Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000770

First-tier Tribunal No: PA/59531/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 30th of April 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE LAY

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
v

VG
(Anonymity Order made)
Respondent

Representation:
For the Appellant: Ms K Ojo, Senior Home Office Presenting Officer
For the Respondent: Ms N Bustami, instructed by NI Legal Services

An oral hearing at Field House on 16 April 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the anonymity of the Appellant is maintained.

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. Although this is an appeal by the Secretary of State, the decision will refer to the parties as they were designated in the First-tier Tribunal.

2. The Appellant’s appeal was allowed by the First-Tier Tribunal in a determination dated 22 December 2024. First-Tier Judge Andrews found that the Appellant faced a real risk of serious harm in her home country contrary to Article 3 ECHR from criminals who had threatened her, that internal relocation would not be safe (paragraph 34 of the determination) and, finally, that the Appellant “would in practice not be able to avail herself” of state protection owing to her mental health problems (paragraph 33).

3. Permission to appeal to the Upper Tribunal was granted by First-Tier Judge Curtis on 12 February 2025.

4. There was no Rule 24 reply served by the Secretary of State.

5. Page references below are to the Composite Bundle produced for the UT hearing in the following format: [CB: XX] [Composite Bundle: PDF page number].

Preliminary issue: extent of the grant of permission

6. FTJ Curtis, in granting permission [CB: 25], had explicitly stated that “it is at least arguable that the Judge failed to resolve a material conflict between the parties as to the effect of her husband’s support on the Appellant’s willingness to engage the police if there were a recurrence of issues from G1 and/or G2. Permission to appeal is therefore granted on the sole ground”.

7. The procedural problem arising from the wording – “on the sole ground” – is that the Secretary of State’s grounds [CB: 21], although consisting of three strands contained within sub-paragraphs “b)”, “c)” and “d)”, were structured in such a way that there was only one over-arching “ground of appeal” per se, namely “failing to give reasons or any adequate reasons for findings on material matters & failing to take into account and/or resolve conflicts of fact or opinion on material matters”. It was not clear from the terms of the grant of permission whether FTJ Curtis was granting permission on the “sole ground”, meaning “Ground 1”, or on the ground articulated at paragraphs 1(c) & (d) only, which both related (mainly) to sufficiency of protection and the issue of the husband.

8. Ms Bustami, on behalf of the Respondent, submitted that the grant of permission was restricted to sufficiency of protection alone and that paragraph 1(b) of the grounds – which was a mixed challenge to the FTJ’s findings on “current risk” and internal relocation - could be disregarded, not least because FTJ Curtis had observed that 1(b) is “in essence, a disagreement with the Judge”, which is often a phrase used to indicate a pleaded ground of appeal which does not articulate an error of law.

9. My conclusion, reflecting Tribunal practice and procedure, is that where a grant of permission is in any way ambiguous, it shall be taken not to be partial/limited. In other words, if the Judge granting permission wants to restrict the grant then he or she must do so in an express and precise way which does not admit of multiple reasonable interpretations.

10. I was grateful to Mr Ojo, representing the Secretary of State, for his helpful and pragmatic approach at the hearing, during which he confirmed that the Respondent in any event no longer sought to pursue the “strand” of the grounds as articulated at paragraph 1(b). This no doubt reflected the reality that (i) at the FT hearing the Respondent had accepted, as recorded at paragraph 5, the problems the Appellant had faced from G1 and G2 in the past and (ii) the FTJ had then gone on to make well-reasoned findings on past and present risk, extending to all of the country.

11. The fundamental issue for the Secretary of State was the next stage of necessary reasoning, ie. FTJ Andrews’ failure to have regard to the Appellant’s husband as a fellow returnee and the impact this should have had on the evaluation of sufficiency of protection, coupled with the FTJ’s incomplete consideration of other relevant factors, such as the Appellant’s age and education. All of this is pleaded within paragraphs 1(c) & (d).

12. While I would have been minded to accept that the grant of permission was not limited, Mr Ojo’s concession on paragraph 1(b) and “current risk” rendered the issue moot.

13. The hearing therefore proceeded on the basis that the central issue for resolution was whether there was an error in the determination with regard to the position of the Appellant’s husband, which was arguably relevant to the rationality of the findings on sufficiency of protection at paragraph 33.

Submissions

14. Mr Ojo submitted that the husband was plainly a relevant consideration when considering sufficiency of protection, given that the FTJ had found that “even if protection from G1 and G2 would, in principle, be available to the appellant, the appellant’s fear and her mental health problems make it very unlikely that she would in practice be able to avail herself of such protection.” In other words, the FTJ found that the key factor was the Appellant’s ability to approach the state to seek protection. The question then arose whether the support of a husband would make a difference to her ability to do so.

15. Mr Ojo stressed that the refusal letter dated 1 September 2023 [CB: 204] made reference to the husband as a positive factor within the rubric of Article 8 ECHR on return. The husband had provided a witness statement with the asylum claim [CB: 89] but had not given evidence at the appeal. He should have formed part of the FTJ’s consideration of the Appellant’s position on return and it was strikingly absent from paragraph 33. He also submitted that, at paragraph 33, the FTJ had explicitly considered TD and AD (Trafficked women)(CG) [2016] UKUT 92 (IAC) without having regard to all of the headnote at paragraph (h) in so far as it indicated factors relevant to a woman’s ability to avail herself of protection on return including support networks.

16. On behalf of the Appellant, Ms Bustami emphasised that there were five key findings by the FTJ which could not be impugned and which were not under challenge: (i) the fact of the Appellant’s significant mental health problems (PTSD and depression), (ii) the events involving G1 and G2 and the danger they would continue to pose, (iii) the series of violent encounters experienced by both the Appellant and her husband, (iv) the fact that the husband had been informed by at least one police officer that G1 and G2 were criminals and (v) that it had been communicated that it was inadvisable to denounce them. Ms Bustami submitted that, on this basis, the FTJ had found that the husband was himself a victim of the past events and this was relevant to consideration of his ability to assist the Appellant in accessing protection.

17. Ms Bustami resisted the Respondent’s contention that TD had been misapplied. She pointed out that TD was Country Guidance for trafficking victims and was addressed to the specific issue of their prospects on return. The Appellant’s case was primarily about the mental health issues and their impact on her ability to seek protection. The FTJ had not accepted other elements of the Appellant’s case, for example the contention that G1 and G2 were part of a wider gang and the account of the interaction with a cousin (paragraph 24), but had then gone on to make clear findings in the Appellant’s favour.
Conclusions

18. With the issues appropriately narrowed by the parties, the task of the Upper Tribunal is to evaluate whether the FTJ erred in the assessment of sufficiency of protection by not having regard to the Appellant’s husband as a support to her in the event that she would need to seek state protection upon return.

19. I agree with Ms Bustami that TD, cited by the FTJ, was an imperfect guide since the Appellant was not herself a victim of trafficking (that claim having been rejected by the Competent Authority at an earlier stage) and thus it was not a Country Guidance that was strictly applicable. Nonetheless, as Mr Ojo correctly submitted, the existence and position of the husband as a dependent on the asylum claim in the UK was, as a matter of common sense and evidence, relevant to the issue of the Appellant’s “ability” to seek state protection - and yet the FTJ appears to have treated the scenario as one in which she would be alone with two children on return. There is no consideration of the husband at paragraphs 31 to 33.

20. This is all the more striking because, in my view, the FTJ has concluded that there is, in general, sufficiency of protection in Albania. Paragraph 32 - which agrees with the Secretary of State that “one policeman’s statement is insufficient to show that the Albanian authorities are overall unable or unwilling to provide protection” - is to be read alongside paragraph 33 when the FTJ states “even if protection from G1 and G2 would, in principle, be available…” The FTJ then grounds the assessment of sufficiency of protection not on the Albanian state’s unwillingness to protect but rather on the Appellant’s inability to seek protection. That is not impermissible, as a matter of reasoning. But what does go wrong is the next stage, which is the failure to have regard to the husband. Ms Bustami presented cogent reasons why the position of the husband would not have led to a different outcome. But, in my view, consideration of the husband as a factor was at least capable of leading to a different outcome and is thus material.

21. I therefore conclude that there was an error of law in the determination but only to the extent that the FTJ failed to rationally evaluate sufficiency of protection at paragraph 33. The other findings of the First-Tier Judge can therefore be preserved. I do not pre-judge the outcome of reconsideration of sufficiency of protection in this appeal.

22. Specifically, the findings at paragraphs 23 to 32 (risk), as well as at paragraph 34 (internal relocation), are all preserved and will form part of the foundation for consideration of the issue of sufficiency of protection. The Respondent’s concessions in the FTT at paragraphs 5 to 8 are also to be noted as of ongoing relevance, as well as the Respondent’s position in this error of law hearing that there was no longer any challenge to the issue of risk.

23. I make one other observation. At paragraph 37 of the determination, the FTJ states that “this conclusion [on Article 3 ECHR] dispenses with the appeal. It is not necessary for me also to make a decision in relation to the appellant’s medical (including suicidality) claim or in relation to her Article 8 ECHR claim”.

24. Section 86 of the Nationality Immigration and Asylum Act 2002 reads as follows:

(1) This section applies on an appeal under section 82(1) ...

(2) The Tribunal must determine—

(a) any matter raised as a ground of appeal ..., and

(b) any matter which section 85 requires to consider.

25. The issue that arises is that, in re-making the decision, the next decision-maker will need to engage with the Article 3 ECHR suicide risk claim and Article 8 ECHR – indeed, the FTJ ought to have done so on the last occasion. It widens and lengthens the scope of the re-hearing.

26. I have had regard to the positions of the parties: Ms Bustami said that the appeal could either remit or remain in the Upper Tribunal. Mr Ojo submitted that the appeal should remain in the UT.

27. I have also had regard to Section 7 of the “Senior President’s Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal” (SPT Ryder, 11 June 2018) and Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC). Remittal is not the usual course but it is appropriate in the circumstances of this appeal, having regard to the nature and extent of the findings to be made, even with preserved findings in hand.

Notice of Decision

The decision of the First-tier Tribunal, which allowed the appeal, is set aside in part and the appeal is remitted back to the First-Tier Tribunal, with the findings at paragraphs 23 to 32 & 34 preserved. The matters for the First-Tier Tribunal on remittal are (i) sufficiency of protection in light of the findings on risk; (ii) the suicide/medical claim under Article 3 ECHR and (iii) Article 8 ECHR.

Taimour Lay

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

18 April 2025