Apata, R (on the application of) v The Secretary of State for the Home Department

Membership of a particular social group based on sexual orientation is not excluded by past heterosexual relationships, marriage or children. Sexuality or awareness of sexuality may alter over time, but same-sex relationships alone do not establish genuine membership of the group. In a foreign expulsion case, reliance on Articles 2 or 3 requires a high threshold and a real prospective risk of persecution or inhuman or degrading treatment. A naturally occurring illness and inferior medical facilities ordinarily do not meet that threshold. Article 8 may exceptionally be engaged by medical circumstances, but medical treatment in the United Kingdom cannot alone establish a breach. A fresh claim under paragraph 353 requires significantly different material which, taken with the earlier material, creates a realistic prospect of success.

The claimant, a Nigerian national, challenged her removal and deportation on public law, Refugee Convention and European Convention on Human Rights grounds. She relied principally on alleged lesbian identity and the risk of persecution in Nigeria, her mental health and suicide risk, family and private life, and purported fresh representations.

The First-tier Tribunal had rejected her earlier claims, finding that her lesbian case was fabricated, that she had a history of deception, and that removal was justified. She withdrew her appeal to the Upper Tribunal. The central questions were whether those findings bound the Administrative Court, whether subsequent evidence established a present risk or Convention breach, and whether the material amounted to a fresh claim under paragraph 353 of the Immigration Rules.

1. Public law challenge. The claim challenging the Secretary of State’s decision was dismissed. The First-tier Tribunal’s findings were binding as to the claimant’s membership of a particular social group and other matters at the time of its determination. The court nevertheless had to assess the position at the hearing date in light of new evidence. The Tribunal’s broader findings on genuineness were matters on which the court could rely absent persuasive new evidence to the contrary. The removal decision was neither irrational nor unlawful.
2. Sexual orientation and persecution. Past heterosexual relationships, marriages or children did not prevent membership of a particular social group. Sexuality, or consciousness of sexuality, could alter over time. However, same-sex relationships alone did not establish that the claimant genuinely belonged to the relevant group. On the evidence, the claimant’s conduct was fabricated or adjusted to support an asylum claim. Even if she were treated as a member of the group, her stated willingness to return to Nigeria and the Tribunal’s findings meant that she had not shown a well-founded present fear of persecution.
3. Foreign Convention claims. The claim concerned the foreseeable consequences of removal in Nigeria and therefore attracted the stringent threshold applicable to foreign cases. The court considered the separate stages of notification of removal, physical removal and arrival in the receiving state. The evidence did not establish a real risk of persecution, or treatment contrary to Articles 2 or 3. The alternative campaigning case was insufficiently pleaded and unsupported by evidence meeting the required standard.
4. Medical condition and Article 8. The claimant’s case did not fall within the core Article 3 paradigm or the exceptional Article 8 circumstances identified in the authorities. There was no substantial evidence that unavailable treatment or medication in Nigeria would cause a Convention breach. The medical evidence did not establish that removal would shorten her life or create a sufficiently foreseeable suicide risk. Article 8 was not engaged by the asserted family circumstances, and the medical evidence could not independently establish a breach.
5. Fresh claim. The material had already been considered and, taken with the earlier material, did not create a realistic prospect of success under paragraph 353. The application was dismissed.

• First-tier Tribunal: The claimant’s earlier appeal against deportation was dismissed in 2012. The Tribunal found that her lesbian claim was fabricated, rejected her medical and Article 8 claims, and held that her character and conduct justified deportation.
• Upper Tribunal: The claimant sought permission to appeal but withdrew her appeal in October 2012.
• High Court (Administrative Court): The judicial review and human rights claim were dismissed.