APPEAL BY AR (AP) AGAINST A DECISION OF THE UPPER TRIBUNAL (IMMIGRATION & ASYLUM CHAMBER)
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2017] CSIH 52
XA108/16
Lord Drummond Young
Lady Clark of Calton
Lord Malcolm
OPINION OF THE COURT
delivered by LORD MALCOLM
in the Appeal
under Sections 13 and 14 of the Tribunals, Courts and Enforcement Act 2007
by
AR (AP)
Appellant
against
a decision of the Upper Tribunal (Immigration & Asylum Chamber) dated 13 January 2016
Appellant: Winter; Drummond Miller LLP
Respondent: Maciver; Office of the Advocate General
4 August 2017
Introduction
[1] This is an appeal from a decision of the Upper Tribunal (Immigration & Asylum Chamber) dated 13 January 2016, permission to appeal having been granted by this court. The appellant, who has no right to remain in the UK, has resisted his removal to Pakistan on the basis that he would be persecuted on account of his homosexuality. At the outset it is appropriate to outline the long history of the matter.
Decision of 30 August 2013
[2] The starting point is a decision of Judge Quigley of the First‑tier Tribunal dated 30 August 2013 allowing an appeal against a decision of the Secretary of State for the Home Department (the respondent) to remove the appellant to Pakistan. The appeal was allowed on asylum and human rights grounds. The judge noted the low standard of proof in asylum appeals. She accepted the appellant’s evidence that he is homosexual. This 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 Pakistan newspaper article concerning the same matter. The judge held that this material, plus documentation from a gay members club in the UK, lent support to his evidence.
[3] From paragraph 39 onwards Judge Quigley made the following findings. “It is clear from the objective evidence that the situation for homosexuals in Pakistan is extremely difficult”. Punishment can be imprisonment for life. Islamic law, which can also be enforced legally, calls for up to 100 lashes or death by stoning. Gay men receive little protection from the authorities. The United Nations Integrated Regional Information Network has stated that homosexuals in Pakistan “live in constant fear of being ‘outed’ in the country’s astonishingly conservative society which is largely ignorant and intolerant of sexual minorities.” The respondent’s own operational guidance indicates that the Pakistan authorities do not provide gay men with effective protection. Furthermore there are likely to be difficulties in finding safety through internal relocation.
[4] The judge noted that the UK Supreme Court has held that internal relocation is not the answer if it depends on the person concealing their sexual orientation in the proposed new location for fear of persecution (HJ (Iran) [2011] 1 AC 188). At paragraph 42 Judge Quigley concluded as follows:
“I find that this appellant has been the subject of adverse attention in the past by reason of his sexual orientation. I find that were he to be removed to Pakistan, he would resort to concealment of sexual orientation as a result of a genuine fear that otherwise he will be persecuted. Accordingly, on the basis of the objective information considered above, that fear is well-founded. Accordingly, I find that this appellant is entitled to a grant of asylum.”
For the same reasons the judge held that if the appellant was returned to Pakistan there was a real risk that he would suffer a breach of his protected human rights.
Decision of 16 December 2013
[5] On the face of it, Judge Quigley’s was an unchallengeable decision on the facts of the case. 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 presenting officer had made submissions to her on apparent inconsistencies arising from the documents. It had been noted that it was possible that fraudulent documents could be obtained from Pakistan. The judge failed to deal with the case put to her on behalf of the respondent. The Upper Tribunal judge stated that it seemed that the appellant’s behaviour in the UK had always been discreet and low key. “Without a finding based on past adverse attention, it might not follow that the approach explained in HJ (Iran) leads to an outcome in his favour. He has not argued that it suffices to prove that he is from Pakistan and is homosexual” (paragraph 15).
[6] The judge continued at paragraphs 18/20:
“After the hearing I located on file the copy FIR, with translation. This narrates that (the father of the person with whom the appellant was said to have committed an act of sodomy) reported to the police that the (appellant) and his son were committing an unnatural offence in a field of maize, following which ‘at hue and cry we reached the spot and witnessed the occurrence.’ A copy extract, with translation, from the ‘Daily Jang Multan’ reports that (the) father told the newspaper that his son’s friend took his son from his house and sodomised him against his will, leading to his arrest and release. The father complains that the police have not rearrested the appellant but ‘are putting pressure on us to compromise’. He appeals through the newspaper to the Chief Minister of Punjab and other authorities to order the appellant’s arrest. The appellant’s statement on the other hand is that the police were passing by the fields when they spotted the appellant having sexual relations with his friend. The police kept them both overnight and beat them. They released his friend ‘because his parents were wealthy and bribed the police officer’. The appellant then arranged for his friend to pay a bribe and permit his escape, which was followed by the police notifying all local police stations and advertising for his capture. It is not surprising that the presenting officer in the First-tier Tribunal thought that evidence raised some issues. Direct reference to it reinforces my view that its nature and the respondent’s submissions required analysis and resolution by the judge, which is missing from her determination.”
The result was that the Upper Tribunal judge set aside the findings and the determination of Judge Quigley. The matter was remitted to a First‑tier Tribunal with an order that it should not involve Judge Quigley.
Decision of 30 July 2014
[7] A rehearing took place before First‑tier Tribunal Judge Grant‑Hutchison on 30 July 2014. The appeal was refused. The judge noted that on the question of asylum it was for the appellant to establish his case. The standard of proof was not a high one, being lower than the normal civil standard. He agreed with Judge Quigley that the information indicates that Pakistani authorities do not provide gay men with effective protection. If the appellant’s version of events was established, given the terms of the FIR he would come to the attention of the authorities and would be persecuted. Furthermore, if applying HJ (Iran), the appeal would also have been successful.
[8] At paragraph 19 the judge found as follows:
“However I do not find the appellant’s version of events to be credible. The appellant has given radically different versions as to how his family came to find out that he was a homosexual and he came ‘to flee the country’. Of all the events in his life one would expect him to be clear about this. He stated that his family found out about his homosexuality the next day when he escaped from the police and he has also said that they found out when the police published details in the newspaper. However the article lodged was printed some four weeks after the incident. This is an event at the core of his claim and the two versions cannot be reconciled. In addition, as founded upon by the respondent in the letter of refusal, during the appellant’s immigration he was asked at interview if his parents knew he was gay and his response was ‘no they would kill me’. This would be sufficient for me to find that the appellant is not a homosexual and the event that he said led him to leave Pakistan did not in fact occur. However there were further serious contradictions in evidence. For example he said that he sold his kidney to raise money to flee Pakistan and then he states that he gave it to his cousin some 11 years ago. The fact that the appellant travelled on a passport and visa with his genuine name, address, date of birth again this is highly indicative that he was not fleeing Pakistan.”
[9] At paragraphs 21/2 the judge turned to the FIR:
“If there is nothing in the appellant’s version of events, why has the appellant produced a document which is at such variance with his version. There may be reasons. However its existence does render the appellant’s significantly more credible. From the totality of the evidence and submissions before me, I find that if the appellant were to be returned to Pakistan that there is no real risk of serious harm in terms of the humanitarian protection provisions.”
The judge rejected the claims based upon ECHR. The appellant had failed to satisfy him that he had a well-founded fear of being persecuted if returned to Pakistan.
Decision of 20 March 2015
[10] The dismissal of the appellant’s claim for asylum was then overturned on appeal to the Upper Tribunal. Permission to appeal had been granted 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. Although the appellant called a witness, TS, there were no conclusions as to his evidence. Additionally, while the judge commented on the content of the FIR, he reached the apparently inconsistent conclusion that the existence of the document rendered the appellant’s evidence significantly more credible.
[11] The appeal was heard by Upper Tribunal Judge Deans. He noted that the there was a considerable history. Judge Grant-Hutchison had accepted that if the appellant’s evidence that he was a homosexual was accepted, his appeal would succeed. The claim was supported by an FIR purporting to have been issued in Pakistan. In terms of a Rule 24 notice the respondent submitted that the judge made a series of well-reasoned adverse credibility findings and gave good reasons in support of them. It was suggested that there was a typographical error in paragraph 21, the judge having intended that the FIR did not strengthen the appellant’s credibility. The evidence of the supporting witness amounted to little more than hearsay and was irrelevant to the issues in the appellant’s account which led the judge to make an adverse credibility finding.
[12] Notwithstanding the terms of that notice, at the commencement of the hearing counsel for the respondent intimated that the determination of the First‑tier Tribunal was no longer supported. It was accepted that the judge’s failure properly to assess the evidence of the supporting witness and the absence of adequate reasons as to why his evidence did not assist the appellant, together with the contradictory statement about the FIR, were sufficient to amount to material errors of law.
[13] In his decision dated 20 March 2015, Judge Deans stated that the First‑tier Tribunal did not give adequate reasons for the finding that the evidence of the supporting witness did little to assist the appellant. The judge had made a contradictory statement in relation to whether or not the FIR supported his evidence. As the errors made by the judge related directly to the issue of credibility, none of his findings should be preserved. The matter was remitted to a rehearing before a judge other than Judge Quigley or Judge Grant‑Hutchison.
Decision of 13 October 2015
[14] We have now reached the decisions directly challenged in the appeal to this court. The first is the decision of First‑tier Tribunal Judge Farrelly dated 13 October 2015 dismissing the appeal against the Secretary of State’s removal directions. The judge acknowledged the “relatively low standard of proof required for international protection”. The appellant’s immigration history was considered to be very significant in assessing his credibility. Having sold his kidney to raise money, he gave the money to a man who had agreed to help him. It took a number of months before he could leave the country during which time a passport and work visa to the United Kingdom were obtained. There was still some delay until he left. He explained this by saying that he went to the airport on several occasions but turned back because of security. The computerised record of his original visa application shows that the passport was in his real name. Entry clearance was obtained so that he could work in a mushroom factory in the United Kingdom. The objective evidence indicates high levels of corruption in Pakistan. There are reports of body organs being sold or taken. The judge commented that it was inexplicable why the passport would be in his own name. “A much simpler explanation” is that the passport was genuine and obtained through the normal channels to facilitate the appellant’s travel to the UK in order to apply for entry clearance. Given his claim that he was fleeing from the police in great fear, one would expect him to exit at the earliest opportunity, whereas in fact some months passed. The judge considered that all of this detracted from the credibility of his claim, as did his failure to claim asylum on arrival in the UK.
[15] Judge Farrelly continued by noting that the visa expired on 28 October 2004, but no contact was made with the authorities until March 2010 when an application for leave to remain was made. The appellant had been to see lawyers. The application was based upon ECHR with the emphasis upon healthcare needs; the appellant claiming that his lawyers advised him not to mention asylum. The application was refused. He came to the attention of the respondent in June 2011 when detected apparently working in a shop in Glasgow. A further claim for leave to remain was made. Again this was based upon ECHR with no reference to his sexuality nor that he was in fear in Pakistan. Following the refusal he absconded. Again this detracted from his credibility.
[16] The appellant was detected by immigration officials in June 2013. He said that he had made an application in 2010 based on medical conditions and the fact that he had only one kidney. He said that he had donated it to his cousin 11 years earlier. As to a return to Pakistan, his friend was buying a ticket. When asked if he was in a relationship in the UK he said “No I am gay”. When asked how long he had been gay, he replied “My whole life”. This was the first reference to his sexuality.
[17] Judge Farrelly’s decision continued as follows:
“34. He has produced a First Information Report dated 2 March 2003. In this he is accused of rape. These information reports in Pakistan are notoriously unreliable. The appellant himself said his friend’s family were able to have the report altered. He also produces a newspaper article dated 31 March 2003. Again the province (sic) of this document is not known. He has produced documents in relation to his non-appearance at court. I have considered what was said in PJ (Sri Lanka) [2014] EWCA 1011 on documentation. Simply because relevant document (sic) is potentially capable of being verified does not mean that the national authorities have an obligation to do so. This will depend upon the particular facts of the case depending upon its importance to the case and reasons which could be verified. In the present case, I see no obligation upon the respondent to carry out checks on the FIR’s and the purported court documentation. Not only is there a high incidence of false ‘official’ documents, the events took place over 10 years ago. Beyond the documents themselves the appellant has produced nothing to indicate their provenance.
35. I am influenced by the inconsistencies surrounding the index event and the improbability of his escape. I find his account of selling his kidney and obtaining through an agent a passport and visa in his own name and the delay in leaving lacks credibility. A much more likely explanation is that he obtained a passport to come to the United Kingdom as a worker. There is no doubt he only has one kidney following surgical removal. However this is because he donated it as recorded early on in his GP records. When he does contact the respondent years later the claims made are on a completely different basis from the present. There is only on the third attempt at obtaining status that he raises the present claim (sic).
36. Looking at all the matters in around (sic), I do not accept the index event claimed occurred. Consequently, I do not find the appellant is wanted by the authorities in Pakistan.”
[18] As to his sexuality, the First‑tier Tribunal judge noted that “this is virtually impossible to determine”. Given the decision on his lack of credibility and disregard for immigration laws, the view was taken that the appellant’s evidence on this matter “must be treated with particular caution.” Reference was made to the evidence of his friend in Scotland about visits to gay clubs, and to a statement from the proprietor of such a club indicating that the appellant was a member and had attended the premises. However the evidence did not state that he was a regular attender. Judge Farrelly noted that no party had appeared at the hearing to confirm past relationships with the appellant, who had indicated only isolated events of casual sex. The judge did not believe that the appellant was homosexual. Rather he had asserted this to support the asylum claim. Nor was there any evidence that he was suspected of being a homosexual.
[19] If he was a homosexual, and with regard to the second stage of the test set out by Lord Hope in HJ (Iran) at paragraph 35, the judge accepted that Pakistan is intolerant of homosexuality and that the state would not provide protection. The view was taken that, if returned to Pakistan, he would not behave in a manner likely to bring adverse attention upon himself. He would “conduct himself consistent with his upbringing, nature and the social mores in place” (paragraph 40). This was supported by the low level of homosexual activity reported in the UK. The judge saw no real risk of persecution in Pakistan. The appeal against the removal directions was refused.
Decision of 14 January 2016
[20] First‑tier Tribunal Judge Peart granted permission to appeal Judge Farrelly’s judgment to the Upper Tribunal. While all the grounds presented were held to be arguable, particular emphasis was placed on an “inadequate analysis both with regard to the judge’s core-finding that the appellant was not homosexual and with regard to the implications in terms of HJ (Iran).” It was said that the First‑tier Tribunal judge had erred in approaching the claim regarding homosexuality based upon general issues regarding the appellant’s lack of credibility and his disregard for immigration laws.
[21] In January 2016 the appeal was heard by the same Upper Tribunal judge who had overturned Judge Quigley’s original decision, namely Judge Macleman. He noted that it was contended for the appellant that there was an onus on the respondent to verify the documentary evidence, and that there was criticism of the finding that the appellant did not establish the provenance of the documents. The respondent’s representative submitted that the First‑tier Tribunal judge was aware of the limited circumstances in which there might be an onus on the respondent and correctly explained why there was no such duty in this case. For the following reasons, Judge Macleman preferred the submission for the respondent:
“PJ (Sri Lanka) at paragraph 30 says that simply because a relevant document is potentially capable of verification does mean (sic – should be ‘does not mean’) that the respondent has an obligation to take that step. The obligation arises in exceptional cases. This case has a long history. The appellant does not appear to have advanced the argument that the respondent was under any such obligation prior to raising it in the prior grounds. I see no error in the judge’s analysis of the documentary evidence, or in giving it little weight.” (paragraph 8)
[22] Separately the appellant submitted that Judge Farrelly had failed to make findings on the evidence of a witness who said that the appellant told him about his sexuality and that he dropped him off at gay clubs. Counsel accepted that to succeed he would also have to persuade Judge Maclennan that the findings eventually reached were contrary to HJ (Iran). The appellant’s evidence was that he behaved discreetly in Pakistan because he was in fear of the authorities.
[23] The judge then summarised the respondent’s submissions. The overall argument “was that the judge correctly took a holistic approach, was not required to deal with every detail of the evidence, explained where weight was given, left nothing significant out of account, and reached an overall sustainable conclusion.” The absence of a specific finding on whether the evidence of the witness was accepted or rejected was said to be “perhaps regrettable, but immaterial.” In any event, the conclusion reached at paragraph 40 was that the appellant, if in Pakistan, would conduct himself with relative discretion as he had done in the past, without adverse consequences, consistent with his upbringing, nature and the social mores in place.
[24] Judge Macleman dealt with these competing submissions as follows:
“13. On this final and overall point, again I prefer the submissions for the respondent. A further specific finding would at best have been that the appellant told the witness that he is homosexual, and that he had been dropped off occasionally at a gay club. The judge did not accept that the appellant had established he was homosexual. I see no error therein, but in any event the judge recognised the determination of sexual orientation to be a difficult exercise and went on to reach clear findings in the alternative. The conclusions quoted above from paragraph 40 are indeed in line with HJ and they are properly decisive of the case.
14. No other error of law has been shown. The decision of the First‑tier Tribunal shall stand.”
The Proceedings in the Court of Session
[25] Upper Tribunal Judge Macleman having refused an application for permission to appeal to the Court of Session, the appellant presented an application directly to this court. That application was granted. At the appeal hearing the remedy sought was for the whole matter to be remitted to the Upper Tribunal to be considered of new by an Upper Tribunal judge other than Judge Macleman (unless the court was of the view that it could simply allow the appeal).
The Parties’ Submissions
[26] The parties’ positions can be identified from the above discussion; however their submissions to this court can be summarised as follows.
[27] For the appellant it was contended that the documents are valid on their face. The appellant had explained how they came into his possession (paragraphs 23/4 of his statement). There was no evidential basis for their rejection. In any event, the test in PJ (Sri Lanka) for inquiries by the respondent was not addressed. The Upper Tribunal judge erred in stating that the argument regarding the documents was not presented to the Tribunal below. 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. Decision‑makers must exercise anxious scrutiny of the evidence. In addition, the Upper Tribunal erred in supporting the finding that discreet behaviour in Pakistan would not be attributable to a fear of persecution. Again that was not supported by the evidence, nor by earlier tribunal findings and concessions made by the respondent.
[28] For the respondent it was submitted that there was no duty to check the authenticity of the various documents. The First‑tier Tribunal judge held they were of a type which are “notoriously unreliable”. They were of unknown provenance and were over 10 years old. The consideration of the documents took place together with the unfavourable consideration of the appellant’s credibility. As to the supporting witness, the Upper Tribunal judge considered that the absence of a specific finding upon it was immaterial. His evidence was not determinative of the appellant’s sexuality. The overall conclusion of the First‑tier Tribunal was that the appellant had not established his homosexuality. He had fabricated his claim to further his asylum application. The same decision might have been reached regardless of the judge’s assessment of the witness. In any event, on the assumption that the appellant was homosexual, and with the index event involving the police having been disbelieved, the supporting witness did not contradict the finding that the appellant would behave with discretion in Pakistan because of the social mores, not because of any fear of persecution. The decision on sexuality was made in the round. There was no need for specific findings in respect of each piece of evidence. The appeal is no more than a disagreement on the facts. There was no error of law on the part of either the Upper Tribunal or the First‑tier Tribunal.
Discussion
[29] 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.
[30] We begin with some general observations. 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. In the main, that evidence consists of the petitioner’s account, which in its essential elements is supported by a number of documents, two of them of an official nature, and 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? The appellant’s account is, to an extent, supported by a witness from Scotland who has stated that he was told about the appellant’s homosexuality and that he took him to gay clubs. There is a letter from a proprietor of such a club confirming his attendance, and also a membership card. There is no question that an openly homosexual man is at risk in Pakistan. He cannot rely on protection by the authorities (rather the reverse), and 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 (HJ (Iran)).
[31] Judge Quigley was satisfied that the appellant had proved his homosexuality and that he should not be returned to Pakistan. She relied on the documentation and the other supporting evidence. Other judges have identified reasons to doubt the petitioner’s account, including his delay in mentioning his homosexuality. These reasons have been used to justify the rejection of the authenticity of the Pakistan documents, allied to certain internal inconsistencies on points of detail. More or less throughout the proceedings, it was accepted that if the pursuer established his homosexuality, his appeal would succeed. Latterly the view has been taken that, even assuming he is homosexual, he can still be removed to Pakistan. The reasoning is that he will behave discreetly there, not from a fear of persecution, but because of the pertaining family and social mores. The questionable rationale for this appears to be that the hypothesis goes no further than assuming his homosexuality, and does not extend to his account of the report to the police and the subsequent proceedings against him, though this is not explicitly explained nor justified.
[32] It is a recent feature of the various judges’ consideration of the case that the evidence of the supporting witness, and that from the proprietor of the gay club, are more or less ignored on the way to a dismissal of the appeal. This failure has been criticised on more than one occasion, for example see the decision of Upper-tier Tribunal Judge Deans. More recently First‑tier Tribunal Judge Peart observed, correctly in our view, that in a case where a Pakistani is attempting to establish his homosexuality, there is a limit to the extent to which this can be determined against him on the basis of general issues concerning his credibility and disregard for immigration laws. This is all the more so in the face of independent evidence which supports his account.
[33] The appeal in this court focussed on two matters, namely (a) the treatment of the documents and (b) the evidence of the supporting witness. So far as the documents are concerned, we have mentioned that, on their face, they appear to be valid and authentic, for example, where applicable, being duly stamped and signed. They are supportive of the essentials of the petitioner’s account of the events which led him to leave his family and homeland. Judge Macleman ruled that the authorities were under no obligation to verify the documents. Be that as it may, in our view it does not address the logically prior question, namely, did the First‑tier Tribunal have and explain a sound basis for their rejection? If the answer to that question is no – the test set out in PJ (Sri Lanka) does not arise.
[34] The submission is that the First‑tier Tribunal Judge did not set out any good reason for dismissing the documents as unreliable. We agree with that submission. We have studied the terms of the decision, but can find no proper support for the terms of paragraph 34. For example, what was the reason for placing the FIR in the unreliable category? While no doubt there is “a high incidence of false ‘official’ documents”, there must also be some genuine documents. 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. The “holistic” approach endorsed by Judge Macleman would require the overall assessment to be made after all of the evidence has been considered and assessed. In other words, and by way of example, one might ask – do the documents support the claim? If yes, is there any reason arising from the documents themselves to reject their authenticity? If no, how does this affect, if it does affect, doubts that have arisen as to the claimant’s account? In our view, if those doubts are used as an a priori reason to undermine and reject the documents, there is an obvious risk that supportive evidence is being wrongly excluded from the overall assessment.
[35] We remind ourselves of the need to examine the facts with care (sometimes referred to as “anxious scrutiny”), and of the low standard of proof applicable in cases of this nature. We are persuaded that these factors have been given insufficient weight and attention in the more recent decisions. We recognise that there may be cases where the concerns over the veracity of a claimant’s account may be so clear-cut that the decision‑maker is driven to rejection of supporting documents, even though on their face they appear to be authentic; but even then, given what is at stake, we would expect some consideration to be given to easily available routes to check authenticity. 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.
[36] Similar comments apply to the lack of any proper consideration and assessment of the evidence from the supporting witness and the statement from the proprietor of the gay club. 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 Tribunal judge as to whether the evidence was credible and reliable, and if not, for what reason. Again it provides direct support for something which is acknowledged to be difficult to prove. The First‑tier Tribunal judge said that no one attended the hearing to confirm a relationship with the appellant, and that at most he had spoken of isolated events of casual sex. It was said that the evidence did not speak of “regular attendance” at gay clubs. What is unclear is how any of this points to the view that the petitioner’s evidence that he is a homosexual is to be disbelieved. Even assuming that there is such evidence available, its absence does not impugn the evidence of the supporting witness. His evidence, which was summarised earlier, was effectively ignored. We are unable to agree with the proposition that this was “regrettable, but immaterial,” especially given that it was a declared purpose of the re‑hearing that the evidence be given proper consideration. Given the obvious relevance of this evidence, in our opinion 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 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?
[37] The fall-back reasoning, which was based upon HJ (Iran), is difficult to follow. It appears to proceed upon the hypothesis that the appellant is a homosexual, but that the rest of his account as to what happened to him in Pakistan is wrong. No basis for this line of reasoning is revealed in either the First‑tier or the Upper Tribunal decisions. In any event, it is undermined by our decision that the documents cannot simply be ignored. On their face they suggest that the appellant would be at risk if returned to Pakistan. It is difficult to identify any sound evidential basis for the proposition that the petitioner is a homosexual who would behave discreetly, not out of a fear of persecution, but because of the social mores in Pakistan. Previously the case has been conducted on the agreed basis that if the appellant was homosexual, he would act with discretion in Pakistan out of fear of persecution – see paragraph 31 of the decision of 10 September 2013; paragraph 18 of the decision of 28 July 2014; and paragraph 3 of the Upper Tribunal decision of 19 March 2015. In our view, there is no good reason to depart from that position.
Decision
[38] Having regard to all of the above, we shall grant the appeal. 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.