Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12920/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 November 2016

On 05 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

SD
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation
For the Appellant: Mr J Dhanji, Counsel instructed by Malik and Malik Solicitors
For the Respondent: Mr P Singh, Home Office Presenting Officer

Anonymity

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

DECISION AND REASONS

1. The appellant is a citizen of Albania born on 1 May 1987. On 15 July 2014 she entered the UK unlawfully and shortly thereafter, on 4 August 2014, applied for asylum. On 21 September 2014 she gave birth to a daughter.

2. The basis of the appellant's asylum claim is that she is a victim of trafficking who was forced into prostitution by a former boyfriend. She claims that if returned to Albania she would be at risk from, and the state would not provide sufficient protection from, both the trafficker and her father. The appellant's asylum application was refused and her subsequent appeal to the First-tier Tribunal ("FtT"), which was heard by FtT Judge Robertson, was dismissed. The appellant now appeals the decision of the FtT.

3. The factual background to this appeal is not in dispute and can be summarised as follows:
a. The appellant is from a traditional Muslim family. She is separated from her husband, who left her in 2010.
b. In August 2013, whilst living with her parents and attending a seamstress course, she met a man called Artur, with whom she commenced a relationship and moved to Tirana against her father's wishes. Her father threatened to kill her because of the shame she was said to have caused the family.
c. Artur forced the appellant to work as a prostitute. He was violent, confined her to the flat where she worked, and threatened to kill her.
d. The appellant became pregnant (the identity of the father is not known).
e. In around June 2014, Artur took the appellant to an abortion clinic. She escaped and was sheltered by a friend.
f. The appellant contacted her mother who told her that she was unable to assist her as her father may kill her and that Artur had threatened to kill her family if they did not reveal where she was.
g. The appellant went to a police station where she was treated without sympathy and no report was made.
h. With the assistance of her friend's father, she left Albania through an agent and travelled to the UK by lorry.
i. She has a brother in the UK who initially assisted her but has now distanced himself.
Decision of the First-tier Tribunal

4. In a decision promulgated 18 July 2016 the judge stated that neither the appellant's credibility nor her account had been challenged and that the only issue was the risk she would face and the sufficiency of protection she would receive on return to Albania.

5. The judge cited the recently reported Country Guidance case concerning trafficked women from Albania TD and AD (Trafficked women) CG [2016] UKUT 00092 (IAC) and at paragraph [13] set out the headnote in full.

6. At paragraph [14] the judge considered the appellant's mental health, finding that she was depressed but not at the level of a serious psychiatric condition leading to particular vulnerabilities. The judge compared her mental health to that of the appellants in TD and AD and concluded that her condition was not as severe.

7. At paragraph [15] the judge considered the appellant's relationship with her family, and concluded that she would not receive any support and assistance.

8. At paragraph [16] the judge considered the appellant's contact with the police and stated:
"I accept the attitude of the police when she approach[ed] them was not helpful, but I also note that she made only one attempt. I do not accept that this one instance should reasonably prevent the appellant seeking protection from the police in the future particularly given the implementation of the National referral mechanism as detailed in TD and AD."
9. At paragraph [17] the judge considered the implications of the appellant having a child and found that although she would face discrimination she would be able to benefit from the state's reception and reintegration programme.

10. At paragraph [17] the judge also considered the appellant's education and possibility for employment. The judge found that the appellant had only a basic education but because she had completed a seamstress course had a trade with which she could obtain employment. The judge stated that the appellant is now 29 and will have the maturity to build a life for herself and a child.

11. The judge then concluded that there is viable support available to the appellant in Tirana and that she could - and would - avail herself of state protection.

12. The judge also considered whether removing the appellant from the UK would be contrary to Article 8 ECHR and found that it would not.

Grounds of appeal and submissions

13. The grounds argue that the judge failed to properly apply TD and AD.

14. It is argued that the judge failed to take account of the guidance in TD and AD about the difficulties faced by victims of trafficking with little education and vocational experience or recognise similarities between the appellant's circumstances and those of TD in TD and AD.

15. The grounds also argue that the judge failed to address the appellant's submissions about the difficulties of having an illegitimate daughter or take account of the practical difficulties she would face as a consequence after leaving a shelter, as highlighted in TD and AD.

16. A further argument is made that TD and AD identifies being disowned by family as a characteristic indicating risk on return but the judge failed to "extrapolate this conclusion from her findings".

17. At the error of law hearing, Mr Dhanji argued that the judge had failed to apply TD and AD comprehensively or to address the factual similarities between the appellants in that case and the appellant in this appeal. TD was a similar age with similar employment prospects to the appellant. Yet, in contrast to the judge in this appeal who found that the appellant was likely the find employment, the panel in TD and AD were pessimistic about TD's future and concluded that she was likely to end up working in the "grey economy". Mr Dhanji's argument, in sum, was that the judge had not properly grappled with the analysis in TD and AD concerning employment prospects for a returned victim of trafficking.

18. Mr Dhanji also contended that the judge had failed to address that the appellant's circumstances, as the mother of an illegitimate child, were similar to those of AD in TD and AD, where the panel highlighted the social stigma and practical challenges AD would face as a single mother after leaving a shelter.

19. Mr Singh's response was that the judge had addressed the factors in TD and AD and that the appellant's arguments amounted to no more than a disagreement with the judge's findings.

Consideration

20. The panel in TD and AD found that in general there is Horvath standard sufficiency of protection in Albania for victims of trafficking but that it will not be effective in every case and therefore that when considering whether there is sufficiency of protection the particular circumstances must be considered.

21. The panel in TD and AD also found that unless an individual has particular vulnerabilities such as physical or mental health issues, the option of staying in a shelter upon return "cannot be said to be unreasonable" and "whether it is must be determined on a case by case basis". They found that once a woman leaves a shelter she will face significant challenges and that some women will be able to manage without undue hardship whereas others will have "characteristics, such as mental illness or psychological scarring, from whom living alone in these circumstances would not be reasonable".

22. The panel emphasised that whether a woman would be at risk or would have access to sufficiency of protection in Albania will depend on her individual circumstances. Relevant factors include, but are not limited to:
The social status and economic standing of her family
The level of education of the victim of trafficking or her family
The victim's health, particularly her mental health
The presence of an illegitimate child
The area of origin
Age
What support network will be available
23. The focus of Mr Dhanji's argument was that the judge had not dealt properly with the implications of the appellant having limited education/qualifications and having an illegitimate child. However, the judge did consider these factors. At paragraph [17] the judge explained why she was of the view that the appellant would be able to obtain employment notwithstanding her limited education (she had completed a seamstress course) and why she would be able to cope even though she has an illegitimate child (it was found that she would be able to make use of the reception and reintegration programme and did not have any particular vulnerabilities). There is no inconsistency between these findings and the country guidance in TD and AD.

24. Mr Dhanji argued that the judge had overlooked, or failed to properly take account of, the similarities between the appellant and the appellants in TD and AD. I do not agree.

25. The judge's unchallenged finding about the appellant's mental health, as set out in paragraph [14], was that she "is depressed which can be worsened with stress but this is not in the realms of a serious psychiatric issue leading to particular vulnerabilities". This stands in stark contrast to the appellants in TD and AD, both of whom were found, on the basis of expert evidence from a clinical psychologist, to have mental health illness of the utmost severity that impeded their ability to cope and function. This finding about the TD and AD appellants' mental health was integral to how their individual circumstances were assessed. Given the difference in mental health between the appellant in this case and those in TD and AD any attempt to compare aspects of their lives, such as their capacity to find work or look after a child, is of limited value.

26. What TD and AD requires is not an attempt to compare the individual circumstances of the appellants in that case to those of the appellant in this case but rather that the appellant's individual circumstances are properly considered. I am satisfied that this is what the judge has done. It is evident from the decision that the judge has understood and applied the relevant Country Guidance case TD and AD. In accordance with that case, she has considered all of the material information before her about the appellant, such as her mental health, age, potential isolation, prospect of employment, the presence of an illegitimate child and her background, and based on this evidence reached a conclusion about appellant's risk on return. There is no error in the approach taken by the judge and the decision she reached was one that was open to her based on the evidence and a proper application of TD and AD.

Decision
A. The decision of the First-tier Tribunal did not involve the making of a material error of law and shall stand.
B. The appeal is dismissed.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 5 December 2016