IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2024-002705 |
|
First-tier Tribunal No: PA/59812/2023 LP/01559/2024 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 2 nd of May 2025
Before
UPPER TRIBUNAL JUDGE O'BRIEN
DEPUTY UPPER TRIBUNAL JUDGE RHYS-DAVIES
Between
VK
(ANONYMITY ORDER MADE)
Appellant
and
THE SECRETARY OF STATE
FOR THE HOME DEPARTMENT
Respondent
Representation :
For the Appellant: Ms. Gregory-Wallace of Counsel, instructed by Legal Justice Solicitors
For the Respondent: Ms. S. Rushforth, Senior Home Office Presenting Officer
Heard at Cardiff Civil Justice Centre on 14 April 2025
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity because she is an asylum seeker and the protection of her safety outweighs the presumption in favour of open justice.
No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify her. Failure to comply with this order could amount to a contempt of court.
DECISION AND REASONS
1. The Appellant is an Albanian citizen. She arrived in the UK on 18 March 2020 and claimed asylum the same day. The Respondent refused her application on 26 October 2023. The Appellant appealed, in time. Her appeal was heard by a First-tier Tribunal Judge ("the Judge") on 8 April 2024. The Judge dismissed the appeal on all grounds in a Decision and Reasons promulgated on 19 April 2024.
Background
2. The Appellant's case is that she is at risk of persecution by a man from whom her husband borrowed money but which he failed to repay. After being threatened by the man in 2017, the Appellant was kidnapped by him and his associates in 2019 and trafficked by them. The Appellant says she fears being retrafficked if she is returned to Albania and says she cannot go to the police because the men who trafficked her are well-connected to them. The Appellant also says that she cannot safely internally relocate within Albania.
3. Although much of the Appellant's account was accepted by the Respondent, and by the Judge, the Judge dismissed the appeal on all grounds.
4. The Appellant applied, in time, for permission to appeal to the Upper Tribunal. The Appellant's grounds make three points:
(i) That the Judge failed to take into account that the Appellant is a vulnerable adult and to apply the relevant guidance;
(ii) That the Judge failed to provide adequate reasons for rejecting the Appellant's claim;
(iii) That the Judge failed to engage adequately or at all with the evidence.
5. Permission was granted by another Judge of the First-tier Tribunal on 12 June 2024. The Judge granting permission considered that there were only two grounds, and we would agree that (ii) and (iii) overlap to some extent. In any event, permission was not restricted and we have considered all three.
The Hearing
6. The Appellant's solicitors uploaded to CE-File a consolidated bundle of 538 pages and served that on the Respondent.
7. Ms. Rushforth confirmed that there was no r.24 response, but that the appeal was opposed.
8. We indicated to the advocates that our preliminary view was that ground (i) did not establish an arguably material error, even if made out. We then heard submissions and reserved our Decision.
Decision
9. We find that grounds (ii) and (iii) demonstrate material errors of law. We reach that conclusion for the following reasons.
10. As the Appellant argues, the Judge's finding at [30] does not adequately address the Appellant's case. The Appellant says that she was held at a cannabis farm and forced to work there. She says that while she was there, police officers attended and collected cannabis (see for instance Q73, 93 - 94 of the asylum interview and [12] of the Appellant's statement dated 30 March 2023). The Respondent accepted that this had occurred (see RFRL) and the Judge noted that at [41].
11. In the circumstances, the Judge's finding at [30] that there is no evidence that the police knew the Appellant was at the premises, and no evidence that they would not have assisted her if she had asked for help, does not address the clear implications of the Appellant's accepted account that the police officers attending were working with the Appellant's persecutors: they were attending, they were not arresting anyone, and they were collecting the product. We find that the Judge erred by rejecting the Appellant's case that the police would not help her without dealing with this point. This has a bearing on the issue of the Appellant's ability to obtain a sufficiency of protection.
12. Further, as the Appellant also argues, the Judge's finding at [33], that she " gave no evidence as to whether the criminals had been in contact with her brother-in-law in respect of the principal asset, the family home and the money which could be obtained from that" does not engage with her case that it was her brother-in-law who had seized the family home and evicted her from it (see [4] - [6] of her witness statement dated 30 March 2023 and Q59ff. asylum interview). The Appellant's point that the Judge could not reasonably expect her to be in contact with the man who had evicted her has force, and that this is not a mere disagreement with the Judge's findings as contended by Ms. Rushforth. We agree that there is a failure to engage with the Appellant's evidence here and thereby a failure to give adequate reasons for material findings.
13. There is also force in the Appellant's arguments regarding the Judge's consideration of the risk factors set out in TD and AD (Trafficked women) (CG) [2016] UKUT 92. At [32] of the Decision, the Judge lists the relevant factors, and summarises parts of the evidence before him at [33]-[34] but he does not then go on to analyse the factors individually or in combination, or state whether he attributes any weight to any of them, before arriving at the conclusion that there is no real risk at [35] and [51]. Again, we find that the Judge gave inadequate reasons for material findings.
14. We can only find an error of law to be immaterial if satisfied that the outcome would inevitably have been the same had the error not been made: (IA (Somalia) v Secretary of State for the Home Department [2007] EWCA Civ 323.
15. We are satisfied that the above errors are material. It is trite law that reasons can be brief, but they must be adequate. The absence of analysis means that the findings in question cannot be said to be inevitable. There was evidence that needed to be addressed when reaching findings on both past events and the claimed risk on return.
16. While the Judge has also considered sufficiency of protection and internal relocation at [36] - [50], and found against the Appellant on those bases too, we find that those findings are dependent on the Judge's consideration and findings on the Appellant's case on risk. As the findings on the Appellant's case on risk contain material errors, it follows that the Judge's conclusions on the sufficiency of protection and/or internal relocation grounds are also unsafe.
17. The remaining points can be dealt with briefly.
18. The Appellant's submissions do not persuade us that ground (i) demonstrates a material error of law.
19. Contrary to what is pleaded, the Judge was plainly aware of the Appellant's vulnerabilities, (see [5] and {21]), even if he did not refer to the Joint Presidential Guidance Note.
20. However, the key weakness with this ground is that even if the Judge erred by not applying the relevant guidance, there is nothing in the Decision to indicate it would have affected his findings on her evidence in any way. As we pointed out during the hearing, the Judge's findings on the Appellant's evidence can be summarised as " the Appellant's case is X, but I find this does not amount to a real risk of persecution", rather than " the Appellant says X, but I do not believe her".
21. There is more merit in the point made regarding the Judge's consideration of Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 ("the 2004 Act"). The Judge deals with this at [23] - [26]. At [27] the Judge found that s.8 was engaged by the Appellant's actions. Ms. Rushforth ultimately accepted that the Judge's reasons for finding s.8 engaged were "scant" and, having found it engaged, that the Judge made no finding on the extent to which the Appellant's credibility was damaged.
22. We find that Ms. Rushforth was right to accept what she did, though we find we must go further. The Judge was obliged to address s.8, but regrettably did not state any reasons for rejecting the Appellant's explanation for the conduct said by the Respondent to engage the section. The error here is similar in nature to the errors we have found to be material above, although as with the vulnerable adult point, it is difficult to see how this error was material when the Judge does not in terms go on to find the Appellant lacks credibility.
23. Having canvassed the Parties' views at the hearing on whether the appeal should be retained or remitted were we to allow the appeal, we take the view that it will be necessary for the appeal to have a full re-hearing, as none of the findings can be preserved. In the circumstances, it is it is appropriate to remit the appeal to the First-tier Tribunal.
Notice of Decision
1. The appeal is allowed.
2. The Judge's Decision involved the making of a material error on a point of law.
3. The appeal is remitted to the First-tier Tribunal (Columbus House) with no findings of fact preserved, to be heard by a different judge
A. Rhys-Davies
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
25 April 2025