Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10111/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 13 January 2017
On 20 January 2017

Before

Upper Tribunal Judge Southern

Between

B. B.
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr B. Bundock, counsel instructed by J D Spicer Zeb, solicitors.
For the Respondent: Mr T. Wilding, Senior Home Office Presenting Officer

DECISION

1. The appellant has been granted permission to appeal against the decision of First-tier Tribunal Judge Aziz who, by a determination promulgated on 4 October 2016, dismissed his appeal against a decision of the respondent, made on 30 June 2015, to refuse his application on asylum and human rights grounds. This is the second occasion upon which the appeal has come before the Upper Tribunal. The first decision of the First-tier Tribunal was found to disclose legal error material to the outcome of the appeal and so was set aside and the appeal remitted to be determined afresh. The appeal came before Judge Aziz on 20 September 2015.

2. The parties are, of course, well aware of the detail of the appellant's claim. The following brief summary was set out at paragraph 2 of the appellant's grounds for seeking permission to appeal:

"The appellant is a 18-year-old national of Albania. He entered the UK on 19 June 2014 aged 16, and claimed asylum the following day. He did so on the basis that he fears persecution and/or harm for reasons of (a) his membership of a particular social group, (i) as a member of his family which is involved in a blood feud and (ii) as a member of the "Jevg" ("Egyptian") ethnic minority; and/or (b) his race."

At paragraphs 6-22 of his decision the judge summarised the claim as it was advanced before him. The appellant spoke of being bullied and beaten up when at school on account of being of the Jevg tribe. At home, his father drank heavily and was abusive towards his mother. About two years ago she left the family home so that the appellant remained under the sole care of his father and, after 2014, the appellant was taken out of school and worked full time with his father at their market stall. There were problems with a wealthy and influential family, the Kasemis, who had taken over the running of the market. The appellant's father was moved to a less advantageous pitch in the market. The appellant described how there was a "hate campaign" against them and the authorities would do nothing to help. In April 2014 the appellant said he was attacked in the market by Arjan Kasemi, after which he needed hospital treatment. A few days after that Arjan assaulted the appellant's father who, seeking to defend himself, stabbed and killed Arjan. This, said the appellant gave rise to a blood feud and as he was now 16 he was a potential target for retribution. His father arranged an agent to bring the appellant to the United Kingdom, concealed in the back of a lorry, where he claimed asylum soon after arrival

3. The judge dismissed the appeal because he did not accept to be true any part of the appellant's account of the experiences in Albania upon which he relied in advancing his asylum claim. Nor did he accept that the appellant's account of his journey to the United Kingdom was accurate or reliable. The judge accepted that the appellant was of the Jevg minority ethnic group and that he may have suffered discrimination and bullying at school on that account. Although the judge recognised that the appellant had given a consistent account of the events he said gave rise to a blood feud, the judge did not accept that account to be true. It is, therefore, wholly incorrect to say, as did First-tier Tribunal Judge Ford in granting permission to appeal, that Judge Aziz had found the appellant's account of a blood feud credible up until the point where the appellant separated from his father in Albania and was put in the care of an agent. Having set out his adverse credibility findings, the clear overall finding of fact made by the judge was precisely to the contrary (at paragraph 79):

"Looking at all of the evidence in the round, I find that the multiple adverse findings which I have made against the appellant so materially undermine his credibility, that even applying the lower standard of proof, I am not persuaded that he has discharged the burden of proof upon him and that he is indeed the victim of a blood feud."

4. For the appellant, Mr Bundock, who also appeared before the First-tier Tribunal, pursued three grounds of appeal:

(1) The reasons given by the judge for rejecting the appellant's account of a blood feud having arisen are inadequate or irrational and so legally flawed;
(2) Similarly, the judge gave inadequate reasons for rejecting the claim to be at risk on the basis of Jevg ethnicity;
(3) The consideration of the appellant's claim under Article 8 of the ECHR was inadequate and so legally deficient.

Ground 1: rejection of the appellant's account of a blood feud:

5. The main thrust of this complaint is that the judge made unjustifiable assumptions about plausibility of the appellant's account, impermissibly imposing his own standards on how he thought a person such as the appellant's father would conduct himself in Albania: see HK v SSHD [2006] EWCA Civ 1037 and Y v SSHD [2006] EWCA Civ 1223. That guidance is familiar and well known and there is no need to reproduce it here.

6. First, and importantly, the judge began his assessment of the appellant's evidence by reminding himself, at paragraph 62, that the events about which the appellant was giving evidence occurred when he was a minor, as was the case when he was interviewed about his claim. However, the judge found wholly lacking in credibility the appellant's account of his father leaving his son alone after the blood feud had said to have arisen on the basis that they would all be killed if they remained together. The judge did not accept that the appellant's father would consider that the appellant would be more safe if he did not remain in the company of either himself of his brother, the appellant's uncle. Nor did the judge accept that the appellant's father would have left him without warning nor that his father would go to the trouble and expense of arranging an agent to bring the appellant to the United Kingdom without making any arrangements at all to maintain contact. The appellant's account of his journey made little sense and the appellant said both that he was and was not fingerprinted in France and that he did and did not seek to claim asylum in Spain.

7. In short, the judge found the whole of the appellant's account to be lacking in credibility, even if he had been consistent to some extent in setting out that claim

8. There is, though, nothing irrational about these findings of fact. In any event, there was nothing to support the asserted risk of multiple members of the family being killed because of the blood feud, which would be specifically directed, if it existed, at extracting revenge from a single victim (see, e.g. EH (blood feuds) Albania CG [2012] UKUT 00348 (IAC). The grounds seek to explain the lack of concern shown by the appellant's father on the basis that "his father was a heavy drinker who had mistreated him throughout his childhood, beating him with fists, slaps and belt. The appellant's father was an uneducated and abusive Albanian man, who had a drinking problem". But the judge was plainly entitled to consider that was simply impossible to reconcile with the account of the appellant's father, having separated from the appellant, should have gone to the trouble and expense of funding an agent to bring him to the United Kingdom. This does not establish that the judge was imposing his own standards of behaviour, informed by his own experiences of living in the United Kingdom, upon the appellant and his father and how he expected they would act in Albania. The judge had to make what he could of the evidence as a whole and, having heard oral evidence from then appellant, he was best placed to do so. These findings of fact were clearly open to the judge and he made no error of law in arriving at them.

Ground 2: the appellant's ethnicity

9. The grounds complain that the judge failed to have regard to the appellant's account of "past mistreatment as a serious indication of a real risk of future mistreatment" and that he failed to consider the relevant country information. But the evidence was that the appellant had attended school, even if he had experienced some bullying, and that his family had adequate housing and his father's market stall business provided for their economic needs, even generating funds to provide for an agent to bring the appellant to the United Kingdom. It may well be that the appellant was withdrawn from school before that was inevitable because of age, but that is something that occurs in many families in Albania, not just those of ethnic minorities (see e.g. the country report at page 20 of the appellant's bundle before the First-tier Tribunal : "Many children left school earlier than the law allows to work with their families, particularly in rural areas"). As the judge had rejected as untrue the appellant's account of the events that had led him to leave Albania, the appellant's case disclosed noting even approaching a viable submission of being at risk on return of persecutory ill-treatment on account of his ethnicity.

10. It is not arguable that the judge had no regard to the country evidence submitted because at paragraph 35 of his judgment the judge makes clear he has seen that country evidence and, indeed, the skeleton argument identifying the parts of the evidence relied upon by the appellant. Given the core findings of fact, it was not necessary for the judge to discuss that evidence in detail in his judgment. It was plainly open to the judge, on the evidence, to conclude at paragraph 81 of his judgment:

"There is nothing within the country evidence relied upon to indicate that a person from the minority Jevg community is at real risk of ill-treatment in Albania that would engage either Convention solely on the basis of their ethnic background. There is simply a lack of evidence to support the assertion that such a fear is well founded."

It is of some significance that in his submissions to the Upper Tribunal Mr Bundock did not seek to identify any part of that country evidence that indicated the contrary. In the grounds an extract is reproduced to the effect that "there have been reports" of significant discrimination against members of the Romani and Balkan-Egyptian communities so that some experienced exclusion or discrimination in access to housing, health care, education and employment, etc, but the appellant's family, as I have observed, had adequate housing and self-employment and the appellant had access to education even if he experienced some bullying. There was no suggestion that he experienced discrimination in access to healthcare, as the evidence suggested some Romai did, as he himself described receiving hospital treatment without experiencing difficulties in accessing it.

Ground 3: the Article 8 claim:

11. The grounds express criticism of the brevity of the assessment carried out by the judge of the article 8 claim and complain that the judge failed to take account of the appellant's youth and his adverse experiences in Albania. He might be said not to have been "integrated" in Albania because of discriminatory exclusion from society that he experienced. This ground, though, fails for the same reasons. The judge has rejected the core of the appellant's account of his experiences in Albania and the appellant's own account does not disclose discriminatory exclusion from housing, healthcare, or economic activity, even if he did describe difficulties encountered in so doing. Even if the appellant, as a member of an ethnic minority on Albania, might face challenges not experienced by citizens who are not, the claim that on that account there are very significant obstacles to integration into his country of nationality on return is a quite hopeless one that has no prospect whatever of succeeding. There is no other basis upon which the appellant's article 8 claim can be considered viable or even arguable and so the judge was entitled to dispose of that briefly and in so doing made no error of law.

Summary of decision:

12. The Judge of the First-tier Tribunal made no material error of law error of law and his decision to dismiss the appeal shall stand

13. The appeal to the Upper Tribunal is dismissed.

Signed

Upper Tribunal Judge Southern

Date: 19 January 2017