(Immigration and Asylum Chamber) Appeal Number: PA/03526/2020
THE IMMIGRATION ACTS
At Bradford IAC
On the 8th July 2022
Decision & Reasons Promulgated
On the 15th August 2022
UPPER TRIBUNAL JUDGE BRUCE
Secretary of State for the Home Department
For the Appellant: Ms Cleghorn, Counsel instructed by Halliday Reeves Law Firm
For the Respondent: Ms Young, Senior Home Office Presenting Officer
DECISION AND REASONS
1. The Appellant is a national of Albania born in 1988. She is a victim of trafficking who continues to suffer the mental health sequalae of her abuse. The Tribunal will therefore treat her as a vulnerable adult witness.
2. The Appellant’s appeal against the Respondent’s decision to refuse her protection was dismissed by First-tier Tribunal Judge Hands on the 4th May 2021. On the 11th May 2022 Upper Tribunal Judge O’Callaghan found the decision of Judge Hands to contain an error in approach such that it should be set aside. The error was that in reaching its credibility findings the Tribunal had failed to have regard to the Appellant’s vulnerabilities contrary to the view expressed by the Court of Appeal in AM (Afghanistan)  EWCA Civ 1123. Judge O’Callaghan set the decision of Judge Hands aside with no findings of fact preserved.
3. As it happens, by the time that the appeal came before me for remaking, the facts were agreed. Ms Young conducted a sensitive and appropriate cross examination at the end of which she indicated that she did not challenge any aspect of the Appellant’s evidence. I therefore proceed to remake the decision on the basis of the following materials:
(i) The evidence of the Appellant;
(ii) Psychological Report prepared by Chartered Counselling Psychologist Dr Maggie Allison dated 25th March 2021;
(iii) The decision of the Competent Authority that on the balance of probabilities there are conclusive grounds for accepting that the Appellant was trafficked in Italy for the purposes of sexual exploitation;
(iv) The extant country guidance in TD and AD (Trafficked women) CG Albania  UKUT 00092 (IAC);
(v) The Respondent’s Country Policy and Information Note Albania: Human trafficking [Version 11.0 September 2021] (‘the CPIN’).
4. The country guidance relevant to this appeal is to be found in the following paragraphs of the headnote to TD and AD:
Much of the guidance given in AM & BM (Trafficked women) Albania CG  UKUT 00080 (IAC) is maintained. Where that guidance has been amended or supplemented by this decision it has been highlighted in bold:
a) It is not possible to set out a typical profile of trafficked women from Albania: trafficked women come from all areas of the country and from varied social backgrounds.
b) Much of Albanian society is governed by a strict code of honour which not only means that trafficked women would have very considerable difficulty in reintegrating into their home areas on return but also will affect their ability to relocate internally. Those who have children outside marriage are particularly vulnerable. In extreme cases the close relatives of the trafficked woman may refuse to have the trafficked woman’s child return with her and could force her to abandon the child.
c) Some women are lured to leave Albania with false promises of relationships or work. Others may seek out traffickers in order to facilitate their departure from Albania and their establishment in prostitution abroad. Although such women cannot be said to have left Albania against their will, where they have fallen under the control of traffickers for the purpose of exploitation there is likely to be considerable violence within the relationships and a lack of freedom: such women are victims of trafficking.
d) In the past few years the Albanian government has made significant efforts to improve its response to trafficking. This includes widening the scope of legislation, publishing the Standard Operating Procedures, implementing an effective National Referral Mechanism, appointing a new Anti-trafficking Co-ordinator, and providing training to law enforcement officials. There is in general a Horvath-standard sufficiency of protection, but it will not be effective in every case. When considering whether or not there is a sufficiency of protection for a victim of trafficking her particular circumstances must be considered.
e) There is now in place a reception and reintegration programme for victims of trafficking. Returning victims of trafficking are able to stay in a shelter on arrival, and in ‘heavy cases’ may be able to stay there for up to 2 years. During this initial period after return victims of trafficking are supported and protected. Unless the individual has particular vulnerabilities such as physical or mental health issues, this option cannot generally be said to be unreasonable; whether it is must be determined on a case by case basis.
f) Once asked to leave the shelter a victim of trafficking can live on her own. In doing so she will face significant challenges including, but not limited to, stigma, isolation, financial hardship and uncertainty, a sense of physical insecurity and the subjective fear of being found either by their families or former traffickers. Some women will have the capacity to negotiate these challenges without undue hardship. There will however be victims of trafficking with characteristics, such as mental illness or psychological scarring, for whom living alone in these circumstances would not be reasonable. Whether a particular appellant falls into that category will call for a careful assessment of all the circumstances.
g) Re-trafficking is a reality. Whether that risk exists for an individual claimant will turn in part on the factors that led to the initial trafficking, and on her personal circumstances, including her background, age, and her willingness and ability to seek help from the authorities. For a proportion of victims of trafficking, their situations may mean that they are especially vulnerable to re-trafficking, or being forced into other exploitative situations.
h) Trafficked women from Albania may well be members of a particular social group on that account alone. Whether they are at risk of persecution on account of such membership and whether they will be able to access sufficiency of protection from the authorities will depend upon their individual circumstances including but not limited to the following:
1) The social status and economic standing of her family
2) The level of education of the victim of trafficking or her family
3) The victim of trafficking’s state of health, particularly her mental health
4) The presence of an illegitimate child
5) The area of origin
7) What support network will be available.
5. TD and AD, or at least the evidence before the Tribunal in that appeal, is now some seven years old. At one time, shortly before the pandemic, the Respondent’s CPIN had indicated that the Respondent believed the situation in Albania to have improved considerably since its promulgation. Although that may in some respects be correct, for instance in the rates of women re-trafficked upon leaving government shelters, the latest CPIN expressly acknowledges that decision-makers should today continue to follow TD and AD because there is not cogent evidence to justify departure from it [2.4.1]. The CPIN reports that although Albania now has a dedicated law, a task force, a National Rapporteur, an NRM, law enforcement and judiciary training initiatives, dedicated prosecutors and courts, and victim shelters, in 2020 the US Trafficking in Persons report found that Albania did not meet the minimum standard required in the following areas: the number of traffickers convicted was very low (5 in 2019 and 5 in 2018), there was insufficient screening for vulnerable groups, such as commercial sex workers and children, the authorities did not participate consistently in mobile victim identification units, the government continued to delay funding for NGO shelters, and social services lacked resources for long-term care and reintegration efforts, particularly for child victims and victims with children. The impact of the pandemic has considerably weakened what protections are in place.
6. It is against that background that I evaluate the position of the Appellant.
7. The Appellant grew up in Voke, a suburb of Tirana, but her family were originally from the North, and she reports that her now deceased father, and in turn her brother, were imbued with the deeply conservative and patriarchal values of Northern Albania. As the Tribunal noted in TD and AD, the evidence before us in that appeal indicated that far from southward migration dissipating such views, they became more entrenched and in fact had began to spread in the south of the country too [at 111]. This strict code of ‘honour’ means that trafficked women face very considerable difficulty in reintegrating into their home areas on return. The Appellant’s evidence, which I accept, is that her father has died. Her mother has moved to live in Kosovo with her sister, and the only immediate family member who remains in Voke is her brother, who is living in what was variously described in the evidence as a corrugated iron shack or a container (by which I understood a shipping container). This brother is visited on a fairly regular basis by the Appellant’s mother who comes to Albania because she is trying to sort out legal issues arising from the destruction of the former family home in an earthquake. He has made in clear to the Appellant’s mother that the Appellant is not welcome to return to live with him. This attitude is consistent with the treatment of women considered to be kurva set out in TD and AD [at 51]:
[they are] “in most cases considered as abandoned from their families because they are ‘kurva’ (whores). This label carries a lot of hate, discrimination and risk of exclusion. They are not welcomed in social groups. Even when employed, people try to stay away from them. Employers try to exploit them by making them work long hours, harder and pay them less.”
8. It was against this background that Ms Young invited me to focus my enquiry on whether or not the Appellant could relocate within Albania away from the persecutory ill-treatment of her brother. Before I go on to consider internal flight, however, it is important to recognise another facet of the Appellant’s claim. That is the potential risk that she may face from her former traffickers.
9. The Appellant was not taken or lured to Italy. She went there of her own volition, to find work. It was whilst she was there that she met a man whom I shall refer to as D. He was an Albanian living in Italy. They started a relationship and at the beginning everything was fine. Then after three months his real purpose became clear. She explained at her asylum interview that one evening he invited two friends to the flat and demanded that the Appellant sleep with them. He videoed her and the next day told her that if she didn’t do what he wanted he would post the video of her having sex on social media. The Appellant was put to work on the streets in November 2019. She was taken to different cities to service clients: Milan, Parma, Bologna. She explained to the interviewing officer that “during the day we slept in apartments, they were rented by these men who controlled us and at night time we were taken on the streets and we used nearby hotels”. The Appellant was working alongside two Romanian girls. She described two of these men as being heavy-set, with gold chains. From their accents she believed they were from Naples. There was also an older Italian woman working with them. Asked whether there were other groups like hers she said “I believe there were to many (sic)”. At Q103 she is asked “were these trafficking groups connected to your trafficking group?” to which she replied “I think we were a different group operating in different areas but they were all guided by one group”. The Appellant also disclosed to the officer that prior to her escape she had managed to make contact with the Italian police and asked them for help – she had told them where she and the other women were being held but they did not turn up. A further detail which emerged during the Appellant’s consultation with Dr Allison was that whilst in captivity she had found amongst D’s possessions five passports – all bearing his photograph but in different identities and different nationalities. When he delivered the Appellant to the various brothels in different cities they visited he “seemed to know everyone”.
10. Ms Cleghorn submits that these facts strongly suggest that the Appellant’s traffickers were part of a large network, and I would have to agree. This was a cross border operation: the Albanian principal was working in league with Italian criminals. He was using at least five different identities and had the resources and wherewithal to obtain multiple -presumably false- passports. The victims were from multiple countries. They worked in multiple cities in Italy – it was not a small local business. They had transport networks, and connections in, these major metropolitan areas. Although there were “too many” other small groups like her own, the Appellant believed, from what she had witnessed during her time in captivity, that they were being directed under “one group”. This was not an individual man seeking to exploit his girlfriend. It was, this evidence suggests, an organised gang.
11. Ms Cleghorn further asked me to consider two specific matters arising from the Appellant’s account. The first is that D is well aware of who the Appellant is, and where she comes from in Albania: he was her boyfriend for some three months before he trafficked her and at the time she believed that they shared a “normal, good relationship”. The second is that the Appellant will be marked as someone who stood against the gang. In her interview she describes how she managed to escape. She made contact with another woman who was working the streets but free from the control of traffickers. This woman agreed to help her and enlisted the support of a client. Another Albanian man then sheltered the Appellant in another city until she was able to leave Italy. That the Appellant had the wherewithal to so quickly create this network, and utilise it to escape, is likely to be viewed very negatively by D and his co-conspirators. It is well documented that once a woman is ‘broken’ she can be making a great deal of money for these gangs, and the Appellant only worked a month after D had already invested three months in grooming her. The second issue is that she contacted the police. This was an incredibly brave thing to do. We have no means of knowing why the police did not attend. Nor can we know for certain whether the traffickers could now be aware that she did this, but I have considered the following circumstances. The Appellant escapes. It is inconceivable that the Romanian women she is living with and working alongside would not be interrogated about where she had gone – they were being locked in a room with her every night so it would be natural for the gang to question them as to how she managed to do this. Those women would be terrified. They would also be aware that she had previously tried to contact the Italian authorities. There is to my mind a real risk that these women would try and ‘save’ themselves from further questions, and possible violence, by pinning the blame squarely on the Appellant and telling their captors about her call to the police.
12. The Appellant is not simply, therefore, a former victim of trafficking. She is a woman who was able, in the time that she spent under their control, to see a number of them face to face, how and where they operated across Italy. She informed on the gang to the authorities and who engineered her own escape at an early juncture after the gang had already invested time in preparing her for work. Her principal trafficker knows everything about her – where she is from, and who her family are. I have considered those facts in light of what we know about the behaviour of trafficking gangs. I note, for instance, the following from the earlier country guidance case of AM and BM (Trafficked women) Albania CG  UKUT 80 (IAC) (expressly upheld in TD and AD):
168. We now turn to the persecution or ill treatment which victims of trafficking might, on return, face. We first consider whether or not victims of trafficking would, on return, have a well founded fear of those from whom they have escaped. While we accept Dr. Schwandner-Sievers contention that traffickers are by their very nature violent and that the danger of being murdered by the trafficker is, according to the information supplied by Vera Lesko of Vatra, high, we consider that the issue of whether or not they would pursue the victim of trafficking who had escaped from them or been returned is an issue which must be fact specific. It depends on the relationship between the trafficker and the victim of trafficking. The trafficker may well consider that there is no point in pursuing a woman who has escaped given that there are others who are willing to engage in “50% arrangements” or, alternatively might consider that unless the victim of trafficking is pursued and “punished “ others they have trafficked might decided to flee. Traffickers might well want to ensure that their methods and the structure of their organisation are not known to the authorities. They might well therefore feel that they would not want the victim to be at large. In cases such as that of AM, where her father was killed, the traffickers might not want the victim to be free to testify against them. The trafficker who acts on his own or with one or two accomplices is less likely to be able to either re-traffic or hurt the victim of trafficking than the trafficker who is part of a large gang.
13. I bear in mind that the Appellant’s evidence about her trafficking experience has been accepted on the balance of probabilities by the Competent Authority, who have specialist training in the analysis of modern slavery. I must now assess whether there is a real risk that the Appellant’s past experiences put her at risk of serious harm in Albania today.
14. Ms Young fairly makes the point that the Appellant is now aged 31, and as such is outside the age bracket of females most commonly trafficked for the purpose of sexual exploitation. I have taken that into consideration, but note that the country guidance remains that it is not possible to set out a typical profile of trafficked women from Albania: trafficked women come from all areas of the country and from varied social backgrounds. Her age will not necessarily preclude a further period of trafficking, although I accept that it may make it less likely.
15. I am however concerned that she does face a real risk of harm in the form of retributive violence at the hands of her former traffickers. She is not from an out-of-the way village where it might be thought that after this much time she could hide away, safe in the knowledge that if D was going to come looking for her, he would have done so already. She is from a suburb of Tirana. In both AM and BM and TD and AD the Tribunal heard evidence about the nature of Albanian society, and how difficult it is to keep a low profile in that relatively small city. On the evidence before me I am satisfied that D is part of an international gang, and that for the reasons I have identified this gang is likely to have a particular interest in identifying and punishing the Appellant. I do not believe that the passage of time would have obviated that risk to the point where the Convention is no longer engaged. I therefore find that there is a real risk of harm from her former traffickers in her home area.
16. The Secretary of State’s case rested on two alternatives for the Appellant: she can seek the protection of the Albanian state, and/or she can move to another part of the country.
17. I have had regard to section 2 of the CPIN which sets out the very commendable efforts that the Albanian state has made to combat the scourge of human trafficking, and to offer support for its victims. As I note above, this is something of a mixed picture. There have been real improvements in the past decade, but as the US TiP report concludes, there remain significant shortcomings. The Respondent, ultimately, invites the Tribunal to continue to apply the findings in TD and AD: “there is in general a Horvath-standard sufficiency of protection, but it will not be effective in every case. When considering whether or not there is a sufficiency of protection for a victim of trafficking her particular circumstances must be considered”.
18. Since the Appellant is from a suburb of Tirana, somewhat unusually the capital is not now suggested by the Respondent has a safe or appropriate internal relocation option. The refusal letter suggests Vlore, Shkoder or Fier, although this list is “not exhaustive”. I therefore proceed to address the factors identified in TD and AD as relevant to whether it would be unduly harsh for her to relocate.
19. The starting point is headnote (e). This states that there is now in place a reception and reintegration programme for victims of trafficking. Returning victims of trafficking are able to stay in a shelter on arrival, and in ‘heavy cases’ may be able to stay there for up to 2 years. During this initial period after return victims of trafficking are supported and protected. Unless the individual has particular vulnerabilities such as physical or mental health issues, this option cannot generally be said to be unreasonable; whether it is must be determined on a case by case basis. Headnote (f) continues: once asked to leave the shelter a victim of trafficking can live on her own. In doing so she will face significant challenges including, but not limited to, stigma, isolation, financial hardship and uncertainty, a sense of physical insecurity and the subjective fear of being found either by their families or former traffickers. Some women will have the capacity to negotiate these challenges without undue hardship. There will however be victims of trafficking with characteristics, such as mental illness or psychological scarring, for whom living alone in these circumstances would not be reasonable. Whether a particular appellant falls into that category will call for a careful assessment of all the circumstances. Relevant considerations include:
The social status and economic standing of her family
The level of education of the victim of trafficking or her family
The victim of trafficking’s state of health, particularly her mental health
The presence of an illegitimate child
The area of origin
What support network will be available.
20. The Appellant is not as vulnerable as some women in Albania. Although she was born in Kukes and is from a poor, culturally northern family, she was able to work and independently travel to Italy. Before her trafficking experience she worked in different factories in Tirana and in Italy she worked as a carer. She has a moderate level of education. Her brave and resourceful actions in escaping her traffickers speak to her character. She speaks Italian, some Spanish and English and this may be an asset to her in the job market. She is now mature and wiser. She does not have any children to support. All of these factors would tend to suggest that the Appellant is someone who may be able to re-establish herself somewhere in Albania without it being unduly harsh. These matters indicate that she could live independently, for instance in Vlore, and work to support herself.
21. I must however bear in mind that this resourceful, independent Appellant was the Appellant before her trafficking experience. That experience, baldly stated, is that her trust is betrayed by the man she believed loved her, she is drugged, repeatedly raped and held captive under a constant threat of violence. She is often required to have unprotected sex with clients (this reaped her traffickers an extra €20) and this seems to be the only explanation, on the evidence before me, as to how she has become infected with Hepatitis C. When she arrived in the UK she was seriously ill from this disease – as she explained at interview “I had a severe infection and swelling and was in danger of eruption because of the swelling”. Given all of that, Dr Allison’s conclusion that the Appellant is suffering from a full set of symptoms of chronic Post Traumatic Stress Disorder are entirely unremarkable.
22. Dr Allison’s report is uncontentious so I need not discuss it in any great detail but I note the following as particularly pertinent. The Appellant is extremely anxious, scoring highly for all diagnostic criteria. She continues to feel fear of her traffickers and experiences symptoms including flashbacks, difficulty in concentrating, memory loss, panic attacks, distress, hyper-vigilance, sleep disturbance and depression. Dr Allison’s conclusion is expressed like this:
During her assessment interview, [the Appellant] described some very severe and debilitating psychological symptoms, following the traumatic experiences reported relating to the abuse she suffered in Albania and Italy. She also meets the full DSM-5 criteria for a diagnosis of PTSD, as has been previously stated. My clinical observation was that the emotions displayed were congruent with what she was telling me. In my opinion, it would be difficult for [the Appellant] to cope with a return to Albania, given the difficult nature of her psychological symptoms. [She] has described the frequency of her panic attacks, and the difficulty in managing psychological triggers, which result in her struggling to concentrate and remember details. She has reported that her symptoms of trauma have not improved since she arrived in the U.K, and in some ways, have been worsening over this time. In my opinion, and in accordance with NICE Guidelines on PTSD, if [the Appellant’s] symptoms of PTSD have not resolved by now, then it would be unlikely that they would improve over time without treatment. Therefore, if the client were to be returned to Albania, and her PTSD remain untreated, her mental health would be likely to deteriorate.
23. I have taken into account the fact that the report prepared by Dr Allison was written after a single consultation. I am nevertheless minded to give considerable weight to her clinical diagnoses for the following reasons. They are entirely consistent with the Appellant’s history, accepted by the Competent Authority. She has reached her conclusions applying the appropriate clinical tests, and has taken her own observations into account. They are consistent with the credible evidence of the Appellant that she is still struggling, but felt herself helped enormously by sessions with a psychologist which she was able to access prior to the pandemic: she is currently on the waiting list for these to be resumed.
24. All of this must be assessed in light of the fact that the Appellant has no one to whom she can turn in Albania. Her brother is openly hostile to her and has told her mother that she cannot come to live with him – in any event it does not appear that his situation is such that he could help her if her wanted to, since he is still living in an emergency housing shelter some years after the earthquake which caused severe damage to the family home. Ms Young quite properly probed whether the Appellant might be supported by her mother if she were to return to Albania. Her mother is living in Kosovo but the Appellant quite candidly told me that she speaks very often to her mother, and that her mother continues to regularly visit Albania because she is trying to resolve legal issues to do with their former home. I did give this matter careful consideration. On balance, however, I cannot be satisfied that the Appellant’s mother is in a position to give her any meaningful support, since she herself appears to be reliant on her son. Even though he is living in very basic conditions, and her mother does not like it there, that is where she stays when she returns home because there is nowhere else for her to go. The family do not have a lot of money or options. In accordance with the patriarchal norms of Albanian society the Appellant’s brother is now the ‘head of the family’ and he has made clear that the Appellant is not welcome.
25. This then, is the Appellant’s reality. She has not lived in Albania for almost ten years. She has no support network there. She is unable to live in Tirana because it is not safe for her to do so. She would have to relocate to a small provincial town where she would quite obviously be a single woman on her own. In the previous country guidance cases we heard a great deal about the stigma, isolation and discrimination that women living on their own can face in Albania. Section 13.10 of the latest CPIN indicates that whilst some women do now live alone in Tirana, obtaining employment in home-based industries such as tailoring, the same general point holds true:
13.10.1 Quoting a 2017 research paper by Dr Enkeleida Tahiraj and the Shpresa Programme, the Asylos/ARC report 2019 included the following: ‘Typically a Victim of Trafficking returning from abroad will not have extensive family support, mainly because of the shame brought on the family, and is likely to face hardship and isolation without adequate long-term state or charitable support. Family members play a crucial role in the successful reintegration of trafficking victims. ‘... Risks of Social Exclusion: ‘Returnees are challenged on multiple levels in trying to re-establish themselves in the country. Family, kinship and social networks are a vital component of the “informal safety net” in Albania, assisting a person in addressing hardship, finding employment and providing inclusion in community. In a largely informal economy (which offers the surest route into employment with over 30% of GDP in 2013) and poor public service provision, family is the fundamental source of personal, financial and social security in Albania. Barriers to access essential public services, even for what would appear to be straightforward matters such as transport can derive from lack of family support, the latter typically assured when being part of an extended family... Lack of family support therefore puts returnees at risk of severe poverty, which exacerbates the risks of again falling victim to trafficking.’ Re-trafficking is a reality.’
13.10.5 The Director of the Women’s Counselling and Social Services Centre commented that Kükes is in the poorest region in the country with unemployment officially at 36%, although in reality much higher, with half of families on social welfare of 50EUR per month per family. She said that even if a woman had the economic means, it would be ‘very scary’ to live alone; she wouldn’t be subject to physical violence, but the psychological pressure would be there.
13.10.7 The Director of Social Services in Kükes noted that in rural areas there is a stigma for women to get divorced and live alone. He said that sometimes there is reluctance to employ a divorced woman and the social stigma also accompanies the children in their school and neighbourhood. He said the cases of bullying in these cases have increased.
26. The Appellant would is already suffering from what Dr Allison called “severe and debilitating psychological symptoms”. These are symptoms which improve when she receives talking therapies in the safety and security of the UK, but I am not persuaded that counselling or medication administered in Albania could possibly have the same effect. That is because living in a rural town in Albania the Appellant will not have the same sense of security. On the contrary, I am quite sure that she would be in a permanent state of fear. Fear of discovery by the ruthless gang who trafficked her and exposed her to atrocious acts of harm, and fear of society in general who would view her with suspicion and hostility as a single woman living alone with no discernible family or support network. In those conditions I find that she would find it very difficult – practically or psychologically - to find and keep work in order to support herself. She would lead a lonely and difficult existence to the extent that I am satisfied that it would be unduly harsh to expect her to do so. It follows that I must allow the appeal.
27. The decision of the First-tier Tribunal is set aside.
28. The decision in the appeal is remade as follows: the appeal is allowed on protection grounds.
29. Having had regard to the new Presidential guidance on anonymity orders Guidance Note 2022 No 2: Anonymity Orders and Hearings in Private and in particular paragraph 28, I make an order for anonymity under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 in the following terms:
“Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her, any of her witnesses or any member of her family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings”
Upper Tribunal Judge Bruce
13th July 2022