Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA016662015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 25 May 2016
On 17 June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HANBURY

Between

[B B]
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Bonavero of Counsel
For the Respondent: Ms A Brocklesby-Weller

DECISION AND REASONS

Introduction

1. The appellant is an Albanian national. She is 22 having been born on [ ] 1994. She came to the UK via France, claiming that she had been raped and forced into the sex industry in her own country. She was screened on 15 May 2015 and an asylum interview was conducted on 22 July 2015. The respondent rejected her claim, regarding her as an illegal entrant. She was served with a notice (IS.151A) on 15 May 2015. On 28 September 2015 the respondent decided to refuse to grant the appellant asylum or humanitarian protection in the UK. The appellant subsequently appealed that decision to the First-tier Tribunal (FtT) on 12 October 2015.

2. The appellant's appeal to the FtT came before Immigration Judge Geraint Jones QC (the Immigration Judge). The Immigration Judge having heard evidence from the appellant rejected her account, finding it to be implausible. He found that she had made up an allegation of sexual exploitation for the purpose of seeking residence in the UK. He therefore dismissed her appeal.

The Upper Tribunal Proceedings

3. In her grounds of appeal dated 4 March 2016, the appellant claims that the Immigration Judge had suffered sexual abuse both in Albania and in France. The reason she had not claimed asylum in France was consistent with a person who had been "trafficked" - i.e. she was too frightened to report it to the police. The Immigration Judge had been precipitate and wrong in his assessment of the appellant's credibility, which was broadly in line with a person who was telling the truth about her sexual exploitation. The Immigration Judge had shown a "concerning" lack of regard for the appellant's account which had been consistent and fully explained in interview.

4. These grounds were considered by Judge of First-tier Tribunal Saffer who considered there had been no material error of law in the Immigration Judge's assessment. The findings were open to him on the evidence.

5. The appellant had appealed that refusal by renewing the application to the Upper Tribunal. In her further grounds she contended that the Immigration Judge's decision had been beset with "myths" whereas the reality was that the appellant had been exploited by a member of the underworld with possibly, official connections. Her account was not "glaringly inconsistent" but there were in fact material errors of law which needed to be looked at by the Upper Tribunal.

6. Upper Tribunal Judge Freeman decided to grant permission to appeal to the Upper Tribunal because he considered that although the Immigration Judge had not been obliged to believe the appellant, some of the points, at least, were "arguable". In particular, a criticism of the appellant to the effect that she had not mentioned being raped in interview had been within the context of the screening interview. The Immigration Judge's strong credibility findings against the appellant seemed to be based on what was put to her in cross-examination and should have been considered in the context. The appellant had explained a number of the contradictions in her evidence.

7. Directions were sent out to the parties informing them that the Upper Tribunal would not consider evidence not before the FtT unless there was an application to admit such evidence explaining why it had not been produced below.

8. The respondent provided their response under Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 indicating that in her view the FtT had directed itself appropriately, properly considered the evidence, given clear reasons for not accepting the appellant's account and had not become fixated upon what happened to the appellant in France. It was clear that the FtT had rejected both the appellant's account of what had happened in France and what had happened in Albania. The findings were sustainable and lawful and there was no error of law.

9. A notice of hearing was sent out for a hearing before the Upper Tribunal on 5 May 2016, fixing a date of 25 May 2016.

The Hearing

10. At the hearing I heard submissions by both representatives. Mr Bonavero, who appeared for the appellant, said that it was "not easy to allege rape". He said that the Immigration Judge had been hasty in a number of his judgments. Mr Bonavero said that paragraphs 37-38 of the decision gave a flavour of the Immigration Judge's approach. In particular, the Immigration Judge had referred to the appellant's use of her "feminine youthfulness" as a platform for alleging rape and sexual exploitation. She had alleged that Melis, her boyfriend in Albania, had been an influential and powerful person which was the reason for her failure to report the rape and other allegations to the police. It was therefore the Immigration Judge's view that she had not demonstrated that she was embarrassed or shameful over such an allegation.

11. Mr Bonavero then went to deal with a number of specific points the Immigration Judge had made earlier in his decision. He said that his client had been a victim of sexual abuse in Albania and had then been abused in France by "people traffickers". However, the allegations as to what happened in France did not go to the core of her claim. The Immigration Judge was said to have focused too much on what happened in France by reference to paragraph 35(vi). The Immigration Judge said that the appellant's account of having been sexually exploited in France was "a blatant fabrication" designed to bolster her allegation of sexual exploitation in Albania. This, Mr Bonavero claimed, made no sense.

12. My attention was also drawn to paragraph 35(viii) where the Immigration Judge said that the appellant had given an implausible account. The Immigration Judge had not accepted that Melis was someone "capable" of exerting influence over the appellant. The Immigration Judge rejected any suggestion that the appellant feared Melis.

13. In Mr Bonavero's submission, the Immigration Judge had made findings of inconsistency that were not justified by the facts. He made trenchant adverse credibility findings which were not justified. The case should be remitted to the FtT for fresh findings. There was infelicitous language but the core of the attack on the Immigration Judge's decision related to his approach.

14. Ms Brocklesby-Weller relied on the respondent's Rule 24 response which stated that, contrary to the assertions made by the appellant, the Immigration Judge had directed himself appropriately and rejected both the account of the events in Albania and the events in France. These were conclusions he was entitled to come to. As to the issue of what happened to the appellant in France, the Immigration Judge pointed out that her whole purpose in going to France was to then get to the UK by lorry. The appellant did not identify who she was scared of. Had she wished to go to the French police she could have done so. Ms Brocklesby-Weller submitted that the issue of the appellant's failure to claim asylum in France was an important one, particularly in the light of Section 8 of the Asylum (Treatment of Claimants) Act 2004. I pointed out that that Section had not been referred to by the Immigration Judge. Nevertheless, Ms Brocklesby-Weller said that this failure did not prevent the Immigration Judge from making strong adverse credibility inferences from the appellant's failure to claim asylum in France.

15. Ms Brocklesby-Weller also referred me to several passages within the decision. She said that paragraph 35(ix) contained a clear rejection of the appellant's alleged fear of Melis. There, the Immigration Judge points out that Melis had made no attempt to contact the appellant or any member of her family for the five months prior to her departure in November 2014. This suggests that he was no longer interested in her. In essence, the appellant had not given a good reason for not reporting the alleged rape or sexual exploitation. She had not had a medical check-up and she had not given a good reason for explaining why she had been able to return to her family. She gave no detail of any connections between Melis and the authorities.

16. Mr Bonavero then reiterated a number of the points he had made earlier. These included the fact that, as Judge Freeman had pointed out, a screening interview contained a number of limitations. It was understandable that the appellant had not given a full account at that stage. The Immigration Judge had been wrong to reject her account being afraid to escape which was a classic indication of a person who had been trafficked.

17. After hearing the submissions I decided to reserve my decision which I will later give with my reasons.

Discussion and conclusion

18. I have considered whether the Immigration Judge was too precipitate and whether he considered properly allegations of serious sexual exploitation and trafficking. It is the nature of such allegations that they need to be handled with great sensitivity since it is known that victims of sexual violence often feel embarrassed or humiliated by their experiences and are reluctant to come forward. As the Immigration Judge himself acknowledged (at paragraph 21) complaints of this nature are often slow to come forward. The respondent's own guidance is quoted at paragraph 5 of the grounds of appeal to the Upper Tribunal. This indicates (quoting paragraph 31) that:

"It is important to be aware of a number of myths and issues of incomplete understanding relating to human trafficking: -

Myth: the person did not take opportunities to escape ?

Reality: remaining in an exploitative situation could indicate a willingness to remain there ? but there are many reasons why someone may choose not to escape ?"

19. I am afraid the Immigration Judge expressed himself infelicitously. As Mr Bonavero submitted, it was not appropriate for the Immigration Judge to suggest that the appellant had exploited her "feminine youthfulness" for the purposes of her claim. Unfortunately, the Immigration Judge showed a lack of knowledge of the nature of people trafficking. It was also, in my view, inappropriate for the Immigration Judge to attach so much weight to the screening interview which should have been seen in its proper context as a preliminary questionnaire rather than a fully nuanced account.

20. These criticisms of the Immigration Judge need to be considered in the light of his actual findings. Whilst these were expressed in trenchant language it is one thing to comment on the language used and another to identify specific findings which the Immigration Judge should not have made. Overall, I have concluded, they were findings that the Immigration Judge was entitled to come to. In particular, the Immigration Judge came to the clear findings on the following:

(1) He did not accept that the appellant had given adequate evidence that Melis had connections or influence with the police and that this explained adequately why she had not come forward with allegations to the police in Albania. It is difficult to see how any judge could attach much weight to the appellant's mere suspicions in this respect. The appellant seems to have accepted in cross-examination that she did not know what Melis's connections were.

(2) The Immigration Judge completely rejected the appellant's account of sexual exploitation whilst in France, finding that she had been intending to come to the UK in all events and at all costs. The fact that she did not go to the French authorities was a matter that damaged her credibility based on this finding. There is no doubt it is entirely safe to report such matters to the French authorities just as it is to report them to the British authorities. This tends to indicate that the appellant was not in genuine need of international protection. Whilst the Immigration Judge did not actually refer to Section 8 of the 2004 Act it is clear that he did regard this as a significant adverse credibility issue.

(3) The Immigration Judge also found that Melis had not contacted the appellant or her family in the five months prior to her departure at paragraph 35(ix) and this was also a conclusion which harmed her credibility but which he was also entitled to come to. If, as the appellant claims, Melis was intent on pursuing her he would surely have got in touch in that timeframe.

(4) The Immigration Judge completely rejected the appellant's account of having been trafficked at paragraph 36 of his decision. Whatever the motives for the appellant's false claim it is difficult to see how she could have succeeded on her claim to being in need of international protection in the light of this finding.

21. I would add that even if the appellant's account were accepted in full it would be questionable whether the appellant would be justified in asserting that there is no safe place within Albania to which she could travel. Albania is a parliamentary democracy and a candidate for EU membership and there must be many safe places where she could go. However, I acknowledge this was not a finding the Immigration Judge actually came to and it is not one I need to pass any further comment on therefore.

22. I have therefore concluded that the Immigration Judge was entitled to come to the decision he came to on the evidence he heard. There is a justified criticism of his use of inappropriate language but that does not amount to a material error of law in this case.

Notice of Decision

I have decided that there was no material error in the decision of the FtT. Therefore, the decision to reject the appellant's asylum claim as well as her humanitarian protection and human rights' claims stands.

No anonymity direction is made.

Signed Date 16.6.16

Deputy Upper Tribunal Judge Hanbury

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award.

Signed Date 16.6.16

Deputy Upper Tribunal Judge Hanbury