Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00283/2016

THE IMMIGRATION ACTS

Heard at Stoke
Decision and Reasons promulgated
On 28 November 2017
On 22 January 2018

Before

UPPER TRIBUNAL JUDGE HANSON

Between

SB
(anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Draycott instructed by Paragon Law Solicitors.
For the Respondent: Mr D Mills Senior Home Office Presenting Officer.

ERROR OF LAW FINDING AND REASONS

1. This is an appeal against a decision of First-tier Tribunal Judge Morris, promulgated on 4 July 2017, in which the Judge dismissed the appellant's appeal on protection and human rights grounds.

Background

2. The appellant is a national of Albania born on 9 February 1999 who arrived in the United Kingdom on 2 January 2015. The appellant claimed asylum on the same day which was refused by the respondent. The appellant appealed against that decision which came before the Judge. Having noted the evidence with the required degree of anxious scrutiny, and setting out the procedural history and submissions, the Judge sets out his findings of fact at [30 - 110] of the decision under challenge.
3. The Judge notes at [31] that the issues in the appeal turned to an extent upon the credibility of the appellant.
4. The appellants asylum claim is based upon the Convention Reason of been a member of a 'particular social group' (PSG) [34]. The Judge sets out Mr Draycott's submissions in relation to how the PSG should be defined at [40 (i) - (ii)], and comments upon the same, in the following terms:

(i) First, by reference to what he termed his "immediate, impoverished and vulnerable family". I am not satisfied such a group, even if it were to be expanded to include all impoverished and vulnerable families in Albania, can be said to meet the requirement of having to share an innate characteristic or belief, so fundamental to identity or conscience that they should not be forced to renounce it. Neither am I satisfied that any such group can be said to possess a distinct identity in Albania because members are perceived as different by the surrounding society in that country. It is established that the possession of that characteristic or attribute must distinguish the group from society at large. Absent this last factor, the group may be a social group, but it will not be a "particular social group".

(ii) Secondly, by reference to the appellant having been an attempted victim of trafficking/forced labour by criminal gang. In this case, although I accept as did the respondent, that the appellant was beaten by the three men who were seeking to persuade him to work with them in pursuit of their criminal activities, by reference to decisions such as that in R (on the application of BG) v Secretary of State to the Home Department [2016] EWHC 786 (Admin) and EK (Article 4 ECHR: antitrafficking Convention) Tanzania [2013] UKUT 00313 (IAC), I am not satisfied that that constitutes the appellant being a victim of trafficking/forced labour. Even if I am wrong in that finding, the above points relating to the characteristics of any such group apply equally.

5. The Judge was not satisfied the appellant is a member of a PSG and thus found the appellant had failed to satisfy him as to the existence of a Convention Reason.
6. In relation to the claim to be entitled to a grant of Humanitarian protection, the Judge finds it necessary to look to the future for the appellant to establish substantial grounds for believing that if return to Albania he will face a real risk of suffering serious harm. The Judge noted the appellant speaks to his family in Albania two to three times a week and has not suggested they have warned him that the gang members he claims to have suffered at the hands of previously continue to look for him or have indicated any continuing interest in him. The Judge finds, however, at [48] that if the appellant were returned to his home area there is a real risk of him suffering serious harm at the hands of the gang that targeted him in the past.
7. The Judge thereafter considered paragraph 399C (iii) and whether owing to any identified risks the appellant is unwilling to avail himself of the available protection in Albania [49].
8. At [50] the Judge repeats the finding the appellant would face a real risk of suffering serious harm in his home area but that the appellant had failed to satisfy the Judge that if he were returned to Albania the state authorities will be unwilling or unable to afford protection to him. The Judge finds at [54] that no evidence was presented to suggest the authorities knew or ought to have known of circumstances particular to the appellant's case but were unlikely to provide such additional protection and that the appellant clearly stated on the occasion of the third beating that he chose not to make the authorities aware of his predicament. The Judge finds at [53] that he was not satisfied that the appellant had demonstrated that if he were to return to Albania the authorities would be unwilling or unable to afford protection.
9. The Judge addresses the issue of internal relocation from [56]. At [62] the Judge finds the appellant has an aunt who lives with her family in Tirana. Although criminal activity is recorded in the country information in Tirana, the Judge found the appellant failed to satisfy him that with the support from his aunt and her family he would not be able to integrate and establish himself in the capital city safely. The Judge also noted other family members living in Albania. The Judge concludes at [64]:

"In summary of this point, having made the assessment in accordance with AH (Sudan) referred to above, I find that no evidence has been presented to me to suggest that the impact on the appellant of settling elsewhere in Albania will be such that it would be unreasonable to expect him to relocate or that it would be unduly harsh to expect him to do so: i.e. by reference to paragraph 47 of the decision in Januzi, I am satisfied that the appellant can live a relatively normal life in his chosen place of relocation judged by the standards that prevail in his country of nationality generally and I have no reason to believe that he cannot reach such a part of Albania without undue hardship or undue difficulty. As such, it is not unreasonable to expect him to move there. Although there would obviously be difficulties in the appellant in relocating, I am not satisfied that for him to do so would be unduly harsh.

10. The Judge did not find the appellant had established that he could satisfy Articles 2 or 3 on protection grounds.
11. In relation to the appellant's health, the Judge considered Article 3 but having reviewed the evidence did not find that returning the appellant would breach Article 3 ECHR.
12. In relation to Article 8, the Judge found the appellant unable to succeed under the Immigration Rules. When considering the matter outside the Rules, in the structured manner set out in Razgar, the Judge concluded the decision would amount to a proportionate interference in any protected right.
13. The appellant sought permission to appeal on a number of grounds which was granted by another judge of the First-tier Tribunal.

Summary of submissions to the Upper Tribunal

14. Mr Draycott submitted there were two issues before the First-tier Tribunal namely that of a sufficiency protection and internal relocation.
15. The appellant's home area is said to be a rural area near the Macedonian border. It is submitted it is not disputed that criminal gangs in Albania are involved in drug trafficking and it was submitted that a gang wished to recruit the appellant to be used in such activities. When the appellant refused to be recruited he was beaten. The appellant's mother complained to the local police on the first occasion but not the second.
16. The appellant claims he was initially approached in March 2014 and then again in September 2014. In December 2014, the appellant was seriously beaten which was found by the First-tier Tribunal Judge to amount to serious harm.
17. It was argued on the appellant's behalf that the First-tier Tribunal Judge found there is a generic sufficiency of protection and then went on to consider if the authorities were unwilling or not to provide protection. As it was found they were not unwilling the appeal was dismissed. Mr Draycott submitted that the nuanced approach required was not considered as there should have been an individualised assessment of the availability of protection and the balancing of the competing factors. It was submitted that protection would not be forthcoming as a result of deficiencies in the local police and examples of corruption.
18. Mr Draycott submits the proper test that should have been applied by the Judge is that set out at [18] of the decision of the Upper Tribunal of NA and VA (protection: Article 7 (2) Qualification Directive) India [2015] UKUT 00432 in which it was found:

It is a common case that where the persecution asserted as a threat to life, the Osman test must, as a matter of domestic law, be applied, given that Article 2 ECHR is one of the Convention rights protected by the Human Rights Act 1998. The decision of the ECtHR in Osman concerned a positive duty on state authorities to protect life derived from Article 2. There was no dispute that this obligation extends beyond the state's primary duty to secure the right to life by devising effective criminal law provisions and appropriate law enforcement machinery for the prevention, suppression and punishment of offences. The Courts starting point was that:

"?.. Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventative operational measures to protect an individual his life is at risk from the criminal acts of another individual."

See [115]. The Court continued in [116]:

"For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their actions to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention."

The Court then framed the principle, or test, of reasonableness:

"In the opinion of the Court where there is an allegation that the authorities have violated the positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person (see paragraph 115 above), it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The Court does not accept the Government's view that the failure to perceive the risk to life in the circumstances known at the time or to take preventative measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life (see paragraph 107 above). Such a rigid standard must be considered to be incompatible with the requirement of Article 1 of the Convention (see, mutatis mutandis, but the above mentioned McCann and Others judgment, p.45, para 146). For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an appellant applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in light of all the circumstances of any particular case".

The duty to take case sensitive and specific preventative/protective measures arises only where two conditions are satisfied. The first is that there must be a real and immediate risk to the life of an individual person or persons from the criminal acts of a third party. The second is that the relevant state agencies knew or ought to have known of this risk.

19. It was submitted that the authorities were aware of the issue as the appellant's family in Albania had told the police about it. It is also submitted the First-tier Tribunal Judge did not undertake a proper engagement with the fact the appellant had been beaten by way of serious beatings in the past and how the same should be factored into the assessment. It was argued that as the appellant had suffered past persecution the Judge should have considered that this was demonstrative real risk of future persecution. Article 4(4) Qualification Directive reads: 4. The fact that an applicant has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. It was submitted in light of this provision the burden of proof remained upon the Secretary of States throughout.
20. Mr Draycott referred to the fact that despite the complaint in September 2014 the police in Albania had failed to deal with the same and that the country material provided refers to the fact that in rural areas many of the police are "in the pockets" of the criminal gangs. It was the appellants mother's evidence that the police in that area receive payments from the gangs, a fact supported by the available evidence. It was submitted the protection from the police by those wanted by the criminal gangs was limited and that the response of the authorities is normally only available once the crime has been committed rather than them providing protection to an individual.
21. Mr Draycott submitted this is an attempted trafficking case with an attempt to recruit the appellant to undertake forced labour, meaning the UNHCR guidelines should have been considered by the Judge. It was therefore not necessary to consider the "characteristic" argument as the appellant can be a member of the group recognised by society. It was submitted the Qualification Directive must be read in the same way as the UNHCR guidance. The attempt to recruit the appellant is an innate characteristic. The gang will recall that the appellant rebutted their advances and fled putting him at real risk on return. It was submitted the gangs target individuals such as the appellant to get them to work for them on the basis they are vulnerable individual from a deprived background suitable for recruitment.
22. Mr Draycott argued that the Judge's finding that this reason did not represent the totality of the reasons is wrong in law and that the reason the appellant was targeted engages a Convention reason.
23. Mr Draycott submitted that the correct test that should have been applied is that found in TD and AD (trafficked women) CG [2016] UKUT 00092 which was relevant to considering whether the appellant will be able to benefit from a sufficiency of protection.
24. It was submitted the Judge erred in finding the appellant had a support network in Albania. In relation to the findings on internal relocation, Mr Draycott submitted the Judge had not properly dealt with this issue. The Judge accepted the appellant faced a real risk in his home area [48 and 50 of First-tier Tribunal decision] but found the gang was not interested in finding the appellant. It was submitted the Judge misrepresented the appellants evidence at [61] and failed to engage with the guidance provided in AM and BM (trafficked women) Albania CG [2010] UKUT 80 which held that due to the size of Albania and the manner in which Albanian society operates 'internal relocation is unlikely to be effective for most victims of trafficking who have a well-founded fear of persecution in their home area'. It was submitted the applicant faces a real risk of being killed by the gangs who, it was submitted, will be able to find the appellant especially in light of the need to register when a person settles in a new area.
25. Mr Draycott further referred to the medical evidence from Dr Kumar which stated the appellant has an adjustment disorder and is frightened of returning to Albania and the impact of the appellant being returned. There was also evidence from the appellant's foster carer in a consolidated appeal bundle repeating the claim that the appellant had a fear of return to Albania. It is submitted that although the Judge noted this evidence there is no finding as to whether this was accepted and how this will impact upon the reasonableness of return and internal relocation.
26. Mr Draycott referred to [65 - 68] of the Judges decision where there is mention of Dr Kumar's report which indicates that the diagnosis may be accepted but it is still found the appellant could not meet the relevant test. Mr Draycott repeated the submission that if the diagnosis was accepted it should have been factored into the assessment of the reasonableness of internal relocation.
27. In response, Mr Mills submitted that the Judge considered the correct case law in relation to the question of sufficiency protection and made a clear decision in relation to the same. The factual findings are based on the evidence. The Judge noted the appellant's ongoing contact with family and the lack of evidence of any ongoing interest in him. Whilst Mr Mills accepted another judge may come to a different conclusion it has not been made out that the actual findings made were not reasonably available to the Judge on the evidence. It was accepted the appellant had complained once to the police and that there was an investigation but there was no evidence of the outcome and no further complaints had been made. As the appellant fears the gang in his home area it was submitted there will be no arguable material error if there is an available internal relocation option.
28. In relation to internal relocation Mr Mills submitted that the appellants submissions miss the point that the appellant's evidence was accepted including that of risk in his home area. It was submitted there was no inconsistency in the decision of the Judge at [61]. The Judge does not make a finding that the gang are actively pursuing the appellant. This is a finding the appellant in his home area may be seen and may be pursued by the gang. It was submitted the Judge was entitled to find that there was no evidence that the appellant was being sought per se.
29. In relation to the trafficking issue; Mr Mills submitted the appellant is not a victim of trafficking or a potential victim. At its highest the gangs wanted the appellant to work for them but he refused and so was beaten for refusing. There is no evidence this is a forced labour case and authorities in respect of that issue are not relevant.
30. It was submitted the case law does not support a finding that internal relocation is not unavailable for all in Albania. In particular, the evidence indicated that the appellant had been targeted by a gang from the next village as found by the Judge. There is no evidence the gang has national or international connections.
31. Mr Mills submitted the suggestion the gang had contacts in all Albania for that the police force was corrupt in all of Albania is pure speculation.
32. At [62] specific areas of potential relocation were considered by the Judge as the appellant has family in three different areas providing a number of options for him. The Judge found they were valid options.
33. In relation to the mental health challenge, it was accepted the Judge does not appear to discuss the same in relation to his reference to the reasonableness of internal relocation but at [62 - 63] the Judge gives a correct legal self-direction and states that in reaching the conclusion he has considered all the evidence regarding health issues. It is also submitted the Judge was aware of the views of the foster carers and that all the material was considered.
34. The Judge was aware the appellant was 18 years of age with mental health issues. The Judge finds the appellant can return to family and that mental health care is available to him in Albania.
35. In relation to the PSG argument, Mr Mills submitted that at its highest all that could be found was that the appellant was "almost a victim of trafficking" although this had not even been made out on the facts. It was argued the Judge was entitled to find as it did in relation to this issue.
36. Mr Mills accepted the social group identified by Mr Draycott in relation to family could possibly form a PSG but it was necessary for the appellant to establish that he had been targeted due to the fact he was a member of this group which was not made out on the evidence. It was also submitted that it did not mean in every case if the person was targeted that they could make out such a claim. No material error arises.
37. In response Mr Draycott submitted it was not clear from the Judges reasoning that this was an opportunistic approach to the appellant. Mr Draycott repeated his claim that if the appellant was in his home area and the gang wanted retribution as he had shunned them he was at risk. The appellant could not remain in his home area and if the grudge continues the impact of the same should have been considered in the decision.
38. In relation to ongoing interest, Mr Draycott submitted that it was all nuanced evidence and the finding the authorities are willing to provide protection is erroneous.
39. It was argued the appellant is a minor due to his age and that if he had complied with the requests it would mean he will have been recruited and become dependent upon his coercers. It was argued there was no challenge to the claim that gangs in Albania are engaged in trafficking and drug-related offences and that this is not a local issue. It was submitted the gang is linked to a national criminal syndicate that could be involved in the transportation of drugs through Albania to Europe as referred to in the country material.
40. In relation to the medical evidence, Mr Draycott stated that if Dr Kumar's prognosis is accepted this demonstrates what the appellant is like in the United Kingdom a safe country which raises the question of what would happen to the appellant if he was sent back to Albania. The report states that he will "shutdown" which raises the question of whether internal relocation is reasonable.
41. Mr Draycott repeated the claim that the reason the gang were interested in the appellant was because he is vulnerable as he has no male relatives to tell the gang to leave him alone. It was necessary to consider the reason why the appellant has been targeting and why the gang are showing an interest in him to consider the question of the relevant PSG.

Discussion

42. The appellant's characteristics is an Albanian national, born on the above date of birth, who is from a family who are not well-to-do, and who was approached by members of a local gang on a number of occasions who tried to recruit him but who on the third occasion beat the appellant as a result of his refusal, does not appear to be disputed. The fact the appellant exhibits psychological symptoms as outlined in the report of Dr Kumar does not appear to be disputed either.
43. I find no arguable legal error in the findings by the Judge that this is a group of local individuals targeting the appellant for the above stated reasons. It is accepted there was country information before the Judge speaking of the connection between criminal gangs and trafficking and the international drug trade but this does not mean, as submitted by Mr Mills, that each and every gang member has such connections as there is also within Albania a local criminal fraternity as there is within any European country including the United Kingdom. Indeed, the majority of crime in most countries is committed by domestic criminals or criminal gangs with no international connection at all. The evidence before the Judge, whilst referring to certain aspects of Albanian criminal society, failed to establish even to the lower standard applicable to this appeal that all gangs have such connections to the international trafficking or drug market or would approach individuals with the intent of involving them in such trade i.e. trafficking them by forced labour. I do not find Mr Draycott has made out any arguable legal error material to the finding of the Judge that this is a local gang who targeted the appellant for the purposes of recruiting him in his home area.
44. I do not find the assertion the Judge erred in not considering this matter by reference to the UNHCR guidance appertaining to victims of trafficking to have been made out. As Mr Mills submitted, taken at its highest if the potential trafficking element had been established before the Judge, the appellant was no more the possible victim of trafficking although, as stated, the trafficking element was not established before the Judge.
45. It is accepted that the appellant was beaten on one occasion by non-state actors there being no evidence of state sponsors or condoned persecution. Although not discussed at the Error of Law hearing, it is accepted that whether a person has been subjected to an act of persecution is a fact sensitive analysis, it was not arguably made out before the Judge that the one incident of violence inflicted upon the appellant was part of a sustained pattern of ill-treatment or sufficient to satisfy the definition of persecution, even if accepted it resulted in serious harm to the appellant.
46. The Refugee or Person in Need of International Protection (Qualification) Regulations 2006, Regulation 5(1), states:

"In deciding whether a person is a refugee an act of persecution must be:
(a) sufficiently serious by its nature or repetition as to constitute a severe violation of a basic human right, in particular a right from which derogation cannot be made under Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms; or
(b) an accumulation of various measures, including a violation of a human right which is sufficiently severe as to affect an individual in a similar manner as specified in (a).

(2) An act of persecution may, for example, take the form of:
(a) an act of physical or mental violence, including an act of sexual violence;
(b) a legal, administrative, police, or judicial measure which in itself is discriminatory or which is implemented in a discriminatory manner;
(c) prosecution or punishment, which is disproportionate or discriminatory;
(d) denial of judicial redress resulting in a disproportionate or discriminatory punishment;
(e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under regulation 7.
(3) An act of persecution must be committed for at least one of the reasons in Article 1(A) of the Geneva Convention. "

47. In OO (Sudan) v SSHD and JM (Uganda) v SSHD [2009] EWCA Civ 1432, a case concerning homosexuality, the Court of Appeal said that the Directive and consequent 2006 Regulations did not widen the scope of the concept of persecution established under domestic case law. If persecution could not be established under UK jurisprudence independently of the Directive and the 2006 regulations then it could not be established.
48. In Sandralingham [1996] Imm AR 97, Staughton LJ said that "persecution is persistent and serious ill treatment without just cause by the state or from which the state can provide protection but chooses not to do so".
49. In MI (Pakistan) and MF (Venezuela) v Secretary of State for the Home Department [2014] EWCA Civ 826 the Court of Appeal held that the concept of persecution for the purposes of the Geneva Convention (and indeed the Directive) requires that the past or apprehended harm to the asylum seeker must attain a substantial level of seriousness. Family or social disapproval in which the state has no part lies outside its protection. Discrimination against members of a particular social group in the country of origin is not enough, even though such discrimination might be contrary to the standards of human rights prevailing in the state in which asylum is sought.
50. In Ali Cem Kaya v SSHD [2003] EWCA Civ 1195 the Tribunal had found that a single brief period of detention and mistreatment could not amount to persecution as it lacked "the pervasive element which is commonly said to be a feature of persecution". Brooke LJ referred to the decision of Lord Justice Stuart Smith in Demirkaya in which it was held that "at one end of the scale there may be arbitrary deprivation of life, torture and cruel, inhuman and degrading punishment or treatment. In such a case, the conduct may be so extreme that one instance is sufficient". In Ali Cem Kaya v SSHD the Court of Appeal refused to intervene and accepted the Tribunal's reasoned decision.
51. In Tafara Nhengu [2004] EWCA Civ 298 the appellant belonged to a drama group which performed at MDC rallies, although he was not himself an MDC member. On one occasion, his group was attacked by Zanu PF youths. The appellant sustained injuries to his head and chest. On another occasion, he was chased by youths who took over the group's rehearsal venue and attacked the director's home. The Adjudicator concluded that, if the appellant returned home he might suffer the sort of ill treatment to which he had been exposed in the past. The Adjudicator found that that did not cross the threshold of persecution. The Court of Appeal effectively agreed and said "There was nothing on which the Adjudicator could have found, nor did he find, that this appellant was at risk of anything more serious than that." The Court quoted LJ Staughton from Ravichandran "It would I think be open to a Tribunal to find that a single beating, unless it was particularly vicious or injurious, does not amount to persecution. But if there is a real risk of repetition the position would be different. I do not think therefore that the Tribunal's finding that the appellant may be beaten on his return entitles the appellant to claim that that of itself amounts to persecution." The Court also referred to Professor Hathaway's analysis. Professor Hathaway said that it was a matter of degree as to whether conduct amounted to persecution. "At one end of the scale there may be arbitrary deprivation of life, torture or cruel, inhuman and degrading punishment or treatment. In such a case, the conduct may be so extreme that one instance is sufficient; but less serious conduct may not amount to persecution unless it is persistent".
52. In HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 (07 July 2010) Lord Hope said "the Refugee Convention does not define "persecution". But it has been recognised that it is a strong word". He went on to quote from Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, para 40, McHugh and Kirby JJ said: "Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to state sponsored or condoned discrimination in social life and employment. Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it." He then added "To constitute persecution for the purposes of the Convention the harm must be state sponsored or state condoned. Family or social disapproval in which the state has no part lies outside its protection. As Professor J C Hathaway in The Law of Refugee Status (1991), p 112 has explained, "persecution is most appropriately defined as the sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognised by the international community." The Convention provides surrogate protection, which is activated only upon the failure of state protection. The failure of state protection is central to the whole system: Horvath v Secretary of State for the Home Department [2001] 1 AC 489, 495. The question is whether the home state is unable or unwilling to discharge its duty to establish and operate a system for the protection against persecution of its own nationals".
53. In MF (Venezuela) v SSHD [2014] EWCA Civ 826 the appellant claimed asylum on arrival on the basis that he had been politically active against the ruling party and in consequence had suffered constant physical and psychological abuse as a result of campaigning against the late President Chavez, spat on by police, received threatening calls and been threatened with guns. The Court of Appeal upheld the Tribunal's finding that the threshold of persecution was not reached.
54. In relation to the argument appertaining to PSG, it is accepted that a family is the clearest example of a social group. The Judge sets out the correct case law and legal self-direction in relation to this aspect. Mr Draycott's assertion the Judge applied the wrong test or failed to appreciate or understand the appropriate guidance is not made out.
55. Although being a member of an economically disadvantaged family may be one of the factors that leads criminal gangs to identify potential victims, and the fact the gang originated from a neighbouring village makes it likely they would know the economic circumstances of those in their locality, the question before the Judge remained did the appellant suffer persecution as a result of his membership of any identify particular social group. As the assertion the appellant is a victim of trafficking was not made out before the Judge, and nor was it establish the appellant had been persecuted by virtue of a Convention reason, no arguable legal error arises on the basis of that aspect of Mr Draycott submissions.
56. What must be accepted, as identified by the Judge, is that due to the evidence of an assault upon the appellant on the third occasion, as a result of his refusal to work for the gang, there is an arguable real risk that if returned to his home area he may be encountered by the gang in the future who may repeat the request he joins him and who, if he refuses again, may inflict harm upon him by way of further acts of violence. The Judge was therefore required to consider issue of sufficiency protection and/or internal relocation.
57. It is accepted the material before the Judge speaks of examples of corruption in the rural police forces in parts of Albania who receive payment from criminal gangs. Even if there is a mechanism in force to provide protection in such areas it is unlikely to be enforced by the police if they are in the pay of the gangs i.e. those they are being asked to investigate.
58. What was not established before the Judge was that the authorities to whom the first approach was reported were in the pay of the gangs such that they failed to properly investigate any complaint. The appellant's mother clearly felt able to approach the police to complain about the initial approach. It is not known what information was provided in relation to the identity of the gangs or of the nature of the specific complaint. If the gang approached the appellant asking him to join them but he refused, with no evidence on adverse violent consequence, what is the nature of the breach of the Albanian criminal law? The fact of the matter is that when a clear act of criminality occurred, namely a physical assault, the evidence before the Judge is that no complaint was made to the police. Had such a complaint been made there may have been a proper investigation and action taken. The assertion there was no available protection is therefore a matter of speculation so far as the specific facts of this appellant are concerned.
59. The submission by Mr Draycott that the action of the police was reactionary whereas they were required to provide protection to prevent any adverse acts, is not in accordance with the Oman test relied upon him in his early submissions. The Upper Tribunal identified in NA and VA [2015] UKUT 00432 that whether a sufficiency of protection existed is a case sensitive issue in which two conditions had to be satisfied. The first is that there must be a real and immediate risk to the life of an appellant from the criminal acts of third parties. What was not arguably establish before the Judge is that the criminal gang wanted to kill the appellant. This does not form part of the submissions before the Upper Tribunal. The argument is that the appellant will be subjected to further beatings if he refuses to work for the gang, who it is claimed wish to traffic him although that aspect was not made out before the Judge. The second element is that the relevant state agencies knew ought to have known of that risk. If the alleged risk relates to a threat to the appellants life there is no evidence that the authorities were made aware of the same. The only evidence is of the report of the first attempt by the gang to approach the appellant and not what develop thereafter.
60. The assertion the Judge was required to take a nuanced approach to the evidence is not disputed. It is not made out, however, that the Judge applied the wrong test in law or failed to take into account the relevant evidence when assessing this aspect of the case.
61. The legal position before the Judge is that set out in the Qualification Directive which reads when considering the level of protection required under The Refugee or Person in Need of International Protection (Qualification) Regulations 2006, Regulation 4(2),:

"(2) Protection shall be regarded as generally provided when the actors mentioned in paragraph (1)(a) and (b) (see above) take reasonable steps to prevent the persecution or suffering of serious harm by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the person mentioned in paragraph (1) has access to such protection".

62. The Judge was required to consider whether the Albanian authorities had taken reasonable steps to prevent persecution or suffering. The finding by the Judge that such reasonable steps had been taken both in terms of a general analysis of the position in Albania and specifically in relation to the appellant on the basis of what the authorities knew had occurred to him at the hands of the local gang, has not been shown to be infected by arguable legal error.
63. Even if it had been found that there was no effective sufficiency of protection in the appellant's home area, a rural area of Albania, whether the decision to dismiss the appeal amounted to a material error depends upon the question of whether there is a sufficiency of protection in the urban parts of Albania or other areas occupied by members of the appellant's family to which the Judge found he had a viable internal relocation option. Insufficient evidence was adduced before the Judge to support a finding that the appellant would not be able to benefit from a sufficiency protection in all of Albania. The assertion to this effect by the appellant is not arguably made out on the evidence before the Judge.
64. In relation to the question of internal relocation, it is correct to note the Judge recorded relevant provisions of the Immigration Rules and case law in the body of the determination. The Judge identified areas within Albania to which the appellant could arguably relocate and the fact that despite having regular contact with his family on a weekly basis there was no evidence of any ongoing interest being shown in the whereabouts of the appellant by the criminal gang or any other individual or group of individuals, is relevant to the overall conclusion.
65. The Judge noted the test was whether relocation was reasonable in all the circumstances. Although there are certain aspects of the evidence the Judge could have included in the determination, which is already a lengthy and detailed document, it is not a legal error for the Judge not to record finding in relation to each and every aspect of the case advanced before him.
66. In this case I find the Judge clearly considered the evidence with the required degree of anxious scrutiny as a reading of the determination clearly shows. The medical evidence and that of the foster parents was clearly taken into account by the Judge. The subjective fear referred to by the appellant of return to Albania is understandable in relation to his home area where he previously suffered at the hands of the criminal gang who beat him as a result of his third refusal to join them. While such an event may be sufficient to breach article 3 it was not made out that there is any real risk of any future breach in other parts of Albania on the evidence before the Judge. This is an arguably sustainable finding. The appellant's subjective fear was not objectively made out in Albania other than in the appellant's home area.
67. The Judge was aware of the diagnosis of Dr Kumar but clearly found there are psychiatric services available in Albania. It was not made out before the Judge that the appellant's medical presentation was sufficient to engage article 3 ECHR if returned to Albania. Whilst the diagnosis of personality disorder is noted, for which cognitive intervention may be the most appropriate form of assistance, the material before the Judge did not establish that such help would not be available or that there will be a breach of article 3 on return as the appellant currently presents.
68. The test in relation to internal relocation has always been whether it is 'reasonable' in all the circumstances for an appellant to relocate to another part of their home state. The Judge was aware the appellant would not be returned to fend for himself as he has a number of family members in Albania with whom he is in regular contact and other family members whom it was not shown would not be able to provide support and assistance by way of accommodation on return. The finding by the Judge that there is a viable internal relocation option has not been shown to be outside the range of findings available to the Judge.
69. So far as the submission by Mr Draycott concerning the application of Article 4(4) of the Qualification Directive is concerned, the first point to note is the findings by the Judge does not include a finding that the appellant has suffered past persecution. On the basis of the evidence past persecution is not been arguably established before the Judge or it made out that the burden of proving an entitlement to international protection should have passed to the Secretary of State. The position adopted by the Judge that the burden of proving such entitlement lay upon the appellant has not been shown to be tainted by arguable legal error. The finding by the Judge that the appellant had failed to discharge the burden is similarly not been shown to be tainted by arguable legal error.
70. In the alternative, if the burden had lain upon the Secretary of State Article 4 (4) provides that "The fact that an applicant has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated". Good reasons were made out before the Judge namely that the harm previously suffered by the appellant related specifically to an event in his home area when he refused to assist the gang on the third occasion. It was not shown that any real risk of future harm existed outside the appellant's home area. As a viable internal flight option exists there are good reasons to consider that the vast serious harm will not be repeated.
71. The Court of Appeal have recently reminded us that decisions of other judges should not be set aside without good reason. That is why the applicable test is whether the person challenging the decision has establish the existence of legal error material to the decision to dismiss the appeal. As Mr Mills noted in his submissions, it matters not whether another judge would have made this decision but whether the decision made was one reasonably open to the Judge who made it on the basis of the evidence made available when applying the correct legal test. I find that despite Mr Draycott's best endeavours and the usual detail incorporated within the submissions and arguments in support of the appellant's case, it has not been made out that the decision is infected by arguable legal error to the extent that the Upper Tribunal as any basis for interfering with the same. The appellant's case has been submitted taken at its highest if all the submission stand up. As I have found, this is not the case. The Judge undertook the necessary fact sensitive analysis of all relevant issues and no arguable legal error warranting setting aside of the earlier decision has been made out.

Decision

72. There is no material error of law in the Immigration Judge's decision. The determination shall stand.

Anonymity.

73. The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Signed??????????????????.
Judge of the Upper Tribunal Hanson

Dated the 18 January 2018