Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00018/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4 November 2016
On 9 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

M B
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:
For the Appellant: Ms K Wass (counsel) instructed by Barnes Harrild & Dyer, solicitors
For the Respondent: Mr I Jarvis, Senior Home Office Presenting Officer.

DECISION AND REASONS
1. I make an anonymity order under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, precluding publication of any information regarding the proceedings which would be likely to lead members of the public to identify the appellant preserving the anonymity order made in the First-tier Tribunal.
2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Cameron promulgated on 14 July 2016, which dismissed the Appellant's appeal on all grounds.
Background
3. The Appellant was born on 1 April 1999 and is a national of Albania.
4. On 11 December 2015 the Secretary of State refused the Appellant's protection claim.
The Judge's Decision
5. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Cameron ("the Judge") dismissed the appeal against the Respondent's decision.
6. Grounds of appeal were lodged, and on 27 September 2016 Judge Ford gave permission to appeal stating
"1. The appellant seeks permission to appeal, in time, against a decision of First-tier Tribunal (Judge Cameron) promulgated on 14 July 2016 whereby it dismissed the appellant's appeal against a decision to refuse his asylum claim.
2. The appellant argues that the tribunal failed to exercise anxious scrutiny and, in particular, having accepted that the appellant suffered domestic violence at the hands of his father. This is not arguable as this was given anxious scrutiny and the appellant's account of domestic violence was accepted and it was accepted that the appellant could not return to his father's care (paras 76, 77 ,85 ,89).
3. But it is also argued that the tribunal may have erred in that it failed to decide the issue of internal relocation and a sufficiency of State protection. This is an important issue given the findings as to domestic violence, the apparent acceptance that the appellant could not contact his mother and siblings and a conclusion that there would not be adequate reception facilities.
4. There is an arguable material error of law"
The Hearing
7. At the start of the hearing both Ms Wass and Mr Jarvis drew my attention to the rule 24 response which states
'The respondent does not oppose the appellant's application for permission to appeal and invites the tribunal to determine the application with a fresh oral (continuance) hearing to consider internal relocation.'
In the course of discussion, Mr Jarvis told me that he was happy to concede that both the questions of internal relocation and sufficiency of protection require to be determined by me today. In doing so, he concedes that the decision contains a material error of law. Both Ms Wass and Mr Jarvis asked me to listen to their submissions on the issues of internal relocation and sufficiency of protection, then to make my own findings on those two areas and substitute my own decision. Ms Wass asked me to preserve the First-tier Tribunal Judge's findings of fact.
8. It is beyond dispute that the Judge clearly finds that the appellant is an unaccompanied minor and that there are no suitable reception facilities available in Albania. It is also common ground that the Judge dismissed the appellant's appeal on both asylum and article 3 ECHR grounds without considering either internal relocation or sufficiency of protection. Those are two crucial aspect of the appellant's claim. The failure to consider crucial aspects of the appellant's claim amounts to a material error of law. There is no criticism of the Judges findings of fact.
9. As I find that the decision contains a material error of law, I set the decision aside. As I am able to preserve the Judge's findings of fact, I move on to consider internal relocation and sufficiency of protection.
10. The Judge's findings of fact are that the appellant is a victim of domestic violence at the hands of his domineering father; the appellant is separated from his mother and his sisters and does not know where they are, but the appellant's grandparents, mother and sisters continue to live in Albania. The appellant's father continues to live in Albania. The appellant's 18th birthday will fall on 1 April 2017. The appellant has lived in the UK since December 2014. The Judge's specific finding that there are no adequate reception facilities for the appellant in Albania is preserved.
Background material
11.(a) Albania is a small, mountainous country in the Balkan peninsula, with a long Adriatic and Ionian coastline. Along with neighbouring and mainly Albanian-inhabited Kosovo, it has a Muslim majority - a legacy of its centuries of Ottoman rule. Approaching twenty per cent of the population are Christians, divided mainly between the Orthodox and smaller Catholic denominations.
(b) After World War II, Albania became a Stalinist state under Enver Hoxha, and remained staunchly isolationist until its transition to democracy after 1990. The 1992 elections ended 47 years of communist rule, but the latter half of the decade saw a quick turnover of presidents and prime ministers. Many Albanians left the country in search of work; the money they send home remains an important source of revenue.
(c) Domestic violence is not specifically recognized as a criminal offence in Albania's criminal code, although the general charge of assault can be brought against an alleged abuser. In cases of "serious intentional injury," the criminal code calls for three to ten years imprisonment, while in cases of "non-serious intentional injury," the criminal code stipulates a fine or up to two years imprisonment. According to Amnesty International, unless the violence leads to serious injuries or the death of the victim, perpetrators of domestic violence are only prosecuted on the request of the victim.
(e) Albania's Law on Measures Against Violence in Family Relations was passed in 2006 and includes a statement calling for its entry into force on 1 June 2007. The purpose of the law is "to prevent and reduce domestic violence in all its forms by appropriate legal measures" and "to guarantee protection through legal measures to members of the family who are subject to domestic violence, paying particular attention to needs of children, the elderly and the disabled". The law allows for victims of domestic violence to be issued protection orders, establishes special units for domestic violence in police departments, and outlines specific responsibilities for the ministries of the Interior, Health, and Justice, as well as local authorities. Amendments to the law were added on 30 September 2010. These call for the establishment of a shelter for victims of domestic violence and a coordinated system of referring cases of domestic violence among authorities.
(f) The Ministry of Labour, Social Affairs, and Equal Opportunities is the agency responsible for implementing laws and programs related to domestic violence and gender equality. The Minister leads the National Council on Gender Equality, an advisory body comprised of nine deputy ministers and three civil society representatives. The Ministry is also responsible for implementing and monitoring the National Strategy on Gender Equality and Domestic Violence.
(g) The Center for Legal Civic Initiatives (CLCI) is a Tirana-based organization that offers free legal services and psycho-social support to victims of domestic violence and participates in the drafting of laws and state policies for gender equality. They say that many of the services guaranteed by law have been implemented effectively and have brought greater protection and access to justice for victims of domestic violence. However, the CLCI has also stated that the government still needs to establish some services for domestic violence victims, including free legal assistance to victims, local governmental 24-hour hotlines, and local governmental rehabilitation centres for victims and abusers.
(h) In 2010, the European Union (EU) reported that although Albania has made progress in establishing a "legal and institutional framework" to prevent domestic violence, resources to support the laws and policies are "insufficient" at both the national and local level. The EU adds that this lack of resources hampers the effective implementation. In a joint shadow report (in 2010) on the implementation of the Convention on the Elimination of All Forms of Discrimination Against Women, three Albanian NGOs -- the Gender Alliance for Development Center (GADC), the Albanian Women Empowering Network (AWEN), and the Network Against Gender-based Violence and Trafficking -- indicate that the implementation of the domestic violence law is still in the "initial stages" at the local level. However, they note that some municipalities have launched pilot projects to create a referral system that will assist domestic violence victims.
(i) The background materials tell me that the police established specialized units for handling cases of domestic violence in the major cities of Albania. Special reporting requirements for domestic violence cases are in place at police stations, and officers have received at least one training session about domestic violence between 2007 and 2010. But there are also reports that the police are underfunded and lack sufficient resources to address domestic violence
(j) The Albanian government operates a national shelter for victims of domestic violence In correspondence with the Research Directorate, a project officer with the UN joint program on Gender Equality and Domestic Violence explained that the shelter, which opened in Tirana in April 2011, can accommodate approximately 30 to 35 women and children (up to the age of 14). The Executive Director of the Vatra Psycho-Social Centre said that the national shelter can accommodate up to 40 people per day and that there is no time limit for how long they can stay at the shelter.
(k) Some NGOs also operate shelters for victims of domestic violence. There are NGO-operated shelters in Tirana, Elbasan, and Vlora. UN project officer reports that there are also NGO-operated shelters in Shkodra and Pogradec. There is also another one in Gjirokaster
Analysis
12. In AA (Afghanistan) v SSHD 2007 EWCA Civ 12 the Court of Appeal noted that the SSHD's policy was not to return unaccompanied asylum seeking children unless there were "adequate reception arrangements in place". It was the SSHD's policy to grant them limited leave until their 18th birthday instead if arrangements were not in place. The Tribunal held that where it is reasonably likely that members of the child's immediate or extended family will make appropriate arrangements for his or her reception on return the removal of the child does not breach the policy and does not infringe his human rights. The Court of Appeal said that that was the wrong test. The policy documents showed that the SSHD had to be "satisfied" about the arrangements. In other words a higher standard was needed. Moreover the Court of Appeal also rejected the argument that it was premature at the appeal stage to make a finding on whether adequate reception arrangements existed because the Respondent's own policy documents showed that reception facilities were considered by the HO at a far earlier stage when deciding whether discretionary leave should be granted. The Court of Appeal said that the Adjudicator should have found that the Secretary of State's decision was not in accordance with the law because he had not considered the reception arrangements and the Adjudicator should have allowed the appeal under section 86(3)(a) of the 2002 Act.
13. R (on the application of Nzumvira) v SSHD (2008) QBD (Admin) distinguished AA (Afghanistan) on the grounds that the Appellant in AA (Afghanistan) was a minor at the time of both the Respondent's decision and the First-tier decision whereas in Nzumvira the Appellant was an adult by the time of the First-tier's decision and so there was no "disbenefit" to him.)
14. There is a viable option of internal relocation for this appellant. There is no evidence to suggest that his father has any influence beyond his own house in Albania. When the appellant left Albania was 13 or 14-year-old boy. Within the next six months he will reach majority. With the passage of time he has matured and his physical capabilities have increased. There is a functioning police force in Albania. The appellant can return to another part of Albania and will be beyond his father's reach.
15. On the facts as the Judge found them to be the appellant's father was an impoverished drunk who dominated his own home, but had no significant influence beyond his own home. It is realistically possible for the appellant to return to a place close to his home village and live separately from his father. The appellant could return to Tirana and be beyond the reach of his father there. On the facts as the Judge found them to be there is no other agent of persecution.
16. The background materials indicate that there is a functioning police force in Albania. The appellant gives a history of the police refusing to assist his mother, but the background materials indicate that there is a functioning police force and a criminal justice system available in Albania to assist the appellant.
17. There is a viable option of internal relocation. The background materials indicate that there is a sufficiency of protection available to the appellant because in Albania there is a functioning police force and criminal justice system. There are shelters for victims of domestic violence. I have to find that the appellant's appeal cannot succeed on either asylum or article 3 ECHR grounds
18. The Judge found as a fact that no article 8 ECHR grounds are argued. No challenge is taken to that finding of fact, so it stands.
19. There remains a clear and unchallenged finding of fact at [91] of the decision that the appellant is under 18 years of age, that he is an unaccompanied minor, and that there are no adequate reception facilities available for the appellant. Although the appellant's appeal cannot succeed on asylum or article 3 ECHR grounds, it is now for the respondent to consider the appropriate course of action for an unaccompanied minor who has had his protection claim dismissed.
Decision
The Judge's decision promulgated on 14 July 2016 is tainted by a material error of law, and I must set it aside.
I substitute my own decision.
I dismiss the appeal on asylum grounds
I dismiss the appeal on Humanitarian Protection grounds
I dismiss the appeal on article 3 ECHR grounds.

Signed Date 9 November 2016
Deputy Upper Tribunal Judge Doyle