Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001157

First-tier Tribunal No: PA/59749/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

20th May 2025

Before

UPPER TRIBUNAL JUDGE SMITH
DEPUTY UPPER TRIBUNAL JUDGE BEACH

Between

L X
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms C Physsas, Counsel instructed by A J Jones Solicitors
For the Respondent: Ms L Clewley, Senior Home Office Presenting Officer

Heard at Field House on Thursday 8 May 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

BACKGROUND

1. The Appellant appeals against the decision of First-tier Tribunal Judge Dieu dated 9 December 2024 (“the Decision”) dismissing the Appellant’s appeal against the Respondent’s decision dated 18 October 2023 refusing the Appellant’s protection and human rights claims.

2. The Appellant is a national of Albania. He made an asylum claim with his wife and children as dependents on 22 January 2020. He claims to be at risk from [B] who is said to be an influential Albanian businessman. The Appellant says that he borrowed money from [B] to pay for medical treatment for his mother. His mother has since sadly died. The Appellant says that he was unable to repay his debt and that in consequence [B] and his associates forced the Appellant to work for them in the production of cannabis. He was constantly threatened.

3. The Appellant claims that [B]’s associates were subsequently arrested by police and that [B] suspected the Appellant of informing the police. The Appellant left his home area to avoid [B] and his gang who he feared would kill him. He moved his wife and children to Tirana to avoid [B] but in October 2019, his wife told the Appellant that the gang had managed to track them down and were continuing to make threats. Although the Appellant subsequently made contact with one of [B]’s relatives with a view to repaying some more of the debt, the Appellant says that he was forced into further criminal activity on behalf of [B] and his associates.

4. The Appellant claims that his wife was kidnapped by the gang and abused. He and his wife and children left Albania after her release. The Appellant says that after their departure, [B]’s gang had threatened his father. His father is now in the UK.

5. As a result of their experiences, the Appellant and his wife are said to have mental health problems. Judge Dieu accepted that the evidence made out a prima facie case in this regard ([§13] of the Decision). He made a vulnerable witness direction in relation to the Appellant and his wife.

6. The Appellant has also claimed to be a victim of modern slavery. A positive reasonable grounds decision was made on 14 December 2021. A positive conclusive grounds decision was made on 27 January 2025.

7. The appeal turns largely on the credibility of the Appellant’s account albeit the Respondent relies also on sufficiency of protection and internal relocation. The Judge did not accept the Appellant’s account for reasons set out at [§25] of the Decision. The Judge did not go on to consider whether there would be a sufficiency of protection in Albania and/or whether the Appellant could relocate within Albania to avoid the risk which he claims.

8. The Appellant appeals the Decision on three grounds as follows:

Ground 1: the Judge failed to take into account the vulnerability of the Appellant and his wife when assessing their evidence.

Ground 2: the Judge failed properly to engage with the evidence of the Appellant’s wife, again taking into account her vulnerability.

Ground 3: the Judge failed to consider the evidence holistically, placing separate weight on the Applicant’s immigration history and failing to take into account background evidence and the vulnerability of the Appellant and his wife.

9. Permission to appeal was granted by First-tier Tribunal Judge Tozzi on 8 March 2025 for the following reasons:

“..3. At paragraph 13 of the decision, the FtJ makes a vulnerable witness direction in respect of the appellant and his wife. At paragraph 25(g) the FtJ gives limited weight to the medical evidence regarding the appellant. There is no further reasoning about the vulnerable witness direction in respect of the appellant or his wife when assessing the reliability of the evidence. This is an arguable error of law.
4. The FtJ at paragraph 25 purports to assess the evidence in the round but makes a primary finding at paragraph 25(a) that the appellant’s credibility is damaged from the outset by engagement of s8(4) of the Asylum and Immigration (Treatment of Claims etc) Act 2004, this is an arguable error of law.
5. There appears to be no separate assessment of the evidence of the appellant’s wife or any separate credibility assessment of her potentially corroborative evidence, there is no reasoning about weight given to her account that she was also a victim of the traffickers and faced gender-based violence and threats from them. The FtJ made an arguable error in failing to address this evidence when assessing overall credibility of the claim.
6. I am satisfied that the grounds disclose an arguable error of law.”

10. The appeal comes before us to decide whether there is an error of law. If we determine that the Decision does contain an error of law, we then need to decide whether to set aside the Decision in consequence. If we set the Decision aside, we must then either re-make the decision or remit the appeal to the First-tier Tribunal to do so.

11. We had before us a bundle running to 217 pages containing the documents relevant to the appeal before us, and the Appellant’s and Respondent’s bundles before the First-tier Tribunal. That also includes an application to adduce further evidence under Rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008, namely the positive conclusive grounds decision and associated documents. We refer to documents in the bundle as [B/xx] by reference to the pdf page number.

12. There has been no rule 24 Reply filed by the Respondent.

13. Following submissions from Ms Physsas and Ms Clewley, we reserved our decision and indicated that we would provide that in writing which we now turn to do.

DISCUSSION

Ground 1

14. The essential complaint made by the first ground is that the Judge when assessing the credibility of the Appellant and his wife failed to take into account their vulnerability. At [§13] of the Decision, the Judge made a vulnerable witness direction. Thereafter, however, it is asserted that the Judge failed to take that into account when making the adverse credibility findings at [§25] of the Decision. That is said to be contrary to the Joint Presidential Guidance issued by the Tribunals in 2010 entitled “Child, vulnerable adult and sensitive witness guidance” (“the Guidance”). Reference is made in particular to [§10.3] of the Guidance concerning the assessment of evidence where the following is stated:

“Be aware
.. (iii) The order and manner in which evidence is given may be affected by mental, psychological or emotional trauma or disability;
(iv) Comprehension of questioning may have been impaired”

15. Reference is also made in the grounds to the Court of Appeal’s judgment in AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123 where it was held that failure to follow the Guidance would “most likely” amount to an error of law.

16. Specific reference is made in the grounds to what is said by the Judge at [§25(g)] of the Decision as follows:

“Ms Physsas implores me to have regard to the impact that trauma might have on memory and delayed disclosure. Whilst undoubtedly a valid consideration, the medical evidence here does not go far enough. I accept and bear in mind that the NRM have made a positive reasonable grounds decision, but I must have regard to the evidence before me which was not before the NRM. Furthermore, the only medical evidence adduced is a letter from City & West Psychology by Mr Thaci a psychotherapist. There is no CV or the setting out of the author’s qualifications and experience. The letter speaks of PTSD and Depressive Disorder symptoms but gives no diagnosis of such or even where the diagnosis comes from. I give the contents going to the question of credibility, limited weight therefore.”

17. Far from ignoring the Guidance, that sub-paragraph indicates that the Judge was considering the very submission made in the first ground of appeal. As the Guidance makes clear and as emphasised by the Judge in the first sentence of that sub-paragraph, each case turns on its own facts and evidence. In particular, at [§3] of the Guidance the following is stated:

“The consequences of such vulnerability differ according to the degree to which an individual is affected. It is a matter for you to determine the extent of an identified vulnerability, the effect on the quality of the evidence and the weight to be placed on such vulnerability in assessing the evidence before you, taking into account the evidence as a whole.”

18. The medical evidence of Mr Thaci is at [B/104-105]. It consists of a two-page letter dated 29 October 2024 which confirms that the Appellant is receiving “psychotherapeutic interventions” to manage his mental health. Although the Judge accepted when giving the vulnerable witness direction that the Appellant has mental health problems, he was entitled to assess the nature of the vulnerability according to the evidence he had. That accords with the Guidance. That is what the Judge was doing at [§25(g)]. He was entitled to take into account that Mr Thaci had not provided a CV or set out his qualifications and experience. There is nothing to show how he reached the diagnosis of PTSD. Crucially, there is nothing to suggest that the Appellant is unable to recall events due to his PTSD or discuss what he says happened to him - in fact quite the opposite. The letter (and his detailed witness statement) suggests that the Appellant is well able to talk about and recall his experiences.

19. For those reasons, we find there to be no error of law disclosed by the first ground. The Judge took account of the vulnerability of the Appellant and his wife based on what evidence there was about their mental health and how that might impact on their ability to give coherent evidence.

Ground 2

20. Ground 2 focusses on the evidence of the Appellant’s wife which it is said was potentially corroborative of the Appellant’s case. Again, the complaint is made that the Judge failed to consider her evidence having regard to the Guidance but in her case, we can find no medical evidence at all about the impact which it is claimed her experiences had on her ability to give evidence in a coherent manner (there is only very limited evidence that at one point she was taking medication for mental health problems but stopped due to her pregnancy).

21. When considering this ground, we have regard to the witness statement of the Appellant’s wife at [B/60-64]. We accept that at [§14] to [§19] of that statement, the Appellant’s wife does provide some detail of what she said happened to her. Crucially, however, she says at [§20] of the statement that she was initially advised by her cousin to go to the police but when she told her cousin that [B] and his associates had connections, she was advised that it was too dangerous and therefore did not do so. She also says this at [§22] of the statement:

“My husband came to see us on 10th January 2020. I told my husband that I was kidnapped, beaten and abused. I was too scared that he might not want to be with me anymore….”

She says that as a result of what happened to her, her husband decided that they should leave Albania.

22. The Appellant’s account of what happened to his wife appears at [§41] of his statement as follows:

“On 3 January 2020 I was given a package to deliver somewhere in Tirana. I delivered the package as instructed. I did not return to the house immediately. Instead, I went to the house of my wife’s cousin where my wife and son were staying just to see them. I returned to the gang’s house later that day. The group members must have followed me as they knew where my wife was staying. A few days later, on the 7th/ 8th January 2020 [B] and his gang members kidnapped my wife from the streets whilst she had been out shopping. They approached her pretending to be my friends, but my wife knew the truth and was very scared. They showed her the video in which they had mistreated me and forced her to enter the car. They took my wife to the mountains, but she does not know where. They hit her, abused and raped her. They released her at night warning her that if she reported them to the police they would kill us all. I found this out when I went to see my wife again on 10 January 2020 by taking advantage of an errand that the gang had asked me to run. I was to deliver a package to someone in Tirana.”

23. There are some minor inconsistencies between the two accounts but broadly we accept that they are consistent. However, we do not accept that the Judge failed to take into account the evidence given by the Appellant’s wife about what had happened to her. He considered it at [§25(c)] and [§25(e)] of the Decision as follows:

“(c) A further significant aspect of the Appellant’s claim is that [B] is influential and exerts power over the police. That is why, the Appellant told me, he never approached the police. Yet, when [B]’s gang had threatened him they warned him not to contact the police. It seems to me inconsistent that the gang would not fear the police yet also warn the Appellant not to contact them. Furthermore, when the Appellant’s wife gave evidence she told me that she had in fact made a complaint to the police. This does not sit with the contention that the gang had links with them. It is also damaging of the Appellant’s case that nowhere has this been previously mentioned in the documents. This is a significant omission because if true it would be crucial evidence going to lack of sufficiency of protection and that the police are not willing to help. I find that the reason why it was not mentioned previously was because it is not true and an attempt, on the spot, to bolster the asylum claim.
…
(e) The Appellant told me that his wife had told him about the attack on her ‘the same day, in the evening that it happened’, but he also said that the attack happened on the 7th /8th January and he found out on the 10th January 2020. I find that, putting aside specific dates, whether the Appellant was told on the day of the attack itself or a few days later to be significant discrepancy and one that given the significance of the event not likely to be mistaken, if true.”

24. There is nothing in the grounds to suggest that what is recorded in those sub-paragraphs is not what was said. As such, the Judge found there to be at least two inconsistencies in the evidence about what had happened to the Appellant’s wife.

25. First, it was inconsistent with the Appellant’s case that [B] had influence with the authorities that the gang would be concerned about the Appellant and his wife going to the police. The evidence given at the hearing that the Appellant’s wife had in fact reported what happened to her is also inconsistent with her witness statement as set out above.

26. Second, the evidence about what the Appellant was told and when about the attack on his wife is also inconsistent. As the Judge observes, the Appellant said that the attack took place on 7th or 8th January and that he found out about it on 10th January when he went to see her (which is also consistent with his wife’s statement). However, his evidence at the hearing was that he was told on the same day that it happened. Ms Physsas sought to persuade us that there was no inconsistency as the Appellant’s case was that he had learned of what happened to his wife in stages over time. However, that is not what the Judge is saying. The inconsistency relied upon by the Judge concerns when the Appellant learned of the attack and is between his statement and his oral evidence. We have nothing to suggest that what is recorded by the Judge about what was said is inaccurate.

27. From those inconsistencies, we accept Ms Clewley’s submission that the inference to be drawn from the last sentence of [§25(e)] of the Decision is that the Judge was there making a finding that the kidnap of and attack on the Appellant’s wife did not happen. We therefore conclude that there is no error of law disclosed by the Appellant’s second ground.

Ground 3

28. There are a number of complaints made under the heading of this ground which are all asserted to disclose flaws in the Judge’s adverse credibility findings. We take these in order.

29. First, it is said that the Judge wrongly placed primary weight on section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (“Section 8”) and the Appellant’s immigration history. This is based on what is said at [§25(a)] of the Decision as follows:

“The Appellant on his evidence left Albania with the express intent to flee risk of serious harm at the hands of [B]. Yet, when he got to Italy, a designated third safe country, he does not make a claim for asylum. Instead, whilst there, he makes arrangements for false documents to be procured to make his onward travel to the UK. Ending up in the UK is therefore not something that happened inadvertently but by design and with efforted consideration. Yet, when he is finally here his evidence is that he did not tell the British authorities the truth out of fear for his father who was still in Albania. I find his explanation unsatisfactory. It makes little sense to me why the Appellant would go through so much effort to get to the UK only not to tell the truth. Furthermore, it has never been part of the Appellant’s case the [B] had any influence or reach to the UK and so it makes little sense how telling the truth could have or even subjectively may have, endangered his father. His more detailed narrative is now not told until a year after the Appellant had arrived, which I am satisfied would have been ample opportunity to concoct a narrative. It is more likely that the initial account of being an economic migrant is more likely to have been the truth. Even in his own account he is capable of telling a convincing lie in his screening interview, which does his credibility no favours. The Appellant is asked explicitly in his screening interview if there was anyone he feared in Albania and the answer was a clear no. There is not even the hint of his current narrative. I find this to be a significant omission and one which damages the Appellant’s credibility. I am satisfied that the Appellant’s failure to claim asylum in Italy, or raise his basis claim immediately upon arrival in the UK engages s.8(4) of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004.”

30. The fact that this is the first of the Judge’s findings does not indicate that it was considered separately or even as a primary reason for rejecting the Appellant’s credibility. Further, it goes beyond consideration of the issues falling within Section 8. The Judge was considering not only the Appellant’s failure to claim asylum before arriving in the UK (in Italy) and the delay in making the asylum claim when here but also the inconsistencies between what was said in the screening interview and substantive interview. The Judge also there took into account the Appellant’s stated reason for not claiming asylum earlier and gave reasons for rejecting that reason.

31. The second complaint overlaps with this and asserts that the Judge failed to consider the evidence holistically when reaching his findings, in essence that he compartmentalised his reasons. We reject that assessment. At [§26] of the Decision, the Judge reached the following conclusion:

“Drawing all of the above together leads me to the conclusion even on the basis of a reasonable likelihood that the Appellant has not been truthful in his claim. I am not satisfied that the reason why he came to the UK are for the reasons he gave in his substantive asylum interview. I find that the reason why he came were for the reasons he gave in his screening interview and that he is here for economic reasons.”
[our emphasis]

That paragraph makes clear that when finding the Appellant not to be credible in his claim, the Judge was taking account of all the reasons given in the previous paragraph which included the inconsistencies the Judge had found in the evidence he considered.

32. The third complaint is that, when saying as he did at [§25(c)] of the Decision (cited above) regarding [B]’s supposed influence in Albania, the Judge did not take account of background evidence. We accept that the Judge was referred to background evidence including that set out at [§14] of the grounds. However, the fact that there are instances of corruption and direct links between police and traffickers (and that there have been some prosecutions as a result) does not mean that the Appellant is telling the truth about the influence he claims that [B] and his gang had. The Judge gave reasons at [§25(c)] for not accepting the Appellant’s case in this regard. We also observe that at [§15] of the grounds, it is accepted that the Appellant’s wife did say that she had made a complaint to the police (which as we have already indicated was an inconsistency with her written statement). It is also inconsistent with the Appellant’s case about the links between [B] and the police and, crucially, the Appellant and his wife provided no information about this complaint previously or what had become of it.

33. The fourth complaint concerns what is said by the Judge at [§25(d)] of the Decision as follows:

“The Appellant’s oral evidence was that he was forced to take out a bank loan of 8.6 million lek, yet the document he has produced shows an amount of 779,000.00 which is a very significant difference. When this was put to him he initially said he had not ‘seen the contract before’. It was then pointed out that he had signed the contract and his evidence changed to that of not having seen ‘the sum’ before. I find the Appellant inconsistent in his evidence on this and changeable in evidence to suit him.”

34. The complaint made repeats the point made about the Guidance in relation to the Appellant’s vulnerability. As we have already pointed out, there is no medical evidence that the Appellant’s memory was impacted by what he says happened to him. Nor is there evidence that he was unable to discuss what happened due to trauma. The fact that the Appellant says that he was accompanied by traffickers misses the point. If his case was that he did not know what the amount of the loan was either because he could not remember or had not seen the sum involved because he was acting under duress, he could have said that when asked. Instead, he gave a figure in his evidence which was inconsistent with the figure in the document. He did not provide an explanation for that inconsistency or not one which the Judge found to be satisfactory. The Judge was therefore entitled to rely on that inconsistency.

35. We have already referred to what is said at [§25(e)] of the Decision and Ms Physsas’ submission that there was in fact no inconsistency due to the evidence that the Appellant’s wife had disclosed to her husband what happened to her in stages. As we have already found, that is not the inconsistency relied upon.

36. We can deal shortly with the complaint made about the letter from Mr Thaci. The Judge did not reject the credibility of the Appellant receiving treatment (consistently with him making a vulnerable witness direction) but was entitled to give the letter limited weight for the reasons he gave at [§25(g)] of the Decision.

37. Perhaps the Appellant’s strongest point is the one left to last in the grounds namely the impact of there being, at the time of the Decision, a positive reasonable grounds decision in relation to modern slavery. We did not understand Ms Physsas to submit that the Decision contains an error due to the later positive conclusive grounds decision. That was not before the Judge and therefore clearly could not have been taken into account. Ms Physsas said that the Respondent’s decision could not now stand consistently with the conclusive grounds decision but that is something which can be taken up with the Respondent by way of further submissions if the Appellant fails in this appeal.
38. The point we have to consider is whether the Judge has properly considered the evidence he did have namely the positive reasonable grounds decision which is at [B/94-103].

39. We begin by observing that, as is made clear in the positive reasonable grounds decision at [B/101] and as Ms Physsas accepted, that decision is based on suspicion and therefore a low standard of proof. It is only when one gets to the conclusive grounds decision that the balance of probabilities standard is applied. Whilst we accept that this stage has now been reached and that may well have to be taken into account by the Respondent if and when further submissions are made, it is also worthy of note that the NRM is not required at either stage to give reasons for its decision.

40. We accept of course that a decision of the NRM is one of the Home Office albeit exercising a different function and that the NRM will have access to the same documentation and written evidence as is available to the Respondent considering the protection claim. However, the question for us in this appeal is whether the Judge erred in his treatment of the positive reasonable grounds decision. That is dealt with at [§25(g)] of the Decision which we have already cited. As we have indicated in the foregoing, some of the inconsistencies identified by the Judge were between the written evidence and documentation he had and the oral evidence from the Appellant and his wife. The Judge had to determine the appeal based on his findings about that evidence.

41. The Judge took into account that there was a positive reasonable grounds decision. However, as he said at [§25(g)] of the Decision he had to “have regard to the evidence before [him] which was not before the NRM”. Having found inconsistencies in the Appellant’s evidence and that of his wife, therefore, and notwithstanding the positive reasonable grounds decision, the Judge was entitled to find that the account of the events which the Appellant and his wife claimed had occurred was not credible and therefore to dismiss the appeal.

42. We can find no error of law disclosed by the third ground.

43. For completeness, we also note that the Judge gave two further reasons for finding the Appellant’s claim not to be credible. At [§25(b)] the Judge did not accept that there would be no evidence of the use to which the Appellant said that the loan was put, namely payment for his mother’s medical treatment. At [§25(f)], the Judge drew attention to an inconsistency between the evidence of the Appellant and his wife concerning what had become of their passports. Whilst not central to the Judge’s credibility findings, this is another instance of the Judge having taken into account the evidence of the Appellant’s wife (relevant in particular to the second ground).

CONCLUSION

44. For the reasons set out above, the grounds do not disclose an error of law in the Decision. We therefore uphold the Decision with the consequence that the Appellant’s appeal remains dismissed. As above, it is of course open to the Appellant to make further submissions to the Respondent based on the new evidence, namely the positive conclusive grounds decision of the NRM. It will be for the Respondent to consider what impact that has on the Appellant’s case taking into account the findings made by Judge Dieu.

NOTICE OF DECISION
The Decision of First-tier Tribunal Judge Dieu dated 9 December 2024 does not involve the making of an error of law. We therefore uphold the Decision with the consequence that the Appellant’s appeal remains dismissed.

L K Smith
Upper Tribunal Judge Smith
Judge of the Upper Tribunal
Immigration and Asylum Chamber

16 May 2025