Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13510/2015

THE IMMIGRATION ACTS

Heard in Manchester
Decision & Reasons Promulgated
On 27th October, 2016
On 14th November 2016

Before

Upper Tribunal Judge Chalkley

Between

AE
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Collins of Counsel, instructed by Sentinel Solicitors
For the Respondent: Mr G Harrison, Home Office Presenting Officer

DETERMINATION AND REASONS

Anonymity direction.

The First-tier Tribunal made an anonymity direction. I see no reason to interfere with it. Failure by any person, body or institution whether corporate or unincorporated (for the avoidance of doubt including any party to this appeal) to comply with this direction may lead to contempt of court.

Background to the appeal.

1. The appellant, AE, is a national of Albania, born on 7th January, 1993. On 12th August, 2014, she claimed asylum in the United Kingdom on the basis that she was a victim of modern slavery. The respondent refused the application on 27th November, 2015, and it was against that decision that the appellant appealed to the First-tier Tribunal. Her appeal was heard on 19th May, 2016 at Hatton Cross by First-tier Tribunal Judge MacKenzie.

Basis for the Appellant's claim

2. The basis of the appellant's claim was that, having grown up in Albania with her parents and three brothers, she started a relationship with Artur [P], an Albanian, who told the appellant that he lived in Italy. The appellant's father is described by her as being a Muslim and a fanatic. He saw the appellant and Artur together and when she arrived home her father assaulted her with a belt. The following day she left home and travelled to Italy with Artur.

3. Having arrived in Italy, she and Artur stayed in a hotel in Torino for a week. One day while they were out walking, a car pulled up and after Artur spoke to the male occupants: the appellant was forced to get into the car. Artur told her "I'm sorry I don't have any money". She was taken to a house some 40 minutes away where other girls were working as a prostitute and forced to work as a prostitute.

Respondent's view of credibility

4. It is relevant that the respondent accepted that the appellant came from Albania and it was also accepted that she was the victim of modern slavery. In paragraph 25 of the Reasons for Refusal Letter, the respondent noted that the appellant had remained coherent and plausible with regard to material facts as the core of her claim and claimed asylum at the first opportunity. She concluded that the appellant should be given the benefit of the doubt that she had rejected her arranged marriage and had been the victim of slavery.

The First Tier Tribunal Judge's decision

5. The judge considered and quoted part of the Country Information and Guidance Report on Albania: Trafficking, dated 9th September, 2015. She also referred to the U.S. State Department Report on Trafficking in Persons dated 2014, and considered guidance of the Upper Tribunal in TD and AD (Trafficked women)(CG) [2016] UKUT 92 (IAC) and AM and BM (Trafficked women) Albania CG [2010] UKUT 80 (IAC). The judge found that although the appellant is vulnerable, the evidence before her did not show that the appellant would not be able to access support when she returned to Albania. She did not agree with submissions made on behalf of the appellant that the system of protection and support available to victims of trafficking returned to Albania was lacking to the extent that the appellant should be recognised as a refugee. The judge specifically states that the objective evidence does not support the appellant's claim that she would be at risk in a shelter, or that she would be at risk of persecution on leaving a shelter.

6. The judge noted that bribery remained a problem in Albania, but this was not considered to be a general objective risk to all women entering the NRM or support mechanism in place in Albania. The judge reminded herself that there was no requirement for the appellant to provide any corroboration for part of her claim, but pointed out that the appellant's statement that her traffickers, "had important connections with Albania including the authorities" was speculative. She went on to say that she found, applying the objective evidence before her, that efforts made by the authorities to improve protection for trafficked women, would be sufficient to ensure that the appellant was not at risk of persecution because of her membership of a particular social group on her return. As to the risk of the appellant being targeted again, the judge found that if the appellant was in a shelter this would not be the case.

7. The judge went on to find that the appellant had lodged her GP medical records, which showed that she attended for regular non-emergency consultations with her GP, who made detailed notes confirming her clinical presentation and medical care. In addition to ongoing treatment for anxiety and depression she has routinely attended for other medical issues. The judge was satisfied that the appellant's general medical practitioner had closely monitored the appellant's mood and paid attention to any risk of self-harm. The appellant had been referred to St Mary's Sexual Health Centre and had been given contact details where she could self-refer for counselling. The judge rejected the suggestion made by the appellant's Counsel that the appellant had been let down by the respondent and others. The judge found that the appellant's anxiety and depression could be treated adequately in "Angola". Elsewhere reference is made to the appellant leaving Angola and being able to internally relocate within "Angola". However, when the determination is read as a whole I am satisfied that these are clearly uncorrected typing errors and the Immigration Judge demonstrates that she was clearly aware that she was dealing with someone from Albania who was going to be returned to Albania. Mr Collins made no submission on the point.

8. The judge said that the appellant had demonstrated that she is capable and resourceful, in terms of accessing support while in the United Kingdom, having formed links with a church and working as a volunteer for a food programme. The country information report referred to there being government programmes to assist the reintegration of victims of trafficking and the judge found that she was not persuaded, to the low standard, that the appellant would be unable to cope and would be at risk of persecution when she left the shelter.

9. The judge considered the question of the appellant's father and the risk he posed at paragraph 50 of the determination, where she found that the appellant would be able to relocate internally. She was satisfied by the objective evidence that the authorities would be able to offer effective protection to the appellant if she chose to live in Tirana. She noted that the appellant had not approached the police in Albania following assault upon her by her father, but instead had left the country the following day.

10. The judge dismissed the appellant's appeal. The appellant, dissatisfied with the determination, sought and obtained leave to appeal.

The hearing before me

11. At the hearing before me today, Mr Collins told me that he relied on paragraph 6 of his original application for leave to appeal, where he pointed out that the Reasons for Refusal Letter accepted the appellant's claim in full and it was, therefore, irrational for the judge to find that the appellant was "speculative" when she referred to the gang that trafficked her having "important connections with Albania including with the authorities" at paragraph 39 of the determination. He suggested that this was an error of law.

12. Mr Collins also reminded me that the appellant's father had attacked the appellant. He had been violent towards her and was a fanatic. Were the appellant to return to Albania, it is likely that he would further attack the appellant, Mr Collins suggested. The judge had failed to consider this.

13. He pointed out that if the appellant were returned to Albania she would not be returning voluntarily and it would be necessary to consider whether it would be reasonable on her part not to avail herself of the Albanian NRM option. He relied on paragraph 148 of TD and AD. The judge had simply not dealt with this point.

14. Mr Collins submitted that there was no adequate assessment of the risk of the appellant being re-trafficked, given her accepted vulnerability.

15. I pointed out to Mr Collins that it appeared that the appellant was trafficked from Italy, not from Albania, because she said that she left Albania with her boyfriend following the attack upon her by her father. It appears that she was trafficked in Italy when she was picked up by youths in a car. In her asylum interview she referred to having stayed in Italy in a hotel with Artur and he said that he was going to organise a surprise party and would introduce her to his family. After the first week she had been out walking with Artur in one of the town they were staying in. Three men in a car came and Artur went to speak to them. The three men grabbed her and put her into the car. She said she told Artur what was happening, "the answer I got was 'I need money'". It is not clear from what the appellant said that Artur was part of the gang or that he had in some way colluded with the gang. He might, for example, simply have meant that he had no money to be able to give to the gang to prevent her being snatched away. Mr Collins suggested that the "appeal should go back to the First Tier for these matters to be clarified."

16. Additionally, Mr Collins suggested that the judge had failed to consider whether the appellant might qualify under the Immigration Rules for leave under Article 8, relying on paragraph 276ADE(1)(vi). He suggested that the judge's comments were flawed and overlooked the fact that when the appellant left Albania, she was still part of a family unit. The appellant may have been familiar with the language, culture and traditions. He urged me to find an error of law and to either remit the hearing to the First-tier Tribunal for a completely fresh hearing, or alternatively, to retain the appeal in the Upper Tribunal for a fresh hearing.

17. On behalf of the Secretary of State, Mr Harrison relied on a brief Rule 24 response in which it was suggested that the judge had properly applied country guidance and reached conclusions she was entitled to reach. The grounds amounted to nothing further than a series of disagreements. The judge considered the risk of re-trafficking, but found that the claim had not been made out, given that the appellant would be able to access support on her return. I reserved my decision.

18. I do not accept that there is any error at paragraph 39 of the judge's determination. The appellant had given no reasons for claiming that her traffickers had important connections with Albania, including the authorities, but in any event, the judge said that even if her gang or the appellant's father did have such connections, on the basis of the objective evidence before her, the efforts made by the authorities to improve protection for trafficked women would be sufficient to ensure that the appellant was not at risk of persecution because of her membership of a particular social group.

19. In paragraph 39 the judge deals with the risk posed by the gang and by her father. In paragraph 40 the judge finds that if the appellant were to be in a shelter there would be no risk of her being targeted again by the smugglers. I accept that the judge has not considered whether it would be reasonable on her part not to avail herself of the Albanian NRM option and to this limited extent I find that the judge has erred in law. Whether or not it is a material error is another matter, which I shall consider below.

20. As to the risk of the appellant being re-targeted, I do not accept that the judge erred. She was entitled on her findings and on the objective evidence before her to conclude that there would be no risk if the appellant were in a shelter. The judge also noted and accepted that women living on their own in Albania are likely to be socially distinct but she noted that in TD and AD such discrimination and stigma did not amount to serious harm. The judge also found that any difficulties the appellant might face as a single woman in Albania would not amount to persecution.

21. I have found that the judge erred in law by not addressing the fact that the appellant would not be returning to Albania voluntarily and addressing whether or not it would be reasonable on the part of the appellant not to avail herself of the Albanian NRM option. Reference was made in the grounds to paragraph 148 of TD and AD. The assistance includes reference to a shelter. It does not seem to me to be at all unreasonable for the appellant to avail herself of the Albanian NRM option. The judge commented upon the appellant's resourcefulness and there is no reason to think that she would be unable to feel secure in such a shelter.

22. Referring again to paragraph 276ADE, I believe that the judge was entitled to note that the appellant had shown resilience in coping with having no contact with her family in this country (where she has only been since 11th August 2014) where the language, culture and traditions are different from those of her own country of origin and has shown resilience in engaging with regular medical care with her GP, making a connection with her local church and in establishing friendships. I believe also that the judge was entitled to find that the appellant would be able to engage with and benefit from the support that the judge found would be available to the appellant as a victim of trafficking on her return to Albania. She did not accept that the appellant would be at any increased risk of trafficking when she left her shelter as a result of her anxiety and depression and concluded that the appellant would be able to access all appropriate medical care in Albania. She concluded that difficulties which the appellant might face on return of discrimination and stigma would not amount to "very significant obstacles" such as to satisfy the requirements of paragraph 276ADE(1)(vi)." That was a finding open to her.

23. To sum up, I have found that the judge did err in failing to consider whether if the appellant were returned to Albania otherwise than voluntarily whether it would be reasonable on her part not to avail herself of the Albanian NRM option. I have concluded in the light of what the appellant has said at paragraphs 56, 57 and 58 (and alluded to elsewhere in the determination) that it would not be reasonable on the part of the appellant not to avail herself of the Albanian NRM option on her return to Albania. Such error was not, therefore, material. On all other challenges I find, for the reasons I have set out extensively in this determination, that the judge did not err in law.

24. In making her determination, the First Tier Tribunal Judge did not materially err in law. I uphold her decision; the appellant's appeal is dismissed.

Notice of Decision

The appeal is dismissed on all grounds.

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.

Richard Chalkley
Upper Tribunal Judge Chalkley

TO THE RESPONDENT - FEE AWARD

There is no fee order.

Richard Chalkley
Upper Tribunal Judge Chalkley