Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/07078/2014
AA/06923/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 25 July 2016
On 9 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

B S (FIRST appellant)
F S (SECOND appellant)
(ANONYMITY DIRECTION made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellants: Mr S Harding, Counsel, instructed by Kilby Jones Solicitors
For the Respondent: Ms Z Ahmed, Senior Home Office Presenting Officer

DECISION AND REASONS
1. These are appeals by the first and second Appellants against the single decision of First-tier Tribunal Judge O'Malley (the judge), promulgated on 9 May 2016. The appeal to the First-tier Tribunal had been against the Respondent's initial decisions of 2 September 2014 in relation to the first Appellant and 1 September 2014 in relation to the second Appellant, to remove them from the United Kingdom by way of directions under section 10 of the Immigration and Asylum Act 1999.
2. The first Appellant is the mother of the second Appellant, and both are Albanian nationals. Their asylum claims were based upon the claimed existence of a blood feud. It was said that the feud originated out of a land dispute and that in July 2012 the first Appellant's husband was murdered by a member of the opposing family. It was said that this feud was ongoing and both the Appellants would be at risk of reprisals if returned to Albania now.
The judge's decision
3. In a detailed decision the judge sets out the evidence, submissions of the Appellants, and then goes on to make a number of findings of fact. At paragraph 71 the judge notes that she found some aspects of the evidence to be credible but others not so. The favourable findings relate specifically to the killing of the first Appellant's husband on 25 July 2012. The judge found that this horrific event had been a trigger for the first Appellant's PTSD.
4. On a number of other issues however, the judge found against the Appellant. In general terms the judge found that:
a) there had never in fact been a blood feud;
b) that the opposing family had not destroyed their property;
c) that a burglary at the Appellant's home had not been committed by the opposing family;
d) that the Albanian authorities had taken proper actions in respect of locating and prosecuting the perpetrators of the murder in 2012;
e) that the Appellant's own family had engaged with the authorities in respect of the criminal activities;
f) that the Appellant's family had not been involved in a claimed car bomb attack on the opposing family;
g) that the opposing family did not have significant reach or influence;
h) that neither party wished to engage to prosecute a feud;
i) and that the first Appellant's son had not been in self-confinement as a result of any feud.
5. As a result, the judge concluded that the Appellants were not at risk from the opposing family if they were to return to Albania.

6. In addition, the judge dealt with the first Appellant's mental health difficulties but concluded that these were not sufficiently severe for her to succeed under either Articles 3 or 8 of the ECHR. Both appeals were therefore dismissed on all grounds.

The grounds of appeal and grant of permission
7. The core of the challenge to the judge's decisions is to be found at paragraph 4 of the grounds of appeal. Therein are set out four aspects of the evidence upon which it is said the judge failed to make findings on relevant matters. The last of these is said to be of the greatest import: the Appellant had given her telephone number to the police and had then been threatened by the opposing family on that same number, indicating collusion between the authorities and her enemies. The grounds go on to assert that there is a lack of reasoning and that the judge may have failed to have taken the first Appellant's mental health into account when making findings of fact.
8. Permission to appeal was granted by First-tier Tribunal Judge Page on 7 June 2016.
The hearing before me
9. Mr Harding relied on the grounds. He submitted that the evidence referred to in paragraph 4(d) of his grounds had not been dealt with by the judge although the evidence itself had been referred to in paragraph 21 of the decision. Mr Harding submitted that this was a material omission in that the evidence, if accepted, linked the police to the opposing family. This was a crucial factor in assessing whether or not an active blood feud existed. In respect of paragraph 4(a) of his grounds, again the matter was not dealt with by the judge: cumulatively this was important. If threats had started in 2006 this was relevant to whether a blood feud existed or not. In respect of paragraph 4(c) the judge had not viewed the evidence of self-confinement in the round.
10. Ms Ahmed asked me to look at the judge's decision as a whole. Even if the judge had found that a telephone call had been made following the first Appellant's identification of one of the attackers, this would not have made a difference to the appeal as a whole.
Decision on error of law
11. At the hearing I reserved by decision on error of law.
12. Having considered the judge's decision and submissions made to me with care, I find that there are no material errors of law in the judge's decision. With specific reference to Mr Harding's grounds, my reasons are as follows.
Paragraph 4(a) of the Grounds
13. It is right that the judge appears not to have dealt expressly with the evidence that the opposing family made threats of one sort or another from 2006 (see paragraph 16 of the judge's decision). However, having regard to paragraph 74 it appears to me as though the judge did have this issue in mind when finding that there had not been a pattern of threats from 2006 which could have amounted to a blood feud. Further or in the alternative, this evidence could not in my view have made a material difference to the outcome of the judge's decision as a whole. The Appellant's claim has always been put on the basis of a blood feud, not simply criminal activities by the opposing family. It is clear from what is said by the judge in paragraphs 75, 77, 81, 82 and 84 that there was a dispute involving the opposing family, the Appellant's family and numerous other people relating to the issue of land. However, the judge has found that the Appellant's family were not the primary actors in this dispute, that the opposing family had not in fact carried out some of the actions alleged by the Appellants, and that the killing of the first Appellant's husband was not in effect simply a continuation or escalation of the land dispute. With this in mind, and having regard also to decisions from the higher courts that not every single item of evidence has to be dealt with specifically by judges when giving their decisions, I find that the failure to expressly address the issue of threats from 2006 onwards is not a material error of law.
Paragraph 4(b) of the Grounds
14. I am somewhat confused by this challenge to the judge's decision. The grounds state that, "the judge has not made findings on ... whether there had been a threatening telephone call prior to the burglary". The alleged burglary was said to be on 1 July 2012. The judge made clear findings that the opposing family had had no involvement in this and this had not been specifically challenged, but in any event the judge gave adequate reasons for her conclusion on this point. Then at paragraph 19 of the judge's decision she states that a threatening phone call was reported on 19 July 2012, that being after the alleged burglary and not prior to it as alleged in the grounds of appeal. I looked at all the information before me to see whether or not this had just been a simple error by either the drafter of the grounds or the judge but I am unable to resolve the point and in any event, the judge's findings on the issue of the burglary overall are in my view clear and sustainable and there is no material error of law here.
Paragraph 4(c) of the Grounds
15. This relates to whether or not the first Appellant's son was in self-confinement in Albania due to a blood feud. I have had specific regard to paragraphs 89, 90, 97 and 98 of the judge's decision but have also read these passages in the context of all of the other findings made both before and after. Although the judge may have expressed herself rather more clearly, in my view it is sufficiently apparent from the decision as a whole that the son had not been in self-confinement whether before the first Appellant's departure from Albania or thereafter. Given her findings as a whole, there was no reason for him to have gone into self-confinement given that the opposing family had taken no action against the Appellant's family following the murder in 2012, that the Appellant's family had not instigated any attacks upon the opposing family, and given that the Appellant's other son had remained in Albania without any concerns having been identified in respect of his safety. In paragraph 97 the judge does state in what appears to be fairly clear terms that the son was not in self-confinement up in the north of Albania. In my view on the evidence as a whole she was entitled to find that certain family members had moved up there from Tirana because the home and business in the capital had been sold and they had to find alternative accommodation, which was provided in due course by the first Appellant's brother.
Paragraph 4(d) of the Grounds
16. This is, as suggested by Mr Harding, probably the most important of the alleged errors. It is right that the judge has not made an express finding on this particular aspect of the evidence. Looking at the decision as a whole it is clear that whilst some aspects of the evidence were accepted, perhaps most importantly the killing of the husband in 2012, almost all of what is alleged to have occurred thereafter has been rejected by the judge. There are multiple findings, in my view supported by sound reasons, to the effect that:
a) the police acted properly in pursuing and prosecuting the perpetrators of the murder: indeed two of them were imprisoned;
b) the Appellant's own family engaged with the authorities;
c) the Appellant's family had not sought to take any retribution against the opposing family at any time following the murder;
d) there were no actions taken by the opposing family against the Appellant's family in terms of 'pre-emptive strikes'.
17. In light of the above I conclude in the first instance that the judge was implicitly rejecting that any threatening telephone call was made following the first Appellant's identification of Leonard and the provision of her telephone number to the police.
18. If in fact such a call was made and the judge has committed an error in failing to specifically address the point, I nonetheless conclude that this would not have had a material effect on the outcome having regard to the judge's findings as a whole. I reiterate the following matters: first, that the opposing family in fact took no actions against the Appellants or any other members of the family from 2012 onwards; second, that the Appellant's family continued to engage with the authorities and did not themselves seek to take any revenge against the opposing family; third, as the judge said in paragraph 93 (having primarily found that the opposing family did not have any reach or influence), if there had been any adverse influence the evidence indicated that the opposing family were simply not committed to finding the Appellants or any other members of their family. All of this is of course consistent with the judge's overall view that a blood feud had simply never arisen in this case.
19. Finally I would note once again what I have said before in respect of not every element of the evidence in a particular case having to be addressed by a judge. In this particular case the judge has made numerous detailed findings of fact covering the whole history of the claim as it was put to her. In my view she has carefully considered the evidence as a whole, has placed reliance on documentary evidence relating to the legal proceedings in Albania adduced by the Appellants themselves, and has in essence found that there were criminal actions perpetrated but that no blood feud had ever arisen. In any event the judge also found that there was no active blood feud as at the date of the hearing.
20. In respect of the reasons challenge, in my view the reasons given by the judge for the numerous findings are adequate and clearly open to her on the evidence.
21. In respect of the Appellant's mental health the judge clearly had that in mind (see paragraphs 102 to 104 of the decision). In any event, the adverse findings of fact were not based upon inconsistencies relating to inability to remember certain events and such like, matters that might be relevant to the mental health. In large part the judge's findings were in fact based upon the evidence of the Appellants themselves, independent sources and an application of the guidance provided in EH (blood feuds) Albania CG [2012] UKUT 00348 (IAC).
22. For all the reasons given above the First-tier Tribunal decision shall stand.
Notice of Decision
The decision of the First-tier Tribunal did not involve the making of any material errors of law.
The Appellants' appeals to the Upper Tribunal are dismissed.
The decision of the First-tier Tribunal stands.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellants and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date: 8 August 2016
Deputy Upper Tribunal Judge Norton-Taylor

TO THE RESPONDENT
FEE AWARD
I have dismissed the appeal and therefore there can be no fee award.

Signed Date: 8 August 2016
Deputy Upper Tribunal Judge Norton-Taylor