Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03487/2020

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 10 June 2022
On the 08 August 2022

Before

UPPER TRIBUNAL JUDGE PERKINS
DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

BL
(ANONYMITY DIRECTION made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms E. Daykin, counsel instructed by Tuckers Solicitors
For the Respondent: Ms A Ahmed, Senior Home Office Presenting Officer
DECISION AND REASONS
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify him. Failure to comply with this order could amount to a contempt of court. We make this order because the Appellant is an asylum seeker and publicity might create a risk to his safety.
1. This is an appeal brought by the Appellant against a decision by the Secretary of State for the Home Department (hereafter SSHD) dated 1 June 2020, refusing his protection claim, albeit it was accepted that the Appellant had been subjected to domestic abuse by his father, who had forced him into working for a criminal gang in order to pay off a debt he owed. The protection decision followed a decision by the Single Competent Authority (SCA) dated 16 January 2019 who made a positive conclusive grounds decision that the Appellant is a victim of modern slavery.
2. The Appellant’s appeal came before the First tier Tribunal for hearing on 12 March 2021. In a Decision and Reasons promulgated on 31 March 2021, First tier Tribunal Judge Wylie dismissed his appeal on the basis that she did not accept that he was a member of a particular social group (PSG) nor that he would at risk of suffering serious harm from his father or by the criminal gang and is unable to unwilling to avail himself of the protection of the state of Albania.
3. Permission to appeal to the Upper Tribunal was granted by First tier Tribunal Judge Saffer on 18 May 2021 on all grounds. In a Decision and Reasons promulgated on 16 December 2021, following a hearing before the Upper Tribunal on 7 December 2021, the Upper Tribunal noted at [21] that both parties acknowledged that the Appellant was a member of the PSG but disagreed whether he would be at risk on return. Designated Judge Shaerf held at [27]:
“We find the decision of the First tier Tribunal contains a material error of law in its assessment of the Appellant’s likely situation if he were to be returned to Albania. The parts of the decision dealing with the Appellant’s claim arising out of his experiences in Albania are set aside. The finding dismissing his claim based on his private and family life in the United Kingdom discloses no material error of law and shall stand.”

Hearing
4. The appeal came before the Upper Tribunal for hearing on the protection claim on 10 June 2022. At [26] of the Decision and Reasons of the Upper Tribunal it was noted that both parties agreed that there was no need for any oral testimony, however, Ms Ahmed for the Respondent indicated that she wished to cross examine the Appellant on the issue of his family members in Albania, given that his evidence before the First tier Tribunal was that he has a sister and extended family members in Albania and so potentially may have a support network. Ms Daykin had no objection to this course of action and we decided to give permission for Ms Ahmed to cross-examine the Appellant on his family members in Albania in order to obtain a clear picture of the likely circumstances in this respect on his prospective return there.
5. The Appellant in response to questions from Ms Daykin stated that he has his father, his mother, his brother and his sister; that his parents and younger brother were living together and his sister was in Durres, with her husband. He said he no longer had even occasional contact with his aunt in Italy.
6. In response to questions from Ms Ahmed, the Appellant said he was not in contact with his sister in Durres and denied that he did have contact with her. He stated that he was not in contact with his mother either because he lost her telephone number. He said that he thought that his aunt in Italy was in contact with her but that he had not asked her for his mother’s contact details and he did not know if they were in contact. The Appellant stated that he did not have any contact with relatives in Albania and said that if he were to talk with his mother then his whereabouts would become known and then his father and the group would know where he is and he was afraid they would try to find him in the UK as well. He said that his mother was frightened of his father and that whilst he was not sure how the group would find him if they knew he was in the UK, when he was in Albania he knew the group was too big to be confined solely to Albania and he just wanted to be safe.
7. In terms of contact with his sister, the Appellant said that there were two reasons for not being in touch with her; the first one is that if he talked to her then they will still identify him and know where he is and the second is that she is married and probably has her own family by now and he did not want to disturb her or her family. The Appellant said that he has had no contact and did not even know them and had not stayed with them.
8. The Appellant said that his younger brother [AL] now lives in the UK and that he was not in contact with his older brother. He confirmed that there had been no progress in respect of AL’s asylum application in that there had been no decision, although he had been interviewed and that there has been substantial delay. He did not agree with Ms Ahmed’s suggestion from his witness statement at [5] signed in November 2020 that his mother was able to do things behind his father’s back without him knowing what she was doing, such as being able to escape Albania.
9. We then clarified the documents that the parties were seeking to rely upon which were absent from the file. Ms Daykin provided copies of her skeleton argument before the First tier Tribunal and a report by Asylos dated May 2019 regarding trafficked boys and young men in Albania and a marked up copy of the CPIN on Human Trafficking in Albania, version 11 dated September 2021.

Submissions
10. Ms Ahmed then made her submissions, indicating that she also sought to rely upon the CPIN’s on Domestic Abuse and Actors of Protection and the Home Office fact finding mission on Albania. Ms Ahmed sought to rely on the refusal decision of 1 June 2020; the CG case in TD & AD (Trafficked women) CG [2016] UKUT 00092 (IAC); the CPIN on Human Trafficking at 2.4.21 ,2.4.22. 2.5.26. 2.5. 2.5.2. 2.5.3. 2.5.4 and 2.5.5. 2.5.11. Ms Ahmed submitted that the Appellant is healthy with no mental health concerns; he has received education and undertaken a business course and the fact the Appellant is a young healthy adult male can ameliorate his profile as a victim of trafficking considering the risk factors set out in TD & AD. She submitted that a man returning to Albania may be advantaged over a woman, given that it is a patriarchal society. Ms Ahmed further sought to rely upon sections 2.5.24. 2.5.26. 2.27 of the same CPIN and submitted that the Appellant is an adult from Tirana who has been educated and his current circumstances are different from at the time he was trafficked, which was only for a short period of time until he escaped.
11. Ms Ahmed submitted that the Asylos report had been considered in the refusal. She sought to rely upon the CPIN on Human Trafficking at 3.5.1, 9.4. 11.4. 11.4.3 and submitted that the onus was on the Appellant to show he is unable to avail himself of the support available. She further sought to rely upon 12.7. 12.7.2. and 12.7.3. 12.8 of the same CPIN regarding accommodation and submitted that the picture is not entirely bleak and that it was open to the Appellant to contact his aunt in Italy and to utilise the voluntary returns scheme. He is someone who has shown he has propensity to settle in foreign countries and find his way. He would be able to re-integrate and re-establish himself. She also sought to rely upon 13.11. and 13.14. She submitted that more than 5 years have passed and the Appellant has not shown the gang have any motivation to pursue him and he has not reasonably demonstrated that the gang are interested in pursuing him and they may have newer or easier targets. Nor has he shown it would be reasonably likely that even if his father could locate him he would persecute his adult son.
12. Ms Ahmed also sought to rely upon paragraphs 13.15.1 and 13.15.3. and submitted that the Appellant has not demonstrated that he would be without the safety net of his family in Albania, either today or in his previous written evidence, nor has he given any reason as to why he is not in contact with his sister and extended family members and needed to prove this beyond a bare assertion cf. Parveen (2018) EWCA Civ 932. In respect of his aunt in Italy this is someone who had housed him for a while. The Appellant’s claim is that his mother has helped him behind his father’s back and his reason is not cogent, so Ms Ahmed invited us to give little weight to it. She submitted that there was no clear evidence regarding trafficking for males at paragraph 13.15.3.
13. Ms Ahmed submitted that the Appellant would not be under pressure as he would not be returning to his family and he would not be at risk of re-trafficking. She acknowledged paragraph 13.15.4 of the Asylos report but submitted that he does not have mental health problems or a learning disability. She sought to rely upon the decision in BF (Tirana – gay men) [2019] UKUT 93 at [161] and [162].
14. Ms Ahmed further submitted that there would be sufficiency of protection for the Appellant and relied upon DM (Sufficiency of Protection - PSG - Women - Domestic Violence) Albania CG [2004] UKIAT 00059 at [18] and [19] and submitted that the position now was even more positive. She submitted that there was no evidence that the gang members have influence on the police and it was not likely that they would have any interest in him. She further drew our attention to the CPIN on Actors of Protection at 2.3.2 onwards and the section on protection which at 2.3.16 concludes that the onus is on the person and that the positive findings set out in this report echo improvements. She submitted that the Appellant’s evidence is speculative and that sufficiency of protection would be available, particularly given that it is clear that Albania is a patriarchal society and the situation is even better for men than for women, who are the focus of the report.
15. Ms Ahmed submitted that the onus is on the Appellant to internally relocate. Whilst it was unclear whether or not the findings in the Antonia Young report had been preserved, she submitted that little weight should be given to the report and relied upon the finding of the First tier Tribunal Judge at [110] and upheld by the Upper Tribunal at [23]. With regard to Articles 2 and 3 she submitted that these stand or fall with the protection claim
16. In her submissions, Ms Daykin pointed out that the finding that the Appellant could not return to his home area is preserved and so the only question was whether internal relocation is reasonable. She drew attention to RB B6 at [13] which sets out extracts from the Asylos report and pointed out that the Appellant’s claim had been accepted in its entirety at the outset by the Respondent and that there was no reason to depart from the general acceptance of his credibility. She further submitted that his brother had also been accepted as a victim of trafficking and both he and the Appellant had been accepted as credible with regard to their treatment by their father.
17. As to internal relocation, she emphasised that it had been accepted (by the Respondent) that the Appellant would have to live somewhere other than Tirana and this was important because there is better access to jobs, accommodation and protection in Tirana because it is the capital and where resources are focused. It was not suggested by the Respondent that the Appellant has an identifiable place to go and Albania is a very small country with a very small population. Ms Daykin drew attention to her skeleton argument and the relevant passages in the CPIN as to the nature of Albanian society and how differently it operates in the city. Dr Schwander–Sievers draws attention to the fact that it is not like London or Bristol where a new resident can live without attracting attention from neighbours. Rather there will be questions raised eg as to who your father is, where is your family and where are you from? She submitted that anonymity is not sustainable even in Tirana and it is simply impossible to live anonymously because the rumour mill and the way society works means that you will be located.
18. Ms Daykin acknowledged that the Respondent submits that after this period of time the gang probably will not be interested in the Appellant anymore, which does not sit with the objective material on the risk of re-trafficking. The CPIN is particularly detailed and focuses on the position of men. The Asylos report causes the Home Office to engage with the fact that men and boys are at risk of trafficking and re-trafficking and there is a list of vulnerability factors specific to men which is at 2.5.28 which are relevant to protection, visibility and services available. The re-trafficking section at 13.15 of CPIN focuses on young men and those in contact with criminal gangs and networks. It is known that those networks extend throughout Europe including the UK. It is also plain that these networks have direct links with the police and the judiciary in Albania and there is a strong indication that networks have access to young people who have been returned.
19. Ms Daykin submitted that the passage of time does not really make any difference in these circumstances to whether or not this exploitative gang would be able to find him and she submitted that this has been accepted. She submitted that it was implausible that they would no longer have any interest in an individual who has escaped and then suddenly returned. What the objective material makes clear is that one has to consider not just existing material but also new gangs. All the responders place the risk as very high and show current risk on return. The background material speaks of criminal gangs operating throughout the country and that they operate in all aspects of life. One of the highlighted passages refers to criminal gangs being a normalised part of life in Albania particularly to young men.
20. Ms Daykin submitted that the lack of support he would have on return would be vital to all aspects of life on return and that consequently the Appellant would be vulnerable to re-trafficking on the basis of his age and gender, given that the lack of family and support networks is one of the highest risk factors in terms of re-trafficking. One of the responders at page 126 of the CPIN identifies no other pattern other than the victim not having support. In these circumstances there is a real risk of re-trafficking. From the outset of return the Appellant would be at risk not only from those who trafficked him previously but others who may wish to exploit him; people finding out his location through the grapevine and his father would come to find out he has returned.
21. With regard to contact with his family, Ms Daykin submitted that it does not appear he was ever asked in his asylum interview or at the hearing before the First tier Tribunal why he did not have contact with family members. He fears being located by his persecutors and having been believed on every other point in his case there is no reason not to believe what he says now. There is no more solid reason than that as to why he is not in contact with his family.
22. Ms Daykin submitted that the circumstances in Parveen were very different. The Appellant’s evidence has been accepted throughout and whilst it is difficult to evidence a negative he has been consistent throughout his case until now. This is not a matter of his making and should not be held against him. With regard specifically to his mother, she submitted that there is a good reason he has not contacted her and that is because he does not have her direct contact number and this was dealt with in the witness statement and interview where he stated that he would not contact his father, who has a mobile phone. His mother got him out of the country to save his life, no doubt with risk to herself and in any event it was not clear what she could do for him now anyway as she does not have any contacts or power to help him. In any event this would lead to his whereabouts becoming known. Ms Daykin considered that we could safely conclude that the Appellant would be fending for himself and his location would be discovered quickly as he could not rely on previous contacts with family, friends or otherwise.
23. With regard to fact that the Albanian authorities are “making significant efforts” she submitted that this is different from the actuality of what would happen on return. Albania has been marked out to do better in an attempt to join the European Union. Experts accept that mechanisms are there but that does not translate on the ground to sufficiency of protection and corruption in the police remains endemic. With regard to the report of Antonia White, whilst she was not placing much weight upon it notably it did chime with the other reports and deals with corruption in the judiciary. Ms Daykin submitted that the fact that significant efforts may be being made is not sufficient and as the guidance and caselaw makes clear it is specific circumstances of the individual and on the ground that is the specific assessment.
24. Ms Daykin submitted that even as a recognised victim of trafficking in this country, this does not do much for the Appellant on return to Albania, because the Albanian authorities do not pay attention to what the UK authorities concluded and there is scepticism of NRM decisions particularly for male victims of trafficking. She submitted that there was no guarantee that if the Appellant returned and identified himself as a victim of trafficking that he would be recognised and consequently the mechanisms of protection are highly likely not to be available to him. Notably, resources are limited and the Different and Equal NGO have only provided assistance to a very limited number of individuals, recorded by the Upper Tribunal in the error of law decision and at 98.3. of CPIN of fewer than 30 people a year. Whilst Different and Equal are able to provide limited accommodation this is short term only and the background evidence makes clear in accordance with security that even if provided with accommodation that is not the problem, but rather when the individual is out and about trying to live their live and gangs are in every area of the country and directly impacting on trying to re-establish a life.
25. Ms Daykin submitted in conclusion that the Appellant's background fits within the risk factors highlighted. Whilst he was no longer a child, he is someone identifiable as a person who has been trafficked already and this puts him at very high risk on return, where there would be no safe place for him to return to and thus his appeal should be allowed.

Decision and reasons
26. We are required to consider whether the Appellant has a well-founded fear of being persecuted if returned to Albania for a reason specified in Article 1A(2) of the Refugee Convention viz membership of a particular social group, former male victims of trafficking.
27. The burden of establishing a well-founded fear of persecution falls upon the Appellant. A fear of persecution will be well-founded if the decision-maker is satisfied that there is a reasonable degree of likelihood (or real risk) that the individual would be persecuted for a Convention reason if returned to his own country: R v. Secretary of State for the Home Department, ex parte Sivakumaran [1988] AC 958. Paragraph 339K of the Immigration Rules establishes an alleviating evidentiary rule for cases where an appellant has established to the requisite standard that they have already been subject to persecution or serious harm, or to direct threats of such persecution or such harm. Such fact will be regarded as indicative of future risk, unless there are good reasons to consider that such persecution or serious harm will not be repeated. The Appellant's article 3 ECHR appeal stands and falls with his asylum appeal
28. We have concluded that the Appellant has a well-founded fear of persecution in Albania from non-state agents viz criminal trafficking gangs and his father and that the Albanian authorities would be unwilling and/or unable to provide him with sufficient protection. Our reasons are as follows:
28.1. There is no dispute that the Appellant has been accepted in the UK as a victim of trafficking by a criminal gang in Albania at the instigation of his father, who also profited as a consequence of his son’s enslavement. The material issue is whether the Appellant would still be at risk on return to Albania, either from his father or the criminal gang or from other criminal gangs. The Appellant was at the material time a minor and is now 22 years of age.
28.2. We accept the Appellant’s evidence, which was subjected to cross-examination by Ms Ahmed, as to the absence of contact with his mother or sister in Albania. His account of his experiences in Albania has been accepted as credible and his evidence was consistent with the reasons previously provided for the absence of contact, essentially because he does not wish his whereabouts to be known. In any event, we consider that in the context of his parents’ relationship and the patriarchal nature of Albanian society, even if his mother and/or sister were made aware that he has returned to Albania they would not be in a position to provide him with protection, or even accommodation, given that his father was the initial perpetrator of abuse against him.
28.3. We have given detailed consideration to the background evidence, in particular the Home Office CPINs on “Albania: Human Trafficking” version 11, September 2021; “Albania: Actors of Protection” December 2021 and the Report of the Home Office Fact-Finding mission dated February 2018 and the report from the Arc Foundation and Asylos entitled “Albania: Trafficked Boys and Young Men” dated May 2019” which sets out the following conclusions:
(i) The risk factors for Albanian boys and young men being trafficked or re-trafficked include poverty, low education, suffering from physical or mental disabilities, domestic violence and/or sexual abuse within the family or a pre-existing blood feud, being LGBT or being a Roma, Egyptian or homeless child;
(ii) Many of the risk factors considered by the Upper Tribunal in TD & AD may be applied to male victims of trafficking and the risk of re-trafficking, the risk of persecution and the ability to access protection will largely depend on the factors which led to the person to be trafficked initially and on their own individual circumstances, which include their educational level and that of their family, the economic status of the family, whether there is a support network in Albania, where the family was involved in their trafficking, their health and whether they have a disability;
(iii) There is a gap between the legislation and its implementation in practice. The USSD Trafficking in persons report 2020 found that Albania did not yet fully meet the minimum standards for the elimination of trafficking and problems remained particularly with regard to the conviction of traffickers and limited capacity on the part of the police to investigate trafficking;
(iv) Boys and young men may not be identified as victims of trafficking in that decisions of the UK authorities under the NRM do not hold any weight in Albania;
(v) In any event, there are no shelters for male victims of trafficking, rendering them potential liable to exploitation and re-trafficking;
(vi) Whilst the Different and Equal shelter can rent accommodation, this requires a referral from State social services and does not provide any protection against re-trafficking or reprisals;
(vii) It is not possible to live anonymously in Albania, due to its size, and culturally and socially. We note that this also chimes with the finding of the Upper Tribunal in relation to Tirana in BF (Tirana – gay men) [2019] UKUT 93 at [181] that “a person’s whereabouts may become known in Tirana by word of mouth. Albania is a relatively small country and we accept as entirely plausible that a person might be traced via family or other connections being made on enquiry in Tirana.” Dr Schwander-Sievers makes the point that any social contact is defined through where you are from and who your family are and this is why re-integration into society without family makes a returnee very conspicuous and attracts attention and suspicion.
28.4. As to the issue of sufficiency of protection, in addition to the above, we note the evidence that even if the Appellant were to identify his former traffickers or to seek to prosecute them or another criminal gang seeking to re-traffic him that trafficking cases are dealt with by the district courts which may not have the proper legal expertise to prosecute and that victims are not eligible for witness protection. Dr Schwander–Sievers refers to the fact that there is corruption and improper influence within the legal system which also militates against a vulnerable victim seeking justice against an organised crime boss who has money and can proffer bribes to police officers and prosecutors to botch evidence, dismiss criminal proceedings and create unnecessary delays.
28.5. Unlike the evidence in TD & AD which concerned female victims of trafficking, we note that there would be no shelter available for this Appellant, as a male victim of trafficking, which in light of the evidence would likely place him at a greater risk of identification by his former perpetrators. We find that, given his father was directly involved in his trafficking along with the absence of any meaningful family or support network, due to the fact that this would alert his father to his return, that this Appellant on his particular circumstances would be unable to access sufficient protection against his father and the original criminal gang to whom he was enslaved. We note Ms Ahmed’s helpful submissions and whilst the risk of re-trafficking is an unknown, in light of the background evidence and the relevant risk factors set out at 26.3. (i) and (ii) above, we find that there is a real risk of re-trafficking.
29. As to internal relocation, it has been accepted that the Appellant cannot return to Tirana. We consider in light of the background evidence that, in the absence of any family or support network that he would attract questions and suspicion upon relocation to another area of Albania and this, in light of the risk factors set out above, would potentially lead to him being identified by his former perpetrators and also place him at risk of being re-trafficked.
30. Cumulatively, these things lead us to conclude that this Appellant has shown that there is a real risk of his being persecuted in the event of his return.

Notice of decision
31. The appeal is allowed on protection grounds. For the same reasons we find that removal of the Appellant to Albania would place him at a real risk of ill-treatment contrary to Article 3 of ECHR.

Rebecca Chapman

Deputy Upper Tribunal Judge Chapman

8 July 2022