Upper Tribunal (Immigration and asylum chamber), 2018-01-22, AA/00283/2016
| Jurisdiction | UK Non-devolved |
| Date | 22 January 2018 |
| Published date | 07 February 2018 |
| Hearing Date | 28 November 2017 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | AA/00283/2016 |
Appeal Number: AA/00283/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00283/2016
THE IMMIGRATION ACTS
|
Heard at Stoke |
Decision and Reasons promulgated |
|
On 28 November 2017 |
On 22 January 2018 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
SB
(anonymity direction made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr P Draycott instructed by Paragon Law Solicitors.
For the Respondent: Mr D Mills Senior Home Office Presenting Officer.
ERROR OF LAW FINDING AND REASONS
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This is an appeal against a decision of First-tier Tribunal Judge Morris, promulgated on 4 July 2017, in which the Judge dismissed the appellant’s appeal on protection and human rights grounds.
Background
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The appellant is a national of Albania born on 9 February 1999 who arrived in the United Kingdom on 2 January 2015. The appellant claimed asylum on the same day which was refused by the respondent. The appellant appealed against that decision which came before the Judge. Having noted the evidence with the required degree of anxious scrutiny, and setting out the procedural history and submissions, the Judge sets out his findings of fact at [30 – 110] of the decision under challenge.
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The Judge notes at [31] that the issues in the appeal turned to an extent upon the credibility of the appellant.
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The appellants asylum claim is based upon the Convention Reason of been a member of a ‘particular social group’ (PSG) [34]. The Judge sets out Mr Draycott’s submissions in relation to how the PSG should be defined at [40 (i) – (ii)], and comments upon the same, in the following terms:
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First, by reference to what he termed his “immediate, impoverished and vulnerable family”. I am not satisfied such a group, even if it were to be expanded to include all impoverished and vulnerable families in Albania, can be said to meet the requirement of having to share an innate characteristic or belief, so fundamental to identity or conscience that they should not be forced to renounce it. Neither am I satisfied that any such group can be said to possess a distinct identity in Albania because members are perceived as different by the surrounding society in that country. It is established that the possession of that characteristic or attribute must distinguish the group from society at large. Absent this last factor, the group may be a social group, but it will not be a “particular social group”.
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Secondly, by reference to the appellant having been an attempted victim of trafficking/forced labour by criminal gang. In this case, although I accept as did the respondent, that the appellant was beaten by the three men who were seeking to persuade him to work with them in pursuit of their criminal activities, by reference to decisions such as that in R (on the application of BG) v Secretary of State to the Home Department [2016] EWHC 786 (Admin) and EK (Article 4 ECHR: antitrafficking Convention) Tanzania [2013] UKUT 00313 (IAC), I am not satisfied that that constitutes the appellant being a victim of trafficking/forced labour. Even if I am wrong in that finding, the above points relating to the characteristics of any such group apply equally.
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The Judge was not satisfied the appellant is a member of a PSG and thus found the appellant had failed to satisfy him as to the existence of a Convention Reason.
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In relation to the claim to be entitled to a grant of Humanitarian protection, the Judge finds it necessary to look to the future for the appellant to establish substantial grounds for believing that if return to Albania he will face a real risk of suffering serious harm. The Judge noted the appellant speaks to his family in Albania two to three times a week and has not suggested they have warned him that the gang members he claims to have suffered at the hands of previously continue to look for him or have indicated any continuing interest in him. The Judge finds, however, at [48] that if the appellant were returned to his home area there is a real risk of him suffering serious harm at the hands of the gang that targeted him in the past.
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The Judge thereafter considered paragraph 399C (iii) and whether owing to any identified risks the appellant is unwilling to avail himself of the available protection in Albania [49].
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At [50] the Judge repeats the finding the appellant would face a real risk of suffering serious harm in his home area but that the appellant had failed to satisfy the Judge that if he were returned to Albania the state authorities will be unwilling or unable to afford protection to him. The Judge finds at [54] that no evidence was presented to suggest the authorities knew or ought to have known of circumstances particular to the appellant’s case but were unlikely to provide such additional protection and that the appellant clearly stated on the occasion of the third beating that he chose not to make the authorities aware of his predicament. The Judge finds at [53] that he was not satisfied that the appellant had demonstrated that if he were to return to Albania the authorities would be unwilling or unable to afford protection.
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The Judge addresses the issue of internal relocation from [56]. At [62] the Judge finds the appellant has an aunt who lives with her family in Tirana. Although criminal activity is recorded in the country information in Tirana, the Judge found the appellant failed to satisfy him that with the support from his aunt and her family he would not be able to integrate and establish himself in the capital city safely. The Judge also noted other family members living in Albania. The Judge concludes at [64]:
“In summary of this point, having made the assessment in accordance with AH (Sudan) referred to above, I find that no evidence has been presented to me to suggest that the impact on the appellant of settling elsewhere in Albania will be such that it would be unreasonable to expect him to relocate or that it would be unduly harsh to expect him to do so: i.e. by reference to paragraph 47 of the decision in Januzi, I am satisfied that the appellant can live a relatively normal life in his chosen place of relocation judged by the standards that prevail in his country of nationality generally and I have no reason to believe that he cannot reach such a part of Albania without undue hardship or undue difficulty. As such, it is not unreasonable to expect him to move there. Although there would obviously be difficulties in the appellant in relocating, I am not satisfied that for him to do so would be unduly harsh.
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The Judge did not find the appellant had established that he could satisfy Articles 2 or 3 on protection grounds.
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In relation to the appellant’s health, the Judge considered Article 3 but having reviewed the evidence did not find that returning the appellant would breach Article 3 ECHR.
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In relation to Article 8, the Judge found the appellant unable to succeed under the Immigration Rules. When considering the matter outside the Rules, in the structured manner set out in Razgar, the Judge concluded the decision would amount to a proportionate interference in any protected right.
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The appellant sought permission to appeal on a number of grounds which was granted by another judge of the First-tier Tribunal.
Summary of submissions to the Upper Tribunal
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Mr Draycott submitted there were two issues before the First-tier Tribunal namely that of a sufficiency protection and internal relocation.
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The appellant’s home area is said to be a rural area near the Macedonian border. It is submitted it is not disputed that criminal gangs in Albania are involved in drug trafficking and it was submitted that a gang wished to recruit the appellant to be used in such activities. When the appellant refused to be recruited he was beaten. The appellant’s mother complained to the local police on the first occasion but not the second.
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The appellant claims he was initially approached in March 2014 and then again in September 2014. In December 2014, the appellant was seriously beaten which was found by the First-tier Tribunal Judge to amount to serious harm.
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It was argued on the appellant’s behalf that the First-tier Tribunal Judge found there is a generic sufficiency of protection and then went on to consider if the authorities were unwilling or not to provide protection. As it was...
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