Inner House refuses asylum appeal by Pakistani student who claimed to be at risk because of his homosexuality



Lord Pentland
Lord Pentland

A Pakistani man who claimed he was at risk of persecution for being gay if he was deported has lost his appeal against a Lord Ordinary’s decision not to allow him an appeal against the decision of an immigration tribunal.

The appellant, FI, sought asylum in the UK on the basis that he would be at risk of retribution from his family and from militants in Pakistan after he had been discovered having homosexual relations on a return visit. He had originally been staying in the UK on a student visa valid from 2017 to 2021.

The appeal was heard in the Inner House of the Court of Session by Lady PatonLord Woolman, and Lord Pentland. The appellant was represented by Winter, advocate, and the respondent by Maciver, advocate.

Timing of contact

The evidence of the appellant was that in 2018 he had returned to Pakistan over the Christmas break and that while there he had been discovered having sex with another man. Following a decision by his village elders that he should be allowed to repent by going on a pilgrimage to Mecca, his father ordered him not to return to the UK. He had managed to return to the UK in February 2019 after escaping captivity by a gang of armed religious extremists.

In July 2019, the appellant claimed asylum on the ground that he was at real risk of persecution if he returned to Pakistan. In support of his application, he provided the First-tier Tribunal with a letter from LGBT Youth Scotland that stated he had come to their Glasgow office that month to join their weekly group.

The First-tier Tribunal did not accept the appellant’s evidence, noting that the timing of the contact with LGBT Youth Scotland in the same month as his application suggested it was done to enhance his asylum claim. On appeal to the Upper Tribunal, it was held that the FtT judge had properly directed himself in assessing the evidence and provided cogent reasons for concluding that the appellant’s claim was not credible.

It was submitted for the appellant that the UT had erred in failing to recognise that the FtT had misdirected itself in its assessment of the evidence, including wrongly regarding the letter from LGBT Youth Scotland as being of no weight. In particular, the FtT had failed adequately to explain why it had regarded certain aspects of the appellant’s claim to be plausible but had nonetheless concluded that he had failed to establish his claim to be gay.

Balanced evaluation

The opinion of the court was delivered by Lord Pentland, who noted: “Whilst the challenge is correctly brought against the UT’s decision, the real focus must, as both counsel acknowledged, be on the decision and reasoning of the FtT. If the FtT had made material errors, the UT should have recognised these.”

Assessing the approach of the FtT, he said: “The FtT judge rightly observed that the issues raised by the appellant’s claim to be gay were sensitive and that it was important to avoid stereotyping. He explained that he accordingly approached his task of evaluating the evidence with anxious scrutiny and sought to make a balanced evaluation of the appellant’s claim.”

He continued: “The decision shows that the judge carefully considered each element of the appellant’s evidence on its merits, taking into account both the inherent plausibility of the fact contended for, and any questions or doubts raised by it.”

Addressing particular elements of the appellant’s narrative that the FtT judge questioned, Lord Pentland commented: “As for managing to escape from the armed extremists, this aspect of the appellant’s account was open to doubt. He claimed to have injured his foot in jumping from a window, but he produced no evidence. If the extremists intended to kill him, they could have been expected to have kept a close watch on him.”

He went on to say: “Having been threatened with serious harm by his family, having disobeyed his father by returning to the United Kingdom, and having escaped death at the hands of armed extremists by the narrowest of margins, why would the appellant not claim asylum immediately [in February 2019]? The appellant was educated to degree level. It was difficult to accept that he was unaware of the concept of asylum.”

On the weight of the letter from LGBT Youth Scotland, he said: “The judge was entitled to treat this as being of little weight. The letter merely stated that the appellant had approached the group in July2019. This was shortly before he submitted his claim for asylum. The letter contained no further details concerning active involvement with the group.”

Lord Pentland concluded: “At the end of the day [the judge] took the view that the reality of matters was that the appellant’s claims were open to serious doubt and were, when viewed in the round, unconvincing. In our opinion, it is clear that the FtT judge approached the evaluation of the evidence in the case in an orderly and rational manner.”

For these reasons, the appeal was refused.

© Scottish Legal News Ltd 2021



Other judgments by Lord Pentland