Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-002532

First-tier Tribunal No: PA/54151/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 24 March 2025

Before

UPPER TRIBUNAL JUDGE LANDES
DEPUTY UPPER TRIBUNAL JUDGE RICHARDS

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

A D
(Anonymity order made)
Respondent

Representation:
For the Appellant: Ms Cunha (Senior Home Office Presenting Officer)
For the Respondent: Mr Collins (Counsel instructed by Marsh and Partners, Solicitors)

Heard at Field House on 29 January 2025

Order Regarding Anonymity

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

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

DECISION AND REASONS

1. The appellant (“SSHD”) has been granted permission to appeal the decision of the First-Tier Tribunal promulgated on 4 June 2023 allowing the appeal of the respondent, the appellant before the First-Tier Tribunal (“AD”) on asylum grounds. The grounds explain that SSHD does not challenge the decision to allow the appeal on Article 3/humanitarian protection grounds.

Anonymity

2. We have continued the anonymity order in favour of AD made in the First-Tier Tribunal. Although there is a strong public interest in open justice, AD has been recognised as a victim of modern slavery, which has included modern slavery within the UK. Accordingly he is entitled to anonymity under section 2 (1) (db) of the Sexual Offences (Amendment) Act 1992.

Claimed error of law

3. The judge of the First-Tier Tribunal (“the judge”) found that the appellant, a national of Albania, had shown that he was a member of a particular social group (“PSG”) as his father’s son as he was forced to work for the criminal gang as payment for his father’s debts. His brother had also encountered the same problems. She found that his fear was due to an innate characteristic which could not be changed, namely his biological relationship with his father [20].

4. The grounds aver that the judge materially erred in law by failing to apply the conjunctive approach for assessing membership of a PSG as required by section 33 of the Nationality and Borders Act 2022. It is averred that the judge failed to identify how or why the appellant would be perceived as different from surrounding society.

The hearing

5. Ms Cunha agreed with us and with Mr Collins that the Nationality and Borders Act 2022 did not apply. It did not apply because AD claimed asylum on 21 August 2019, long before the Act came into force. This meant that the statutory requirement that both an innate characteristic and to be perceived as being different by the surrounding society were necessary for an appellant to form part of a PSG did not apply to AD.

6. As the submission based on the Nationality and Borders Act 2022 was the submission on which the grounds rested, we asked Ms Cunha what remained.

7. Ms Cunha submitted that AD did not possess an innate characteristic and that in any event the Nationality and Borders Act 2022 did not change the position from what it had always been. Both limbs of the test were necessary. We raised with her the cases of K and Secretary of State for the Home Department; Fornah v Secretary of State for the Home Department [2006] UKHL 46 where it was held that a member of a particular family could be a member of a PSG. Ms Cunha did not agree with our characterisation. She said that there was no immutable or innate characteristic which differentiated AD and that there was no lack of sufficient protection and the judge had not given adequate reasons. She agreed that she was going beyond the grounds, but she said that the error was Robinson obvious.

8. Mr Collins responded that the grounds were misconceived. It was clear from authority that the judge could find that the appellant was a member of a PSG. That being the case, there was no error of law. This could not be a Robinson obvious error – that is something so obviously against the underlying principles of the Convention that either party could raise it. He asked how it could be said to be Robinson obvious that the appellant was not a member of a PSG.

9. We noted that Mr Collins had filed a rule 24 response on the morning of the hearing, a long way out of time, arguing that in any event the judge had been wrong to find that AD could not be a member of a PSG as an accepted victim of trafficking/victim of modern slavery.

10. We said we would retire to consider the arguments and whether we needed to consider whether the rule 24 response should be admitted out of time.

11. On return we told the representatives that we considered the SSHD’s case failed on the grounds as pleaded and there was no other Robinson obvious point so we would be dismissing the SSHD’s appeal and upholding the judge’s decision. We did not need to consider the admission of the rule 24 response.

Discussion and reasons

12. That membership of a family can be membership of a PSG for the purposes of the Refugee Convention was described as a consensus “very clearly established by earlier domestic authority” by Lord Bingham in K v Secretary of State for the Home Department (at [19]). K decided that the persecutory treatment of the original member of the family might not be for a Convention reason, but if the reason for the persecution of the other members of the family was their relationship with the original victim, then those family members could come within the protection of the Convention, as members of a PSG.

13. This is precisely the point here. The judge explained that AD’s father owed money to criminal gangs (we observe that the gangs targeting of the father would not obviously have been persecution for a convention reason) and that AD and his brother were targeted by the criminal gangs as their father’s sons who should repay their father’s debts [20]. Neither those factual findings, nor that AD’s fear was due to an innate characteristic which could not be changed, i.e. his biological relationship with his father, were challenged in the grounds.

14. The Nationality and Borders Act 2022 section 33 provides:

“33 Article 1(A)(2): reasons for persecution
…

(2)A group forms a particular social group for the purposes of Article 1(A)(2) of the Refugee Convention only if it meets both of the following conditions.

(3) The first condition is that members of the group share—

(a) an innate characteristic,

(b) a common background that cannot be changed, or

(c) a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it.

(4) The second condition is that the group has a distinct identity in the relevant country because it is perceived as being different by the surrounding society.”

15. In the country guidance case of EMAP (Gang violence – Convention Reason) El Salvador CG [2022] UKUT 335 the Upper Tribunal concluded, in the context of those fearing gangs in El Salvador, that pre the Nationality and Borders Act 2022 the disjunctive approach should be taken i.e. that the claimant would not also have to show that they were a member of a group which had a distinct identity in the relevant country because they were perceived as being different by the surrounding society.

16. The Upper Tribunal at [90] – [104] explained the arguments for and against the disjunctive approach. They noted that the Upper Tribunal in DH (Particular Social Group; Mental Health) Afghanistan [2020] UKUT 223 had taken the disjunctive approach and that the approach was supported by the obiter dicta of 4 members of the Appellate Committee of the House of Lords in K; Fornah. At [105] to [111] they explained why they considered the disjunctive approach is to be preferred and why the approach in K; Fornah should be followed. Their reasoning is entirely persuasive, and we adopt it.

17. In any event, they explained with reference to authority, that the perception of the group as being different by surrounding society did not mean that the group needed to be perceived as different by society as a whole [104]. They said at [104] “It is today uncontroversial that members of a family can constitute a particular social group, and that they would (absent special notoriety or fame) only be perceived as being part of that group by the immediate community in which they live”.

18. In short, once it is recognised that this case pre-dates the Nationality and Borders Act 2022 the grounds fall away. Those persecuted by reason of family membership can clearly form part of a PSG, indeed, although we did not identify this at the hearing, there is an argument that those persecuted by reasons of family membership could satisfy both limbs of a conjunctive test in any event. We consider that being persecuted by reason of being the son of a particular father is the same type of PSG as being a member of the same family.

19. There is no Robinson obvious point here. As most recently explained by the Court of Appeal in Secretary of State for the Home Department v George [2024] EWCA Civ 1192 at [75] “the principle in Robinson No 1 is limited to points of refugee law which favour a person who claims to be a refugee, and which are 'obvious' and arguable with 'strong prospects of success' (see paragraph 17 above). The reason for that principle is that it is necessary to enable the United Kingdom to comply with its obligations under the Refugee Convention…. I am only aware of one case in which this principle has been extended in favour of the Secretary of State, also in a refugee case, where it was obvious that the appellant was excluded from the protection of the Refugee Convention, as a self-confessed torturer, by article 1F (A (Iraq) v Secretary of State for the Home Department [2005] EWCA Civ 1438). Counsel did not refer us to any other relevant cases. There are obvious policy reasons why this principle should not be extended any further in favour of the Secretary of State.”

20. Regardless of the extremely limited cases in which SSHD can invoke the Robinson principle, there is no obvious point here for SSHD. Ms Cunha asserted, but did not explain, why the judge was obviously wrong to find that being the son of a particular father was an innate characteristic, or a common background which could not be changed. It seems obviously right, rather than obviously wrong. That the disjunctive approach applies cannot be seen to be obviously wrong, it is clearly a complex area as the Upper Tribunal explained in EMAP.

21. Ms Cunha strayed into saying that no adequate reasons were given for finding that there was no sufficiency of protection for AD from the authorities in Albania. The judge explained carefully why in the particular circumstances there would not be sufficiency of protection from the authorities in Albania, including that AD and his brother had already tried unsuccessfully to approach the authorities for help [15]. The judge’s reasons are cogent; there is no obvious point for SSHD, it is clearly not an area where the Robinson principle would apply, and that is ignoring the most important feature namely that the grounds expressly say that no challenge is made to the decision to allow the appeal on humanitarian protection/Article 3 grounds. In other words, SSHD must have accepted the judge’s finding that the authorities would be unable or unwilling to protect AD.

22. The judge’s decision did not contain an error of law either as averred in the grounds, or an error which could be said on the part of SSHD to be Robinson obvious, therefore.

Notice of Decision

The judge’s decision did not contain an error of law and stands. The Secretary of State’s appeal is dismissed.

A-R Landes

Judge of the Upper Tribunal
Immigration and Asylum Chamber

19 March 2025