Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/21171/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 April 2017
On 26 April 2017

Before

UPPER TRIBUNAL JUDGE WARR

Between

RA
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr T Aitken of Counsel instructed by Wai Leung Solicitors
For the Respondent: Mr I Jarvis

DECISION AND REASONS

1. The appellant was born on 1 September 1996 and is a citizen of Albania. He arrived in this country on 6 October 2013 as an unaccompanied minor. He applied for asylum on 11 October 2013. The application was refused but the appellant was granted discretionary leave to remain as a minor until 1 March 2014. He applied for further leave to remain on 26 February 2014 but this application was refused on 22 May 2015 which gives rise to the appeal proceedings herein.

2. The appellant claimed he had been discriminated against in Albania due to his Gorani ethnicity and had been threatened in May 2013 by two older boys from his school. The appellant had been pushed against a wall and his assailants had produced weapons. He had reported the incident to the director of the school but she advised the appellant to report the matter to the police which the appellant was too scared to do. He had been threatened that if he did so he would be killed and he further believed that the police would side against him due to his ethnicity.

3. A second aspect of the appellant’s claim was that he was at risk of becoming a victim of a blood feud. In 2009 his cousin whose first name was Shaban killed a man who had beaten Shaban’s son. This had caused a feud between the appellant’s family and the family of the man Shaban had killed (the T family).

4. The Secretary of State in refusing the appellant’s application noted that the country information did not confirm that there was a general persecution of Gorani people in Albania. It was not consistent that the appellant claimed to have reported the incident to the director of the school but not to the police. It was noted that the incident appeared to be a one off event and had not been repeated in the four months before the appellant left Albania. Victims of blood feuds were not members of a particular social group: Skenderaj [2002] EWCA Civ 567. The Secretary of State referred to EH (Blood feuds) Albania CG [2012] UKUT 00348 (IAC). While there were reports on the internet that a man had been stabbed by “Saban” in July 2009 the reports differed from the account the appellant had given.

5. No supporting evidence had been given that Saban was the first cousin of the appellant’s father. There was no evidence to show that the appellant had been threatened and it was not accepted there was an active feud. The appellant had not gone to the authorities and there was state protection available. Members of the appellant’s family had remained in Albania. Internal relocation was a viable option. It was noted that the appellant had left Albania and flown to Italy, travelling through France and Belgium before reaching the UK and reference was made to his behaviour within the meaning of Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.

6. The appellant appealed the decision and his appeal came before a First-tier Judge on 19 August 2015 when the appellant was represented by Counsel (not Mr Aitken). The judge heard oral evidence from the appellant. She reminded herself of the burden and standard of proof by reference to Karanakaran v Secretary of State [2000] EWCA Civ 11; [2000] Imm. A.R. 271. She noted the point taken by the respondent in respect of Saban and the claimed relationship of the appellant to him which she considered in paragraphs 26 and 27 of her decision as follows:

“26. First, the name differed. That is correct. The name given by the Appellant did differ, by one letter. The Appellant referred to Shaban and not Saban in his Asylum Interview, see response to question 80. He maintained this spelling of the name in his witness statement, dated 8 August 2016, see paragraph 10. The Appellant did not provide any explanation, as to why he was using a different spelling, to that used in the reports of the incident referenced in the refusal letter.

27. Secondly, the Appellant had not provided any evidence to support his claim that Saban was the first cousin of his father. That is also correct. The only evidence of the claimed relationship was the Appellant’s evidence.”

7. She accepted the point made by the respondent that the account as given by the appellant in his asylum interview differed from the account on the internet which the appellant blamed on an error in translation. However the judge was not satisfied why the error in translation had not been put forward at an earlier stage and it had been raised for the first time in the appellant’s witness statement. The judge continued her determination as follows:

“29. At paragraph 40 of the refusal letter dated 13 December 2013, the Respondent maintained that Kanun law provided that any male member of the family related to the original member of the feud through the male line was a potential target. Yet, the Appellant had delayed for four years before coming to the UK and on his own account, the Appellant was not threatened, by the T family, during that four-year period, see the Appellant’s reply to question 94, AIR.

30. Mr Rendle submitted that it was only adult males who were of interest and at risk. He did not refer me to any country information, specifically in support of this submission. Mr Rendle did, however, refer me to three items of country information in relation to risk on return. One of those items was The Refugee Documentation Centre (Legal Aid Board, Ireland), Information on the prevalence of blood feuds in Albania and the ability of the State to protect citizens who are threatened by families involved in blood feuds, 28 August 2015, at page 30 of the Appellant’s bundle.

31. Mr Rendle submitted that this report evidenced that blood feuds still exist in Albania. I note, however, that whilst stating that blood feuds ‘exist in some rural areas’, the report also refers to boys as being “under an ever ‘present death sentence because of blood feuds” and to “Albanians still respect the tradition of vendetta, which dates back to the 15th century and spares no males in a family, including babies’. This contradicts the submission that it is only adult males who are at risk from blood feuds.

32. Further, during that four year period, the Appellant was not confined. Asked if he was still allowed to attend school, the Appellant stated only that, ‘From May-June 2013, I went with breaks from time to time’, see response to question 26.

33. The Appellant gave his brother’s age as 14 in 2013, see AIR 152. He maintained that his brother was too young, to face any threats, as a result of the blood feud, see AIR 153. Asked what problems his brother had faced, as a result of his ethnicity, the Appellant replied ‘He is too young, he may face some small problems when he gets older for sure he will face some bigger problems’, see AIR 154. As above, the country information referenced by Mr Rendle supported the Respondent’s contention that all males in a family line are at risk, if there is an active blood feud in their family line.

34. In the asylum interview, the Appellant stated that his father worked as a farmer, see AIR 48-50. The Appellant was asked if he had told his parents about the incident with the two boys in May 2013 and he replied ‘Mother only’, see AIR, 73. Asked why he had not told his father, the Appellant stated that he ‘was concerned he may do something, would get in trouble’, see AIR, 74. This statement suggested that the Appellant’s father remained living in Albania and that the Appellant was in contact with his father prior to his departure in 2013.

35. Further, in interview, asked if his father would not be at risk, as he was older than the Appellant, the next generation up, for revenge to be taken, the Appellant stated ‘He is in danger’, see AIR 95. In response to the statement, ‘But he has not left the country?’ the Appellant stated ‘He may have, but I don’t know since I came here I have no contact. I did not speak to him’, see AIR 96. This answer also suggested that the Appellant’s father had remained living in Albania and the Appellant had been in contact with his father prior to leaving Albania.”

The judge records the appellant as confirming that there had been no incidents involving the family of the man Saban had killed until his departure from Albania and that his younger brother remained living there. As far as he was aware his father also remained living in Albania.

8. The determination continues:

“39. The Appellant was cross-examined, asked directly, why his younger brother and father, had not been threatened if there had been a blood feud, as claimed. He replied ‘I don’t know what to say, but I am very worried about them. They are in danger. My mother said the whole family is to move’.

40. Following cross-examination, I asked the Appellant where his father was. His reply was ‘I don’t know where he is. I don’t have contact with him. I didn’t speak to him’. I then asked the Appellant the question, ‘Don’t you ask your mother about him? In the letter from your mother, she says that she sees your father?’ The Appellant replied, ‘I do ask my mother and she says that she’s worried, stressed and their lives are in danger. Maybe she doesn’t want to upset me. I don’t know.’

41. The Appellant’s contention that his mother does not wish to upset him is not consistent with the account that his mother has given him in the letters provided from her. Further, the letters do not state that the Appellant’s father is not remaining living in the family home. In fact, the letters suggest that he is. The two-page translation provides ‘Recently, I have also seen my husband very upset and worried.’”

9. The judge records that the appellant’s paternal uncle was still living in Tirana together with his two twin sons and that he was working and not “self-confined”.

10. The judge concluded her assessment as follows:

“43. The Appellant maintained that the incident in May 2013 was the first time that people at school had been that violent towards him, see AIR, 69-70. He confirmed that there were no further incidents by those two boys, see AIR, 77. Asked if anyone else at school had done anything, the Appellant stated, ‘Not something heavy. I was not accepted. They tried to avoid me’, see AIR, 78. Later asked to confirm if the incident in May 2013 had been the first problem at school, the Appellant provided a vague response, which was inconsistent with the response he had given to question 78. He stated ‘There were other cases, but this was more serious’, see AIR 136.

44. I also note that the Appellant travelled through safe countries before entering the UK and that he was told that he was being sent specifically to the UK. That was behaviour to be taken into account, in determining the credibility of the Appellant’s account.

45. I apply the lower standard of proof, and look at the evidence in the round.

46. Applying the analysis of the evidence, I do not find that there is, or was, a blood feud involving the Appellant’s family:

(i) The name of the person involved in the incident with the T family given by the Appellant was different to that in the reports and the Appellant failed to provide a satisfactory explanation for the difference.

(ii) The claimed error in the account given by the Appellant in his asylum interview was not raised until his supplementary witness statement.

(iii) There was no evidence provided to support the Appellant’s claim that Saban was his father’s cousin.

(iv) The account given, as to the whereabouts of the Appellant’s father, was contradictory and lacking in credibility. I find that he was, and remains, living in the family home in Albania.

(v) There was no claim that the Appellant’s father was threatened prior to the Appellant leaving Albania. There was no credible evidence that he had been threatened since the Appellant left Albania.

(vi) There was no claim that the Appellant’s paternal uncle was threatened yet he was an adult male, living in Tirana.

(vii) The country information was that under Kanun law all male family members were targeted. The Appellant was not targeted nor was his brother.

47. I do not find that the Appellant was persecuted due to his Gorani ethnicity. The account given by the Appellant was vague and lacking in credibility. Further, there was no county information provided by the Appellant’s representatives in support of the claimed persecution.

48. Given these findings, I find that there is no risk to the Appellant’s life upon return to Albania now and that he is not a refugee.

49. For the same reasons, I find that removing the Appellant to Albania would not breach Articles 2 and 3, ECHR and that he would not be at real risk of suffering serious harm and would not be entitled to Humanitarian Protection.

50. There was no medical evidence presented, which would warrant consideration of a claim to Discretionary Leave, on medical health grounds.

51. The Appellant did not claim to have a parent or partner in the UK so failed to meet the requirements for a grant of leave to remain on family life grounds under Appendix FM of the Immigration Rules.

52. The Appellant was 19 years of age at the date of the hearing, 20 years of age at the date of this decision. He did not raise any very significant obstacles to his integration into Albania upon return there now. His family members remain living there and he is in contact with them. The Appellant speaks the language and has only been living away from the country for less than three years.

53. There were no submissions made that might warrant consideration of a grant of leave to remain on human rights grounds outside the Immigration Rules.

54. I am satisfied that the Respondent considered all the relevant factors and that the Appellant’s removal from the UK was appropriate under paragraph 353B of the Immigration Rules.”

11. Accordingly the judge dismissed the appeal.

12. There was an application for permission to appeal. On 16 February 2017 a First-tier Judge granted permission, commenting:

“3. In the light of the chronology it is arguable that the judge had attached insufficient weight to the age and background of the appellant and the circumstances in which the appellant was interviewed in considering the foundations set forward for the analysis of credibility leading to the dismissal of the appeal.

4. It is arguable that the judge should have set out the weight attached to any finding in relation to the degree of literacy of the appellant throughout the time span from the claim of asylum to the date of hearing.”

13. A response was filed by the respondent on 2 March 2017 rejecting the arguments put forward and submitting that the judge had carefully assessed the evidence.

14. Mr Aitken submitted that the point taken in relation to the spelling of Shaban was a simple translation error or spelling mistake. The appellant had the same surname as Shaban and the identity of the appellant was accepted. It was more likely than not that he was related to Shaban as claimed. His mother had written saying that they were related. The judge had referred to the appellant’s bundle at paragraph 31 of her determination. However it was submitted that the material was capable of supporting the appellant’s account.

15. The finding by the judge in paragraph 47 of her determination that the account given by the appellant was vague and lacking in credibility was unclear. Reasons needed to be given for the finding.

16. Mr Jarvis submitted there was no material error of law and the grounds did no more than express disagreement with the judge’s analysis.

17. In relation to the point taken about the spelling of Shaban’s name the judge noted the absence of an explanation as to why a different spelling was used in paragraph 26 of her determination. She had not erred. In any event it was quite clear that the judge had considered the appellant’s underlying credibility, the inconsistencies in the account and the relationship between it and the country guidance. Mr Jarvis referred to Y v Secretary of State [2006] EWCA Civ 1223 at paragraph 30. As in that case the judge had made her findings on credibility “based on an accumulation of points”. She had also taken into account the country information and reference was made to paragraph 27 of Y. It was quite clear that the judge had fully taken into account the background material. All the core evidence had been rejected. Her findings about the appellant’s Gorani ethnicity in paragraph 47 were perfectly clear and she had referred to the appellant’s vague response in paragraph 43 of her decision.

18. In relation to the point on which permission to appeal had been given it was quite apparent that the judge had appreciated the age of the appellant and had indeed referred to it in paragraph 1 of her determination. There was reference to the appellant’s mother not wishing to upset the appellant. There was no evidence that she had not appreciated the appellant’s age. She had referred in paragraph 31 to the risk for boys from blood feuds. There was no material error of law.

19. Mr Aitken submitted that the judge should have been aware of the appellant’s young age when giving his account to the Secretary of State. This was a case where the judge should have focused on the centrepiece of the appellant’s account.

20. At the conclusion of the submissions I reserved my decision. I remind myself that I can only interfere with the judge’s decision if it was materially flawed in law. The point on which permission to appeal was granted was the argument that insufficient weight had been put by the judge on the age and background of the appellant and the circumstances of his interview.

21. As Mr Jarvis pointed out the judge was perfectly aware of the appellant’s age to which she makes reference in paragraph 1 of her determination. She states that the appellant is now aged 20 and that he entered the UK in 2013 aged 16 as an unaccompanied minor. She refers in paragraph 4 of her determination to the claim of the appellant being refused in 2013 and the appellant being granted leave to remain as a minor. As I have pointed out the judge was guided by the case of Karanakaran and applied the correct burden and standard of proof. It is said in the grounds that she failed to give the appellant’s case the required anxious scrutiny. I find no evidence of this, indeed the judge gave the appellant’s claim meticulous attention throughout. As Mr Jarvis points out she did not simply rely on the spelling of a name to reach her adverse credibility assessment. She had a number of points that led her to her conclusion. She had the benefit of hearing and seeing the appellant give evidence. It is quite clear that she had in mind the country guidance to which she makes extensive reference.

22. The determination is clearly and fully reasoned. Counsel referred to the jurisprudence about the centrepiece of a story standing despite inconsistencies – Chiver [1994] UKIAT 10758 is an early example of this point. However in this case I find no evidence that the judge did not adopt a holistic approach to the material before her or that she otherwise misdirected herself. Her findings were based on an accumulation of points as in the case of Y v Secretary of State to which Mr Jarvis referred. I do not find that the judge erred in focusing on the spelling of the first name of Shaban or in making no express reference to the point that they shared a surname. She appears to have taken into account all of the relevant evidence before her.

23. I agree with Mr Jarvis that the grounds of appeal amount in reality to little more than an expression of disagreement with the judge’s well reasoned factual assessment.

24. The appeal is dismissed.

Anonymity direction – the First-tier Judge made an anonymity direction which continues.

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 their 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.

TO THE RESPONDENT
FEE AWARD

The First-tier Judge made no fee award and I make none, the appeal being dismissed.

Signed Date: 25 April 2017

G. Warr, Judge of the Upper Tribunal