Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003300

First-tier Tribunal No: PA/53401/2023
LP/01777/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 6 March 2025

Before

UPPER TRIBUNAL JUDGE HANSON
DEPUTY UPPER TRIBUNAL JUDGE MOXON

Between

UA
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss Robinson, Counsel
For the Respondent: Mr Thompson, Senior Home Office Presenting Officer

Heard at Phoenix House (Bradford) via CVP on 24 February 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 appeals, with permission, the decision of a judge of the First-Tier Tribunal (“the Judge”) who upheld the Respondent’s decision to refuse the Appellant’s claim for asylum.
Background
2. The Appellant is a citizen of Chad. He left Chad in 2018/19, entered the United Kingdom on 20th November 2021 and claimed asylum on 25th November 2021, by which stage he was 16 years of age.
3. The claim was refused by the Respondent on 23rd May 2023 and an appeal to the First-tier Tribunal dismissed in a determination dated 29th May 2024 after an attended hearing on 8th May 2024.
4. The claim for asylum is summarised at paragraphs 2 and 3 of First-tier’s determination:
“2. He claims that he fled Chad with his older brother on the basis that he had been told his father was killed as a result of a land dispute with another tribe, members of the other tribe having come to take his land. He went to Libya where he was … illtreated and trafficked and where he claims that he witnessed his older brother being killed. His mother and sister and younger brother also left their home area, finding refuge in another area of Chad some 20 kilometres or so away.
3. He claims that he is at risk on return to Chad from the people who killed his father on the basis that they will perceive that he will seek to avenge his father's death and will therefore move to kill him as a pre-emptive step. He also claims that he would be trafficked there and would face a real risk of destitution in breach of Article 3 as well as very significant obstacles to integration.”
5. The Refusal is summarised at paragraph 5:
“His nationality was accepted and it was accepted that he had been trafficked in Libya. His date of birth was accepted as 17 May 2005. It was also accepted that he was a member of the Bulala tribe. However, it was not accepted that he had received adverse interest from people who killed his father and wanted his father's land nor that he was at risk of persecution on return to Chad. Those who wanted the family landed achieved their aims such that he would not be of ongoing interest to them, noting as well that his mother had moved and settled 20 kilometres away from their home area and had not experienced any problems. He could return to Chad and live with his mother. He would not face very significant obstacles to integration.”
6. Before the First-tier Tribunal, the Appellant relied upon expert reports from Atena Papatraian, Consultant Psychologist, dated 11th December 2023; Dr Inge Butter, country expert, dated 31st January 2024; and Ms Sally Montier, who provided a ‘trafficking / modern slavery assessment report’, dated 29th January 2024.
7. Within the determination, the Judge concluded the following:
a. The Appellant was a broadly consistent witness (paragraph 11);
b. The Appellant could reasonably relocate and live with his mother and younger brother who have not attracted the adverse attention of the rival tribe (paragraph 12 and 17);
c. The Appellant’s account that the aggressors did not know of the presence of his younger brother or of the location of his mother and younger brother, is not accepted (paragraph 13 and 14);
d. There is no evidence to support Dr Inge Butter’s conclusion that the Appellant is distinguishable from his younger brother in relation to adverse attention from the aggressors due to birth order (paragraph 15); and
e. There is no ongoing adverse interest in the Appellant or his family (paragraph 16).
8. At paragraph 17, the Judge concluded the following in relation to risk of re-trafficking:
“…the availability of family support and living with family in Chad was not factored into the trafficking report or the psychologist’s report. Their assessments have proceeded on the basis that the appellant would be returning devoid of support I find however that he would not be. Miss Robinson [Council for the Appellant] accepted that if I find that he can live with his mother and siblings he would not face a risk of destitution contrary to Article 3.”
9. A different judge of the First-tier Tribunal granted leave to appeal on 16th July 2024 on the following grounds (emphasis added):
“3. In view of the analysis and findings and conclusions reached by the experts, namely the country expert report, trafficking expert report and psychological report it is arguable that the judge did not give adequate consideration to these expert reports in dealing with the issue of risk on return, internal relocation and re-trafficking. It is arguable that the country expert’s report’s view is not brief in any way, shape or form and is very detailed and the evidence was not challenged by the Respondent. It is also arguable that the judge has recharacterized the situation of the Applicant in Chad. The overall conclusion of the experts is that it would be impossible for the Applicant to relocate and join his family without the access to the appropriate provision or support as this would have an adverse impact on his mental health. The grounds give rise to an arguable error of law as the judge has failed to take into account material considerations set out in the various expert reports. Permission to appeal is granted.”
10. The Respondent’s Rule 24 reply, dated 22nd July 2024, at paragraph 6, submits:
“In para [17] of the determination the FttJ clearly states and this was agreed by the REP that both reports did not factor in the availability of family on return, the appellant will have his mother and siblings on return. The experts proceeded on the basis that the appellant would be devoid of support on return to Chad but the FttJ and the appellant agree that this would not be the case.”
11. Within a skeleton argument, dated 5th September 2024, at paragraph 6, the Appellant contested the Respondent’s interpretation as to what had been accepted by Miss Robinson during the First-tier Tribunal hearing:
“In relation to §6 of the rule 24 response the Appellant submits that the Respondent has misunderstood the position of the Appellant’s representative as set out at §17 of the determination…”
12. Prior to the hearing, the Appellant submitted an application, pursuant to rule 15(2A) of the Rules, to adduce evidence that was not before the First-tier Tribunal, namely an addendum report from Dr Inge Butter, dated 3rd September 2024, in support of the conclusion within her previous report that the Appellant’s younger brother would not be at risk from the aggressors.
13. We refused the application as we find the new evidence is not admissible, pursuant to the principles within Ladd v Marshall [1954] 1 WLR 1489, as it has not been shown that the evidence now relied upon could not with reasonable diligence have been obtained before the hearing. Whilst the addendum report post-dates the Judge’s determination, the supporting material pre-dates and could reasonably have been included in the initial expert report. Whilst the expert did not have the opportunity to respond to the Judge’s concerns about the relevant section of his report, we note that any expert would know that they should reference supportive material when giving opinions; and the expert did not attend the First-tier Tribunal hearing to be questioned. Further, it is not the role of any witness, expert or otherwise, to determine whether there is an error of law, as that is the role of the Upper Tribunal.
The hearing
14. Whilst permission to appeal was granted upon various grounds, we identified at the outset of the hearing that the challenge arising from paragraph 17 of the Judge’s determination is, on the face of it, the more persuasive ground.
15. Mr Thompson initially argued that the Judge had adequately acknowledged that he had taken into account all of the expert evidence. However, he accepted that the issue was not whether the Judge had considered the evidence, but whether he had accurately interpreted it. He accepted that he had misinterpreted the evidence of Ms Montier’s report and that this amounted to a material error of law.
16. Mr Thompson was asked whether it was accepted that being at risk of trafficking would place the Appellant within a particular social group, as defined by the Refugee Convention. He noted that the Appellant had been trafficked from Libya, and not Chad, but accepted that a person in Chad at reasonable risk of trafficking would be considered a member of a particular social group within the meaning of the Convention.
17. Mr Thompson invited us to remit the matter to the First-tier Tribunal for a hearing de novo in relation to the discrete issue of whether the Appellant is at reasonable risk of being trafficked if returned to Chad. When asked for his submissions in relation to whether it would be appropriate for us to remake the decision, he stated that it would not be unlawful to do so but he would nevertheless submit that remittal was appropriate.
18. Miss Robinson reminded us that the grounds of appeal not only related to risk of trafficking but also the Judge’s assessment of the risk of harm faced by the Appellant by the rival tribe and as a consequence of his mental health. She confirmed that she did not seek to dissuade us from allowing the appeal and remaking the decision, granting asylum, on the basis that the Appellant is at real risk of being re-trafficked upon return to Chad.
19. Mr Thompson did not seek to make any further submissions in response.
Decision
20. In determining this appeal, we have had regard to the guidance provided by the Court of Appeal in Volpi v Volpi [2022] EWCA Civ 462 at [2], Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 at [26], and Hamilton v Barrow and Others [2024] EWCA Civ 888 at [30-31].
21. At paragraph 2(i) of the summary of Volpi, the Court of Appeal stated:
“An appeal court should not interfere with the trial judge’s conclusion on primary facts unless it is satisfied that he was plainly wrong”.
22. At paragraph 17 of his determination, the Judge stated that “…the availability of family support and living with family in Chad was not factored into the trafficking report…” That is a significant misreading of the trafficking report which stated, at paragraph 121 (emphasis added):
“Even if it were possible for Mr Abdulkadir to live with his mother at the place of relocation this would not, in my opinion, entirely mitigate the risk of re-trafficking. The NEXUS Institute guidance on the reintegration of trafficking victims points out: Even in positive family settings, reintegration can be complicated. Initial feelings of relief and happiness often give way over time to different tensions and day-to-day challenges, including financial problems, interpersonal conflict, shame and blame and damaged family relationships. In my experience of managing family reunion for victims of trafficking, I am aware that the process is often complex. The youth who left is not the same person who returns due to the trauma they have experienced in the trafficking situation. Where the youth has reached adulthood largely without daily or even regular parental input, this can be a source of confusion and frustration for the parent, especially where the child has reached maturity in a very different cultural setting. Parents can feel guilt that they were not able to protect their child, particularly if they pushed them to migrate (even when they believe this is the safest or best option for their child). Equally, the child can feel resentment that their parent(s) could not protect them.”
23. It was argued within the Respondent’s rule 24 response that this point had been conceded by Miss Robinson, on behalf of the Appellant. We reject that submission. Miss Robinson’s concession before the Judge related solely to the risk of Article 3 destitution if the Appellant were to be reunited with his family. It did not relate to the risk of trafficking, as clearly detailed by the Judge: “Miss Robinson accepted that if I find that he can live with his mother and siblings he would not face a risk of destitution contrary to Article 3.”
24. The Judge proceeded to determine the appeal on the basis that Ms Monteir had not “factored in” the fact that the Appellant would return to his mother, when in fact Ms Montier had explicitly stated that the risk of trafficking remained if he were to return to his mother. The Judge’s interpretation of Ms Montier’s evidence was therefore “plainly wrong” within the meaning of Volti therefore amounts to an error of law.
25. Given that the misinterpretation of Ms Montier’s evidence informed the Judge’s assessment of the risk to the Appellant on return to Chad, the error of law was material and we set the decision aside.
Disposal
26. The Tribunals, Courts and Enforcement Act 2007, 12(2), provides that the Upper Tribunal, upon setting aside the decision of the First-tier Tribunal, may (i) remit the case to the First-tier Tribunal with directions for its reconsideration, or (ii) re-make the decision.
27. We reminded ourselves that the Appellant’s narrative account had been accepted by the Respondent and the Judge and that the sole issue is whether there was a reasonable risk of serious harm and / or persecution if he were to return to Chad.
28. It had been accepted by the Judge that the Appellant is broadly credible and it is not in dispute that he is a victim of trafficking. The evidence that he would be at risk of re-trafficking, even upon return to his family in Chad, was contained within the aforementioned trafficking report. The report is detailed and persuasive and there is no challenge to Ms Montier’s expertise. Whilst we reminded ourselves that the burden of proof falls upon the Appellant, it is noted that the Respondent did not provide any expert or country background evidence to contradict the Appellant’s claim of risk of being re-trafficked.
29. As such, we were satisfied that it was fair and appropriate to proceed to remaking the decision.
Re-making the decision.
30. We are satisfied, upon the requisite low standard of proof, that even if the Appellant were to reunite with his mother in Chad, he would be at risk of re-trafficking.
31. We take into account the conclusions of Ms Montier at paragraph 121 of her report, as detailed above. We also note her conclusions at paragraph 135:
“In conclusion, regarding risk of re-trafficking, in my opinion Mr Abdulkadir is at significant risk of further exploitation/ re-trafficking. However there are currently a number of protective factors in place that are likely to mitigate against the risks of re-victimisation identified in this report. None of these factors eliminate the risk of further exploitation but, in my opinion, they reduce the risks. Based on the information available, in my opinion his vulnerability to trafficking is likely to significantly increase on return to Chad, both through being actively recruited by traffickers and the risk that he will be compelled to flee, which carries a high risk of being re-trafficked. In my opinion Mr Abdulkadir is a vulnerable young man with complex support needs and requires stable, consistent long-term support to recover from the trauma of being trafficked and to reduce the risk of re-victimisation. In my opinion this recovery is more likely to be successful if he feels protected and safe. In my opinion this recovery is likely to be unsuccessful if he were to be removed to Chad or another country.”
32. Ms Montier’s conclusions are consistent with those of Dr Butters, who at paragraph 23(a) of her report states:
“Within the context of the prevalent existence of modern slavery in Chad, it is highly likely that Mr. Abdulkadir’s vulnerable position within society will make him susceptible to being exploited again. Mr. Abdulkadir, a native of the Massaguet locality, hails from an area where traditional slavery existed under both the ancient Baguirmi and Kanem- Bornou empires. He also belongs to the Bulala tribe, which is classified by neighbouring communities as one of the lower social classes, and whose members are easily enslaved. Chad has made international and regional commitments relating to the repression of discriminatory practices, exclusion, human trafficking and slavery by taking measures and developing mechanisms to punish the perpetrators of slavery practices and human trafficking, as well as the possibility of compensating victims. In spite of this, a ‘2023 Trafficking in Persons’ Report issued by the U.S. Department of State documented Chad’s insignificant efforts in eliminating trafficking, including their negligible efforts to protect victims.182 Cases of slavery and human trafficking are being regularly reported and documented by abolitionists, civil society actors, and the media in the course of their frequent investigations.”
33. We note that the Respondent had not relied upon any opposing country background information or expert evidence before the First-tier Tribunal.
34. We are satisfied that the evidence shows, to the requisite standard of proof, that the Appellant is at reasonable risk of re-trafficking if returned to Chad.
35. We note the evidence of the significant levels of poverty within Chad, as detailed within paragraph 13 of Dr Butters report:
“Chad is a Central African country with a population of approximately 16 million in 2022. According to the United Nations Human Development Index, Chad is ranked 190th out of 191 countries in 2021 and the World Bank put the 2020 poverty index at 42%. The majority of Chadians live below the poverty line.”
36. We also note, at paragraph 20(e), Dr Butters details the low levels of employment within Chad:
“Within the current socio-economic context108 109, it will be difficult for Mr. Abdulkadir to find a paid job in Chad because of the historically weak capacity of the State to recruit employees, the very low industrialization 110 of the country, and the fact that jobs are mainly available in the largely family-run sectors of agriculture and livestock. Both educated (42% in 2015; 60% in 2017) and less-educated young adults struggle to find work (means of income) in Chad.”
37. We take into account that the Appellant would be the eldest male family member of a family whose land has been confiscated.
38. We also take into account the Appellant’s mental health. We are satisfied, upon consideration of the report from Atena Papatrainan, forensic psychologist, and in light of the accepted narrative account, that the Appellant meets the criteria for post-traumatic stress arising from adolescent trauma. There is insufficient access to medical treatment in Chad for people with mental health conditions, as detailed by Dr Butters at paragraph 24(i):
“If returned to Chad, Mr. Abdulkadir will not be able to access sufficient mental health treatment for Post-traumatic Stress Disorder (PTSD), nor for his negative alteration of cognition and mood, such as anxious ideation and physical symptoms of anxiety. In Chad, psychiatrists and medication are very rare and the country lacks a health system capable of providing appropriate assistance.”
39. Whilst the Appellant was previously trafficked in Libya, and not Chad, we nevertheless consider paragraph 339K of the Immigration Rules to be applicable:
“The fact that such a person has already been subject to persecution or serious harm, or to direct threats of such persecution or serious harm, will be regarded as a serious indication of a person’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.”
40. We are satisfied that as the former victim of trafficking and a person at risk of trafficking, the Appellant is a member of a particular social group because of the shared experience of being trafficked and being vulnerable to trafficking.
41. We are therefore satisfied there is a reasonable degree of likelihood that returning the Appellant to Chad will expose him to a real risk of persecution as a member of the social group in question.
42. We therefore remake the decision and allow the asylum appeal.
Notice of Decision:
The decision of the First-tier Tribunal involved the making of an error on a point of law. The decision of the First-tier Tribunal is set aside. We remake the decision and allow the appeal on asylum grounds.

DUTJ Moxon
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

26th February 2025