Tribunal decisions

The decision

IAC-AH-SC-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2022-000144
(ia/00086/2020) PA/50450/2020

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 7th April 2022
On the 23rd June 2022

Before

UPPER TRIBUNAL JUDGE ALLEN

Between

KN
(anonymity direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms S Akinbolu, instructed by Malik & Malik Solicitors
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a national of Albania. He appealed to the First-tier Tribunal against the respondent’s decision of 22 June 2020 refusing his claim for asylum and humanitarian protection.

2. The basis of the appellant’s claim is that he fears risk on return to Albania on account of a blood feud.

3. The claim arises out of events that occurred in 2009 in Italy. The appellant’s younger sister had been staying with his other sister and her husband and their daughter. The sister’s husband’s brother (AM) also lived with them. On 30 June 2009 he killed the appellant’s two sisters and his niece.

4. The appellant’s father told the killer’s family that they should stay in confinement or they would be killed. He and his family buried his sisters and niece in the family cemetery against the wishes of the other family, who wished to have them buried in their cemetery.

5. In the judgment dated 20 October 2010 the killer was deemed by the Italian court to have “coherent schizophrenia delusion”. Following the murders, he was placed in a secure unit for ten years although the appellant at interview said he believed he had now been released.

6. The appellant claimed that in 2017 he bought a gun and went to where the other family (the M family) lived and fired a shot in the air. He caused no damage but it was considered by that family that he had breached Kanun law as women and children were in the house and that it was therefore their turn for revenge. The appellant’s uncle, AN, left for Canada in 2017 and the appellant went into hiding. He claimed that in January 2019 he was attacked by the other family with an automatic rifle. He did not see anyone but only heard voices.

7. In addition to the appellant’s evidence the judge had before her a decision of the Immigration and Refugee Board of Canada in respect of his uncle AN from 2018. His uncle succeeded in the claim for asylum on the basis of a blood feud following the murders in Italy. It seemed that the killer, AN, wished to marry the appellant’s sister, and the decision of the IRB focussed on that.

8. The judge noted that the decision of the IRB made no reference to the defendant before them suffering from “coherent schizophrenia”. Nor did it make reference to AM’s involvement in the distribution of drugs, which was part of the appellant’s account. The judge found the decision of the Canadian Tribunal to be persuasive but not binding. She did not accept that any blood feud was declared by the appellant’s family towards AM’s family in 2010 because they were aware that he committed the murders as a result of suffering from coherent schizophrenia. She found that it was for this reason that no blood feud was acted on and as AN had said in his witness statement, things were quiet until July 2017. She found that if the appellant’s family had intended to declare a blood feud they would have done so immediately following the murders. She found that the background to the murders indicated in the Italian court documents showed that AM was involved in a serious blood feud with another Albanian family in Italy, he was also involved in the distribution of drugs and suffered from paranoid schizophrenia at the time the murders were carried out.

9. The judge did not find it credible that the appellant would have left to go to Italy where AM and his brother had resided and where he could be easily reached if AM’s family had intended to harm him. She did not find it credible that AM’s family were looking for him and wanted to harm him. He had said in his witness statement that his grandmother died in May 2016 and she had wanted him to avenge his sisters’ murders. He purchased a pistol in May 2017 and went to the area where AM’s family lived and fired shots into the air three or four times. He was alone in a car some 60 to 70 metres away from their home. The judge found that there was no credible corroborative evidence that this incident took place at all. There were no police reports and the appellant was never questioned about it. She did not find it credible that, never having fired a pistol, he had decided to visit the vicinity of where the M family lived some seventeen or eighteen years (sic) after his sisters and niece were killed. His evidence contrasted with what was said in the decision of the IRB that he had found a weapon, rather than purchasing one, and had engaged in a drive-by shooting at the M house. She did not find it credible that the M family declared a blood feud when no one was hurt or killed. This was against the background of AM having murdered three members of the appellant’s family. It was unclear why the M family would consider the appellant’s uncle to be responsible for everything that had happened. There was no credible evidence that the appellant had fired or attempted to fire into the home of the M family rather than firing in the air. She found that no blood feud was declared by the appellant’s father because he was aware that AM carried out the murders as a result of suffering from paranoid schizophrenia. She did not accept there was any credible cogent evidence that the appellant was targeted by the M family and used the police to locate him. She did not accept that the incident of the shooting in the air occurred at all.

10. She referred to the expert report of Dr Bogdani, who among other things said that as long as no conciliation between two families was achieved the risk and danger for any person involved in the conflict still remained, including the appellant. The judge considered to be conjecture the reference in the report to the appellant promising his grandmother he would avenge the murder of his sisters and that whilst he was in Albania he might be tempted to keep the word he gave his grandmother. The judge noted what was said by Dr Bogdani about internal relocation and sufficiency of protection but in light of her findings she did not find that the appellant would be targeted as a result of a blood feud. In light in particular of her adverse credibility findings she concluded that the claim was not made out. The appeal was as a consequence dismissed.

11. The appellant sought and was granted permission to appeal on the basis first that the judge had considered an earlier skeleton argument rather than the replacement skeleton argument provided to her, had failed to treat the appellant as a vulnerable person although she accepted that he suffered from post-traumatic stress disorder and depression, had failed to take account of the views of Dr Bogdani on the plausibility of elements of the claim and had failed to take proper account of the decision of the Canadian Tribunal, and was mistaken with regard to some of the comments she made in relation to that.

12. In her submissions, Ms Akinbolu relied upon and developed the points made in the grounds.

13. She argued that the claim was largely believed in the refusal letter, including apparently accepting the relevant factual basis including the events in 2009 leading to the deaths occurring and that there was no challenge to the claim that a blood feud was declared by the appellant’s father or that a gun was fired near the M family’s home by the appellant. What was queried was whether the person who shot at the appellant’s house was anyone connected to the M family.

14. As regards ground 1, it was clear that the judge had relied on the earlier skeleton argument and that was relevant with regard to matters which were not properly considered and addressed in the further grounds. It appeared that the medical diagnosis on the appellant was not challenged, and the judge had, however, not referred to the vulnerability guidance and nor had she taken it into account in her credibility findings but had regarded it as only relevant in respect of the Article 3 case. It was argued that the medical evidence potentially corroborated the appellant’s account since it was clear that all the professionals had linked the appellant’s PTSD to the traumatic events in Albania and he had given clear evidence about the multiple attacks on him and his family including him firing a gun near the M family on fears in respect of the attacks on him in Tirana. This potentially corroborative evidence was not addressed by the judge at all.

15. Ground 3 was founded on the argument that the judge had not taken account of the expert’s opinions on plausibility, in particular with regard to the plausibility that if the gun firing incident had occurred as the M family alleged, this would be a breach of Kanun law justifying a blood feud. The judge had not referred to this evidence.

16. In ground 4 it was argued that the judge had taken account of irrelevant matters to distinguish and not followed the Canadian Tribunal’s decision. It was irrelevant that AM was a drug dealer, the schizophrenia diagnosis had clearly formed part of AN’s claim, the fact that things were quiet until July 2017 followed the blood feud being declared by the appellant’s father. The judge had failed to take account of the appellant’s evidence that the M family had falsely accused him of shooting at the house rather than simply into the air outside it. The appeal should be allowed and the judge’s decision set aside.

17. In his submissions, Mr Melvin adopted and relied on the points made in his Rule 24 response. It was argued that the Secretary of State’s review placed credibility at the front including plausibility issues and there were references to various CPINs.

18. With regard to the medical evidence, Ms Akinbolu seemed to argue that if the appellant told a doctor about the cause of a problem and the doctor said yes, then that was corroboration and that was not accepted. It was not relevant to the judge’s consideration. The judge had accepted that the appellant had some mental health issues.

19. As regards the expert, and what she had said about plausibility, that was dealt with in the review and was a matter for the judge. There was a wealth of background material including the refusal notice directly opposing the expert’s views on plausibility.

20. As regards the uncle’s evidence in the Canadian decision, the judge had looked at the evidence produced and took it into account. The challenge was a matter of disagreement only.

21. By way of reply, Ms Akinbolu argued that on reading the refusal decision and the review it did not appear that the shooting incident was in issue between the parties. As regards the medical evidence, there was case law on this and the expert evidence was to be afforded a particular value and medical evidence especially had a corroborative effect. This did not mean it was credible just because the appellant had told his doctor but the symptoms were attributed to particular events and this was relevant corroborative evidence.

22. I reserved my decision.

Discussion

23. As regards ground 1, this does not give rise to any error of law by itself, since I have no doubt that Counsel would have referred to the points made in her skeleton argument in submissions to the judge and it is rather a question of whether the judge failed to address specific arguments of relevance put to her.

24. As regards ground 2, I think there is force in the argument here in light of the judge’s finding that the appellant suffers from post-traumatic stress disorder and depression. These findings needed to be factored into her evaluation of the evidence and I think it is right to contend as the appellant does that he should have been treated as vulnerable and this vulnerability should have been taken into account in assessing the credibility of the claim. To a lesser extent, I see some force in the argument that the appellant’s claim was supported by the views of the medical experts as to the causes of his post-traumatic stress disorder but even without that point I consider that ground 2 properly identifies an error of law.

25. I also agree that the judge erred in not considering the views of Dr Bogdani on the plausibility of the appellant’s claim that the M family could justify a blood feud on the basis of what they said happened in the shooting incident and that this did constitute a breach of Kanun law. It was of course open to the judge to disagree, but she did not address the point. The quotation from Mibanga [2005] EWCA Civ 367 set out at paragraph 12 of the grounds effectively encapsulates the relevant principle here. There, it was said by Wilson J (as he then was) that although expert evidence cannot usurp the fact-finder’s function in assessing credibility, it can offer a factual context in which it may be necessary for the fact-finder to survey the allegations placed before him. This is of clear relevance to the issue under challenge in this case, and I consider that again, this ground is made out.

26. Less needs to be said about ground 4 in the circumstances. However, I agree with Ms Akinbolu that essentially, the judge’s reasons for placing little or no reliance on the Canadian Tribunal’s decision are matters which are not properly reasoned. As the judge properly noted, the decision was not binding on her but only persuasive, but I consider that such matters as the judge failing to take account of the appellant’s evidence that the M family falsely accused him of shooting at the house, the reasons why things were quiet until July 2017 and the issue of the schizophrenia diagnosis and whether or not it formed part of the claim were matters which weakened the judge’s reasoning in this regard.

27. Bringing these matters together, I consider that the judge’s credibility findings have been shown to be flawed for the reasons given, and as a consequence it will be necessary for this decision to be remade in its entirety. That in the circumstances will have to be done in the First-tier Tribunal by a different judge at Taylor House. To that extent, the appeal is allowed.

Notice of Decision

The appeal is allowed to the extent set out above.

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 him or any member of his 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.

Signed Date 29 April 2022

Upper Tribunal Judge Allen