Apata v Secretary of State for the Home Department [2015] EWHC 888 (Admin); Even involvement in much publicized same sex relationships not enough to raise membership of a particular social group

The Claimant’s case was commenced on 24 January 2013 as a public law challenge  to the merits of the Secretary of State’s decision served on 8 January 2013 to remove the Claimant from the UK. The challenge also took the form of a human rights challenge against the decision to remove and a claim to refugee status. The Claimant put forward that she was a lesbian and as such was a member of a particular social group and  that it would breach her human rights to return her to Nigeria. Alternatively  she argued that she would be perceived to be a lesbian with  the same consequences. It was noted by the Court that there had been extensive media interest in the Claimant’s case and it was stated in this regards that a minor search for the Claimant showed that she was a lesbian and thereby this would place her at risk in Nigeria. The Claimant also submitted that the state of her mental health was such that   removal to Nigeria would also breach her human rights.

The relevant facts of the Claimants case (which also weighed heavily against) her in her appeal within the Tribunal and in her current challenge were that;

The Claimant arrived in the UK in 2004 using a false passport and her residence since then has been unlawful. Whilst in the UK she obtained a forged passport with a forged indefinite leave stamp and a false national insurance card. She also at some point obtained a forged UK driving license. In 2008 she applied for an EEA residence card. On 29 January 2009  she was sentenced to 6months imprisonment. She was imprisoned again on 23 June 2011 for 8months. The claimant’s two applications for asylum were dismissed respectfully in 2004  and 2012 and were not renewed. The Secretary  of State made deportation orders  on 22 November 2011 and on 28 June 2012. The Claimant appealed the deportation decision. The appeal was dismissed by the Tribunal. The Tribunal  concluded during her appeal that  there was a change of imagery entirely due to a false claim of lesbian sexuality. She was noted to have engaged in long term relationships with men. The Tribunal stated that the Claimant had “created layer upon layer of deceipt and lies”. The Tribunal did not accept that the Claimant was lesbian. The Claimant applied for permission to appeal to the Upper Tier Tribunal but withdrew her appeal as she stated she wished to leave the UK.

During the public law proceedings the Claimant therefore sought to overturn the deportation order and argued that the evidence since the Tribunal’s determination was such as to amount to further material for the purposes of there being a fresh claim under Paragraph 353 of the Immigration Rules.

The Secretary of State raised no issue about the mistreatment of lesbians’ in Nigeria. The Nigerian legislature  was stated to have brought in laws to criminalise gay and lesbian relationships with harsh imprisonment for those that are convicted. The Secretary of State accepted that the Claimant had had some same sex relationships but argued among other issues that the Claimant did not belong to a particular social group of “lesbians’ and was not entitled to refugee protection. The Secretary of State considered that the relationships had been manufactured or exaggerated for the purposes of her remaining in the UK. It was also noted that the Claimant had two children. The Secretary of State emphasized that the First Tier Tribunal’s determination had not been appealed and was binding upon the Court.

Although the Court accepted that the findings of the First Tier Tribunal were binding as to the position as to membership of a particular social group and other matters at the relevant time of that finding the Court considered the matter at the time of the hearing and in light of the further evidence presented before the Court including DVD’s of the Claimant engaging in lesbian sexual activity. The Court however decided that there was nothing irrational, perverse or wrong in law in the Secretary of State’s decision given the findings of the First Tier Tribunal. The Court did not accept that the Claimant could not be a member of the particular social group of lesbians because she had had children or heterosexual relationships. It was stated by the Court that sexuality or consciousness of sexuality may alter over tine and a person may  realise that sexuality at different times. The Court did accept that the Claimant had had same sex sexual relationships but did not accept that this in itself rendered her a member of a particular social group. The Court agreed with the Tribunal’s conclusions that the Claimant had fabricated the claim based on lesbian sexuality. The Court also accepted the Secretary of State’s submissions that the Claimant had adjusted her conduct so as to adopt other customs, dress and mores of a particular social group purely as a way of gaining refugee status. It was also found against the Claimant that she had been willing to return to Nigeria at a time when she was said to be lesbian. It was considered that the Claimant did not have a well founded fear of persecution and also that if she returned to Nigeria she would not have lesbian relationships nor be perceived as lesbian.

As regards the Claimant’s publicised campaigning work in the UK, the Court also did not consider that this point had been pleaded in the Updated Grounds and in any event did not think that if it were there was evidence to the necessary high standard that she would suffer persecution on that ground.

As regards the medical condition issues raised by the Claimant, that part of her claim failed in light of the high threshold needed to be reached before the Claimant could succeed.

The Court concluded that the substance of the material had already been considered by the Secretary of State   and taken together with the previously considered material did not create a realistic prospect of success.

CONSIDERATIONS

Although the Claimant’s immigration history and conduct in the UK was the subject of much criticism, it is likely that the Court’s judgement has left the Claimant in a position whereby  she would indeed be at risk on return to Nigeria. She has not been afforded anonymity within the judgement. She has been noted within the judgement to have engaged in gay relationships by reference to DVD evidence.

It appears not to be in dispute that those accepted to be gay and therefore not expected to be discreet as regards their sexuality on return to Nigeria would be at risk of persecution, yet the Court does not place much weight to the fact that the Claimant ‘s accepted publicised campaigning would in effect result in her having an “imputed sexuality” against  her on return to Nigeria. The Court referred in its judgement to a Human Rights Watch report which clarified that new legislation could lead to imprisonment solely for a person’s actual or imputed sexual orientation. Where the Claimant could be at risk on return  on account of an “imputed sexuality” then she could arguably fall into a particular social group. Where found to fall into a particular social group then issues on risk on return would also come into play and having regard to the publicised nature of her claim it can most likely  be said that the option of internal relocation would not be available to her and neither would she obtain police protection.

With the Secretary of State, the Tribunal and Court accepting that the Claimant had engaged in same sex relationships, the Court in their judgement does  not appear to have provided a reasoned basis in law as to why she would not fall into a particular social group. The contention against her having regard to the Secretary of State and Court’s view was that those relationships were not ” genuine” however the Court had noted persecution of gay people in Nigeria had worsened  over the period since the Tribunal’s decision and as such having regard to the particular circumstance of the Claimant  as publicised, the fact of those relationships being genuine or not would  not obviate the real risk that she may be persecuted on return to Nigeria. The Nigerians authorities and public may lay emphasis to the fact of submission of the publicised DVD evidence to give rise for reason to persecute or ill-treat the Claimant on return.

It is currently understood that permission has been granted to proceed to the Court of Appeal and as such it is  awaited what decision and basis of reasoning that  Court will reach in this case.

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