Upper Tribunal (Immigration and asylum chamber), 2016-05-24, AA/06318/2014
| Jurisdiction | UK Non-devolved |
| Date | 24 May 2016 |
| Published date | 23 May 2017 |
| Hearing Date | 15 April 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | AA/06318/2014 |
Appeal No. AA/06318/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06318/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 15 April 2016 |
On 24 May 2016 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW
Between
GH
(ANONYMITY DIRECTION MADE)
Appellant
and
Secretary of State for the Home Department
Respondent
Representation:
For the Appellant: Mr J Howard, solicitor of Fountain Solicitors
For the Respondent: Mr P Duffy, a Home Office Presenting Officer
DECISION AND REASONS
Introduction
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Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.
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In this appeal, the appellant appeals against a decision of the First-tier Tribunal dismissing her appeal against a decision taken on 14 August 2014 to refuse to grant her asylum.
Background Facts
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The appellant is a citizen of Albania who was born on [ ] 1989. She applied for asylum under the Immigration Rules HC395 (as amended) (‘the Immigration Rules’). That application was refused because the Secretary of State did not believe that the appellant’s father threatened to kill her or that she would be at risk from her family on return to Albania. The Secretary of State also considered that it was reasonable to expect the appellant to relocate within Albania if she were to encounter problems. The Secretary of State granted the appellant leave to remain for 30 months on Article 8 grounds.
The Appeal before the First-tier Tribunal
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The appellant appealed to the First-tier Tribunal. In a decision of 29 May 2015, Judge Flynn (‘the judge’), dismissed the appellant’s appeal. The judge did not accept the appellant’s account that her father had tried to kill her or threatened to do so. The judge did not accept that the appellant had given a credible account and found that the appellant had not shown that she had a well-founded fear of persecution. When considering whether or not the appellant was at risk on return to Albania, the judge set out that the only issue was whether, as an unmarried mother of two young children, she would be at risk. The judge found that there was a sufficiency of protection available to the appellant from the authorities and that if she did not return to the family home that there are shelters for women which could provide safety. The judge also found that she was not in need of humanitarian protection and also dismissed the appeal under Article 3 of the European Convention on Human Rights (‘ECHR’).
The Appeal to the Upper Tribunal
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The appellant sought permission to appeal to the Upper Tribunal. The grounds of appeal, in essence, assert that the First-tier Tribunal judge misdirected himself regarding the issues to be addressed, failed to address the appellant’s vulnerability, gave inadequate reasons for findings and made contradictory findings, failed to consider adequately the background material and apply country guidance and ought not to have considered Article 3.
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On 23 June 2015 First-tier Tribunal Judge Landes granted the appellant permission to appeal.
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On 2 October 2015 I heard the appeal on error of law. I found that there was an error of law in the First-tier Tribunal’s decision in respect solely of the judge’s assessment of risk on return. I made the following findings:
“I consider that in this case there were other factors in addition to the appellant’s status as a single unmarried mother. The judge accepted that the appellant had been subject to domestic violence at the hands of her father, that she was from the Gorani region and that she does not speak Albanian.
I consider that the judge did fail to consider sufficiency of protection and/or relocation in light of all the appellant’s individual circumstances. Had the judge considered the background materials and country guidance in light of those additional factors the outcome of the appeal might have been different.
For the above reasons I find that there was a material error of law in the First-tier Tribunal decision with regard to the correct assessment of the risk on return of the appellant to Albania.”
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Having found an error of law I considered that I could re-make the decision. However, both representatives invited me to adjourn for a further hearing particularly because a Country Guidance case that was likely to be of relevance regarding risk on return was soon to be released. That decision has now been released - TD and AD (Trafficked women)(CG) [2016] UKUT 92 (IAC) (‘TD and AD’)
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I therefore adjourned the matter for a further hearing to consider solely the risk on return issue.
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The following findings of fact were preserved from the First-tier Tribunal’s decision:
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The appellant is from the Gorani region (paragraph 69)
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The appellant left school at around 12 years old without completing any qualifications (paragraph 69)
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Her family in Albania was not rich but their circumstances were relatively comfortable (paragraph 69)
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The appellant is unmarried and has two children born out of wedlock (paragraph 66)
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The appellant suffered domestic violence at the hands of her father (paragraph 59)
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It is not reasonably likely that the appellant’s father tried to kill her or threatened to do so (paragraph 59)
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It is not reasonably likely that the appellant’s uncles want to kill her (paragraph 60)
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The appellant has never been a prostitute (Paragraph 66)
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The appellant has never been trafficked (paragraph 68)
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The appellant suffered from depression since late 2014 (paragraph 63)
The Hearing before the Upper Tribunal on 15 April 2016
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Mr Howard handed up a letter from Greenwich MIND and a US State Department report of 13 April 2016. Mr Duffy did not object to the admission of these documents. Despite no formal application under rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 I decided to allow this evidence to be admitted.
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Mr Howard submitted that there is a need for a Country Guidance case on the risk on return for Gorani Albanians. He submitted that the Gorani area is very small and consists of a few villages, there is an additional risk factor in Albania because of being Gorani. The inability to speak Albanian is also relevant. He submitted that the assessment of the risk on return is not covered in the current Country Guidance because internal re-location has not been assessed in light of the specific Gorani situation.
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I asked Mr Howard to take me to objective evidence that demonstrated that the Gorani were persecuted because of their ethnicity or were at risk purely because they were Gorani. Mr Howard could not take me to any specific objective evidence. He submitted that the issue is in relation to re-location because of the small isolated population and how they are perceived by Albanians.
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Mr Duffy submitted that from the objective evidence there was no evidence to suggest that the Gorani were at enhanced risk.
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I do not consider that there is any reason to suggest that a Country Guidance case is required. No specific evidence could be identified by Mr Howard that the Gorani are persecuted because of their ethnicity. The factors that he mentions go to the harshness of re-location rather than risk of persecution.
Summary of Submissions
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Mr Howard relied on his supplementary skeleton argument and noted the findings of fact that were preserved from the First-tier Tribunal’s decision The appellant had spent a considerable period of time outside Albania so she would now be at an enhanced risk on return to her home area where she would be considered to be an outsider. The appellant has two children born out of wedlock and she would be returning to Albania on her own. The judge had found that her partner could not go to Albania with her. I asked Mr Howard to take me to the relevant paragraph in the First-tier Tribunal’s decision. Mr Howard referred me to paragraph 66 of the decision. I indicated to Mr Howard that the judge had accepted that her partner would not go with her. That is not to say that he could not go with her. It appeared to be a matter of choice.
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He submitted that the case of TD and AD had moved the categories of risk. He submitted that if we were looking at someone who had not been trafficked the findings in TD and AD were...
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