Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000288

First-tier Tribunal Nos: PA/60332/2023
LP/07512/2024

THE IMMIGRATION ACTS

Decision and Reasons Issued:
On the 07 April 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

ES
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr J Collins of Counsel, instructed by Sentinel Solicitors
For the Respondent: Ms S Lecointe, Senior Home Office Presenting Officer

Heard at Field House on 25 March 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, [the appellant] (and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) 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 (and/or other person). Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The appellant is a citizen of Albania born on 16 May 1994. The appellant applied for asylum on 22 August 2019, with that application being refused by the respondent on 26 October 2023. Her appeal against that decision was dismissed by First-tier Tribunal Judge Hussain (“the judge”) on 13 October 2024, after a hearing on 19 September 2024.
2. Permission to appeal was granted by Judge of the First-tier Tribunal Aldridge, on 22 January 2025, on the basis that it was arguable that the judge had erred in law by failing to properly consider the claim of the appellant in respect of the country guidance. Secondly, that the judge failed to have regard to the distinct aspect of the case for the appellant; thirdly that the judge failed to consider the risk from family and relevant country background; fourthly that the judge failed to give adequate reasons for findings made and failed to reach any findings in respect of Article 8 considerations and paragraph 276ADE(1)(vi).
3. The matter came before me to determine whether the First-tier Tribunal had erred in law and if so whether any such error was material and thus whether the decision should be set aside.
Submissions – Error of Law
4. In the grounds of appeal, in the skeleton argument relied on by Mr Collins and in oral submissions, it is argued in short summary for the appellant as follows: it was argued that the judge erred in failing to assess the risk to the appellant of being re-trafficked, with reference to the factors identified in the country guidance case law of TD and AD (Trafficked women) [2016] UKUT 00092 (IAC) (TD and AD). A failure to consider country guidance law is a material error of law and it was submitted that in order to assess whether the appellant would become the victim of re-trafficking at the hands of her ex-partner, or otherwise, the judge would in fact have been required to have regard to the risk factors set out in TD and AD. It was submitted that the judge’s reasoning, that because there was no evidential basis for such a finding, that there is therefore no assessment of TD and AD, was flawed.
5. It was further argued that the judge’s findings were contradictory in his approach to the appellant’s trafficking claim. The judge at [47] indicated that he did not accept that it was H, the appellant’s ex-partner, who brought the appellant to France for the purposes of sexual exploitation. However, the judge recognised that the respondent had not made an explicit finding in this regard and argued that, by implication, the respondent accepted that it was H who was the appellant’s “exploiter”. Therefore the judge indicated that he assessed the claim on the basis that it was the appellant’s ex-partner who had brought her and left her in France. However, the judge’s finding at [50] that because there was no evidential basis for a finding that the appellant would become a victim of trafficking at the hands of her ex-boyfriend, that the judge therefore did not need to make an assessment under TD and AD was flawed and contradicted his previous finding at [47] that the claim would be assessed on the basis that it was her ex-boyfriend who had brought her and left her in France for the purposes of sexual exploitation.
6. Ground 2 submitted that the judge had erred in failing to assess one aspect of the appellant’s claim, namely her fear of being re-trafficked by others due to her vulnerabilities. At [40], the judge found that the “basis of her claim is that if she is returned to Albania, she fears harm in the hands of her former partner and her family”. Paragraph 9 of the Appeal Skeleton Argument (ASA) and, it was submitted, expanded in oral submissions, detailed that part of the appellant’s claim was her fear of being re-trafficked by others on return to Albania and it was submitted that the judge’s failure to assess this aspect of her claim was a material error.
7. It was argued that ground 3, in relation to paragraph [51] of the decision, disclosed an error of law in that the judge found that:
“there is simply no evidential basis on which to infer that the father would have been so outraged by the appellant’s behaviour that some 9 years later on her return , he would come to harm her”.
8. However, the ground noted that there was no reference made to the appellant’s two illegitimate children and no consideration of the strict code of honour in Albanian society and the particular vulnerabilities of women who have children outside marriage. Mr Collins relied on AM & BM (Trafficked women) Albania CG [2010] UKUT 00080 (IAC) which was endorsed in TD and AD including the particular problems faced by women labelled as “kurva”. It was submitted that there was ample country background evidence before the judge, including referencing TD and AD, about the risk emanating from the existence of having children out of wedlock, which the judge failed to have regard to.
9. Ground 4 submitted that no reasons were given for finding at [52] of the determination, that “the absence of any effort” by the appellant to get in contact with her family was indicative of the appellant “not having any subjective fear of her family”. It was submitted that in fact the appellant’s reluctance to get in touch with her family was corroborative of her account of being in fear of them. It was further submitted that no adequate reasoning was given for the findings at [53], with detailed submissions made in relation to the absence of adequate provision of mental healthcare for female victims of trafficking, even at shelters and to the medical report.
10. In respect of ground 5, it was submitted that the judge failed to reach findings in relation to paragraph 276ADE(1)(vi), with the judge’s findings on Article 8 limited to paragraph [54] of the determination. It was further submitted that on the accepted facts, the judge had failed to consider whether the appellant would face very significant obstacles reintegrating in Albania as the victim of trafficking and given her personal characteristics and vulnerability. It was further submitted that there was no adequate consideration of Article 8 ECHR outside of the Immigration Rules with reliance placed on DC (Trafficking, Protection/Human Rights appeals) Albania [2019] UKUT 00351 (IAC).
11. Mr Collins sought permission to argue an additional ground and Ms Lecointe had no objections to the Tribunal considering ground 6, where it was argued that the judge erred at [49] in stating that it was clear that the appellant’s ex-partner was not connected to the police, with the judge finding that ‘I formed the impression that to embellish her account, in oral evidence she added that “he was connected to the police”.’ It was submitted that this was inaccurate with the appellant having stated at interview, questions 59 and 125, her ex-partner’s claimed connections to the police in Albania.
12. There was no Rule 24 response. In oral submissions from Ms Lecointe, for the respondent, it was argued in short summary as follows: Ms Lecointe accepted at the outset that there was a material error in ground 5, in relation to the judge’s failure to consider paragraph 276ADE(1)(vi). In relation to the remaining grounds, Ms Lecointe considered that there were a number of errors but submitted that none of them were material. She submitted in effect that although the judge expressly stated that he need not consider the factors in TD and AD, in fact the judge had considered these factors in substance.
13. It was submitted that the judge considered the relationship between the appellant and her ex-partner at [44] and noted the appellant’s completely incoherent evidence in relation to trips out of the country. The judge noted that the respondent had considered that the appellant was a trafficking victim but had not specified who her traffickers were. The judge at [47] recognised that the respondent had not made an explicit finding and that it may be arguable that by implication the respondent accepted that it was her ex-boyfriend who was the person who brought her to France for sexual exploitation. Ms Lecointe submitted that in outlining the appellant’s historical background, the judge was taking into account the characteristics set out in TD and AD specifically at paragraphs [42], [43] and [44] of the decision and reasons.
14. Ms Lecointe further relied on paragraphs [51] and [52]. Considered cumulatively, Ms Lecointe submitted that this was the judge’s consideration in substance of the factors of TD and AD.
15. In relation to ground 2, Ms Lecointe accepted that there was an error but submitted that it was not material as the judge had considered re-trafficking and it was her submission that the appellant’s case was primarily in relation to her boyfriend and her family and not others and that it was clear from the judge’s findings at [40] and [41] that the judge considered the appellant’s claim to essentially be that she feared harm from her former partner and her family. Ms Lecointe submitted that there was general consideration by the judge of the appellant and her circumstances, and any error was not material.
16. Ms Lecointe submitted on ground 3 that the judge had considered the appellant’s family. In relation to the argument that the judge did not consider the appellant’s potential vulnerabilities, given that she has two illegitimate children, Ms Lecointe submitted that the Appeal Skeleton Argument (ASA) did not build on the appellant’s vulnerabilities as the mother of two illegitimate children. She submitted that therefore the judge was not obliged to give any further consideration as to how the appellant’s father would react to the appellant having two illegitimate children. Although the judge erred in not mentioning the children, it was submitted that there was no material error. In relation to ground 4, and the claimed lack of adequate reasons, Ms Lecointe’s submitted that the findings were adequate.
17. In respect of ground 6, Ms Lecointe again conceded that the judge had erred in his characterisation of the appellant’s evidence, given what the appellant was recorded as having said in the Asylum Interview Record that her ex-partner was connected to the police. However, again she submitted that this error was not material.
Conclusions - Error of Law
Ground 1
18. The judge noted at paragraph [9] of the decision and reasons that the respondent took into account the country guidance case law of TD and AD, with the judge setting out the respondent’s consideration of the factors in TD and AD. The judge again, at [42] stated that he had in mind the decision of the Upper Tribunal in TD and AD and set out headnote (g).
19. However, having rejected the appellant’s credibility, in findings from [44] to [49], the judge at [50] found as follows:
“50. Bearing in mind the above, I have not gone on to consider the risk to the appellant of being re-trafficked against the factors identified in TD simply because there is no evidential foundation for suspecting that the appellant may become a victim of re trafficking in the hands of Hasan
….”
20. Paragraph (h) of the headnote to TD and AD summarises the following guidance:

“(h) Trafficked women from Albania may well be members of a particular social group on that account alone. Whether they are at risk of persecution on account of such membership and whether they will be able to access sufficiency of protection from the authorities will depend upon their individual circumstances including but not limited to the following:

1) The social status and economic standing of her family

2) The level of education of the victim of trafficking or her family

3) The victim of trafficking’s state of health, particularly her mental health

4) The presence of an illegitimate child

5) The area of origin

6) Age

7) What support network will be available.”
21. I bear in mind that country guidance should be followed unless there are very strong reasons supported by cogent evidence justifying not doing so. It is not the case that the fact that the judge did not find the appellant credible, is sufficient basis for the judge failing to go on to consider the appellant’s case including on the basis of the facts as found, against the risk factors in TD and AD.
22. The respondent’s most recent CPIN in respect of trafficking in Albania, July 2024 accepts at paragraph 3.2.3 that there is no reason to depart from the guidance in TD and AD.
23. I do not accept Ms Lecointe’s submissions that in effect the judge’s consideration and rejection of the appellant’s credibility essentially represented the judge’s consideration of the TD and AD risk factors.
24. Firstly the judge did not characterise his findings as such with the findings which Ms Lecointe detailed at [42], [43], [44] and in relation to her family, at [51] and [52] concerned primarily with negative credibility findings.
25. Secondly, the judge failed to consider, having reached those findings, what the appellant’s risk, if any, was against the TD and AD factors. For example the fact, as relied on by Ms Lecointe, that the judge noted that the appellant had gone to university to study, does not in itself, even when considered holistically, represent a consideration of the appellant’s level of education and that of her family and how this affects any risk of being retrafficked, the second factor for assessment in TD and AD.
26. There was an absence in the judge’s findings, of any consideration of either the appellant’s mental health or of the fact she has her two illegitimate children, in relation to her risk of being re-trafficked on return.
27. Again, although the judge, at [52]. made findings that he was not satisfied that the appellant had demonstrated a real risk of harm at the hands of her family, the judge failed to consider, as required by TD and AD, of what support networks the appellant would have available.
28. The error made by the judge is material, notwithstanding the judge’s negative findings on the appellant’s credibility. It cannot be said definitively that the judge would have reached the same decision, had he considered the appellant’s facts as found against the factors in TD and AD. Ground 1 is made out.
Ground 2
29. Whilst Ms Lecointe properly conceded that the judge had erred in failing to consider the appellant’s risk of being re-trafficked by others, I do not agree with her submission, in terms, that the appellant’s case was not made in relation to the risk of re-trafficking by others.
30. Whilst the judge notes that the risk to the appellant is said to be primarily from her family and her ex-partner, as Ms Lecointe conceded, the ASA before the First-tier tribunal clearly states that the appellant’s fear was of being exploited by her family, those who previously exploited her and the risk of being re-trafficked by them or others.
31. I take into account that the appellant, in her witness statement, including at paragraph 7, detailed that she would be alone and at risk with two young children and that she would “not be supported”. The appellant also claimed that she could not get in contact with her family, that she was not educated and not in good mental health and was worried about the safety of her children. The appellant detailed her fears of the police and that they are corrupt. As accepted by Ms Lecointe, the appellant in her asylum interview had detailed her concerns that her ex-partner had connections with the police.
32. At paragraph 12 of the ASA it was argued that the appellant, given that she was a vulnerable single woman with two young children and was not educated and struggled with her mental health and did not have appropriate skills to support herself and was without a support network in Albania, would be at risk of exploitation. It was incumbent on the judge to deal with the risk to the appellant from others, not just her ex-partner and her family. Ground 2 is also made out.
Remaining Grounds
33. In relation to ground 3, again the judge’s failure to specifically consider the appellant’s two illegitimate children and how the appellant would be regarded by her family as a , is a material error. Whilst it is of course not the case that the judge had to accept the appellant’s account. However, he was required to provide reasons for rejecting it.
34. In respect of grounds 4, 5 and 6, whilst ground 4 is the weakest of the appellant’s grounds, given the judge’s almost wholesale rejection of the appellant’s credibility, considered cumulatively, including in light of the Senior Presenting Officer’s concession that the judge materially erred in his consideration of Article 8 and that there were errors of fact in the judge’s consideration of the appellant’s evidence about her ex-partner’s claimed connection with the police, cumulatively I do not agree with Ms Lecointe’s characterisation that the errors are not material.
35. The judge of the First-tier Tribunal fell into material error therefore, such that the decision must be set aside.
36. In terms of disposal, I have taken into account AEB [2022] EWCA Civ 1512 and Begum [2023] UKUT 46 (IAC) paragraphs (1) and (2) of the headnote of Begum state as follows:
“(1) The effect of Part 3 of the Practice Direction and paragraph 7 of the Practice Statement is that where, following the grant of permission to appeal, the Upper Tribunal concludes that there has been an error of law then the general principle is that the case will be retained within the Upper Tribunal for the remaking of the decision
(2) The exceptions to this general principle set out in paragraph 7(2)(a) and (b) requires the careful consideration of the nature of the error of law and in particular whether the party has been deprived of a fair hearing or other opportunity for their case to be put, or whether the nature and extent of any necessary fact finding, requires the matter to be remitted to the First-tier Tribunal.”
37. I have considered the circumstances of the case including the absence of findings in relation to both the appellant’s risk on return as an accepted victim of trafficking, and the absence of assessment of the appellant’s case under the Immigration Rules in relation to Article 8. The nature and extent of the fact-finding necessarily means that it is appropriate to remit this appeal to be re-heard in the First-tier Tribunal, other than before Judge Hussain.

Notice of Decision
(1) The making of the decision of the First-tier Tribunal did involve the making of an error of law.
(2) I set aside the decision.
(3) The decision is remitted to the First-tier Tribunal, no findings preserved.

M M Hutchinson

Deputy Upper Tribunal Judge Hutchinson
Immigration and Asylum Chamber

7 April 2025