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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2025-000284
	First-tier Tribunal No: PA/50855/2024 LP/03776/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 3 ^rd of April 2025

 

Before

 

UPPER TRIBUNAL JUDGE OWENS

DEPUTY UPPER TRIBUNAL JUDGE ANZANI

 

Between

 

SM

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr E. Willford, Counsel instructed by KBP Law LLP

For the Respondent: Ms S. Mckenzie, Senior Home Office Presenting Officer

 

Heard at Field House on 25 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 appeals with permission against the decision of First-tier Tribunal Judge Raymond ('the judge'), promulgated on 27 November 2024, dismissing his appeal against a decision to refuse his protection and human rights claim dated 29 December 2023.

2.              An anonymity order is warranted, as the appellant has received a conclusive positive grounds decision confirming his status as a victim of trafficking.

Background

3.              The appellant is a citizen of Albania, born on 1 March 2001. He arrived in the United Kingdom ('UK') on 20 July 2018 aged 17. He claimed asylum upon arrival as an unaccompanied minor. His asylum claim was refused on 01 November 2019 with no right of appeal.

4.              On 08 July 2020 the appellant was referred to the National Referral Mechanism ('NRM') as a potential victim of trafficking. On 20 November 2020 it was found that there were Positive Conclusive Grounds for finding that he is a victim of modern slavery. Subsequently on 10 May 2022 he was granted Discretionary Leave as a victim of trafficking and modern slavery, valid until 09 May 2023. On 27 April 2023 the appellant lodged further submissions which gave rise to the respondent's decision of 29 December 2023, which is now the subject of this appeal.

5.              The appellant's protection claim is based on two grounds. First, he asserts that he is at risk of persecution or serious harm due to a blood feud arising from his father's extramarital affair with a woman named EP. In 2016, when he was 16 years old, he was attacked by members of EP's family, prompting him to flee Albania for the UK. Second, he claims to have been trafficked into the drug trade after borrowing money in 2020 to fund his grandfather's eye operation. As a result, he was forced to work in a cannabis factory here in the UK to repay his debt. 

6.              The appellant fears returning to Albania due to the risk of harm from members of EP's family, as well as from those who forced him into the cannabis trade and to whom he remains indebted. He also fears the risk of being re-trafficked upon return. He argues that there is no sufficiency of protection available to him in Albania and that internal relocation is not a viable option due to his specific vulnerabilities.

Position of the respondent before the First-tier Tribunal

7.              The Secretary of State accepted that the appellant is a victim of trafficking and modern slavery but did not accept that he would face a risk of re-trafficking or persecution in Albania. It was argued that sufficiency of protection is available to him and/or that he has the option of internal relocation.

First-tier Tribunal appeal

8.              The judge heard oral evidence from the appellant and, in a decision issued on 27 November 2024, dismissed his asylum claim. While accepting that the appellant suffers from PTSD and Mixed Personality Disorder, as diagnosed by Dr. Gupta [201], the judge found no causal link between these conditions and any trauma experienced in Albania [202]. Citing flaws in the appellant's asylum narrative, the judge questioned his credibility and concluded that he was never trafficked in the UK [205], ultimately determining that the appellant's claims were "purely fictitious" [206].

9.              In the alternative, the judge found that even if he had accepted the appellant's asylum narrative-”both in relation to the blood feud and the fear of re-trafficking or harm from a trafficking gang-”he would still have concluded that sufficiency of protection exists in Albania. This finding was based on  A.D. and Others v. Sweden (Application no. 22283/21) and the unreported Special Immigration Appeals Commission (SIAC) decision in  Berisha v SSHD (SC/191/2022). 

Upper Tribunal appeal

10.          The appellant sought permission to appeal to the Upper Tribunal on the following grounds:

(i)             That the judge erred by making negative credibility findings as to the appellant being a victim of trafficking where this was not disputed by the respondent and his account was accepted by the single competent authority as part of the NRM referral.

(ii)           That the judge erred in rejecting the country expert report of Professor Tolaj on the grounds that its author lacked expertise, where no such challenge was raised by the respondent or the judge during the hearing or in the documents lodged by the respondent.

(iii)         The judge's reasoning regarding Prof. Tolaj's expertise is inconsistent. While acknowledging his capability to assess Albania's social, legal, political, and medical conditions, the judge simultaneously dismisses the weight of his evidence based on his medical background, without clear justification.

(iv)         The judge erred in rejecting the credibility of the appellant's evidence without any, or any adequate, consideration of Dr Gupta's medico-legal report which was material to the assessment of credibility.

(v)           The judge failed to adequately address the question of whether there exist very significant obstacles to the appellant's integration into society upon return to Albania.

(vi)         The judge failed to address relevant background evidence including the Asylos Trafficking report 2024 and relevant CPINs.

(vii)       The judge's erred in his assessment of sufficiency of protection by relying on irrelevant caselaw, including that of a former Albanian prime minister under house arrest, while failing to engage with the most relevant Country Guidance caselaw.

(viii)     The judge failed to properly engage with Dr Gupta's expert evidence on the appellant's mental health, overlooking the risk of deterioration and suicide upon return to Albania, instead prioritising an unsubstantiated theory that the appellant is merely an economic migrant.

11.          A further ground of appeal was pleaded by Mr Willford as to an alleged failure by the judge to address whether the appellant qualified as a member of a Particular Social Group (PSG) under the Refugee Convention based on his status as a male victim of trafficking. This ground of appeal was withdrawn, we consider rightly, in light of what is recorded at [10] of the judge's determination.

12.          Permission was granted by First-tier Tribunal Judge Saffer on 21 January 2025. Judge Saffer concluded that it is arguable that in going behind an agreed fact, namely the appellant being a victim of trafficking, and instead finding the claim to be a fabrication, the Judge materially erred and this infected the rest of the findings. Permission was granted on all grounds.

13.          We heard submissions from both parties and, at the end of the hearing, we reserved our decision. It is not necessary to summarise the oral submissions because they are a matter of record, but we will refer to any relevant arguments in our decision.

Decision and reasons

14.          We have considered the First-tier Tribunal decision, the documentation that was before the First-tier Tribunal, the grounds of appeal, and the submissions made at the hearing, before coming to a decision in this appeal. Having carefully considered the arguments made by both parties we are satisfied that the judge's decision is vitiated by a material error of law. We will outline our reasons below.

15.          The Supreme Court in HA (Iraq) v SSHD [2022] UKSC 22 reiterated that judicial caution and restraint is required when considering whether to set aside a decision of a specialist tribunal. In particular, judges of the specialist tribunal are best placed to make factual findings. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v SSHD [2007] UKHL 49 and KM v SSHD [2021] EWCA Civ 693. Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v SSHD [2020] UKSC 49. When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v FTT (SEC ) [2013] UKSC 19. We have kept these considerations in mind when coming to our decision.

Ground 1

16.          The respondent's decision letter acknowledges that an NRM referral was made on 8 July 2020, resulting in a positive conclusive grounds decision on 20 November 2020. Following this, the respondent granted the appellant Modern Slavery Discretionary Leave, valid until 9 May 2023. We see no reference in the respondent's decision letter to any challenge to the credibility of the appellant's claim to be a victim of trafficking.

17.          We were provided with a witness statement from Mr. Rajiv Sharma, counsel for the appellant at the First-tier Tribunal hearing, along with his handwritten notes from the proceedings. Additionally, we received detailed hearing notes from the Presenting Officer. Neither set of notes indicates that the appellant's credibility as a victim of trafficking was challenged during the hearing, despite him being cross-examined by the respondent. Furthermore, there is no record of the judge raising any queries or suggesting that the appellant's credibility as a victim of trafficking was in dispute. When pressed on the matter, Ms. McKenzie conceded that neither the decision nor the representatives' notes contained any reference to such a challenge.

18.          In the 'Findings' section of his decision, the judge initially acknowledges the positive conclusive grounds decision confirming that the appellant had been trafficked. He acknowledges at [153] the two-stage procedure provided for by the NRM to determine whether someone was a victim of human trafficking, involving an initial decision on whether there were reasonable grounds to believe that a person was a victim, and a subsequent conclusive decision made on the balance of probabilities. However at [154] he states as follows:

154. But I have also had regard to it having been established that it is for this Tribunal, which is better equipped and placed to do so than the competent authority, to make pertinent findings on whether an Appellant was a victim of trafficking, whilst giving proper consideration and weight to a previous decision of the authority, (which as I have noted has not been submitted in this appeal and neither has any evidence on the criminal prosecution which gave rise to the referral to the NRM), when determining the relevant factual issues for itself on the evidence before it. That it is in no way bound by the trafficking decision reached under the NRM, and nor does it have to look for public law reasons why that decision could be flawed (MA (Pakistan) v SSHD [2020] UKSC 9 at para.11).

19.          The judge goes on to find the appellant's account of having been trafficked to be 'purely fictitious' [206] .

20.          Mr Willford did not dispute that the judge was not bound by the trafficking decision reached under the NRM. His challenge in Ground 1 was one of fairness; the appellant was entitled to know the parameters of the appeal. The respondent had not disputed that the appellant was a victim of trafficking. His claim for international protection had not been refused on the grounds that he was not such a victim, but instead because it was not accepted that he would not face a risk of re-trafficking or harm in Albania. The respondent had also not pursued the case before the First-tier Tribunal that the appellant was not a victim of trafficking in the course of cross-examination.

21.          We are satisfied that the judge erred in concluding that the appellant's trafficking claim was purely fictitious, despite the positive conclusive grounds decision stating otherwise. The appellant's credibility was not challenged in the refusal letter, nor was it raised as an issue at any stage before or during the First-tier Tribunal hearing. The Single Competent Authority had already assessed his claim on the balance of probabilities and accepted his credibility. The appellant reasonably prepared his appeal on the basis that his victim of trafficking status was not in dispute, particularly given that the respondent had previously granted him discretionary leave on that very basis.

22.          In our view, given that this element of the appellant's account had been accepted as truthful, it was irrational for the judge to reject it as fictitious without at least raising concerns with the parties during the hearing. We do not agree with Ms McKenzie that the judge was entitled to dismiss this element of the claim simply due to a lack of evidence presented by both parties. The appellant was entitled to clarity on the scope of the appeal, and if the judge considered it necessary to review the Conclusive Grounds Decision or related documentation, he should have requested this before or during the hearing.

23.          We agree with Mr Willford that it was procedurally unfair of the judge to make negative credibility findings on this element of the appellant's claim without it being put to the appellant that he was not telling the truth during the appeal itself. This fundamental error undermines the decision as a whole.

Grounds 2 & 3

24.          We consider that Grounds 2 and 3 overlap. Both concern the judge's treatment of Professor Tolaj's country expert report. In his report, Prof. Tolaj concluded that the appellant would be at risk of exploitation by organized crime groups in Albania, that internal relocation would not mitigate this risk, and that the Albanian authorities could not provide sufficient protection.

25.          The judge considered Prof. Tolaj's report at [98]-[108] and concluded at [105] that the professor had not identified his expertise in accordance with the Practice Direction: Immigration and Asylum Chambers of the First-Tier Tribunal and the Upper Tribunal. He further stated at [215]:

I find that this decision, and the objective material it relies upon, by far outweighs any reliance that can be placed upon the country report of Professor Ilir Tolaj, whose expertise in the field, as I have explained, has not been established, and who concludes that the Appellant would be without sufficiency of protection upon return.

26.          Ground 2 challenges the judge's conclusions on the basis that the respondent did not raise any objections to the expert's credentials during the hearing, nor was there any indication from the judge that he intended to assign limited weight to Prof. Tolaj's report. However, the respondent disputes this, asserting that the Presenting Officer did raise concerns about the expert's qualifications during submissions, as recorded in the Presenting Officer's notes from the First-tier hearing. 

27.          We do not find procedural unfairness here in the same manner as identified in Ground 1. Mr Willford accepted that the appellant's bundle, including Prof. Tolaj's report, was filed late, preventing the respondent from reviewing it prior to the hearing. As a result, the hearing was the first opportunity for the respondent to raise concerns about Prof. Tolaj's expertise. The Presenting Officer's notes confirm that objections were made regarding the professor's qualifications, and the appellant's representative had the opportunity to respond before the hearing concluded or to request additional time to address these concerns. We do not consider that the appellant's representatives were unfairly denied the opportunity to make submissions regarding Prof. Tolaj's competence as claimed. We do not consider that Ground 2 is made out.

28.          We are however concerned by the judge's apparent inconsistent reasoning regarding Prof. Tolaj's expertise, as highlighted in Ground 3. While acknowledging at [102] that Prof. Tolaj holds the academic credentials to 'more than enable him' to make a credible academic survey of the objective evidence on Albania, including social, legal, political, and medical, it is unclear why the judge then concludes at [103] that he does not have the requisite credentials to draw conclusions as would carry sufficient weight in helping the Tribunal in the context of an asylum appeal. This contradiction is not adequately explained.

29.          Prof. Tolaj is an Associate Professor and Head of the Department of Infectious Diseases at the Medical Faculty of the University of Pristina, with over 20 years of experience lecturing in infectious diseases at both undergraduate and postgraduate levels. His CV confirms his role as a senior expert for the Balkans with Nestingminds Consulting.

30.          While the judge raises some criticisms of Prof. Tolaj's report at [104], these do not reconcile the contradictory findings in the preceding paragraphs. The judge fails to adequately explain why Prof. Tolaj is considered capable of conducting a credible academic survey yet not qualified to draw conclusions that would assist the Tribunal. We find this lack of clear reasoning undermines the judge's decision further.

Grounds 4 & 8

31.           We also find overlap between Grounds 4 and 8, with both concerning the judge's assessment of Dr. Gupta's medico-legal report.

32.           In Ground 4 the appellant contends that the judge erred in rejecting the credibility of the appellant's evidence without any, or any adequate, consideration of Dr Gupta's medico-legal report which was material to the assessment of credibility. We note that at [201] the judge accepts that the appellant suffers from PTSD, and Mixed Personality Disorder, as was found to be the case by Dr Gupta. However at [202] he concludes that these conditions 'have no causal link with any trauma he suffered while in Albania'. This finding appears to follow on from the judge's earlier rejection of the credibility of the appellant's account in [146]-[200].

33.           The structure of the decision suggests that the judge assessed the appellant's credibility first, without reference to Dr. Gupta's expert opinion, and only afterward dismissed the report's causal findings. This approach is legally flawed, as established in  Mibanga v SSHD [2005] INLR 377. However an equally fundamental issue arises from the judge's failure to consider how the appellant's evidence was affected by the fact that he was a vulnerable witness.

34.           We are satisfied that the grounds as pleaded and amplified cover this error and if not, we are satisfied that the failure to substantively follow the Joint Presidential Guidance Note No. 2 of 2010 on Child, Vulnerable Adult and Sensitive Appellants is a Robinson obvious ground of appeal in an asylum appeal where credibility findings are all important.

35.           The Presenting Officer's notes from the First-tier hearing confirm that the appellant's representative requested the appellant be treated as a vulnerable witness, which the judge granted. The notes also indicate that special measures were agreed upon regarding how questions would be asked. The judge himself stated:

I am going to treat you as a vulnerable witness, this psychiatry says you have serious PTSD and anxiety disorder, please understand when a judge treats a person as a vulnerable witness... so this is a fair hearing... which means I am happy to take pauses in proceeding when normally I will not be doing so if pauses will feel you will not be doing so... I have to take that into account assessing your credibility and ability to give evidence...

36.           Yet, despite this exchange at the hearing, the judge's decision makes no reference to these considerations.

37.           The purpose of the Presidential Guidance Note was explained in  SB (vulnerable adult: credibility) (Ghana) [2019] UKUT 398 (IAC), which held that treating an appellant as vulnerable serves two key functions: (1) ensuring optimal conditions for giving evidence and (2) taking vulnerability into account when assessing credibility.

38.           Ms McKenzie contended that the judge was not required to accept the appellant's credibility solely because he was a vulnerable witness, citing  SB (Ghana). However, that is not the issue in this appeal. The concern is that, while the judge agreed to treat the appellant as a vulnerable witness at the hearing, he failed to apply this approach in his written decision. There is no indication that the Joint Presidential Guidance was followed or that the appellant's vulnerabilities were factored into the credibility assessment.

39.           This appellant had the following characteristics. He arrived in the United Kingdom as an unaccompanied minor at the age of 17. He was accepted to be the victim of trafficking by the Competent Authority. He suffers from PTSD and Mixed Personality Disorder. In our view, the judge's negative findings on credibility are unsustainable because there is nothing to indicate in the decision that the judge took these vulnerabilities into account when assessing the appellant's evidence. We note that the Court of Appeal in AM (Afghanistan) v the Secretary of State for the Home Department [2017] EWCA Civ 1123 [2018] held that where there is a failure to follow the Joint Presidential Note and to make due allowance for an individual's vulnerability it will most likely be a material error of law.

40.           Additionally, as argued in Ground 8, the judge failed to properly engage with Dr Gupta's expert opinion on the appellant's mental health and vulnerabilities. Dr Gupta described the appellant's symptoms as "highly debilitating," causing "significant emotional distress and social withdrawal." He further assessed the appellant as "an extremely vulnerable person whose mental state can significantly deteriorate in a formal environment," and warned that his "mental health and risks are highly likely to worsen if he is deported to Albania." The judge appears to have largely overlooked these findings.

41.           Regarding suicide risk, the judge concluded at [226]:

I find in the light of the various suggestions referred to above from the bodies who have been supporting the Appellant, and including Dr Gupta, that he has not contemplated suicide. And given that the experiences which could have led him to contemplate such do not derive from anything he suffered in Albania. 

42.           This conclusion is inconsistent with Dr Gupta's report, which states that the appellant "harbours suicidal thoughts" and that his "risk of suicide is highly likely to increase" if returned to Albania. The judge fails to provide adequate reasons for disregarding this expert evidence.

Ground 5

43.          The appellant argues that the judge failed to properly assess whether there are  very significant obstacles to his integration into Albanian society upon return. We consider this ground can be addressed succinctly. At [228], the judge concluded:

I find that having been in the UK only since July 2018, while still only just a minor, and as an economic migrant, there are no elements to the private life of the Appellant which could be engaged by reference to PL.5.

44.          Paragraph 5.1(b) of Appendix Private Life requires the judge to consider whether very significant obstacles exist to the appellant's reintegration into his country of origin. This assessment should be holistic, taking into account factors such as the appellant's mental health conditions, history of trafficking, and lack of familial or social support networks in Albania. We find that the judge's erroneous assessment of the appellant's credibility and risk, as established in the above and subsequent grounds, inevitably infect the judge's assessment under PL5. Given the errors identified, we conclude that the judge's findings under paragraph 5.1(b) of Appendix Private Life are unsustainable.

Grounds 6 & 7

45.           We consider that Grounds 6 and 7 are closely linked and can be addressed together. The appellant contends that the judge erred in assessing the sufficiency of protection by (i) relying on irrelevant case law, (ii) failing to engage with the most relevant Country Guidance case of  TD and AD (Trafficked Women) [2016] UKUT 92, and (iii) omitting reference to the 2024 Asylos Trafficking Report.

46.           We are not persuaded that the judge materially erred by failing to reference the 2024 Asylos Trafficking Report. A judge is not required to explicitly address every piece of evidence or objective report submitted in an appeal. It is, however, well established that decision-makers must follow Country Guidance determinations unless there is a valid reason to depart from them ( SG (Iraq) v Secretary of State for the Home Department [2012] EWCA Civ 940).

47.           In this case, the most relevant Country Guidance decision was  TD and AD, which specifically addresses the risks of retrafficking and the sufficiency of protection available to victims of trafficking in Albania. Despite its direct applicability, the judge made no reference to  TD and AD when considering these issues. Instead, he relied on  A.D. and Others v. Sweden and the unreported SIAC decision in  Berisha v SSHD. The judge's reliance on  Berisha is particularly problematic. That case concerned the exclusion of Mr. Berisha, a former Albanian president and opposition leader, from the UK on the grounds of criminality and corruption. At [218], the judge inferred from  Berisha that the Albanian authorities are willing and able to combat organised crime and protect their citizens.

48.          It is unclear to us how Mr Berisha's experience under house arrest as a former head of state has any bearing on the circumstances of a young male victim of trafficking such as this appellant. The judge's reliance on the  Berisha case is, we find, irrational. The case does not establish any relevant legal principles applicable to this appellant's case. The judge's reliance on an unrelated case without a principled basis represents a flawed approach, leading to an unsound conclusion that undermines the coherence of the determination.

49.          The judge has provided no valid justification for departing from the guidance in  TD and AD. His failure to properly evaluate the appellant's risk of retrafficking in accordance with that authority amounts to a material error of law. This error also directly impacts his conclusions on internal relocation and sufficiency of protection, making it fundamental to the outcome of the appeal.

50.          For these reasons, we conclude that the decision contains material errors of law. Accordingly, we set aside the decision in its entirety.

Disposal

51.          Having identified an error of law, we must now determine whether to retain the appeal in the Upper Tribunal or remit it to the First-tier Tribunal. In either case, we must also consider whether any of the judge's findings should be preserved.

52.          Mr Willford submitted that the appeal should be remitted in its entirety whereas Ms McKenzie submitted that the appeal was suitable for remaking. Having found that the error of law in this appeal includes procedural unfairness, we find that the proper course of action is to remit the appeal to the First-tier Tribunal to be heard de novo.

Notice of Decision

The decision of the First-tier Tribunal involved the making of an error of law.

The decision of the First-tier Tribunal is set aside in its entirety with no findings preserved.

The appeal is remitted to the First-tier Tribunal to be heard de novo before a judge other than Judge Raymond.

 

S. Anzani

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

01 April 2025