Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00404/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 November 2016
On 23 November 2016

Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL

Between

MAKSUT [H]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss A Heller, Counsel, instructed by Barnes Harrild & Dyer
For the Respondent: Miss A Brocklesby-Weller, Home Office Presenting Officer

DECISION AND REASONS
1. In a decision sent on 17 February 2016, First-tier Tribunal (FtT) Judge Miller dismissed the appeal of the appellant, a national of Albania, against a decision made by the respondent on 17 February 2016 refusing his claim for asylum and human rights protection.
2. Despite accepting that the appellant was a minor of Gorani ethnicity a victim of domestic abuse and a victim of modern slavery, the respondent was not satisfied that on return to Albania, once he had turned 18, he would be a risk of persecution or serious harm.
3. The judge came to the same conclusion as the respondent.
4. The grounds set out five points. I will deal with each in turn save for ground 3 (which relates to the issue of Convention reason).
5. The first ground alleges that the statement by the judge at para 25 ("Ill-treatment does not cross the threshold of severity into persecution, even taken cumulatively, unless there are particularly strong and credible elements. The test of persecution is and must be kept at a high and demanding level") is a non-sequitur because "one cannot know whether the FTTJ believes the treatment mooted out to the appellant does, or not cross the threshold". This ground is devoid of merit. In this paragraph the judge was simply summarising the relevant legal principles. She was not purporting to state findings on the appellant's case. They came later and were very clear in stating that the appellant's situation would not engage the persecution threshold.
6. Ground 2 take issue with the judge's statements in paragraph 27 and 28 that she found a repetition of past abuse inflicted on him by his father and two shepherds, Astrit and Guci, unlikely, in view of the absence of any significant evidence. What sort of evidence, the grounds ask, should the FtT Judge have expected the appellant to be able to produce "in circumstances where he is not in contact with anyone in Albania".
7. I find this ground equally unmeritorious. In paras 27-28 the judge very properly considered whether the appellant's past persecution at the hands of his father and the two shepherds was a serious indication that he would suffer a repetition. In formulating the question in this way the judge was very properly following the approach to past persecution enjoined by Article 4(4) of the Qualification Directive. Further, in relying on an absence of significant evidence she was not confining herself to that which he might be able to produce but to the evidence more generally. In considering whether there was a real risk of repetition the judge attached very considerable weight to the fact that the appellant on return would be 18, and so much less vulnerable to assault than when he was 15. The judge's findings on these paragraphs are entirely within the range of reasonable responses.
8. Turning to ground 4, which attacks the judge's assessment of sufficiency of protection, in my judgement it comes to no more than a disagreement with the judge's findings of fact. It is true, as the skeleton argument prepared for the FtT hearing and the grounds before me state, that the background materials include sources which identify ineffective police investigations into domestic violence complaints, effective impunity for the perpetrators and corruption in the form of complicity between local officials and police with traffickers.
9. However, the task before the judge was to assess and evaluate the background evidence as a whole, including sources taking a more sanguine view of the protective abilities of the Albania authorities. This included sources relied upon by the respondent in her reasons for refusal letter, including the 2015 US State Department Trafficking in Persons Report which identified, inter alia, that the Albanian government had put in place several anti-trafficking measures, that there was an increased rate or persecution of trafficking offences, an increase in funding for the assistance of victims, including a rise in child protection units and legal aid.
10. It was also integral to the task of the judge to ensure that his assessment attached weight to any relevant Tribunal country guidance. Although the judge only made reference to one such case, AM and BM (Trafficked women) Albania CG [2010] UKUT 80 (IAC), Miss Heller was unable to point me to any current country guidance case that considered that in Albania there was a general insufficiency of protection for victims of trafficking or domestic abuse. Indeed, as Miss Brocklesby-Weller noted, the more recent CG case of TD & AD (Trafficked women) CG [2016] UKUT 00092 expressly states in its head note that against victims of trafficking "[t]here is in general a Horvath-standard sufficiency of protection ...". Clearly in reaching that view the Upper Tribunal panel in that case took into account the evidence of Mr Chenincer on the extent of police corruption.
11. This section of the guidance adds that this protection "will not be effective in every case" and that an applicant's particular circumstances must be considered" (the focus in TD & AD being women) but individual consideration is decidedly what the FtT judge also gave to the appellant's case, noting, inter alia, the respondent's observation that there were nine Gorani populated towns where the appellant could approach the police. It was entirely open to the judge in this regard to attach very significant weight to the fact that the appellant, as a person seeking to return when no longer a minor, would be far less likely to be vulnerable to attack from his father and the two shepherds; to the fact that it had not been established that he would be pursued by the father and the two shepherds if he relocated; and to the fact that even if he did have to relocate, he would have available protection from the authorities.
12. Miss Heller submitted that the judge should have taken into account that even though the appellant would only be returned when he was 18, there was no bright line between 17 and 18 and that the appellant should still be considered a young person who had been a victim of slavery. However, it is clear first of all that in assessing his evidence the judge took into account his status as a minor (see para 26) and that, in any event, even if he would still require assistance, there were shelters available. In light of the background evidence considered as a whole, these findings were ones the judge was reasonably entitled to come to.
13. For the above reasons I conclude that the FtT judge did not materially err in law and her decision to dismiss the appellant's appeal is upheld.
No anonymity direction is made.

Signed Date

Dr H H Storey
Judge of the Upper Tribunal