Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03588/2016

THE IMMIGRATION ACTS

Heard at Stoke
Decision and Reasons Promulgated
On 13 February 2017
On 16 February 2017

Before

UPPER TRIBUNAL JUDGE HANSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ELONA SHAHU
(Anonymity direction not made)
Respondent

Representation:

For the Appellant: Mr Bates Senior Home Office Presenting Officer
For the Respondent: Ms Patyna instructed by Kilby jones Solicitors LLP

DECISION AND REASONS

1. This is an appeal by the Secretary of State against a decision of First-tier Tribunal Judge Heatherington ('the Judge') promulgated on 20 October 2016, following a hearing at Birmingham on 13 October 2016, in which the Judge allowed the appeal on asylum grounds.

Background

2. Ms Shahu is a national of Albania born on 11 November 1990. This element is not disputed. The core of Ms Shahu's claim was that she feared a person named Artan and his people. Ms Shahu claimed that Artan is a pimp to whom she was sold by another man named Florian with whom she had a relationship from 2010 to October 2012. Ms Shahu claimed that she would be discovered where ever she lived within Albania and would not have the support of her family. While support agency existed, Ms Shahu, told the Judge has solicitors had told her that they do not provide long-term protection.
3. The Secretary of State referred Ms Shahu to the Competent Authority for them to consider whether there were reasonable grounds to believe that she was a victim of modern slavery (human trafficking/slavery, servitude or forced/compulsory labour). On 12 June 2015 the Competent Authority advised Ms Shahu that there were reasonable grounds to believe that she was a potential victim of human trafficking although having carefully considered the matter in further detail, concluded in a letter dated 10 December 2015, that there were not sufficient grounds, on the balance of probabilities, to believe that Ms Shahu had been a victim of modern slavery.
4. The Competent Authority noted a number of inconsistencies in Ms Shahu's claim which are set out in the following terms:

you state that you were in a relationship with a man named Florian and believed this to be a genuine relationship. He took you to see a man named Artan under the belief that he was to obtain paperwork to take you to Italy for a new life. However, he subsequently sold you to Artan who forced you to work for him as a prostitute. In considering this recruitment process it is believed to be highly circumstantial. You detail that you entered into a relationship with Florian in December 2010 and by your own account enjoyed a normal happy relationship going on dates together for meals and drinks. In May 2012 your family discovered the relationship and said Florian should ask for your hand in marriage. Florian felt it was too early and consequently you informed your family the relationship was over, however you maintained the relationship in secret. In October 2012 Florian sold you to Artan, at this point you had been in a relationship with Florian for almost 2 years. It is believed to be inconsistent for Florian to have invested so much time in the recruitment process. Furthermore, Florian could not have planned for your father's reaction to the relationship and as such the circumstances of you going to visit Artan are considered highly circumstantial. Your account of this recruitment process is therefore found to be inconsistent and circumstantial.
After Artan bought you, you state he then held you in a house in Albania from October 2012 until February 2014 when he took you to Italy. You detail that you never left the house during this time. In considering the account you have provided it is noted from checks conducted with the British Embassy in Tirana that you travelled to Greece by car on 16 May 2013 and returned on 17 May 2013. This is inconsistent with your claim that you were held in a house in Albania during this time and had your movements controlled. These checks are considered to be a true account of your travel history and also confirmed your movements to Montenegro in 2008, Greece in 2011 and Italy in 2014 which matched with the movements you detailed in your interview. As such it is found that your account is one which is not accepted.
You detail that in February 2014 you were taken to Greece where you remained until June 2014 when you returned to Albania. As noted above checks with the British Embassy confirmed that you left Albania from Tirana International airport on 13 February 2014 and are travelled by air to Pisa in Italy. However, there are no records to show that you ever returned to Albania. You state that you returned to Albania by car and had no problems at the border crossing back into Albania, you advise that your handlers took care of everything. However, given these same men took you to Italy using your valid passport and this is recorded, it is inconsistent that your passport was not used in returning you to Albania and that there is no record of you returning. The fact there is no record of you ever returning to Albania from Italy is considered inconsistent and leads to the finding that your claim is not based on fact.
When you are taken to Italy in February 2014 you claim to have endured a situation of forced prostitution for the previous 15 months. Given this and given that you travelled through international airports in both Albania and Italy where there would be many security personnel it is believed to be inconsistent that you made no attempt to escape or seek help during this journey. Your failure to do so reaffirms the finding that it is because your claim is not based on fact.
Furthermore, you were returned to Albania from Italy by car and would therefore have had to pass through international borders. Again you made no attempts to escape or seek help during these encounters at border control and again it is believed to be inconsistent with your claims to be in a situation of forced exploitation.
In further considering your account it is noted that you state Artan would give you tips paid by your clients. When you escaped from your situation of exploitation you state that this amounted to ?2700. Given that Artan was a ruthless trafficker holding you against your will for maximum financial gain it is believed to be highly inconsistent that he would give you any money at all. Furthermore, when you were locked in a house and were not allowed to see the outside world it is unclear why he would give you any money given there was no opportunity for you to spend this money. Your account of this is found to be inconsistent and reaffirms the above findings.
You state you were able to escape when Artan and his associates were distracted following the death of his nephew. Whilst distracted you entered into a fight with Artan's girlfriend, she fell to the ground and you were able to open the door and run away. In considering this escape it is noted that you have detailed a ruthless gang of traffickers who had held you against your will for over two years, who had transported you between multiple locations and who had the ability to transport you across international borders. Given this and given your financial value to them it is believed to be inconsistent that you were able to escape with such ease. Even if the men were distracted it is considered inconsistent that the sound of your fight with Artan's girlfriend did not raise any alarms. Your account of this event is therefore not accepted.
Furthermore, given you detail that you had made two previous attempts to escape from this house it is all the more inconsistent that you were able to escape with such ease. Given your description of this gang it would be expected that extra security would be in place following your previous failed escape attempts. This reaffirms the above findings.
In support of your claim for asylum in the UK you submitted your Albanian ID card. The fact you are still in possession of this document is believed to be inconsistent with your claims to have been held in a situation of sexual exploitation where your movements were controlled at all times. This is considered damaging to your general credibility.
Consideration has been given as to whether there are any mitigating circumstances in relation to your account.
No evidence has been received to suggest that you are suffering from any mental, psychological or emotional trauma and you have not received any counselling. It is considered that there are no mitigating circumstances in your case and therefore, due to the internal inconsistencies in your account, your credibility has been damaged to the extent that your claim to have been exploited cannot be believed.

5. The Judge's findings are set out at [8.1 to 8.11] of the decision under challenge. The Judge refers to the fact the Secretary of State relied on the findings made by the National Referral Mechanism on the civil standard at [8.1]. The Judge sets out a reminder of the correct standard of proof applicable in an asylum claim, that of the lower standard, at [8.2].
6. At [8.3] the Judge refers to the Home Office referring to a child in "Annex A", which is taken to be referral to the reasons for refusal letter, and at [8.4] that in this case Ms Shahu has no child and has never had a child. What the Judge fails to make reference too is a point conceded by Ms Patyna, that at the very outset of the hearing the Presenting Officer raised as a preliminary point that the reference to a child was erroneous as it was accepted that Ms Shahu has no children. It is therefore not clear what point the Judge was making in referring to this issue other than to highlight that a mistake had been made by the decision maker which was accepted.
7. At [8.5] the Judge makes the following finding:

"The Home Office ought to be aware that decisions presented in formulaic terms, are likely to be received with circumspection. There can be no substitute for properly tailored decisions which reflect the facts and the relevant issues. Sections of refusal grounds which are cut and pasted by Home Office decision-makers abuse the decision-making process."

8. The reasons for refusal letter does contain a number of "cut and paste" sections but these are of the nature of those commonly found in asylum cases particular where the country guidance or other country information being referred to is set out by paragraphs copied from the relevant sources. The decision-maker clearly considered the subjective elements of the claim being relied upon by Ms Shahu as a summary of that claim is set out in the refusal letter. It is also clear that the decision-maker analysed the case for put forward by Ms Shahu by reference to the findings of the Competent Authority and the facts which had been shown to warrant weight been placed upon them in the material placed before the decision-maker. The above paragraph suggests that if a view was taken of the refusal letter that it amounted, incorrectly, to an abuse of the decision-making process that little weight would be placed upon that material, this may amount to arguable legal error.
9. The main paragraphs which give rise to the Secretary of State's challenge are as follows:

8.6 I accept that the appellant was trafficked as she alleges. I cannot find that the respondent has substantial grounds for challenging the appellant's credibility.

8.9 in Albania, former prostitutes are categorised as 'Kurva (whores). This label carries hate, discrimination and risk of serious harm. Such women are not welcomed in social groups. Employers in Albania exploit them.

8.10 the family remains of central importance in Albanian society and single women attract unwanted attention (TD and AD para 51). I accept that the appellant has been disowned by her family, so that on return she will have no family support.

8.11 as indicated above, the fact the appellant has been trafficked in Albania means that she has a well-founded fear of persecution in Albania and therefore she is a refugee. As she is a refugee, she cannot be a person in need of humanitarian protection (which is a subsidiary level of protection). Her claim under articles 2 and 3 of the Human Rights Convention are by analogy also proven to the lower standard of proof that applies. But that finding is immaterial as the appellant is a refugee.

Grounds and submissions

10. The Secretary of State relies on two grounds of challenge the first of which is a failure to provide reasons or adequate reasons for findings on material matters and, second, a failing to apply binding case law unless good reason is given.

Error of law

11. In relation to ground one, it is accepted that at paragraph 49 of MA (Somalia) [2010] UKSC 49, it was said that "Where a tribunal has referred to considering all the evidence, a reviewing body should be very slow to conclude that that tribunal overlooked some factor, simply because the factor is not explicitly referred to in the determination concerned".
12. In this case the submission by the Secretary of State is as strong as to suggest that the Judge has failed to provide reasons for any of the findings he made. It is not disputed before me that the Judge was entitled to depart from the opinion of the Competent Authority but it is submitted that proper findings and adequate reasons must be given if that is the conclusion that the Judge is going to make.
13. The Judge refers to the Secretary of State relying upon the conclusions of the Competent Authority but then find that the appellant was trafficked as she alleges which is a direct contradiction to the findings of the earlier assessment.
14. The Judge found the appellant to be credible but a proper approach to credibility required an assessment of the evidence and of the general claim. In asylum claims, relevant factors are the internal consistency of the claim, the inherent plausibility of the claim, and thirdly the consistency of the claim with external factors of the sort typically found in country guidance.
15. What the Judge fails to do is to set out why the appellant's account was found to be credible and why he accepted that it was internally consistent. The Judge at [8.6] states "I cannot find that the respondent has substantial grounds for challenging the appellant's credibility" which indicates that the Judges placed little weight upon the findings of the Competent Authority. What the Judge fails to do is to explain why or what elements of the appellant's case lead him to conclude that she has substantiated her claim.
16. This is, as acknowledged, a reasons challenge. In Shizad (sufficiency of reasons: set aside) [2013] UKUT 85 the Tribunal held that although there is a legal duty to give a brief explanation of the conclusions on the central issue on which an appeal is determined, those reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge. In this case the lack of adequate reasoning means this 'test' cannot be satisfied.
17. In MK (duty to give reasons) Pakistan [2013] UKUT 00641 it was held that (i) It was axiomatic that a determination disclosed clearly the reasons for a tribunal's decision. (ii) If a tribunal found oral evidence to be implausible, incredible or unreliable or a document to be worth no weight whatsoever, it was necessary to say so in the determination and for such findings to be supported by reasons. A bare statement that a witness was not believed or that a document was afforded no weight was unlikely to satisfy the requirement to give reasons.
18. In R and Others (Iran) v Secretary of State for the Home Department [2005] EWCA civ 982 Lord Justice Brook said that there was no duty on an Adjudicator in giving his reasons to deal with every argument presented by an advocate in support of his case. It was sufficient if what he said showed the parties and, if needs be, the IAT the basis on which he had acted and if it be that he had not dealt with some particular argument but, it could be seen that there were grounds on which he would have been entitled to reject it, the IAT should assume that he had acted on those grounds unless the appellant could point to convincing reasons leading to a contrary conclusion. The judgement (of the Adjudicator) need not be lengthy. Not every factor that weighed with the Adjudicator in his appraisal of the evidence had to be identified and explained. But the issues the resolution of which was vital to the Adjudicator's conclusion did have to be identified and the manner in which he resolved them explained.
19. I find that the Secretary of State has made out to the required standard that the Judge's decision is infected by error of law on the basis of inadequate reasons being provided for the findings made.
20. A second error relates to the finding paragraph [8.11] that because the appellant has been trafficked in Albania it meant she has a well-founded further fear of persecution and is therefore a refugee. The Judge refers to head note (g) of the country guidance notes of TD and A.D. (trafficked women) CG [2016] UKUT 92 where the Upper Tribunal found:

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 situation may mean that they are especially vulnerable to re-trafficking, or being forced into other exploitative situations.

21. It was necessary for the Judge, even if the finding that the appellant had been trafficked had been shown to be sustainable, to set out in further detail why the risk of re-trafficking arose sufficient to entitle Ms Shahu to succeed in her claim for refugee status, by reference to her personal circumstances. All that the Judge appears to have done is to find that as he or she accepted the appellant had been trafficked she was entitled succeed. This is arguably a misdirection of law and the exact findings made by the country guidance panel.
22. Whilst Ms Patyna did her best to argue that the reasoning contained in the decision was "adequate" and that the error was not material, for on the basis of the appellant's case set out in her witness statement and asylum interviews she had establish an entitlement to international protection, the difficulty that is faced is that a reader of the decision will struggle to understand why the Secretary of State lost in relation to this appeal. This is so even taking into account the differing standards of proof applicable to the Competent Authority and the First-tier Tribunal assessments, in relation to the key elements of the evidence relied upon by the parties. The materiality aspect cannot be concluded in Ms Shahu's favour for they would have to be a sustainable positive credibility finding in relation to the account that she gave to enable Ms Patyna's arguments to stand.
23. I find that the Judge has materially erred for the reasons set out in the Secretary of State's grounds. None of the findings of fact can be preserved and it is arguable that in light of the extent of the failings a complete fact-finding exercise will have to be re-undertaken which, in accordance with the Presidential guidance on remitting appeals, supports the submissions by the parties that the most appropriate way to succeed is for the matter to be remitted to be heard afresh by a judge other than Judge Heatherington.

Decision

24. The First-tier Tribunal Judge materially erred in law. I set aside the decision of the original Judge. I order that this matter be remitted to the First-tier Tribunal sitting at Birmingham to be heard by a judge nominated by the Resident Judge of that Tribunal, other than Judge Heatherington.

Anonymity.

25. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make no such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed??????????????????.
Upper Tribunal Judge Hanson

Dated the 15 February 2017