United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

A black background with a black square Description automatically generated with medium confidence

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-001123
	First-tier Tribunal No: PA/53015/2023 LP/02460/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 24 March 2025

 

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE DAYKIN

 

Between

 

M.S.

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr A Badar (Counsel, instructed by SMA Solicitors)

For the Respondent: Mr A Mullen (Senior Home Office Presenting Officer)

 

Heard at Field House on 18 February 2025

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and 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.              This is an appeal brought, with permission, by the appellant against a decision of First-tier Tribunal Judge Lester ("the Judge") dated 11 January 2024, in which the appellant's protection and human rights appeal was dismissed.

2.              In summary, the appellant is a citizen of Albania. Her claim is based on a fear of her father and former fiancé due to having child with a man out of wedlock whilst engaged to another man of her father's choosing. The appellant is in a relationship with the father of her child in the United Kingdom and was pregnant with their second child at the time of the appeal before the First-tier Tribunal.

 

3.              The Judge found it difficult to reconcile the appellant's description of her father as strict and conservative with the liberal and supportive attitude which he demonstrated by allowing her to study at university, work and repeatedly travel abroad, including after she was engaged [34]. Overall, the Judge did not find the appellant to be a credible witness with respect to the core narrative of her claim. The Judge did not accept, in the absence of any direct threats from her former fiancé or any direct contact with him since 2019 that there was any risk to her or her daughter. The Judge concluded that there was sufficiency of protection from the authorities in Albania [41] and in light of the adverse credibility findings internal relocation is not an issue [43].

 

4.              With respect to the article 8 case, the Judge was not aware of what the status of the father of the child is in the UK and was only told he had applied for indefinite leave to remain. The Judge noted that the child is young, born 2020 and both parents are Albanian, in all the circumstances the Judge concluded it was not against the child's best interests to return to Albania with both parents.

 

Summary of grounds and submissions

 

5.              Mr Badar on behalf of the appellant relied upon the written grounds of appeal which challenge the Judge's conclusions on credibility. The grounds, as amplified in oral submissions contend that:

 

(a)     The Judge failed to apply the guidance in Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ 11 about small inconsistencies by placing too much emphasis on the appellant's witness statement which said her problems started in January 2019 as opposed to November 2019 in her oral evidence.

(b)    The Judge was unfair in this conclusion because the appellant had not been given an opportunity to offer an explanation since it was not a matter raised in the refusal decision, respondent review or cross-examination.

(c)     In any event, the Judge had failed to properly understand the timeline in that her problems did start in January 2019, in terms of the arranged marriage. However, she only found out about the pregnancy in August 2019 and her father only found out about the pregnancy in November 2019 which is when the risk arose. Therefore, she had no basis to claim asylum at an earlier time. The Judge was wrong to criticise the appellant for not claiming asylum earlier.

(d)    The Judge failed to make a finding on whether the appellant was a victim of domestic violence. Mr Badar submitted that credibility should have been looked at through the prism of her being a victim of domestic violence.

(e)     The Judge took an overly narrow approach to domestic violence. The appellant's case being that her father was supportive in respect to education and travel but was also physically abusive to her. It was irrational to find that both could not be true.

 

 

6.              Mr Mullen on behalf of the respondent relied upon the rule 24 response dated 25 March 2024 and contended that there was no error of law. In summary the respondent submitted:

 

(a)     The appellant had been given a fair opportunity to explain the timeline of her claim and why she had not claimed asylum earlier since it was raised in the refusal decision and cross-examination. The Judge was not obliged to put every concern to the appellant. The appellant was represented and she should have dealt with a lacuna in the evidence.

(b)    The problems described in January 2019, namely a forced marriage could conceivably found a claim for protection and so it is artificial to try and distinguish between the problems described.

(c)     It was accepted that the Judge did not make a clear finding on historic domestic violence, that claim is bound up with the overall credibility assessment.

(d)    The grounds do not challenge the finding that there is sufficiency of protection and is determinative of this appeal.

 

7.              In reply, Mr Badar submitted that the evidence needed to be considered in context and the appellant describes her journey from January 2019 when problems began, the pressure mounts and culminated in the pregnancy and her not wanting to get married. Mr Badar suggests that the Judge oversimplified the situation.

 

8.              Mr Badar submitted by reference to Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 that if a point is taken against a witness, that witness must be given an opportunity to respond to it. He further submitted that the credibility findings impact the article 8 and best interests of the child assessment because removal would be to a place where she has experienced violence.

 

9.              In answer to my question about materiality, since even taking the appellant's claim at the highest, there are findings that there is sufficiency of protection that are not challenged in the grounds. Mr Badar submitted that the appellant's case was that her father appeared to have influence with the police [AIR 99-102] and therefore credibility is at the core of the sufficiency of protection assessment.

 

10.          The parties agreed that if I were to find there was an error of law the appeal would have to be remitted to the be heard afresh with no findings preserved. I reserved my decision.

 

Conclusions

 

11.          I agree that the Judge placed too much emphasis on when the appellant said her problems began. There is a difference between the issue beginning with the engagement in January 2019 and the fear giving rise to an asylum claim when her father discovered she was pregnant and made threats in November 2019. The appellant was telling her story and there was not a clear inconsistency in the account of what happened and when, that goes to the core of the account as the Judge considered there to be.

 

12.          The respondent accepts that there is not an explicit finding regarding whether the appellant is a victim of domestic violence, but it is, in my conclusion, implicit in the Judge's decision that this was not accepted. I find that the Judge was entitled to find that there is a tension in the appellant's own evidence [33]-[34] regarding the description of the appellant's father as a strict and conservative man against the description of the appellant's apparent freedom in education, work and independent foreign travel. Although the Judge could have been clearer, I remind myself that I should exercise judicial restraint ( Ullah [43]).

 

13.          In any event, I do not find the failure to make a clear conclusion on whether the appellant was a victim of domestic violence is material because at paragraph 41, although the Judge opens with a reference to the adverse credibility findings, the Judge effectively goes on to treat the appellant's claim at its highest by referring to her having not sought assistance in relation to what she said were previous incidents of domestic violence or the core claim. The Judge concluded that sufficient protection was and is available to the appellant, a finding that is unchallenged in the grounds of appeal.

 

14.          Although Mr Badar submits in his oral submission, in response to a question from me, that the credibility findings affect the assessment of sufficiency of protection and referenced the appellant's answers in the asylum interview at questions 98 to 102. Those answers say no more than the appellant's father knew everyone in Golem, where they are from, and is a member of the socialist party and was involved in meetings and offers security at polling booths. Even if the appellant's evidence were accepted at its highest there is no explanation as to how these factors translate into there being no sufficiency of protection available.

 

15.          Ultimately, I find that the appellant's grounds fail to identify a material error of law. Even if I were persuaded that all of the appellant's grounds are made out, which as above I am not, the Judge found that there is sufficiency of protection available to the appellant and that finding was not challenged in the grounds of appeal. I do not accept that there is any material error in the credibility findings but even if there was, I do not accept that there is any material impact on the Judge's sufficiency of protection conclusions.

 

 

Notice of Decision

 

16.          The appeal is dismissed.

 

17.          The decision of the First-tier Tribunal stands.

 

 

E Daykin

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

18 March 2025