Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/50736/2021
UI-2021-001322 (IA/02112/2021)

THE IMMIGRATION ACTS

Heard at Field House
On the 31 March 2022
Decision & Reasons Promulgated
On the 18 July 2022

Before

UPPER TRIBUNAL JUDGE OWENS
DEPUTY UPPER TRIBUNAL JUDGE SKINNER

Between

ed (ALBANIA)
[ANONYMITY ORDER MADE]
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Ms E. Doerr, counsel, instructed by Fadiga & Co solicitors
For the respondent: Mr D. Clarke, Senior Home Office Presenting Officer

DECISION AND REASONS

Anonymity order
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) the Tribunal has ORDERED that no one shall publish or reveal the name or address of ED who is the subject of these proceedings or publish or reveal any information which would be likely to lead to the identification of him or of any member of his family in connection with these proceedings.

Any failure to comply with this direction could give rise to contempt of court proceedings.
Introduction
1. The appellant is a citizen of Albania. The appellant appeals with permission from the decision of the First-tier Tribunal dated 8 October 2021 dismissing his appeal against the respondent’s decision of 18 September 2000 to refuse the appellant’s asylum, humanitarian protection and human rights claim.
2. It is accepted by the respondent that the appellant is a victim of human trafficking. The central question in his application and appeal to the First-tier Tribunal (“the FTT”) was whether he was at risk of being re-trafficked on return to Albania. We are satisfied that the publication of the appellant’s name may create avoidable risks for him in Albania such that it is therefore appropriate to make the anonymity order set out above.
Background
3. As noted, the appellant is a national of Albania who has been the subject of human trafficking. He has been recognised as such by the Single Competent Authority. The essence of his account of his trafficking is that his father owed debts to two local men in Albania whom he was unable to repay. His father travelled to Belgium to work to earn the money to repay the debts. When the appellant left school he also travelled to Belgium as the two men continued to make threats as a result of the debt. These men tracked them down in Belgium and, as the appellant’s father could only repay some of the money owed, they insisted, so they said, on taking the appellant to work off the debt in their restaurant. Instead, the appellant was forced to go out and beg on the streets. After 10 days or so, he met three boys speaking Albanian. They were travelling to the UK and invited the appellant to join them, which he did. Once in the UK, the appellant claimed asylum.
First-tier Tribunal decision
4. After setting out the basis of the appellant’s claim, the legal framework (in respect of which no criticism is made), the documentary evidence and the hearing before the FTT, First-tier Tribunal Judge Seelhoff (“the Judge”) set out his findings and conclusions as follows.
5. At paras 28-32, the Judge found, applying the lower standard of proof, that the appellant had given a credible account of the circumstances in which he left Albania. Various alleged inconsistencies suggested by the respondent to undermine the credibility of the appellant’s account were held not to do so.
6. At para 33 the Judge considered the appellant’s personal characteristics. It was noted that he is no longer a child and was at the date of the hearing 21½ years old. In response to the submission that he would lack “street smarts”, the Judge stated that it seemed to him that the appellant had spent a significant amount of his life in Albania and was nearly 18 when he left the country. He therefore gave this argument less weight in his assessment than he would have done in other cases when early teenage years were spent outside the country.
7. At paras 34-36, the Judge considered the question of the appellant’s particular vulnerability and the medical evidence. The Judge noted that the bundle contained a medical report, dated July 2020, by a consultant rehabilitation psychiatrist, and medical records up to June 2020. While it was suggested by the doctor that the appellant’s condition might deteriorate, in light of the lack of more recent medical evidence the Judge declined to find that the appellant’s condition was any worse than it was as described by the doctor’s report in July 2020. That report, the Judge notes, records that:
(a) the appellant presented as “flat” and “depressed” and did not smile or make lighter gestures;
(b) there was no evidence of any thought disorder or psychotic symptoms and no sign of “faint” (which we take to be a typo and to mean feigned) or exaggerated symptoms;
(c) the appellant had a moderate depressive episode but that he was not currently receiving medication;
(d) it would be highly detrimental to the appellant’s mental health for him to be removed to Albania, given his expressed fear of persecution and re-trafficking on return and there was a risk of emergence of a significantly increased risk of suicide or serious self-injury.
8. At para 37 the Judge found it credible that his two traffickers may have an ongoing interest in the appellant given he had been traded to settle his father’s debt. However, whilst accepting that turning 18 was not a bright line at which a person changes overnight, the Judge noted that
“the Appellant as a fit and healthy man of 21 should be less vulnerable to trafficking than he was at the time that his father attempted to use him as collateral to settle the debt. It also seems less likely that the Appellant’s father would have such significant power over him now that he is 21. The age of majority in Albanian law is 18 and so in law the Appellant’s father should have no power over him.”
9. In relation to the Appellant’s father, the Judge noted at para 38 as follows:
“The Appellant’s father on the evidence before me has not been consistently living in Albania for some time. The Appellant’s father has worked abroad in both Greece and in Belgium. There is no guarantee that the Appellant’s father would be in Albania should the Appellant return to Albania. Even if he were in Albania there is no legal basis for the father to compel the Appellant to behave in any particular way and so whilst the Appellant may have a subjective fear of his father I am not satisfied it is so objectively well-founded.”
10. At paras 39-40, the Judge considered the position of the appellant’s traffickers. He records that there was nothing to suggest that they would have particular power or influence in Albania over the police and security services nor that they would have the connections required to access government registers of people and the like. He continued:
“Further it does not seem likely that the traffickers would actively be looking for the Appellant in Albania given that he has been away for a number of years now. It also does not flow logically that they would regard the Appellant as owing them debt, rather that they would have reverted to his father as the original person who borrowed money from them.”
11. The Judge then set out parts of the headnote from Country Guidance, BF (Tirana – gay men) Albania CG [2019] UKUT 93 (IAC), and noted that it did not “seem likely” that the two men who trafficked the appellant would be able to trace him within Albania independent of his family. It also did not “seem likely” that they would actively be looking for the appellant in Albania. At para 43 the Judge drew together the threads in relation to the risk to the appellant from particular individuals, stating “I do not consider it likely that anyone would be actively looking for the Appellant in Albania and I do not consider it likely that the Appellant’s father would have significant control over him now in Albania given the Appellant [sic] age.”
12. At paras 44 and following the Judge then considered whether there is a generalised risk of persecution to male victims of trafficking in Albania. The Judge concluded at para 45 that victims of trafficking constitute a particular social group, with gender as a risk factor, rather than marking out female victims of trafficking as a separate group. The Judge noted the expert report at para 46. While much of the evidence summarised in the report was said to be generalised, there were, the Judge said, some specific areas it was useful to highlight. He then drew attention to one such area, namely statistics noting that between April 2018 and March 2019, 95 official and potential victims of trafficking were identified (in, we interpose, Albania) of whom 28 were adults, 67 were minors, 60 were female and 35 male. The Judge commented that “The numbers are not very high given that the report goes on to note that the UK is home to at least a hundred thousand modern slaves as one comparator.”
13. At para 47, the Judge noted that the expert had considered the appellant’s case in the context of TD and AD (Trafficked women) CG [2016] UKUT 92 (IAC) and the factors there identified for determining whether a woman is at risk of persecution on account of being a trafficked woman, but also noted that the expert did not engage with the extensive evidence in TD that showed that Kanun law and cultural expectations of women in Albania are the most relevant factor and that the risk factors identified in TD are factors relevant to people who already face the risks associated with being women perceived as having violated those honour codes. The Judge went on at para 49 to note that not all the TD risk factors applied in this case.
14. At para 50, the Judge returned to a consideration of the appellant’s risk from his father and previous traffickers and concludes that there is not a well-founded fear of persecution from them. He continued, “Looking at the Appellant’s own characteristics generally I am not satisfied that there are features in his case which mean that he would be at a greater risk of trafficking than any other young man in Albania.” He then notes that, having concluded that there is no real risk on return, the questions of sufficiency of protection and relocation are less relevant, but that in any event the Upper Tribunal in BF had concluded that there was an effective police force in Albania. The evidence in the expert report of corruption was not sufficient for him to go behind this country guidance finding.
15. At para 51 the Judge stated that he had undertaken a comprehensive review of the “objective” evidence and had paid particular attention to the Asylos Report. He accepted that it was clear from the evidence that trafficking of boys and men is a problem in Albania however it was very clear from the reports that it is a problem that is poorly understood, the scale of which is very hard to assess. He then cited a part of that report relating to the risk of re-trafficking. At para 52, the Judge concluded that he was obliged to follow the evidence and that it did not form a basis for concluding that there was an elevated risk of being trafficked for those boys and young men who have been trafficked in the past.
16. At para 53, the Judge noted that there would be no restriction on the appellant living in other areas of Albania to that he grew up in.
17. At paras 54-57, the Judge considered the Appellant’s Article 8 ECHR claim. The focus is on his ability to re-integrate, which overlaps to an extent with the issues that arise in the appellant’s protection claims. However, as none of the grounds of appeal are directly directed to FTT’s decision on Article 8 it is not necessary to set out the Judge’s reasons further in that respect.
Grounds of and permission to appeal
18. The Grounds of Appeal advance in essence three grounds:
(a) First, at paras 42-43, the Judge applies the incorrect standard of proof, namely the balance of probabilities;
(b) Second, at paras 37-38 the Judge erred in relation to the risk from the appellant’s father in (i) considering that there needed to be a “guarantee” that he would be in Albania; (ii) failing to apply the TD risk factors when evaluating risk from the appellant’s own family and his former traffickers; and (iii) taking into account the fact that as an adult, the appellant’s father would no longer have legal powers over him.
(c) Third, the Judge reached a perverse finding that there were no features of the appellant’s case that would put him at a greater risk than any other young man in Albania in light of (i) the fact that the appellant had been previously trafficked, and (b) the appellant’s mental ill-health.
19. Permission was granted on all grounds on 30 November 2021 by First-tier Tribunal Judge Barker, who considered that the decision and reasons disclosed an arguable error of law and that the Judge’s approach to the assessment of the evidence, particularly in relation to the risk of re-trafficking was arguably flawed, for the reasons in the grounds.
Rule 24 Reply
20. On 10 December 2021 the respondent filed a response to the appeal pursuant to Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008. In it the respondent submitted in summary that:
(a) the Judge had identified the appropriate standard of proof and, regardless, had accepted the entirety of the Appellant’s claim as credible;
(b) it was open to the Judge to find that the father may not be present in Albania based on his travel history and that the Judge’s “phraseology is an issue of semantics as opposed to a material error of law”.
(c) in relation to the issue of the appellant’s age, this did not mean that his father would no longer be able to legally traffic him (as, it is said, the appellant claims), but rather the Judge is simply noting that as an adult the appellant’s father would have no legal authority over him, such as to compel him to return to the family home “which would obviously negate any further risk at the hands of his family.”
(d) the grounds do not challenge certain findings, such as that there is no risk of re-trafficking from the appellant’s previous traffickers because they would focus their attention on the appellant’s father, who owes the debt, not the appellant, who does not.
(e) the Judge was entitled to find that the Appellant’s individual characteristics, do not elevate his risk on return above the general background population in Albania.
21. That is the basis on which this appeal came before the Upper Tribunal.
Upper Tribunal hearing
22. At the hearing, Ms Doerr divided her very able submissions into three parts:
(a) First, she addressed the issues relating to the application of the standard of proof (i.e. the Grounds set out at paras 18(a) and 18(b)(i) above);
(b) Second, Ms Doerr addressed issues relating to the way that the FTT had approached the risk of re-trafficking (i.e. the Grounds at para 18(b)(ii) and (iii) above); and
(c) Third, she made submissions in relation to the Judge’s finding that the appellant was at no greater risk of trafficking than any other young man in Albania (Ground 3).
23. We adopt the same structure to the issues that are now before us.

Standard of proof
Submissions
24. In relation to the first set off issues, Ms Doerr highlighted that the Judge had found it “less likely” that the appellant’s father would have control of him now that he was an adult (para 37), that there was “no guarantee” that his father would be in Albania should the appellant return there (para 38), that it “does not seem likely” that the appellant’s traffickers would actively be looking for him (para 40), that it “does not seem likely” that the traffickers would be able to trace him within Albania (para 42), and that “I do not consider it likely” that anyone would be actively looking for the appellant or that his father would have any significant control over him now (para 43). She submitted that the correct standard of proof was the “reasonable likelihood of risk of persecution” and that in these findings the Judge is applying a civil standard (or, in relation to the lack of guarantee that the appellant’s father would be in Albania, the criminal standard). Ms Doerr responded to the respondent’s position as set out in the Rule 24 response, in relation to which she submitted that: (a) it wrongly assumes that the issue of the standard of proof was effectively moot because the FTT had accepted that the appellant’s account was credible, because the standard of proof applies also to risk on return, not just past events; and (b) its characterisation of the issue as one of phraseology was to downplay its significance, given the importance of the lower standard of proof in protection claims.
25. Mr Clarke submitted on behalf of the respondent that it was clear that the Judge made two correct directions as to the standard of proof, at paras 17 and 28. He submitted that “likely” can have various shades of meaning, including “real degree of likelihood” depending on the context. If the Judge directed himself correctly, why, Mr Clarke asked rhetorically, should “likely” be construed as meaning anything other than the reasonable likelihood required by the correct standard of proof.
Analysis
26. We think it is helpful in considering this issue to stand back and take note of some key features of protection claims and the way in which the standard of proof applies.
(a) A central issue in most asylum claims is whether a putative refugee has “a well- founded fear of being persecuted”: Article 1A(2) of the Refugee Convention. Whether a fear of persecution is “well-founded” is an objective question, but assessed on what has become known as the lower standard of proof, namely that “there has to be demonstrated a reasonable degree of likelihood” that the putative refugee will be persecuted on return: R v Secretary of State for the Home Department ex p Sivakumaran [1988] AC 958, 994E per Lord Keith and 1000G per Lord Goff, with whom Lords Bridge, Templeman and Griffiths agreed.
(b) In determining whether there is a reasonable degree of likelihood of persecution on return, all material matters must be taken into account. In most cases there will be past and/or present facts alleged from which it is said that the well-founded nature of the fear should be inferred. In respect of such matters, the decision-maker does not apply a standard of proof in the traditional sense, whereby if a matter is proved, it is treated as having certainly happened, and if it is not proved, it is treated as certainly not having happened. Rather, if a matter is not proved, it is treated as not material to the question of whether a fear is well-founded and, if it is proved, it is something which must be taken into account. But, in respect of matters that are proved to the lower standard, the degree of probability of their occurrence or non-occurrence is still itself a relevant factor to be taken into account in deciding whether a fear of persecution is well-founded. What the lower standard of proof does in this context is to ensure that matters that are considered improbable but plausible are not excluded from consideration. Those matters which are not proved to the lower standard of proof are, in effect, not material. Everything else however goes into the mix. See Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 (HL); R(Sivakumar) v Secretary of State for the Home Department [2003] UKHL 14, [2003] 1 WLR 840; MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49, [2011] 2 All ER 65.
(c) While, as noted, in many cases the central matters on which a putative refugee relies to seek to demonstrate that his or her fear of persecution is well-founded are events that are alleged to have taken place in the past, or states of affairs that are said to exist in the present, that is not necessarily so. Future events, such as the way a particular individual might behave if he or she were to encounter the putative refugee, can be relied on in considering whether someone’s fear is well-founded. In relation to such future events, the Court of Appeal held in MH (Iraq) v Secretary of State for the Home Department [2007] EWCA Civ 852 at [22] that the burden on an asylum seeker to make his case is discharged in relation to future events “by showing that there is a real as opposed to a fanciful risk that they will happen.” Again however, once that burden is discharged, it is not the case that the alleged future event from which the inference that a putative refugee’s fear is well-founded is to be treated as bound to occur. It is simply not excluded from the decision-maker’s consideration of whether the risk of persecution is well-founded. The degree of probability of the event occurring remains relevant to that assessment.
27. We have set out the approach to be taken to the assessment of facts in asylum claims, because both parties appeared to be operating under a mistaken assumption in relation to it. The appellant’s submission seemed to us to be premised on the assumption that the consideration of whether an event was likely, or for that matter, guaranteed to occur, was in all circumstances flawed. But that is not the case. In particular, it is not illegitimate for a decision-maker to consider that matters are “not guaranteed” or “not likely” if they have overcome the lower standard of proof and form part of the assessment of the circumstances that feed into the question (itself required to be assessed on the lower standard) of whether an individual’s fear of being persecuted is well-founded.
28. The respondent likewise seemed to accept this premise of the appellant’s submissions, as her case as presented by Mr Clarke was in part to defend the FTT’s reasoning by suggesting that on a fair reading the reasonable likelihood standard is what the Judge must have been applying when he used the word “likely” in some of the passages impugned by the appellant. We reject that submission however. On a straightforward reading of the FTT’s decision, when the Judge referred to matters that were not likely, in our view he meant what he said. This was not a shorthand for the lower standard of proof.
29. We turn then to the specific complaints made by the appellant.
30. The passage criticised in para 37 does not in truth involve the application of a burden of proof at all. The statement that it “seems less likely that the Appellant’s father would have such significant power over him now that he is 21” is simply an observation of the effect of the Claimant now being older than he was when he was originally trafficked. The Judge is not here excluding the possibility that the appellant’s father might wield power over him.
31. Similarly, at para 38, the Judge’s reference to there being “no guarantee” that the appellant’s father would be in Albania is not a finding that he will not be. It is the Tribunal’s assessment as to the chance that he will or will not be. We do not accept that the FTT was making a finding of fact on the basis of the criminal standard of proof here. Rather, the appellant’s father’s possible presence in Albania is being treated as something that has overcome the lower standard of proof, and the probability is being weighed.
32. The Judge’s statements at paras 40, 42 and 43, that, in summary, it does not seem likely that the traffickers (or anyone else) would actively be looking for the Appellant in Albania or be able to trace him there, cause us more concern. It is not clear on the face of those statements, taken in isolation, whether the effect of the lack of likelihood is that those matters fell to be excluded from the Judge’s consideration of risk on return, or whether that is simply part of the evaluation of that future risk. It would have been helpful if this had been spelled out more clearly. This is particularly so because, from paras 44-49 the Judge addressed a different issue (risk of trafficking in Albania more generally) but then at para 50 returned to the risk from the appellant’s father and traffickers, concluding without any express reasons that “Assessing the evidence in the round I do not find that there is a well-founded fear of persecution on return to Albania either from the Appellant’s father or the specific people traffickers.”
33. It is unfortunate that there is however nothing that expressly explains how the Judge got from his assessment that it was not likely that the Appellant’s former traffickers would be actively looking for him or be able to trace him to concluding that that meant that there was no well-founded fear and it would, again, have been helpful had this been spelled out. If there were nothing else in what the Judge had said about the appellant, his father and his traffickers to include in the assessment of whether the appellant’s fear was well-founded, the obvious inference would have been that the wrong burden of proof had been applied. The finding that it was not likely that the appellant’s father and traffickers would be actively looking for the appellant or able to trace him would indicate that the Judge had applied a balance of probabilities standard to the ultimate question. However, and being mindful to adopt the benevolent approach mandated by UT (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1095 at [26] to decisions where the reasoning is not set out as clearly as it might have been, we consider it tolerably clear that the decision did not involve the making of such an error. This is because the fact that the appellant’s traffickers and father would not actively be looking for the appellant or able to locate him were only some of the factors that fed into the Judge’s ultimate conclusion that the appellant’s fear of persecution from these actors was not well-founded. In addition to these matters, the Judge took account of the fact that the appellant was now an adult and that, as such, his father would be able to exercise less control over him in any event, as well as the expert evidence as to the situation facing trafficked men. In those circumstances, it seems to us that the Judge was not applying a balance of probabilities standard to future facts where he used the word “likely” so as to exclude this issue from the question of risk on return and was, rather, properly considering the fact that, although not merely fanciful (and therefore something to take into account), it was not likely. When the Judge concluded that there was not a well-founded fear of persecution on return to Albania either from the Appellant’s father or the specific people traffickers at paras 38 and 50 the Judge did not expressly mention the lower standard of proof. However, the Judge correctly directed himself at para 17 that this was a case to which the lower standard applied and, in the absence of any positive indication that he did not follow this direction, we do not accept that that the standard of proof was misapplied in this respect.
34. We therefore conclude that, notwithstanding the lack of clarity in the way in which the Judge’s reasoning was expressed, the appellant has failed to show that the FTT erred in law in its approach to the standard of proof.
Approach to risk of re-trafficking
Submissions
35. Ms Doerr made a number of criticisms of the Judge’s approach to the question of the appellant’s risk of being re-trafficked, in particular that:
(a) The Judge failed to apply the TD risk factors when evaluating risk from the appellant’s own family and his former traffickers. In particular, Ms Doerr submitted that he had failed to make a proper assessment of the factors militating in favour of the appellant’s claim.
(b) The Judge wrongly took into account the fact that as an adult, the appellant’s father would no longer have legal powers over him.
(c) The Judge failed to take account of, or failed to give sufficient weight to, the fact that the appellant is a victim of trafficking.
36. Mr Clarke’s essential point in response was that the Judge had not made the errors alleged. He also submitted that the Judge’s finding on sufficiency of protection meant that any error was immaterial.
Analysis
TD and AD factors
37. The starting point in considering this issue is that country guidance cases are authoritative only on the country guidance issue identified in the country guidance determination: see para 12.2 of the Practice Directions of the Immigration and Asylum Chambers of the First-tier Tribunal and Upper Tribunal. TD provides country guidance in relation to cases involving trafficked women from Albania. It is not therefore directly applicable, as country guidance, to a case involving a trafficked young man such as this and it was not therefore, of itself, an error of law for the Judge not to have applied the risk factors set out in TD in this case.
38. It is nonetheless open to a party to rely on findings or evidence recorded in one case that might bear on the findings to be made in another. The rules of evidence applicable in civil proceedings do not apply to the respondent’s administrative decision-making or to the procedure in the First-tier or Upper Tribunals: Karanakaran, cited above, 465G-466A; r.14(2)(a) of the First-tier Tribunal (Immigration and Asylum Chamber) Rules; r.15(2)(a) of the Tribunal Procedure (Upper Tribunal) Rules 2008. It is ultimately a question for the decision-maker or Judge to determine the weight to be given to any such findings or evidence as part of his or her assessment of all the evidence in the round.
39. In this case, the Judge considered that victims of trafficking generally form a particular social group, in respect of which being female is, in light of the particular social norms in Albania, a particularly important risk factor. It is understandable why the Judge therefore considered the risk factors in TD (“the TD factors”) to be relevant.
40. We consider that he took the TD factors into account in a manner that was open to him. In para 47, he took account of the appellant’s expert report and noted the TD factors which the expert gave evidence were in the appellant’s favour. It is not therefore the case, as the appellant submitted, that the Judge did not take account of the TD factors militating in the appellant’s favour. He then noted however that the TD factors are those relevant to those who already face the very significant risks associated with being women who are perceived as having violated honour codes, and that gender was therefore the most relevant factor. That is, he considered what weight to give them in the different context of a male trafficking victim. At para 49, the Judge then noted that not all of the TD factors applied to the appellant and at para 50, he took all of this into account in reaching his conclusion that the appellant’s fear was not well-founded. We do not discern any error of law in this approach.
41. We also reject the appellant’s submission that the TD factors were wrongly not taken into account in assessing the risk posed to the appellant by his traffickers and his father:
(a) In relation to his traffickers, the TD factors were taken into account in paras 47-49, as set out above, and a conclusion reached at para 50.
(b) In relation to the appellant’s fear of his father, the Judge’s conclusion about this is made at para 38, before his consideration of the TD factors. However, as noted, TD was not directly applicable to this case and it was open to the Judge (subject to the next issue as to the father’s legal powers over the appellant) to find that the appellant would not be at risk from his father because he would not now be able to compel the appellant to behave in any particular way. In assessing the risk of being trafficked by one particular individual, it is open to a decision-maker or Judge to assess that risk by reference to the lack of threat posed by that individual regardless of the individual characteristics of the potential victim to which the TD factors relate.
Father’s legal powers
42. We do not consider that there is anything in the appellant’s suggestion that it was illegitimate for the Judge to take account of the fact that the appellant was now an adult and that his father therefore had no legal powers over him. The point is made not as a self-standing reason why the appellant would not be at risk from his father, but as part of a broader point about the appellant’s ability to resist being re-trafficked by him. As the Judge noted, the appellant was by the time of the hearing a fit and healthy man of 21. The fact that someone of 21 is over the age of majority and that their parent has no legal power over them was not to say that the change in legal status was of itself relevant. Rather, it is indicative of a person’s ability to manage for themselves, and therefore in this context resist any attempt to be re-trafficked. We do not consider that the Judge meant anything more than that.
Former victim of trafficking
43. We also do not consider there is any merit in the suggestion that the Judge failed to take account of or give appropriate weight to the fact that the appellant was a former victim of trafficking. Having been a victim of trafficking may or may not be a factor which militates in favour of a well-founded fear of re-trafficking depending on the facts of a case. In this case, the Judge accepted the appellant’s account of having been trafficked for a short period in Belgium, but considered that on the facts and given the passage of time, his fear was not well-founded. That was an approach that was properly open to him.
Comparability with other young men in Albania
Error of law
44. As set out above, the Judge made a finding at para 50 that there were no features in the appellant’s case which mean that he would at any greater risk of trafficking than any other young man in Albania.
45. The Appellant submits that, in light of the medical evidence, that finding is perverse. The Respondent’s emphasised the high threshold required to successfully make out such a challenge and submitted that this was a finding that the Judge was entitled to make.
46. We accept that there is a high threshold required be met before holding that a finding of fact, in particular by a specialist tribunal is perverse. We are acutely aware that our role is limited to considering whether there is an error of law, not whether we disagree with the FTT’s assessment of the facts. See KM v Secretary of State for the Home Department [2021] EWCA Civ 693, [2021] Imm AR 1361 at [77] per Haddon-Cave LJ.
47. Nonetheless we agree with the appellant that the finding that the appellant was in “no worse” position than “any other young man” in Albania was a perverse finding which the Judge was accordingly not entitled to make.
48. The Judge had before him expert medical evidence from a psychiatrist from July 2020. Although the Judge did not accept that the appellant had proved that he had got worse since that report was written, he appears to have accepted that the position set out in the report reflected the position at the time of the hearing.
49. As the Judge recorded, that report considered that the appellant’s removal to Albania would be highly detrimental to the appellant’s mental health, there was the risk of the emergence of a significantly increased risk of suicide or serious self-injury in the appellant were he to be removed to Albania and that the appellant’s coping mechanisms are limited.
50. In circumstances in which the Judge has not rejected the psychiatrist’s assessment of the appellant, we do not understand how the Judge came to the conclusion that the appellant was in no worse position than any other young man in Albania. Someone with limited coping mechanisms for whom removal would be highly detrimental to his mental health is, we consider, inevitably in a worse position than other young men generally. It may be (and we emphasise that we make no finding in this respect) that it would have been open to the Judge to find that the differences between someone in the appellant’s position and other young men were not sufficiently serious such that the appellant’s fear was, notwithstanding his particular circumstances, still not well-founded. But that is not the finding that the Judge made. The absolute finding that the Judge did make is one that in our judgment, and notwithstanding the wide latitude to be accorded by this Tribunal to findings of fact made by the FTT, was not open to him on the evidence and constituted an error of law.

Materiality and relief
51. The Respondent submitted that the Judge’s finding that there is sufficiency of protection in Albania means that the error is not material and that we should therefore refuse to exercise our discretion to set aside the FTT’s decision notwithstanding the error of law found.
52. We reject that submission. In the context of Albania and trafficking, TD makes it clear that although there is, in general, sufficiency of protection, it is not effective in every case and, when considering whether or not there is a sufficiency of protection for a victim of trafficking, the particular circumstances of the individual must be considered. The Judge’s finding that there is sufficient protection for this appellant is based only on the general position and his finding that the appellant is in no worse position than any other young man. It is not therefore inevitable that, once the appellant’s individual circumstances are considered in relation to sufficiency, the same conclusion will be reached.
53. As the assessment of the appellant’s vulnerability and his ability to withstand being re-trafficked is central to his risk on return and whether there are obstacles to his re-integration, the legal error made by the Judge in our judgment infects the Judge’s assessment in relation to all of the claims before him. We therefore consider that the case requires re-making de novo and the facts found afresh. Having regard to the overriding objective and the nature and extent of the fact-finding necessary for the decision to be remade, we consider that it is appropriate to remit the case to the First-tier Tribunal.

DECISION
54. For the foregoing reasons, our decision is as follows:
(a) The making of the FTT’s decision involved the making of an error on a point of law.
(b) We set aside the decision and remit the case to the First-tier Tribunal for reconsideration de novo on all issues.
(c) The appeal will be heard by a judge other than First-tier Tribunal Judge Seelhoff.

Signed P. R. Skinner Date 29 May 2022
Deputy Upper Tribunal Judge Skinner