Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05829/2016

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On: 9 March 2017
On: 27 March 2017

Before
Deputy Upper Tribunal Judge Mailer

Between
Mr V H
anonymity direction made
Appellant
and

secretary of state for the home department
Respondent

Representation
For the Appellant: Mr B Amunwa, counsel, instructed by Marsh & Partners
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer

DECISION AND REASONS
1. Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their 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.
2. The appellant is a national of Albania, born on 12 November 1998.
3. The appellant claimed he would be at risk on return as he was trafficked in Albania, and from Albania to Italy where he was forced to commit crimes. If returned he will be killed or mistreated by his traffickers or his father.
4. His appeal against the decision of the respondent dated 16 June 2016 to refuse his international protection claim was dismissed by the First-tier Tribunal Judge in a decision promulgated on 16 December 2016.
5. There was no NRM report before the First-tier Tribunal. His overall circumstances prompted consideration as to whether he was a victim of trafficking. The Judge noted that she had not been provided with the decision of the Competent Authority by either party.
6. Nor has any explanation or reason been advanced before the Upper Tribunal as to why such a report was not produced.
7. The Judge stated that having considered the appellant's account in the round and in the context of the background material concerning Albania, making any allowance for difficulties in giving evidence and his young age, his core account was not credible applying the lower standard of proof [45].
8. The appellant did not satisfy her that he had been ill treated by his father, forced to work, that he ran away from home, or that he was a victim of trafficking, whether in Albania or in Italy. She was unable to accept his evidence in any material respect. She considered at [45 and 46] that his departure from Albania and journey to the UK was planned with the knowledge and assistance of his family and that he is an economic migrant who was taken to Italy by his father in order that he should travel to the UK and make an asylum claim.
9. On 17 January 2017, First-tier Tribunal Judge Shimmin granted the appellant permission to appeal on all grounds. The contentions were that that the Judge's language did not indicate that she applied the lower standard of proof; she failed to refer to any background material when assessing credibility; she used inappropriate words suggesting a cross-cultural comparison, including assumptions as to human behaviour and a misapplication of the lower standard of proof.
The appeal
10. Mr Amunwa adopted and relied on the grounds of appeal prepared by counsel who represented the appellant at the hearing before the First-tier Tribunal.
11. Mr Amunwa submitted that the Judge made an adverse finding based on the appellant's credibility. However, despite saying that she applied the lower standard of proof, the language used did not suggest that she did. He referred to [41] of the decision. The Judge found that there were many inconsistencies going to the core of his claim. She found it “unlikely” that traffickers would give the appellant money as their victim, “lest he were to use it to escape”. It also seemed 'unlikely' that they would have needed to give him about €50 a week for his food if he was always accompanied. At [42] she found that it 'seemed unlikely' that the traffickers would ever have allowed him to have possession of his own passport.
12. Mr Amunwa noted that she had directed herself appropriately at the outset as well as [45] where she found that his core account was not credible, applying the lower standard of proof. However, in the earlier assessments of his credibility she had already considered that aspects of his claim were “unlikely”.
13. He submitted that the facts that the appellant presented constituted the basis of adverse credibility findings. Her approach in the circumstances had been “unlawful.” This was not merely a semantic argument but betrayed a fundamentally incorrect approach.
14. He further submitted that the Judge gave inadequate reasons for rejecting the evidence of the witness in support of the claim, namely Mr Nazeri. In particular, the Judge used the word “surprising” at [44] and other words which suggested a cross- cultural comparison, assumptions as to human behaviour and a misapplication of the lower standard of proof.
15. He referred to [44] of the decision where the Judge stated that she had considered the evidence of Mr Nezeri. With regard to his claim that he received information from his own parents that the appellant was effectively taken to Italy to work for criminals because his father was in debt, the Judge stated that “…..in my view it would be surprising if the appellant's parents would have disclosed this information to their neighbours, even if it were true, unless they were aware that the appellant was in the UK and it would help his asylum claim”.
16. He submitted that the use of the word “surprising” is indicative of a misplaced assumption about human behaviour. That is particularly so given that the country information suggests that trafficking is prevalent and that it may be reasonable to infer that there would be a level of public consciousness about people trafficking and young victims.
17. He submitted that on one reading, the country information suggests precisely the opposite of what the Judge found, namely that trafficking incidents may be seen as highly topical and talked about because of their notoriety. He referred to paragraphs 165 and 187 in AM and BM (Trafficked women) Albania CG [2010] UKUT 80 (IAC).
18. Seen this way, the appellant's family would have proper reasons to discuss the matter. It is a society where people strongly identify with and discuss family matters. There is no particular stigma ascribed in the evidence which attaches to families who have had a child trafficked.
19. Moreover, he submitted that the phrase “unless they were aware that the appellant was in the UK and it would help the asylum claim” has no logical connection to the finding before it. The family may have chosen to disclose this information for a variety of reasons; and there being no evidence on the precise point, it is unclear how the Judge's findings were based upon the evidence as opposed to mere speculation.
20. Accordingly, the Judge has analysed the case outside the prism of the country context. There was accordingly no proper basis of making an adverse credibility finding against the evidence of Mr Nezeri.
21. Finally, he submitted that whilst the Judge stated at [45] that she considered the appellant's account in the round and in the context of the background material concerning Albania, there was no specific reference in the determination to that background evidence.
22. Mr Amunwa referred to the relevant country information that was available in the appellant's bundle before the First-tier Tribunal as well as the “objective evidence” bundle. This contained articles concerning the prevalence of organised criminal gangs in Albania; high levels of child abuse; exploitation of vulnerable children by criminal gangs and trafficking of the same; as well as as impunity for the perpetrators. Other forms of forced labour were also prevalent including “drug running”.
23. Even though this evidence alone might not have proved decisive in any given case, it is nevertheless incumbent upon the decision maker to take into account all the relevant information which, taken as a whole in combination with other factors in the appellant's favour, might lead to a different outcome.
24. On behalf of the respondent, Mr Tarlow relied on the Rule 24 response. The grounds amount to a mere disagreement. The Judge properly highlighted the correct standard of proof at [10].
25. At paragraph [7] the Judge referred to the documentary evidence presented by both parties which was reiterated at [29] and [45].
26. Despite the word “surprising” the remainder of the paragraph sets out adequate reasons for rejecting the evidence. She explained why even taking it at its highest, it was not credible.
27. With regard to paragraph [44], Mr Tarlow submitted that the Judge had to make findings on the facts. There had been a careful analysis. She did not consider Mr Nezeri's evidence to be reliable.
28. He submitted that taken as a whole, the decision should stand.
Assessment
29. Although, as noted, the Judge properly directed herself at the outset and later on at [48] of her decision, her findings that significant assertions by the appellant in his evidence were unlikely, informed and affected her credibility findings as a whole. I have set out the relevant paragraphs in this regard from paragraph 11 above.
30. Moreover, with regard to Mr Nezeri, she stated that it would be “surprising” if the appellant's parents would have disclosed this information to their neighbours, even if it were true. It is not evident what evidence the Judge relied on for such scepticism. There does not appear to be any evidence supporting that assessment. She failed to have regard to the country information which suggested that trafficking is prevalent and that it may be reasonable to infer that there might be a level of public consciousness about people trafficking and young victims: such trafficking incidents may be talked about on account of their notoriety.
31. Nor as submitted by Mr Amunwa was there any rational connection to the phrase “unless they were aware that the appellant was in the UK and it would help his asylum claim” as there is no particular stigma described in the evidence which attached to families who have a child who is trafficked. This amounts to impermissible speculation in the absence of a proper evidential basis.
32. There is accordingly some force in Mr Amunwa's submission that the Judge has assessed and analysed the case outside the prism of the country context to which she had been directed.
33. I accordingly find that there have been material errors of law. In the circumstances, I set aside the decision.
34. Both parties agreed that in those circumstances it would be appropriate for the matter to be remitted to the First-tier Tribunal for a fresh decision to be made before another Judge. Having regard to the amount of evidence that would have to be considered including background material, I find that this is an appropriate case to be remitted to the first-tier Tribunal.
Notice of Decision
The decision of the First-tier Tribunal involved the making of an error on a point of law and is set aside.
The appeal is remitted to the First-tier Tribunal (Taylor House) for a fresh decision to be made, before another Judge.
An anonymity direction is made.

Signed Date 26 March 2017
Deputy Upper Tribunal Judge C R Mailer