Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00244/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22nd September 2016
On 4th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

Secretary of State for the Home Department
Appellant
and

enea [b]
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr K Norton, Home Office Presenting Officer
For the Respondent: Mr N Scott of Counsel instructed by Sentinel Solicitors

DECISION AND REASONS
1. Although this is an appeal by the Secretary of State I refer to the parties as they were in the First-tier Tribunal.
2. The Appellant, a citizen of Albania, appealed to the First-tier Tribunal against a decision by the Respondent to refuse his application for asylum in the UK. First-tier Tribunal Judge Herbert allowed the Appellant's appeal accepting that the Appellant was the subject of a blood feud and deciding that there was not a sufficiency of protection in Albania and that it was not reasonable for the Appellant to relocate within Albania. The Respondent now appeals with permission to this Tribunal.
3. In the grounds of appeal the Secretary of State contends that the judge erred in concluding that the Appellant could not internally relocate within Albania. The Secretary of State contends that the judge erred in referring to the Appellant as "a person who had been trafficked" [27] when it is not the Appellant's case that he was trafficked. The criminals who exploited the Appellant in Brussels were not involved in his departure from Albania nor were they involved in his movement to the UK and therefore his case was not that he was a victim of trafficking. It is contended that the judge has provided no lawful explanation as to how a criminal gang in Brussels, who had no prior and no subsequent dealings with the Appellant, would have any knowledge at all that he had returned to Albania. It is further contended that the judge makes no findings as to whether this criminal gang had any link to Tirana at all. It is contended that the judge has failed to explain why the Appellant who plainly escaped from the gang in Brussels and who has by choice limited counselling received in the UK is so mentally affected as to prevent him from looking for work and accommodation on return in Tirana. It is submitted that there is no engagement with any background evidence about the levels of male trafficking in Albania or any finding on potential services supplied by the state or NGOs. It is contended that in the absence of such findings the judge's findings with respect to internal relocation are wholly unlawful.
4. Permission to appeal was granted on the basis that it is arguable that the judge made a mistake of fact in finding that the Appellant had been trafficked because this does not appear to have been his case. It was also considered to be arguable that the judge failed to give adequate reasons for finding that the Appellant would be vulnerable to exploitation and would be unable to access accommodation or obtain employment.
5. At the hearing before me Mr Norton relied on the grounds and submitted that the judge had failed to apply the correct test in paragraph [27] based on his error in relation to his mistake of fact in relation to the Appellant being a victim of trafficking.
6. Mr Scott submitted that the issue is whether it is reasonable for the Appellant to internally relocate, the judge correctly identified this in paragraph [27]. He submitted that it is clear from paragraph [13] where the judge sets out the background to the Appellant's departure from Albania that the judge was aware that the Appellant was not trafficked. He submitted that the judge concludes the discussion in relation to the Appellant's claim by stating that he was abused in Brussels whilst in transit to the UK. The judge found at the end of paragraph [26] that there is not a sufficiency of protection in Albania and he submitted that at paragraph [27] it is clear that the judge had a correct understanding of the test in relation to internal relocation. The judge at paragraph [27] discussed the Appellant's age, the physical abuse he had been subjected to in Brussels, his access to accommodation and maintenance and the risk of further exploitation upon return to Albania. He also submitted that the judge may have had in mind that the Appellant would be vulnerable and at risk of trafficking upon return to Albania in light of the psychological effect upon him of the violence inflicted upon him. He submitted that this may have been why the judge referred to the Appellant in connection with trafficking. However he submitted that this is not the core of the decision and the judge does not find as a matter of fact that the Appellant had been trafficked. He submitted that there was sufficient evidence before the judge that the gang who abused the Appellant in Brussels were criminals. He submitted that any mistake of fact was not material.
Error of Law
7. In his consideration of internal relocation at paragraph [27] the judge said:
"Whilst it may be possible for the Appellant to internally relocate to Tirana the primary question is whether or not it would be reasonable for him to do so given his age as an 18 year old and as a person who had been trafficked and had been subject, as I find he was, to physical abuse as a child, probably of a sexual nature, whilst in the hotel in Brussels. If returned to Tirana he would not have any accommodation, maintenance or family support to turn to and would be vulnerable to further exploitation as I find that he is a person who had suffered exploitation from traffickers already during the ten day period that he stayed in the hotel in Brussels. I find that there is not a fine line between a person having just turned 18 and the vulnerability of a minor under 18. This is a somewhat artificial distinction which would not protect the Appellant from abuse in my view."
8. Going on at paragraph [28] to highlight factors that indicate that there is still an ongoing blood feud the judge pointed to "his experiences and vulnerability because of the abuse suffered in Brussels".
9. I accept that the judge appears to have made a mistake of fact in relation to his reference to the Appellant as a person who had been trafficked.
10. Whilst there is no dispute that it was not the Appellant's case that he had been trafficked, he did say that that he was exploited by Albanian criminals in a hotel in Brussels staying in the hotel arranged for him by the agent who arranged his journey to the UK and that these people came and went from his room when they wanted and that this group found out where he lived and names and addresses of people at home and they took his phone (asylum interview Q110-125).
11. Looking at this evidence therefore it is clear that the Appellant's case was not that he was trafficked but that he was exploited by an Albanian criminal gang who knew about his family and where he was from. I am satisfied that the judge's conclusion that the Appellant had suffered from exploitation in Brussels and that he would be vulnerable in Albania as a result of this exploitation to be one open to him on the basis of this evidence. The erroneous use of the words 'trafficked' and 'traffickers' in paragraph 27 does not undermine the Judge's conclusion.
12. Mr Scott referred to the Albanian Operational Guidance Notes of May 2013 where at paragraph 2.3.5 it is stated that it may be practical for applicants in some categories who may have a well-founded fear of persecution in one area to relocate to other parts of Albania where they would not have a well-founded fear and taking into account their personal circumstances it would not be unduly harsh to expect them to do so. It states that careful consideration must be given to the relevance and reasonableness of internal relocation on a case-by-case basis taking full account of the individual circumstances of the particular claimant. It is stated that consideration should be given to the age, gender, health, ethnicity, religion, financial circumstances and support network of the Appellant as well as security, human rights and socio-economic conditions in the proposed area of relocation including the Appellant's ability to sustain themselves.
13. It is clear that the judge did consider the factors set out in the guidance in considering the question of internal relocation in paragraph 27.
14. In my view the judge took full account of the Appellant's personal circumstances and placed particular weight on the Appellant's vulnerability in light of the exploitation he had suffered in Brussels and I am satisfied that the judge gave sufficient reasons for his finding that it would be unduly harsh and not reasonable for the Appellant to relocate within Albania.
15. For these reasons I am satisfied that the judge made no material error of law.
Notice of Decision

The decision of the First-tier Tribunal did not contain a material error of law.
The decision of the First-tier Tribunal Judge shall stand.

No anonymity direction is made.

Signed Date: 3 October 2016

Deputy Upper Tribunal Judge Grimes

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award.

Signed Date: 3 October 2016

Deputy Upper Tribunal Judge Grimes