Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12913/2015

THE IMMIGRATION ACTS

Heard at RCJ
Decision & Reasons Promulgated
On 9 November 2016
On 18 November 2016

Before

UPPER TRIBUNAL JUDGE McWILLIAM

Between

AEZ
(ANONYMITY DIRECTION MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Miss A Hena, Counsel, instructed by Virgo Solicitors
For the Respondent: Mr E Tufan, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Albania and his date of birth is 14 September 1999. He appealed against the decision of the respondent of 9 August 2015 to refuse his application for asylum. Because of the appellant's age he was granted discretionary leave until 14 March 2007, but his application for asylum was refused. The appellant appealed against the decision of the respondent and his appeal was dismissed by Judge of the First-tier Tribunal Nightingale in a decision promulgated on 18 August 2016 following a hearing on 3 August 2016.

2. The appellant's case is that he is at risk on return to Albania as a result of a blood feud. His evidence is that a maternal uncle of his was blamed for the death of members of the [R] and [H] families. The appellant's evidence is that he was raised by his maternal family, his parents having separated and as a result of this he is at risk on return.

3. The First-tier Tribunal Judge dismissed the appeal and the appellant was granted permission to appeal by First-tier Tribunal Judge Saffer in a decision of 16 September 2016.

4. The appellant at the hearing before Judge Nightingale gave oral evidence as did his uncles, EL and JL. First-tier Tribunal Judge Higgins allowed EL's appeal on asylum grounds on the basis of a blood feud on the same facts as those now relied on by the appellant. Judge Higgins found that EL was an impressive witness.

5. Judge Nightingale made a number of findings as follows:
"35. In claims brought by minors, it may often be the case that more weight needs to be given to the background evidence surrounding a claim which has been made. The appellant is a minor who claims to be a target in a blood feud in northern Albania. However, the incident which gave rise to the blood feud in question involved the appellant's paternal uncle. The background evidence strongly indicates that it is the male relatives of the individual in question who by Kanun law become targets of the feud. It is said that the appellant became a target, contrary to this law because he had been raised in the household of his maternal grandparents. However, the evidence as to whether or not he was raised in that particular household is inconsistent. The appellant claims that he was raised in that household, but [EL], who has been granted asylum on the basis of this blood feud, stated very clearly before me in his evidence that the appellant was not raised in that household but in the same village one minute's walk away. In contrast, the second witness claimed that the appellant was raised in that household, and that he had spoken to him by Skype at that address. However, I bear in mind that the second witness left Albania in 2001 and in his evidence before me he indicated that the appellant had not moved back to Albania with his mother at the time that he left his family and came to the United Kingdom. I am therefore left in considerable doubt as to whether this appellant was, in fact, raised in the same household as claimed when [EL] stated clearly that he was not in the same house. This removes one of the central planks of the appellant's claim to be targeted, despite the fact that he is on the maternal line, on the basis of being a member of the household of the [L] family.
36. There has also been an inconsistency in the appellant's evidence as to when he became self-confined. In his asylum interview and, also, in his most recent witness statement at paragraph 4, he stated that he was in self-confinement since 2011. He also states that he was in self-confinement since the age of 15, which would have been 2014 and not 2011. Given the severe limitations that are placed upon youngsters who are targeted in blood feuds by the need to go into self-confinement, I do not accept that the appellant would be confused as to whether or not he had been in self-confinement for one year or three years prior to his departure from Albania. I find that this, too, is an inconsistency which goes to the heart of his claim and I find that it does considerable damage to his overall credibility notwithstanding his age.
37. I have read the decision of Judge Higgins with care in respect to the asylum claim of Mr [EL]. Mr [EL] is, of course, a male relative of [AL]. That he would become a target in a blood feud is, I find, in accordance with the background evidence. The appellant, of course, is the son of [AL]'s sister who is not a male relative. It was claimed by the second witness that there is Skype communication available in the family home in Albania and that he has personally used it to communicate with the appellant at that address. That does not, of course, mean that the appellant was living in that household at the time that the communication took place. Nonetheless, it is clear that there is technology for both of the witnesses to speak regularly to their parents and other family members in Albania. I can therefore find no reason whatsoever as to why [EL] would be unaware of the status of the blood feud and so unsure as to whether it had been abandoned on the part of the [R] family. Before Judge Higgins, [EL] claimed that the [R] family were persuaded to abandon their feud in 2003. This runs contrary to the appellant's evidence that he was told in 2011 that both of these families were still pursuing a blood feud. [EL] also stated before me that he thought that the [R] family were still pursuing this blood feud, and it was only when this discrepancy was put to him directly that he said that he "was not sure" but thought that this might be right. Notwithstanding his grant of asylum, and the findings made by Judge Higgins, before me I found [EL] to be evasive, vague and inconsistent on this particular point.
38. I also do not seek to go behind the findings of fact made by Judge Higgins, but these relate to the male relatives of [AL] at the hands of the [H] family. Whilst I am prepared to accept that those in the paternal line may have been at risk as a result of this blood feud, I do not accept on the lower standard applicable that this appellant is at such a risk. I also note that he stated clearly on several occasions that he had no passport and that he left Albania illegally smuggled in a lorry. That is clearly contrary to the information provided by the British Embassy in Tirana who record that, in fact, the appellant left legally using his own Albanian passport to travel to Montenegro on 20th September 2014. I find this to be a clear inconsistency with the appellant's initial account to have boarded a lorry and left illegally in the company of an agent. I am unpersuaded by the appellant's explanation that he did not know that his own national passport was used to depart, and I find it highly unlikely that it would not have been checked on the border.
39. Considered in the round, I found the appellant's account to be inconsistent with background evidence relating to blood feuds in Albania and the manner in which they are pursued. I have found a number of internal inconsistencies in the appellant's account. It has not been established on the lower standard applicable that this appellant personally has been the target for a blood feud or that he is at any risk of serious harm at the hands of the [H] family in Albania. I would reject his asylum claim on this basis and also his claim on Article 3 grounds for the same reason."

6. The grounds refer to the finding of the judge at [35] that there was considerable doubt as to whether the appellant was raised in the same household as the he claimed because EJ's evidence was that they were not in the same house. It is asserted that the judge misunderstood the evidence. There was no inconsistency in the evidence. EL stated in evidence in chief the following: "Appellant grew up with us ... We are all one family, we live in the same village, all [L]."In any event, it is argued that the nature of Kanun law is such that all males from the family would be the target of a blood feud and it is not material whether EL lived with the appellant's maternal grandparents or not.

7. I heard submissions from both representatives. Mr Tufan conceded that the finding at paragraph 35 relating in issue was not "strong," but in his view it was not material in the light of the findings as a whole because there were a number of problems with the appellant's evidence and a number of adverse findings made.

Conclusions

8. The evidence of EL was that the appellant was raised in the same village and raised by the maternal family. It is his evidence that they were not living under the same roof but that he, EL, lived a one minute walk away. The evidence of JL was that the appellant was living with his (JL's) parents (the appellant's grandparents). The appellant's evidence was that he was living with his grandparents. To this extent there was no inconsistency. Whilst there was some ambiguity in the evidence of the appellant. The use of the word "household" should have been considered in the context of the evidence of EL, namely that the family was all living together in the same village. The evidence was consistent in so far as the appellant lived with his maternal grandparents.

9. In respect of materiality, I accept that there were problems with the appellant's evidence generally, particularly in relation to confinement, and I refer specifically to paragraph 36 and the evidence in respect of the appellant's father about which the judge did not make findings. However, having taken into account the final two sentences of paragraph 35, I cannot conclude that the error is immaterial to the outcome in this case. Particularly in the light of the decision of Judge Higgins and the evidence that was before him and the First-tier Tribunal relating to a blood feud concerning the appellant's maternal family.

Notice of Decision

10. For this reason I conclude that the judge materially erred and set aside the decision to dismiss the appellant's appeal. No findings of fact can be salvaged as a result of the nature of the error of law and both parties agreed that in these circumstances the matter should be remitted to the First-tier Tribunal for a rehearing.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is 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 appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Joanna McWilliam Date 16.11.16

Upper Tribunal Judge McWilliam