Tribunal decisions

The decision

Case No: JR-2025-LON-002318
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

18 December 2025

Before:

UPPER TRIBUNAL JUDGE PINDER

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Between:

THE KING
on the application of
M B
Applicant
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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Mr A Briddock, Counsel
(instructed by Milestones Solicitors), for the Applicant

Mr M Biggs, Counsel
(instructed by the Government Legal Department) for the Respondent

Hearing date: 4th November 2025

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J U D G M E N T

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Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Applicant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the Applicant, likely to lead members of the public to identify the Applicant. Failure to comply with this order could amount to a contempt of court.

Judge Pinder:

A. Introduction

1. This is an application for judicial review, in which the Applicant seeks to challenge a decision of the Respondent dated 6th November 2024, which certified his protection and human rights claim as ‘clearly unfounded’ pursuant to s.94 Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’).

2. The Applicant is an Albanian national, who arrived in the UK in August 2023. He was subsequently recognised by the Respondent as a victim of modern slavery. The Competent Authority’s decision is dated 5th April 2024. The Applicant’s protection and human rights claim was refused on 6th November 2024 by the Respondent. The Applicant’s claim included that he would be at risk of persecution and/or serious harm, including of being re-trafficked, on return to Albania as a result of being such a victim. As a result of the certificate under s.94 of the 2002 Act, this decision did not carry a statutory right of appeal to the First-tier Tribunal.

3. I have maintained the Anonymity Order in favour of the Applicant. I consider that, on the specific facts of this application, the maintenance of the integrity of the United Kingdom’s immigration system and the Applicant having raised a claim to international protection are such that an Anonymity Order is a justified derogation from the principle of open justice. Furthermore, the Applicant is a recognised victim of modern slavery.

4. Whilst the Competent Authority’s decision refers to the Applicant as a victim of modern slavery, I refer to the Applicant as a ‘victim of trafficking’. This is because I consider this term to encompass the reference to ‘modern slavery’ and the Applicant’s experience includes, on the Competent Authority’s findings, the Applicant being trafficked from Albania.

B. Factual Background and Procedural History

5. The factual background and procedural history is well known to both parties and I do not rehearse this in detail.

The Applicant’s protection and human rights claims

6. For the purposes of these proceedings and this judgment, the Applicant’s protection and human rights claim as presented to the Respondent can be summarised as follows:

(a) Prior to leaving Albania, the Applicant had accumulated a sizeable gambling debt and as a result of his inability to pay this back, he feared for his safety. He responded to an advert offering work abroad, and he was told that he would be assisted to travel to the UK in order to work. He travelled to Greece by bus and then to Amsterdam by plane. Although he had been told he would travel to the UK from Amsterdam by plane, he was told when in Amsterdam that he would be travelling by boat. When he objected he was threatened.

(b) When the Applicant arrived in the UK, he was taken by car to a house in Rotherham, where cannabis was being produced. When the Applicant understood that he was to work in a cannabis factory, he objected, but again he was threatened, and told he had a large debt to repay. He was given precise instructions how to look after the cannabis plants.

(c) On 8th December 2023, the house was attacked by a group of men, and the Applicant was threatened with a machete. The police arrived shortly thereafter and arrested the Applicant on suspicion of production of a controlled Class B drug – cannabis.

(d) On 11th December 2023, a referral into the National Referral Mechanism (‘NRM’) was made (by the police) as the Applicant stated that he was the victim of trafficking.

7. On 18th December 2023, a positive Reasonable Grounds decision was made on the NRM referral.

8. On 9th January 2024, the Applicant was convicted of production of a controlled drug Class B (cannabis) and for this, he was sentenced to a period of one year and four months’ imprisonment.

9. The Applicant claimed asylum and attended his screening interview with the Respondent on 23rd January 2024. As a result of his criminal conviction, the Respondent issued the Applicant on 7th February 2024 with a Notice of Decision to deport him from the UK.

10. On 5th April 2024, a Conclusive Grounds decision was made by the Competent Authority, following the referral into the NRM, recognising the Applicant as a victim of modern slavery, as referred to above. I have summarised the basis of this decision in further detail when setting out my analysis and conclusions. I record here however that, in their minutes to the decision, the Competent Authority referred to the criminal judge’s sentencing remarks addressed to the Applicant following his conviction on 9th January 2024. These remarks included that the Applicant “had some awareness of the scale of the operation. But it was also a limited role under direction and there was an element of exploitation and I therefore take the view that this falls somewhere between significant and lesser role.” The judge also stated that “(t)here are some elements of coercion.”

11. On 9th July 2024, the Respondent refused to grant the Applicant leave to remain under the Immigration Rules following the decision recognising the Applicant as a victim of modern slavery.

12. Following consideration of the Applicant’s protection and human rights claim, including representations made in response to the Respondent’s decision of 7th February 2024, the Respondent issued the Applicant on 6th November 2024 with a decision to refuse and certify his claims as clearly unfounded and to issue a deportation order. On the same date, a deportation order was signed against the Applicant. This decision was served on the Applicant on 17th December 2024, when the Applicant was also detained by the Respondent.

The Applicant’s judicial review application, including for interim relief

13. The Applicant issued his application for judicial review in the Administrative Court on 15th January 2025. This application comprised a challenge to the ‘clearly unfounded’ certificate and to the Applicant’s continued detention, which he argued was unlawful. The Applicant also issued an application for urgent interim relief in the form of a stay on his removal from the UK, pending consideration of his judicial review application. The Applicant’s deportation from the UK had been set for 16th January 2025.

14. The Applicant’s interim relief application was considered first on the papers and refused by the High Court on 15th January 2025. Following an application for that decision to be set aside, which was considered at a remote and out-of-hours oral hearing attended by both parties’ advocates, the Applicant was again unsuccessful in securing a stay on his deportation from the UK. As a result of the urgency under which the Applicant’s interim relief application was considered on 15th January 2025, the Judge expressly confirmed that a decision would not be made on the Applicant’s judicial review application and whether he should have permission to proceed with the same.

15. The Applicant was duly deported by the Respondent to Albania on 16th January 2025, where he has remained to date.

16. On 20th March 2025, the Applicant was refused permission to apply for judicial review by the Administrative Court considering the application on the papers. Following an oral renewal of that application and while the Applicant remained outside of the UK, the Applicant was granted on 2nd July 2025 permission to apply for judicial review. Permission was only granted to the Applicant on his first ground of challenge. The second and unsuccessful ground, which had been pursued related to the Applicant’s detention. In the same decision, the Administrative Court directed that the proceedings be transferred to this Tribunal.

17. The Respondent filed and served her Detailed Grounds of Defence on or around 26th August 2025. In summary, she defended her decision to certify and submitted that this was a decision that was reasonably open to her on the evidence available.

18. Leading up to the hearing on 4th November 2025, the parties exchanged and filed their respective skeleton arguments. As a result of the parties being unable to agree the contents of the authorities’ bundle, two separate bundles of authorities were filed and served, with my permission, shortly before the hearing. I also had a trial bundle (‘TB’) containing all other relevant decisions, written materials and evidence.

19. I confirm that I have considered the trial and authorities bundles very carefully, together with the written pleadings and skeleton arguments from both advocates. I heard further oral submissions from both parties’ advocates, Mr Briddock for the Applicant and Mr Biggs for the Respondent.

20. I am grateful to both advocates, and to those instructing them, for their comprehensive and very helpful written and oral submissions and trial/authorities bundles.

C. The impugned decision of the Respondent

21. The Respondent’s decision dated 6th November 2024 to certify the Applicant’s protection and human rights claim states as follows (bold emphasis original):

“Reasons for Certification
Reasons why your protection claim is clearly unfounded.
Your protection claim is considered to be one which is bound to fail. To reach this decision, I have considered the decision of the Court of Appeal in FR & Anor (Albania), R (On the Application Of) v Secretary of State for the Home Department [2016] EWCA Civ 605.
Your fear is based a money lender who you borrowed money from to your gambling addiction and a man who arranged your travel to the UK. You have failed to demonstrate these people have the motivation or capability to locate and harm you. You have not demonstrated or given evidence to support your claim these people hold any power or influence over the authorities in Albania which would prevent you from seeking protection. As outlined above there is sufficient protection within Albania for people in similar situations to yourself. The protection is available to you given the consideration of objective information in the above sections.
Furthermore, you have failed to provide reasonable explanations as to why you would be unable to relocate to another area of Albania and how relocate would be unduly harsh in your personal circumstances given the consideration in the above sections.
For these reasons it is considered that your claim cannot succeed on any legitimate view and any immigration judge, properly directing him or herself and applying the law to the facts and the same evidence, would inevitably conclude the same.
Therefore, your claim that your removal from the UK would breach the UK’s obligations under the Refugee Convention/eligibility for humanitarian protection is wholly lacking in substance and any appeal would be bound to fail.

Reasons why your human rights claim is clearly unfounded.
Your human rights claim is also considered to be one which is bound to fail. To reach this decision, consideration was paid to the decision of the Court of Appeal in FR & Anor (Albania), R (On the Application Of) v Secretary of State for the Home Department [2016] EWCA Civ 605.
You are returning to Albania as an adult male who has spent the majority of your life in Albania and has access to any medical facilities and treatments that may be required.
You have stated that you suffer from Hepatitis B and mental health issues. However, for the reasons disclosed above, it is considered should you need them there is appropriate services and treatment in Albania for these issues. You have not demonstrated that you could not access these upon your return.
It has been concluded that you face no significant obstacles to reintegration in Albania.
As set out above, it has been determined that returning you to Albania would not breach your human rights and as such would not qualify for any leave outside of the rules or any other form of leave. Furthermore, you have not raised any exceptional circumstances on why it would be unjustifiably harsh to remove you from the UK.
It is considered that you do not meet the exceptions under the immigration rules, nor are there any very compelling circumstances which warrant a grant of leave outside the rules. You do not claim to have a partner or child in the UK, and you have developed only limited private life in the UK, having claimed to have resided here since August 2023, with some of that time being spent in custody following your criminal conviction. You have not evidenced that you have established any relationships beyond normal friendships in the UK. Also, your claimed conditions have been considered and nothing has been provided to indicate, that your health would be at risk. You have not provided any evidence to substantiate any area of your human rights claim and as such it is considered to be clearly unfounded.
For these reasons it is considered that your claim cannot succeed on any legitimate view and any immigration judge, properly directing him or herself and applying the law to the facts and the same evidence, would inevitably conclude the same.
Therefore, your claim that your removal from the UK would be unlawful under section 6 of the Human Rights Act 1998 is wholly lacking in substance and any appeal would be bound to fail.”

22. It is this decision that is under challenge within these proceedings. The Respondent’s decisions to make a deportation order, the deportation order itself and the decision to substantively refuse the Applicant’s protection and human rights claim are not decisions that are the subject of these proceedings. The latter decision – the refusal of the Applicant’s protection and human rights claim – is amenable to being challenged by way of a statutory appeal should the Applicant be successful in this application.

D. Relevant Legal Framework

23. The relevant legal framework is not contentious between both parties and is well-established in cases of this kind. Thus, I deal with this fairly briefly.

24. Section 94 of the 2002 Act provides as follows:

(1) The Secretary of State may certify a protection claim or human rights claim as clearly unfounded.

(3) If the Secretary of State is satisfied that a claimant is entitled to reside in a State listed in subsection (4) he shall certify the claim under subsection (1) unless satisfied that it is not clearly unfounded.

(4) The States are—
(…)
(k) The Republic of Albania,
(…)

25. In ZT (Kosovo) v SSHD [2009] UKHL 6, [2009] 1 WLR 438 Lord Philips explained at [22]-[23] as follows:

“22. The test of whether a claim is ‘clearly unfounded’ is a black and white test. The result cannot, for instance, depend upon whether the burden of proof is on the claimant or the Secretary of State, albeit that section 94 makes express provision in relation to the burden of proof (…)

23. Where, as here, there is no dispute of primary fact, the question of whether or not a claim is clearly unfounded is only susceptible to one rational answer. If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded. It follows that a challenge to the Secretary of State's conclusion that a claim is clearly unfounded is a rationality challenge. There is no way that a court can consider whether her conclusion was rational other than by asking itself the same question that she has considered. If the court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of State's view was irrational.”

26. The test that the Respondent has to meet when certifying under s.94 is a “more demanding test” (Lord Phillps in ZT at [46]) and through s.94, a “formidable power has been conferred upon the Secretary of State” (Lord Carswell in ZT at [58]).

27. The principles applicable when a court or tribunal judicially reviews decision-making on ‘clearly unfounded’ certification were reviewed by the Court of Appeal in FR & Anor (Albania), R (On the Application Of) v Secretary of State for the Home Department [2016] EWCA Civ 605.

28. The Court of Appeal reiterated in FR (Albania) that:

(a) The test for certifying a claim as “clearly unfounded” is an objective one – [53] (citing Lords Philips in R (L and another) v Secretary of State for the Home Department and the Lord Chancellor’s Department [2003] EWCA Civ. 25 at [56]);

(b) Decision-makers will consider:
i) the factual substance and detail of the claim,
ii) how it stands with the known background data,
iii) whether in the round it is capable of belief,
iv) if not, consider whether some part of it is capable of belief,
v) whether, if eventually believed in whole or in part, it is capable of coming within the Convention.

If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not – [53] (citing Lords Philips in R (L and another) at [57]);

(c) The Respondent has a certain “gate-keeping” or “screening” function in respect of s.94 - [62];

(d) Section 94 certification decisions are subject to Wednesbury review - [61]-[62] and [100];

(e) When considering whether to invoke a s.94 certificate, decision-makers should consider whether the factual basis of the claim is capable of being accepted, and if it is, those factual claims should be taken at their highest; however, ultimately the question is whether on an objective assessment of the claim and the evidence supporting it the claim is bound to fail, bearing in mind the legal requirements that have to be made out for the claim to succeed. The Respondent must consider what approach would be taken by the First-tier Tribunal, properly directing itself as to the law and as to the facts on the evidence - [74] and [77];

(f) In reviewing a s.94 certificate, the Tribunal should ensure that the decision-maker has acknowledged that certification requires a separate evaluation to that required in respect of their assessment of the merits of the claim, and that in determining whether that separate consideration has been properly and reasonably conducted the Tribunal “will be concerned with the substantive integrity of the analysis displayed in the decision letter”, which should be considered as a whole - [99]-[100].

29. In SP (Albania) v SSHD [2019] EWCA Civ 951, [2019] Imm AR 1288, the Court of Appeal set out at [25] the following:

“The correct approach when considering a claim at its highest following FR (Albania) is to consider the claim that has in fact been put forward by the appellant including all the information she has provided. If there is material provided by the appellant, including her answers during interview, which is capable of being objectively well founded and sufficient to establish a claim but which is not accepted by the Secretary of State, then an opportunity to have that evidence tested before a judge of the First-tier Tribunal should be provided i.e. certification by the Secretary of State would not be appropriate.”

E. Relevant Country Guidance and Background Information on Albania and Victims of Trafficking

30. Specifically in the context of certification of Albanian cases, Mr Biggs on behalf of the Respondent relied on the European Court of Human Rights (‘the ECtHR’) case of AD and Ors v. Sweden (Application no. 22283/21). At [71], the ECtHR confirmed that Albania is generally able and willing to provide a sufficiency of state protection in respect of risk from non-state actors. The ECtHR went on to consider, what was described as, the striking facts of that case, and to hold that there was nevertheless a sufficiency of protection - see [72]-[79].

31. In the context of victims of trafficking, both parties drew my attention to the well-established country guidance authorities of TD and AD (Trafficked women) CG [2016] UKUT 00092 (IAC) and AM and BM (Trafficked women) Albania CG [2010] UKUT 80 (IAC), specifically addressing the position of women as victims of trafficking in Albania.

32. There is no country guidance authority on male victims of trafficking, or reported case as far as both advocates were aware and I am also not aware of one. I have addressed this in further detail in my analysis and conclusions below.

33. The Respondent’s Country Policy Information Note (‘CPIN’) on ‘Albania: Human trafficking’, Version 16.0, published in July 2024 includes the following information of note:

3.3 Risk to male victims of trafficking

3.3.1 In general, male victims of trafficking are not at real risk of serious harm or persecution. The onus is on the person to show otherwise.
3.3.2 There is limited information about the experience and treatment of male victims of trafficking, including the scale and frequency of re-trafficking. Men and boys who are from lower economic backgrounds, have a low level of education or lack of employment opportunities, have physical or mental disabilities, have experienced domestic abuse or family breakdown, and/or live in remote areas are more likely to be vulnerable to being trafficked or re-trafficked than men and boys generally. Males from minority ethnic communities, particularly Roma, are also more likely to be vulnerable to being trafficked or re-trafficked. When males are exploited, it is generally for forced labour, forced involvement in criminal activities, forced begging (for boys) or, more rarely, for sexual exploitation (see Drivers of trafficking/profile of victims and Males).
3.3.3 Albania is a patriarchal society with male family members expected to provide for their families. There is a general lack of awareness that men and boys may be victims of trafficking, and those who are trafficked may not accept or recognise that they have been exploited, and may therefore be reluctant to seek assistance. There is, however, little evidence in the sources consulted that men and boys face the same societal stigma or discrimination as lone women (see Treatment of victims of trafficking, Protection, Shelters and short-medium term assistance and Support and reintegration services beyond shelters).
3.3.4 In general, the available evidence does not indicate that men and boys who have been trafficked to the UK will be at risk of serious harm on return for that reason alone. Whether they face a risk of such treatment will depend on their personal circumstances, such as their age, education, skills and employability, area of origin, health or disability, availability of a support network, and the intent and reach of their traffickers.
34. Mr Briddock on behalf of the Applicant also relied upon TDT, R (On the Application Of) v The Secretary of State for the Home Department (Rev 1) [2018] EWCA Civ 1395, in which Underhill LJ stated at [39]-[40] (with whom Floyd LJ and Dame Elizabeth Gloster agreed) the following:

“39. (…) It is prudent to regard any past victim of trafficking as a potential victim of re-trafficking, and it is important for the duty to be engaged so that an assessment of that risk can be made: if on such an assessment a reasonable view is taken that there is no longer any risk requiring protective measures, the duty would be readily discharged, but that was not a reason for finding that it did not arise in the first place. (…)

40. I am not sure how important this issue really is in practice. In most cases encountered by the authorities both criteria will be satisfied. Trafficking is a process and not a single event. A victim of trafficking who is encountered in the back of a lorry or found working at a cannabis farm or a nail bar will not only have been trafficked in the preceding period but will also be at real and immediate risk of the trafficking continuing; even if a victim has escaped, or been removed, from the immediate control of their traffickers, he or she will very commonly still be sufficiently under their influence to be at real and immediate risk of re-trafficking if not afforded proper support and protection.”

35. Mr Briddock emphasised Underhill LJ’s guidance at [82] of the same case, which is that “being a past victim of trafficking and being at real and immediate risk of being (re-) trafficked are very closely inter-related.”

F. Discussion, Analysis and Conclusions

36. The ground pursued by the Applicant is effectively that the decision reached by the Respondent on certification is irrational and one that was not open to her. She failed to separately consider whether or not, notwithstanding her reasons for refusing the Applicant’s claim substantively, the Applicant’s claim was bound to fail.

37. The overarching submission made in support of this ground was that when addressing her reasons for certification the Respondent failed to consider the Applicant as a (recognised) victim of trafficking. . Further, that the Respondent failed to consider that a different conclusion on sufficiency of protection and internal relocation was permissible and reasonable, even on the Respondent’s own evidence and taking into consideration the Applicant’s recognition as a victim of trafficking.

38. Mr Briddock submitted that had the Respondent considered the Applicant’s status as a victim of trafficking , when assessing whether to certify the Applicant’s claims, she would have been bound to conclude that those claims were not clearly unfounded. Put differently, an alternative view could rationally be reached on the risk of re-trafficking faced by the Applicant on return, such that the clearly unfounded certificate had been invoked unlawfully.

39. In response, Mr Biggs first submitted that the Applicant’s judicial review is academic and/or relief should be refused on my discretion since the Applicant has already been deported to Albania.

Whether the claim is academic and/or whether relief should be granted

40. Firstly, Mr Briddock is right to note that this was a submission first raised by the Respondent in Mr Biggs’ skeleton argument dated 30th October 2025. The issue is not otherwise taken in her Detailed Grounds of Defence, which were settled on 26th August 2025 i.e. after the Applicant had already been deported in January 2025. There can be little criticism therefore of the Applicant for not responding to this issue until the hearing.

41. Second, the fact that the Administrative Court, when deciding the Applicant’s interim relief application, took the view that the Applicant’s case was “by no means a strong case” and that the claim had a “limited strength” went to the Court’s assessment on the balance of convenience. This is not otherwise determinative of the issues before me. The tests that applied then and in that context are not the same as those that fall to be applied against the Respondent’s decision to certify.

42. The Applicant was successful in securing permission to apply and it is now for me to determine whether the ‘clearly unfounded’ certificate has been lawfully applied. The fact that the Applicant has already been deported having failed to secure interim relief does not answer this question for the reasons that I have set out above. Thus, I do not consider that the claim before me is in any way academic.

43. Mr Biggs also submitted that the guidance given by Johnson J in SAG & Others v SSHD [2024] EWHC 2984 (Admin) at [105] applies, namely that there would not be any practical utility in granting a remedy to the Applicant, even if it is established that the Respondent’s decision is unlawful on public law grounds. This passage relied upon reads as follows:

“Ordinarily, if it is established that a decision is unlawful on public law grounds (as is here conceded), a remedy will be granted. But judicial review is a discretionary remedy and there are circumstances in which it is appropriate to withhold the grant of any remedy. They include where the claim has become academic, or where a remedy would have no practical utility (Baker v Police Appeals Tribunal [2013] EWHC 718 (Admin) per Leggatt J at [32]), or where the claimant has suffered no harm or prejudice, or the grant of a remedy would be contrary to good public administration (Bahamas Hotel Maintenance & Allied Workers v Bahamas Hotel Catering & Allied Workers [2011] UKPC 4 per Lord Walker at [40]).”

44. Mr Biggs relied on this passage because the Respondent’s decision to deport the Applicant from the UK and the deportation order itself are lawful decisions: the Applicant did not secure interim relief, there is no challenge to these decisions and those decisions have now been effected. Thus, in Mr Biggs’ submission, even if the Applicant was successful in showing a public law deficiency in the decision to certify his claims, he would not be able to return to the UK in order to exercise his right of appeal against the refusals of his protection and human rights claims. This is because the deportation order is extant.

45. I need not rehearse the provisions that authorised the Respondent to issue the deportation order against the Applicant and to effect his deportation from the UK in January 2025, since these are not in dispute. In addition, as Mr Biggs rightly notes, these are not decisions that the Applicant has challenged. In any event, the Applicant does not contend that those decisions are unlawful on public law grounds.

46. I do not consider however that this is an answer to the Applicant’s case. It is correct that at the time of the Applicant’s deportation from the UK, there was no bar to the Applicant being so removed. However, the Applicant has been removed pending a challenge to the clearly unfounded certificate being applied. If the Respondent’s certification decision is found to be unlawful because there is a legitimate view that the claims could succeed, then the claim is not clearly unfounded. It follows from this that the Applicant would be entitled to a right of appeal.

47. It cannot be said therefore that it would be pointless to grant relief or that it would be appropriate to withhold a grant of relief because the relief would serve no practical purpose. The Applicant in this matter has challenged the lawfulness of the Respondent’s decision to certify prior to his deportation. His ability to challenge the effect of the deportation decisions, by way of a statutory appeal, emanates directly from the Respondent’s certification decision. Should this be quashed, it will be necessary to give effect to the Applicant’s right to challenge the refusal of his claims. In this respect therefore, this judicial review application is neither academic nor pointless so as to justify any limitation on the Tribunal’s power or discretion to grant the relief needed.

The Respondent’s reasons for certification and the Applicant’s judicial review challenge

48. Whilst the Applicant challenges each certificate as applied by the Respondent to both his protection and human rights claim, it is the reasons relating to the re-trafficking aspect of the Applicant’s claim that have largely been the focus of the Applicant’s challenge.

49. Mr Briddock first focused on the Respondent’s characterisation of the Applicant’s fear: “(y)our fear is based a money lender who you borrowed money from to your gambling addiction and a man who arranged your travel to the UK”. Mr Briddock effectively submitted that the reference to the man who arranged the Applicant’s travel to the UK is minimising, at best, the Applicant’s status as a victim of trafficking and, at worst, a failure to consider the Applicant as such a victim.

50. Mr Briddock acknowledged that the decision must be read as a whole and it is clear that in the context of the Respondent substantively considering the Applicant’s claim to fear re-trafficking on return more generally, the Respondent noted the Applicant as a victim of trafficking. There is considerable force therefore in Mr Biggs’ submission that the reference to the man who arranged the Applicant’s travel to the UK is merely a short-cut and perhaps more indicative of poor drafting as opposed to a more fundamental public law error. It is nevertheless concerning that the Respondent has framed the circumstances in which the Applicant has been trafficked (and which have been accepted by the Respondent) in this way.

51. With regards to the Applicant’s second submission relating to the Respondent’s approach to the issues of sufficiency of protection and internal relocation, I am satisfied that the Respondent has limited her consideration of whether or not the Applicant’s protection claim should be certified as clearly unfounded to her reasons for substantively rejecting the basis of the Applicant’s claim. As is clear from the summary of the legal framework and applicable case-law above, both considerations – the certificate and the substantive consideration of a claim – require different considerations.

52. In particular, when stating that the Applicant has not demonstrated or given evidence to support his claim that “these people (his previous traffickers) hold any power or influence over the authorities in Albania which would prevent (him) from seeking protection”, the Respondent has failed to take into consideration and/or address the following:

(a) The Applicant has been accepted as a victim of trafficking in Albania and the United Kingdom during approximately August 2023-8th December 2023 for the specific purpose of forced criminality (NRM Competent Authority’s Conclusive Grounds decision dated 4th April 2024, [TB 147]);

(b) A judge, considering the matter on appeal in the First-tier Tribunal, could rationally find that it is reasonable to deduce from the fact that the Applicant has already been trafficked from Albania to the UK and then further subjected to forced criminality in the UK, that the persons, who trafficked him, have been sufficiently sophisticated in their operation(s) that they have been able to evade the authorities in Albania and/or ensure that the Applicant was not able to seek protection until the police in the UK intervened;

(c) The Competent Authority itself noted that modern slavery occurs in Albania and did so in the Applicant’s case [TB 153-154];

(d) The above is also in a context whereby “being a past victim of trafficking and being at real and immediate risk of being (re-) trafficked are very closely inter-related” and it “is prudent to regard any past victim of trafficking as a potential victim of re-trafficking” – to cite Underhill LJ’s guidance again – see paras 34-35 above.

I acknowledge Mr Biggs’ submission that Underhill LJ was addressing in the case of TDT the obligations that fall under the duty to protect and provide assistance to victims of trafficking under the relevant domestic and international legal instruments that apply to trafficking cases. However, the principle that being a past victim and the impact of this on future risk, and the prudence that falls to be applied as a consequence, is not, I consider, limited to that context. This is best illustrated with paragraph 339K of the Immigration Rules, which both the Respondent and a judge on appeal are required to consider.

Para 339K states as follows:

“The fact that a person has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, will be regarded as a serious indication of the person’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.”

The Respondent has not referred to para 339K in her decision and a judge, who would be obliged to consider para 339K, could rationally consider that the causal nexus between past and future harm is sufficient in this matter.

53. Both parties agree that the passages relating to sufficiency of protection in the body of the Respondent’s refusal decision are to be considered since these are relied upon by the Respondent when certifying the Applicant’s protection claim. There, the Respondent first stated that “(t)he Albanian authorities are in general, are [sic] willing and able to provide effective protection from non-state actors. Police in Albania now have a visible presence throughout Tirana and other larger Albanian cities, and it is noted that the Albanian government is trying to make a concerted effort to improve the country’s law enforcement capabilities, particularly in the areas of counterterrorism and organised crime” ([TB 93]).

54. Specifically with regards to victims of trafficking, the Respondent stated that “external information shows the authorities have increased the support and protection available to victims of trafficking. There are also non-government organisations (NGOs) who provide support and shelter to victims of trafficking.” ([TB 94])

55. From the above and the passages in the refusal decision where the Respondent addresses the issue of sufficiency of protection, I am satisfied that the Respondent has failed to ask herself whether or not the Applicant’s claim – that there would not be sufficiency of protection as a result of his own particular circumstances, which include his vulnerabilities as a victim of trafficking – is one that is bound to fail. The reasons for refusing the Applicant’s claim on the grounds of sufficiency of protection are grounded in the Respondent’s assessment, from the information collated in her Country Policy Information Note on Albania that in general there is sufficiency of protection and the Applicant has not demonstrated the power and/or influence of his past traffickers. Those reasons are then imported into the Respondent’s assessment on certification – she does not add any further reason with reference to the applicable test.

56. On this basis, I am satisfied that the Respondent has failed to ask herself the correct question. Whilst the correct test and authority are referred to at the start of the Respondent’s decision to certify, I am satisfied that she has failed to apply this to the particular facts of the Applicant’s claim. The fact that the Applicant has been trafficked already from Albania demonstrates that his claim that the traffickers have power and influence over authorities is not fanciful. Neither is it fanciful of the Applicant to suggest that the general assessment may not apply to him or may not be sufficient.

57. Mr Biggs in his submission reiterated that the authorities, i.e. the jurisprudence and country guidance decisions to date, do not support the suggestion that an adult man who has been trafficked would not receive an adequacy of state protection. Mr Biggs acknowledged that the situation for women is potentially different.

58. The Respondent is entitled to conclude based on the CPIN that there would be sufficiency of protection in general to enable the Applicant to avoid a risk on return to Albania when refusing the Applicant’s claims and to reject the Applicant’s protection claim on that basis. I am satisfied however that the Respondent has failed to ask herself when seeking to certify the claim whether or not a judge, properly directing themselves to the evidence available, could reach a different view.

59. Mr Biggs in his submissions relied on the European Court of Human Rights authority of AD & Others v Sweden. The circumstances considered by the Court in that appeal included the activities of a particular criminal group, with considerable power, and the Court deemed in that case that there was sufficiency of protection. Mr Biggs emphasised [71] of the Court’s judgment in particular:

“71. In the light of these recent reports, which postdate the decisions in the domestic proceedings, the Court considers that the Albanian authorities’ capacity to protect their people cannot be regarded as insufficient for the general public in Albania. Nor can it be regarded as generally insufficient for all persons who are targeted by criminal organisations (…)”

60. Whilst again the Respondent is entitled to rely on this authority in support of her submission, on a substantive basis, that there is sufficiency of protection, it is important to note AD & others did not concern victims of trafficking and the claimed fear/risk of re-trafficking.

61. It is also correct to note that even a generally effective legal and criminal justice and enforcement system may have gaps. The question before me is whether or not the Applicant’s claim that there would not be sufficiency of protection for him is clearly unfounded, i.e. a fanciful claim that is bound to fail.

62. In answer to that question, even the Respondent’s own evidence in the CPIN on ‘Albania; Actors of Protection’ notes at para 5.4.1 that “(p)olice corruption was a problem and was most prevalent among front line police” (citing the US State Department Country Report published in April 2024 – Applicant’s Authorities Bundle [299]). Further, at para 5.4.6-7 that “(c)orruption and lack of resources within the police present continual challenges” and that “the state police remain highly vulnerable to corruption, and accountability remains weak, despite some anti-corruption efforts.” (ibid, [300])

63. I acknowledge significant efforts by the Albanian authorities in tackling corruption and in providing protection to victims of trafficking, including male victims, but on the Respondent’s own evidence, it cannot be said in my judgment that the Applicant’s claim that he will not be able to access sufficiency of protection for reasons that include corruption is a claim that is bound to fail.

64. For the reasons above, I am satisfied that the Respondent has not applied her mind to this when giving her reasons for certifying the Applicant’s claim.

65. The same can be said of the Respondent’s consideration, when certifying the Applicant’s claim, of the issue of internal relocation and conclusion that this is a viable and reasonable option for the Applicant. Nothing more is said in the Respondent’s certification decision other than to rely on the reasons given on this issue in the body of the Respondent’s refusal. Those reasons, in turn, cite freedom of movement and other generalities featured in Albania.

66. Specific to victims of trafficking, the Respondent stated that “(e)xternal evidence states that there are effective safeguards against male victims being detected whilst living in the apartments provided by D&E, and risk assessment and risk management is a strong component of D&E rehabilitation and reintegration program”. The Respondent also placed emphasis on other factors such as the Applicant’s family support, his education, and his socio-economic circumstances in Albania.

67. Whilst again, the Respondent is entitled to reach that view when refusing the Applicant’s protection claim, and may succeed on appeal in having her assessment upheld, that is not the right question to have asked herself when seeking to certify the Applicant’s claim as clearly unfounded. Is the Applicant’s claim - that he could not relocate as a result of the power and influence held by his past traffickers and/or as a result of his own particular vulnerabilities and needs – capable of belief ? Yes. Has the Respondent asked herself this when certifying the Applicant’s claim ? No, she has not.

68. Turning briefly to the reasons given by the Respondent to certify the Applicant’s human rights claim, I am satisfied that the same failures that have taken place in the context of the Respondent’s decision to certify the Applicant’s protection claim also apply. The Respondent has not asked herself whether the Applicant’s claim is bound to fail notwithstanding the view that she takes on refusing the same. Furthermore, the Respondent does not appear to factor in, at any stage in her consideration of the Applicant’s human rights claim, the fact that the Applicant is a victim of trafficking. This clearly remains a relevant consideration in this context also.

69. Lastly, Mr Biggs submitted that in light of the Applicant’s subsequent deportation, this effectively strengthened or validated the Respondent’s assessment that he would not be at risk on return and/or that there would be sufficiency of protection and/or a viable internal relocation option for him there. Mr Biggs added that it would also tend to undermine any suggestion that it would be appropriate to quash the decision out of concern for any public law error(s).

70. This is likely a relevant submission for the Respondent to take forward but it is not for me to take into consideration events, actual or claimed, for which there is no evidence from either party, that may have occurred, or not occurred, after the impugned decisions. It is not sufficient either to consider that a mere absence of evidence demonstrating actual ill-treatment is indicative of there being no risk, particularly in the context of an impugned certification decision.

71. Thus and for the reasons set out above, on the specific facts of this case, I consider that the Respondent’s decision to certify the Applicant’s protection and human rights claims is vitiated by public law error. I am satisfied that had she asked herself the right question and had taken the relevant matters considered above into account, she would have reached the only correct conclusion, which is that the Applicant’s claims are not ones that are bound to fail.

72. In light of the above, I quash the Respondent’s decision of 6th November 2024 to certify the Applicant’s claims as clearly unfounded pursuant to s.94 of the 2002 Act. I do not at this stage direct for there to be any further remedy granted to the Applicant and I await to be informed of the parties’ position pursuant to the indications and directions that I have given at paras 73-74 below. However, for the reasons I have set out above, on the current reasons for refusing the Applicant’s claims, it cannot be said that any appeal would be bound to fail and so the Applicant ought to have a statutory right of appeal, exercisable to the First-tier Tribunal.

73. I consider that it would be beneficial for both parties to seek to agree the best course of action to reflect my decision and my reasons for this. The parties are therefore directed to use their best endeavours to agree an order to reflect the terms of this judgment and to enable the Applicant to exercise a statutory right of appeal against the substantive refusal contained in the Respondent’s decision of 6th November 2024. The order should address any consequential matters, including any application for permission to appeal and costs.

74. Should the parties be unable to reach an agreement, they are directed to seek a listing for a hearing on notice, accompanied by written submissions in preparation for any such hearing setting out their respective positions and the orders sought.

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