Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13390/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22 July 2016
On 17 August 2016

Before

UPPER TRIBUNAL JUDGE O'CONNOR

Between

mM
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms O Mustapha, instructed by Wai Leung Solicitors
For the Respondent: Mr S Whitwell, Senior Presenting Officer

ANONYMITY
I make an anonymity order under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008. Unless the Upper Tribunal or a Court orders otherwise, no report of any proceedings or any form of publication thereof shall directly or indirectly identify the Appellant. This prohibition applies to, amongst others, all parties and their representatives.

DECISION AND REASONS

Introduction
1. The appellant is a national of Albania, born in 1997. She left Albania with her husband in 2014 on honeymoon, having had no problems in Albania before doing so. She and her husband met some Albanian males in Paris, were kidnapped and the appellant was forced into prostitution. She escaped with the assistance of a benefactor and came to the United Kingdom, claiming asylum here on 27 May 2014. The appellant gave birth to her daughter on [ ] 2015. She is unsure as to whether the father of the child is her husband or whether the child was born through circumstances appertaining during her captivity in France.
2. The appellant was referred to the National Referral Mechanism. On 1 October 2015 it was concluded that she was a victim of human trafficking or slavery, servitude or forced/compulsory labour. In light of this decision the Secretary of State broadly accepted the appellant's evidence given as to the circumstances set out above. Nevertheless, by way of a decision of 16 November 2015 the Secretary of State refused to grant the appellant asylum, this being on the basis that there would be a sufficiency of protection available to her upon return to Albania or, alternatively, that she could internally relocate therein.
3. The appellant appealed the SSHD's decision to the First-tier Tribunal ("FtT"), that appeal being heard by FtT Judge M. A. Khan on 25 April 2016 and dismissed on all grounds in a decision issued on 17 May 2016. The appellant now appeals to the Upper Tribunal with the permission of FtT Judge Page, granted on 15 June 2016. Thus the matter comes before me.
Decision of the First-tier Tribunal
4. The appellant maintained before both the Secretary of State and the First-tier Tribunal that she had contacted her parents in Albania after her arrival in the United Kingdom and that they had effectively disowned her because of the shame that she had brought onto the family. She further confirmed that she had not contacted her husband, her in-laws or her sister living in Tirana.
5. Under the heading "Findings of Credibility" the FtT said as follows
"38. The appellant's evidence before the tribunal with regards her contacts with her family, in particular her sister, husband and her in laws was extremely vague and evasive. In her asylum interview, the appellant clearly stated that she wished to contact her parents, husband and rest of the family. She stated that she did not have any fear from her family and her husband. In her written statement at paragraph 38, 39 and 40, she states that she did not want to contact her family because she feared that they would kill her because of the shame she has brought upon the family as a victim of human trafficking. In her oral evidence, the appellant stated that she did not want to contact her in laws to find out what had happened to her husband. She did not do so because she did not have their telephone number. I find the appellant's evidence contradictory and inconsistent.
39. The appellant states she telephoned her parents on 29/07/2014 and told them what had happened to her and that she was pregnant. She states that they told her that they did not want to have anything to do with her. She states that because of this, she had not contacted any other member of her family. The appellant has not done anything or taken any step to trace or make contact with her sister, husband and her in laws. The appellant's evidence is that her husband could be her daughter's father, the only way to find out is to trace him and have a DNA test carried out, that is if he does not accept to be the father of the child. The appellant is aware that her husband and his family live in the same block of flats as her parents when they are in Albania and she knows their place of residence on the Greek Island of Rhodes. I do not find it credible or consistent that she would not try to make a contact with her family, directly or through the Red Cross.
40. The appellant was trafficked by three Albanians in France, her evidence is that she cannot return to Albania because of fear that these three men may re-traffic her from there. The basis upon which she makes this claim is that these men knew where she lived in Albania, they took her ID card. The question I put to the appellant was how would these three men come to know that she has returned to Albania? The appellant gave a vague answer which does not make sense. I do not find the appellant's claim credible that these three men will re-traffic from Albania, whereas they were in France and for all we know they may still be in France.
41. The appellant has a sister living in Tirana, her evidence is that if she was in Tirana, she could find her sister's residence and make her way there. The appellant said that she had her sister's contact when she was in Tirana but has not contacted her since her arrival in the UK. I find that the appellant can return to Tirana and seek help from sister to settle there.
42. In her response to my questions, the appellant stated that she did not want to contact her family, her husband and wanted to stay in the UK. She said that she has a daughter and they expect her to have children with her husband, however, she does not know that her husband may well be the father of her child. The husband is fully aware of the appellant's circumstances from what happened to them in Deppe, France. The appellant has simply assumed that he would not accept her without seeking him out and find out for sure that his views are about their future life."
6. As to the conclusions relating to the risk to the appellant upon her return to Albania the FtT continued:
"43. Although, I find that the appellant's credibility has been totally discredited, I still have to assess the possibility of risk of persecution on the appellant's return to Albania. ...
44. On the evidence before me, on the lower standard of proof, I find that the appellant has failed to establish that she is at risk on her return to Albania. She has failed to show that she will be re-trafficked and the authorities there will not be able to protect her from any future harm. In the case of AM and BM (Trafficked women) Albania CG UKUT 80 it is stated;
'We find it is clear from the evidence that a victim of trafficking, especially if accompanied by a small child, would find it significantly more difficult to achieve reintegration into Albanian society than would be the case in many other countries. But that does not mean that all such victims of trafficking will fail to re-establish themselves. Each case will turn upon its particular facts. Among the features or characteristics that will be relevant to such an assessment are these: The social status and economic standing of the appellant's family; The level of education of the appellant and her family; The appellant's state of health, particularly her mental health; The presence of an illegitimate child; The area of origin of the appellant's family; The age...
We consider women from wealthier backgrounds or those who are better education would find it easier to reintegrate. Women from those groups would, however, be far less likely to be trafficked in the first place'.
45. The appellant in this case stated in her evidence that her family are not strict, she has a sister living in Tirana who could help and assist her in reintegrating in Tirana. On the evidence, on the lower standard of proof, I find that this appellant can safely return and re-establish herself with her child in Albania, particularly in Tirana."
Discussion and conclusion
7. The grounds of appeal in support of the application for permission to appeal and excessive in length and lack clarity. With some difficulty the following submissions can be extracted therefrom:
(i) The First-tier Tribunal's conclusion regarding the appellant's evidence as to the contact with her parents and her parents' reaction to her situation is flawed because:
(a) The evidence given by the appellant was not inconsistent as concluded;
(b) The First-tier Tribunal failed to take into account the fact that victims of trafficking are stigmatised and discriminated against in Albania, as is clear from the background evidence. The appellant's account is consistent with such evidence;
(c) The rejection of the appellant's evidence was irrational in all the circumstances of the case.
(ii) The First-tier Tribunal erred in failing to properly take cognisance of the country guidance decision of AM and BM (Trafficked women) Albania CG [2010] UKUT 80 (IAC);
(iii) The First-tier Tribunal erred in paragraph 45 of its decision when relying on the matters of fact identified therein.
8. At the hearing Mrs Mustapha reiterated grounds previously pleaded and sought to pursue, without initially seeking the permission of the Tribunal, additional points not previously raised. Insofar as such permission was belatedly sought, it was refused.
9. Mr Whitwell submitted that the FtT had taken full account of the guidance given by the Tribunal in AM and BM, had grappled fully with all of the issues before it and given adequate reasons for the conclusions it reached. He reminded the Tribunal that the Tribunal had rejected much of the appellant's evidence and submitted that as a consequence there were no positive features which could have led the tribunal to allow the appeal.
10. Having given careful consideration to the FtT's decision, and the evidence and information before it, I find such decision to be flawed by legal error in a number of respects.
11. First, I concur with Ms Mustapha's submission that the FtT's finding that the appellant gave contradictory and inconsistent evidence on the issue of contact with her family and her family's response, lacks the necessary adequacy of reasoning and, on the face of the evidence that is disclosed in the papers before me, is irrational.
12. Nowhere in its decision does the FtT particularise the inconsistencies relied upon and, in any event, in my view it cannot rationally be said that there is an inconsistency in the appellant asserting in her asylum interview that she wished to have contact with her parents, husband and rest of the family but thereafter, in a written statement drawn up some two years after the interview on 11 April 2016, stating that she no longer wished to make contact with her family. This is particularly so in light of the intervening event promptly disclosed by the appellant; namely, that she had made contact with her parents after her asylum interview but that they said they no longer wished to have anything to do with her because she had brought shame on the family.
13. Furthermore, as Ms Mustapha identified during her submissions, the claimed behaviour/response of the appellant's parents is entirely consistent with the norm in Albania - as disclosed by the background evidence that was before the FtT and the then extant country guidance decision.
14. Given aforementioned explanation, the consistency of the account with the background evidence and the acceptance of large parts of the appellant's evidence by the SSHD, in my conclusion the FtT's adverse conclusions lack the rigour of reasoning that was required in this particular case.
15. This though is not where the difficulties with the FtT's decision end. In paragraph 45 thereof the FtT relies upon the appellant's evidence that her family are not strict Muslims and that she has a sister living in Tirana who could help assist her in reintegrating, to found a conclusion that the appellant would be able to safely return to her country and re-establish herself there with her child, particularly in Tirana. However, in paragraph 43 of its decision the FtT had previously found the appellant's evidence to be "totally discredited".
16. It is plainly irrational for the Tribunal to found a conclusion on risk and internal relocation on evidence it has previously rejected.
17. Looking at the decision as a whole it cannot, in my conclusion, be discounted that absent the making of the aforementioned errors the FtT would have come to a different conclusion in this appeal. For this reason, I set aside the FtT's decision.
18. Both parties agreed at the hearing that if I were to set aside the FtT's decision the appropriate course would be to remit the appeal back to the FtT for substantive reconsideration. That this is the correct course is re-enforced by the appellant's disclosure that there has recently been contact by independent persons in the UK with her family members in Albania, and that evidence of such contact, said to be beneficial to the appellant, is to be adduced in this regard.
Notice of Decision
For the reasons given above, I find that the decision of the FtT contains an error of law capable of affecting the outcome of the appeal and I set such decision aside.
The appeal is remitted to a judge of the FtT other than judge MA Khan, to be determined afresh.

Signed:

Upper Tribunal Judge O'Connor