Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No.: UI-2024-004945

First-tier Tribunal No: PA/57571/2023
LP/03913/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 4th of April 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MS (ALBANIA)
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms S Cunha, Senior Home Office Presenting Officer
For the Respondent: Mr M Moriarty, Counsel instructed by Lexmark Legal Associates

Heard at Field House and via Teams on 20 March 2025

Although the Secretary of State is the appellant in these proceedings in the Upper Tribunal, for ease of reference I shall hereafter refer to the parties as they were before the First-tier Tribunal.

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 Secretary of State appeals to the Upper Tribunal from the decision of First-tier Tribunal Lester promulgated on 22 September 2024 (“the Decision”). By the Decision, Judge Lester allowed the appellant’s appeal against the decision of the respondent (a) to refuse her asylum claim as a member of PSG comprising female victims of trafficking and (b) to refuse her concomitant humanitarian protection claim based upon her fear of her father, and the father of her child.
Relevant Background
2. The appellant is a national of Albania, whose date of birth is 21 August 1995. She is recorded as having claimed asylum in the UK on 12 June 2022, and she was given a substantive asylum interview on 6 July 2023. As summarised in the reasons for refusal letter (RFRL) dated 20 September 2023, the appellant had entered the UK with her dependent daughter, K, who she said had been born in Albania on 23 August 2018 in a brothel where she was imprisoned and forced to work.
3. She said that she had entered a relationship with a man named Liman, but her family wanted her to marry someone else against her will. So, she had escaped from the family home and had gone to live with Liman in a rented house. After some months, she found out that she was pregnant. When she told Liman about the pregnancy, he threatened to kill her and her daughter, so she left Liman’s house.
4. She met a man at a bus station who promised her a job as a Carer with his sister. She took up this offer, and he drove her to a house two hours away from Tirana. When she arrived at the house, she was locked in a room and made to work as a prostitute. She was kept in the house for four years with four or five traffickers. When she refused to do the work, they threatened to kill her with a knife. She was unable to leave the house, as she was being observed by a guard. While she was working in the house, she gave birth to her daughter, K, and a nurse came and took care of them.
5. On 4 July 2022, she and her daughter escaped with the help of a client, who took them to another house and contacted an agent to prepare some fake documents for them to leave Albania and to come to the UK.
6. Her fear on return was that she and her daughter would be killed by the gang of traffickers from whom she had escaped. Additionally, she feared her father, as her daughter had been born out of wedlock, and she feared the father of her daughter as he had threatened to kill her.
7. In the RFRL, the Home Office accepted that the appellant was a victim of trafficking and modern slavery. The Home Office did not accept that her father wanted to kill her as she had a child out of wedlock, or that the child’s father wanted to kill her as he did not agree with the pregnancy. This was because she had provided inconsistent evidence without reasonable explanation, as well as a lack of detail. There were also some elements of her account which were implausible and inconsistent with internal information.
8. As to her claimed fear of her father, she had not provided a reasonable explanation as to why she believed her father was strict, despite claiming that he allowed her to go out and meet with her friends; and her claim that she had no support from her family was inconsistent with her claim that she had managed to live in the UK supported by her brother.
9. As to her claimed fear of her daughter’s father, she had confirmed that he did not have any connections within Albania, and therefore there was no reason to suggest that he had the means to harm her with impunity upon her return to Albania. Also, she had confirmed that, since the birth of her daughter, he had not made contact with her.
10. Section 8(4) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 was engaged, as she had travelled through Austria and Amsterdam before arriving in the UK.
11. It was not considered that there was a real risk of harm upon return to Albania applying the guidance in TD & AD (Trafficked women) (CG) [2016] UKUT 92 (IAC). Putting her personal circumstances against the case law of TD & AD, it was considered that she would not be at an increased risk of being re-trafficked.
12. Alternatively, it was considered that there would be sufficient protection from persecution in her country of origin. Her fear on return was based on threats of persecution from non-state agents, and she had not provided any evidence to suggest that they had any influence over the state, either on a local or national level.
13. In a further alternative, she could relocate to Vlore, Durres or Shkoder, as the people she feared (namely her father and her daughter’s father) were non-state actors, and she had failed to demonstrate that it was reasonably likely that they had sufficient power or influence to be able to locate her anywhere in Albania.
The Hearing Before, and the Decision of, the First-Tier Tribunal
14. The appellant’s appeal came before Judge Lester sitting in the First-tier Tribunal at Columbus House, Newport, on 8 August 2024. Both parties were legally represented, with Mr Moriarty of Counsel appearing on behalf of the appellant.
15. In the Decision, the Judge recorded the agreement of the representatives that the issues were as stated in the appeal skeleton argument (ASA) and the respondent’s review. The issues in the protection claim were: (i) Did the appellant fall within the scope of the Refugee Convention? (ii) Would the appellant be at risk of persecution or serious harm upon return to Albania? (iii) Was sufficient protection available to the appellant in Albania? (iv) Would internal relocation be available upon return?
16. The Judge’s findings began at para [17]. The Judge observed at para [24] that the Home Office had accepted that the appellant was a victim of trafficking and modern slavery, but the Home Office had not set out the exact details, the evidence of the appellant or the matters which they accepted or refuted as part of this concession.
17. At paras [27] to [37] the Judge addressed the oral evidence which he had received from the appellant. He found that whether her father had ever threatened her was vague. Ultimately, she conceded that her father had simply told her that if she did not marry the man whom he had chosen for her, she would have to leave the address. She said that it was her sister who told her that her father had threatened to kill her. But there was no evidence from the sister. Given that she lived with her brother who was in contact with the family, the lack of evidence from the sister or evidence of an attempt to contact the sister was at best unusual, and the Judge found that it was something he could bear in mind when assessing the evidence in the round. The appellant repeated that her father would feel she brought shame to the family, and so she would be at risk of being killed by him. The Judge observed: “Although her own evidence appeared to be at odds with that.” The Judge went on to find that the appellant’s failure to claim asylum in either Austria or the Netherlands engaged section 8.
18. The Judge proceeded to discuss at some length the main and supplementary reports of the Country Expert, Dr Young, and concluded that they should only be given limited weight. The Judge reached a similar conclusion with respect to the report from a psychiatrist. It was clear that the material provided to the psychiatrist did not include GP medical notes, and so it could be given little weight.
19. At para [66] onwards, the Judge addressed the oral evidence given by the appellant’s brother. He confirmed that, as far as he knew, the people who trafficked the appellant had never been in contact with his family. He also confirmed that he currently provided financial support for her, and he agreed that if she returned to Albania, he would probably be able to support her there.
20. At paras [73] onwards, the Judge addressed the guidance given in TD & AD, and in the CPIN on Albania: Human trafficking, dated July 2024. He directed himself in line with the CPIN that whether a female victim of trafficking was at real risk of persecution or serious harm would depend upon her particular circumstances. The onus was on the person to provide credible evidence that they faced such a risk.
21. Applying TD & AD, the Judge directed himself that re-trafficking was a reality, and whether that existed for an individual claimant would turn in part on the factors that led to the initial trafficking, and on her personal circumstances, including her background, age, and her willingness and ability to seek help from the authorities. Whether women were at risk of persecution would depend upon their individual circumstances including (but not limited to): (i) the social status and economic standing of the family; (ii) the level of education of the victim of trafficking or her family; (iii) the victim of trafficking’s state of health - particular her mental health; (iv) the presence of an illegitimate child; (v) the area of origin; (vi) the claimant’s age, and (vii) what support network would be available.
22. At para [108] the Judge said that point (vii) - the availability of a network of support - appeared to him to be the significant issue in the appeal. He reminded himself of the up-to-date CPIN and concluded: “As set out below, it does appear that appropriate support is available.”
23. The Judge gave his conclusions on the appeal as follows:
137. The issue remains that it is unclear on what basis the respondent accepted half the core claim and rejected the other half when the entire core narrative of the claim was on the same evidential basis.
138. I find that notwithstanding the issues I have noted (as set out above) that it would present an indefensible evidential position to reject in whole or in part the appellant’s claim given the respondent’s concession.
139. In the circumstances I do not address the identified issues in the case singularly as I conclude that the appeal has to be allowed in the circumstances.
The Grounds of Appeal to the Upper Tribunal
24. Samuel Pierce of the Specialist Appeals Team settled the grounds of appeal to the Upper Tribunal on behalf of the Secretary of State. He advanced a single ground of appeal, which was that the Judge had erred in law in failing to give reasons or any adequate reasons for findings on material matters and failing to resolve conflicts of fact or opinion on material matters.
25. He explained that the concession made in the RFRL preceded the positive conclusive grounds decision of the SCA that was made later. The SCA’s decision had not been disclosed in evidence as part of the appeal proceedings, and so the facts of that particular element of the appellant’s claim were unclear. However, the claims relating to the appellant’s father, and the father of the appellant’s child, were separate from her trafficking experiences, so it was unclear why the Judge had failed to resolve these points, yet still allowed the appeal. In short, the fact that the appellant experienced ill-treatment by the persons who trafficked her did not mean that her claimed fear of her father and/or the father of her child, were either true or accepted.
The Rule 24 Response
26. Following the grant of permission to appeal, Mr Moriarty settled a Rule 24 response opposing the appeal, dated 19 November 2024. He submitted that the Judge’s conclusions were tolerably clear and entirely sustainable. Having found that the respondent had failed to provide adequate reasons for accepting half of the appellant’s core claim and rejecting the other half - when the entire core narrative of the claim was on the same evidential basis - the Judge was entitled to find that the appellant’s narrative of her problems could not be artificially separated out. Integral to her experience as a victim of trafficking was that she found herself in a vulnerable position in Albania, when she was forced to flee her family home to avoid being forced into a marriage by her parents, with the effect that she would never have met her traffickers if she had not been put in that position in the first place. The Judge was therefore rationally entitled to conclude that the proper approach to his assessment of the appellant’s credibility to the lower standard of proof was to accept her account in its entirety, rather than to go back through all the individual issues.
27. The grounds of appeal were a perversity challenge based upon the Secretary of State’s disagreement with the Judge’s expert judicial finding that he could not properly reject in whole or in part the appellant’s case in the light of the Secretary of State’s concessions.
The Hearing in the Upper Tribunal
28. At the hearing before me to determine whether an error of law was made out, Ms Cunha appeared before me in person at Field House, and Mr Moriarty attended remotely via Teams. Ms Cunha developed the grounds of appeal, and Mr Moriarty adhered to his Rule 24 Response. After hearing from Ms Cunha briefly in reply, I reserved my decision.
Discussion and Conclusions
29. I bear in mind the observations of Lord Brown in South Bucks County Council -v- Porter [2004] UKHL 33; 2004 1 WLR 1953. His guidance is cited with approval by the Presidential Panel in TC (PS compliance - “Issues-based reasoning”) Zimbabwe [2023] UKUT 00164 (IAC). Lord Brown’s observations were as follows:
“36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in dispute, not to every material consideration…Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”
30. I also take into account the guidance given by the Court of Appeal in Volpi and another v Volpi [2022] EWCA Civ 464 at para [2]:
“i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
vi) Reasons for the judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.”
31. Notwithstanding Mr Moriarty’s skilful advocacy to the contrary, I am in no doubt that the Judge fundamentally misunderstood the effect of the concession made in the RFRL and thereby (a) failed to reach sustainable conclusions on the agreed principal controversial issues in the appeal, and (b) failed to reach an overall conclusion on the appeal that is rationally supportable.
32. The appellant’s core narrative falls into four distinct phases. Phase 1 is her account of the circumstances in which she left her father’s household in Kukes. Phase 2 is the appellant’s account of the circumstances in which she left the rented accommodation where she resided with Liman, a man who was married and had three children by his wife. Phase 3 is the appellant’s account of how she was tricked into prostitution by the promise of a job as a Carer, and internally trafficked within Albania for this purpose. Phase 4 is the appellant’s account of her escape from a condition of modern slavery with her daughter, whom she had brought up in the brothel from the date of her birth until the age of 3, and their journey to the UK with the assistance of fake documents provided by the client of hers who helped her to escape.
33. I accept that the Secretary of State’s unqualified acceptance of Phase 3 of the narrative arguably carried with it an implicit acceptance that the appellant was in a state of vulnerability prior to Phase 3, and indeed that there was a causal nexus between her vulnerability and her becoming a victim of trafficking. But it did not necessarily follow that her account of how she became vulnerable was materially true. Accordingly, the Judge clearly misdirected himself in treating the concession in the RFRL as having the legal effect of constraining him to find that the appellant’s account of Phases 1 and 2 must be true.
34. In addition, even if the appellant’s account of past persecution - by her father, the father of her child, and the traffickers - was true, it was accepted by the parties that there was a live issue as to whether the appellant would be at risk upon return from any of these non-state actors; and if so, whether there would be sufficiency of protection against them and/or against the risk of re-trafficking; and, in the further alternative, whether internal relocation would be a viable option for the appellant and her child.
35. Until the Judge reached the stage of giving his conclusions, he appeared to have recognised this, as he conscientiously addressed the relevant aspects of the oral, expert and background evidence which were essential to the just resolution of the agreed principal controversial issues. But having made a series of findings which logically pointed towards the appeal being dismissed, the Judge illogically treated these findings as being completely irrelevant to his conclusion. Hence, the Judge’s conclusions are not rationally supportable.
36. Accordingly, the Decision is unsafe and it must be set aside in its entirety.
37. I have carefully considered the venue of the rehearing, taking into account the submissions of the representatives. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), I have considered whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statement.
38. I consider that it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process and I therefore remit the appeal to the First-tier Tribunal.
Notice of Decision
The decision of the First-tier Tribunal contains an error of law, and accordingly the decision is set aside in its entirety, with none of the findings of fact being preserved.
This appeal is remitted to the First-tier Tribunal at Newport for a fresh hearing before any Judge apart from Judge Lester.
Anonymity
The First-tier Tribunal made an anonymity order in favour of the appellant, and I consider that it is appropriate that the appellant continues to be protected by anonymity for the purposes of these proceedings in the Upper Tribunal.

Andrew Monson
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

1 April 2025