Tribunal decisions

The decision

IAC-FH-NL-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00340/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28th November 2016
On 20th December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

s p
(ANONYMITY DIRECTION made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr P Bonavero, Counsel instructed by Kilby Jones Solicitors LLP
For the Respondent: Mr N Bramble, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a citizen of Albania born on 13th March 1989. The Appellant's immigration history is set out in the decision letter. On 10th February 2016 the Secretary of State refused to grant asylum and humanitarian protection to the Appellant. The Appellant's claim for asylum was based upon a fear that if returned to Albania she would face mistreatment as a victim of trafficking in Kosovo and therefore as a member of a particular social group, namely trafficked women from Albania would be at risk. The Appellant appealed the decision and the appeal came before Judge of the First-tier Tribunal Moran sitting at Hatton Cross on 2nd August 2016. In a Decision and Reasons promulgated on 17th August 2016 the Appellant's appeal was dismissed on asylum and human rights grounds and the Appellant was found not to be in need of humanitarian protection. Grounds of Appeal were lodged to the Upper Tribunal and on 9th September 2016 First-tier Tribunal Judge Fisher refused permission to appeal.
2. Renewed Grounds of Appeal were lodged on 21st September 2016. On 14th October 2016 Upper Tribunal Judge Reeds granted permission to appeal. Those grounds are of importance. Judge Reeds noted that the judge accepted the core of the Appellant's account that she was a victim of human trafficking and how that had occurred. Whilst the judge sought to apply the principles of TD and AD (trafficked women) CG [2016] UKUT 00092 when considering return, it was arguable as the grounds contended at paragraphs 5 to 11 that in the light of the Appellant's particular vulnerabilities, and the findings made, that when taken together they placed her within the category of those who may be unable to return without undue hardship including her circumstances after leaving any state-run shelters.
3. The Secretary of State responded to the Grounds of Appeal under Rule 24 on 16th November 2016. It is on that basis that the appeal comes before me firstly to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appears by her instructed Counsel, Mr Bonavero. The Respondent appears by her Home Office Presenting Officer, Mr Bramble.
Submissions/Discussion
4. Mr Bramble adopts a most helpful and pragmatic approach to this appeal. He indicates that the starting point is the Rule 24 response and that the judge has reviewed the evidence and consequently the finding is one of disagreement and not of an error. He submits that it is considered by the Secretary of State that perhaps the judge having looked at the Appellant's mental health has just about done enough and that he has gone on to look at the risk factors that could apply to the Appellant. However, although he adopts this approach so far as the Appellant's mental health is concerned he acknowledges that the judge appears to have ignored and taken an improper approach to that of the consideration of the issues relating to her illegitimate child. He notes that it is necessary to look at the risk factors in TD and AD set out at paragraph 12 of the judge's decision. He wonders why some are highlighted in bold print and others not. He is prepared to concede that at paragraph 27 there is a material error of law in the judge's decision if only on the basis that she has failed to consider the situation regarding the illegitimate child. However he notes that at paragraph 24 it is also necessary to consider the protection the state may be to offer but he accepts and concede that the finding made therein is mere speculation and that the judge has failed to consider the position of a lone female and her circumstances and how she would cope on return to Albania.
5. Mr Bonavero is most grateful, in his opening address, to the pragmatic approach of Mr Bramble on behalf of the Secretary of State. He effectively endorses all Mr Bramble has to say. He notes the risk factors that have to be considered in TD as set out at paragraph 22 and that the judge has noted that each one applies to the Appellant and then having made such a finding the judge has failed to go on to find that the Appellant needs protection. The only reason that he considers that the judge has given is to be found at paragraph 25 and that the judge has not been looking at the basic principle of the country guidance case but of the specific facts of that case and that in itself is a flawed approach. He asked me to find that there is not only a material error of law but to remake the decision forthwith allowing the appeal.
The Law
6. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
7. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Error of Law
8. Mr Bramble has considerably assisted me in this matter. I start with the second aspect, namely the requirement to give due consideration to the position that the Appellant would find herself in on returning with an illegitimate child. The judge has very helpfully highlighted the whole of the head note of the authority at paragraph 12 of her decision. What however Judge Moran has not done is to highlight the paragraph relating to the position that the Appellant would find herself in as being a returned trafficked woman with an illegitimate child. It is noted in the head note that whilst much of Albanian society is governed by a strict code of honour that the Appellant might have difficulty in re-integrating into her home area and could be forced to abandon the child. The head note at paragraph (h) of TD again is not highlighted and so far as the presence of an illegitimate child is concerned, in fact the judge fails to acknowledge the position of the illegitimate child as is shown clearly at paragraph 27. In such instances there has to be a material error of law in the decision of the First-tier Tribunal Judge.
9. I turn briefly to the approach adopted by the judge with regard to the Appellant's mental health. Whilst that is highlighted in the darkened paragraphs of the head note from paragraph 12, particularly so far as what support networks are available, it is arguable and sustainable that the judge has failed to give due and proper consideration to the positions regarding the Appellant's mental health and whilst accepting that paragraph 22 refers to this and noting that the Appellant does not have the severity of mental health problems as either the Appellants in TD, the only basis upon which the judge has come to the findings that she has done are to be found at paragraph 24 where the judge erred in finding that identical facilities could be available to the Appellant to those that were found in TD.
10. Further I agree with the submission made by Mr Bonavero that what the judge has failed to do is to apply TD on the facts of this case and has very much equated the Appellant as if she were in the position of the Appellant in the country guidance case and that is an inappropriate approach to adopt. For such reasons I find that there are material errors of law particularly with regard to the consideration of the illegitimate child and I set aside the decision of the First-tier Tribunal Judge.
Re-making of the Decision
11. Both Mr Bramble and Mr Bonavero urged me to go on having reached such conclusion to address the issue today rather than to go back and remit the matter to the First-tier Tribunal. That I agree is the correct approach. The Appellant is of fragile mental health albeit that this consideration is set out within the First-tier Judge's decision, particularly at paragraph 22(3). That has to be looked at alongside the position that she would be returned as a person with, as the judge has already found, "a mental health problem worthy of recognition" along with an illegitimate child. When all those issues are considered alongside the helpful guidance given as to the principles to be applied in country guidance cases set out in AM and BM I am satisfied that this is an Appellant who for all those reasons falls fairly and squarely within the head note as being an Appellant who would be at risk on return for the reasons set out in that head note. In such circumstances I re-make the decision allowing the Appellant's appeal on asylum grounds and pursuant to Articles 2 and 3 of the European Convention of Human Rights.

Decision
12. Having found that the First-tier Tribunal Judge erred in law I set aside that decision and I re-make the decision allowing the Appellant's appeal on asylum and human rights grounds.
13. The Appellant was granted anonymity by the First-tier Tribunal Judge. No application is made to vary that order and the Appellant's anonymity direction is maintained.
Fee Award
14. No application is made for a fee award and none is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris