Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01443/2020
[UI-2021-001020]

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 14 March 2022
On the 09 May 2022

Before

UPPER TRIBUNAL JUDGE BLUM
DEPUTY UPPER TRIBUNAL B KEITH

Between

EN
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation
For the Appellant: Mr A McKenzie, counsel, instructed by Duncan Lewis solicitors
For the Respondent: Mr Melvin, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant appeals against the decision dated 24 September 2021 of First Tier Tribunal Judge Moon refusing the Appellant’s Appeal against the decision of the SSHD dated 30 January 2020 refusing her application for Asylum.

2. Permission to appeal was granted by FFT Judge Neville on 22 November 2021.

3. There are 7 pleaded grounds of appeal, as follows:

i. The Judge was not reasonably entitled to find, on the evidence, that the Appellant’s acknowledged mental health condition could have been caused by being mistreated as a child, rather than by having been trafficked into sexual slavery.

ii. The Judge erred in going behind concessions by the SSHD that the Appellant’s account of her home life, including disobeying her family over an arranged engagement, was true.

iii. The Judge was not reasonably entitled to base her credibility findings on speculation about the behaviour of criminals who had not given evidence before her.

iv. The Judge misunderstood the psychiatric evidence when making findings in respect of the Appellant’s claim under Article 3 in relation to her mental health.

v. The Judge applied the wrong test in law and/or failed to take account of relevant evidence when concluding that mental health treatment would be available and practically accessible to the Appellant in Albania.

vi. The Judge reached irrational conclusions on whether there was a risk of persecution and/or breach of Convention rights arising from having had children outside marriage.

vii. The Judge failed to take account of relevant evidence, including of the Appellant’s mental health condition, when considering the best interests of her children and/or the reasonableness of expecting them to live in Albania with her.

4. They are in a large part overlapping with each other.

5. The Appellant is an Albanian National who says she has been trafficked from Albania she received a positive reasonable grounds decision in 2017 but was concluded that she was not a victim of trafficking by the NRM.

6. The Appellant suffers from PTSD. She has a son born in the UK with autism.

7. The judgment runs to 146 paragraphs however, the reasoning is far from clear. There are several finding which in our judgment constitute errors of law. We have not detailed every error of law but below are the significant and material errors that in our judgment mean that this appeal must be allowed and the decision set aside.

MATERIAL ERROR 1

8. During the course of the alleged trafficking the appellant travelled through Italy. The judge concludes at paragraph 78 and 79 rejecting the Appellant’s account:

“78. I do not however, accept that the Italian authorities had no record of Arben entering Italy because the appellant did not know his true identity. The appellant's evidence is that she knew Arben from her work at the bank. In order to open a business account at the bank where the appellant worked, Arben would have to provide proper documentation in relation to his identity and the business. For this reason, I find that the appellant, in her role at the bank, would have known Arben by his true identity. In these circumstances, it surprising that the Italian authorities have no record of him.

79. When the appellant travelled to Italy with Arben on 21 March 2014; had he been using false ID for this journey, I consider it likely that the appellant, as his sole travel companion would have noticed this. For these reasons, I consider the fact that the Italian Authorities have no record of Arben, somebody who, on the appellant's account lived there, travelled there and had a business there to be significant and damaging to the credibility of the appellant's account”

9. The Judge uses these paragraphs to explain that the Appellant is not credible. However, the above conclusions about what the Italian authorities might or might not have is based on undue speculation, not based upon the evidence before the Tribunal. It is therefore a material error of law because the finding about the Appellant’s credibility infects the remainder of the judgment and reasoning.

MATERIAL ERROR 2

10. The judge makes a finding at paragraph 88:

“88. One aspect of the appellant's evidence that I consider to be lacking in detail is in relation to the person that her father had promised her hand in marriage to. Aside from him being Greek, no details have been provided about him, his family, and there is little detail of what was done to place pressure on the appellant to marry him. This is in contrast to the amount of detail provided in relation to other aspects of her account.”

11. It is accepted by the parties that this was not an issue in the hearing nor a question asked of the Appellant in interview. That is unsurprising as it is not of great relevance to the overall narrative. It is therefore a material error of law that the Judge used that issue which was not argued before her and without any evidence to make a finding against the Appellant’s credibility.

12. This finding is revisited at paragraph 103

103. I have considered whether the appellant did disobey her father. This aspect of the appellant's account has not been explicitly accepted by the respondent. The appellant's witness statement in relation to the man chosen by her father does not provide a great amount of detail in relation to this person or what was done by her family to place her under pressure. I find that this appellant has provided insufficient evidence, even to the lower standard of proof, in relation to this aspect her account and I find that she did not disobey her father.

13. The error of law infects the reasoning at paragraph 103 which is also speculative.

14. The conclusion of the judgement at paragraph 104 says the following:

104. I have rejected the credibility of the appellant's account and for this reason her claim for asylum and humanitarian protection are dismissed. Given this finding it is unnecessary for me to consider the issue of sufficiency of state protection.

MATERIAL ERROR 3

15. The judge makes a finding at paragraph 89:

89.I also do not accept that the appellant's family were as traditional as has been claimed, Dr Tahiraj's confirmation of the woman's role being confined to the home is at odds with the appellant's account of having been allowed to be educated at University and of her work in the bank. The fact that the appellant was allowed to go to University and work indicates that her family are not as traditional as claimed and that the appellant did have freedom and independence.

16. That finding goes behind a concession made by the SSHD in the refusal letter. In the refusal letter the SSHD states at paragraph 36 her conclusions having examined the evidence given by the Appellant in relation to her family life and states:

“36. It is considered that you have provided a reasonably detailed account of your home life and arranged engagement. Therefore, this part of your claim has been accepted.”

17. The judge therefore made findings that were not in issue and impermissibly went behind the concessions of the SSHD. That is a material error of law.

CONCLUSION

18. As discussed above it is clear that the First Tier Tribunal Judge fell into error on a number of occasions by speculating and take into account factors that were not in evidence before her and not open to her to find against the Appellant. As a result the conclusions about the Appellant’s credibility has permeated the reasoning making those errors of law fundamental to the overall judgement.

19. We therefore allow the appeal and remit the case to the First Tier Tribunal for a rehearing. We do not preserve any findings.

Notice of Decision

a. The appeal is allowed.
b. We find there was a material error of law.
c. The case will be remitted to the First Tier Tribunal for a rehearing.

Signed Date: 25 March 2022

Benjamin Keith
Deputy Upper Tribunal Judge Keith