Upper Tribunal (Immigration and asylum chamber), 2019-11-28, PA/11488/2018
| Jurisdiction | UK Non-devolved |
| Date | 28 November 2019 |
| Published date | 11 February 2020 |
| Hearing Date | 18 November 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/11488/2018 |
Appeal Number: PA/11488/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/11488/2018
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 18 November 2019 |
On 28 November 2019 |
|
|
|
Before
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
Between
M D
(anonymity directioN MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, 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 Appellant or members of her family. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.
Representation:
For the Appellant: Ms A Patyna, Counsel, instructed by Duncan Lewis Solicitors
For the Respondent: Ms R Bassi, Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
-
This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Hembrough (“the judge”), promulgated on 9 July 2019, in which he dismissed the Appellant’s appeal against the Respondent’s refusal of her protection and human rights claims.
-
In essence, the Appellant’s case was based upon the following matters. She is an Albanian national and is openly gay. As a result of her sexual orientation, she had been disowned and threatened by her own family, violently assaulted by the father of her partner, L, and abused by a police officer whilst in Albania. She claims to be at risk of persecution and Article 3 ill-treatment in that country, could not receive sufficient state protection, could not reasonably internally relocate, and would face very significant obstacles to reintegration into Albanian society, with reference to paragraph 276ADE(1)(vi) of the Immigration Rules (“the Rules”).
-
In refusing the claims, the Respondent accepted that the Appellant was a lesbian, but did not accept that she had been abused by her partner’s father or a police officer. It was said that she could obtain protection from the authorities and internally relocate away from her home in the North of Albania.
The judge’s decision
-
The judge, like the Respondent, accepted that the Appellant is a lesbian. He made the additional findings of primary fact favourable to the Appellant:
-
she wished to live openly in Albania with her partner;
-
she had been abused by what is described as a “rogue” police officer in Tirana;
-
she had been assaulted by L’s father;
-
she suffers from severe depression and symptoms of PTSD and was on appropriate medication which had in fact increased in the lead up to the hearing;
-
that she had been fired from a previous job on account of her sexuality.
-
The judge concluded that the Appellant was at risk in her home area of Kukes, but would not be elsewhere in Albania, could obtain sufficient state protection, and could reasonably internally relocate, including going to live with her partner in the town of Durres, some 30km west of Tirana. Whilst accepting that there was societal discrimination against the LGBT community in Albania, additional problems suffered by lesbians were not sufficient to show a risk of persecution. He was of the view that the Appellant would be able to work and receive support from L, who, in the judge’s view, had not been living in hiding after being removed to Albania from the Netherlands. At [63], he concluded that:
“It seems to me that if [L] can thrive and survive in Tirana and Durres then there is no obstacle to the Appellant doing the same.”
-
In respect of the Appellant’s mental health, the judge found that she would be able to work at some stage, that her condition would improve upon being reunited with L, and that there was no significant risk of suicide or self-harm. Finally, the judge concluded that his findings on relevant protection-based issues meant that there were no “very significant obstacles” to reintegration under paragraph 276ADE(1)(vi) of the Rules.
The grounds of appeal and grant of permission
-
The five grounds of appeal can be summarised as follows. First, that the judge erred in his assessment of medical evidence from Dr Juliet Cohen, particularly in relation to the Appellant’s overall vulnerability, the reasonableness of internal relocation, and the suicide issue. Second, that the judge failed to consider the issue of risk elsewhere in Albania on a correct footing and with regard to the relevant country information. Third, the judge failed to take proper account of the Appellant’s vulnerability when assessing her evidence. Fourth, the judge made irrational findings on material matters, including those related to the internal relocation issue. Fifth, the judge failed to give separate and adequate consideration to the paragraph 276ADE(1)(vi) issue.
-
Permission to appeal was refused by the First-tier Tribunal but granted by Upper Tribunal Judge Lindsley on 16 September 2019.
The hearing
-
The Respondent did not provide a rule 24 response in this case.
-
Ms Patyna relied on the grounds of appeal and her skeleton argument. Her oral submissions were in line with the grounds and the matters set out in the skeleton argument. I intend no disrespect by not setting them out in greater detail here.
-
Ms Bassi submitted that there were no material errors overall. However, she did acknowledge some difficulties with the judge’s treatment of Dr Cohen’s evidence as it related to the Appellant’s ability to find work and the risk of suicide.
-
At the conclusion of the hearing I announced to the parties my decision that the judge had materially erred in law as regards the issues of internal relocation, risk of suicide, and paragraph 276ADE(1)(vi) of the Rules. I reserved my decision in respect of the risk of persecution and/or serious harm in Tirana or other locations away from the Appellant’s home area.
Decision on error of law
The risk issue
-
After further consideration, I have concluded that the judge did materially her in respect of the question of whether the Appellant would be at risk of persecution or Article 3 ill-treatment in locations away from her home area.
-
Whilst the judge was entitled to use BF (Tirana - gay men) Albania CG [2019] UKUT 00093 (IAC) (“BF”) as what may be described as a starting point for the consideration of risk, the obvious distinguishing fact that the Appellant is a gay woman called for additional, careful analysis. Such analysis was required in respect of not simply the attitude of the authorities towards lesbians, but also in respect of the potential risks from non-state actors.
-
In undertaking his assessment, the judge was entitled to make the observations that he did in respect of Dr Young’s report, and there is no challenge to this in any event. The judge was also entitled to take into account the information contained in the respondent’s Country Policy and Information Note (“CPIN”) on sexual orientation and gender identity in Albania, version 5.0, published in April 2019. The evidence contained therein does indicate that real efforts have been made by the Albanian government to better the situation of the LGBT community (there being no apparent distinction drawn in the country information cited in the CPIN between gay men and women).
-
The judge’s error lies in his consideration of the “double discrimination” submission made by Ms Patyna. It is clear that he refers to the point in [50] of his decision. However, it is the source of country information from which this phrase was taken (and to which the judge was referred) that is important. Section 4.4 of the United Nation’s Development Programme report on the situation of the LGBT community in Eastern Europe, dated 22 November 2017 (“the UNDP report”), includes the following passages on the position of lesbians in Albania:
“Lesbian women are less visible than gay men in Albania, because they suffer a heightened level of violence from close family. Violence against women in Albania is a pervasive practice, and lesbians are not exempt from this. On the contrary, they face double discrimination and violence, as a result both of their gender and their minority sexual orientation. This double discrimination means that lesbians are particularly vulnerable, often becoming invisible and/or dependent. Due to the widespread incidence of domestic violence, Albania has reinforced legal provisions and judicial procedures against the perpetrators. Domestic violence, sexual harassment, injuries caused from domestic violence, suicide motivated by violence, forced sexual relations and domestic violence on the grounds of SOGI are all criminalized by the Penal Code. Nevertheless, the prevalence of violence against women in Albania continues to be high and is not appropriately punished. Lesbians are among the frontline victims of domestic violence and as a consequence they may often attempt suicide to escape their unbearable family circumstances. A fear of violence and ostracism keeps them hidden in the closet. In the 2010 report on enlargement, LGBTI...
To continue reading
Request your trial