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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 >> UI2025001110 [2025] UKAITUR UI2025001110 (22 May 2025)
URL: http://www.bailii.org/uk/cases/UKAITUR/2025/UI2025001110.html
Cite as: [2025] UKAITUR UI2025001110

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IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2025-001110

First-tier Tribunal No: PA/01614/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 22 nd of May 2025

 

 

Before

 

UPPER TRIBUNAL JUDGE LODATO

DEPUTY UPPER TRIBUNAL JUDGE RUTH

 

Between

 

RS

(ANONYMITY ORDER MADE)

Appellant

and

 

The Secretary of State for the Home Department

Respondent

Representation :

For the Appellant: Mr G Goddard, Legal Representative, Citizens Advice Southwark

For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

 

Heard at Field House on 13 May 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.               We have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal because the underlying claim involves international protection issues in that the appellant claims to fear persecution or serious harm on return to Albania. In reaching this decision, we are mindful of the fundamental principle of open justice, but we are satisfied, taking the appellant's case at its highest for these purposes, that the potential grave risks outweigh the rights of the public to know of her identity.

2.               The appellant appeals with permission against the decision, dated 28 January 2025, of the Judge of the First-tier Tribunal (the judge) to dismiss the appeal on international protection and human rights grounds.

Background

3.               The broad factual and procedural background to the appeal is not in dispute between the parties. In broad summary the appellant's case is that she had previously been trafficked for the purposes of sexual exploitation in Albania and feared being subject to similar treatment, either by those who trafficked her in the past or entirely new traffickers, upon return.

Appeal to the First-tier Tribunal

4.               The appellant appealed against the refusal of her claim. The appeal was heard by the judge on 18 December 2024 before dismissing the appeal on all grounds in a decision promulgated on 28 January 2025. We will set out in the context of the discussion section below any particular parts of the decision which fall to be considered in the context of the articulated and argued grounds of appeal.

Appeal to the Upper Tribunal

5.               The appellant applied for permission to appeal in reliance on the following grounds:

                                                  I.             The judge unlawfully failed to apply binding country guidance in assessing the appellant's risk on return to Albania.

                                                II.             The judge unlawfully failed to assess country background information before reaching conclusions about cultural attitudes in Albania.

                                             III.             The judge reached irrational findings in relation to the suggested failure of the appellant to approach the police before she left Albania.

                                            IV.             The judge adopted a procedurally irregular approach in reaching adverse findings on credibility when this had not been identified by the parties as an issue in dispute.

6.               In a decision dated 27 February 2025, First-tier Tribunal Judge Parkes granted permission for all grounds of appeal to be argued.

7.               At the error of law hearing, we heard submissions from both parties. We address any submissions of significance in the discussion section below.

Discussion

8.               At the outset of the hearing, Mr Tufan conceded that the judge's decision involved a material error of law. This concession was made on the strength of ground 1.

9.               The touchstone for considering errors of law in this jurisdiction remains R (Iran) and others v SSHD [2005] EWCA Civ 982. The court stressed the particular importance attached to country guidance in the context of assessing whether a decision involved a material error of law. After summarising the authorities, touching on the importance of such guidance, Brooke LJ said this at paragraph 27 of his judgment:

It will have been noticed that Ouseley J said that any failure to apply a country guidance decision unless there was good reason, explicitly stated, for not doing so would constitute an error of law in that a material consideration had been ignored or legally inadequate reasons for the decision had been given. This suggestion has now been repeated and adopted in para 18.4 of the AIT Practice Direction. We have no hesitation in endorsing that approach. It would represent a failure to take a material matter into account, which is the third of the generic errors of law we have identified [...]

10.           This uncontroversial legal principle was recently restated by the Upper Tribunal in AAR (OLF - MB confirmed) Ethiopia CG [2022] UKUT 1 (IAC) where, after setting out the circumstances in which it would be appropriate to depart from country guidance, the following guidance was given at paragraph 5 of the headnote:

Any failure by the Tribunal to apply a CG decision unless there is good reason, explicitly stated, for not doing so might constitute an error of law in that a material consideration had been ignored or legally inadequate reasons for the decision have been given.

11.           The country guidance which fell to be applied on the facts of the present case was TD and AD (Trafficked Women) CG [2016] UKUT 92 (IAC). At paragraph (g) and (h) of the headnote, the following guidance was given:

 

Re-trafficking is a reality. Whether that risk exists for an individual claimant will turn in part on the factors that led to the initial trafficking, and on her personal circumstances, including her background, age, and her willingness and ability to seek help from the authorities. For a proportion of victims of trafficking, their situations may mean that they are especially vulnerable to re-trafficking, or being forced into other exploitative situations.

 

Trafficked women from Albania may well be members of a particular social group on that account alone. Whether they are at risk of persecution on account of such membership and whether they will be able to access sufficiency of protection from the authorities will depend upon their individual circumstances including but not limited to the following:

 

1)              The social status and economic standing of her family

 

2)              The level of education of the victim of trafficking or her family

 

3)              The victim of trafficking's state of health, particularly her mental health

 

4)              The presence of an illegitimate child

 

5)              The area of origin

 

6)              Age

 

7)              What support network will be available.

12.           It is clear from paragraph (g) that the risk of re-trafficking is not limited to being re-trafficked by the original trafficking organisation or individuals. In using the term 'forced into other exploitative situations', it is tolerably clear that the country guidance envisaged that victims who had been previously trafficked may be at risk of finding themselves vulnerable to entirely fresh circumstances in which they would be trafficked again and that this might be by people who had no connection to the original traffickers. The risk of trafficking is set out in terms at paragraph (h) and judges assessing such a claim must direct their attention to the factors set out in that part of the guidance. It may be that other factors will be relevant and it may be, on an assessment of all of the material circumstances, that a judge could legitimately conclude that a former victim of trafficking was not at risk of being re-trafficked in the future. However, a judge cannot sidestep the need to assess these important considerations.

13.           Turning to the decision of the judge, the following was said in the first half of paragraph [52] of the decision:

I now turn to the appellant's claimed fears. Firstly, she states that those who exploited her would kill her and her children on return or else they would re-traffick her. In making the assessment as to whether the appellant's claimed fear is objectively well founded, I have had regard to the decision in TD and AD , but do not feel it necessary to apply the indicators identified in that case. This is because there is absolutely no evidential basis for thinking that those who exploit the appellant have maintained an interest in her. The appellant has not taken any action to adversely affect their interest, such as reporting them to the police or suing them in civil proceedings. Why then would they, after the passage of so many years, still maintain an interest in a 43 year old mother of three children? [...]

14.           It is abundantly clear from the judge's approach to the question of risk that the binding country guidance, which should have informed his risk assessment, was sidelined. He said as much in the decision. At no point in the country guidance is it suggested that the risk factors going to the prospect of being re-trafficked on return to Albania may be disregarded if it were found that the original traffickers were no longer adversely interested in the appellant they had trafficked in the past. At the risk of stating the obvious, it is difficult to see how such an approach could properly and lawfully grapple with the prospect of re-trafficking by those who had no connection with the original traffickers. It is evident from the approach taken by the judge that he has not addressed his mind to critical matters set out in the country guidance and that he has confined his analysis to the risk presented by those who, as agreed between the parties, had initially trafficked the appellant for the purposes of sexual exploitation in Albania. It follows that we are in full agreement with the concession made on behalf of the respondent and have no hesitation in concluding that this part of the decision alone amounts to a material error of law such that the decision falls to be set aside.

15.           Before leaving our consideration of this part of the decision, we consider it be necessary to observe that we were troubled by the observation that a trafficking gang would be unlikely to maintain an interest in a 43-year-old mother of three children. This tends to put a crude and speculative value on a recognised victim of sexual exploitation. We found this to be wholly inappropriate.

Disposal

16.           While it is unnecessary to resolve ground 4 of the grounds of appeal for the purposes of deciding whether there is a material error of law because we have already reached that conclusion in relation to ground 1, we are minded to consider this part of the fact-finding analysis for the purposes of considering the appropriate venue for any rehearing of the appeal. At paragraphs 46, 48, 49, 50, 51, the second half of paragraph 52, 53 and 54, the judge reached a series of credibility findings which mainly hinged on matters of plausibility. Such extensive consideration of credibility was surprising to see against the backdrop of the Reasons for Refusal Letter which made it plain, at paragraph 12, that there was no dispute that the appellant genuinely feared the three men who had exploited her, forced her into sexual exploitation and threatened to kill her and her children if she reported them to the police. The only issue which conceivably went to credibility was a point taken under Section 8 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 where it was noted that she had failed to claim asylum in various safe countries on her journey to the UK. Equally, there is nothing in the decision to suggest that the respondent invited the judge at the hearing to adopt a different approach to the issues in dispute.

17.           At paragraph 54 of the decision, the judge relied on the adverse credibility findings he had reached to conclude that the appellant's fear of the men who exploited her was objectively unfounded. We were concerned that this cloaked conventional credibility findings in the language of an objective risk assessment, thereby introducing credibility as a central and decisive question in circumstances where this was not a principle controversial issue identified and agreed between the parties. This struck us as a procedural irregularity in that the appellant will have discovered for the first time when reading the decision that the basis on which her appeal fell to be dismissed was on the strength of the rejection of her credibility. This was in circumstances where she would have reasonably been taken by surprise that this point operated to underpin the reasons for finding against her The parties were agreed that this procedural irregularity meant that the hearing process was not fair and that it was appropriate to remit the appeal to the First-tier Tribunal to be decided afresh.

Notice of Decision

18.           The decision of the judge involved a material error of law. We set aside the decision and do not preserve any findings of fact. The matter is to be remitted to the First-tier Tribunal to be decided de novo by a judge other than the judge who heard the appeal in December 2024.

 

 

P Lodato

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

16 May 2025

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