Tribunal decisions

The decision

IAC-AR-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01896/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 November 2016
On 17 November 2016

Before

UPPER TRIBUNAL JUDGE FINCH

Between
L K

(anonymity direction MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr. M. Saleem, of counsel, instructed by Malik & Malik Solicitors
For the Respondent: Mr. L. Tarlow, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant, who was born on 6 November 1970, is a national of Albania. She entered the United Kingdom on 8 November 2015 and applied for asylum on 12 November 2015. She was interviewed about her application on 29 January 2016. The basis of her application was that her husband, who had been a police officer in Albania, had been threatened by criminals he had previously arrested and who had been sent to prison.

2. The Appellant's application was refused on 15 February 2016. She appealed against this decision on 24 February 2016 and First-tier Tribunal Judge Amin dismissed her appeal in a decision promulgated on 22 August 2016. The Appellant appealed against her decision and on 19 October 2016 Upper Tribunal Judge Gill granted her permission to appeal.

ERROR OF LAW HEARING

3. Counsel for the Appellants submitted that First-tier Tribunal Judge Amin had applied a higher standard of proof than was appropriate in an asylum appeal and had also failed to take into account material evidence. He also submitted that the Judge had not made any proper findings of credibility and that the objective evidence indicated that there was not a sufficiency of protection for the Appellant in Albania. I deal with his more detailed submissions in my findings below.

4. In his response, the Home Office Presenting Officer said that he relied on his Rule 24 reply and submitted that the sections referring to a higher standard of proof were merely a typographical error. He submitted that the First-tier Tribunal Judge did not accept the Appellant's account and that her findings were open to her on the evidence. He added that, once the Judge found that the Appellant was not credible, the other findings flowed from this and, taken as a whole, the evidence indicated that she was not entitled to international protection.

FINDINGS

5. Upper Tribunal Judge Gill did not give permission to appeal on the grounds of appeal submitted to the First-tier Tribunal and no application was made to rely on them at the hearing.

6. The first ground submitted to the Upper Tribunal was that First-tier Tribunal Judge Amin applied the wrong standard of proof. I accept that in paragraph 57 of her decision and reasons the Judge said that "the Appellant has not shown on a balance of probabilities that the State would not be able to protect her". However, I also note that earlier on in the decision, she had correctly reminded herself that the "the standard of proof required is that there is a reasonable degree of likelihood that the Applicant will be persecuted for a Geneva Convention reason". In addition, in paragraph 24, she had noted that for the purposes of Humanitarian Protection the standard of proof which was necessary is that of a reasonable degree of likelihood.

7. This does suggest, as submitted by the Home Office Presenting Officer, that the later references to standards of proof were typographical errors. However, I also have to consider whether the errors were material. First-tier Tribunal Judge Amin's findings in relation to sufficiency of protection in paragraph 57 only became material if it could be shown that the Judge had erred in the manner in which she had dealt with the credibility of the Appellant's account and had found that she had a well-founded fear of persecution for a Refugee Convention reason. In paragraph 41 of her decision the Judge made it clear that she did not believe the Appellant's account of being at risk because her husband had arrested some unknown persons who had now been released from prison. She gave detailed reasons for coming to such a decision in paragraphs 41 to 55 of her decision.

8. Therefore, even if the manner in which the Judge considered the question of a sufficiency of protection was marred by her reference to a balance of probabilities, this did not undermine the essential basis upon which the appeal was refused, which was the Appellant had not established that she was at risk of persecution, as claimed.

9. At the hearing, counsel for the Appellant tried to argue that the Judge's reference to her evidence being hearsay and speculative indicated that she had not applied the correct standard of proof. However, the methodology adopted by the judge of considering all the evidence in paragraphs 41 to 55 and assigning appropriate weight to each item was in keeping with the Court of Appeal's decision in Kaaranakaran v Secretary of State for the Home Department [2000] EWCA Civ 11. It did not indicate that she had applied the incorrect standard of proof.

10. Counsel for the Appellant also tried to argue that the Judge's findings on the Appellant's credibility did not address the contents of the Appellant's statement or her asylum interview. However, this was not an issue raised in either set of grounds and she had not been granted permission on this point. In any event, the account given by the Appellant had been considered by First-tier Tribunal Judge Amin and for the detailed reasons given in her decision, it had not been believed. In addition, the particular replies in the asylum interview, referred to by counsel for the Appellant, did not suggest that the Judge had not understood the case being put forward by the Appellant and the submissions made by counsel were an attempt to re-run the factual basis of the appeal.

11. Counsel tried to rely on a document entitled Albania profile - Timeline but this was not a document which was before First-tier Tribunal Judge Amin and he had not sought permission to adduce it before the Upper Tribunal. He also argued that the Appellant was entitled to protection as the family member of an individual facing persecution. I accept that a family member may in certain circumstances be entitled to protection under the Convention but First-tier Tribunal Judge Amin had found in paragraph 48 that she did not believe that the Appellant's husband had been attacked some ten years ago and that this was why he left the police force and at paragraph 54 she found that the Appellant and her family were not presently at risk from any non-state actors. These findings were not directly challenged.

12. Counsel also argued that the objective evidence submitted by the Appellant had not been taken into account. However, in paragraph 39 the Judge expressly stated that she had taken into account any documentary evidence drawn to her attention. The objective evidence drawn to my attention was very general in nature and, in particular, did not address the central question of whether former criminals sought revenge against police officers who had arrested them.

13. In the grounds of appeal to the Upper Tribunal the Appellant also relied on the fact that in paragraph 62 of her decision First-tier Tribunal Judge Amin stated that "the Appellant had not shown to the civil standard that her return to Albania would breach articles 2 and 3 of the ECHR". However, again this would only have been a material error, if the First-tier Tribunal Judge had found the Appellant's account to be credible.

14. For all these reasons, I am satisfied that there were no material errors of law in the First-tier Tribunal's decision and reasons,

DECISION

15. The Appellant's appeal is dismissed.

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.

Nadine Finch

Signed Date 17 November 2016
Upper Tribunal Judge Finch