Upper Tribunal (Immigration and asylum chamber), 2018-04-11, PA/03738/2016
| Jurisdiction | UK Non-devolved |
| Date | 11 April 2018 |
| Published date | 27 April 2018 |
| Hearing Date | 06 April 2018 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/03738/2016 |
Appeal Number: PA/03738/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03738/2016
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision and Reasons Promulgated |
|
On 6 April 2018 |
On 11 April 2018 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
PA
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr P Lewis - Direct Access.
For the Respondent: Mr E Tufan Senior Home Office Presenting Officer.
ERROR OF LAW FINDING AND REASONS
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The appellant appeals with permission against a decision of First-tier Tribunal Judge Khawar promulgated on 17 May 2017 in which the Judge dismissed the appellant’s protection and human rights claim.
Background
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The appellant, a citizen of Albania, was born on 28 January 1998. At the date of the hearing before the First-tier Tribunal he was 19 years of age.
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The appellant claimed to have left Albania on 10 January 2014 with the assistance of an agent and to have arrived in the United Kingdom on 17 January 2014. The applicant claimed asylum on arrival although his claim was refused in the refusal letter dated 7 November 2014. The applicant was granted Discretionary Leave as an Unaccompanied Asylum-Seeking Child from 7 November 2014 to 28 July 2015. On 24 July 2015 the appellant made a further application which was refused by the respondent on 22 March 2016, which is the decision under appeal.
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The Judge considered the appellant’s case together with the evidence provided in support thereof before setting out findings of fact at [27 – 53] of the decision under challenge which can, inter alia, be summarised in the following terms:
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The appellant did not appeal against the original refusal of his asylum claim dated 7 November 2014 complaining in his witness statement of 21 July 2015 inadequate/poor representation and difficulties in relation to the interpreter arose, although no such issues were raised in the appeal either in the appellants evidence or submissions made by his representative and there was no formal complaint to the Law Society in relation to inadequate/poor representation [28 – 29].
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The appellant’s representative did not address the Judge on the substantive basis of the respondent’s reasons for refusal; in particular the Judge was not addressed on the principal reasons for refusal of the Asylum/Articles 2 and 3, humanitarian protection, issues of adequacy/sufficiency protection and reasonable internal relocation available to the appellant on return to Albania and was not addressed in relation to potential Article 3 medical grounds. No challenge was raised in relation to the adequacy of medical psychiatric treatment being available in Albania and the appellant served no objective evidence to challenge the analysis of the Secretary State in paragraphs [86 – 106] of the current reasons for refusal letter particularly those relating to the risk of suicide and availability of adequate medical treatment for mental health problems [30].
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The Judge was only addressed on article 8 private life in which the psychiatric report of Dr Dhumad was prayed in aid to establish the appellant has a genuine subjective fear of risk on return from his father and is at risk of suicide [31].
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The Judge notes the conclusion of the medical report set out by the author at paragraph 16.5 [33 – 34].
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The Judge noted in the reference in the report to a Sri Lankan appellant and finds the obligation of the doctor was to provide a subjective assessment of the appellant. The Judge did not know to what extent the sentiments expressed genuinely applied to the appellant rather than some other individual, warranting only limited evidential weight being attached to that evidence [35].
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In any event, the Judge notes that at no point during the proceedings has the respondent sought to challenge the appellants claim to have been violently and sexually abused by his father since approximately age of fourteen for a period of approximately two years before he left Albania in January 2014. The Judge notes the appellant has not been doubted in relation to his factual claims by other experts including a Child Psychologist who indicated the appellant received ten sessions of counselling or from the appellants GP [36].
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The Judge notes there is no evidence to challenge the respondent’s objective evidence set out at [91] of the refusal letter in relation to adequacy of the psychiatric care facilities available in Albania; leading to it being found “therefore although the Appellant has (as detailed in Dr Dhumad’s Report) a genuine subjective fear of potentially being killed by his father upon return to Albania, such fear is not objectively well-founded due to the availability of adequacy protection and/reasonable internal relocation and the availability of adequate medical treatment” [37].
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In considering article 8 ECHR, the Judge finds there was no reliable evidence to establish that the appellant is gay for the reasons set out at [44 -45].
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The Judge finds that the question of whether the appellant is gay is arguably academic as there is no evidence that the appellant would suffer article 3 ill treatment/persecution upon return simply by virtue of the fact that he may be gay. The Judge accepts there is evidence to establish discrimination against gay individuals within the community in Albania but no evidence to suggest that such discrimination crosses the article 3 threshold [46].
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The Judge did not find the appellant is in any relationship with a partner and has not established family life in the United Kingdom giving rise to a finding there is no article 8 protected family life [48].
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The Judge accepts the appellant has a private life in the United Kingdom and on that basis, that article 8 is engaged. The Judge accepts that the appellant has undertaken a role within the UK and as such, and to a limited degree that the appellant has contributed to society [49-51].
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The Judge reminds himself of the five-stage process set out by the House of Lords in Razgar and in relation to the fifth question, that of the proportionality of the decision, finds at [52] “as to the final question, that of proportionality, I rule in favour of the Respondent. I have heard no evidence to suggest that the type of private life established by the Appellant in the United Kingdom, could not reasonably be developed upon return to Albania. In my judgment there will be nothing to prevent the Appellant from volunteering his services to some charitable organisations involving children in Albania upon return - in the manner that he has undertaken over the past year or so, in his involvement with the above football team in the UK”.
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The appeal fails under article 8 ECHR [53].
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The appellant sought permission to appeal which was initially refused by another judge of the First-tier Tribunal but granted on a renewed application to the Upper Tribunal on the following grounds:
“It is arguable that the judge failed to address fully a ground of appeal namely, Article 3 and the risk of suicide on return to Albania where is accepted that the appellant had been sexually and physically abused by his father. Article 3 is clearly pleaded in the skeleton argument [2] (reliance on previous representative’s submissions). It is arguable that any assessment under Article 3 should consider the subjective fear of the applicant. Further, it is arguable relevant evidence was not taken into account for example the psychiatric condition was relevant to assessment under Article 8. It is arguable the reasoning in respect of the appellant’s assertion he is gay is insufficient.”
Error of law
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In relation to the finding on the appellant’s sexually orientation, the Judge does not find that the appellant is not gay, as he claims, but finds there was no reliable evidence to establish this claim, even to the lower standard. It is a finding that the appellant had not discharged the burden of proof upon him to the required standard to prove what he was claiming is true. The Judge does not specifically reject the claim and gives reasons for why it was found the burden had not been discharged.
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It is also important to consider the finding at [46] that not only has the appellant not discharged the burden of proof to establish he is gay, this is a question that is also somewhat academic because there was no...
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