Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12654/2015
AA/13080/2015

THE IMMIGRATION ACTS

Heard at FIELD HOUSE
Decision and Reasons Promulgated
On 26TH OCTOBER 2016
On 01st November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE G A BLACK

Between

S H
E H
(anonymity direction MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Dr R Moffat (Counsel instructed by Wilson & co )

For the Respondent: Mr S Staunton (Home Office Presenting Officer)

DECISION AND REASONS

1. This is an error of law hearing. The matter comes before me for consideration as to whether or not there is a material error of law in the decision the First-tier Tribunal (Judge Colvin) ("FtT") promulgated on 22nd August 2016 in which she dismissed the appeals on asylum, human rights and humanitarian protection grounds.

Background

2. The appellants in this matter are brothers and who are citizens of Albania. They were minors at the time they made their application for asylum. The appellants claimed that they were the victims in a blood feud which had arisen from a property dispute between their father and the "S" family. It was accepted by the respondent that there was a property dispute and that proceedings were issued in the civil courts which were resolved in the appellant's father's favour, but further that there were continuing proceedings. The respondent took the view that this was not a blood feud and that the appellants could return to Albania where protection was available.

3. In support of their claim the appellants relied on documentary evidence which included a request for police assistance dated 20.4.2012 from a bailiff in enforcement proceedings and a letter from the bailiff dated 18th July 2016. There was in addition a letter dated 23.7.2016 from the advocate acting for the family in the property dispute and an internal police report dated July 2015. Reliance was placed on an expert report.

First -tier Decision

4. The FtT took into account that the appellants were minors aged 17 years and 14 years when they claimed asylum and correctly applied the guidance dealing with young and vulnerable appellants. The FtT proceeded by looking in particular at the objective material to support the claims made by the appellants. The FtT accepted that there was an acrimonious property dispute which involved civil proceedings and the bailiff requested police assistance [26-29]. It found that the civil proceedings concluded in 2010 and the property was vacated in 2012. The FtT then considered whether or not the dispute had developed into a blood feud. She referred to the guidance in EH (blood feuds) Albania CG [2012] UKUT 00348 and assessed the factors relevant to the existence of a blood feud. She found that the dispute was not a blood feud [30-35] having regard to the fact that there had been no deaths nor direct threats made to the appellants, that they had continued to go out of the house until their departure from Albania in December 2014 and there was no reference made by the police or the advocate to the existence of any threats to the appellants or to a blood feud. That documentary evidence referred to a property dispute that continued over a long period of time. There was no evidence of the "S" family having the power or capability to pursue a blood feud in Albania. It was likely that the appellants remained in contact with their family; the first appellant stated in his asylum interview in May 2015 that his father faced no problems and continued to reside at home. The FtT found no documentary evidence that the dispute was continuing and placed reliance on the fact that the letter from the advocate and the police report made no reference to continuing proceedings, whilst acknowledging that a witness statement confirmed that proceedings continued in the High Court [29].

Grounds of application for permission to appeal

5. The FtT impermissibly required corroborative documentary evidence of continuing court proceedings and of the disappearance of the appellants father which had been given in witness evidence (Ground 1). The appellants contended that the FtT failed to make findings as to whether it accepted or rejected the relevant documentary evidence from the bailiff that there was violence of a life threatening nature between the parties to the dispute (Ground 2). Further it was contended that the FtT wrongly went behind an agreed concession that there was a property dispute and specifically that the court proceedings were continuing (Ground 3).

Rule 24 response

6. The respondent opposed the appeal arguing that the FtT properly considered all the evidence and reached conclusions open to it. The bailiff's letter had been taken into account by the FtT and it had not been rejected. The FtT considered the evidence in the round and had not required the appellants to provide corroborative documentary evidence in support.

Grant of permission

7. Permission was granted by Designated Judge of the First-tier Tribunal McCarthy on 23rd September 2016. He found that Ground 1 was not made out. The FTJ was merely recording that there was no documentary evidence showing that the court proceedings were on going. This cannot be read as a requirement for corroboration. Ground 3 was not made out as the concession was limited to the fact that a property dispute continued, and that the FtJ was recording that there were no court documents showing that matters were on going. Ground 2 is made out because the FtT recorded the evidence of the bailiff's letter but did not make any finding as to whether it was reliable or not. It has the potential to be independent verification of the appellants claim of being involved in a violent blood feud.

Submisssions

8. Dr Moffat relied on all the grounds and expanded on the same. The FtT failed to make findings in respect of the bailiff's evidence of grave conflict that was physical and life threatening. This evidence was relevant and material to the issue of an active violent blood feud . Further by in effect requiring documentary evidence the FtT was importing a standard higher than applicable in asylum matters. The FtT ought to have expressly rejected the oral evidence that dealt with the material issues. The FtT was wrong to make an adverse finding on a matters agreed by the respondent.

9. Mr Staunton submitted that the bailiff's letter had been taken into account and set out in [27]. The FtT reached findings on the evidence and gave sufficient reasons why she found no blood feud. The overall findings were sustainable and the appellants concerns were not sufficient to undermine those findings. Mr Staunton adopted the reasons given by the permitting Judge as to grounds 1 and 3.

Discussion and conclusion

10. I am satisfied that the FtT proceeded to determine the appeal having regard to findings of fact supported by the evidence, and that her decision was adequately reasoned. In particular the FtT found that there was a property dispute which was acrimonious and which had involved the court bailiff requesting police assistance for protection [27-29]. In terms the FtT states "it is clear from these documents ?" which is wording that in my view establishes that the FtT accepted the contents of the documents from the bailiff. It cannot be argued that this evidence was not taken into account. The second ground is not made out in the light of the fact that the FtT fully accepted that the property dispute was acrimonious but nevertheless concluded having regard to all of the evidence in the round that it had not developed in to a blood feud. The FtT placed weight on the documentary evidence of the police report and the advocates' letter both of which made no reference to any blood feud but rather to a property dispute. The police report concludes, "These provide evidence of the long property feud between these families." Indeed the appellants own expert made no reference to on going court proceedings and his opinion is premised on his understanding that the appellant's father won his case (page 2 expert's report).

11. As to the issue of the continuing civil proceedings I am satisfied that the FtT was referring to the lack of documentary evidence of on going proceedings. The FtT clearly accepted that there was an acrimonious property dispute and found that the proceedings were concluded in 2010 and the property vacated in 2012 [35]. It may be that the FtT erred in finding that the proceedings were not on going contrary to oral evidence which was not specifically rejected, but I am satisfied that this was not a material error of law. The FtT concluded that the property dispute had not developed into a blood feud and the fact that the proceedings were on going does not in my view make it more likely that it was a blood feud involving threats to kill the appellants. Arguably the existence of court proceedings indicated that the parties were dealing with the dispute through legitimate channels, which was the position taken by the respondent.

12. The FtT properly took into account that the appellants were minors. The FtT had regard to the appellant's expert report and followed the CG case EH with specific reference to the headnote at [30]. The FtT was entitled to find that there was contact with their father relying on the response given in interview in May 2015 that their father was at home and had not experienced any trouble. She was entitled to place no weight on the appellants evidence and witness statement of the appellants sister in which she states that threats continued to be made in 2015 and resulted in their father fleeing from Albania.

13. I have considered the grounds raised both separately and collectively and remain of the view that this is a well reasoned decision. The grounds of appeal are not made out. The FtT conducted a careful analysis of the evidence and assessed the same focusing on whether or not there was a blood feud with reference to EH, which was not the same as establishing a violent property dispute. It is clear from the decision what evidence she relied on and why in support of her conclusions.

Decision
14. There is no material error of law disclosed in the decision which shall stand.

The appeal is dismissed.

Signed Date 28.10.2016

GA Black
Deputy Judge of the Upper Tribunal

NO FEE AWARD

Signed Date 28.10.2016

GA Black
Deputy Judge of the Upper Tribunal