Court criticises tribunals over Pakistani asylum gay claim

Criticisms of successive tribunals in the immigration system have been made by the Inner House in a decision allowing the appeal of a Pakistani man who claimed that he would be persecuted in his home country because he was gay.

Lord Drummond Young, Lady Clark of Calton and Lord Malcolm allowed the appeal of “AR” from an Upper Tribunal judge who affirmed the First-tier Tribunal in holding that AR had failed to establish his sexuality, due to inconsistencies in his evidence and the doubtful authenticity of supporting documentation.

It was the third time AR's case had reached the Upper Tribunal. On the first occasion, a decision in his favour had been reversed when the Upper Tribunal held the Home Office's submissions had not been properly considered; on the second, an adverse decision had been reversed on the ground that evidence for AR had not been.

AR's evidence that he had always been gay was supported by what purported to be a police record of his detention in Pakistan following an allegation of sodomy, and a local newspaper report of the same matter. There was documentation supporting his membership of a gay members' club in the UK, and evidence from the proprietor and another witness who spoke to his having made certain visits to the club.

The Upper Tribunal judge whose decision was appealed on this occasion held that the First-tier judge had been entitled to hold that the Pakistan documents, which were more than 10 years old, were of a notoriously unreliable type, there was no obligation on the Home Secretary to check them out, and that AR's own evidence of how he came to the UK had significant inconsistencies and his account lacked credibility. Further, although he had not dealt with the other supporting witnesses, he had taken a “holistic” view of the evidence; he “recognised the determination of sexual orientation to be a difficult exercise and went on to reach clear findings in the alternative”.

Lack of analysis

Giving the opinion of the court allowing the appeal, Lord Malcolm said the appeal decision had been reached “with virtually no analysis or reasoning”.

He continued: “A number of the judges involved in the case have recognised both the low standard of proof required in cases such as the present and the difficulty which someone such as the appellant is likely to encounter when attempting to prove his sexuality. However, some of the judges have demonstrated little appreciation of these factors in their approach to the evidence before them.” The supporting documents, some of an official nature, were all easily verifiable. “To our eyes at least, they have the hallmarks of valid documents, albeit no doubt there is at least a possibility that they were fabricated, though, if they were, why would there be internal inconsistencies on points of detail?”

There was evidence to support AR's account, and “no question that an openly homosexual man is at risk in Pakistan... it is no answer to his appeal to predict that he will behave with discretion in Pakistan if that is caused by a fear of persecution”.

The First-tier judge had not set out any good reason for dismissing the documents as unreliable. “One cannot simply rely on doubts as to the veracity of the account given by the claimant as a reason for rejecting the documents when, on their face, they support his asylum claim... There is no question that these documents are at the centre of a request for international protection. The decision-maker should stand back and view all of the evidence in the round before deciding which evidence to accept and which to reject, and on the proper disposal of the appeal.”

As for the supporting witnesses, “One cannot simply dismiss this evidence, or in effect ignore it, because one has already decided that the claimant’s account is false.” No finding was made by the First-tier judge as to whether the evidence was credible and reliable, and if not, for what reason; and “it was not sufficient for the Upper Tribunal judge simply to declare that the First-tier Tribunal judge had reached 'an overall sustainable conclusion', and that at best he [the Upper Tribunal judge] would have made a finding that the petitioner told the witness that he was homosexual and that he dropped him off at gay clubs. The issue is, what are the implications for such a finding in the overall context of the claim?”.

The court noted that it had no power simply to reinstate the original decision in AR's favour, and remitted the case to the First-tier Tribunal for determination by a judge who had had no previous involvement in the case.

Lord Malcolm further observed: “We can only hope that the long and unfortunate history recounted above is not typical of immigration proceedings in the tribunal system.”

Click here to view the opinion of the court.