

20.           Ms Kerr made submissions in response, which may be summarised as follows:

 

a.        Ground 1 . The Judge provided adequate reasons for rejecting the Appellant's credibility at §§16-18, as a part of the "Matters that damage the appellant's credibility". They were expressly cross-referenced at §25, and so it was wrong to suggest that the Judge was stating conclusions only at §26. As for requiring corroboration, the Judge directed themselves correctly as to the relevance of corroboration in the context of protection claims at §18 and was entitled to make the findings that they did.

 

b.       Ground 2 . The Judge expressly referred to and took into account all of the evidence that the Appellant's contends they ignored. Further, the Judge directed themselves correctly as to the lower standard at §6 was entitled to make the findings that they did.

 

c.        Ground 3 . The Judge found that the Appellant was not at risk on return because they had rejected the credibility of her account. In such circumstances, it was not incumbent on the Judge to undertake a substantive assessment of risk on return (whether from the authorities, members of the public, or her family).

 

d.       In terms of disposal, if I were to find a material error of law and set aside the First-tier Tribunal's decision, Ms Kerr's view was that the appeal should be retained in the Upper Tribunal given that the disputed issues were relatively narrow.

 

21.           I asked the Appellant whether she wished to make any further submissions in response to Ms Kerr's submissions. She said that she was tired of living in hiding, and that she feared she would be killed on return by the authorities, members of the public, or her family. I then explained to the Appellant that, if she was successful in establishing an error of law, in order for the decision to be re-made, the appeal could be either remitted to the First-tier Tribunal or retained in the Upper Tribunal. I asked her whether she had a preferred option. She said that she did not.

 

22.           At the conclusion of the hearing, I reserved my decision.

 

Decision and reasons

 

23.           The errors of law alleged in ground 1 are not made out, for the following reasons. I do not accept that the Judge was stating conclusions rather than providing reasons at §26. I accept Ms Kerr's submission that, in stating their conclusion at §26, the Judge was expressly adopting the detailed reasoning contained in §§16-18 of their decision. This is clear from §25, in which they said:

 

"Taken individually, any one of the matters discussed in paragraphs 16-18 above might be insufficient for me to conclude that the appellant is not telling the truth. However, the inconsistencies in the appellant's evidence (paragraphs 16-17 above) are significant, and relate to core aspects of her claim. Her credibility is also damaged by the relative paucity of supporting evidence, including the absence of any witnesses who might be cross-examined (paragraph 18 above)."

 

24.           At §16, the Judge found that the Appellant's credibility was damaged by an inconsistency in her evidence as to when her parents discovered her sexuality. At §17, the Judge found that the Appellant's credibility was damaged by an inconsistency in her evidence as to when her husband discovered her sexuality. At §18, the Judge found that the Appellant's credibility was damaged by the failure of a witness from the organisation Lit and Proud to attend the hearing to provide oral evidence.

 

25.           There is no specific challenge to the reasoning in §§16-17, which I consider to be adequate and reasonable.

 

26.           As for the reasoning in §18, the Appellant contends that the Judge erred in law by impermissibly requiring the Appellant to provide corroboration in the form of oral evidence from a witness from Lit and Proud. I do not accept this submission. The Judge directed themselves correctly as to the relevance of corroboration in the context of protection claims at §18 as follows:

 

"... In para. 86 of MAH (Egypt) v SSHD [2023] EWCA Civ 216, Singh LJ (with whom the other members of the court agreed) confirmed that there is no requirement for an appellant, in an asylum appeal, to adduce corroborative evidence (Mr Jafar also made this point at the hearing). However:

 

'... the absence of corroborative evidence can, depending on the circumstances, be of some evidential value: if, for example, it could reasonably have been obtained and there is no good reason for not obtaining it, that may be a matter to which the tribunal can give appropriate weight ...'"

 

27.           Thereafter, the Judge provided their reasons for finding that oral evidence from a witness from Lit and Proud could reasonably have been obtained by the Appellant (and therefore for finding its absence to be damaging to her credibility). In short, in circumstances where the Appellant claimed to have a reasonable level of involvement with Lit and Proud, an organisation that specifically supports LGBTQI+ asylum-seekers, the Judge did not accept that she was unaware that a witness from the organisation could attend the hearing to provide oral evidence to support her claim to be a lesbian. There is no specific challenge to this reasoning, which I consider to be adequate and reasonable.

 

28.           The errors of law alleged in ground 2 are not made out, for the following reasons. At §12, the Judge stated as follows:

 

"I have taken account of everything I heard, and I have considered all the documentary evidence that I was referred to by the parties. I have carefully considered the evidence in the round, in line with the guidance in Ravichandran v SSHD [1996] Imm AR 97 and Karanakaran v SSHD [2000] EWCA Civ 11. I refer to the evidence and submissions so far as necessary to explain my findings and reasons."

 

29.           Thereafter, the Judge made good this statement in their findings and reasoning. In particular, they expressly referred to and took account of all of the evidence the Appellant contends they ignored, as follows:

 

a.        The Appellant's evidence . This was expressly referred to and taken into account at §§10, 18, 23 and 26. I note that, at §23, it was taken into account as a part of the " Matters that are (or may be) in the appellant's favour" . It is true, as the Appellant's ground of appeal contend, that the Appellant's witness statement was not referred to as a part of the Judge's reasoning in respect of the inconsistencies they found to be damaging to the Appellant's credibility at §§16-17. However, as Ms Kerr pointed out, the Appellant's witness statement does not offer any explanation for those inconsistencies, despite the fact that they had been raised in the Respondent's decision letter.

b.       GF's evidence . This was expressly referred to and taken into account at §§19 and 26. I note that, at §19, it was taken into account as a part of the " Matters that are (or may be) in the appellant's favour", albeit that the weight attached to it was reduced because GF was not available for cross-examination.

c.        Lit and Proud's evidence . This was referred to and taken into account at §§13, 18, 20 and 26. I note that, at §20, it was taken into account as a part of the " Matters that are (or may be) in the appellant's favour", albeit that the weight attached to it was reduced because a witness from Lit and Proud was not available for cross-examination.

d.       Dr Aguilar's evidence . This was referred to and taken into account at §20, as a part of the " Matters that are (or may be) in the appellant's favour".

30.           As for the contention that the Judge failed correctly to apply the lower standard, I accept Ms Kerr's submission that they directed themselves correctly at §6. They then referred to the lower standard again throughout the decision, at §§14, 22, 26 and 27. Further, they also directed themselves correctly as follows at §24:

 

" Throughout my consideration of the facts of this case, I have borne in mind that great care must be taken before making adverse findings of credibility, and that such findings should be made only where they are justified in the light of the particular circumstances of the case under consideration. I have also considered whether the appellant has told some untruths in an attempt to bolster an essentially truthful account."

 

31.           In my view, this element of the Appellant's grounds of appeal is no more than a disagreement with the Judge conclusion on the Appellant's credibility. The Judge directed themselves correctly and then took into account all of the evidence weighing for and against the Appellant before rejecting her credibility for adequate reasons that were rationally open to them on the evidence. The Judge applied the lower standard correctly.

 

32.           The error of law alleged in ground 3 is not made out, for the following reasons. At §27, the Judge stated:

 

" As stated above, I am not satisfied, even to the lower standard of proof, that the appellant is gay, or that she would be treated as gay by potential persecutors in Kenya. Because of this, the appellant has not discharged the burden of proof to establish a well-founded fear of being persecuted in Kenya for reasons of her membership of the particular social group: LGBT persons in Kenya. She is not entitled to the grant of asylum. Her removal from the United Kingdom would not breach the United Kingdom's obligations under the Refugee Convention."

 

33.           In short, the Judge found that the Appellant would not be at risk on return because she had not established the credibility of the material core of her account. This was an approach that was open to them - clearly, the Appellant would not be at risk on return if she was not a lesbian and would not be treated as a lesbian (by the authorities, members of the public, or her family). It was not incumbent upon the Judge to undertake a substantive assessment of risk on return from members of the public in such circumstances, on the hypothetical basis that the Appellant had been found to be credible.

 

34.           For completeness, I note that at §22, as a part of the " Matters that are (or may be) in the appellant's favour" in assessing her credibility, the Judge did take into account the consistency of her account with the evidence before the First-tier Tribunal as to country conditions in Kenya, including as to mob violence against lesbians there.

 

35.           For the reasons set out above, I dismiss the Appellant's appeal. The decision of the First-tier Tribunal does not contain any material errors of law and so it stands.

Notice of Decision

 

The appeal is dismissed. The decision of the First-tier Tribunal does not contain any material errors of law and so it stands.

 

 

B. Hoshi

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

16 May 2025

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