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United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments


You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> UI2025000891 [2025] UKAITUR UI2025000891 (23 May 2025)
URL: http://www.bailii.org/uk/cases/UKAITUR/2025/UI2025000891.html
Cite as: [2025] UKAITUR UI2025000891

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IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2025-000891

First-tier Tribunal No: PA/63250/2023

LP/05140/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 23 rd of May 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE Ó CEALLAIGH KC

 

Between

 

G J

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr Kerr, counsel instructed by Karis Solicitors

For the Respondent: Mr Wain, Senior Home Office Presenting Officer

 

Heard at Field House on 25 April 2025

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant 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. Failure to comply with this order could amount to a contempt of court.

 

 

DECISION AND REASONS

 

Introduction

1.              The appellant is a national of Albania born on 18 July 2001. He is an accepted victim of modern slavery. The appellant appeals with permission the decision of First-tier Tribunal Judge Cohen dated 22 November 2024 by which his protection appeal was dismissed.

2.              As set out below there was considerable agreement between the parties, and in particular it was agreed that there were several errors of law in the determination. Accordingly the issues were relatively narrow, and the dispute at the hearing was primarily in respect of the consequences of those errors and the potential availability of a sufficiency of protection.

Brief facts

3.              The appellant entered the United Kingdom on 16 September 2018 and claimed asylum on 17 September 2018.

4.              On 29 August 2019 the appellant attended a substantive asylum interview.

5.              On 22 November 2022 there was a positive conclusive grounds decision identifying the appellant as a victim of modern slavery.

6.              On 20 November 2023 the respondent refused the appellant's asylum claim. He appealed.

7.              In a determination promulgated on 22 November 2024 the appellant's appeal was dismissed by First-tier Tribunal Judge Cohen.

8.              On 25 February 2025 permission to appeal was granted by First-tier Tribunal Judge Mills. Granting permission FTTJ Mills stated as follows:

"Considering the explanation set out in the grounds, and having read the therapist's report as well, I agree that the Judge appears to have been mistaken when concluding that a discrepancy had arisen, and that this error was material to the Judge's assessment of the appellant's credibility. While it is perhaps the case that this issue is not material given that the Judge has found state protection to be available, I consider that it is appropriate for permission to be granted so as to allow the Upper Tribunal to consider the matter more closely."

Grounds of appeal

9.              The single ground of appeal originally advanced may be summarised as follows:

Ground 1: The FTTJ erred in making a mistake of fact. In particular he erred in holding against the appellant a perceived inconsistency in respect of whether he was in contact with his family as between his account to his therapist and his account to the tribunal, when that discrepancy was based on the FTTJ's misreading of the therapist's documents.

10.          As the FTTJ had found against the appellant not only on credibility but also on the basis of internal relocation and sufficiency of protection, it will be apparent that this ground was not necessarily sufficient for the decision to be overturned.

11.          Matters did not however stop there. On 24 April 2025, the day before the hearing, the appellant submitted an application to add further grounds, which I shall refer to as Grounds 2 and 3. These provided in essence that:

Ground 2: The First-tier Tribunal erred in finding that the appellant's factual account was incredible and implausible when the respondent had accepted the appellant's factual case

Ground 3: The First-tier Tribunal had erred in treating the respondent as not accepting the appellant's account of trafficking because the question of whether he should be granted leave as a result was being revisited, when in fact the respondent did accept that he had been a victim of trafficking

12.          Again it is clear that those errors, even if made out, were not necessarily sufficient to displace the decision of the FTTJ to dismiss the appeal. However, once again, matters did not stop there.

13.          On the morning of the hearing I received yet another application to amend the appellant's grounds. This included a further ground which I will describe as Ground 4, and may be summarised as follows:

Ground 4: The First-tier Tribunal erred in law in finding that there was a sufficiency of protection for the appellant and that he could internally relocate without engaging with the evidence before him and/or the detailed submissions made on the appellant's behalf

The hearing

14.          The first issue to determine was whether or not I could properly consider the amended grounds and the further amended grounds which had each arrived less than 24 hours before the hearing. The grant of permission of FTTJ Mills, which made clear the apparent lacuna in the appellant's case, was some three months earlier. The issue arose, Mr Kerr candidly explained, as a result of errors on his part due to his changing roles and the case unfortunately falling "between two stools". He was very apologetic. I accept that this is the explanation, generally unsatisfactory though the position was, and I accept that the appellant should not in principle be prejudiced as a result of it. The question remained however whether the respondent would be prejudiced by permitting those matters to be considered.

15.          Mr Wain on the respondent's behalf took what was in my view a very reasonable and pragmatic position. He was prepared to deal with the issues raised at the hearing and did not require further time or an adjournment. He suggested that given that the matter was a protection claim, the Tribunal should consider the grounds and grant permission to amend if they were arguable. I agree that is the right approach, and that is what I did.

16.          On the substance, Mr Wain accepted in terms that Ground 1 was made out as detailed in the original grounds. It was clear that the Judge had simply misread the document in question. Mr Wain also accepted, in respect of Grounds 2 and 3, that the Judge had mistakenly gone behind the appellant's accepted status as a victim of trafficking. Accordingly, by agreement the hearing focussed on the matters raised that morning in Ground 4.

17.          In respect of Ground 4, Mr Wain accepted that there was an error of law in respect of the question of internal relocation because of the failure to consider the civil registration scheme. He maintained however that the findings in respect of sufficiency of protection, thin though they were, could sustain the determination.

18.          Mr Kerr noted that extensive material on sufficiency of protection in Albania and detailed written submissions had been placed before the Judge. His position was that the Judge was obliged to at least engage with it. It was not at all clear why the appeal had failed on this point. There is no reference to the skeleton argument that was before the Judge and it may simply have been left out of account.

19.          Mr Wain in reply maintained that the findings in respect of sufficiency of protection were adequate, though he accepted they were very brief.

Decision and reasons

20.          It is quite clear that the Judge's determination contains errors of law.

21.          I accept the parties' agreed position that Ground 1 is made out. It is unarguably clear that the Judge placed very great weight on the inconsistency as between what the appellant told the Tribunal about when he had resumed contact with his parents and what he had said to his therapist [25]:

"I find the appellant to be other than a witness of truth. As indicated above, he states that his father and mother sent him a letter in support of his appeal and that he was in telephone contact with them having spoken to them just 10 days prior to the appeal hearing and that he was in contact with his sister through Facebook. However, the appellant has had counselling in the UK. He indicated that he started counselling in April 2024 following the refusal of his asylum claim. The appellant's therapist wrote a letter/report in support of his appeal dated 11 July 2024. In this she reiterates that the appellant informed her that he had no contact with any of his family back in Albania. I find that the appellant has given dishonest evidence to his therapist indicating that he has provided evidence which he believes will purely enhance and bolster his appeal. I find this to be a significant discrepancy in the appellant's evidence going to the heart of his appeal and find it to be extremely damaging to his credibility."

22.          I do not need to decide whether this discrepancy could rationally bear the weight it has been accorded since it does not, in fact, exist. The Judge has misread the papers which showed that the therapist's information was based on a referral form completed some time earlier when the appellant had not yet resumed contact with his family. As the Judge treated this apparent discrepancy as "going to the heart of his appeal" it is clear, and Mr Wain rightly accepted, that it is material to the findings on credibility.

23.          I also consider that Mr Wain was right to accept that the Judge should not have gone behind the concession in respect of the appellant's factual account. In Kalidas (agreed facts - best practice) Tanzania [2012] UKUT 327 (IAC) the Tribunal held as follows [35]:

"Judges, unless in exceptional circumstances, do not look behind factual concessions. Such exceptional circumstances may arise where the concession is partial or unclear, and evidence develops in such a way that a judge considers that the extent and correctness of the concession must be revisited. If so, she must draw that immediately to attention of representatives so that they have an opportunity to ask such further questions, lead such further evidence and make such further submissions as required. An adjournment may become necessary."

24.          There is no suggestion that such a process took place in this case. Certainly there is nothing in the determination to suggest that the Judge was aware of the concession, still less considered it appropriate to go behind it. If the Kalidas process had been followed, it is moreover likely that the error in Ground 1 would not have taken place.

25.          Ground 3 is slightly more difficult as it is not entirely clear what the Judge means when he says it is "highly significant" that the respondent did not accept that the appellant was a victim of trafficking in the "NRM referral". However the answer may appear earlier in the determination where it is said [14]:

"The [appellant's] NRM decision indicating that the appellant was not accepted as a victim of trafficking was attached [to the appeal bundle]."

26.          However that is simply not correct. The letter in the bundle to which I presume the Judge intended to refer is in respect of the respondent's agreement to reconsider whether the appellant should be granted leave as a trafficking victim, not whether he is a trafficking victim.

27.          The respondent accepts in terms in the refusal letter that the appellant was trafficked in Albania. That remains her position. The appellant is the subject of a conclusive grounds decision that he is a victim of modern slavery. That too is unchallenged. Whether therefore this is more properly characterised as a Kalidas error or a simple mistake of fact, there is no doubt at all that there was an error, and given the Judge's view that this was a "highly significant" matter it is plainly material to his findings on credibility.

28.          As to Ground 4, Mr Wain was right in my view to concede that there was a material error of law in respect of the question of internal relocation. He accepts that there was no consideration of the civil registration system in Albania in the conclusion that the appellant could not be found in Tirana, and that this vitiates the decision. I agree. Nor is there any analysis of how the appellant could safely relocate despite the materials and submissions before the Judge.

29.          The sole issue between the parties therefore was whether the findings on sufficiency of protection were sufficient for the decision to be upheld. The findings were as follows [32]:

"I find that the appellant could seek adequate protection from the authorities in Albania. The appellant confirmed that neither he nor his brother sought any protection from the authorities. Having regard to the objective evidence, I find that they are willing and able to offer effective protection to the appellant against physical abuse, exploitation or trafficking."

30.          As the appellant's latest grounds point out, there is no engagement whatsoever with the submissions in the appellant's skeleton argument, which was not referred to in the determination at all. The submissions on internal relocation in this document were extensive. Nor is there any engagement with the considerable volume of evidence in respect of the availability of a sufficiency of protection which the Judge did at least acknowledge was in front of him [15].

31.          Overall I accept that the Judge erred here too, by failing to take account of relevant evidence and submissions and failing to give adequate reasons for rejecting the appellant's case.

32.          There is, in any event, a real and separate question as to whether the appellant has had a fair hearing. In my view he has not. The Judge went behind concessions without notice and reached conclusions damaging to the appellant on an entirely factually inaccurate basis. The great majority of the reasoning in the determination consists of these sections that clearly cannot stand. The analysis of sufficiency of protection, on the other hand, consists of a single short paragraph, despite the wealth of material and submissions relied on. In the circumstances, considering the determination in the round, I do not consider that any part of it can stand.

33.          Finally, the determination betrays a clear lack of anxious scrutiny in the sense described by the Court of Appeal in R (YH) v Secretary of State for the Home Department [2010] EWCA Civ 116 where it was held [24] that decisions should "show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account". The reasoning in the present case would lead a fair observer to reach quite the contrary conclusion.

34.          It follows that the decision of the Judge contained a material error of law.

35.          The parties were agreed that in those circumstances the matter should be remitted to the First-tier Tribunal with no findings preserved.

Notice of Decision

The appellant's applications of 24 and 25 April 2025 to amend his grounds of appeal are granted. The decision of First-tier Tribunal Judge Cohen dated 22 November 2024 did involve the making of a material error of law. That decision is set aside and the matter is remitted to the First-tier Tribunal for a full rehearing with no findings of fact preserved.

 

 

Greg Ó Ceallaigh KC

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

19 May 2025

 

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