Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000884

First-tier Tribunal No: PA/58544/2023
LP/08868/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 23rd of May 2025

Before

UPPER TRIBUNAL JUDGE FRANCES
DEPUTY UPPER TRIBUNAL JUDGE BURNETT

Between

M R
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mrs R Akther, instructed by Evolent Law
For the Respondent: Ms H Gilmour, Senior Home Office Presenting Officer

Heard at Field House on 25 April 2025

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 is a national of Albania born in 1995. She appeals against the decision of the First-tier Tribunal dated 18 November 2024 dismissing her appeal against the refusal of her protection claim on asylum, humanitarian protection and human rights grounds.

2. The appellant entered the UK in 2020 and claimed asylum on 24 January 2021. On 6 September 2022, she was referred to the NRM and she received a positive conclusive grounds decision (PCGD) on 14 April 2023. On 5 October 2023, the respondent refused her protection claim on the grounds her account was not credible, there was sufficiency of protection and she could internally relocate. The respondent accepted the appellant was a victim of trafficking but did not accept that she was at risk of forced marriage in Albania because her father borrowed money and was unable to pay it back.

3. The First-tier Tribunal Judge (‘the judge’) found that the appellant was a vulnerable witness and referred to the Joint Presidential Guidance Note 2 of 2010 at [14]. It was the appellant’s case that the trafficking did not take place in Albania, however, her father would kill her because he wanted her to marry to discharge a debt. The judge referred to inconsistencies in the appellant’s account and at [18] concluded:
“Her appeal statement is short and does not address any of these inconsistencies. I do not consider it likely that any of this is true. I do not accept that the appellant had a fear of her parents, a man named Koli or his son when she left Albania. I do not find likely (sic) that the father was indebted as claimed or at there was any attempt at a forced marriage. The pandemic could not have made any difference to his ability to repay the debt. The claim that the employer or his son had connections to gangs is spurious. In her narrative to her medical expert, Dr Hameed, she claimed that the man she was to marry kept coming to the house trying to provoke and touch her. She does not explain to what purpose. I am satisfied that she freely left Albania.”

4. The judge concluded that section 8 of the Asylum and Immigration (Treatment of claimants etc) Act 2004 applied. She considered the appellant’s individual circumstances and applied relevant country guidance: TD & AN (Trafficked women) CG [2016] UKUT 00092 (IAC). The judge found the appellant did not have a well-founded fear of being re-trafficked from Albania or suffering with her mental health. The appellant accepted she could obtain medication in Albania. The judge found that support was available to the appellant from her parents, siblings and friends. She concluded the appellant was not at risk of serious harm in Albania and there were no very significant obstacles to integration.

5. The grounds are unnecessarily lengthy. In summary they raise four grounds of challenge.
(1) The judge failed to make any reference to the standard of proof and it was unclear if she applied the lower standard when assessing the appellant’s protection claim.
(2) The judge failed to properly apply TD & AN (Trafficked women) CG [2016] UKUT 00092 (IAC) and assess whether the appellant would be at risk of re-trafficking.
(3) The judge failed to give weight to the medical report in the round following Mibanga [2005] EWCA Civ 367.
(4) The judge failed to consider Article 3 and the risk of suicide.

6. Permission was granted by the First-tier Tribunal on the grounds the judge’s credibility findings were arguably flawed because she failed to direct herself on the standard of proof. She failed to make clear findings demonstrating that she had applied the lower standard. The First-tier Tribunal found the remaining grounds had less merit but granted permission on all grounds.

Submissions

7. In summary, Mrs Akther submitted the judge failed to consider the PCGD in which the appellant’s account was accepted on the balance of probabilities. The judge failed to incorporate the findings in that decision and to show which standard she had applied. Given the different standard applicable under the Nationality and Borders Act 2022 (NABA), the judge erred in law in failing to state anywhere in her decision the standard of proof she had applied.

8. Ms Gilmour relied on the Rule 24 response and submitted the judge was not bound by the PCGD. The respondent accepted the appellant was a victim of trafficking and that she had been exploited in France. The PCGD did not assist the appellant in establishing risk on return to Albania.

9. Ms Gilmour accepted the judge had not referred to the lower standard of proof in her decision but submitted the judge had properly applied country guidance to the appellant’s circumstances. The judge considered all the facts of the case and she highlighted the inconsistencies in the appellant's account. Ms Gilmour submitted it was apparent from the way the judge engaged with the evidence that the judge understood the law and the absence of a clear self-direction did not give rise to a material error of law. In response to a question from the panel, Ms Gilmour submitted that having accepted the appellant was a vulnerable witness the judge had considered the medical report in accordance with Mibanga.

10. In response, Mrs Akther submitted the judge should have placed weight on the appellant’s vulnerability and, post-NABA, the appellant was entitled to know the standard of proof the judge had applied. It was not clear on the face of the decision. The judge failed to consider the risk of re-trafficking and the effect of the appellant’s mental health on her subjective fear.

Conclusions and reasons

11. We find the judge materially erred in law in failing to state the standard of proof she applied in finding that the appellant’s account was untrue. We acknowledge that judges can be expected to know the law unless the contrary is shown. However, post-NABA it was incumbent on the judge to demonstrate that she had properly directed herself on the standard of proof.

12. In this pre-NABA case, there was no clear self-direction on the lower standard and it is not apparent from the judge’s findings at [18] that the judge applied the standard of ‘a reasonable degree of likelihood’ or ‘real risk’. Her conclusions that “I do not consider it likely that any of this is true” and “I do not find likely (sic) the father was indebted as claimed or there was any attempt at a forced marriage” fails to demonstrate that she has not applied the ‘balance of probabilities’ in assessing the appellant’s evidence.

13. We also find that, although the judge concludes the appellant is a vulnerable witness, she fails to demonstrate that she has taken into account the medical report in assessing the appellant’s credibility. The judge failed to properly apply Mibanga.

14. We are not persuaded the judge misapplied country guidance or failed to consider the risk of re-trafficking as pleaded in ground 2. However, the judge’s findings on risk on return are dependent on her assessment of credibility and therefore having found an error of law with respect to grounds 1 and 3, the judge’s assessment of risk on return cannot stand.

15. There was no evidence on the papers to show that the appellant relied on suicide risk before the First-tier Tribunal. The skeleton argument does not identify this as an issue and the appellant does not raise this in her witness statement. We were not directed to evidence in the medical report to support this ground of appeal.

16. Ms Akther’s submitted that the PCGD was not before the judge and she applied to admit this evidence under Rule 15 (2A) of The Tribunal Procedure (Upper Tribunal) Rules 2008. We grant the application because it is apparent from the decision that the judge was aware of the PCGD and she took it into account in coming to her conclusions.

17. The First-tier Tribunal is not bound by the PCGD and it is apparent from the PCGD that the single competent authority found the appellant was exploited in France not in Albania. The judge fell into error in failing to demonstrate she had applied the lower standard of proof to the appellant’s account of forced marriage in Albania.

18. Accordingly, we find the judge materially erred in law in her assessment of credibility and we set aside the judge’s decision. None of the judge’s findings are preserved. We have decided in accordance with paragraph 7.2 of the Practice Statement of 25 September 2012 to remit the appellant’s appeal to the First-tier Tribunal.
19. The Tribunal is directed pursuant to section 12(3) of the Tribunals, Courts and Enforcement Act 2007 to reconsider the appeal at a hearing before a First-tier Tribunal Judge other than First-tier Tribunal Judge Bart-Stewart.

Notice of Decision

Appeal allowed
The decision of the First-tier Tribunal is set aside. None of the judge’s findings shall stand.
The matter is remitted to the First-tier Tribunal for rehearing.

J Frances

Judge of the Upper Tribunal
Immigration and Asylum Chamber

20 May 2025