Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/08860/2015
AA/09039/2015
AA/09041/2015

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 22 November 2016
On 06 December 2016

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

n K
M k
m k
(ANONYMITY DIRECTION MADE)
Respondents

Representation:
For the Appellant: Mr I Richards, Senior Home Office Presenting Officer
For the Respondents: Mr C McWatters instructed by Migrant Legal Project

DECISION AND REASONS
1. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order given the respondents are claiming asylum and two are children. Unless the Upper Tribunal or Court directs otherwise, no report of these proceedings shall directly or indirectly identify the respondents. This direction applies to both the appellant and to the respondents and a failure to comply with this direction could lead to Contempt of Court proceedings.
2. Although this is an appeal by the Secretary of State, for convenience I will hereafter refer to the parties as they appeared before the First-tier Tribunal.
Background
3. The three appellants are citizens of Albania. The first appellant is the mother of the second and third appellants. The three appellants were born respectively on 15 August 1987, 1 April 2008 and 2 August 2009. They arrived in the UK on 22 February 2013. They were encountered by immigration officials departing from a Eurostar train at St Pancras Station in London.
4. The first appellant claimed asylum. The basis of her claim was that she was a victim of trafficking. She claimed that she (together with her two daughters) had been abducted by men to whom her husband owed money. She had been forced into prostitution by the men and was kept locked up in a building. She was allowed to leave temporarily when she said that one of her daughters was ill. Instead of going to the hospital, she went to a police station and applied for a passport using $3,000 she had hidden in her baby's nappy and which was the proceeds of jewellery. She returned in a fortnight to collect her passport. She was subsequently helped by a man, whom she met at the police station, to leave Albania with her two children eventually arriving in the UK.
5. On 21 May 2015, the Secretary of State refused the appellants' claims for asylum, humanitarian protection and under Art 8 of the ECHR.
6. The appellants appealed to the First-tier Tribunal.
7. In a decision promulgated on 8 March 2016, Judge Fowell allowed the appellants' claims on asylum grounds, humanitarian protection grounds and under Art 8 of the ECHR.
The Appeal to the Upper Tribunal
8. The Secretary of State sought permission to appeal to the Upper Tribunal on the grounds:
(1) That although the judge found that the first appellant had been trafficked in the past, he failed to make any finding that she was at future risk;
(2) The judge failed to consider properly, or at all, whether the first appellant would obtain a sufficiency of protection in Albania;
(3) The judge failed to consider whether the appellants could safely and reasonably internally relocate within Albania; and
(4) The judge gave inadequate reasons for finding in the appellants' favour under Art 8.
9. On 5 April 2016, the First-tier Tribunal (Judge Kimnell) granted the Secretary of State permission to appeal.
10. On 22 April 2016, the appellants filed a rule 24 response (made without sight of the Secretary of State's grounds of appeal) seeking to uphold the judge's decision on the basis that he had properly applied the country guidance case of TD and AD (Trafficked women) CG [2016] UKUT 00092 (IAC).
11. Thus, the appeal came before me.
The Submissions
12. On behalf of the Secretary of State, Mr Richards submitted that the judge had made a number of adverse findings concerning the appellants' account at paras 42, 44 and 46. In particular, the judge had found that aspects of the appellants' account were implausible and were not genuine. Nevertheless, Mr Richards submitted the judge found in the appellants' favour based essentially on expert medical reports relating to the first appellant's PTSD and the mental health of her children. Mr Richards submitted that, although the judge accepted that the first appellant had been abducted and forced into prostitution, at no point did he find or give reasons for finding that she would be at risk on return to Albania. Mr Richards submitted that the judge had wrongly simply moved from a finding that she had been trafficked to a finding that she would be at risk on return.
13. Further, Mr Richards submitted that the judge had failed properly to consider the issue of "sufficiency of protection". At para 55, the judge had simply stated that it would be "unduly harsh" for her to "avail of the state protection available". That, Mr Richards submitted was not the appropriate test to determine whether a sufficiency of protection was available based upon the case law such as Horvath v SSHD [2000] UKHL 37.
14. Finally, in relation to the international protection claim, Mr Richards submitted that the judge had failed to consider whether relocation was an option for the appellants. He submitted that, perhaps, this was not surprising given that the judge had failed to find where and from whom the risk to the first appellant lay on return.
15. In relation to Art 8, Mr Richards submitted that it was essentially based upon the premise that the appellants succeeded in their international protection claim and if the latter was set aside then the Art 8 decision could not stand.
16. He invited me to set aside the judge's decision and remit the appeal to the First-tier Tribunal for a rehearing.
17. On behalf of the appellants, Mr McWatters submitted that the judge had accepted that the first appellant fell within a particular social group on the basis that she was a victim of sex-trafficking and, as a consequence, was at risk on return. Mr McWatters submitted that the judge had found that the first appellant was vulnerable to sexual exploitation and, having set out and applied TD and AD, the judge had considered all the circumstances and had found that there would be an absence of state protection. That reasoning had, Mr McWatters submitted, effectively decided the issue of internal relocation in the first appellant's favour.
18. Finally, he submitted that the judge's finding in respect of Art 8 were valid.
Discussion
19. The hearing before the judge was, perhaps, somewhat complicated by the fact that the new country guidance case of TD and AD was published on the day of the hearing. As I understand it, both parties were invited to make written submission in respect of TD and AD after the hearing. There does not appear to have been any oral submissions in relation to it. Nevertheless, at para 45 of his determination, the judge set out at least some of the head note of TD and AD, namely paras (d)-(h). The guidance in full is as follows:
"a) It is not possible to set out a typical profile of trafficked women from Albania: trafficked women come from all areas of the country and from varied social backgrounds.
b) Much of Albanian society is governed by a strict code of honour which not only means that trafficked women would have very considerable difficulty in reintegrating into their home areas on return but also will affect their ability to relocate internally. Those who have children outside marriage are particularly vulnerable. In extreme cases the close relatives of the trafficked woman may refuse to have the trafficked woman's child return with her and could force her to abandon the child.
c) Some women are lured to leave Albania with false promises of relationships or work. Others may seek out traffickers in order to facilitate their departure from Albania and their establishment in prostitution abroad. Although such women cannot be said to have left Albania against their will, where they have fallen under the control of traffickers for the purpose of exploitation there is likely to be considerable violence within the relationships and a lack of freedom: such women are victims of trafficking.
d) In the past few years the Albanian government has made significant efforts to improve its response to trafficking. This includes widening the scope of legislation, publishing the Standard Operating Procedures, implementing an effective National Referral Mechanism, appointing a new Anti-trafficking Co-ordinator, and providing training to law enforcement officials. There is in general a Horvath-standard sufficiency of protection, but it will not be effective in every case. When considering whether or not there is a sufficiency of protection for a victim of trafficking her particular circumstances must be considered.
e) There is now in place a reception and reintegration programme for victims of trafficking. Returning victims of trafficking are able to stay in a shelter on arrival, and in 'heavy cases' may be able to stay there for up to 2 years. During this initial period after return victims of trafficking are supported and protected. Unless the individual has particular vulnerabilities such as physical or mental health issues, this option cannot generally be said to be unreasonable; whether it is must be determined on a case by case basis.
f) Once asked to leave the shelter a victim of trafficking can live on her own. In doing so she will face significant challenges including, but not limited to, stigma, isolation, financial hardship and uncertainty, a sense of physical insecurity and the subjective fear of being found either by their families or former traffickers. Some women will have the capacity to negotiate these challenges without undue hardship. There will however be victims of trafficking with characteristics, such as mental illness or psychological scarring, for whom living alone in these circumstances would not be reasonable. Whether a particular appellant falls into that category will call for a careful assessment of all the circumstances.
g) Re-trafficking is a reality. Whether that risk exists for an individual claimant will turn in part on the factors that led to the initial trafficking, and on her personal circumstances, including her background, age, and her willingness and ability to seek help from the authorities. For a proportion of victims of trafficking, their situations may mean that they are especially vulnerable to re-trafficking, or being forced into other exploitative situations.
h) Trafficked women from Albania may well be members of a particular social group on that account alone. Whether they are at risk of persecution on account of such membership and whether they will be able to access sufficiency of protection from the authorities will depend upon their individual circumstances including but not limited to the following:
1) The social status and economic standing of her family
2) The level of education of the victim of trafficking or her family
3) The victim of trafficking's state of health, particularly her mental health
4) The presence of an illegitimate child
5) The area of origin
6) Age
7) What support network will be available"
20. The thrust of this guidance may, so far as relevant, be summarised as follows. Assuming for this purpose that the first appellant is properly seen as a "trafficked woman" (the sexual exploitation occurring in Albania), the risk of re-trafficking turns on the factors that led to the initial trafficking and her individual personal circumstances. An individual's personal circumstances may mean that a person is especially vulnerable to re-trafficking or being forced into other exploitative situations. There is in general a Horvath-standard of sufficiency of protection in Albania but it will not necessarily be effective in every case. Whether or not there is a sufficiency of protection requires a consideration of an individual's particular circumstances. The guidance at para h) sets out circumstances to be taken into account in assessing whether an individual is at risk of persecution on account of being a trafficked woman and whether she will be able to access a sufficiency of protection from the authorities. The guidance sets out a non-exclusive list of seven circumstances. As regards internal relocation, the guidance recognises that there may be "very considerable" difficulties in a trafficked woman's ability to relocate internally.
21. In this appeal, Judge Fowell made certain adverse finding concerning the first appellant's account. At para 42 he said this:
"42. Her account does contain a number of inconsistencies, as pointed out in the Reasons for Refusal Letter, together with some implausible features. Of these, the main and most striking one is that she returned to her captors to spend the two week period before collecting her passport. That meant she had to submit to further rapes, with her children being in a place of danger, separated from her by day and in some distress. I find this aspect of her account impossible to accept, even to the lower standard. She had money to allow her to hide with her children for a while, even if there were no friends or relatives to whom she could turn, which seems unlikely given her extreme plight. There can also have been little to lose from telling the police. Electing to return to a place of danger carried with it the further danger that she would not be released to collect her passport with her children at the end of that period. Indeed the whole account of being released at all with both children to see the doctor, of having such money available and undiscovered, and the chance meeting with [D] is a series of improbabilities which I cannot accept as a genuine account."
22. In para 43 he referred to the details provided by the first appellant as being "untenable" but then at para 44 he said this:
"44. I can understand the respondent's frustration with the ready acceptance by a number of the experts involved that the appellant's account is true, but the most likely explanation appears to me that it has been embellished but is not fundamentally false, in that there was a period of being abducted and forced prostitution. There may be a number of reasons for such embellishment, including shame, or an attempt to avoid any share of responsibility for bringing it about, or simply a wish to improve her prospects of obtaining asylum Overall however, applying the lower threshold, I conclude in view of the various experts' reports set out above, the combined effect of which is particularly persuasive, that although the appellant's particular account is false, she has been a victim of sex-trafficking and is therefore a member of this particular social group."
23. The judge's finding that the appellant has been a victim of sex trafficking and that as such she is a member of a particular social group is a finding that he accepts, as he put it, that she had been "abducted and forced [into] prostitution". However, he did not accept aspects of her claim which he considered to be "embellishments" of her account. The fact that the first appellant had been forced into prostitution was not in itself a finding that she was at risk of forced prostitution in the future. Her asylum claim was dependent upon such a finding in her favour. As the case of TD and AD emphasises at para g) of the head note, whether an individual is at risk on return depends on that individual's personal circumstances including in part the factors that led to her initial trafficking. Judge Fowell, in rejecting aspects of the appellant's account, goes no further than accepting that for "a period" she was "abducted" and "forced [into] prostitution". The judge does not make clear whether he accepts that that was because she was targeted by men who were owed money by her husband or for some other reason. Whilst I accept that the judge goes on in paras 46 to 55 to consider that the first appellant is vulnerable, he fails to ground his decision in full consideration of her circumstances. The bare fact that she had been previously abducted and forced into prostitution was not enough. The circumstances of her past ill-treatment were relevant as to whether she was at risk in the future as well as an assessment, as TD and AD also requires, of her circumstances such as her vulnerability. I agree with Mr Richards that it does not follow that because an individual has been the subject of trafficking that there is then ipso facto a real risk that they will be trafficked in the future. In the absence of findings either explicit or implicit (and I am unable to detect any in the determination) as to which parts, if any, of the first appellant's account the judge accepts, it is not possible to see the basis upon which the judge found that the appellant was at risk on return to Albania. In fact, as Mr Richards submitted, there is no actual finding on that aspect of the appellant's claim: merely to state that she is a victim of sex trafficking and a member of a particular social group does not amount to a finding that she is at real risk on return. The absence of such a reasoned finding is, in my judgment, a material error of law in the judge's determination and his decision to allow the appeal on international protection grounds.
24. Further, I also accept Mr Richards's submission that the judge has failed properly to grapple with the issue of "sufficiency of protection". Nowhere does the judge deal with the starting point set out in TD and AD at para d) that in general a Horvath-standard of sufficiency of protection exists in Albania. Whilst it is true that the judge finds that the first appellant is vulnerable, his finding in para 55 does not adequately explain his finding, if indeed he makes such a finding, that there would not be an adequate sufficiency of protection available to her. His conclusion is based on the premises that there are "no viable means of support available to the appellant on return" and that it would be "unduly harsh, given the pressures on her and her vulnerability" for her to avail herself of state protection. The difficulty with the first premise is that it is based on an unfound fact that her husband's family would not be able to offer her any practical support. That is referred to by the judge at para 46 based upon a comment made in an expert report. However, that could only possibly be justified if the judge had accepted the first appellant's account of how and why she was abducted and forced into prostitution. As I have already indicated, the judge made no finding on that and Dr Young's view is based upon an acceptance of the first appellant's account. Likewise, that it would be "unduly harsh" for the first appellant to avail herself of state protection, does not fully and properly engage with whether the state would be "willing" and "able" to provide a sufficiency of protection.
25. Finally, although the judge considers, at some length, the vulnerability of the first appellant (and indeed the children) he makes no specific finding in relation as to whether internal relocation was reasonably and safely open to the appellants. The judge was required to give adequate reasons and make a specific finding on that issue.
26. For these reasons, the judge erred in law in allowing the appellants' appeals on asylum and humanitarian protection grounds. (He could not, in any event, have allowed the appeal on both grounds: they are alternatives (see, para 339C(ii), Immigration Rules and Art 2(e), Qualification Directive (2004/83/EC)).
27. As regards Art 8, I accept Mr Richards's submission that the judge's reasoning is, in effect, premised on there being "insurmountable obstacles" to the appellants returning to Albania which, in turn, is premised upon the favourable conclusion in their international protection claims. Since the latter cannot stand, in my judgment, the decision in respect of Art 8 also cannot stand.
Decision and Disposal
28. Thus, the decision of the First-tier Tribunal to allow the appellants' appeals on asylum, humanitarian protection and human rights grounds involve the making of an error of law. The First-tier Tribunal's decision cannot stand and is set aside.
29. The consequence of the material errors of law that I have identified is that the judge's determination, as a whole, should be set aside and the appeal should be reheard de novo.
30. Given the nature and extent of fact finding required, and bearing in mind para 7.2 of the Senior President's Practice Statement, the proper disposal of this appeal is to remit it to the First-tier Tribunal for such a de novo rehearing before a judge other than Judge Fowell.

Signed

A Grubb
Judge of the Upper Tribunal

Date: 06 December 2016