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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-001146
	First-tier Tribunal Nos: PA/53720/2022

 

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 20 March 2025

 

 

Before

 

UPPER TRIBUNAL JUDGE GREY

DEPUTY UPPER TRIBUNAL JUDGE SAINI

 

Between

 

FR

(ANONYMITY direction MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Ms S Panagiotopoulou, Counsel; Sentinel Solicitors

For the Respondent: Mr E Terrell, Senior Home Office Presenting Officer

 

 

Heard at Field House on 7 ^th March 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, a citizen of Albania, appeals against the decision of First-tier Tribunal Judge Clarkson, promulgated on 24 ^th January 2024, dismissing his appeal against the decision to refuse his asylum, humanitarian protection and human rights claims.

2.               The Appellant applied for permission to appeal which was granted by Deputy Upper Tribunal Judge Chamberlain in the following terms:

1. The appellant applied for permission to appeal against the decision of First-tier Tribunal Judge Clarkson, dated 24 January 2024, in which she dismissed the appellant's appeal against the respondent's decision to refuse his protection claim.

2. Judge Handler when refusing permission to appeal stated that Ground 1 disclosed an arguable error of law but did not consider it to be material because the other grounds were not arguable. I find that the other grounds identify arguable errors of law.

3. It is arguable that the Judge has given insufficient reasons at [36] and [37] given her findings that the appellant is well "most of the time". It is arguable that there is insufficient reasoning at [40] when considering sufficiency of protection. She has failed to give reasons for why the "implementation gap" is not applicable to the appellant. Ground 4 identifies a discrepancy in her findings, which is relevant to the support available for the appellant on return. It is arguable that insufficient consideration is given to internal relocation at [39], especially given that Ground 4 is arguable. The Judge has arguably erred in failing to consider the risk of re-trafficking.

3.               The Respondent had not filed a Rule 24 response but indicated that the appeal was resisted.

Findings

4.               At the close of the hearing we indicated that we would reserve our decision, which we now give. We find that the decision discloses material errors of law requiring it to be set aside in its entirety.

5.               Considering the grounds of appeal as pleaded, and in order, the first ground concerns the judge's approach to whether or not the Appellant is a member of a particular social group ("PSG"). We find that the judge erred in her assessment of whether the Appellant is a member of a particular social group, in this instance as a male victim of trafficking or modern slavery, because at §§35-37, the judge finds that in order to qualify as a member of a PSG, the appellant needs to meet both limbs of Article 10(d) of the Qualification Directive. In DH (Particular Social Group: Mental Health) Afghanistan [2020] UKUT 223 (IAC) (" DH"), the headnote indicates that "the Geneva Convention relating to the Status of Refugees 1951 provides greater protection than the minimum standards imposed by a literal interpretation of the Qualification Directive, which directs that "Article 10(d) [of the re-cast Qualification Directive] should be interpreted by replacing the word 'and' between Article 10(d)(i) and (ii) with the word 'or', creating an alternative rather than cumulative test". Thus, the case of DH demonstrates that the interpretation of a PSG is a disjunctive requirement that may be satisfied by the meeting of either Article 10(d)(i), or Article 10(d)(ii). Mr Terrell agreed that DH identified the correct approach to be followed when assessing whether or not a person is a member of a PSG.

6.               In this instance, we find that the judge materially erred as not only did she require the Appellant to meet both limbs of Article 10(d), but she also conflated her assessment of these two requirements and included her assessment of risk in the same breath at §§35-37. Mr Terrell accepted that the judge had conflated the issue of whether the Appellant is a member of a PSG with whether he is at risk from being a member of a PSG but argued that the error was not material. We respectfully disagree for the reasons given. Secondly, notwithstanding the judge notes that the Appellant was not trafficked out of Albania but fled, she interprets the term "victim of trafficking" somewhat literally and thus fails to consider whether the Appellant has an immutable characteristic in being a "victim of modern slavery" and thus falls into the same or a modified particular social group. This must follow given that trafficked persons are exploited or abused or victims of modern slavery, and it would be shortsighted to rule out the Appellant being a member of a PSG merely because he was not trafficked out of Albania but escaped his abusers and then fled the country. In any event, even if the Appellant did not fall into the category of a PSG as he was not trafficked, we find that the judge erred in failing to consider his status as a victim of modern slavery and whether that might show the Appellant has a distinct identity and would be perceived differently by Albanian society as a victim of modern slavery. Furthermore, we find that the judge erred at §35 in conflating the two distinct issues of (i) whether the appellant was a member of a PSG with (ii) the issue of whether any of the risk factors identified in TD and AD ( Trafficked women) CG [2016]UUT 0092 were identified in his case. As highlighted by the Appellant, the findings on the Appellant not being a member of a PSG permeated across and were conflated with the remainder of the judge's assessment, including the risk factors raised in TD and AD. Whilst the risk factors are important to assessing risk on return, they are not germane to an assessment of whether or not the Appellant is a member of a PSG. Therefore, we find that the judge's approach to the PSG and Qualification Directive issues was flawed which infected the remainder of her assessment.

7.               Turning to the second ground arguing a failure to give reasons, we find that the criticisms of §§36-37 are made out. First, it is said that no reasons are given for the finding that (i) the appellant will be able to support himself in Albania on return (ii) there would be an entirely different dynamic with his father on return and therefore not likely to be exposed to the same pressures that caused him to leave when he was a child, and (iii) the Appellant has potential earning power. Notwithstanding that these findings on risk take place at the same time as the assessment of whether the Appellant is a member of a PSG, we find these arguments are just made out as the assessment of the family support available to the Appellant and whether this might alter his risk profile, appears to be based upon the misapprehension of fact that the Appellant is in contact with his father and mother, whereas he is solely in contact with the latter parent (and which is inconsistent with the judge's finding at §30 that the appellant is not in contact with his father). We further find that the judge's assessment of the dynamic between the Appellant and his father potentially changing due to reasons such as his "earning power" is based upon the judge's own views as opposed to the evidence placed before her. The Appellant's counsel pointed out that the father had committed domestic abuse and that Albanian society was patriarchal, all of which are points supported by the subjective and objective evidence that the judge did not take into account. Given that ground four echoes the argument that the judge has erred in respect of finding there is contact with both parents, as opposed to merely the mother, we find that the inconsistency between the findings at §30 and §36 adds to the errors already established and demonstrates further unsafety in the factual basis for the decision-making.

8.               In relation to ground three, the Appellant argues that the judge failed to engage with, and reach findings on, the country background evidence referred to in submissions, setting out the challenges faced by male victims of trafficking on return, including the Asylos Report. This ground is made out. There is no reference in the judge's findings to the Asylos Report, or indeed the Country Policy Information Note (CPIN) from the Respondent, both of which were relevant to the judge's assessment of risk on return and sufficiency of protection. The Appellant also argued that there are inadequate reasons given for why the " implementation gap" referred to in the CPIN and the Asylos Report are "not applicable" to the appellant's circumstances at §40. In defence of this omission, Mr Terrell acknowledged that there is a gap between the policy and the institutions enforcing it but argued that the gap is not particularly relevant because there was no risk to the Appellant in the first place. However, with respect, the implementation gap exists regardless of the facts of any particular case and is acknowledged in the Respondent's CPIN. It is circular to argue that there is no risk without considering the impact of the implementation gap in the first place before reaching a balanced conclusion on risk. In any event, it is striking that the judge concludes that, due to her findings that there is no risk (concluded in the absence of reference to any objective evidence), she then expressly excuses herself from needing to consider whether or not there is sufficiency of protection or availability of internal relocation at §40 of the decision. This ground echoes what is said at ground five, that the judge's findings at §39 in respect of internal flight are wholly inadequate in failing to engage with the country background evidence and the difficulties faced by victims of trafficking attempting to reintegrate. Given that we have noted the absence of consideration of the country background evidence, and given that the judge stated in terms that she would not consider internal relocation, this ground is also made out.

9.               In relation to ground six and the argument that the judge failed to have regard to the Appellant's evidence in his witness statement (at §§10, 13 and 14) that his father had reported the gang (the non-state actors of persecution) to the police who did nothing and that he was visited by the gang the next day who threatened him; as the judge found the appellant to be a credible witness overall, we accept that the judge failed to have regard to a crucial aspect of the Appellant's case in assessing sufficiency of protection (notwithstanding her position that an assessment need not be performed).

10.           Finally, concerning ground seven, the Appellant argued that the judge failed to consider whether he was at risk of re-trafficking from a different gang which was expressly argued at §12 of the Appeal Skeleton Argument. Again, we find that this ground is made out as there is no indication that the judge resolved this issue raised by the Appellant which represents a further material error in the assessment of his protection claim.

11.           Reading the judgment as a whole, we observe that the decision is not clearly structured in its approach to the relevant law or the evidence before the judge, and for example, various assessments such as membership of a PSG and risk take place concurrently and not separately or in any logical order, which leads us to conclude that the decision is confusing and unclear, and does not instil confidence that the judge understood their role and the relevant law or the correct approach, which, also reassures us that the decision should be set aside given the consequences of irreversible harm that may follow from an unsafe decision.

12.           Given the above cumulative errors of law, we find that the decision contains several material errors of law that infect the decision, requiring it to be set aside.

Decision

13.           The appeal to the Upper Tribunal is allowed.

14.           The decision of the First-tier Tribunal is set aside in its entirety for material error of law.

15.           The appeal is to be remitted to the First-tier Tribunal to be heard by any judge other than First-tier Tribunal Judge Clarkson.

 

 

P. Saini

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

17 March 2025