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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2024-004031 |
|
First-tier Tribunal No: PA/59733/2023 LP/04997/2024 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 28 th of March 2025
Before
UPPER TRIBUNAL JUDGE OWENS
DEPUTY UPPER TRIBUNAL JUDGE KUDHAIL
Between
VK
(ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPRTMENT
Respondent
Representation :
For the Appellant: Mr Jaffar, Counsel instructed by Norton Folgate Solicitors
For the Respondent: Mr Terrell, Senior Home Office Presenting Officer
Heard at Field House on 5 March 2025
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant and/or any member of her family, expert, witness or other person the Tribunal considers should not be identified is granted anonymity.
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 the Appellant or any members of her family. Failure to comply with this order could amount to a contempt of court.
DECISION AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal Beg ("the Judge") promulgated on 03 July 2024 in which the appellant's appeal against the decision to refuse her asylum and human rights claim dated 30 October 2023 was dismissed.
Background
2. The appellant is a national of Albania, who applied for asylum on the basis that she feared serious harm on return to Albania from two men [loan sharks] to whom her deceased husband owed money. The appellant states she left Albania because these two men forced the appellant and her son to work for them as a consequence of the debt. They escaped from the loan sharks and fled to Italy. The appellant was then trafficked for the purposes of sexual exploitation in Italy and to the UK.
3. The respondent accepted that the appellant was a victim of domestic violence at the hands of her husband but found the appellant's account of owing money to loan sharks incredulous as it lacked detail and aspects of the account were implausible. At the time of the respondent's decision, the appellant had been referred to the national referral mechanism as it was suspected she was a victim of trafficking.
4. By the time of the hearing, there was a positive conclusive grounds decision finding that the appellant was a victim of trafficking in Italy and that she was trafficked to the UK. She was found to have been sexually exploited.
First Tier Tribunal Decision
5. Judge Beg dismissed the appellant's appeal on all grounds. She made adverse credibility findings and rejected the appellant's account that she was at risk from loan sharks. She accepted that the appellant was a victim of historic domestic violence and that she was a recognised victim of trafficking in Italy. The Judge found that the appellant was not at risk in Albania as she did not accept the loan shark account. She found that the appellant had the support of some family in Albania and would be able to obtain assistance from them which would reduce the risk of re-trafficking as a previous victim of trafficking.
Permission to Appeal
6. The appellant sought permission to appeal from the Upper Tier Tribunal, which was granted by Judge Hirst on the basis that it was arguable that the Judge misdirected herself in relation to TD and AD(Trafficked women)(CG) [2016] UKUT 92 in terms of assessing risk of re-trafficking on return to Albania and/or she erred by failing to give adequate reasons for the conclusion at paragraph 31 that there was no risk of re-trafficking. The grounds also took issue with some of the negative credibility findings.
The appeal
7. On behalf of the appellant, Mr Jafar submitted that the Judge misdirected herself when applying TD and AD, as she artificially separated the appellant's trafficking experiences in Italy from those in Albania. The Judge focused on whether the persecutors were the same and TD and AD requires the decision maker to assess the circumstances leading to the trafficking when assessing the risk of re-trafficking. At paragraph 31, he submitted the Judge focused on the individuals who exploited the appellant in Italy as opposed to the underlying circumstances in Albania leading to the exploitation. The Judge had not applied the factors identified in TD and AD using a structured approach. He also submitted that she failed to properly assess the appellants credibility, as she did not give adequate reasons for her findings, in particular the finding that it was incredulous that the loan sharks would wait 6 months after the appellant's husband death to approach her.
8. He submitted that from paragraph 19-24, the Judge's assessment of credibility was flawed, and he expanded on this at the hearing. Mr Terrell objected as he stated that the submissions now strayed beyond the grant of permission. The Tribunal sought clarity from Mr Jafar on whether he was seeking to expand on already pleaded grounds or if he was seeking to amend the grounds.
9. He apologised and indicated that he was seeking to amend the grounds on the basis that he was instructed the day before and it was apparent that the Judge had erred in her approach to credibility. He stated he had not drafted the grounds and was not at the First Tier Tribunal hearing. He then went through the decision identifying paragraphs where he argued the Judge erred in her assessment of credibility.
10. Mr Terrell argued that the Judge was clear in her approach as she set out the distinction between the two different sources of risk, that is in Albania and in Italy. The Judge was clear not to go behind this distinction. He submitted that the Judge's approach to TD and AD was without error as she properly made findings that the appellant's fears in Albania were not well founded and that she left for economic reasons. The Judge, he submitted, considered TD and AD, and identified why risk was mitigated by factors such as support from family. He accepted that the Judge did not mention the appellant's age but argued this was not material because the appellant was outside the target re-trafficking age. As to the ground that the Judge's approach to credibility was flawed, he submitted that this was not a binary issue. The Judge made eight credibility points from paragraph 19 onwards which were open to her on the evidence.
11. With regard to the application to amend the grounds, he strongly opposed this as it was made during submissions and without notice. He submitted that there needed to be procedural rigour, and, in these circumstances, there was no reason the grounds could not have been amended earlier.
12. The Tribunal raised a point about the appellant's status as a vulnerable adult, which we considered might be "Robinson obvious". The appellant has an accepted profile as a woman with mental health difficulties, victim of domestic violence, sexual exploitation and a victim of trafficking. Additionally, the appellant's son was a minor during the events in both Italy and Albania. He was also present during her sexual exploitation and trafficking. The decision arguably did not sufficiently disclose that the Judge considered this when making findings and the Judge did not make a vulnerable witness direction, thus we invited submissions on this.
13. Mr Jafar submitted that Judge did not consider the appellant's status as a vulnerable adult when making negative credibility findings. The negative findings against the son related to an incident he witnessed as a minor and failed to take into account his vulnerabilities. He is also said to have mental health difficulties as a result of witnessing his mother's sexual exploitation. Mr Terrel relied on SB (vulnerable adult: credibility) Ghana [2019] UKUT 398 (IAC ) , specifically paragraph 58-64, stating that the Tribunal will need to consider the evidence before the Judge to assess if the evidence sufficiently discloses that the appellant's evidence may have been impacted by their vulnerability. He accepted that the appellant was vulnerable and had been subjected to horrific abuse. He acknowledged that the Tribunal should exercise caution given the accepted facts about the appellant's claim.
Findings and reasons
14. We refuse the application to amend the grounds as this was clearly an application made without warning during submissions. The grounds have been prepared by the appellant's solicitors and counsel, and there is insufficient explanation why these claimed errors could not have been identified earlier. Mr Jafar did not seek to make the application at the outset of the hearing but only when challenged by Mr Terrell. We are mindful of the "overriding objective" and consider it would be unfair at this juncture to allow the grounds to be amended, because the respondent was not on notice and parties should be mindful of the need to observe the procedure rules and of the requirement for procedural rigour. We were satisfied that the respondent would be prejudiced if we admitted the amended grounds because she has not had time to consider them.
15. The appellant has not asked for permission on the basis that the Judge materially erred in c ommitting or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings, by not considering the appellant as a vulnerable adult.
16. In R v Secretary of State for the Home Department, ex parte Robinson [1997] EWCA Civ 3090 the Court of Appeal found that a point, if not been taken, had to be an obvious point of convention law favourable to the asylum seeker which does not appear in the decision [ยง39].
17. We are satisfied, given the accepted profile of the appellant, that this falls squarely within the remit of a "Robinson obvious" point. We accept that the appellant was represented and thus her representatives should have identified the vulnerabilities of the witnesses in the skeleton argument and at the hearing, citing any associated reasonable adjustments. However, we are equally satisfied, in view of the accepted highly vulnerable profile of the appellant, that the Judge should have also satisfied herself that the hearing was fair by making a self-direction and exercising caution, given this was a protection claim. There is no mention whatsoever in the decision that any reasonable adjustments were put in place to allow the witnesses to give their best evidence.
18. We have taken into account SB (vulnerable adult: credibility) Ghana [2019] UKUT 398 (IAC). In doing so we note that the Judge does not sufficiently engage with the medical evidence before her that the appellant had anxiety, symptoms of depression, low mood and was awaiting counselling. The appellant at paragraph 4 of her witness statement sets out the impact upon her and her mental health at the time because of her adverse experiences. She was also visibly distressed during her substantive asylum interview.
19. The Judge does not refer to this when making her negative credibility findings and does not assess either witnesses evidence in the light of their vulnerability. The Judge for instance does not consider if the appellant's recollection of the kidnapping attempt or the threats against her could have been impacted by her poor mental health or vulnerability. Nor does the Judge consider whether the appellant's son's recollection of that incident may have been affected by his age at the time and the subsequent trauma he was subject to at the age of 17. The discrepancies in the accounts given by the witnesses manifestly heavily fed into the Judge's findings that this aspect of the claim lacked credibility. We are satisfied that the Judge's approach to the evidence is procedurally unfair given the appellant's accepted profile and the medical evidence before the judge, and that this is an error of law.
20. We are satisfied that this is a material error of law which infected all of the credibility findings made by the judge and therefore that the decision should be set aside in its entirety because fresh credibility findings are needed and it is not possible to assess the TD and AD risk factors without the new factual findings.
21. Since we have found there to be a material error of law, we do not go onto consider the remaining grounds of appeal in respect of the Judge misdirecting herself in respect of TD and AD.
22. We have decided that this case should be remitted to the First tier Tribunal, having applied the guidance in paragraph 7 of the Senior President's Practice Statement and AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC). We are satisfied that the nature and extent of the judicial fact finding which is necessary for this appeal to be re-made means that it is appropriate to remit the case to the First-tier Tribunal.
Notice of Decision
1. The decision of the First-tier Tribunal involved the making of an error of law.
2. The decision of the First-tier Tribunal is set aside in its entirety with no factual findings preserved.
3. The decision is remitted to the First-tier Tribunal for a de novo hearing before a judge other than First-tier Tribunal Judge Beg
S K KUDHAIL
Judge of the Upper Tribunal
Immigration and Asylum Chamber
12 March 2025