Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11777/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 September 2016
On 15 September 2016

Before

UPPER TRIBUNAL JUDGE MCGEACHY

Between

Secretary of State for the Home Department
Appellant
and

MS DN
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr T Melvin, Home Office Presenting Officer
For the Respondent: Mr B Lams of Counsel instructed by Oaks Solicitors

DECISION AND REASONS
1. The Secretary of State appeals with permission against a determination of Judge of the First-tier Tribunal Holmes who, in a determination promulgated on 23 May 2016 dismissed the asylum appeal of the Ms DN but allowed her appeal under Articles 8 and 3 of the ECHR and also with regard to humanitarian protection. Although the Secretary of State is the appellant before me I will refer to her as the respondent as she was the respondent in the First-tier Tribunal and similarly I will refer to Ms DN, as the appellant.
2. The appellant is a married woman who is a citizen of Albania, born on 17 November 1990. She came to Britain entering clandestinely in August 2013, accompanied by her husband, having spent time with him in various countries beforehand as he sought asylum. The marriage broke up and she formed a relationship with another man and had his child. That man abandoned her. The basis of her claim was that she would face persecution from her own family and that of her husband if she returned to Albania because she had had a child who was not the child of her husband.
3. The judge made various findings and concluded that the appellant would not require to go back to her family, that they would not persecute her and nor would her husband. In paragraph 26, having given his reasons for that conclusion, he stated that he found the removal of the appellant to Albania would not cause the United Kingdom to be in breach of its obligations under the Refugee Convention.
4. He then went on to consider the issues of humanitarian protection and the issue of Article 3 protection. He considered background information and quoted from the determination in TD and AD CG [2016] UKUT 92 (IAC) where it was said "Whilst discrimination and stigma certainly exist they will not generally constitute persecutory "serious harm" or breach Article 3, but this is nevertheless a factor to be considered cumulatively when assessing whether internal flight is reasonable for any given appellant". He stated that the only emotional support that the appellant would receive would be in her home areas of Burrel. He, however, considered that the appellant would be an object of suspicion and that that would make the appellant more vulnerable to discrimination, sexual harassment or even the risk of trafficking and said that therefore she was entitled to humanitarian protection under paragraph 339C of the Immigration Rules. That is I consider a clear error of law. Not only does he give no reason why this appellant would be vulnerable to trafficking he clearly does not consider that there is a real risk of trafficking. Moreover not only does his conclusion ignore the conclusion in TD and AD but it is clear from the judgment of the Court of Justice of the European Communities in Elgafaji [2009] EUECJ C-465/07 that humanitarian protection is only given in certain circumstances which are explained in the judgment as follows:
"The existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances. The existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred, reaches such a high level that substantial grounds are shown for believing that a civilian returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat."
That has simply not been shown by the judge to be the case and I consider that it was an error of law for him to reach that conclusion.
5. In paragraph 33 the judge makes a finding that there would be good reason to conclude that the appellant's situation in Albania would be such as to expose her and her daughter to a real risk of violation of their rights under Article 3. That is a broad assertion and can only be founded on the conclusions he came to in paragraph 31 where he found that the appellant, although not subject to persecution in her home area, would have difficulty such that internal flight would not be possible for her or would create difficulties for her. That is a rather odd way of going about a decision because the appropriate process would be to consider whether or not an appellant had a well-founded fear of persecution in her home area and then to consider the issue of internal flight. Instead however, having found that she would not have a well-founded fear of persecution he deals with the issue of internal flight. In paragraph 31 he says, "I am satisfied that the appellant would be an object of suspicion. This in turn would tend to make her more vulnerable to discrimination, sexual harassment or even the risk of trafficking" and he then goes on to deal with the issues relating to the appellant's child and her education. However, that discrimination to which he refers simply cannot be considered to cross the threshold of Article 3 ill-treatment as is clear from the passage in TD and AD set out above. There is nothing in his reasoning that Article 3 would come into play. Accordingly, I consider that he has made a material error of law in his consideration of the rights of the appellant under Article 3. I therefore set aside the determination in that regard.
6. The judge, however, allowed the appeal under Article 8 and as I have said that decision is not challenged.
7. I have therefore set aside the decision of the Judge in the First-tier with regard to humanitarian protection and Article 3 ill-treatment but his decisions dismissing the appeal on asylum grounds and allowing the appeal on human rights grounds shall stand.
8. It is appropriate that I should remake the decisions regarding humanitarian protection and Article 3 ill-treatment. For the reasons which I have set out above I do not consider that the appellant is entitled to humanitarian protection. I refer again to the judgment in Elgafaji. Similarly I do not consider that she is entitled to Article 3 protection as the there is nothing to indicate that there is a real risk that she would suffer treatment that would cross the threshold of Article 3: the findings made simply do not cross the relevant threshold. I therefore re-make the decision dismissing the appeal on humanitarian protection grounds and under Article 3 of the ECHR.
Notice of Decision
9. This appeal is allowed on Article 8 grounds and is dismissed on asylum, humanitarian protection and Article 3 protection grounds.

Signed Date

Upper Tribunal Judge McGeachy 15 September 2016