Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2024-003936
UI-2024-003937

First-tier Tribunal Nos: PA/55008/2023
PA/54953/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 17 March 2025

Before

UPPER TRIBUNAL JUDGE SMITH
DEPUTY UPPER TRIBUNAL JUDGE HARRIS

Between

OK & KK
(ANONYMITY ORDER MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr Norris, Solicitor
For the Respondent: Mr Ojo, Senior Home Office Presenting Officer

Heard at Field House on 28 February 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellants are granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellants, likely to lead members of the public to identify the appellants. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. These appeals are linked. The first appellant and the second appellant are daughter and mother.
2. Each appeals against the decision dated 11 June 2024 of First-tier Tribunal Judge Mulholland dismissing an appeal against the respondent’s decision (25 July 2023 for the first appellant and 31 July for the second appellant) to refuse a protection claim.
3. These appeals have come before us to decide whether there is an error of law. If we determine that the First-tier Tribunal decision does contain an error of law, we then need to decide whether to set aside the decision in consequence. If we set the decision aside, we must then either re-make the decision ourselves or remit the appeal to the First-tier Tribunal to do so.
The First-tier Tribunal Hearing
4. At the hearing before her the First Tier Tribunal Judge heard oral evidence from each appellant as well as from the appellants’ brother/son.
5. The judge decided to treat each appellant as a vulnerable witness in accordance with the Joint Presidential Guidance Note No.2 of 2010 on account of their mental health issues. The judge also took into account that the respondent accepted their account of what happened to them in Albania regarding ill treatment by moneylenders and their use of agents to come to the UK.
6. The judge noted in her decision what were agreed by the parties to be the primary issues. Adopting a framework consistent with the Nationality and Borders Act 2022, these included whether a Refugee Convention reason, such as membership of a particular social group, applied to the appellants’ cases, whether the appellants were at real risk on return to Albania from the claimed actors of persecution, sufficiency of protection and internal relocation.
7. Having summarised the appellants’ cases and the position of the respondent, the judge proceeded to make her findings.
8. At this point we observe that the appellants each claim to have a well-founded fear of two distinct and unrelated actors of persecution:
• firstly, moneylenders in Albania to whom the appellant’s father/husband owed an unpaid debt (the father is said to have fled Albania in 2005 and plays no further part in the appellants’ account) and,
• secondly, the agents who brought the appellants to the UK from Albania.
9. The judge considered the issue of whether a Refugee Convention reason applied to the cases of the appellants. She found it was not demonstrated on the balance of probabilities that there was an applicable Refugee Convention reason that applied to the situation regarding the moneylenders in Albania.
10. The judge turned to the issue as regards the appellants’ fear of the agents. The judge described the situation as being, taken at its highest, that the appellants said that the agents provided what they needed and left them unaccompanied and that that the appellants had agreed to pay £20,000 to the agents for their passage, intending to have their brother/son, who works in construction, help with paying this sum. The judge noted the appellants left the location where they were staying and had not heard from the agents since.
11. The judge found that the appellants had not suggested what work they were required to carry out to repay the debt owed to the agents. She considered there was no reason why the appellants should not repay this debt. The judge held there was nothing sinister in this – this was the contractual obligation that they had entered into with the agents. The judge concluded she had not been provided with sufficient information to demonstrate that those who owe a debt to others for arranging travel to the UK, have a distinct identity and share an innate characteristic such that they fall within the definition of being members of a particular social group.
12. The judge proceeded to consider matters regarding the two moneylenders who the appellants describe as harassing, intimidating, assaulting and sexually assaulting them between 2005 and their departure from Albania in 2022. Among the details noted by the judge, were that the appellants did not know the identities of the money lenders or whether they had any links or influence with the police or politicians in Albania.
13. The judge took note that the appellants’ brother/son came to the UK and claimed asylum in 2018 and that it was accepted that he was a victim of modern slavery, who has been given discretionary leave for a period to allow him to attend counselling. The judge noted that the case of the brother/son included the claim he had suffered problems in Albania because of his father borrowing money, in 2019 while in the UK he was forced to participate in criminal activity by men who were connected to those who threatened him in Albania and that in 2020 the men attacked him. The brother had not heard from the men since he disposed of the phone they gave him.
14. The judge noted that the asylum claim of the brother/son was refused. She set out the explanation given by the brother/son at the hearing that he did not appeal the refusal because by then he had been granted leave to remain on family life grounds because he was in a relationship with a British citizen and they had a British citizen child.
15. The judge found there were inconsistencies between the claim of the appellants and that of their brother/son. This included that there were inconsistent accounts regarding behaviour between him and the appellants in respect of approaching the police in Albania. The brother/son claimed that he sought help from the police but they did not help. The appellants gave an explanation in terms that they never sought any assistance as they were afraid and the police are corrupt and may have notified those they feared, causing more issues for them.
16. The judge further considered that the brother/son’s circumstances meant he was easy to find but he had heard nothing further from the men indicating that the men were no longer interested in him. The judge went on to observe that the appellants said the men who assaulted them had not made any attempt to contact them since leaving Albania and did not accept that the appellants did not go outside.
17. The judge also identified country background evidence to support there was a sufficiency of protection in Albania for the appellants against the moneylenders.
18. The judge moved on to consider matters relating to the agents. The appellants were able to provide little or no detail about the agents, any network to which they belonged or their power and influence. The judge considered that in the second appellant’s account there was little evidence that the agents held the appellants against their will. They had not heard from the agents since leaving the house to which the agents took them.
19. The judge was satisfied there was no evidence of any continuing adverse interest in them. After making a number of findings about shortcomings in the accounts of the appellants, the judge found she was not satisfied that the appellants owe the claimed debt to the agents or that the appellant escaped from the house rather than leaving of their own accord. The judge found there is little reason why the appellants could not return to Albania as the agents would not be looking for them.
20. The judge reminded herself of the guidance given in the country guidance case of TD and AD (Trafficked Women) CG [2016] UKUT 92 (IAC) that in Albania there is general a Horvath-standard sufficiency of protection but it will not be effective in every case.
21. After observing that as she did not accept that the appellant are victims of trafficking they would likely be in a significantly better position than the categories of returnee considered in TD and AD, the judge assessed the appellants’ case under the list of factors identified in the country guidance to consider where there was any circumstance particular to the appellants that would mean they could not avail themselves of the sufficiency of protection generally available in Albania. This included findings that it was not demonstrated the appellants had any health conditions that would reasonably prevent them accessing the protection of the Albanian state authorities and that, on the basis of the country background evidence, adequate health care was available to the appellants.
22. The judge found it was not shown the money lenders had any ability to locate or pursue the appellants across all of Albania and assessed the issue of internal relocation
23. The judge also made findings under Article 8 which are not the subject of the appeal before us.
The appellants’ grounds of appeal
24. Permission has been granted for three grounds of appeal raised by the appellants to be argued before us.
25. In summary, firstly, it is submitted that the judge’s analysis at paragraph 27 of the FTT decision is unsafe because of apparently finding it is reasonable for potential victims of trafficking to pay back their traffickers by way of forced labour and because of the terminology used.
26. Secondly, it is argued the judge errs in finding an inconsistency between the separate accounts of the brother/son and the appellants, particularly at paragraph 34 of the decision, as regards the brother/son seeking the help of the police in Albania but the appellants not doing so. The judge tries to correlate 2 separate claims without giving any context to the different circumstances.
27. Thirdly, it is submitted that, while saying she is treating the appellants as vulnerable witnesses, the judge fails to acknowledge and give this any consideration in her decision making.
Grant of permission
28. In a decision dated 23 August 2024 First-tier Tribunal Judge Cox found the three grounds mentioned above to be arguable and granted permission, making these comments:
“… The phrase “there is no reason why the appellants should not pay this debt. There is nothing sinister in this” is troubling – given that the agents facilitated the appellants unlawful entry into the UK. Further the fact that the brother/son went to the police is arguably not an inconsistency. Finally, although the judge refers to the medical evidence and its findings, the judge may not have taken it into account, when assessing the evidence in the round. At the very least it is arguable that the judge out to have explained why the medical evidence did not assist the appellants.”
The Upper Tribunal Hearing
29. We had before us a consolidated bundle of documents and a skeleton argument produced by the representatives of the appellants. In effect, the skeleton argument reiterates the points made in the grounds of appeal.
30. We heard submissions from both the parties. We indicated that we would reserve our decision and provide our reasons in writing, which we do now.
Discussion
31. For the sake of clarity, we will distinguish between the two distinct actors of persecution or serious harm described in the claims of the appellants as:
(a) the “moneylenders” for the men who have targeted the appellants in Albania because of the unpaid debt of their father/husband and
(b) the “agents” for the men who brought the appellants to the UK and who are claimed to have sought to traffick them.
Ground 1
32. Here we bear in mind that these are appeals on asylum grounds to which Part 2 of the Nationality and Borders Act 2022, including section 32, applies. We remind ourselves of the guidance given by this Tribunal in JCK [2024] UKUT 00100:
• In an appeal to which s32 NABA 2022 applies, the proper approach is to address each of the questions posed by the section expressly and sequentially.
• Question 1 is whether, on the balance of probabilities, the claimant has a characteristic which could cause them to fear for one of the five reasons set out in the Refugee Convention. In simple terms: is there a Convention reason?
• Question 2 is whether, on the balance of probabilities, the claimant "does in fact fear" such persecution. This is the 'subjective fear' test.
• Questions 3-5 are matters of objective evaluation and must each be determined on the lower standard of proof: 'a reasonable degree of likelihood'. Is it reasonably likely that there is:
- a risk of harm
- an absence of state protection, and
- no reasonable internal flight alternative?
33. Turning to the first ground of appeal, this concerns Question 1.
34. We observe that Mr Norris confirmed that the appellants accepted that no Refugee Convention reason applied to the appellants’ claims as regards fear of the moneylenders. Thus, that part of the appellants’ cases cannot succeed on asylum grounds of appeal and is pursued only on humanitarian protection and Article 3 grounds.
35. The issue for the First-tier Tribunal Judge to consider under Question 1 was only in respect of the claims made by the appellants about the agents.
36. At paragraph 13 of JCK, it is said that for Question 1 a decision maker is not required to consider whether the characteristic has in fact attracted persecution or whether it will do so in the future. The simple question is whether a claimant has a protected characteristic which could cause them to fear. Put simply the question is whether, taking the claim at its highest, there is a Convention reason.
37. As set out in the skeleton argument before the First-tier Tribunal at paragraph 6, the case of the appellants was that, as trafficked women, the Refugee Convention reason applicable to their cases was that they were members of a particular social group.
38. In line with the applicable country guidance case law of TD and AD (Trafficked women) CG [2016] UKUT 80 (IAC), the respondent did not dispute before either the First-tier Tribunal or us that trafficked women in Albania can be members of a particular social group for the purposes of the Refugee Convention.
39. As mentioned above, the judge found each appellant should be treated a person who owes a debt to others for arranging travel to the UK and was not satisfied it was demonstrated that either appellant was a member of a particular social group on this basis.
40. The respondent is able to point to the judge at paragraph 26 of the decision saying that she is taking the case of the appellants at the highest. Nevertheless, we consider that in her findings in paragraphs 26 and 27 of the decision the judge does fail to take into account a relevant matter upon which the appellants rely to argue they have the characteristic of being members of a particular social group as trafficked women. This is that, before escaping, they suffered the threat of forced labour under the control of the agents: for example, see what the first appellant says in answer to questions 143 and 144 in her full interview:
“Q.143: What did he tell you when you got to the house?
A: He said you are going to stay here until you pay of the money and you will do whatever we tell you to do.
Q.144: Did he threaten you?
A: Yes, he said if you don’t pay the money, you will be in trouble”
41. It is the element of coercion that is here significant rather than any type of work the appellants might be required to carry out.
42. The judge makes no reference to considering this aspect of the appellants’ claims when deciding Question 1. We consider this part of the appellants’ account is capable of taking their case at the highest away from being that of mere contractual obligation requiring them to repay a debt to a situation of the appellants being trafficked.
43. We find that in these circumstances there is an error of law in the finding of the judge when determining Question 1 because of a failure to apply the case law of JCK correctly and consider a relevant matter present in the cases of the appellant when taken at the highest.
44. We will assess whether this error of law by the First-tier Tribunal judge is a material one requiring the decision be set aside after considering the other grounds of appeal before us.
Ground 2
45. This ground concerns the First-tier Tribunal judge’s assessment of matters relating to the appellant’s humanitarian protection and Article 3 claims regarding the money lenders.
46. In this ground the appellants focus on the approach taken by the judge at paragraph 34 of her decision and criticize how she analyses the behaviour of the brother/son in approaching the police in Albania as inconsistent with the appellants not approaching the police. The appellants submit that the judge has failed to bear in mind different circumstances faced by the appellants as single women to those of their son/brother.
47. It can be noted that the appellants have not specified any other parts of the decision where it is said the judge is similarly at fault. We observe also that the judge makes a number of other findings as part of her reasoning for rejecting the claim of the appellants to be at real risk that have not been specifically challenged as errors in law.
48. In any event, looking at paragraph 34 of the decision we consider this reads not in the way advanced by the appellants but rather as the judge identifying that the damage arises from the appellants failing to mention in their accounts that their son/brother approached the police in Albania without result. That is the inconsistency.
49. We consider this is a finding open to the judge to make on the evidence before her. We are not persuaded that the judge errs in law as argued under the appellants’ second ground of appeal before us.
Ground 3
50. Here it is submitted that the judge has unlawfully failed to take into account in her decision making that she is treating the appellants as vulnerable witnesses. The appellants in their submissions draw attention to the judge, after referring at paragraph 14 of the decision to the vulnerability, making no further reference to the appellants being vulnerable when assessing their cases as regards either the money lenders or the agents.
51. We asked Mr Norris during submissions whether there was any particular part of the decision where the judge should have directed herself further to bear in mind or referenced that the appellants were being treated as vulnerable witnesses. He identified only one instance. This was where the judge was assessing the appellants’ behaviour in not approaching the police in Albania.
52. In order to assess whether that constitutes an error of law, we consider it relevant to look at what evidence regarding vulnerability was actually before the First-tier Tribunal judge.
53. In submissions before us, Mr Norris, who represented the appellants before the First-tier Tribunal, mentioned that he recollected some sort of letter about the mental health symptoms of the appellants being submitted at the hearing before Judge Mulholland. However, he acknowledged that the appellants had not put a copy of this letter before this Tribunal. In the circumstances, we can attach no weight to this letter when considering whether the judge erred in law in her assessment of any vulnerability of the appellants, particularly where we are not provided with any details of its content.
54. The only document the appellants could identify to us that was present in the bundle of documents provided to this Tribunal is a letter dated 20 March 2024 by the Utulivu Women’s Group. The letter refers only to the circumstances of the first appellant.
55. The letter from Utulivu confirms that they provide support to the first appellant in relation to the trauma that she endured as the victim of sexual violence in her country. It is said that the incidents had a big impact on the first appellant and as a result she is suffering from nightmares, panic attacks and impacts her wellbeing. The first appellant has stated that she frequently has flashbacks, wakes up in the middle of the night and generally suffers from negative emotions such as shame, blame, guilt, low self-esteem, humiliation, loneliness, helplessness, hopelessness, feeling like a burden, feeling trapped, isolated, depressed, eating disorder and anxiety. Utulivu go on to confirm that they provide the first appellant with services to help her address her health and wellbeing.
56. We note that Utulivu, quite properly, makes no claim to medical or any other expertise and offers no opinion regarding diagnosis or prognosis for any mental health condition affecting the first appellant. Indeed, we consider that before the First-tier Tribunal judge there was a lack of any expert evidence, medical or otherwise, that identified any mental health condition affecting the first appellant’s ability to give consistent evidence or to cope adequately with social interactions in Albania, such as approaching the Albanian police for protection.
57. Even allowing for the second appellant having some similar list of symptoms to that of the first appellant, here too there was before the First-tier Tribunal judge a lack of expert evidence diagnosing any mental health condition of the second appellant affecting her ability to give consistent evidence or to cope adequately with social interactions in Albania, such as approaching the Albanian police for protection.
58. The judge expressly states in her decision she has treated the appellants as vulnerable witnesses in accordance with the Joint Presidential Guidance. We find no instance in the decision making set out in the decision where the appellants establish the judge failed to bear this in mind, particularly given the limited nature of the evidence produced about the appellants’ vulnerability.
59. Moreover, on the evidence before her, we consider it was open to the judge, when assessing risk factors under the country guidance of TD and AD, to find that neither appellant has any health condition that would reasonably prevent them accessing the protection of the Albanian state authorities. This is consistent with the judge continuing to keep in mind throughout her decision making the limited evidence on vulnerability produced by the appellants.
60. We find no error of law by the First-tier Tribunal judge as argued under the appellants’ third ground of appeal.
Is there any material error of law?
61. We have not found any error of law concerning the judge’s dismissal of the appellants humanitarian protection and Article 3 claims in respect of the money lenders.
62. The only error of law which we have found is under the first ground of appeal and in respect of the appellants’ claim in respect of the agents. However, the appellants have to demonstrate this was a material error of law such that the decision should be set aside and remade.
63. The legal error we have found concerns how the judge approached Question 1 of the NABA 2022 sequence of Questions for the asylum cases of the appellants. Even with a favourable answer under Question 1, it remained for each appellant to show their asylum cases should succeed under the other Questions. In the reasons for refusal letter the respondent accepted each appellant had a subjective fear of both claimed actors of persecution – thus Question 2 was not at issue. However, Questions 3, 4 and 5 were in issue.
64. We observe there is no real challenge in the grounds of appeal before us to the various findings made by the First-tier Tribunal judge that resulted in her conclusions that it was not demonstrated the appellants were at real risk of serious harm from the agents, that there was sufficient protection in Albania for the appellants or that reasonable internal relocation was available to each appellant. We have found no error made by the judge when considering vulnerability issues for the appellants.
65. In the circumstances, the error of law by the judge concerning whether a Refugee Convention reason applies to the case of the appellants is not a material one because the appellants’ asylum case does not succeed under the other Questions in issue.
66. Further, the assessments regarding real risk, sufficiency of protection and internal relocation were carried out on the lower standard of proof. It is not disputed they equally apply when determining any humanitarian protection or Article 3 claim of the appellants regarding the agents. Accordingly, the appellants do not succeed on humanitarian protection or Article 3 grounds in respect of their cases concerning the agents.
67. In conclusion, we find no material error of law in the First-tier Tribunal judge’s dismissal of each appellant’s appeal on asylum, humanitarian protection and Article 3 grounds.
68. We dismiss the appeals of the appellants.
Notice of Decision
The decision of the First-tier Tribunal, dismissing the appeals of the first and second appellants, did not involve the making of a material error of law and stands.

M Harris

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

10 March 2025