Upper Tribunal (Immigration and asylum chamber), 2019-04-12, HU/06062/2018
| Jurisdiction | UK Non-devolved |
| Date | 12 April 2019 |
| Published date | 05 June 2019 |
| Hearing Date | 04 March 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | HU/06062/2018 |
Appeal Number: HU/06062/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/06062/2018
THE IMMIGRATION ACTS
|
Heard at: Field House |
Decision and Reasons Promulgated |
|
On: 4 March 2019 |
On:12 April 2019 |
Before
DEPUTY UPPER TRIBUNAL JUDGE MAILER
Between
Mr Amjad Mahmood
(anonymity direction NOT made)
Appellant
and
secretary of state for the home department
Respondent
Representation
For the Appellant: Mr M Aslam, counsel (instructed by M R Solicitors LLP)
For the Respondent: Ms S Cunha, Senior Home Office Presenting Officer
DECISION AND REASONS
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The appellant is a national of Pakistan, born on 12 April 1971. He appeals with permission against the decision of First-tier Tribunal Judge Siddall promulgated on 17 October 2018, dismissing his appeal against the respondent's decision dated 22 February 2018, to refuse his application for further leave to remain.
Background to the appeal
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The appellant entered the UK on 6 February 2011 as a student. He was granted an extension until 25 April 2014. Leave was curtailed on 10 December 2013 as his college's sponsorship licence was revoked.
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He was granted further leave to remain as a student until 15 October 2016, but in October 2014 the respondent asserted that he had used deception to fraudulently obtain an English language certificate. He was served with a notice of removal. An application for judicial review was unsuccessful.
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On 25 January 2016 he lodged a human rights claim on the basis of private life in the UK which was refused and certified as clearly unfounded on 13 April 20161.
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On 25 May 2016, he made an asylum claim on the basis that his homosexuality would cause him to be persecuted in Pakistan. That was refused on 23 November 2016. He appealed that decision but there was no appearance by the appellant at his appeal hearing on 5 January 2017. On 13 January 2017 First-tier Tribunal Judge Greasley dismissed his appeal. He noted that the appellant’s solicitors had withdrawn. He became appeal rights exhausted on 30 January 2017.
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In May 2017 he was served with removal directions. In November 2017 he lodged a human rights application which was refused on 22 February 2018.
The decision of First-tier Tribunal Judge Siddall
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He found on the balance of probabilities that the appellant had discharged the evidential burden placed upon him and had provided an adequate explanation to counter the argument that he had fraudulently obtained an English language certificate procured a false TOEIC test result. Accordingly, the respondent had not made out its assertion on this ground - [39].
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Judge Siddall then considered at [41] the appellant's claim that he is gay. He took the decision of First-tier Tribunal Judge Greasley dated 13 January 2017, as his starting point [40]. He noted that Judge Greasley concluded, after considering the evidence before him at the time, that he could not be satisfied that the appellant is a gay person at risk on return. Neither he or any other third party individual attended the hearing where their accounts could have been tested and subjected to proper examination. The appellant also admitted that he obtained a number of entries for gay clubs and websites as he knew this would strengthen his claim to be gay, which Judge Greasley rejected.
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He stated that Judge Greasley had regard to a number of factors, including the fact that in his application dated January 2016, the appellant made no mention of a fear of returning to Pakistan due to his sexuality. He also noted that in March 2016 the appellant had indicated that he wished to return to Pakistan voluntarily, although he later changed his mind [42]. Judge Greasley considered the record of the appellant’s asylum interview and the matters relied on in the refusal letter. He noted that the appellant stated at his interview that he joined gay and LGBT groups in the UK to ‘make his case stronger’ [44]. The appellant had not set out who Mr Khan and Mr Arshad were. No evidence was provided of any activities or relationships that pre-dated the asylum claim [45].
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Judge Siddall stated at [49] that he has had the benefit of hearing the appellant. Apart from the photographs of the appellant at Gay Pride events, the evidence produced by him did not differ greatly from the evidence presented to Judge Greasley [49].
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He noted that Mr Khan and Mr Arshad provided more detailed written statements and there is some significant additional material from them. Mr Khan claimed that he was in a relationship with the appellant for around four years and Mr Arshad stated that he was aware that the appellant had been disowned by his family in Pakistan [50]. Judge Siddall stated at [51] that if Mr Arshad was aware of this, it is surprising that he made no reference to it in the letter provided as part of the asylum application which would have supported the appellant's case.
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Judge Siddall treated Mr Khan's statement with “some circumspection” as it was not signed and Mr Khan did not attend the hearing. He found at [52] that there were issues with the content of Mr Khan's statement. If he had been in a sexual relationship with the appellant for around four years, that relationship must have existed when he wrote his letter in 2016. Yet, in the letter he simply referred to Mr Mahmood as a “friend.” In addition, his statement contradicted the appellant's evidence that they have not been in a relationship for three or four years because of the appellant's health. He accordingly discounted Mr Khan's evidence. He found that it is more likely than not that he is just a friend of the appellant's and has not had a relationship with him [52]. Even if the content of their statements are true, there was no reason why their more detailed evidence could not have been presented to the Tribunal in 2017 [53].
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Nor were the photographs showing the appellant at Gay Pride events clear as to what year they were taken.
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In the circumstances he concluded that he was bound by the earlier decision that the appellant had not demonstrated to the required standard that he was at risk on return because of his sexuality. He treated the later oral evidence of the appellant and Mr Arshad and the statement of Mr Khan with a strong degree of suspicion in accordance with paragraph 4 of the guidance in Deevaseelan. There was no reason why this evidence could not have been put before the First-tier Tribunal. There were in any event inconsistencies in the evidence which support the finding of the First-tier Tribunal and did not provide a basis for him to reach a different conclusion [55]. The appellant did not deal with the inconsistencies in his asylum interview record that were identified in the earlier decision. Judge Greasley noted that the account was inconsistent.
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Judge Siddall then reminded himself that the appeal before him was a human rights claim. He considered the claim under Article 8. He adopted the approach in Razgar [2004] UKHL 27.
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He found that the appellant would not face significant obstacles to his integration back into Pakistan because of his sexual orientation [59-60].
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He accepted that the appellant is in poor health [61]. However, the respondent noted that there was treatment for kidney problems available in Pakistan albeit that he may have to pay for it and that it may not be available on a national basis. The fact that the care available may not be as good or as available as in the UK did not amount to a very significant reason why he could not return [61].
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He considered the public interest factors in s.117B of the 2002 Act. The appellant did not meet the Rules at the date of application. He overstayed since his asylum was refused in January 2017. He only made his latest application at the point at which he was threatened with removal. He found that his removal would be consistent with the public interest in the exercise of effective immigration controls [63].
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The appellant is currently a significant burden on public funds. He receives the benefit of extensive treatment funded by the NHS including dialysis. There is also the possibility of a kidney transplant if he is given leave to remain. He considered that his private life was established at a time when his status was precarious.
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In carrying out the proportionality exercise, he accepted on the one hand that the appellant is in poor health. He will face an uncertain future if he returns and may find it difficult to access healthcare. However, he had not been able to demonstrate that there would be no treatment available to him.
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He had regard at [69] to the decision of the Court of Appeal in GS (India) and Others [2015] EWCA Civ 40 where it...
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