Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002582

First-tier Tribunal No: PA/50906/2021
IA/04042/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
18th June 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE HILLS

Between

AE
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Collins, instructed by Sentinel Solicitors
For the Respondent: Ms L Clewly, Home Office Presenting Officer

Heard at Field House on 30 May 2025

Order Regarding Anonymity

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

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

DECISION AND REASONS

Introduction

1. The appellant is a male citizen of Albania, who appeals against a decision of the First-tier Tribunal (FtT) dated 22 April 2024 which dismissed his appeal on asylum, humanitarian protection and human rights grounds.

2. The basis of the appellant’s claim is that his life would be at risk if he returned to Albania because of a blood feud which has been ongoing since 1989 and in relation to which he is now the target. In addition, he claims to have established a private life under Article 8 due to the length of time he has lived in the UK. He says that, even putting aside the issue of the blood feud, there are significant issues with him re-integrating to life in Albania as he has spent his formative years in the UK.

3. The appellant claimed asylum on arrival in the UK on 15 March 2016, which was refused. He appealed that decision and on 25 August 2017 his appeal was dismissed. Permission to appeal was refused with appeal rights exhausted on 26 January 2018. The appellant applied for further leave on 17 April 2019. This was refused but further leave as a UASC was granted which expired on 18 April 2020. The appellant applied for further leave on protection grounds on 10 September 2020. This was refused on 5 February 2021. It was that refusal which formed the subject of the appeal before the FtT.

Grounds of Appeal

4. The appellant relies on four grounds of appeal, namely that the FtT Judge (FtTJ) erred as follows:

(i) Factual errors – specifically his date of birth, his age on arrival in the UK and date of making his asylum claim.
(ii) Failure to give reasons/making findings not open to the FtTJ – in relation to evidence the appellant gave about a friend’s trip to Albania to obtain a relevant document on his behalf.
(iii) The approach to the expert evidence.
(iv) Article 8 private life – in that the consideration of this point was flawed because of the error in relation to the appellant’s age upon arrival in the UK.

5. Grounds 1 and 4 are connected, so I will deal with them together. My findings in relation to Grounds 2 and 3 then follow.

Discussion and Findings

Grounds 1 and 4

6. The FtTJ states at [1] that the appellant was born on 18 October 2022 and that he came to the UK on 15 March 2016 when he was aged 16. The appellant was, in fact, born on 18 October 2002 and was aged 13 when he came to the UK. The appellant says that the FtTJ also notes that the appellant made a (delayed) asylum claim on 15 January 2019, when the claim was in fact made upon arrival. The appellant argues these errors impact the FtTJ’s findings in relation to the credibility of his claim and the assessment regarding Article 8 private life; or alternatively in their totality give the appearance of the claim not being assessed with anxious scrutiny. Mr Collins submitted that there was a clear difference between assessing the evidence of a 13-year-old and that of a 16-year-old, and said the Upper Tribunal cannot know how much that error infected other parts of the FtTJ’s decision.

7. The appellant further argues that the FtTJ’s consideration of his Article 8 private life claim was flawed because it did not have proper regard to the fact that his formative years were spent in the UK, as it was predicated on the mistake that he had come to the UK aged 16. That, the appellant argues, impacted the FtTJ’s findings in relation to the obstacles he would face to his re-integration back to Albania. Mr Collins submitted the FtTJ undertook a cursory analysis of the appellant’s life in the UK since he arrived aged 13 (from [33] onwards). He noted the FtTJ’s comment at [39] that the appellant could keep in touch with his foster family, friends and girlfriend by modern means and they could visit him in Albania, however pointed to the decision in Omotunde v The Secretary of State for the Home Department [2001] UKUT 247 (IAC) as authority that modern means of communication are not an appropriate alternative for maintaining ties with family and friends in the context of children.

8. The respondent argues that nowhere in the decision does the FtTJ state that there was a “significant delay” in the asylum claim. While it is accepted there is a typographical error at [1] where the date of the asylum claim is incorrect (i.e. 2019), in that same paragraph the FtTJ refers to the appeal being dismissed on 25 August 2017. The respondent further submits that, in any event, the previous asylum decision has the correct dates.

9. The respondent further argues that the FtTJ clearly considers the appellant’s circumstances. The FtTJ notes at [5] that he says he has spent his “formative years” in the UK and acknowledges he has had foster carers at [15]. The respondent argues this demonstrates the FtTJ was aware of the appellant’s young age and that the typographical error does not amount to an error of law.

10. The respondent also argues that the FtTJ’s consideration of Article 8 private life is detailed and does not contain an error of law. She argues that the FtTJ plainly attached weight to the appellant’s length of residence in the UK at [38], and appreciated that it would be difficult for him to leave his foster family, friends and girlfriend but that the public interest outweighed the strength of his private life claim at [39-40]. The respondent argues that was a finding reasonably open to the FtTJ and that she did not err in making it.

11. Ms Clewly submitted that the important point was the FtTJ clearly understood the appellant was a child and, whether she thought he was 16 or 13 years old, she knew he was under the age of majority. She said that the FtTJ’s analysis goes wider than his age at [35] and considers his education and skills obtained in the UK, his family in Albania, and his ability to adapt to life in Albania based on his understanding of the language and culture. She sought to distinguish Omotunde on the basis that was a family life claim, whereas the appellant’s case is based on private life.

12. It is correct that the FtTJ made a number of factual errors at [1] of her decision. The question is whether or not those errors are material or, alternatively, when taken together suggest that the claim was not assessed with anxious scrutiny.

13. I cannot see anywhere in the decision where the FtTJ made findings against the appellant on the basis of him having made a delayed asylum claim (aside from the error itself at [1]) and I agree with Ms Clewly that the chronology which follows suggests the FtTJ could not have thought the claim was made in 2019. I find that this error is not material.

14. There are two relevant errors in relation to the appellant’s age. The first is that FtTJ states that the appellant was born on 18 October 2022. That is clearly a typographical mistake, as the FtTJ self-evidently did not think the appellant was under 2 years old at the time of the hearing. I find that is not a material error. The other is whether the FtTJ thought the appellant had lived in the UK since he was 16 years old or 13 years old. That is arguably more material.

15. While I accept Ms Clewly’s submission that the FtTJ clearly had regard to the fact that the appellant was under 18 when he arrived in the UK, had lived with a foster carer and other factors when considering the impact on him of returning to Albania, I am persuaded that there is a material difference between thinking the appellant was 16 years old or 13 years old. While it is not clear from the FtTJ’s decision that she did, in fact, think that he was 16 years old on arrival in the UK or if that too was a mere typographical error, the risk that the analysis was flawed because it was on a mistaken belief as to the appellant’s age on arrival is such that it is material.

Grounds 2 and 3

16. The appellant notes that the FtTJ finds at [26-27] that it was implausible that the appellant’s friend would go to Tirana and would “want to put himself at risk” and “pay money” to obtain a document for the appellant, and “unlikely that a friend would be able to obtain this” and instead finds that it was the appellant’s family who obtained the document. The appellant argues that no reasons are given for the finding that the friend would “put himself at risk” and there was no evidence before the FtTJ for that finding. He says the associated finding that the friend paid money for the document without recompense is not based on the evidence before the FtTJ, noting that the appellant’s evidence was that when asked if his friend paid for the document he said he did not know.

17. The appellant further argues that there are no reasons given in [28] for the finding that kanun law does not extend to Durres. Mr Collins submitted that the evidence did not support this finding and said that the expert report suggested kanun law had influence in other parts of Albania.

18. The respondent argues that the FtTJ gave adequate reasons for rejecting the appellant’s explanation for how he was able to obtain the document in Albania. She notes that the FtTJ found there was a significant lack of detail around how the document was obtained [25-26], the appellant’s friend was unwilling to give evidence and the appellant did not produce evidence from the friend [26-27]. Ms Clewly submitted that there had been no evidence provided on this other than the appellant’s word.

19. On the finding that the appellant’s friend would want to put himself at risk the respondent says that it appears the appellant accepted that, pointing to [27] of the decision where the FtTJ notes “[O]n the appellant’s case, he would have had to put himself at risk…”. In any event, given the appellant’s claim that the family with whom the blood feud existed are powerful and have people working in the authorities, the respondent argues it is easy to see how a person seeking to obtain the document would be at risk.

20. On the finding that the appellant’s friend would have to pay money, the respondent argues it must be right that the friend would incur expenses travelling to Albania. She argues the point is not whether a fee was paid for the document, but rather it is not obvious why a person would place themselves out of pocket to obtain a document which they had no obvious way of obtaining.

21. In relation to kanun law not extending to Durres, the respondent argues that the FtTJ is simply referring to the earlier findings of the FtT which the appellant did not challenge and where there was no new evidence to suggest they should be departed from. Ms Clewly submitted, in the alternative, that given the FtTJ found there was no active blood feud, even if kanun law extended to Durres the claim should not succeed.

22. I agree with the respondent. The FtTJ sets out from [21-27] her analysis of the evidence in relation to the document and gives clear reasons for the findings she makes. While the FtTJ accepts the genuineness of the document (at [26]), given she did not accept the appellant’s account of the circumstances in which the document was obtained it was reasonably open to her to conclude at [28] that the appellant was still in touch with members of his family. In relation to whether or not kanun law applies in Durres, I note that the FtTJ at [18(iii)] was applying the unchallenged findings of the previous FtTJ in 2017.

23. The appellant argues in relation to Ground 3 that the FtTJ erred in her approach to the expert evidence at [29-32] in finding that the expert did not engage with the findings of the previous FtTJ and simply accepted the appellant’s claim. The appellant says the previous decision was part of the evidence considered by the expert and that the expert was giving her opinion on the plausibility of the claim and setting out a factual context within which the FtTJ could survey the appellant’s account.

24. The respondent’s position is that the FtTJ was entitled to find that the expert did not give proper consideration to the findings of the earlier FtTJ and that she went beyond her role as a country expert. She points to [31] where the FtTJ gives an example of the expert departing from the previous FtTJ’s findings that the appellant was vague and inconsistent by relying on the evidence of the social worker that the appellant is respectful and well behaved. She also notes that the FtTJ did not ignore the other aspects of the expert’s evidence and that the limitation of it identified at [31] is specifically referred to as “an example.” The respondent noted that this is not the first time that this expert’s view has been criticised by a court.

25. I find that the FtTJ approached the evidence of the expert in the proper way. The FtTJ clearly considers the evidence of the expert and sets out the reasons for her conclusion that the expert report was predicated on the basis of the appellant’s claim being found to be credible, which failed to engage with the previous FtTJ’s findings.

26. Although I do not agree with the appellant in relation to Grounds 2 and 3, I find that the mistake of fact in relation to his age on arrival in the UK is such that the decision of the FtTJ should be set aside.

27. This type of error of law was considered in E & R v SSHD [2004] Q.B. 1044. At [66] of the judgment of Carnwath LJ (as he then was), the following considerations were held to be of importance in assessing whether a mistake of fact amounts to an error of law:

“[…] First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning.”

28. It is not clear to what extent the mistake about the appellant’s age impacted the FtTJ’s assessment of his claim, however I find that the risk of unfairness that it did impact the assessment is material. The mistake of fact is in line with E & R and amounts to a material error of law.

Disposal

29. The decision of the FtT is vitiated for the reasons above. I set aside the decision of the FtT. I have considered whether to retain the case in the Upper Tribunal or remit it to the First-tier Tribunal and have concluded that remittal is appropriate. I have considered whether any of the FtTJ’s findings can be preserved however given the nature of the error of law I do not consider that possible.

Notice of Decision

The decision of the First-tier Tribunal is set aside as it involved an error of law. No findings are preserved.

Directions to the First-tier Tribunal

1. The appeal is remitted to the First-tier Tribunal (Taylor House);
2. The remitted appeal shall not be conducted by First-tier Tribunal Judge George;
3. The anonymity direction is maintained.

N Hills

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 13 June 2025