We represented a citizen of Guyana who we assisted in making an application for leave to remain on human rights grounds but the application was refused in February 2014 and the Secretary of State gave directions under section 10 of the Immigration and Asylum Act 1999 for removal from the United Kingdom.
We have appealed the decision made by the Secretary of State. The Respondent, that is the Secretary of State, accepted that the Appellant is in a civil partnership with a British citizen, that the relationship is genuine and subsisting and that the Respondent accepted that the Appellant meets the relationship eligibility requirements under Appendix FM on the basis of family life as a partner. The Respondent however, went on to consider the additional criteria imposed by paragraph Ex.1 and considered whether there were insurmountable obstacles for family life with the partner continuing outside the United Kingdom. The Secretary of State concluded in summary that although consensual same sex activity between adult men was illegal in Guyana, the law was not regularly enforced and that there were few prosecutions. The Secretary of State tried to amplify these conclusions by reference to objective evidence.
We drafted Grounds of Appeal and among some of our other grounds it was said that the Respondent had not considered how the partner, Mr A, would be able to enter Guyana and continue his family life with the Appellant. It was acknowledged that the partner did not meet the relevant financial threshold set by the Rules, and could not then succeed in an entry clearance application.
The Grounds further contended that the Secretary of State had not considered whether the Appellant and his partner would be persecuted in Guyana because of their homosexuality. At the hearing Counsel provided written submissions on Article 8. These argued that there is at least a one in four chance that the Appellant and his partner if relocated to Guyana would encounter hostility and that they would be discriminated against in Guyana and liable to acts of violence. Counsel sited an unreported determination and the Judge considered Practice Direction 11 of the consolidated practice directions which provides that an unreported determination of the Tribunal cannot be sited unless so far as it is material to this appeal; The Judge found that he would be materially assisted by the citation of the determination because it goes to the heart of the issue in this case. The case relied upon by Counsel was SSHD –v- Cort, a decision of the Upper Tribunal Immigration & Asylum Chamber which was heard on 15th November 2013. Paragraph 2 of this it stated that it accepted the homosexuality is illegal in Guyana and a claimant who established that he is homosexual, he would succeed in his appeal. It was not arguable that he could reasonably relocate.
Therefore, Counsel argued that the test of “insurmountable obstacles” is met in that the Appellant and his partner could not be expected to live in circumstances which would give rise to persecution. The Home Office sought to argue that it would be reasonable to expect the Appellant to return to Guyana to make an application for entry clearance. The difficulties with this approach was that the Appellant was homosexual and this would be known to friends and relatives in Guyana, notwithstanding that if he did return to make an application for entry clearance he would not be accompanied by his partner, and therefore he would be liable to persecutory treatment. That is a factor which we tend to show that it would not be proportionate to expect him to return to make an application.
Even apart from all of the above, is the fact that there is a moratorium on applications for entry clearance which would involve the consideration of the point in MM namely the financial threshold which currently leaves a lot of applications for those who earn less than £18,600 in limbo. Although MM has been heard by the Court of Appeal, it can only be a matter of speculation when the decision will be issued. It also seems very likely that given the importance of the point at issue in MM there would be an appeal to the Supreme Court. These factors would significantly increase any delay in determining the application and therefore the longer the Appellant would have to remain in Guyana pending determination of any application the greater the risk would be.
The appeal was allowed under the Immigration Rules and Human Rights count.