Tribunal decisions

The decision

IAC-fH-nl-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/04042/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 March 2017
On 14 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW

Between

m d c
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Heller of Counsel instructed by Barnes Harrild & Dyer Solicitors
For the Respondent: Mr P Armstrong, Home Office Presenting Officer

DECISION AND REASONS
1. This appeal to the Upper Tribunal concerns an appeal by the appellant against the findings of the First-tier Tribunal with regard to the asylum claim and a cross-appeal by the Secretary of State against the findings of the First-tier Tribunal on Article 4 of the European Convention on Human Rights (‘ECHR’). To avoid confusion I will refer to the appellant and the respondent as they were before the First-tier Tribunal.
2. The appellant is a national of Albania whose date of birth is 5 April 2000. The appellant made a claim for asylum on the basis that his father was abusive towards him, that he was forced to miss school to enable him to work on the family farm and that he was sent to work for people in the village to pay for his father’s debts. On 8 April 2016 the respondent refused the appellant’s application on the basis that, as the appellant’s father is a non-state agent and there is a sufficiency of protection in Albania, he is not in need of International protection. The respondent also considered that there was an option of internal relocation available to the appellant. The respondent did not consider that there would be a real risk of treatment contrary to Articles 2, 3 or 4 of the ECHR. His claim under Article 8 was also refused.
The appeal to the First-
3. The appellant appealed against the respondent’s decision to the First-tier Tribunal. In a decision promulgated on 24 September 2016 First-tier Tribunal Judge S J Clarke dismissed the appellant’s appeal on asylum grounds but allowed the appeal under Article 4 of the ECHR.
The appeal and cross-appeal to the Upper Tribunal
4. The appellant applied for permission to appeal against the First-tier Tribunal’s decision on the asylum aspect of the claim.
5. On 27 October 2016 First-tier Tribunal Judge J M Holmes refused the appellant’s application for permission to appeal. The appellant renewed his application to the Upper Tribunal and on 10 February 2017 Upper Tribunal Judge Hanson granted the appellant permission to appeal in part. Permission to appeal was granted in respect of grounds 3, 4 and 5 only. Permission was not granted in respect of grounds 1 and 2.
6. The respondent also applied for permission to appeal against the First-tier Tribunal’s decision on Article 4. On 25 January 2017 First-tier Tribunal Judge Osborne granted the respondent permission to appeal.
The hearing before the Upper Tribunal
7. At the commencement of the hearing Ms Heller and Mr Armstrong indicated that they were both in agreement that there was an error of law in the First-tier Tribunal’s decision in that the judge had not set out adequate reasons for allowing the appeal on the basis of Article 4 of the ECHR.
8. I will deal firstly with the appeal of the appellant against the asylum decision. At the commencement of the hearing Ms Heller submitted that despite permission being refused on grounds 1 and 2 it was open to me to consider those grounds of appeal. The issue with regard to sufficiency of protection, ground 1, is relevant to the respondent’s appeal on Article 4. I therefore permitted Ms Heller to make submissions on that ground but not in respect of ground 2.
9. The appellant’s grounds of appeal assert that the judge failed to refer to the objective evidence and the background material relied upon by the appellant. It is submitted that the evidence demonstrates that the prevailing attitude towards domestic violence in conjunction with corruption within the state agencies means that the authorities are unwilling to protect victims of domestic violence. Ground 3 submits that, in finding that there is no reason why the appellant’s maternal uncle should not continue to assist the appellant if he returned to Albania, the Tribunal failed to take into account the appellant’s evidence that his father had threatened to kill his uncle. It is also submitted that the judge failed to have regard to paragraph 7 of the skeleton argument which set out:
“Not only would the appellant not be safe relocating to his home area, he could not call upon his maternal uncle for assistance, contrary to the assertion in § 30. The said uncle has already been subject to death threats by the appellant’s father when he tried to intervene on the former’s behalf. Moreover, the uncle lives in Krum which, like Has (the appellant’s home area) is part of the municipality of Kukes, North Albania. The reference to help from extended family at paragraph 47 is fanciful, the appellant has only the one maternal relative. It is highly unlikely that his paternal relatives would shelter/assist him.”
10. Ground 4 asserts that it was incumbent upon the judge to consider the internal flight alternative that was addressed in both the reasons for refusal letter and the appellant’s skeleton argument. Ground 5 asserts that the judge’s findings are confused. She was obliged first to consider whether there is a Convention reason and then go on to consider whether there is a sufficiency of protection. The existence of the latter does not, of itself, decide whether the appellant has a Convention reason.
11. In oral submissions Ms Heller asserted that there is no reference at all to the objective evidence by the judge. That objective evidence is capable of demonstrating that the authorities are unable to protect the appellant. She referred to the UNICEF Child Notice Albania 2015 at paragraphs 7.7 and 7.8. She submitted that this failure was a clear error of law. In relation to ground 3 the First-tier Tribunal Judge did record threats to kill made against the uncle. She submitted that the judge erred in finding that the maternal uncle would be able to assist. The geographical location is the same. In relation to ground 4 she submitted that if the uncle could move with the appellant it would clearly make the internal flight option more sustainable. This was an essential element that was missing from the First-tier Tribunal Judge’s findings. In relation to ground 5 she accepted that at paragraph 16 the judge does bear scrutiny but that there appears to be a conflation with the other issues. The judge failed to make reference to the appellant’s particular social group which is that he was a child victim of domestic violence.
Discussion
12. The judge has not directly referred to objective evidence. The judge refers to how the police in Albania can be called upon to assist. The judge found at paragraph 12:
“12. The Respondent accepted the Appellant’s account of how his father mistreated him but concluded that the Appellant could turn to his maternal uncle for help. There is no supporting evidence from the maternal uncle, and this is something that would have been readily available. It was submitted that because the father threatened to kill the uncle that is a reason why the uncle could not help. However, the Respondent did not positively accept that part of the account, because it was the mistreatment of the Appellant that was accepted. Further, the Respondent noted that the uncle assisted the Appellant in leaving Albania. I find that there is a gap in the evidence, and it was noted by the Respondent, and me at the start of the hearing, that there is no supporting documentation, and I particularly noted the lack of evidence from the uncle.
13. The whole basis of the claim is that there is nobody for the Appellant to turn to for protection from his father. The father is a non-state actor and as a farmer has no influence over the police. Indeed the police did nothing when the Appellant went to visit them aged 13 years old. There is no suggestion the police positively took steps to harm the Appellant, rather, they did nothing on that occasion and told the Appellant to go home.
14. The Appellant has a maternal uncle living in Albania who took steps to assist the Appellant, and there is no reason why he would not continue to do so in the absence of any evidence from him to state otherwise.”
13. The judge then set out at paragraph 15:
“15. This Appellant has suffered at the hands of his father, and for this Appellant being told to go home and not being assisted on that occasion when he was young had the effect of the Appellant not wanting to go to the police again because he feared they would not take him seriously. However, when considering the risk on return of this Appellant, now that he is older, and would be returning with an enhanced awareness of how the police in Albania can be called upon to assist, as well as having the assistance of his maternal uncle, and bearing in mind the Appellant would not be returning to the family farm, the Appellant has not shown that there is no sufficiency of protection for him, or that it would be unreasonable for him to return.”
14. Whilst the finding was one that was open to the judge it is not clear why the judge considered that there was a sufficiency of protection in Albania. It might be that the judge has accepted the objective evidence referred to by the respondent (at some length) in the reasons for refusal letter with regard to the ability of the police in Albania to protect the appellant. However, there is no clear finding in respect of the objective evidence. The judge appears to link the assistance of the appellant’s maternal uncle with protection of the appellant. It is not clear whether the judge considers that the appellant can return to his home area alone and obtain state protection or whether the finding that he is not at risk on return is premised upon obtaining assistance from his maternal uncle. The judge clearly considered that the appellant would not be returning to his family farm. Whilst the judge has recorded the appellant’s assertion that his father had threatened to kill his uncle there is insufficient reasoning as to why the judge considered that, notwithstanding such threats, the uncle would be in a position to assist the appellant on his return to Albania. The appellant would be returning to the same municipality a short distance from the family home.
15. The judge has not considered the option of internal re-location. If the judge was satisfied that the appellant was not at risk in his home area then she would not be required to also consider internal re-location.
16. I find that there is a material error of law in the First-tier Tribunal’s decision. There is inadequate reasoning, in light of the appellant’s case, as to why the judge reached the conclusion that the appellant would not be at risk on return to his home area and that he would be able to obtain the assistance of his uncle.
The Respondent’s cross appeal
17. Mr Armstrong submitted that the judge had failed to consider whether there was a sufficiency of protection in relation to the appellant with regard to Article 4. The judge had failed to engage with paragraph 58 of the Reasons for Refusal Letter. It was incumbent upon the judge to consider which part of Article 4 the appellant fell within. He submitted that the judge made no findings as to why the authorities would not assist the appellant. The judge, at paragraph 16, had found that there was a sufficiency of protection from the police with regard to the domestic violence claim and it is not clear why the judge would not also have considered that there was a sufficiency of protection from forced labour, particularly given that the appellant has discretionary leave and will not be returned until he is an adult. He submitted that if the appellant is looking for protection as an adult, given the judge found there would be a sufficiency of protection from domestic violence as a child, it is not clear why there would not be a sufficiency of protection as an adult. The judge has not considered whether the authorities in Albania take any action against forced labour. He submitted that there were inadequate findings on these points.
18. Ms Heller submitted that the findings on Article 4 are inadequate, that it was incumbent upon the judge to distinguish which subparagraph of Article 4 she considered the appellant fell within. She submitted that it is not slavery but forced labour. There were various steps that the judge had to undertake and issues that the judge was required to consider such as whether the member state penalised forced labour. None of these were identified or considered by the judge.
Discussion
19. The First-tier Tribunal Judge set out at paragraph 17:
“17. The Appellant grew up on a family farm and along with his brothers worked on the farm, and neighbour’s farms. The work involved ploughing fields and chopping wood amongst other things. The Appellant claims that he was being treated as a slave and the facts fall within Article 4.
18. I note that children growing up on farms worldwide help alongside their parents tilling the land and rearing animals. The nature of farming is such that farmers assist each other in the village working the land. However, what takes this case outside helping out on the farm is that the father prevented the Appellant from attending school and hired the Appellant out to other farmers to help pay off the debts of the father. These two features are such that I accept that the Appellant has shown that he was treated as a slave by his father for the purposes of Article 4. I note that the Appellant has been granted discretionary leave in any event because he is still a minor.
19. Therefore, drawing the strands together, I conclude that looking at the evidence as a whole, and noting the lack of evidence, the Appellant has not shown that for this ‘upgrade’ appeal, if he were returned to Albania today it would be a breach of the 1951 Convention, or Articles 2, 3 but not 4 of the ECHR. Therefore, I make no anonymity order and I note he is an older child.”
20. The judge then proceeded to dismiss the appeal on asylum but allowed the appeal on Article 4.
21. There is no consideration by the judge as to whether the return of the appellant to Albania would breach his Article 4 rights. The judge has simply found that he was treated as a slave by his father for the purposes of Article 4. That does not necessarily indicate that it would be a breach of his Article 4 rights if he were to be returned to Albania. In the Reasons for Refusal Letter the Secretary of State considered Article 4 setting out:
“58. In addition your legal representatives raised in their letter of 12 January 2016 that there may be a breach of Article 4 in returning you to Albania. It is not accepted however that there are grounds for believing that you would be at a real risk of treatment contrary to Article 4 for the same reasons already set out in this letter.”
22. The judge has failed to consider Article 4 in terms of the situation in Albania if the appellant were to be returned. Rather the judge has simply found that he was, when he was in Albania and under the control of his father, treated as a slave contrary to Article 4. The test is whether or not removing the appellant to Albania would breach those Article 4 rights. This necessitates considering whether, when returned, the appellant would be subject to forced labour or treated as a slave. As the judge had found that the appellant would not be returning to his father’s farm it is not clear how he would be subject to slavery or forced labour. Further the judge has failed to consider if Albania has an effective system to protect victims of forced labour or slavery in place.
23. I therefore find that the judge erred in law by failing to consider adequately or at all how removal of the appellant would breach his rights under Article 4 based on the judge’s finding that he would not return to the family farm.
24. The decision of the First-tier Tribunal contained a material error of law. I set aside that decision pursuant to section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 (‘TCEA’).
25. At the close of the hearing both parties invited me to remit the matter to the First-tier Tribunal for a de-novo hearing if I were to find an error of law on the asylum decision. I considered the Practice Statement concerning transfer of proceedings. I am satisfied that the nature and extent of judicial fact finding that is necessary in order for the decision in the appeal to be re-made is such, having regard to the overriding objective, that it is appropriate to remit the matter to the First-tier Tribunal
26. I remit the case to the First-tier Tribunal for the case to be heard before a judge other than Judge S J Clarke pursuant to section 12(2)(b) and 12(3)(a) of the TCEA. The case is to be listed at Taylor House on the next available date.

Notice of Decision
The decision of the First-tier Tribunal contained material errors of law and is set aside. The case is remitted to the First-tier Tribunal for a de-novo hearing.
I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.

Signed P M Ramshaw Date 13 March 2017

Deputy Upper Tribunal Judge Ramshaw