Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13696/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 January 2017
On 25 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

EH
(ANONYMITY DIRECTION made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation
For the Appellant: Ms J Blair, Counsel instructed by Islington Law Centre
For the Respondent: Mr P Nath, 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 28 August 1997 who entered the UK on 27 July 2014 and shortly thereafter claimed asylum. On 11 December 2015 the respondent refused his application. The appellant appealed and his appeal was heard by First-tier Tribunal Judge O'Flynn. In a decision promulgated on 16 March 2016 Judge O'Flynn dismissed the appeal. The appellant is now appealing against that decision.
2. The basis of the appellant's claim to asylum is that he is at risk in Albania from men to whom his father owes money. He claims that:
a. In early 2014 three armed and masked men came to his house, located in Kamez which is a part of Tirana, demanding repayment of the debt from his father. When his father said he was unable to give them money they ransacked the house, beat his father, and threatened to kill him or his father.
b. He gave up school to help earn money for the family. He initially worked as a waiter locally but gave up the job as he feared being recognised by the money lenders.
c. He began working in a car wash located about half an hour's bus ride from where he lived. About a month after commencing work he was approached by some men in a car, whilst walking home from work, who threatened to kill him if he did not repay his father's debt. Whilst he was being threatened police passed by but did nothing.
d. Three or four months after starting to work in the car wash the men came to his home again where they threatened him and his father.
e. The appellant took his siblings to stay with a maternal aunt in Tropje, which is where he was born. He then left Albania as he feared his life was in danger.
3. The respondent did not accept that the appellant experienced any problems in Albania as a result of his father's debt. Moreover, the respondent stated that even if the appellant's claim was accepted at its highest he would still not be entitled to a grant of asylum or humanitarian protection because (a) the Albanian state is able to provide him with sufficient protection; and (b) it would not be unreasonable for him to relocate to another part of Albania. The respondent also considered, and rejected, the appellant's claim that his removal would be contrary to Article 8 ECHR.
Decision of the First-tier Tribunal
4. The judge found that the appellant was telling the truth and accepted his account as set out above in paragraph [2]. However, he dismissed the asylum appeal for two reasons: firstly, he found that there was sufficient protection for the appellant in Albania; and secondly, he found that the appellant could relocate internally.
5. In respect of sufficiency of protection, the judge quoted from the US Overseas Security Advisory Council Report on Albania (2015) and a 2010 Home Office report and then stated, at paragraph [33], that:
"Taking into account all the background information, I am of the view that there is a functioning police service present in Albania, although they are susceptible to corruption, However, whilst it is true that some corruption, inefficiency and incompetence on the part of individual members of the police, prosecution or justice system does exist, it does not demonstrate a systemic or institutionalised unwillingness to afford protection to the victims of persecution by non state actors."
6. The judge noted, at paragraph [34], that the appellant had not approached the authorities and found that the incident the appellant described of the police not intervening when he was threatened was not illustrative of a lack of protection as it was not clear what the police saw and he had not reported an incident.
7. The judge concluded at paragraph [35]:
"I am satisfied that the appellant has failed to reach the standard to satisfy me that there is not a sufficiency of state protection particularly in view of the fact that he has failed to approach them"
8. The judge then briefly considered internal relocation. At paragraph [36] he stated that:
"according to the appellant's own evidence, the only part of Albania he fears returning to is his home area in Kamez, Tirana?.Indeed, he specifically said that he gave up working in the coffee shop in Kamez because he felt safer working at the car wash, some half an hour away, in Tirana. In the circumstances, I am satisfied that the appellant has not demonstrated that internal relocation is not a viable option. "
9. Having found that the appellant could not succeed in his protection claim, the judge turned to consider Article 8 of the ECHR. He found that the appellant was unable to meet the requirements of Appendix FM or Paragraph 276 ADE of the Immigration Rules "for the perfectly valid reasons advanced by the Secretary of State in the letter of refusal."
10. The judge then considered whether there were compelling reasons to allow the appeal under Article 8 ECHR outside the Immigration Rules. He noted the appellant has a girlfriend but that she did not give evidence at the hearing. He also considered the medical information before him about the appellant's mental and physical health (paragraphs [54-56]). Having applied Section 117 of the Nationality, Immigration and Asylum Act 2002, the judge concluded that the appellant had not shown circumstances that were sufficiently compelling to warrant a grant of leave outside the Immigration Rules.
Grounds of appeal and submissions
11. The appellant makes three arguments. These are set out in the grounds of appeal and in Ms Blair's skeleton argument.
12. The first argument concerns the judge's finding that there would be sufficiency of protection. Ms Blair contends that the judge placed significant weight on the appellant's failure to approach the police without taking into account that as a child at the time it was understandable he did not do so. She argued that, as the appellant was a child, greater weight should have been placed on objective indicators of risk rather than his conduct. She also argued that the judge had failed to take into account relevant Country Guidance case law on the issue of whether there is effective state protection from organised criminals in Albania: EH (blood feuds) Albania CG [2012] UKUT 00348 (IAC) and AM and BM (Trafficked women) Albania CG [2010] UKUT 80 (IAC).
13. The second argument concerns the judge's finding that the appellant could locate internally. Ms Blair maintains that the judge failed to apply the correct test, which is whether internal relocation would be unreasonable or unduly harsh, and failed to consider the objective evidence about the difficulties of relocating within Albania, as highlighted, inter alia, in EH and AM and BM.
14. The appellant's third argument is that the judge erred in his assessment of the appellant's claimed private life in the UK by not making specific findings about the obstacles the appellant, who has health and other difficulties, would face on return, which is the relevant consideration under Paragraph 276ADE(1)(vi) of the Immigration Rules.
15. Mr Nath argued that the judge took into account that the appellant was a child, gave proper consideration to the objective country evidence and applied the correct legal tests in respect of sufficiency of protection and internal relocation.
Consideration
16. For the reasons set out below, I am satisfied that the judge has not made a material error of law and that the decision of the First-tier Tribunal should stand.
Sufficiency of Protection
17. The test of whether there is sufficient protection is that set out in the well known House of Lords judgment of Horvath 2000 UKHL 37 and as summarised by Auld LJ in Bagdanavicius v SSHD [2003] EWCA Civ 1605 where he stated:
"55.(2) An asylum seeker who claims to be in fear of persecution is entitled to asylum if he can show a well-founded fear of persecution for a Refugee Convention reason and that there would be insufficiency of state protection to meet it; Horvath.
3) Fear of persecution is well-founded if there is a "reasonable degree of likelihood" that it will materialise; R v. SSHD, ex p. Sivakumaran [1988] AC 956, per Lord Goff at 1000F-G;
4) Sufficiency of state protection, whether from state agents or non-state actors, means a willingness and ability on the part of the receiving state to provide through its legal system a reasonable level of protection from ill-treatment of which the claimant for asylum has a well-founded fear; Osman, Horvath, Dhima.
5) The effectiveness of the system provided is to be judged normally by its systemic ability to deter and/or to prevent the form of persecution of which there is a risk, not just punishment of it after the event; Horvath; Banomova. McPherson and Kinuthia.
6) Notwithstanding systemic sufficiency of state protection in the receiving state, a claimant may still have a well-founded fear of persecution if he can show that its authorities know or ought to know of circumstances particular to his case giving rise to his fear, but are unlikely to provide the additional protection his particular circumstances reasonably require; Osman."
18. The objective evidence about Albania that was before, and available to, the First-tier Tribunal supports the judge's finding that there is sufficient state protection for an individual in the appellant's circumstances.
19. The judge cited and relied on reports of The US Overseas Security Advisory Council Report on Albania (2015) and the UK Home Office (July 2010), both of which are consistent with the conclusion that there is, generally, Horvath level state protection in Albania.
20. Ms Blair argued that Country Guidance cases on Albania indicate there may not be sufficient state protection for the appellant. I disagree. In AM and BM, the panel found, at paragraph [182], that
"We accept that there is considerable corruption in Albania but we conclude that the steps taken by the Albanian authorities are sufficient to meet the standard of a sufficiency of protection from re-trafficking from "new" traffickers as set out in the judgment of Lord Clyde in Horvath".
21. The panel proceeded to consider the risk faced by woman at risk from former traffickers and family members, in light of societal attitudes about woman who have been trafficked, where individual factors, such as whether the trafficked woman has an illegitimate child, would need to be taken into account. The factors that would inhibit access to state protection for a woman at risk of re-trafficking are far removed from those of the appellant and there is nothing in AM and BM that indicates there would not be sufficient state protection for a person in the appellant's circumstances.
22. The case law on blood feuds also does not help the appellant. The guidance in EH is that the Albanian state has taken steps to improve state protection but those steps do not provide protection in areas where Kanun law predominates (particularly in Northern Albania). Even if, by analogy, it could be argued that the threat to the appellant is analogous to a blood feud, the finding in EH is that there is, generally, sufficiency of protection in places where Kanun law does not predominate, such as Tirana.
23. Ms Blair argues that the judge placed too great an emphasis on the appellant failing to approach the police given that he was a child at the time. It does seem that the judge placed significant emphasis on the appellant's failure to contact the police and there is some merit to Ms Blair's criticism of this. However, if the judge has made an error it is not a material one. The objective evidence about Albania, both in the reports referred to by the judge and in the extant Albanian Country Guidance cases, supports the view that there is sufficiency of protection for a person in the appellant's position.
24. Accordingly, it is irrelevant that the appellant did not go to the police or that his decision to not do so might be because he was a minor at the time. Whatever action the appellant did or did not take does not change the fact that, applying the Horvath standard, there is sufficient state protection in Tirana for a person in the appellant's circumstances.
Internal Relocation
25. The applicable test where internal relocation is considered is whether, taking all of the circumstances relevant to the appellant into consideration, it is reasonable to expect him to relocate or whether it would be unduly harsh for him to do so. See AH (Sudan) [2007] UKHL 49.
26. The judge reached the conclusion that internal relocation was a "viable option" on the basis that the appellant could relocate safely. That is a necessary finding, but it is not sufficient - the judge must also consider whether relocation would be unduly harsh. By failing to apply the correct legal test the judge has made an error of law.
27. There is also an error in the judge's approach to the evidence. The judge concludes internal relocation is viable because the appellant felt safer working at a car wash half an hour from his home. However, the appellant's evidence, which was accepted by the judge, was that he was threatened on his way home from the car wash.
28. A proper consideration of internal relocation would have explored whether it would have been both safe and not unduly harsh for the appellant to relocate to another area in Albania outside of Tirana, such as (for example) Tropje, where he took his siblings and where it might be thought that he would be beyond the reach of the men/gang owed money by his father. No such assessment is included in the decision.
29. Although the judge has made an error of law in his assessment of internal relocation, the error is not material because if there is sufficient state protection for the appellant in Albania (which, for the reasons I have given, the judge was entitled to find) then there is no need for him to relocate.
Article 8 ECHR
30. In order for the appellant to succeed under the Immigration Rules he would need to show that there are very significant obstacles to his integration into Albania (Paragraph 276ADE(1)(vi)).
31. The test of "very significant obstacles" is a stringent one. As the Upper Tribunal recently stated in Treebhawon and Others (NIAA 2002 Part 5A - compelling circumstances test) [2017] UKUT 00013 (IAC) "Mere hardship, mere difficulty, mere hurdles, mere upheaval and mere inconvenience, even where multiplied, are unlikely to satisfy the test of "very significant hurdles" in paragraph 276 ADE of the Immigration Rules."
32. Given my findings above about the availability of state protection to the appellant, there are not significant, and certainly not very significant, obstacles to his integration into Albania. The appellant speaks Albanian, has spent most of his life in Albania and is familiar with Albanian culture and society. He has some medical problems (panic disorder, anxiety, depression and some physical symptoms such as increased heart beat and sweaty hands) but there was no evidence before the First-tier Tribunal to suggest these could not be managed in Albania. Indeed, the judge refers at paragraph [54] to the WHO-AIMS Report on Mental Health Systems in Albania as indicating suitable treatment is available.
33. Nor is there merit to the argument that the judge erred by finding the appellant could not succeed under Article 8 outwith the Immigration Rules. The judge has carried out a proportionality assessment having regard to the mandated factors set out in the Nationality, Immigration and Asylum Act 2002 and has given clear reasons why he finds there are not compelling circumstances to warrant a grant of leave outside the Rules.
34. I am satisfied that removing the appellant to Albania would not contravene Article 8 ECHR and that the judge, for the reasons given in the decision, was entitled to so find.
Summary
35. Although judge made an error of law in his consideration of whether the appellant can be expected to relocate internally within Albania this error is not material because the judge did not make an error of law in finding that there is sufficient protection for the appellant in Albania. If there is sufficient protection, then there is no need for the appellant to relocate, internally or otherwise.
36. For the reasons set out in paragraphs [30] - [34] I have found that the judge did not make an error of law in the assessment of the appellant's human rights claim made pursuant to Article 8 ECHR.

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: 24 January 2017