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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> EI v Secretary of State for the Home Department [2025] EWCA Civ 556 (30 April 2025)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2025/556.html
Cite as: [2025] EWCA Civ 556

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Neutral Citation Number: [2025] EWCA Civ 556
Case No: CA-2024-000120

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Deputy Upper Tribunal Judge Hanbury
UI-2022-005577

30 April 2025

B e f o r e :

LORD JUSTICE UNDERHILL
(Vice-President of the Court of Appeal (Civil Division))
LORD JUSTICE PETER JACKSON
and
LADY JUSTICE WHIPPLE

____________________

Between:
EI Appellant
- and -

The Secretary of State for the Home Department Respondent

____________________

Camille Warren (instructed by Greater Manchester Immigration Aid Unit) for the Appellant
Amanda Jones (instructed by the Treasury Solicitor) for the Respondent

Hearing date: 25 February 2025

____________________

HTML VERSION OF APPROVED JUDGMENT
____________________

Crown Copyright ©

    This judgment was handed down remotely at 2pm on [30 April 2025] by circulation to the parties or their representatives by e-mail and by release to the National Archives.
    .............................

    Lady Justice Whipple:

    Introduction
     

  1. This is an appeal from the decision of the Upper Tribunal (Immigration and Asylum Chamber) (Deputy Upper Tribunal Judge Hanbury) released on 4 December 2023 under case reference UI-2022-005577. Leave to appeal was granted by Nugee LJ who preserved the Appellant's anonymity. DUTJ Hanbury allowed the Secretary of State's appeal against the decision of the First-tier Tribunal (First-tier Tribunal Judge Holt) released on 26 August 2022 under case reference PA/12620/2019. FTTJ Holt had allowed the Appellant's appeal against the Secretary of State's refusal of asylum in a letter dated 28 November 2019.
  2. The Appellant now argues that the UT erred in law and that this Court should reinstate the decision of the FTT or alternatively should remit her case for a fresh hearing.
  3. Facts

  4. DUTJ Hanbury preserved the FTT's findings of fact and there is no dispute about those facts. The Appellant is a citizen of Albania who was born in 1987. She was born into a Muslim family. In around 2005, she joined her father in Italy and studied law at Genoa university but did not complete her studies there. In 2011 she married a Christian man and went to live with his family in Kukes. Her family were unsupportive of the marriage and the Appellant became estranged from her own family. She had two children, now aged 10 and 9, with her husband.
  5. The Appellant's husband worked with his brothers in a business based in Tirana, teaching English to students and helping them to get visas to work abroad. In around 2014, the business ran into difficulty, and one of her husband's brothers fled to Canada. Threats were made by ex-clients of the Appellant's husband, on account of debts which he owed. In 2017, to get away from those threats, the Appellant went with her children and husband to live in Italy. After a few months, the Appellant returned to Albania to live with her husband's family in Kukes, although her husband stayed in Italy.
  6. After she returned to Albania without her husband, there were three distinct incidents. The first was when a man attended the house belonging to her parents-in-law (where she was living) and demanded to see the Appellant's husband's brother. The man pushed the Appellant down the stairs. Police were informed and the man was arrested. Later that night, that man's relatives came to the Appellant's in-laws' house to complain. The second incident was when a man approached the Appellant and demanded to know where her husband was. He grabbed the Appellant's daughter's hair. The third was when the Appellant was driving. She was stopped by strangers who demanded to know where her husband was. They raped her when she did not give the details required.
  7. The Appellant did not want her husband to know of the sexual assault. He came back to Albania in December 2018. She obtained false papers and left for Italy on 14 December 2018 with her two children (without her husband). She stayed in Italy and then travelled to France on those false papers, where she boarded a flight (from Nice) and arrived in the UK on 2 February 2019. She came to the attention of the UK Border Agency because she had travelled on a false Italian passport. She claimed asylum when told that she would be returned to Nice.
  8. The Appellant has not seen her husband since she left Albania in December 2018. She has been in the UK since February 2019. She had a brief relationship with a man in the UK and gave birth to her third child in the UK in 2020. When her third child was around 1 year old, that child was diagnosed with a neuroblastoma tumour in his pelvis which led to intensive medical treatment with a need for life-long follow up.
  9. Legal Framework

  10. At the hearing (though, unhelpfully, not before) the Court was provided with Part 11 and the associated appendices of the Immigration Rules as they stood between 5 October 2023 and 14 November 2023 (the UT heard this appeal on 11 October 2023). Part 11 deals with asylum claims, defined in the Immigration Rules as a claim by a person to be recognised as a refugee under the Refugee Convention on the basis that it would be contrary to the UK's obligations under that Convention to remove or require that person to leave the UK (paragraph 327(i)). Part 11 also provides for humanitarian protection for those who are seeking asylum, which the Immigration Rules define as a request by a person for international protection due to a claim that if they are required to leave the UK, they will face a real risk of suffering serious harm in their country of origin and they are unable or, owing to such risk, unwilling to avail themselves of protection in that country (paragraph 327EA); to meet that threshold, amongst other things, there must be substantial grounds for believing that the asylum applicant concerned would face such a risk (paragraph 339C(iii)). It is further provided that the fact that a person has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, will be regarded as a serious indication of the person's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or such serious harm will not be repeated (paragraph 339K).
  11. It was common ground that the test to be applied in relation to the Appellant's claim under the private life limb of Article 8 of the ECHR was whether there would be "very significant obstacles" to her integration in Albania. Ms Jones found these words in paragraph PL5.1 of the archived extract provided to the Court. Ms Warren said that these words should be found in the predecessor provision, namely paragraph 276ADE of the Immigration Rules prior to the issue of HC 118 in June 2022, which was extant at the time of the Appellant's original application to the Secretary of State. The UT had noted both sources at paragraph 12. It makes no difference, in this case, which provision is considered because the words are the same in both.
  12. Procedural History

    Secretary of State's decision

  13. The Appellant's asylum application was rejected by the Secretary of State on 28 November 2019. The Secretary of State concluded that the Appellant had not established a well-founded fear of persecution such as to qualify her for asylum. She had not shown substantial grounds for believing that she faced a real risk of serious harm such as to qualify for humanitarian protection. Her removal would not breach her rights under Article 8 of the ECHR. She did not qualify for leave on the basis of family or private life. She was not eligible for discretionary leave to remain.
  14. Appeal to the FTT

  15. The Appellant appealed to the FTT. She claimed to be a member of a Particular Social Group ("PSG"), that group being persons at risk from business associates of her husband as a result of disagreements over unpaid debts and violent feuding. She asserted that the Albanian authorities would be unable or unwilling to protect her. She was further at risk because she had been "sullied" as a result of the sexual assault so that her husband and his family would not support her. The fact that she had given birth to a third child outside her marriage (since the date of the Secretary of State's decision) would breach the "honour" of her husband's family and would be a further reason why his family would aggress her. She said that she would be unsafe if returned to Albania and there was no possibility of internal relocation to a safe part of Albania. If returned, she would be stigmatised and would be the subject of discrimination. People would assume she was a victim of trafficking. She would get no assistance from family members (her own or her husband's) and she and her children would face very severe circumstances. She would struggle to find work without connections, and anyway she had children to look after which would be an obstacle to working. She and her family would be destitute. Treatment for her third child's medical condition would not be available because the only specialist hospital was in Tirana.
  16. FTTJ Holt had regard to the Appellant's own evidence and to the expert report of Dr Enkeleida Tahiraj dated 12 April 2021. FTTJ Holt accepted the Appellant's account of past events as credible and held that the Appellant was at risk of serious harm and that her personal circumstances would inhibit her relocation (paragraph 28). FTTJ Holt allowed the appeal on asylum grounds.
  17. Appeal to the UT

  18. Permission to appeal to the Upper Tribunal was granted and by an interim decision dated 15 August 2023, DUTJ Hanbury set aside the decision of the FTT because the FTT had erred in law, in two ways: first in the failure properly to engage with the issue of whether the Appellant fell within a PSG; and secondly, in the failure to consider adequately the issue of sufficiency of protection and the connected issue of internal relocation. DUTJ Hanbury considered FTTJ Holt's assessment of the Appellant's credibility to be "generous", saying that "the matter of credibility can be further considered … once the further evidence, which the appellant has requested an opportunity to present, has been considered". DUTJ Hanbury set aside the FTT's decision on grounds of material error of law, preserving the FTT's fact findings, and adjourned the case to another hearing in order that the UT could remake the decision. DUTJ Hanbury anticipated updating evidence dealing with developments being filed in advance of a further hearing in the UT to determine the outcome of the appeal.
  19. The adjourned hearing took place on 11 October 2023 and led to the decision under appeal (dated 4 December 2023). Updating evidence was filed for that hearing from various sources, but not by the Appellant herself. Ms Warren represented the Appellant at that hearing (as on this appeal). Ms Warren argued that the Appellant qualified for asylum on the basis that the Appellant was a member of a PSG for one or both of two reasons: first, because of the threats and violent actions of ex-clients of the Appellant's husband's business; and secondly, because she was at risk of gender-based violence from her husband's family given the shame of her rape by another man and, now, the fact of her third child who was not fathered by her husband. She had not received adequate protection from state authorities when she had lived in Albania because the aggressors had been able to trace her to her in-laws' home in Kukes even though her husband's business was in Tirana; based on what had occurred in the past there was a real risk she would not receive adequate protection if she returned. Internal relocation was not possible as the Appellant could be traced within Albania, wherever she was living, because she would have to register with the authorities and seek medical treatment for her third child. Her location would be easy to discover. If she was not eligible for asylum (because not a member of a PSG), then alternatively she was entitled to international humanitarian protection given the risks she would face on return. In the further alternative, Ms Warren argued that a return to Albania would breach the Appellant's Article 3 and/or 8 rights because she would face very significant obstacles to integration in that country, both economically and in obtaining medical treatment for her third child, and she and her family would fall into destitution.
  20. DUTJ Hanbury respected FTTJ Holt's conclusion on credibility (paragraph 30 of his decision). He saw no reason to depart from FTTJ Holt's findings of fact but thought it was necessary to consider FTTJ Holt's assessments of the nature of the threat faced by the Appellant, whether she belonged to a PSG, the adequacy of state protection if she returned to Albania and the availability of internal relocation (paragraph 31). DUTJ Hanbury concluded that the Appellant was not a member of a PSG: "Ms Warren has not persuaded me that merely by being a member of her husband's family or associated with that family, that would be sufficient to make her a member of a particular social group" (paragraph 33). He considered whether the Appellant could avail herself of humanitarian protection and said it was unnecessary for him to come to a firm conclusion on that question, noting that "Ms Warren touches on it at paragraph 11 of her skeleton argument for the second hearing, but … she does not appear to come to a firm conclusion" (paragraph 34). He did not accept that the Appellant would be at significant risk on return to Albania, given that she had now been away from Albania since 2018, she had had no contact with her husband or his family since then, she had not received any threats from business associates of her husband and his brother for many years, the law of Albania outlaws discrimination and provides a degree of protection against gender-based violence and anyway the Appellant would be able to call on help from police if she needed it (paragraphs 35 and 36). Alternatively, and if the Appellant had fears for her own safety if she was in Tirana, there were eight shelters available for women fearing violence by family members (paragraph 37). Further, the Appellant was capable of earning a living, accepting that might be difficult from a childcare point of view, but she would not face economic destitution; the lowering of her living standards consequent on a return to Albania would not breach Articles 3 or 8 (paragraph 38). DUTJ Hanbury held that she was not a refugee because she had no well-founded fear of persecution as a member of a PSG by reference to threats from her husband's family or his former customers (paragraph 39).
  21. DUTJ Hanbury concluded that there would be sufficient healthcare available, likely to be in Tirana, to meet the Appellant's and her third son's needs (paragraphs 40 and 41). The threshold for an Article 3 healthcare claim was not met, and in any event she was not entitled to continuing free healthcare in the UK (paragraph 42).
  22. Alternatively, and if she was being persecuted for a Convention reason, it was not unduly harsh to expect the Appellant to move to a part of Albania where she could avoid that risk (paragraph 45). He noted that the Appellant's parents-in-law were said to live in the Tirana area (which appears to conflict with the FTT's finding that her in-laws lived in Kukes, but it may be that he was given information that some members of the family lived in Tirana) but Tirana was a large populous city and she could reasonably be expected to relocate to within Albania. She had a reasonable internal flight alternative because she could avail herself of facilities in Tirana which, although the scene of her husband's former business, was sufficiently large and populous for her to be safe there, and there were hostels available for single mothers in that city (paragraph 46).
  23. DUTJ Hanbury considered her Article 8 claim, referring to sections 117B-117C of the Nationality, Immigration and Asylum Act 2002, as well as paragraph 276ADE of the Immigration Rules and Appendix FM to those same rules. He referred to a test of "insurmountable obstacles" (paragraph 49) (he had at paragraph 12 referred to "very significant obstacles"). He held that there were no insurmountable obstacles to family life continuing in Albania (paragraph 52). Given that her private life was formed in the UK when her immigration status was precarious, her removal was necessary and proportionate in the interests of enforcing immigration control (paragraph 53).
  24. Grounds of Appeal

  25. By grounds of appeal dated 17 January 2024, Ms Warren advanced the following six grounds of appeal against the UT's decision:
  26. i) error of law in the conclusion that the Appellant was not a member of a PSG for the purposes of the Refugee Convention;
    ii) error of law in the consideration of whether the Appellant was entitled to humanitarian protection;
    iii) error of law in the consideration of risk to the Appellant and her children in light of past events and evidence of enduring risk;
    iv) error of law in concluding that there was sufficiency of protection for the Appellant in Albania in light of the state authorities previously being unwilling to protect the Appellant and assessing adequacy of state protection without regard to individual circumstances;
    v) error of law in the conclusion that the Appellant could safely relocate internally; and
    vi) error of law in the consideration of Article 8 ECHR.
  27. The Secretary of State, appearing by Ms Amanda Jones, resisted all grounds of appeal and sought to uphold the determination of DUTJ Hanbury.
  28. I am grateful to both counsel for their helpful submissions to meet these points.
  29. Issues

  30. Ms Warren accepted that the central issues in the case were whether the Appellant was at risk of serious harm on return and, if she was, whether that risk could be mitigated by state protection or internal relocation. Those issues arise regardless of whether the appeal is against the refusal of asylum or humanitarian protection.
  31. In my judgment, the logical sequence is to consider grounds 3-5 first. They are connected. Ground 3 addresses the Appellant's risk on return; if that risk is established, then grounds 4 and 5 (ie, sufficiency of protection and internal relocation) become material as potential mitigations of that risk. If the Appellant establishes her case under those grounds, it will be necessary to consider whether she is eligible for asylum, which leads to consideration of ground 1 (whether she is a member of a PSG), or humanitarian protection (which leads to ground 2). If those grounds collectively fail, it is, finally, necessary to have regard to her Article 8 claim based on private life in the UK (ground 6). There is no claim based on family life in the UK.
  32. Risk on Return

  33. Ms Warren's first submission was that FTTJ Holt found as a fact that the Appellant will be at risk of serious harm if returned to Albania (paragraph 28 of the FTT's decision) and that it was not open to the UT to go behind that finding because the UT preserved all facts as found by the FTT (at paragraph 20 of the UT's interim decision and paragraph 31 of the UT's final decision). This was not a point made in the grounds of appeal or set out in Ms Warren's skeleton argument but was raised for the first time in oral submissions. I reject that submission. FTTJ Holt's conclusion that the Appellant was at risk on return was an evaluative judgment, applying the concept of risk (which is itself part law and part fact) to the primary facts as found. It was not a finding of fact and it was not preserved by DUTJ Hanbury – obviously not, because the exercise he embarked on was to evaluate the risk faced by the Appellant if she had to return to Albania.
  34. Ms Warren's main point was that DUTJ Hanbury had erred in law, by failing to place sufficient weight on the three asserted risks the Appellant would face: (i) the continuing threat from her husband's ex-clients who had targeted her because of their dispute with her husband, (ii) the husband's family's motivation to pursue the Appellant because she has his children, and (iii) the husband's family's motivation to pursue the Appellant because of the shame that would be brought on her husband's family, as a former rape victim now returning to Albania with a child fathered by another man. She argued that greater weight should have been given to the fact of past persecution as an indicator of future risk, and that the passage of time would not ameliorate these risks.
  35. Ms Warren argued that the Appellant and her husband had tried to relocate, both internally and internationally, but that relocation had not mitigated the threats and violence from ex-clients of her husband's business. The family had moved many times to get away from the men who were pursuing her husband. At this point, the FTT's findings of fact proved inadequate, and Ms Warren took us to the Appellant's witness statement: in 2016 the family moved from Tirana to Sarande in the south of Albania; in 2017 the Appellant and her children went to Italy without her husband but her husband later joined her there; after a few months the Appellant and her children came back to Kukes to live with her parents-in-law leaving her husband in Italy; in light of the first two incidents in October and November 2018 when the Appellant and her family were aggressed in Kukes by men looking for her husband, the Appellant moved to Nange which is not far from Kukes to stay in her aunt's house; but men looking for her husband found her there and she was raped by one of them in November 2018, the third incident reported.
  36. Ms Warren said that DUTJ Hanbury had underplayed the seriousness of the three incidents. She submitted that DUTJ Hanbury had not taken sufficient account of her mother-in-law's reaction to being told of the rape (another point not encompassed by the FTT's findings, and resting on the Appellant's witness statement): the Appellant's mother-in-law told the Appellant that she should not tell her husband about the rape, and subsequently suggested in the course of an argument that it was not a rape at all but consensual sex with another man; the Appellant's account was that her mother-in-law had later told the Appellant's husband about the rape and that was the reason the Appellant's husband had abandoned her and her children; the Appellant's mother-in-law had also said that the children should be with the husband's family and not with the Appellant. Ms Warren submitted that the passage of time was not an answer to these points.
  37. Ms Warren also argued that DUTJ Hanbury had failed to take sufficient account of the mental health problems the Appellant was experiencing. These were not the subject of any findings by the FTT or UT, but were described in her witness statement. The Court was taken to evidence which indicated that the Appellant had suffered from post-natal depression after the birth of her third child in 2020, and was more recently diagnosed as suffering symptoms of anxiety, depression and PTSD.
  38. Ms Warren relied on the expert evidence of Dr Tahiraj which explicitly stated that the passage of time would not reduce the risk in Albania so long as her husband's debts were not repaid, and that in any event, the Appellant would have to register herself and her children under civil law if she returned to Albania and that would make it easy for her husband to trace her, which he would be strongly motivated to do because she had custody of their two children. Ms Warren submitted that those risks were exacerbated because she now had a third child fathered by a different man.
  39. Ms Jones submitted that DUTJ Hanbury properly and reasonably considered the risks in light of the passage of time and justifiably concluded that there was no good reason to conclude that the problems which had occurred before would be repeated if the Appellant returned to Albania.
  40. In my judgment, there is no error of law in the UT's assessment of the likely risk to the Appellant if she went back to Albania. DUTJ Hanbury was well aware of the established past facts, and was alive to the relevance of past persecution in the assessment of future risk. He referred to the different types of risk which put the Appellant in fear and acknowledged two sources of risk, the first from the Appellant's association with her husband's family (which led her to fear her husband's ex-clients) and the second from being a member of that family (which led her to fear violence from that family for the various reasons asserted). DUTJ Hanbury referred to both sorts of threat at paragraphs 33 and 39 of his decision. He noted that the Appellant had not had any contact at all with her husband or his family since she left Albania in 2018 and since that time she had not received any threats from ex-clients of her husband's business. In light of the passage of time, DUTJ Hanbury thought it was unlikely that her husband's ex-customers would attempt to pursue her (paragraph 36). He also thought the passage of time would lessen any resentment her husband's family would harbour against her (paragraph 46). He did not accept that the Appellant would be at significant risk on return (paragraph 36).
  41. It was reasonable, on the facts of this case, to conclude that there was no real risk that the problems previously experienced would be repeated. The only problems the Appellant had experienced in the past had been the problems with the Appellant's husband's ex-clients. There was no history of domestic abuse or family violence against the Appellant. In my judgment, DUTJ Hanbury was entitled to conclude she would not face a significant risk from either source if she returned.
  42. That means that ground 3 fails, because there was no error of law in the UT's conclusion that the Appellant did not have a well-founded fear of persecution (if asylum was in issue); alternatively, there were no substantial grounds for believing that she would face a real risk of suffering serious harm if she returned (if humanitarian protection was in issue).
  43. State Protection

  44. Ms Warren argued that the UT failed to recognise the importance of the inadequate response by the Albanian police on earlier occasions and that the UT's conclusion that she could rely on police protection if returned was irrational, unreasoned and unlawful. Ms Warren relied on TD and AD (Trafficked Women) (CG) [2016] UKUT 92 to argue that although in general there is sufficient police protection in Albania, on the particular facts of this case that protection would not be sufficient. The Appellant's personal characteristics necessitated a higher level of protection than might be reasonable for others, given the combination of issues in her case: that her husband's family originated from the more conservative north of Albania, that she remains under threat from former clients of her husband's business, her husband and his family, that she could be traced without difficulty given the corruptibility of officials in Albania, that she would anyway be easy to trace given that she would have to register on return and would need to seek medical treatment for her third child and for her own ongoing mental health difficulties. She was clearly at risk of gender-related violence. Dr Tahiraj doubted that the Appellant would be able to access effective state assistance to protect her.
  45. Ms Jones also relied on TD and AD for the general rule that there is sufficient protection available in Albania. She accepted that each case must be considered on its own facts, but submitted there were no facts here which put that sufficiency in doubt for the Appellant.
  46. The UT had to form a judgment on whether the facts of this case meant that the protection of the state, which is in general terms sufficient (TD and AD) would be insufficient. The threat of persecution was said to come from two sources, first from ex-customers of the Appellant's husband's business, and secondly from the Appellant's husband and his family. Thus, the asserted threats were from non-state actors and private citizens. DUTJ Hanbury noted that FTTJ Holt had made no findings about the Appellant's attempts to obtain police assistance. Nonethless, he recorded Ms Warren's submissions about lack of state protection (paragraph 9) and referred to the Appellant's evidence that she had gone to the police after receiving threats but the police had failed to protect her, and that she had been turned away with no action when she had reported an assault to the police (paragraph 36). These observations were based on the Appellant's witness statement in which she gives details of her efforts to obtain police protection (see paragraphs 54-55 and 59 in particular). DUTJ Hanbury accepted that "her past treatment at the hands of the police may have been less than professional" but did not think that past treatment was indicative of the way she would be treated in the future given the lapse of time (paragraph 36). Furthermore, if she really was concerned about her safety in Tirana, there were shelters available (paragraph 37).
  47. The UT was entitled to reach this view on the evidence before it. The Appellant's evidence about past police failures related to incidents pre-dating her departure in 2018. The UT was entitled to take note of the general and accepted position, dating back to TD and AD in 2016, that Albania does offer sufficient protection against criminal activity, and to conclude that there was nothing on the facts here to call that sufficiency of protection into question. I would dismiss ground 4.
  48. Internal Relocation

  49. I turn next to the issue of internal relocation. Ms Warren criticised DUTJ Hanbury's conclusion that Tirana was a reasonable flight alternative on the basis that Tirana was where the Appellant's husband's business had been located, where the Appellant had lived and suffered harassment at times in the past and (she submitted) where the Appellant's husband's family still lived. Further, DUTJ Hanbury was wrong to conclude that because Tirana was a large and populous city, the Appellant could avoid detection given that she had been traced before (a reference to the harassment when she was living with her husband's family in Kukes, which is about 2 hours by car from Tirana), noting that Albania was a small country with a population of only 3.5 million. There were real obstacles to the Appellant relocating in Tirana as a durable alternative, given that she would be accompanied by her three children, one of whom has serious health concerns, and in circumstances where the Appellant would be unable to rely on community and family support.
  50. Ms Jones sought to uphold the conclusion that the Appellant could safely relocate within Tirana. There was no evidence that the Appellant's husband or his family were in Tirana or were looking for the Appellant. Internal relocation would not be unduly harsh. It was open to DUTJ Hanbury to suggest relocation to a different part of Tirana, accepting that the Appellant's husband's business was located in that city and that some members of her husband's family might live there.
  51. I find no fault in the UT's decision on internal relocation. DUTJ Hanbury was mindful of Dr Tahiraj's expert view that internal relocation would mean the Appellant having to rely on 'security through obscurity', that as a single mother with three children she would stand out, and that there was corruption in public administration. DUTJ Hanbury asked himself, correctly, on the hypothesis that the Appellant was being pursued for a Convention reason in one part of the country, whether it would be unduly harsh to expect her to move to a less hostile part of the country to avoid that risk, a question to be judged by the living standards of Albania and not by comparison with her situation in this country (paragraph 45). He thought it was doubtful that the Appellant would be visible in a large populous city like Tirana. Further, although the country guidance suggested that single mothers faced problems, he noted that was especially the case in rural areas. He noted that the Appellant was a "sophisticated well-educated woman" (a reference to his earlier finding that the Appellant was educated and capable of earning a living) and so she would not be economically destitute, and he had in clear view that the Appellant's husband's business had been in Tirana but the city was sufficiently large and populous for the Appellant to be safe there and that anyway, if necessary, she could go to one of the shelters for single mothers in that city (paragraph 46).
  52. DUTJ Hanbury's conclusion that the Appellant would be safe in Tirana is rational and reasoned. It was not unduly harsh to expect her to relocate to another part of that city. I would dismiss ground 5.
  53. Particular Social Group

  54. In light of my conclusions on grounds 3, 4 and 5, it is not necessary for me to decide whether the Appellant was a member of a PSG capable of claiming protection under the Refugee Convention, the subject of ground 1. That issue is complicated and it would be better for it to be determined in a case where it would make a difference to the outcome. In this case, even if the Appellant were a member of a PSG, she does not have a well-founded fear of persecution in Albania (no risk on return, sufficiency of state protection and a viable internal relocation alternative). On any view, she fails in her refugee claim.
  55. Humanitarian Protection

  56. Finally, I address arguments advanced by Ms Warren as to the Appellant's case for humanitarian protection. I have already rejected Ms Warren's submission that the FTTJ's finding on risk of harm could not be disturbed by the UT (see paragraph 24 above, dealing with paragraph 28 of the FTT's decision). I also reject, for similar reasons, Ms Warren's further submission that it was not open to DUTJ Hanbury to disturb what she characterises as a conclusion by the FTT that the Appellant was entitled to humanitarian protection. In my judgment, this submission does not get through the starting gate because the FTT did not decide that the Appellant was entitled to humanitarian protection; the FTT allowed the Appellant's appeal on asylum, not humanitarian protection, grounds (as is clear from the last paragraph of FTTJ Holt's decision). But in any event, to the extent that any such finding was made by the FTT, it was in my judgment set aside by DUTJ Hanbury in his interim decision so the issue of entitlement to humanitarian protection was at large at the substantive appeal hearing before the UT.
  57. Ms Warren complains that DUTJ Hanbury misunderstood her case and wrongly stated that she had merely "touched on" humanitarian protection in her skeleton (paragraph 34 of the UT's decision). But, whatever DUTJ Hanbury understood to be the Appellant's case on humanitarian protection, he concluded it was not necessary for him to address the claim for humanitarian protection "given my overall conclusions" (paragraph 34, again). Those overall conclusions included the findings that the Appellant would not be at risk if she returned to Albania, the existence of sufficient state protection, and the possibility of relocation to a different part of Tirana. That was the end of her claim for humanitarian protection, however it was understood. Given that I have upheld those overall conclusions as lawful and rational, the appeal relating to humanitarian protection must fail. I would dismiss Ground 2.
  58. Article 8

  59. Ms Warren pointed to the mistake by DUTJ Hanbury in referring to "insurmountable obstacles" to return at paragraph 49, when the correct test in law was whether there were "very significant obstacles to integration", under paragraph 276ADE or paragraph PL 5.1 of the Immigration Rules (as relevant, see paragraph 9 above). She said this mistake signified a lack of anxious scrutiny of the Appellant and her children's Article 8 rights. She atalso argued that a lawful and rational assessment should have led to the conclusion that return to Albania would constitute a disproportionate interference with the Appellant's Article 8 rights. She abandoned an argument that DUTJ Hanbury was in error because he had failed to reach his conclusion by a balancing exercise, listing the factors on both sides of the equation.
  60. Ms Jones acknowledged the mistake in the formulation of the test by DUTJ Hanbury but says it is not material because he had correctly directed himself earlier in the decision (at paragraph 12); and anyway he considered all the relevant factors and came to a rational conclusion that the Appellant's Article 8 rights did not prevail. He noted that: she was educated and capable of earning a living, she would not face economic destitution, there were satisfactory primary and secondary healthcare facilities available for her and her third son (whose condition was currently stable with no evidence that the cancer would return), and her private life in the UK was limited and formed at a time when her own immigration status was precarious.
  61. I am, again, in agreement with Ms Jones. DUTJ Hanbury's mistake in confusing the tests did not make any difference to the outcome and was not material. He took account of all matters relevant to Article 8. He came to the unavoidable conclusion, in light of his earlier findings, that the Appellant's removal with her children to Albania was necessary and proportionate. I would dismiss ground 6.
  62. Conclusion

  63. I have addressed each ground of appeal separately. But I now pull the threads together. The findings of DUTJ Hanbury, which I would uphold, establish that the Appellant does not face any real risk on return to Albania which would be sufficient to cross the threshold for refugee or humanitarian protection: her case under grounds 3, 4 and 5 has been dismissed. She has no claim to remain in the UK in order to preserve her private life under Article 8 ECHR: her case under ground 6 has been dismissed. I would therefore dismiss the appeal.
  64. Lord Justice Peter Jackson:

  65. I agree with both judgments.
  66. Lord Justice Underhill:

  67. I agree that this appeal must be dismissed. Ground 6 is plainly ill-founded, for the reasons given by Whipple LJ. As for the remaining grounds, I am bound to say that the way that they have been advanced by the Appellant has made the case unnecessarily complicated. As Whipple LJ points out, the central issue for the UT was whether there were substantial grounds for believing that the Appellant was at real risk of serious harm if she were returned to Albania (which starts with the question whether there was a real threat of serious harm, and – only if so – requires consideration also of whether there was a sufficiency of state protection and/or whether the risk could be avoided by going to live in Tirana). If there were such grounds, it was for practical purposes irrelevant whether she was entitled to asylum or to humanitarian protection; but the asylum claim is more problematic because of the requirement that the risk take the form of persecution on account of her membership of a "particular social group", which is not straightforward and as to which I have not found it easy to understand how she put her case. As to that central issue, I agree with Whipple LJ that there is no error of law in the Judge's conclusion on ground 3. On a strict view, that might be thought to render it unnecessary to reach a conclusion on grounds 4 and 5. But there may be some overlap between the Judge's conclusions on the three questions, and I should accordingly say that I agree with Whipple LJ that there is no error in law in his conclusions on those grounds either.

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