Tribunal decisions

The decision

IAC-AH-dh-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06160/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4th August 2016
On 6th September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE WOODCRAFT

Between

Mr ramazan Morina
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M. Trevelyan of Counsel
For the Respondent: Mr I. Jarvis, Home Office Presenting Officer

DECISION AND REASONS
The Appellant
1. The Appellant is a citizen of Albania born on 17th January 1997. He appeals against a decision of First-tier Tribunal Judge Parkes sitting at Sheldon Court on 7th March 2016 who dismissed the Appellant's appeal against a decision of the Respondent dated 11th August 2014. That decision was to refuse the Appellant's application for asylum.
2. The hearing before Judge Parkes was itself a rehearing as a previous First-tier Tribunal decision in this case had been set aside and the matter remitted to the First-tier Tribunal for rehearing on all matters with no findings preserved. When the matter came before Judge Parkes on 7th March the Appellant did not give evidence and the case proceeded by way of submissions only. The Judge summarised the Appellant's claim as follows:
"Having travelled overland for three months [the Appellant] arrived in the United Kingdom in November 2013 and claimed asylum? In summary the Appellant was told by his mother that two of his cousins had stabbed a taxi driver in a dispute over the fare. He did not know if the police had been involved and had himself been threatened by the driver's family. The Appellant's cousins and all other male relatives over the age of 16 including his father left Albania. The Appellant did not remain indoors when in Albania and in June 2013 sustained injuries in a grenade attack whilst tending animals about twenty minutes from his home, he was kept in hospital for two weeks. The Appellant also said in interview that he had remained in hiding until he left."
3. The Judge also summarised the contents of the refusal letter. The Respondent did not consider the Appellant's account indicated a high level of notoriety about the initial killing of the taxi driver. As no members of the Appellant's family were killed and he knew no details about the other family there was no reason to believe that the Albanian police would be unwilling to assist the Appellant. There was some doubt about the grenade attack as the Appellant had said he was in hiding and there was no evidence that the other family had in fact carried it out. The Appellant had been 16 at the time of the first killing and his explanation for not leaving Albania (that he did not look his age and was waiting for his mother to make arrangements) was not accepted. In any event there was no evidence to suggest that the other family had any reach or influence, the Appellant could relocate within Albania and protection would be available.
The Decision at First Instance
4. At paragraphs 24 to 41 the Judge discussed the evidence and set out his findings. He noted that although there were said to be discrepancies in the Appellant's account these were not taken by the Respondent to indicate that the fundamental core of the Appellant's account was rejected. The Appellant had said that he had been 15 and therefore not in danger but also said he was over 16 but did not look that age. There was confusion in the account about whether the Appellant was in hiding after his father had left Albania or only after the grenade attack. There were some inconsistencies in the report relating to the Appellant's injuries. There were inconsistencies about the contact the Appellant had had with his mother and it was not clear why there had been no further contact with her or why the Appellant's representatives had not been in contact with her.
5. The Appellant did not see who threw the grenade but assumed that it was the other family, the [C]. He was alone tending sheep when this happened and lost consciousness. If that were the case it was difficult to see why if the aim of the attack was to avenge a blood feud the Appellant was not killed when powerless to resist. The failure by the attackers to do so could suggest in the Judge's view that there was significantly less enthusiasm to prosecute this vendetta than might have been expected. The police report obtained by the Appellant's mother did not name the [C] family but their willingness to provide a report suggested that they took the Appellant's situation seriously. The absence of the opposing family's name suggested a doubt on the part of the Appellant's mother about the event. I assume from that that the Judge means that the police report which would be based on the information given by the mother did not contain the name of the [C] family. Therefore the Appellant's mother did not suspect that the [C] family were behind the grenade attack.
6. The Respondent had not seriously contested the Appellant's claim that his cousins killed a taxi driver which led to a blood feud and that all the other male members of the family had left Albania and a grenade had been thrown at the Appellant. Thus the real issue was whether the Appellant could return to live safely in Albania. There was an almost complete absence of any information about the [C] family. Nothing else was known about them apart from the fact that one of the [C] members of the family was a taxi driver now deceased. There was nothing to show they were a family of any size or suggest they had any connections or were able to exercise influence in any other part of Albania. The lack of intention to pursue the blood feud might be indicated by their not finishing off the attack on the Appellant when he lay unconscious.
7. The Judge had before him a report from Dr Young most of which consisted of background information about Albania rather than material directly germane to the Appellant's case. Dr Young had said that "everyone knows everyone" based on the networks of kin and neighbours. As the Judge pointed out in paragraph 32 of his determination, if this was correct then anyone the subject of a blood feud would simply be entitled to refugee status as of right. Similarly the leading Upper Tribunal authority on blood feuds EH [2012] UKUT 00348 would be rather different in its guidance which was that there were circumstances in which a person could return to Albania and be expected to relocate. The Judge noted at paragraph 33 that the inability of Dr Young to give any information about the [C] family demonstrated that information was not necessarily that easy to come by. With effectively no information at all about the [C] family it was wholly speculative to suggest that the family of a taxi driver when nothing else was known about them would have the reach, power or influence to pursue the Appellant elsewhere in Albania.
8. If returned to Albania the Appellant would have no need to live a closed existence and would be in a position to access the usual services and facilities of the state. There was no evidence to show that the killing of the taxi driver generated publicity outside the Appellant's area as at the time or that it continued to do so. Certain documents relied upon by the Appellant did not take the case any further forward even if they were reliable. The police report only confirmed an explosion, the hospital report confirmed injuries which were not entirely consistent with other evidence but neither had been contested by the Respondent.
9. At paragraph 40 the Judge dealt with the Appellant's claim in relation to mental health. He wrote:
"I accept that this is a cause for concern and this is amply supported by the report of Dr Thomas. The suggestion is that [the Appellant] fears return to Albania and that alone could exacerbate his condition. However there is no evidence to show that facilities are not available to the Appellant in Albania and I have found that he would not be living a closed existence and would be able to access them. It may be that the Appellant's return to Albania would have to be carefully managed but there is no evidence to show that that could not be achieved. His mother lives in Albania and there has been contact with her in the past and there is no reason to believe that she cannot be contacted again or would be unable herself to relocate and support the Appellant. The Appellant has been in the UK for a relatively short time. He still has his mother in Albania who can be contacted and who can provide support. The Appellant cannot meet the requirements of the Immigration Rules and it has not been shown that he could not reintegrate into society there or that he would be required to live a closed existence or be unable to access the usual services. His mental health is not such that he could succeed under Article 8 when he does not qualify under Article 3 on that basis. There is nothing in the Appellant's case that would justify granting leave under Article 8 outside the Rules".
The Onward Appeal
10. The Appellant appealed this decision in lengthy grounds settled by Counsel who appeared at first instance and before me. In relation to the grenade attack the grounds reiterated the Appellant's evidence that he had been injured and pretended to be dead so that his attackers would leave him alone. The Judge had given no reason for finding that the Appellant's assailants would not have concluded that he was dead finding instead that the Appellant's survival damaged his claim. The Judge had inadequately assessed the expert evidence. He had departed from Dr Young's conclusions as to the Appellant's risk on return which constituted an error of law unless cogent reasons were given for rejecting that evidence.
11. The Judge was also criticised for the way he dealt with Dr Thomas' report which had concluded that even if suitable psychiatric support services were available in Albania the Appellant was likely to be far too psychiatrically unwell and much too frightened and traumatised to access them. Dr Thomas had recommended that the most urgent and initial treatment need for the Appellant was to be able to remain securely in the United Kingdom without fear of return to Albania. The Judge had materially erred in failing to properly consider the actual impact of removal upon the Appellant particularly given that facilities on return would not be accessible.
12. The application for permission to appeal came on the papers before First-tier Tribunal Judge Pullig on 22nd April 2016. In refusing permission to appeal he found it was not the case that Judge Parkes had only made passing reference to the grenade attack. Rather the Judge had considered that in the context of blood feuds. Secondly in relation to the experts it was clear that Dr Young had made a generalised statement albeit referring to the Appellant. The Judge did not so much depart from Dr Young's evidence as alleged but clearly viewed it in the context of EH as he was bound to do. The Judge's consideration of Dr Thomas' report was not cursory. The Judge did not dispute Dr Thomas' opinion but on the evidence and regarding contact with the Appellant's mother and the lack of evidence to show that facilities were not available the Judge reached an entirely sustainable conclusion.
13. Following the refusal of permission by Judge Pullig the Appellant renewed his application for permission to appeal to the Upper Tribunal largely repeating the earlier grounds of appeal. The renewed application came before Upper Tribunal Judge Frances on 13th June 2016. In a very brief decision she stated: "It is arguable that the Judge erred in law in his conclusion that the Appellant could internally relocate in light of the expert evidence. The grounds are arguable".
14. The Respondent replied to the grant of permission by a letter dated 19th July 2016 submitting that Judge Parkes had directed himself appropriately. He had adequately considered the medical reports and gave reasons for the findings made. He was entitled to find that the Appellant could internally relocate in Albania in the light of the evidence.
15. On 1st August 2016 the Appellant's solicitors wrote in to the Tribunal with a skeleton argument settled by Counsel dated 13th July 2016 in support of the argument that te First Tier decision should be set aside. It followed the grounds of onward appeal submitting that in dealing with the grenade attack incident the Judge had applied too high a standard of proof and did not make a rounded assessment of the Appellant's case. The Judge had treated Dr Young's evidence with undue scepticism. It was an unfairly simplistic analysis of the position to say as the Judge had that if Dr Young was correct when she said that "literally everyone knows everyone" then anyone the subject of a blood feud would simply be entitled to refugee status as of right. In EH a range of factors were identified beyond simply whether an individual was in fact the subject of a blood feud. The Judge had conflated those factors into a single consideration which had then led him to find that Dr Young's evidence was undermined. This error led the Judge to attach little weight to key elements of Dr Young's evidence. The Judge's finding that the Appellant could relocate to Albania and access facilities there was directly opposed to Dr Thomas' report that the Judge had not considered whether internal relocation would be unduly harsh. The Judge had not engaged with Dr Thomas' report.
16. A discrete element of the case was the Appellant's risk of suicide upon receiving removal directions. If the Judge had properly considered the Thomas report in the context of the Appellant's suicide risk it would have been driven to the conclusion that removal would breach the Appellant's Article 3 rights.
The Hearing Before Me
17. In oral submissions Counsel began by taking matters out of order and started with the risk of suicide. The First-tier had accepted Dr Thomas' report as reliable. Dr Thomas had said that return was not possible because the Appellant had been re-traumatised and would be unable to access healthcare. The Judge had dealt with the risk under Article 3 tangentially saying that because the Appellant could not succeed under Article 8 he could not succeed under Article 3. At paragraph 74 Dr Thomas had said that the Appellant was too unwell to access services.
18. I queried with Counsel at this point the basis on which Dr Thomas had come to his view that the Appellant would be unable to access services. The Judge's view was that the Appellant would be able to be in contact with his mother. Had Dr Thomas based his view that accessing medical facilities would be impossible on whether there would or would not be contact with the Appellant's mother? Counsel replied that the Appellant believed that harm would come to him therefore any support he might receive from his mother would not override Dr Thomas' conclusions. The Judge had reached conclusions on the issue of relocation in the mental health context which were not open to him on the evidence and he had not considered the question of undue harshness. The Judge's conclusion that the Appellant would access facilities was contrary to the evidence.
19. The next head of appeal was the treatment of the evidence of Dr Young and the Appellant's own statement which described the grenade attack. The scarring report of Dr Arnold and the psychiatric report of Dr Thomas corroborated the Appellant's account in relation to the grenade attack. The Judge had applied too high a standard of proof.
20. In reply the Presenting Officer referred to the Court of Appeal decision in MF [2014] EWCA Civ 902 which dealt with Dr Young's evidence. In MF an issue arose as to whether an Appellant's mother who was still living on the family farm with an adult daughter could move to the capital Tirana to give the Appellant in that case support. In her report Dr Young had said that it would be extremely hard if not impossible for the mother to do so but as the Court of Appeal noted Dr Young's opinion "does not appear to have been based on any knowledge of the mother's specific circumstances". At paragraphs 16 the Court of Appeal said it was perhaps unfortunate that in MF Dr Young had allowed herself
"to be drawn into expressing views on the very issues which the Tribunal had to determine and to do so on the basis of her general knowledge and understanding of conditions in Albania generally rather than on specific information about the circumstances of the Appellant's case."
In one section of her report where she appeared to have commented on individual paragraphs of the Respondent's refusal letter Dr Young "allowed herself to be put in the position of an advocate which inevitably undermined her objectivity".
21. At paragraph 18 the Court of Appeal said that they did not
"find it surprising that the Tribunal should have declined to place much weight on that part of Dr Young's report. Its criticism may have been couched in rather harsh terms but in substance they were well-founded. In the absence of any specific information about the reach of the M family or the Appellant's mother's circumstances (which she would have had to give as a witness of fact rather than an expert) those parts of the report were of little or no value".
22. On the issue of relocation the Presenting Officer submitted that expert evidence was one element for the Judge to take into account but the Judge's findings were not to be a dialogue between the expert and the Judge.
23. As to the risk of suicide, there was no need to consider the risk of suicide in country, the question was what was the risk of suicide upon return. The burden was on the Appellant to make the claim out. The Judge had rejected the evidence that the Appellant's mother could not help the Appellant. Dr Thomas did not have the benefit of that finding (which lay in the future) but that was because Dr Thomas accepted the basis of the Appellant's case. In fact as the Judge found the Appellant will have the benefit of his mother upon return and that disposed of that point.
24. Dr Young had been criticised for acting as an advocate (see above), in fact Dr Young did not say that the [C] family have influence in Albania which could lead them to influence the police such that there would be no level of protection available for the Appellant. The Judge was bound to have concerns about Dr Young's assertion that anyone could be found in Albania. As the Judge pointed out it would not matter whether a feud was or was not notorious if as Dr Young said you could be found by anyone. That was not the ratio in EH. Dr Young was slipping back into the role of an advocate. The Respondent did not say that one could never place weight on any report from Dr Young but the Appellant would return to the lack of a blood feud and a sufficiency of protection and the Appellant's mother would assist him. The decision was legally sound.
25. In conclusion counsel accepted that the Judge was not required to set out each question in EH and answer them individually but it was incumbent on the Judge to address the tests in EH in some way which the determination in this case did not do. That was an error of law. There was a discrete claim in this case regarding the risk of suicide. If the Judge was going to find that the Appellant could return it was incumbent upon him to deal with Dr Thomas' evidence that the Appellant could not. That was an error of law. The decision in MF Albania did not mean that Dr Young's reports were no longer to be relied upon.
Findings
26. The Appellant makes a number of criticisms of the decision of the Judge at first instance in this case as follows:
(i) that the Judge erred in his assessment of the grenade attack which the Appellant seeks to link to a feud with the [C] family;
(ii) that the Judge does not analyse the Appellant's claim to be involved in a blood feud in accordance with the conditions laid down in the case of EH;
(iii) the Judge does not give sufficient weight to Dr Young's report that the Appellant could be found if he relocated to Albania;
(iv) the Judge does not give sufficient weight to Dr Thomas' report that the Appellant would be unable to access services upon return and there would be a risk of suicide.
27. The first objection taken to the Judge's determination is largely a disagreement with the Judge's conclusions. The Appellant sought to suggest that there had been a serious attempt to kill him in a grenade attack by the [C] family. The Judge was concerned about two aspects of the alleged attack. Firstly whether it really was an attempt to kill the Appellant and secondly the attribution of the attack to the alleged rival family the [C]. The Judge had severe reservations about the seriousness of the attack finding that if the Appellant had been rendered unconscious by an attack it would have been a relatively simple matter for the [C] to finish the Appellant off or at any rate for the assailants to finish the Appellant off. That they did not do so when they had the Appellant at their mercy tended to call into question how serious they were in pursuing this blood feud to the bitter end of killing the Appellant. The Appellant's response was that he was only feigning dead but that does not answer the point made by the Judge. Whether the Appellant was genuinely unconscious or merely pretending to be so the fact remained that the attackers had the Appellant at their mercy and if they were seriously concerned to kill the Appellant it was reasonable in those circumstances to have expected them to have finished off the job in some way or other. That they did not do so led the Judge to a conclusion that whoever the attackers were they were not so determined to kill the Appellant as the Appellant claimed. That was a matter for the Judge and this ground of appeal is merely a disagreement with the Judge's decision.
28. The next point of concern about the grenade attack was the attribution to the [C] family when a police report on the incident did not name them. Given the source of information for the police report (the Appellant's own mother) it was in the Judge's view a significant fact that they were not named. The criticism of the Judge's conclusion in the grounds of onward appeal is a mere disagreement.
29. The next challenge to the determination was the treatment of Dr Young's evidence. Whilst the Court of Appeal in MF had some kind words to say about Dr Young they also expressed reservations about her evidence in the case which they were considering. Although the criticisms expressed of Dr Young in MF were said to be harsh, they were not expressly disapproved of. Each case must of course turn on its own facts and as the Respondent fairly conceded before me it was not the Home Office case that anything written by Dr Young was unreliable. The problem for the Judge was that Dr Young had made a very sweeping statement ("literally anyone can be found by anyone") which appeared to demonstrate that Dr Young's objectivity as an expert writing a report was subject to question. For the Appellant still to be at risk upon return to Albania he would have to be able to show to the lower standard that he was still at risk from the [C] family who would be able to find him. If the Appellant wished to rely on Dr Young to support that assertion her report needed to be able to stand up to examination. The kind of general assertion that Dr Young made which the Judge criticised did not mean that the report could stand up to criticism.
30. There were a number of other inconsistencies described by the Judge (see above paragraph 4) although the Judge also where relevant made it clear these were not points taken against the Appellant by the Respondent. It is clear from a fair reading of the determination that he was giving the most anxious scrutiny to the point of was what was known about the [C] family which could lead to an inference that they would be both able and willing to find the Appellant and cause him some harm upon return. The Judge was heavily influenced by the fact that no such evidence was available. Further Dr Young had been quite unable to assist the Tribunal on this particular point. She had evidently not been able to find out about the [C] family despite her knowledge of and no doubt contacts in Albania. This did not of itself prove the case but the burden was on the Appellant to show that the [C] family if they were indeed in a blood feud with the Appellant could locate him. The evidence was simply not there.
31. Dr Thomas' report on the Appellant's mental health condition and the impact on the Appellant of a return to Albania was heavily influenced by the Appellant's own account. Dr Thomas had not been given the full picture of the Appellant's family in Albania and had thus not been able to investigate what if any assistance they could render to the Appellant upon return. The Judge evidently felt it was a very important point that the Appellant's mother who had been supplying the Appellant with documents to assist his case could be found. Although the Judge does not say in express terms he was evidently disappointed by the failure of the Appellant's representatives to make any effort to contact the Appellant's mother. This was a fundamental issue which Dr Thomas did not have the benefit of knowing. Dr Thomas was clearly anxious for his patient who he thought might be returned to Albania alone with no-one to help him upon return when the Appellant was in a vulnerable condition. That however was not the case. The facts of the matter were different to Dr Thomas' understanding. I do not find there was any error by the Judge in his treatment of Dr Thomas' evidence.
32. Finally much was made in the application for permission to appeal to the Upper Tribunal of the risk of suicide (as opposed to what appears to be the relatively little importance that was given to it in the appeal to the First-tier). Whether the Appellant's fear which might lead to suicide was objectively justified or merely a subjective view on his part is not relevant in itself. The important point is whether there would be adequate facilities upon reception and thereafter. Dr Thomas was of the view that there were not but as I have indicated Dr Thomas' view was based on an incorrect assessment of what the position would be upon the Appellant's return. In those circumstances it was a matter for the Judge to decide whether any claim under Article 3 would succeed and he found that it would not. As the Judge pointed out at paragraph 41 the Appellant still had his mother in Albania who could be contacted and who could provide support. The Appellant would not be required to live a closed existence in Albania given the Judge's finding of no blood feud. This was not based on a conflation of the EH factors into one that of notoriety but rather based on an analysis of what the Appellant's circumstances were.
33. There were no relevant and/or significant factors overlooked by the Judge. As was conceded it was not necessary for the Judge to set out each and every issue in THE. The appeal against the first instance decision was largely a disagreement with the result. The Appellant's account given to support the existence of a blood feud was found not to indicate such a feud. Factors such as whether the feud continued, when the Judge found it was not in existence (and the Appellant could return without the need to self isolate) were not relevant. Similarly the document emanating from the Albanian police did not assist the Appellant for the reasons given by the Judge (see above paragraph 8). The Judge considered in some detail the claimed ability of members of the "aggressor clan" to locate the Appellant and rejected that part of the claim too. The Appellant would be able to access services and this would include any medical assistance he might require should his mental health condition be such that he threatened suicide. There is no basis for this complaint against the Judge's determination either.
34. In short the grounds of onward appeal as amended before the Upper Tribunal amount to no more than a lengthy disagreement with the findings of the Judge who was well aware of the EH criteria. Those findings were based on the evidence the Judge received and do not disclose any error of law. The Appellant's appeal is therefore dismissed.

Notice of Decision
The decision of the First-tier Tribunal did not involve the making of an error of law and the Appellant's appeal against that decision is dismissed.
Appellant's appeal dismissed.
I make no anonymity order as there is no public policy reason for so doing.

Signed this 5th day of September 2016

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Deputy Upper Tribunal Judge Woodcraft

TO THE RESPONDENT
FEE AWARD
As no fee was payable and the appeal has been dismissed there can be no fee award.

Signed this 5th day of September 2016

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Deputy Upper Tribunal Judge Woodcraft