AA/04361/2013
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The decision
IAC-BFD- ML
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04361/2013
THE IMMIGRATION ACTS
Heard at Bradford
Date Sent
On 18th November 2013
On 23rd December 2013
Prepared 20th December 2013
Before
upper tribunal JUDGE roberts
UPPER tribunal JUDGE CLIVE LANE
Between
AM
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr J Collins, of Counsel
For the Respondent: Mr M Diwnycz, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The Appellant AM is a citizen of Albania. She is the mother of three children who are dependant upon her appeal.
2. She arrived in the United Kingdom clandestinely on 18th April 2012 and claimed asylum on 23rd April 2012.
Background to the Appeal
3. The Appellant seeks permission to appeal the decision of a First-tier Tribunal (Judge Batiste) who in a determination dated 13th August 2013, dismissed her appeal against the Respondent‘s decision made on 21st April 2013, to refuse to grant asylum under paragraph 336 of HC 395 and to remove her by way of directions under paragraphs 8 to 10 of Schedule 2 of the Immigration Act 1971.
4. The factual basis of the Appellant’s claim as summarised by Judge Batiste is as follows:
“The appellant’s claim is based upon her ill-treatment by her husband. The appellant is from Elbasan in Albania. She is an Orthodox Christian. She married Muhamnet Mancelli, a Muslim, on 31st January 1998. The marriage was arranged through the families. The three dependents are their children together. She was educated for 7 years at primary school.
After the marriage they lived very briefly together at his family home in Dvoran in Korca. His parents were small scale farmers. In April 1998 the appellant and her husband moved to Greece. They travelled clandestinely and went to find work and a better life. They lived in Kozan in Greece. Her husband worked as a wood cutter and she worked picking tobacco leaves in order to survive. In 1998 she applied for leave to remain in Greece but the application was refused because she did not pay the fee.
Her relationship with her husband was extremely difficult and was possessive and would not let her go out. They would argue. He was violent towards her from the beginning of the marriage. He burnt her with fire on her right arm and buttocks about 7 years ago. She was not allowed to remain in contact with her family in Albania. He would hit her in front of the children and threatened to kill her if she threatened to leave him.
In 2007 her husband brought a man to the house and told her to sleep with him. She refused and her husband hit her so she did sleep with him. From then on her (sic) regularly brought men to the house and made her sleep with them. This happened up to 3-4 times a day or every other day for 5 years. It is the clear implication of her account that he forced her into prostitution and took the proceeds of this for himself.
From the birth of her youngest child, the husband also used violence against the children. The Appellant thought about killing herself but changed her mind for the sake of her children. On 13th April 2012 the husband grabbed her by the throat and strangled her to such an extent that she urinated herself.
On 15th April 2012 she took a taxi from her home to the address of her uncle to get help. Her children were at home as he had hit her son and did not allow him to go to school for 2 weeks. Her husband was out and had forgotten to lock the door. She was taken to the village where her maternal Uncle lived in Greece. He paid for the taxi and when he heard what had taken place he made arrangements for the appellant and her children to leave Greece in a lorry. She left Greece on 15th April 2012 and arrived in the United Kingdom 3 days later.
She claimed to be fearful that if returned to Albania her husband would seek her out and kill her. In addition she claims that she would not be able to seek the support of her family as they will believe her dishonourable as she believes her husband will have let it be known that she was a prostitute voluntarily. She also claims that she is unable to support herself and her family if returned to Albania.
In addition it is claimed that the decision would cause a breach of her Article 8 right to a family and private life”.
The Decision of the First-tier Tribunal
5. The Appellant’s appeal came before the First-tier Tribunal on 12th August 2013. In the determination promulgated on 13th August 2013, the First-tier Tribunal Judge having considered the evidence including an expert’s report and accepting the factual basis of the Appellant’s claim, nevertheless concluded she would not be at risk if returned to Albania. He found there would be no real risk from her husband; or her family; and in any event she had never sought to avail herself of the protection of the Albanian authorities.
6. Permission to appeal that decision was granted by First-tier Tribunal Judge Gibb. Thus the matter came before us.
Proceedings before the Upper Tribunal
7. Mr Collins on behalf of the Appellant followed the lines of the grounds seeking permission. He emphasised that the Judge had erred in his assessment of the risk from the Appellant’s husband and her family in Albania. The Judge had failed to factor in the very real element of shame the Appellant would meet because of her forced prostitution.
8. He referred us to the Respondent’s operational guidance notes at pages 20 and 21 of the Appellant’s bundle. He submitted that internal relocation for this Appellant was not a viable option. She came from Elbasan a city with a population of only 15,000. The expert’s report shows that the Appellant could not realistically relocate elsewhere; if she went to another town she would be easily located by her husband and her family. This is because in most towns people from one district congregate together. Thus word would filter back to Elbasan.
9. Mr Collins further advanced that the Appellant knows no-one in Tirana. In any event she would have to register herself and her children under the civil registration system. The civil register is kept in the local municipality building and is easily accessed by members of the public.
10. The Judge had failed to take account of these matters and therefore cumulatively these matters amounted to an error which rendered the decision unsafe and unsustainable.
11. Mr Diwnycz on behalf of the Respondent referred us to the Rule 42 notice which had been served. He submitted that the Judge had looked at all the evidence. There was no suggestion that he had not. He had reached conclusions on the evidence, as he was entitled to do. Those conclusions were open to him on the available evidence and what was put before us amounted to no more than a disagreement with them.
12. So far as sidelining the expert’s report is concerned, the Judge had made reference to it throughout his reasoned findings and those references can be found in paragraphs 40 and 42. The Judge had assessed and made an evaluation of that report in the context of the findings made.
13. The Judge had referred to DM (Sufficiency of Protection –PSG – Women – Domestic Violence) Albania CG [2004] UKIAT 00059 and the operational guidance notes as well as the other background documentation. The findings were sustainable and the determination should stand.
Discussion and Conclusions
14. The principle ground advanced on behalf of the Appellant is the Judge erred in reaching the conclusions he did on risk on return to Albania. The error occurred it is said, through the Judge speculating on the Appellant’s husband’s behaviour; giving inappropriate reduced weight to the expert’s report and not appropriately assessing whether family support was available such as to afford sufficiency of protection for the Appellant and her children.
15. The Appellant’s core claim is that she would be at real risk of ill-treatment amounting to persecution from her husband because of his past behaviour. It was advanced on behalf of the Appellant at the hearing before Judge Batiste, that if she were returned to Albania, her case should be considered on the basis of her having to be returned to her husband’s parents’ house. This is the last place where she lived before leaving Albania. The Judge considered that proposition but rejected it. Based on his findings he reported at paragraph 32 of his determination;
“The first issue is whether the appellant is now at real risk of ill-treatment amounting to persecution from her husband… Up until their marriage on 31st January 1998 she had resided her entire life with her parents in Elbasan. It was only from after this wedding until they went to Greece in April 1998 (so for about 2 to 3 months) that she resided with her husband’s family. I am therefore quite satisfied that on any sensible interpretation of her account her home area would be properly regarded as being to her parents home area of Elbasan”.
16. The Judge went further and considered the attitude of the Appellant’s family. The claim before him was that the Appellant’s family would want nothing to do with her. Her shame would be their shame. He rejected that. He took into account that there was no evidence from the Appellant that her family would not support her. What the evidence did show was the Appellant has parents, paternal uncles and aunts, all of whom reside in Albania. He also went on to take into account that she has an uncle in Greece who had not disowned her; but instead had taken her in and arranged for her transport to the UK. When this is looked at the context of questions 201 and 202 wherein the Appellant replies that if she had not been able to locate her uncle in Greece she would have returned to Albania. In her response to question 202 she replies that she would be forced to stay with her relatives. She does not say that her relatives would not have her.
17. Considering this evidence we are satisfied the Judge was entitled to reject the claim that the Appellant’s family would have nothing to do with her.
18. So far as the expert’s report is concerned, we note that the Judge made clear findings on that report. In paragraphs 40 and 42 of his determination he quotes from it indicating that he has considered it fully. We see nothing to show us that his observation at paragraph 37 detracts from the consideration given to the report as a whole.
19. The Judge used as his starting point the authority of DM and whilst it was urged upon him and upon us that this case is now out of date, he addressed that by referring to the US State Department Report and the Respondent’s operational guidance note both of which are of more recent date. The Judge did draw upon the fact that DM specifies that domestic violence is prosecuted under general assault laws in Albania and this point was reinforced by the Appellant’s own expert. The Judge considered all those matters and came to conclusions he was entitled to reach on the evidence before him.
20. For the foregoing reasons we are satisfied that the decision of the First-tier Tribunal contains no error of law justifying setting it aside.
DECISION
21. The making of the decision of the First-tier Tribunal did not involve an error on a point of law. The appeal is dismissed.
Direction regarding anonymity – rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005
The appellant is granted anonymity throughout these proceedings, unless and until the Tribunal directs otherwise. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of Court proceedings.
Signature Dated
Judge of the Upper Tribunal
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04361/2013
THE IMMIGRATION ACTS
Heard at Bradford
Date Sent
On 18th November 2013
On 23rd December 2013
Prepared 20th December 2013
Before
upper tribunal JUDGE roberts
UPPER tribunal JUDGE CLIVE LANE
Between
AM
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr J Collins, of Counsel
For the Respondent: Mr M Diwnycz, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The Appellant AM is a citizen of Albania. She is the mother of three children who are dependant upon her appeal.
2. She arrived in the United Kingdom clandestinely on 18th April 2012 and claimed asylum on 23rd April 2012.
Background to the Appeal
3. The Appellant seeks permission to appeal the decision of a First-tier Tribunal (Judge Batiste) who in a determination dated 13th August 2013, dismissed her appeal against the Respondent‘s decision made on 21st April 2013, to refuse to grant asylum under paragraph 336 of HC 395 and to remove her by way of directions under paragraphs 8 to 10 of Schedule 2 of the Immigration Act 1971.
4. The factual basis of the Appellant’s claim as summarised by Judge Batiste is as follows:
“The appellant’s claim is based upon her ill-treatment by her husband. The appellant is from Elbasan in Albania. She is an Orthodox Christian. She married Muhamnet Mancelli, a Muslim, on 31st January 1998. The marriage was arranged through the families. The three dependents are their children together. She was educated for 7 years at primary school.
After the marriage they lived very briefly together at his family home in Dvoran in Korca. His parents were small scale farmers. In April 1998 the appellant and her husband moved to Greece. They travelled clandestinely and went to find work and a better life. They lived in Kozan in Greece. Her husband worked as a wood cutter and she worked picking tobacco leaves in order to survive. In 1998 she applied for leave to remain in Greece but the application was refused because she did not pay the fee.
Her relationship with her husband was extremely difficult and was possessive and would not let her go out. They would argue. He was violent towards her from the beginning of the marriage. He burnt her with fire on her right arm and buttocks about 7 years ago. She was not allowed to remain in contact with her family in Albania. He would hit her in front of the children and threatened to kill her if she threatened to leave him.
In 2007 her husband brought a man to the house and told her to sleep with him. She refused and her husband hit her so she did sleep with him. From then on her (sic) regularly brought men to the house and made her sleep with them. This happened up to 3-4 times a day or every other day for 5 years. It is the clear implication of her account that he forced her into prostitution and took the proceeds of this for himself.
From the birth of her youngest child, the husband also used violence against the children. The Appellant thought about killing herself but changed her mind for the sake of her children. On 13th April 2012 the husband grabbed her by the throat and strangled her to such an extent that she urinated herself.
On 15th April 2012 she took a taxi from her home to the address of her uncle to get help. Her children were at home as he had hit her son and did not allow him to go to school for 2 weeks. Her husband was out and had forgotten to lock the door. She was taken to the village where her maternal Uncle lived in Greece. He paid for the taxi and when he heard what had taken place he made arrangements for the appellant and her children to leave Greece in a lorry. She left Greece on 15th April 2012 and arrived in the United Kingdom 3 days later.
She claimed to be fearful that if returned to Albania her husband would seek her out and kill her. In addition she claims that she would not be able to seek the support of her family as they will believe her dishonourable as she believes her husband will have let it be known that she was a prostitute voluntarily. She also claims that she is unable to support herself and her family if returned to Albania.
In addition it is claimed that the decision would cause a breach of her Article 8 right to a family and private life”.
The Decision of the First-tier Tribunal
5. The Appellant’s appeal came before the First-tier Tribunal on 12th August 2013. In the determination promulgated on 13th August 2013, the First-tier Tribunal Judge having considered the evidence including an expert’s report and accepting the factual basis of the Appellant’s claim, nevertheless concluded she would not be at risk if returned to Albania. He found there would be no real risk from her husband; or her family; and in any event she had never sought to avail herself of the protection of the Albanian authorities.
6. Permission to appeal that decision was granted by First-tier Tribunal Judge Gibb. Thus the matter came before us.
Proceedings before the Upper Tribunal
7. Mr Collins on behalf of the Appellant followed the lines of the grounds seeking permission. He emphasised that the Judge had erred in his assessment of the risk from the Appellant’s husband and her family in Albania. The Judge had failed to factor in the very real element of shame the Appellant would meet because of her forced prostitution.
8. He referred us to the Respondent’s operational guidance notes at pages 20 and 21 of the Appellant’s bundle. He submitted that internal relocation for this Appellant was not a viable option. She came from Elbasan a city with a population of only 15,000. The expert’s report shows that the Appellant could not realistically relocate elsewhere; if she went to another town she would be easily located by her husband and her family. This is because in most towns people from one district congregate together. Thus word would filter back to Elbasan.
9. Mr Collins further advanced that the Appellant knows no-one in Tirana. In any event she would have to register herself and her children under the civil registration system. The civil register is kept in the local municipality building and is easily accessed by members of the public.
10. The Judge had failed to take account of these matters and therefore cumulatively these matters amounted to an error which rendered the decision unsafe and unsustainable.
11. Mr Diwnycz on behalf of the Respondent referred us to the Rule 42 notice which had been served. He submitted that the Judge had looked at all the evidence. There was no suggestion that he had not. He had reached conclusions on the evidence, as he was entitled to do. Those conclusions were open to him on the available evidence and what was put before us amounted to no more than a disagreement with them.
12. So far as sidelining the expert’s report is concerned, the Judge had made reference to it throughout his reasoned findings and those references can be found in paragraphs 40 and 42. The Judge had assessed and made an evaluation of that report in the context of the findings made.
13. The Judge had referred to DM (Sufficiency of Protection –PSG – Women – Domestic Violence) Albania CG [2004] UKIAT 00059 and the operational guidance notes as well as the other background documentation. The findings were sustainable and the determination should stand.
Discussion and Conclusions
14. The principle ground advanced on behalf of the Appellant is the Judge erred in reaching the conclusions he did on risk on return to Albania. The error occurred it is said, through the Judge speculating on the Appellant’s husband’s behaviour; giving inappropriate reduced weight to the expert’s report and not appropriately assessing whether family support was available such as to afford sufficiency of protection for the Appellant and her children.
15. The Appellant’s core claim is that she would be at real risk of ill-treatment amounting to persecution from her husband because of his past behaviour. It was advanced on behalf of the Appellant at the hearing before Judge Batiste, that if she were returned to Albania, her case should be considered on the basis of her having to be returned to her husband’s parents’ house. This is the last place where she lived before leaving Albania. The Judge considered that proposition but rejected it. Based on his findings he reported at paragraph 32 of his determination;
“The first issue is whether the appellant is now at real risk of ill-treatment amounting to persecution from her husband… Up until their marriage on 31st January 1998 she had resided her entire life with her parents in Elbasan. It was only from after this wedding until they went to Greece in April 1998 (so for about 2 to 3 months) that she resided with her husband’s family. I am therefore quite satisfied that on any sensible interpretation of her account her home area would be properly regarded as being to her parents home area of Elbasan”.
16. The Judge went further and considered the attitude of the Appellant’s family. The claim before him was that the Appellant’s family would want nothing to do with her. Her shame would be their shame. He rejected that. He took into account that there was no evidence from the Appellant that her family would not support her. What the evidence did show was the Appellant has parents, paternal uncles and aunts, all of whom reside in Albania. He also went on to take into account that she has an uncle in Greece who had not disowned her; but instead had taken her in and arranged for her transport to the UK. When this is looked at the context of questions 201 and 202 wherein the Appellant replies that if she had not been able to locate her uncle in Greece she would have returned to Albania. In her response to question 202 she replies that she would be forced to stay with her relatives. She does not say that her relatives would not have her.
17. Considering this evidence we are satisfied the Judge was entitled to reject the claim that the Appellant’s family would have nothing to do with her.
18. So far as the expert’s report is concerned, we note that the Judge made clear findings on that report. In paragraphs 40 and 42 of his determination he quotes from it indicating that he has considered it fully. We see nothing to show us that his observation at paragraph 37 detracts from the consideration given to the report as a whole.
19. The Judge used as his starting point the authority of DM and whilst it was urged upon him and upon us that this case is now out of date, he addressed that by referring to the US State Department Report and the Respondent’s operational guidance note both of which are of more recent date. The Judge did draw upon the fact that DM specifies that domestic violence is prosecuted under general assault laws in Albania and this point was reinforced by the Appellant’s own expert. The Judge considered all those matters and came to conclusions he was entitled to reach on the evidence before him.
20. For the foregoing reasons we are satisfied that the decision of the First-tier Tribunal contains no error of law justifying setting it aside.
DECISION
21. The making of the decision of the First-tier Tribunal did not involve an error on a point of law. The appeal is dismissed.
Direction regarding anonymity – rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005
The appellant is granted anonymity throughout these proceedings, unless and until the Tribunal directs otherwise. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of Court proceedings.
Signature Dated
Judge of the Upper Tribunal