Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00612/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 December 2016
On 16 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE G A BLACK

Between

miss L S
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Patya (Counsel instructed by Kilby Jones Solicitors)
For the Respondent: Mr S Kotas (Home Office Presenting Officer)

DECISION AND REASONS

1. The appellant whose date of birth is 12 May 1982 is a citizen of Albania. She appeals against the decision of First-tier Tribunal (Judge Devittie) ("FTT") promulgated on 9 October 2016 dismissing her appeal against the respondent's refusal of her asylum and human rights claim. The appellant's claim was that she had been a victim of trafficking in Albania. She was kidnapped and taken to Greece at the age of 17 years and raped and forced into prostitution. She was detained against her will by a man named Isrof and forced to work as a prostitute until 2014. She suffered from health problems which led to her returning to Albania where she used the opportunity to escape. She travelled to the UK on 10 November 2014 and thereafter claimed asylum on 6 January 2015. The appellant further relied on Article 8 on the grounds that she could not return to her family in Albania who had disowned her, she would be at risk of destitution in Albania because of her mental health, lack of support and low-level of education and she was in a committed relationship with a partner in the UK. She was seeking fertility treatment as they wished to start a family, she was financially supported by her partner and she was psychologically vulnerable, having been diagnosed with PSTD.
2. The FTT considered the appellant's claim having regard to the background evidence on the prevalence of trafficking in Albania and with reference to the country guidance case of TD and AD (Trafficked women) CG [2016] UKAIT 92 (IAC), of which the head note is set out at [6] of the decision. The FTT also considered the appellant's claim against the background of a medical report by Dr Helen quoted at [7] of the decision. The FTT then listed features of the appellant's evidence that it found to be unsatisfactory at [8(i) to (iv)]. In summary the FTT identified aspects of the appellant's claim that it considered to be implausible or improbable and which were described as unsatisfactory features of her claim and dismissed the appeal.
Application for Permission to Appeal
3. The appellant asserted in ground 1 that the FTT was wrong to reject the asylum claim on "common sense" and innate plausibility grounds. The FTT failed to follow the guidance of the Court of Appeal in HK [2006] EWCA Civ 1037 which cautioned against the dismissal of an asylum claim on the basis of finding it "inherently unlikely". Further, in rejecting the claim the FTT failed to consider the objective country information that was relevant to the innate plausibility of the claim, and secondly, failed to consider those parts of medical evidence that went to the plausibility of the claim. Alternatively, the decision was inadequately reasoned.
4. In ground 2 the appellant argued that the FTT failed to assess the strength of the appellant's relationship with her partner which was an exceptional feature and failed to give adequate reasons for conclusions as regards proportionality.
Permission to Appeal
5. Permission was granted by First-tier Tribunal Judge Ford on 11 November 2016 in terms that it was arguable that the assessment of credibility did seem to have largely focused on the plausibility of the account to the exclusion of other factors such as consistency and the appellant's mental health problems. It was further arguable that the failure to consider the appellant's mental health issues, her fertility treatment attempts and the British nationality of her partner, and the examination of proportionality may have been inadequate.

Error of Law Hearing
6. At the hearing Ms Patya produced a Note and provided the Tribunal with a copy of the objective material relied on at the hearing before the First-tier Tribunal. Ms Patya relied on the detailed grounds of appeal. The main ground was the FTT's flawed approach to credibility. Ms Patya submitted that the FTT had effectively conducted an assessment of plausibility rather than an assessment of credibility informed by the relevant objective material. The FTT had in effect reproduced the respondent's reasons for refusing the claim and placed weight on those aspects of her claim that it found to be implausible. The FTT made no reference to internal or external consistency and the decision was flawed by failing to follow the principles in HK and Y. The appellant's account was entirely consistent with the background material in Albania and whilst the FTT had set out the head note in TD and AD, there had been no meaningful engagement with the issues.
7. Mr Kotas responded that there was no merit in the argument under Article 8 which the FTT properly considered following Nagre.
8. Mr Kotas argued that the grounds were essentially an elaborate disagreement with the FTT's assessment in a case which it found to be inherently implausible. The FTT was entitled to reach that finding on the evidence given by the appellant. There was nothing perverse or irrational. HK emphasised that the Tribunal should consider evidence in the context of the country from which an applicant came. The FTT was entitled to find the account implausible.
9. Ms Patya responded that the challenge was not a perversity challenge, rather a criticism of the role of the FTT in assessing credibility. The Tribunal's role is inquisitorial and all of the evidence must be assessed as to its internal/external consistency. It was crucial for the FTT to have understood how trafficking works in Albania in order to assess the credibility of the appellant's claim and further have proper regard to the medical evidence.
Decision and Discussion
10. I have decided that there are material errors of law in the decision which shall be set aside.
11. I am satisfied that ground 1 is made out and the FT erred by reaching findings based on an assessment of the plausibility of the appellant's account without proper consideration of the internal and external consistency of her claim. This is contrary to the approach encouraged in HK v SSHD cited above. At [28] the Court of Appeal states:-
"Further, in many asylum cases, some, even most, of the appellant's story may seem inherently unlikely but that does not mean that it is untrue. The ingredients of the story, and the story as a whole, have to be considered against the available country evidence and reliable expert evidence, and other familiar factors, such as consistency with what the appellant has said before, and with other factual evidence (where there is any)."
I also draw attention to paragraph [30] where reference is made to Awala v SSHD [2005] CSOH 73 where at paragraph [24] Lord Brodie said that rejection of a story on grounds of implausibility must be done "on reasonably drawn inferences and not simply on conjecture or speculation". I do not accept the respondent's submission that HK limits the assessment only to an applicant's country or cultural background.
13. Although the FTT set out the head note factors in AM and BM and quoted aspects of the medical report in its decision, I am nevertheless not satisfied that it engaged in any meaningful way with that material. In particular the background material concludes that it is not possible to set out a typical profile of trafficked women from Albania and discusses the issues such as the control exerted by traffickers. The FTT failed to assess the consistency of the appellant's account, both internally and externally. There were no specific aspects of evidence which contradicted the appellant's account and no positive inconsistencies in her account. The reasons given by the FTT are based solely on the FTT's views rather than justified by any reference to other evidence that would inform its assessment and lead on to a consideration made in the round of all aspects of the appeal. The wording used in the decision reflects the narrow approach adopted by the FTT in making its findings of fact and conclusions. For example, at [8(i)], "Common sense seems to dictate that ..." "in my view makes no sense and is palpably false" ... Paragraph [8(ii)] "It is hardly probable that ..." "Her account that she escaped from him in that way simply does not ring true".
In view of my decision that the first ground of appeal is made out, I do not propose to consider further the second ground of appeal as regards Article 8.

Notice of Decision
14. There is a material error of law in the decision and reasons which I set aside.
15. The matter will be remitted to the First-tier Tribunal (excluding Judge Devittie) for hearing afresh at Taylor House on a date and time to be fixed.
16. None of the findings of fact are preserved.

No anonymity direction is made.

Signed Date 13.1.2017

Deputy Upper Tribunal Judge G A Black