Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03307/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15th November 2016
On 16th November 2016

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

ALDO [K]
(ANONYMITY ORDER NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Ball, Counsel, instructed by Sentinel Solicitors
For the Respondent: Ms A Fijiwala, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. The appellant is a citizen of Albania born on 18th January 1998. He is therefore now 18 years old. He arrived in the UK on 7th October 2014, and claimed asylum on 8th October 2014. His application was refused but he was granted discretionary leave as an unaccompanied minor. He applied to extend this leave on asylum and human rights grounds, but this application was refused on 17th March 2016. His appeal against this decision was dismissed by First-tier Tribunal Judge Abebrese after a hearing in a determination promulgated on the 15th September 2016.
2. Permission to appeal was granted by First-tier Tribunal Judge Ford on the 12th October 2016, who also extended time by one day to admit the application, on the basis that it was arguable that the First-tier Tribunal judge had erred in law in finding the appellant not credible without consideration of the evidence at annex K of the appeal bundle; and also without giving specific consideration to the appellant's age when considering his ability to recall events.
3. The matter came before me to determine whether the First-tier Tribunal had erred in law.
Submissions - Error of Law
4. The appellant submits that he submitted material (which appears in the respondent's bundle at annex K and further material which also appeared at pages 5 to 18 of the appellant's bundle which included newspaper reports) which was material to his claim and which makes the findings of the First-tier Tribunal unsustainable, as these contend that there is a lack of corroborative evidence and a failure to substantiate the claim. It is also argued that it was a material error of law to fail to consider the appellant's age, and his minority, at the dates material events took place.
5. The respondent submits that there is no explanation as to how the evidence which is said to have been overlooked is material or could have changed the outcome of the appeal. There is no challenge to the findings of the First-tier Tribunal at paragraph 19 that the appellant and his father travelled in and out of Albania once in 2011, twice in 2012 and also in 2013, nor to the fact that checks by the respondent reveal that the family are not involved in a blood feud. The age of the appellant is not a relevant factor in this matter. Further there is no challenge to the finding that there is sufficient of protection and that internal relocation would not be unduly harsh. Again this means that any errors would not be material.
Conclusions - Error of Law
6. I find that the First-tier Tribunal has erred materially in law for the following reasons.
7. At paragraph 18, page 7, of the decision the Judge of the First-tier Tribunal says that he does not believe that the various murders at the centre of the blood feud are to be believed because: "The appellant has not produced any evidence apart from his oral claims to substantiate these suggestions". It is however the case that evidence at pages 5 -18 of the appellant's bundle is of newspaper reports concerning a blood feud with names of people the appellant says are relatives, and of family certificates which show potential family relationships. It is also the case that at Appendix K of the respondent's bundle there is another newspaper article about a killing which appears to support the appellant's case.
8. The Judge of the First-tier Tribunal also says at paragraph 21 of the decision that he does not believe that the appellant is related to [IK] or that he was killed, without considering the family certificate evidence, or apparently the fact that the respondent had provided evidence that this man had been killed (albeit the respondent says their evidence shows he was killed in 2004 not 2005 as claimed by the appellant), see paragraph 19 of the decision.
9. It is also not the case that taking the appellant's evidence at its highest that the last "incident" in the blood feud was in 2004, as is stated by the First-tier Tribunal in paragraph 20 of the decision, as the appellant clearly gives evidence of attempts to kill him in 2014 (paragraph 6 of the decision).
10. At paragraph 18 of the decision the First-tier Tribunal does provide rational reasons why it was not found that the appellant and his father were in confinement since 2004: due to the fact that the appellant was going to school and his father travelling to Kosovo for prolonged periods and then returning for visits. It was open to the Tribunal to conclude that the lack of self-confinement by the appellant, whom they also contend went backwards and forward to Kosovo in 2011, 2012 and 2013, is evidence that the appellant and his family were not particularly afraid of any threat from a blood feud at this time.
11. However given the failure to factor in the evidence of the newspaper reports and the family certificates, and to give due consideration to the appellant's age when considering the history (this should have been considered as potentially relevant to the evidence the appellant was able to give with respect to the evidence of written threats considered at paragraph 22 of the decision) I find that the approach of the First-tier Tribunal is legally flawed in determining whether a blood feud existed due to failure to consider to material evidence, and a failure to give sufficient reasons why the evidence of the respondent (referred to only very briefly as existing at paragraph 19) was preferred.
12. Whilst the First-tier Tribunal was properly able to give weight to the fact that sufficiency of protection exists in most areas of Albania as set out at paragraph 23 of the decision, the evidence as set out in the country guidance case of EH (Blood feuds) Albania [2012] UKUT 348 is that if a blood feud had been found to exist in the north of Albania that there might not be such protection (see conclusion number 3). The appellant is from Kukes in the north of Albania so this is clearly potentially relevant to him. Further only very limited reasoning, the presence of NGOs, is given as to why it would not be unreasonable to expect him to internally relocate to Tirana. The appellant is only 18 years old, and the decision therefore errs in law for want of reasons and consideration of the appellant's age in this aspect of the decision-making.

Decision:
1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
2. I set aside the decision with no findings preserved.
3. I remit the remaking hearing to the First-tier Tribunal.

Signed: Fiona Lindsley Date: 15th November 2016

Upper Tribunal Judge Lindsley