Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004297

First-tier Tribunal No: PA/57694/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 21 November 2024

Before

UPPER TRIBUNAL JUDGE HIRST

Between

SB
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Gajjar of counsel, instructed by SMA solicitors
For the Respondent: Mr Tufan, Senior Home Office Presenting Officer

Heard at Field House on 19 November 2024

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

1. The Appellant appeals from the decision of First Tier Tribunal Judge Moore dated 28 July 2024 dismissing her protection appeal.

Background
2. The Appellant is an Albanian national who has been accepted as a victim of human trafficking and modern slavery. Her claim for asylum was refused on 25 September 2023 and the Appellant’s appeal against that decision came before the First Tier Tribunal on 23 July 2024. Judge Moore dismissed the appeal.
3. The Appellant sought permission to appeal on five grounds:
i. Ground 1: The judge made a material mistake of fact as to the Appellant’s having run a car wash in France, which the judge took as an indication of the Appellant’s ‘resourcefulness’ and lack of risk of re-trafficking;
ii. Ground 2: The judge’s analysis of the Appellant’s ability to reintegrate was based on a flawed comparison of her circumstances before she was trafficked;
iii. Ground 3: The judge’s conclusion that the Appellant could rely on her sister for support was irrational and/or procedurally unfair.
iv. Ground 4: The judge had failed to consider or make adequate findings on the reasonableness of reception and reintegration programmes.
v. Ground 5: The judge had failed to determine whether the Appellant’s undisputed mental health problems rendered her at increased risk of re-trafficking.
4. Permission to appeal was granted by First Tier Tribunal Judge Adio on 13 September 2024. Although the grant of permission only referred expressly to Grounds 1-4, it was common ground before me that the grant of permission was in respect of all five grounds of appeal.
5. The appeal came before me at an error of law hearing on 19 November 2024.
Submissions of the parties
6. On behalf of the Appellant, Mr Gajjar’s submissions followed closely the grounds of appeal. The judge had made a material mistake of fact at paragraph 25 of the determination, as to the Appellant working in a car wash, which undermined her conclusion that the Appellant was ‘resourceful’ and at lower risk of trafficking. The judge had erred in comparing the Appellant’s ability to reintegrate on return, after her traumatic experience of trafficking, with her circumstances prior to departure from Albania. The judge’s conclusion at paragraph 26 that the Appellant would receive support from her sister was speculative and did not engage with the evidence of minimal contact and the Appellant’s having been disowned by their father. In relation to grounds 4 and 5, the judge had failed to consider or make adequate findings in relation to the Appellant’s serious mental health problems, despite significant medical evidence, and her conclusion that reception and reintegration arrangements were a reasonable option for the Appellant was flawed.
7. On behalf of the Respondent, Mr Tufan accepted that the judge had misrepresented the Appellant’s evidence at paragraph 25 of the determination, but maintained that the error was not material. The judge had been entitled to consider the Appellant’s resourcefulness when considering the factors in TD and AD (Trafficked women) (CG) [2016] UKUT 92 (IAC). The judge had referred in detail to the medical evidence and the evidence showed that there was healthcare available in Albania, which was a candidate for EU membership. There had been nothing before the judge which suggested that the Appellant’s sister would not support her, but in any event the background evidence was that support was available for victims of trafficking on return. The judge’s conclusions were open to her.
8. Having heard submissions I gave my decision at the end of the hearing with reasons to follow.
Decision
9. I remind myself that an appellate court should exercise caution when considering whether to set aside a first instance decision from an expert fact-finding tribunal, and should not assume that the first instance judge has misdirected herself or failed to consider evidence unless it is quite clear that she has done so. Further, a first instance determination should not be ‘picked over’ or subjected to detailed textual analysis: HA (Iraq) v SSHD[2022] UKSC 22, 1 WLR 3784 at §72. Bearing the guidance in HA (Iraq) and the principles in Volpi & Anor v Volpi [2022] EWCA Civ 464, [2022] 4 WLR 48 at [2] in mind, and considering the judgment as a whole, I nonetheless conclude that there were multiple errors of law on material issues in the decision of the First Tier Tribunal.
10. When considering risk on return, the judge correctly directed herself by reference to TD and AD (Trafficked women) (CG) [2016] UKUT 92 (IAC) at paragraphs 21 and 25 of the determination. However, her application of TD and AD to the evidence before her was seriously flawed.
11. It was common ground before me that the judge made a mistake of fact at paragraph 25 of the determination, in finding that the Appellant ran a car wash business with her boyfriend in France. In fact, the Appellant’s statement stated clearly that her boyfriend had opened a car wash; she herself had been “encouraged” by her boyfriend to work in a café to pay off his debts, which was what led to her trafficking by his creditor. Whilst the error at paragraph 25 was perhaps not in isolation a significant finding, it was material to the judge’s conclusion that the Appellant had “a level of education and resourcefulness which would enable her to obtain employment in Albania” [§25, 33-34] and hence that the risk of re-trafficking on return was reduced. It also reflects a lack of engagement by the judge with the Appellant’s evidence.
12. In particular, the medical evidence before the judge, which was referred to in the Appellant’s skeleton argument, included two detailed reports from the Appellant’s psychologist, Ms Papa. The reports emphasised the “profound and lasting” effects of the Appellant’s exploitation and trauma on her mental health and expressed deep concern about the “extremely damaging” impact of disruption to her ongoing therapy and the significant risk of deterioration in her mental health on return to Albania, including the risk of suicide. The reports also expressed concern, based on the research conducted by the writer and colleagues, about the availability of mental health treatment in Albania and the Appellant’s ability to access such treatment.
13. Although the judge summarised the medical evidence at paragraphs 10-14, her consideration of the relevance of that evidence to the question of risk on return was limited to paragraph 28, which read in its entirety:
“As regards the Appellant’s health, I note she has been diagnosed with CPTSD and is currently receiving counselling from a psychologist through a charity. I also note she is in receipt of anti-depressant medication.”
and further at paragraph 31:
“I am therefore satisfied that although returning to Albania would disrupt the counselling the Appellant is currently receiving, and that this may have a negative impact on her mental health, counselling treatment and anti-depressant medication is available in Albania.”
14. That was a wholly inadequate response to the evidence before the judge, particularly given the importance of mental health issues to the factors in TD and AD. The judge was of course not bound to accept the psychologist’s reports, but she was required to give careful consideration to the evidence and to give reasons for rejecting it. Her failure to do so was a material error.
15. The failure to engage adequately with the evidence of the Appellant’s mental ill-health also led the judge to a flawed consideration at paragraphs 27 - 31 of whether reception and reintegration facilities would be available to the Appellant on return, a factor identified in TD and AD as relevant to risk. The judge’s findings at paragraphs 31 and 35 were inadequately reasoned and her approach did not fairly reflect the Appellant’s evidence.
16. In relation to the finding at paragraph 26 that the Appellant could rely on support from her sister, I accept Mr Gajjar’s submission that it was speculative; the evidence was that the Appellant’s last contact with her sister had been a year ago. By itself I would not have considered this material to the determination, but in light of my conclusions on the significant errors in the judge’s approach to the medical evidence and risk on return, the issue will need to be re-addressed by the First Tier Tribunal.
17. I conclude that all the grounds of appeal are made out and Judge Moore’s determination contained material errors of law. In the circumstances, the appropriate course is to remit the appeal to the First Tier Tribunal for a de novo hearing with no findings of fact preserved.

Notice of Decision

The decision of the First Tier Tribunal involved the making of a material error of law and is set aside. The appeal is remitted to the First Tier Tribunal for a de novo hearing before a judge other than First Tier Tribunal Judge Moore with no findings preserved.

L Hirst

Judge of the Upper Tribunal
Immigration and Asylum Chamber

21 November 2024