Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03055/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18 December 2018
On 14 January 2019

Before

THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE PERKINS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

Sm
(ANONYMITY DIRECTION MADE)
Respondent

Representation:

For the appellant: Mr I Jarvis, Senior Presenting Officer
For the respondent: M R Toal, Counsel, instructed by Ropemakers Solicitors

DECISION AND REASONS

1. This is an appeal brought by the Secretary of State against the decision of the First-tier Tribunal which, in a written decision that followed the hearing at Taylor House on 6 April 2018, allowed the appellant's protection appeal.
2. The First-tier Tribunal Judge found that the appellant had been the victim of trafficking in Albania and that she faced a real risk of serious harm if she were returned. He also found for those reasons that she fell within the category of persons entitled to refugee status for the purposes of the Refugee Convention.
3. We have been significantly assisted in reaching a decision by the efforts of the representatives before the Upper Tribunal, Mr Jarvis for the Secretary of State and Mr Toal for the appellant.
4. It is undoubtedly the case that the law relating to trafficking and the interplay between the findings of the First-tier Tribunal in its appellate jurisdiction and the conclusions of the Secretary of State's competent authority on that issue are not entirely settled. We know in particular that a decision is awaited from the Supreme Court on whether that Court is to grant permission to appeal in the case of MS (Pakistan) [2018] EWCA Civ 594. There was debate before us as to whether the present case should serve as a vehicle for considering MS (Pakistan) which, of course, is binding upon the Upper Tribunal, and for considering the Upper Tribunal decisions of AUJ (Trafficking - no conclusive grounds decision) [2018] UKUT 200 and ES (s82 NIA 2002, Negative NRM) [2018] UKUT 335.
5. In the event, however, Mr Toal advanced the submission that the First-tier Tribunal Judge had in substance followed the judgment of the Court of Appeal in MS (Pakistan). In that case at paragraph 69 the Court held that:
"? it is absolutely clear that the Court of Appeal in AS (Afghanistan) was limiting the circumstances in which, on a statutory appeal against a removal decision, an appellant can mount an indirect challenge to a negative trafficking decision by the authority (in the circumstances where the appellant has not challenged it by way of judicial review), to where the trafficking decision can be demonstrated to be perverse or irrational or one which was not open to the authority, those expressions being effectively synonymous for present purposes."
6. Mr Toal submits and Mr Jarvis, having taken the opportunity of considering the matter, agrees that the First-tier Tribunal Judge in the present case did in fact follow that judgment, albeit without referring expressly to it. He did so because in a number of important respects as set out in paragraphs 34 to 36 of the decision in particular, the judge noted failures on the part of the competent authority to engage with the evidence that was before it, particularly in the form of the asylum interview and the material relating to the application for a visa on behalf of the appellant. For the record, the Tribunal sets out in full those paragraphs of the decision, and also paragraph 49, where a further point of the same kind was noted by the judge:
"34. Unlike the Secretary of State's representative, I do not find that there are any material inconsistencies or contradictions in her account, as given in her Screening Interview, or in her subsequent Asylum Interview, or in her Witness Statement, dated the 5th April 2018, or in the oral evidence that she gave to this Court on the 6th April 2018. I find that there is no inconsistency as to when the Appellant maintained her husband lost his job. She indicated, in her answer to question 4.2 of her Screening Interview, that he was dismissed from work in December 2013. What she had claimed in her Asylum Interview was that her husband's problems had first started in June 2013, not that he had lost his job at that time. That was something misunderstood clearly by the Interviewing Officer, who claimed in his questions, at question 80, "But you claim he lost his job in June 2013", when the Appellant had said no such thing.
35. Again, paragraph 32 of the 'Reasons for Refusal' Letter shows a complete lack of understanding on the part of the Secretary of State's representative as to the order in which events occurred. The Appellant, according to her account, which I accept, had been invited to come to the United Kingdom for a visit by a friend in December, as a result of which the Appellant then applied for a 'Visitor's' Visa on 15th December 2014. This, therefore, had already been applied for before the incident of her abduction and rape had taken place, which was at the end of December 2014. It was indeed purely fortuitous, from the Appellant's point of view, that her Visa then was issued on the 5th January 2015, at a time when she was staying with her friend in Tirana, and was able to thereafter come to the UK accompanied by her child, A.
36. Again, I cannot agree with the conclusion reached by the Secretary of State's representative at paragraph 34 of the 'Reasons for Refusal' Letter, where he or she states, "The lack of a report to the Albanian authorities is considered to significantly undermine your claim to have been abducted in Albania whilst you were living with your family". The reality of the situation was, as explained by the Appellant, that having been abducted she requested to telephone her family to tell them that she was fine, that she was staying with a friend, and therefore they didn't need to worry about her at all.
?
49. I need to mention a matter raised by the Secretary of State's representative at paragraph 31 of the 'Reasons for Refusal' Letter, where it was maintained that the Appellant had obtained A's father's consent for her to travel to the UK. It was said that, because the Appellant had claimed that she had lost contact with her husband in March 2014 when he had left the country, her account was "greatly undermined by the fact that your husband gave his consent for his daughter to travel out of Albania in a Visa Application submitted in December 2014". The reality was, as was admitted by the Appellant in her oral evidence before this Court, that that 'consent' had been forged. In fact, as was rightly pointed out by Counsel for the Appellant, Mr. E. Waheed, the Appellant had never been asked about this in either of her interviews. It was said that she had answered questions about that at Court on the 6th April 2018 totally frankly, and I find that to have been the case."
7. It is not enough for a judge merely to disagree with a decision of a trafficking authority, if and insofar as MS (Pakistan) applies in a particular case. Assuming for the present that MS (Pakistan) did apply to the appeal before the First-tier Tribunal Judge, which is entirely moot given the decision of the Upper Tribunal in ES, the Tribunal finds that the First-tier Tribunal Judge has given sufficient reasons for concluding in substance that the decision of the competent authority was not merely one with which he disagreed, but one which had material public law failings, which were identified in the passages of the determination to which we have made reference.
8. This means, therefore, that on any basis there can be no error of law in the judge's decision of the kind that would make it appropriate for the Upper Tribunal to set aside the decision and re-make it or remit it to the First-tier Tribunal.
9. As a result, the contention of the Secretary of State, as articulated in Mr Jarvis's skeleton argument, to the effect that the case of ES was wrongly decided remains to be considered on another occasion, as does the scope of MS (Pakistan).
10. For the reasons we have given, assuming that MS (Pakistan) does apply (which represents the maximum for which the Secretary of State could contend), the Upper Tribunal finds that the judge's decision must stand. It contains no error of law, such as to necessitate its being set aside.

Notice of Decision

The appeal by the Secretary of State 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.

Signed Date: 31/12/18

The Hon. Mr Justice Lane
President of the Upper Tribunal
Immigration and Asylum Chamber