Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04787/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19 April 2017
On 21 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

AT
(ANONYMITY DIRECTION made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms F Shaw of Counsel instructed by Duncan Lewis & Co Solicitors
For the Respondent: Mr L Tarlow, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a national of Albania born in 1981. She arrived in the United Kingdom and claimed asylum on the basis that she was a victim of trafficking. She was referred to the National Referral Mechanism and on 4 December 2013 a decision was made that she was a victim of trafficking. Her application for asylum was refused by the respondent and she appealed against that decision, however her appeal was dismissed on 18 June 2014. On 15 April 2016 the appellant made a further application for asylum and this was refused on 22 April 2016.
2. Her appeal came before Judge of the First-tier Tribunal Watson for hearing on 2 November 2016. In a decision and reasons dated 18 November 2016, the judge dismissed the appeal. Whilst a number of issues were not in dispute, the findings of the previous judge, First-tier Tribunal Judge Clarke, were taken as the starting point and the issues that remained to be considered were the sufficiency of protection on return and the availability of internal relocation.
3. The grounds in support of the application for permission to appeal asserted essentially:-
(1) That the judge failed to provide adequate reasons why he preferred the respondent’s evidence over the background evidence provided in the appellant’s bundle, in particular a letter from the Nationwide Reconciliation Committee dated 12 May 2016 which is at pages 17 to 20 of the appellant’s bundle, and the treatment of the expert report of Olsi Vullnertari.
(2) The second ground of appeal was concerned with the adequacy of the reasons given in relation to the appellant’s health, it not being disputed that the appellant suffers from symptoms of PTSD and depression. It was submitted that given the plethora of medical evidence served it was clear that the appellant has been able to be mentally stronger due to the ongoing and close support she has had and what the consequences would be if that support stopped, and that the judge’s findings regarding the appellant’s vulnerability were at odds with the medical evidence before the judge, and that was the case particularly in light of the fact that the expert opined that if the support were to stop the appellant’s mental health would deteriorate considerably and that Dr Khan had opined that the appellant had thoughts of suicide.
4. At the hearing before me I heard submissions from Ms Shaw on behalf of the appellant and Mr Tarlow on behalf of the respondent. Ms Shaw sought to rely on the grounds of appeal. She also raised a new issue in relation to the appellant’s current medical condition, however, I have not taken this evidence into account as the appellant only received this diagnosis since the decision of the First-tier Tribunal Judge. Ms Shaw submitted essentially that in light of the new evidence since the decision of Judge Clarke, in particular the expert report and the new country guidance decision of TD and AD (Trafficked women) CG [2016] UKUT 00092 (IAC) and the fact that the appellant had been diagnosed with mental health issues that her mental health would plummet and the judge has not properly considered this. Mr Tarlow sought to rely on the very brief Rule 24 response which states:-
“The judge has very carefully considered the medical evidence as set out at paragraph 22 of the decision. The judge considers the appellant’s mental health as noted at paragraphs 26 to 28, 37 and 42 and concluded that the appellant could return to Albania. The grounds of appeal are a disagreement with the findings of fact made by the judge”.
5. Mr Tarlow submitted that the judge at [37] acknowledged that the appellant has symptoms of PTSD but is resilient. The judge correctly directed himself in respect of the country guidance decision in TD and AD (Trafficked women) CG [2016] UKUT 00092 (IAC) and there was no material law in the decision.
Decision
6. Whilst it is the case that the judge at [22] listed a number of documents in support of the appellant’s appeal including medical evidence from Dr Orsi, Dr Azall and her GP notes, I find that when the appellant’s circumstances are looked at as a whole, the judge’s findings as to the appellant’s mental health and vulnerability are inadequately reasoned. At [28] the judge held:-
“I find that whilst she clearly does not wish to return to Albania, and whilst I fully accept that she has been a victim of trafficking, she has shown resilience and is not so affected by her mental health that she would be unable to travel or to look after herself in her home country if enabled to return. Nothing in the medical notes indicates that she suffers from a severe mental illness. I find that she has not shown to the lower standard of proof that she is particularly vulnerable with regard to her mental health. She has not self-harmed and I find that she has not shown that there is a likelihood of such.”
and at [37]:
“The victim’s health. I have found that whilst she suffers from symptoms of PTSD and depression, she is not so severely affected that she is particularly vulnerable. Paragraph 28 above details my findings on this point. I find that she has some resilience that lessens the risk of re-trafficking.”
7. I find that, in reaching those findings, the judge failed to take proper account of the appellant’s evidence that she had been subjected to harassment by a man in the United Kingdom, which resulted in the police arranging for her to be moved from one city to another. The judge at [25] considers this evidence but only in the context of rejecting any suggestion that she has been trafficked or threatened by any of her traffickers while she has been in the UK and the fact that she has not been targeted in the UK. However, in so considering the judge failed to take account of the appellant’s accepted vulnerability which resulted in an intervention by the British police to re-house her in a completely different city for her safety.
8. I also find that the judge materially erred in his application of the risk factors and principles set out in TD and AD (op cit). At [42] the judge found as follows:
“Considering the cases of TD and AD, the risk factors identified in those two cases were greater than that of this appellant. The mental health issues were more prominent, the level of education less and one case involved an illegitimate child. The appellants were considered as having a major depressive illness, and chronic and complex PTSD. There was a moderate risk of suicide. I do not find that the appellant’s circumstances are on this level and after a detailed examination of them I find that she is not at real risk of re-trafficking.”
9. I find that the judge has fallen into error in misapplying the principles of TD and AD. It was not incumbent upon the appellant to show that her circumstances were on all fours with the appellants in TD and AD, but rather whether on her own facts and on the evidence submitted specifically in support of her appeal the appellant fell within one of the risk categories of the country guidance case due to her vulnerability and her mental health. For these reasons I find that the First-tier Tribunal Judge erred materially in law so that his decision cannot stand.
Notice of Decision
10. The appeal is remitted to the First-tier Tribunal for a hearing de novo before a different First-tier Tribunal Judge.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

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 or any member of her family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed: Rebecca Chapman Date: 20 April 2017

Deputy Upper Tribunal Judge Chapman