Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2022-000393
[PA/12502/2019]

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 19 May 2022
On the 11 July 2022

Before

UPPER TRIBUNAL JUDGE blum

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

EK
(anonymity direction MADE)
Respondent

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the respondent is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the respondent, likely to lead members of the public to identify the respondent. Failure to comply with this order could amount to a contempt of court.

Representation:

For the appellant: Mr S Whitwell , Senior Home Office Presenting Officer
For the respondent: Mr L Youssefian, counsel, instructed by Simman Solicitors

DECISION AND REASONS

1. This is an appeal against the decision of Judge of the First-tier Tribunal Davey (“the judge”) who, in a decision promulgated on 26 January 2022, allowed the protection appeal of EK (“the respondent”) against the decision of the Secretary of State for the Home Department (“the appellant” or “SSHD”) dated 6 December 2019 refusing EK’s protection and human rights claim made on 16 October 2018.

Background

2. The respondent is a national of the Albania , born on 20 May 2003. He illegally entered the UK on 15 or 16 October 2018. He claimed to hold a well-founded fear of persecution in Albania based on his membership of a particular social group - his family. His fear arose from a blood feud between his family and the Dishi family. The respondent maintains that his paternal uncle killed a member of the Dishi family during a funeral in 2016. The respondent’s father was said to be living in Greece, as was his mother, and the family became concerned that the respondent would be targeted by the Dishi family in revenge for the killing. The respondent maintains that tensions between the two families went back many years due to a land dispute and that the Dishi were a powerful family.

3. The appellant did not find the respondent to be credible. The absence of documentary evidence relating to his families ownership of property or the status and influence of the Nishi family, and the absence of documentary evidence in respect of his various family relations was said to undermine his credibility. The appellant pointed to inconsistencies in the respondent’s evidence relating to when the blood feud first arose and when the member of the Nishi family died. The appellant also expressly relied on the absence of any explanation from the respondent as to why no attempts had been made either by him or by his family to maintain contact with each other, despite the respondent claiming that he was on good terms with his family. The appellant additionally identified concerns with evidence provided by a Mr Gjin Marku. The respondent’s protection claim was refused (although he was granted limited leave to remain on account of his age).

4. The respondent appealed the appellant’s decision pursuant to s.82 of the Nationality, Immigration and Asylum Act 2002.

The decision of the First-tier Tribunal

5. The judge had before him a bundle of documents prepared by the respondent’s solicitors as well as a Home Office bundle of documents. The judge heard oral evidence from the respondent.

6. The judge’s decision is unstructured. The judge identified at [4] that the core issue before him, as put by the parties, was whether or not the respondent was part of a family engaged in an ongoing blood feud. He summarised the basis of the protection claim at [7]. At [8] the judge stated that what was in dispute was whether there was a blood feud, or cause for a blood feud, preventing the respondent from returning to Albania or seeking protection there when he would be “in the disadvantaged position where his family were to his knowledge at the age he was elsewhere, broken up or unknown [sic].” At [9] the judge briefly commented on the evidence from Mr Gjin Marku (who provided opinion reports from an Albanian Non-Governmental Organisation involved with blood feuds), and at [10], [11] and [12] he referred to an expert report from Mr James Korovilas. The judge found that the expert report was consistent with the respondent’s evidence, and commented on the expert’s view in respect of the availability of a sufficiency of protection and the availability of an internal relocation alternative.

7. At [13] the judge stated:

“Accordingly when I weigh up the evidence I take into account the ”discrepancies” as relied upon by the Respondent but it does not seem to me that the Respondent properly took into account the Appellant’s evidence at the material time and the extent to which he was ever “briefed” or informed of either the full nature of the claim or the need to carry out of the country when fleeing sufficient documentation to satisfy the Home Department that the Appellant had a bona fide claim. Ultimately I have to apply the lower standard of proof and it seems to me that the Appellant has shown that there is the real risk of him facing the risk of persecution for a Convention reason, namely a particular social group as a family and that there is no real likelihood of internal relocation being reasonable or a sufficiency of protection to which he could have recourse which would be effective.”

8. The judge then indicated, at [15], that he had taken into account a report by a consultant psychiatrist. The judge allowed the appeal under the Refugee Convention and under Article 3 ECHR.

The challenge to the judge’s decision

9. The grounds of appeal contend that the judge failed to take into account and/or resolve conflicts of fact or opinion on material matters. The judge had not mentioned any of the issues raised by the Presenting Officer, and there was no consideration of any of the evidence from a friend of the respondent who purportedly contacted his family in Albania, or the plausibility of the respondent’s claim to have no contact with his family despite being on good terms with them. A minute/note of the hearing before the First-tier Tribunal on 24 March 2021 was attached to the Grounds of Appeal (although I was only provided with this at the outset of the ‘error of law’ hearing).

10. The grounds additionally contend that the judge erred in his approach to the weight he attached to the report by the consultant psychiatrist.

11. At the ‘error of law’ hearing Mr Whitwell focused on the first written ground. His overarching submission was that this was a difficult decision to follow and that it was clear from the Presenting Officer’s minute of the hearing that there had been extensive cross examination relating to the respondent’s family in Albania and why there had been no contact between the respondent and his family. This concern continued into the submissions made by the Presenting Officer. There was no reference in the judge’s decision to the submissions, and no assessment by the judge of the appellant’s concerns, which expressly related to the credibility of his claim to be in a blood feud. Looking at the decision in the round the judge had not engaged with the discrepancies in the respondent’s evidence, as identified by the appellant, and that this rendered the decision unsafe.

12. Mr Youssefian adopted a helpful skeleton argument prepared for the ‘error of law’ hearing. Whilst acknowledging that the decision suffered from ‘structural frailties’, he submitted that the grounds of appeal were no more than a disagreement with the judge’s findings, and that the Upper Tribunal should be very cautious in interfering with findings of fact made by a specialist tribunal. He submitted that the Presenting Officer’s minute was only a summary of the proceedings before the First-tier Tribunal, and that it was not necessary for the judge to be required to address each and every issue that was raised in the appeal (Budhathoki (reasons for decisions) [2014] UKUT 341 (IAC). The judge had focused on the core issue before him, which was whether the respondent was part of a family engaged in a blood feud. The issues relating to his contact with his family were not directly relevant and was only a peripheral issue. Reading the decision as a whole, it was apparent to any reader why the judge reached his decision, and that in so doing he took into account the respondent’s age and his vulnerabilities. Even if the was an error of law, it was not material if the decision was read as a whole.

Discussion

13. The judge dealt with the dispute relating to the respondent’s credibility at [13], which I have set out in full above. Whilst I accept that the judge did make brief reference to the fact that there were discrepancies identified by the appellant in her Reasons For Refusal Letter (although the judge does not describe these alleged discrepancies in any detail), and that he appears to have attributed the discrepancies to the respondent’s age and to a failure by the appellant to take into account the extent to which the respondent would have been informed of the full nature of the blood feud or the need to carry sufficient documentation when fleeing, there has been no engagement at all by the judge in respect of central elements of the appellant’s decision that caused her to find incredible the respondent’s account of the existence of a blood feud.

14. The Reasons For Refusal Letter expressly rejected the respondent’s credibility based, inter alia, on the absence of any explanation as to why neither he nor his family made any attempts to keep in contact, particularly since the respondent described his relationship with his family as “very good.” The Presenting Officer’s minute of the First-tier Tribunal hearing confirmed that, in cross examination, the respondent accepted that he had a strong loving relationship with his mother but that none of his family members gave him their contact details. The minute also indicates that the respondent was asked questions about the absence of any evidence from the friend he claimed helped him obtain documents from Albania and who had been in contact with the respondent’s family. It was suggested to the respondent during cross examination that he (the respondent) had obtained the documents from Albania directly from his mother. The minute also indicates that the Presenting Officer made submissions that focused on what was said to be implausible evidence from the respondent relating to the absence of any contact he had with his family. The presenting officer additionally made submissions concerning the absence of any evidence from the respondent’s friend.

15. None of these concerns were identified or addressed in the judge’s decision. Whilst I fully accept that a judge does not have to deal with each and every point raised in a decision under appeal, it is nevertheless incumbent on a judge to engage in those elements of a claim that have been expressly identified and relied on as undermining both the credibility of the applicant’s account and the claimant’s assertion that he would face a real risk of persecution. It should have been apparent to the judge, both from the Reasons For Refusal Letter and from the cross examination and submissions by the Presenting Officer, that the appellant had real concerns with the respondent’s claim to have no contact with his family, and that this went directly to the issue of whether his claim to be at risk of targeting because of a blood feud was genuine. Moreover, the respondent claimed that his friend had been in contact with the respondent’s family and had helped to provide evidence for the respondent, but there was no evidence at all from this friend. It is apparent from the Presenting Officer’s minute that submissions were specifically made on this point, but there was no engagement by the judge. The judge simply cannot ignore submissions that, prima facie, relied on matters that undermined the respondent’s credibility.

16. I do not accept Mr Youssefian’s submission that any error by the judge was not material. It is incumbent on a judge to take into account relevant evidence and to resolve conflicts of fact. The concerns expressed by the appellant went directly to the respondent’s general credibility and were therefore capable of undermining his claim relating to the blood feud. Whilst the judge may have reached the same decision even if he had expressly engaged with the concerns identified by the appellant, it cannot be said that he would inevitably have reached the same decision. In the circumstances I find that the failure by the judge to engage with the credibility concerns identified and relied on by the appellant constitutes a material error of law.

17. I note finally, merely by way of observation and not as an operative part of my error of law decision, that no assessment was made by the judge regarding the respondent’s inconsistent evidence as to when the member of the Dishi family died (he variously asserted that the death occurred at a funeral or that the death occurred three years after an injury inflicted at a funeral), and no consideration appears to have been given by the judge to the guidance in EH (blood feuds) Albania CG [2012] UKUT 00348 (IAC), relating to attestation letters from Albanian non-governmental organisations, in his assessment of the evidence from Mr Gjin Marku, or indeed to the particular concerns expressed by the appellant in her Reasons For Refusal Letter relating to the evidence from Mr Gjin Marku (see pages 13 – 16 of 47).

18. Given the absence of any legally adequate engagement with the appellant’s credibility concerns, it is appropriate to remit the case back to the first-tier Tribunal to be determined on a de novo basis.

Notice of Decision

The decision of Judge of the First-tier Tribunal Davey contains an error on a point of law requiring it to be set aside.

The case will be remitted back to the First-tier Tribunal for a de novo hearing before a judge other than Judge of the First-tier Tribunal Davey.

Notice of Decision

Signed D.Blum Date: 20 May 2022
Upper Tribunal Judge Blum