Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13021/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1st February 2017
On 13th February 2017

Before

UPPER TRIBUNAL JUDGE KING TD

Between

the Secretary of State for the Home Department
Appellant
and

MISS E P
(ANONYMITY DIRECTION made)
Respondent/Claimant

Representation:
For the Appellant: Ms Z Ahmad, Home Office Presenting Officer
For the Respondent: Ms A Patyna, Counsel, instructed by Kilby Jones Solicitors LLP

DECISION AND REASONS

1. The claimant, born on 20th August 1988, is a citizen of Albania. She has two children dependent upon her claim born on 26th November 2010 and 28th October 2013 respectively.

2. The claimant sought to claim asylum on the basis that she was in danger were she to be returned to Albania. That claim was refused by the Secretary of State for the Home Department on 25th October 2015.

3. The claimant sought to appeal against that decision, which appeal came before First-tier Tribunal Judge Graham for hearing on 22nd July 2016. The Judge found the claimant to be credible in her claim and so allowed the appeal on asylum grounds and on the basis of human rights grounds.

4. The Secretary of State for the Home Department seeks to challenge that decision, in particular that the Judge failed to engage with the issue of internal relocation to the extent of giving no reasons why it would be that the claimant would be at risk living in the southern part of Albania rather than the north. Further, in assessing the claimant to be a vulnerable person within the consideration of the case of TD and AD (Trafficked women) CG [2016] UKUT 00092 (IAC), the Judge had placed undue weight upon the health of the claimant and of her lack of education and employment. It said in particular that there was treatment available to the claimant in Albania to deal with her condition and that she was in fact somebody of good intelligence and could support herself in all the circumstances.

5. It is of significance in this appeal that the fundamentals of the factual basis of the claim are not in issue. The claimant married in 2007 but that marriage ended in 2011 because of her husband's alcohol abuse. The claimant took her elder daughter to Italy where she lived with her sister. She began working in a bingo hall where she met E, an Albanian. They began a relationship. The claimant left her daughter with her sister believing that E was taking her on holiday to Venice, but instead she was forced into prostitution. One of her clients lent assistance to facilitating her escape. The claimant collected her daughter from her sister and made their way to the United Kingdom, subsequently to make a claim for asylum. As a result of her life in prostitution she became pregnant and her younger daughter was born.

6. The fear which she expressed to the authorities in her claim was that she would be killed or punished by her ex-husband, the traffickers and her own family because of family honour.

7. The following facts were found by the Judge, namely:-

(1) the claimant was a victim of trafficking;

(2) she would not have the support or protection of her parents and would be ostracised from her husband and his family;

(3) her father has threatened her if she returns;

(4) the claimant's family may force the claimant to abandon her youngest daughter, indeed, her ex-husband could claim custody of the eldest child;
(5) the claimant will be considered to have broken the code of honour by leaving her husband for another man and giving birth to an illegitimate child, notwithstanding the circumstances involved; and

(6) the claimant is at risk of retrafficking, either by E or generally because of her poor social circumstances.

8. In general terms there are no challenges to those findings otherwise than a reasons challenge as to why the claimant would be subject to retrafficking.

9. The Judge found, in the light of the guidance set out in the country guidance case of TD and AD, that the claimant would be at risk in the north of Albania if she returns to her home area. There has been no challenge to that finding and it seems to me entirely reasonable that such a finding is made.

10. The fundamental challenge is as to the finding of the Judge that there is no reasonable prospect of relocation.

11. The finding of the Judge in that connection is set out at paragraph 43:-

"... or alternatively, the Appellant is at risk of traffickers generally in Albania because of her poor social circumstances, her mental health condition and her difficulty in reintegrating into a new and unfamiliar area with two young dependent children. In all the circumstances I find it unreasonable to expect this Appellant to relocate within Albania."

12. It is clear from TD and AD that decision makers are invited to have regard to a number of matters which include but are not limited to the following:-

(1) the social status and economic standing of her family;

(2) the level of education of the victim of trafficking or her family;

(3) the victim of trafficking's state of health, particularly her mental health;

(4) the presence of an illegitimate child;

(5) the area of origin;

(6) age;

(7) what support network will be available.

13. In TD and AD consideration was given first of all to the services available within the shelters to trafficked women. Such matters are set out in some detail at paragraphs 97 to 104. The Tribunal regarded it to be reasonable to expect a victim of trafficking to reside in a shelter, which would provide an adequate protection against any risk. The being said, the Tribunal recognised that such accommodation is limited in duration so that the focus of the country guidance decision was upon life outside the shelters, particularly as specified in paragraphs 105 to 112 of the judgment.

14. The Tribunal recognised that women face numerous obstacles not limited to financial hardship but difficulty in finding secure employment, housing, poverty, discrimination and stigma, isolation and often restricted access to mental services. The significant effect of such factors may render internal flight as unreasonable. It is also considered that certain vulnerability can also create an unexceptionally high risk of retrafficking or other harm. The Upper Tribunal in TD and AD did not find it in general impossible for a woman to live on her own in Tirana, particularly those who are able to work for an employer and can support the cost of accommodation. Women who have been able to put together the skills they have acquired in shelters to good use, even flourish in their new vocations. For such women there will be a meaningful net gain from the packages such as those offered by the IOM. It was recognised, particularly as set out in paragraph 109, that for less resilient or adaptable women the path to financial independence is not so straightforward. The problem being that women in Albania tend to find work in the low-skilled informal sector where employment is not secure or protected, or where wages rarely keep up with the cost of living. It was submitted that it was often very difficult to live alone because of the financial constraints that women face and some face the same problems that they faced before they were trafficked. Thus the Tribunal stressed that it was important to consider the circumstances of an individual, including her strength, age and psychological make-up. Psychological support was patchy after leaving the shelters. An individual may be required to pay for mental health care which increases her financial burden. These are all matters which are relevant to the consideration of whether or not internal flight is reasonable or not.

15. It seems to me, and I so find, that that was precisely the approach taken by the Judge in determining this case. The claimant suffers from mental health difficulties, particularly depression and anxiety. It seems a matter of common sense that that is a factor contributing towards being vulnerable. There may not be access to healthcare and that may or may not involve financial outlay which the claimant finds difficult to meet. She is, albeit, a relatively young woman, somebody without any social network who has the difficult task of bringing up two young children. Without support that necessarily makes working difficult. Contrary to the suggestion in the grounds of appeal, the Judge is not indicating the claimant will be unable to work, but rather that she is in not a good position to do so. She did not complete her studies, albeit that she was intelligent enough to have done that had the time permitted. Her previous work experience had been working with her husband's company. That means, therefore, that she has limited employment options, given her failure to complete her education, and additionally has childcare responsibilities.

16. In terms of being retrafficked, it is clear that the Judge bore in mind that the trafficking itself occurred in Italy, but that the traffickers, particularly one of them, had expressed a continuing interest in the claimant by issuing threats to the sister. There was a particular concern by an individual living in the adjacent country and also that the social conditions of the claimant may be such that she might be tempted to work in circumstances which led her also to be further trafficked. Thus it was made clear by the Tribunal at paragraph 112 of TD and AD that women who are socially isolated and suffering from the consequences of their past experiences are already vulnerable and where they are placed upon an additional strain of financial hardship this can render them even more susceptible to the advances of those who would seek to exploit them.

17. I find that the Judge has carefully followed the guidance as set out in the country guidance decision and has looked with care at the various factors highlighted. The conclusion that the claimant cannot relocate is a sustainable one, one properly arrived at by having regard to the relevant considerations. The reasons for coming to that conclusion are clearly stated.

18. When taken as a whole, I find the decision to be a careful one that properly justifies the position which has been taken by the First-tier Tribunal Judge as to risk upon return home and/or internal relocation. I find nothing of merit in the challenge.

Notice of Decision

19. In those circumstances the appeal by the Secretary of State is dismissed. The decision of the First-tier Tribunal upholding the appeal of the claimant is affirmed, such that the appeal remains allowed upon asylum grounds.

20. The finding of the Judge unchallenged was that the best interests of the children rested in living in the United Kingdom. No challenge has been mounted to the issues on human rights. Accordingly, the decision of the First-tier Tribunal allowing the appeal on human rights grounds is also upheld.

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 her or any member of her 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.

No order as to costs

Signed Date 10 February 2017