Gay Pakistani man wins appeal against removal from UK over fear of persecution



Lord Malcolm
Lord Malcolm

A Pakistani asylum seeker who claimed he would be persecuted because of his homosexuality if he was removed from the UK and returned to his home country has successfully challenged a decision to dismiss his appeal.

The Inner House of the Court of Session remitted the case to the First-tier Tribunal (FTT) after observing that the original decision of an FTT judge to allow an appeal by the appellant “AR” against a decision of the Secretary of State for the Home Department (the respondent) to remove him to Pakistan was prima facie “unchallengeable”.

Lord Drummond YoungLady Clark of Calton and Lord Malcolm heard that the appellant, who has no right to remain in the UK, had resisted his removal to Pakistan on the basis that he would be persecuted on account of his homosexuality.

Fear of persecution

In a decision dated 30 August 2013 Judge Quigley of the First tier Tribunal allowed an appeal against the Home Secretary’s removal decision on asylum and human rights grounds.

The judge noted the low standard of proof in asylum appeals and accepted the appellant’s evidence that he is homosexual, which was supported by several documents, including a First Information Report (FIR) being, on the face of it, a police record of his detention in Pakistan following an allegation of sodomy and a Pakistani newspaper article concerning the same matter.

Judge Quigley also held that this material, plus documentation from a gay members club in the UK, lent support to his evidence.

However, on 16 December 2013 Upper Tribunal Judge Macleman upheld the Secretary of State’s appeal, essentially on the basis that the judge failed to explain why any weight should be placed upon the documents before her.

The result was that the Upper Tribunal judge set aside the findings and the determination of Judge Quigley and the matter was remitted to a First Tier Tribunal with an order that it should not involve Judge Quigley.

Rehearing

A rehearing took place before First tier Tribunal Judge Grant-Hutchison, who rejected the appellant’s claims based upon the European Convention on Human Rights and refused the appeal, after ruling that the appellant had failed to satisfy him that he had a well-founded fear of being persecuted if returned to Pakistan.

The dismissal of the appellant’s claim for asylum was then overturned on appeal to the Upper Tribunal, on the basis that the judge did not take into consideration all the evidence before reaching negative findings about the appellant’s sexuality and the reliability of the FIR, and the matter was remitted to a rehearing before a judge other than Judge Quigley or Judge Grant-Hutchison.

However, in a decision dated 13 October 2015, Judge Farrelly dismissed the appeal against the Secretary of State’s removal directions and an appeal to the Upper Tribunal was dismissed on 14 January 2016 by Judge MacLennan, the same judge who had overturned Judge Quigley’s original decision.

Unchallengeable decision

On appeal to the Court of Session, for the appellant it was contended that the documents relied upon were “valid on their face” and that there was “no evidential basis” for their rejection.

As to the supporting witness, once again there was “no proper assessment” of his evidence, which, as with the documents, was supportive of the appellant’s account, and also that he would be at risk in Pakistan.

Allowing the appeal, the judges noted that Judge Quigley, relying on the documentation and the other supporting evidence, was satisfied that the appellant had proved his homosexuality and that he should not be returned to Pakistan and that the other judges had more or less ignored the supporting evidence in dismissing his appeal.

Delivering the opinion of the court, Lord Malcolm said: “Since the original favourable decision for the appellant was overturned, this appeal has had a long and unfortunate history. The second First tier Tribunal decision, which was unfavourable for the appellant, was overturned on appeal. After the third, again unfavourable decision, the appellant was granted permission to appeal to the Upper Tribunal with a clear indication that while all eight complaints were arguable, some were meritorious.

“However, with virtually no analysis or reasoning, the appeal was refused. Permission to appeal against that decision was granted by this court, and we have now heard the appeal. We have decided to grant the appeal. We can only hope that the long and unfortunate history recounted above is not typical of immigration proceedings in the tribunal system.”

Lord Malcolm added: “Given the original decision of Judge Quigley accepting that the appellant is a homosexual who had attracted the subject of adverse attention in Pakistan because of his sexual orientation, and who, if returned, would conceal his homosexuality out of a genuine and well-founded fear of persecution, we considered whether we could and should simply reinstate that decision.

“However, on the basis that we have no such power, we were not invited to do so. We shall simply quash the most recent decision of the Upper Tribunal, namely that of 14 January 2016 and, in terms of our powers under section 14 of the 2007 Act, remit the case to the First-tier Tribunal for determination of the appeal against the removal directions issued by the respondent, and this by a judge who has had no previous involvement in the case.”



Other judgments by Lord Malcolm

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