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

A black background with a black square Description automatically generated with medium confidence

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-001983
	First-tier Tribunal No: PA/50436/2023 (PA/00858/2023)

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 19 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE CANAVAN

DEPUTY UPPER TRIBUNAL JUDGE HARRIS

 

Between

 

D R

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: No appearance

For the Respondent: Mr E. Tufan

 

Heard at Field House on 31 January 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

 

1.              The appellant is a citizen of Albania who appealed the respondent's decision dated 08 December 2022 to refuse a protection and human rights claim.

 

2.              First-tier Tribunal Judge Mensah ('the judge') allowed the appeal in a decision sent on 25 March 2024. The Secretary of State applied for permission to appeal that decision to the Upper Tribunal. In a decision sent on 27 November 2024 the Upper Tribunal found that the First-tier Tribunal decision involved the making of an error on a point of law (annexed).

 

3.              The First-tier Tribunal's factual findings as to past events were not challenged and were preserved. Those aspects of the decision relating to the assessment of risk on return and the formulation of a potential Convention reason were set aside.

 

4.              The appellant did not attend the error of law hearing on 04 September 2024. It is not necessary to repeat what steps the Upper Tribunal took to contact the appellant or to check his last known contact details because they are set out at [17]-[20] of the error of law decision. It suffices to note that the Upper Tribunal also contacted the appellant's past representatives after the hearing to check if they were instructed and/or to obtain any up to date contact details. Wimbledon Solicitors confirmed that they were no longer instructed.

 

5.              In light of this, it seemed unlikely that the appellant would attend a further hearing to remake the decision. However, in the interests of justice, the Upper Tribunal decided not to remake the decision on the day in order to provide the appellant with a fair opportunity to (i) explain why he did not attend the hearing; (ii) to provide an opportunity to obtain representation; and (iii) to produce any further up to date evidence [43]. The Upper Tribunal made detailed directions at the end of the error of law decision in an attempt to engage the appellant in these proceedings. However, because the appellant had not provided up to date contact details, it was questionable whether he would receive those instructions. Nevertheless, a hearing was listed and an Albanian interpreter was booked, at public expense, to assist the appellant if he did attend.

 

6.              There was no appearance by or on behalf of the appellant at the hearing listed on 31 January 2025. We were satisfied that the appellant was sent the error of law decision and the latest hearing notice to his last known address. There was no application for an adjournment nor any explanation for the appellant's non-attendance. The Upper Tribunal made clear in its last decision that the remaking might be decided in the appellant's absence. In the circumstances, we were satisfied that we could proceed to determine the appeal.

 

7.              In addition to the First-tier Tribunal's decision, the following evidence was before the Upper Tribunal for consideration in this appeal:

 

(i)              The appellant's bundle before the First-tier Tribunal. The bundle ran to 144 pages and included (a) notice of hearing; (b) Home Office decision letter (08/12/222); (iii) CPIN 'Albania: Human trafficking' (Version 14.0) (February 2023); (d) the appellant's witness statement (05/02/24) (3 pages).

 

(ii)            The respondent's bundle before the First-tier Tribunal. The bundle ran to 95 pages and included (a) Home Office decision letter (08/12/22); (b) UASC SEF form and witness statement (24/06/20) (4 pages); and (c) SEF interview (08/12/21).

 

(iii)          The respondent also filed the most up to date CPIN 'Albania: Human trafficking' (Version 16.0) (July 2024).

 

8.              On behalf of the respondent, Mr Tufan submitted that there was no evidence to suggest that those who trafficked the appellant in the past would still be interested in the appellant at the date of the hearing. The appellant said that he had not contacted his family because he was scared. However, there was no evidence to suggest that those who trafficked him would have any reach beyond the appellant's home area in northern Albania. It would be reasonable to expect the appellant to relocate to Tirana. There was no evidence of particular vulnerabilities to show that internal relocation would be unduly harsh. The fact that the CPIN acknowledged that male victims of trafficking might be reluctant to identify themselves as such and to seek help does not mean that effective protection is not available. There was no indication that male former victims of trafficking were generally at risk on return or that they formed a particular social group for the purpose of the Refugee Convention.

 

9.              We have considered the submissions made on behalf of the respondent at the hearing, the evidence before the Upper Tribunal, including the appellant's witness statements, and the unchallenged factual findings contained in the First-tier Tribunal decision, before coming to a decision in this appeal. It is not necessary to summarise the hearing in any detail because they are a matter of record, but we will refer to any relevant matters in our findings.

 

Decision and reasons (remaking)

 

10.          The First-tier Tribunal accepted the appellant's account of past events. This factual matrix is the starting point for our assessment.

 

11.          At the date of this hearing the appellant is a 22 year old Albanian national who says that he entered the UK clandestinely on 29 January 2020. At the date when he entered the UK he was 17 years and 8 months old. The appellant said that he comes from a village near to Kukes in northern Albania. In the 'current circumstances' form completed during an initial needs assessment on 28 April 2020 the appellant said that he lived with his parents and three adult siblings in Albania.

 

12.          The appellant says that his mother fell and injured her hip in 2019. His father borrowed 15,000 Euros from people who were 'probably drug dealers' to help pay for an operation. His father was unable to pay the money back. The people who lent his father money threatened the family. The appellant says that 'it was arranged' for him to go to work for these people in Belgium to pay back the loan. He was not happy about it but he had no choice. No explanation is given as to why the 5 adult members of the family could not work to pay off the loan.

 

13.          The appellant's father took him to Spain because he could not cross the border on his own as a minor. He was then taken to Belgium by the money lenders. The appellant described working in a car wash and then working in a house where he was told to water plants that he thought were marijuana. He stayed there for about 5-6 months before finding an opportunity to escape. The appellant found a man in an Albanian coffee shop who agreed to help him. The man was planning to travel to the UK. This man helped him to travel to the UK in the back of a lorry. The same man found a solicitor who helped him to make an asylum claim.

 

14.          The appellant says that he has not been in contact with his family or anyone else in Albania since he arrived in the UK. He does not know for certain if they are still living in the family home. He fears that if he returned to Albania he would be at risk of being re-trafficked by the men who took him to Belgium. The appellant thinks that he would be vulnerable if he could not return to his family home because he didn't know where he would live or how he would find a job to support himself. He thought he would be at risk of becoming homeless and would then become an 'easy target to be trafficked again.'.

 

15.          The Refugee Convention provides international protection to those who are outside their country of nationality due to a well-founded fear of persecution. The feared persecution must be for one of the reasons identified in the Convention (race, religion, nationality, membership of a 'particular social group' or political opinion). Both the respondent and the First-tier Tribunal accepted that the appellant was the victim of trafficking in the past. Where a person has been subject to persecution or serious harm, this is regarded as a serious indication of a person's well-founded fear of persecution or risk of suffering serious harm, unless there are good reasons to consider that it will not be repeated. However, the assessment of whether a person is likely to be at risk if returned to their country of nationality is still a forward looking assessment, which is to be carried out on the evidence as it stands at the date of this hearing.

 

16.          At highest, the appellant's account is of suffering serious harm from a group of non-state agents. He has a subjective fear that the criminals who trafficked him might find him, but the appellant has been unable to provide any meaningful detail about the level of influence that the traffickers might have.

 

17.          International protection is only available to a person if they can show that there is no effective protection from the authorities in their country of nationality. In this case, Albania has been certified by Parliament as a country where there is, in general, no serious risk of persecution: see section 94 of The Nationality, Immigration and Asylum Act 2002 ('NIAA 2002'). The Upper Tribunal periodically issues 'country guidance' decisions in which the evidence relating to a particular country will be considered in detail. The country guidance decisions relating to Albania have repeatedly found that the Albanian authorities, in general, provide sufficient protection save in a few narrowly defined circumstances.

 

18.          The decision in TD and AD (Trafficked Women) CG [2016] UKUT 92 (IAC) considered the risk to female victims of trafficking. Again, the Upper Tribunal found that there was in general a sufficiency of protection and support for former victims of trafficking available in Albania. Only in a few circumstances might the facts of an individual case indicate that a woman might be especially vulnerable to re-trafficking or of being forced into other exploitative situations.

 

19.          We turn to assess what risk the appellant is likely to face if returned to Albania at the current time. The fact that he was trafficked in the past is capable of being a factor that might indicate a risk on return. It is accepted that the appellant was trafficked from Albania in 2020 when he was nearly 18 years old. The background evidence cited in the most up to date CPIN report continues to show that trafficking in and from Albania continues to be a problem.

 

20.          The First-tier Tribunal found that the appellant's father co-operated with the traffickers to enable them to take him to Belgium. As such, it was found that he could not necessarily rely on family support if he returned to his home area in Albania. In interview, the appellant said: 'if my father was [going] to go [to] the police and report them they were going to kill us.' [qu.57]. The appellant is recorded as having said in evidence at the First-tier Tribunal hearing, apparently for the first time, that one of the traffickers stayed in the family home until the time came for him to leave. It is reasonable to infer from this answer that the appellant's family did not report the threats made by the money lenders to the local authorities.

 

21.          The appellant did not attend the hearing so we were unable to discover any more detail about the past events. The appellant has only provided vague and generalised evidence as to the identity and the likely influence of the money lenders. It seems that the appellant only described one man being involved in control and intimidation in his local area. Although it can be inferred from the appellant's account that there is likely to be a group of people with some connections in at least two places in Belgium, the size and scope of the criminal enterprise is unclear. The appellant has a subjective fear of those who trafficked him but has produced no meaningful evidence to show that they are likely to have significant influence over the Albanian authorities such that effective protection would not be available.

 

22.          In principle, the Albanian authorities have a system of protection that would provide for the identification, arrest, and prosecution of non-state agents who are involved in criminal activity. Although the evidence shows that there continues to be problems with corruption in areas of Albania, there is in general an effective system of protection. The information contained in the latest CPIN report shows that Albania has a legal framework to prosecute traffickers and to support victims of trafficking albeit there are said to be some gaps in protection relating to trafficking of children internally. Although some services might be focussed towards female victims of trafficking, in principle, male victims of trafficking can access the same system of protection.

 

23.          The appellant's account of past events has been accepted. However, the assessment of risk on return must be undertaken at the date of the hearing. The appellant was trafficked from Albania to Belgium when he was 17 years old. At the time, he was still dependent upon his parents albeit that he mentioned in interview that he had done some agricultural work in the past. The appellant has lived in the UK for a period of 5 years. He is nearly 23 years old and is well into adulthood. There is little or no information about the appellant's life in the UK. It is unclear whether he has worked or studied. There is no evidence to show that the appellant is unfit for work. It is reasonable to infer that a young man of his age is likely to be able to work to support himself, if need be through basic labour, even if he does not have any significant qualifications.

 

24.          At the point when the appellant was trafficked from Albania, he was a vulnerable minor who was the victim of a criminal offence. However, at the date of the hearing he is significantly older. It is reasonable to infer that he has been able to navigate life in the UK and to establish himself to some extent in the last 5 years albeit it might have been with some support from a local authority (of which there is no evidence). Although the appellant told the First-tier Tribunal judge that he felt vulnerable, in fact, there is no expert or other evidence to show that the appellant has any physical or psychological issues that would render him particularly vulnerable or unable to work to support himself if he returned to Albania.

 

25.          The appellant says that he has not had any contact with his family because he is frightened. It is simply not known whether the criminals who threatened his family in 2020 have continued to threaten them since he escaped from their control in 2020. The appellant has not described any direct threats from the traffickers since he came to the UK. The person who borrowed the money was his father, who is more likely to be the focus of any adverse attention. There is insufficient evidence to show that those who trafficked the appellant in 2020 are likely to have a continuing interest in him.

 

26.          On the appellant's account, there has been no attempt by anyone in his family to report the criminals to the police or to seek protection from the authorities in Albania. We accept that a criminal gang with some international connections is more likely to be able to corrupt or intimidate the police in a small village. However, there is no evidence to suggest that those who trafficked the appellant are likely to have any significant influence beyond the appellant's village or local area.

 

27.          We recognise that the appellant comes from a rural area in northern Albania and that Albania is a small country. However, there is no evidence to suggest that the appellant is unable to work or could not establish himself in another area of Albania, such as Tirana, without undue hardship. The appellant expressed concerns about doing so when he spoke to the First-tier Tribunal judge. Of course it might be easier if he was able to rely on family support, but this does not necessarily mean that he could not establish an independent life of his own now that he is an adult.

 

28.          The appellant is a 22 year old man in good health. He has not contacted his family to find out whether they are in a position to provide him with assistance or not. Even if they are not in a position to help him, there is no current evidence to show that he is a vulnerable person who would be unable to work or to reestablish himself in Albania with the help of support services that are available for former victims of trafficking. He has not been the victim of trafficking involving sexual abuse that tends to attract stigma or discrimination. Even then, the background evidence shows that discrimination of this kind is largely directed towards women who have been the victims of trafficking for sexual exploitation because of discriminatory societal attitudes towards women.

 

29.          For these reasons, we conclude that the appellant has failed to show that there is a reasonable degree of likelihood that he would continue to be at risk from those who trafficked him or would be at risk of re-trafficking if returned to Albania at the current time. There are good reasons to suppose that a risk of serious harm would not reoccur. There has been a significant passage of time since those past events. There is a lack of evidence to show any current risk. Even if we had found a current risk, the evidence shows that the Albanian authorities, in general, operate an effective system of protection albeit there are some weaknesses due to continued evidence of corruption and some gaps in the legal framework. In any event, we conclude that it would be reasonable to expect the appellant to relocate to another area of Albania away from any influence that the traffickers might have had in his home area.

 

30.          Having found that there is insufficient evidence to conclude that the appellant is likely to be at risk on return to Albania at the date of this hearing, it is not necessary to make any detailed findings as to whether male victims of trafficking might form a 'particular social group' for the purpose of the Refugee Convention. We have not received any detailed legal submission from the parties on this point. Nevertheless, we have doubts as to whether male victims of trafficking are likely to form a particular social group in the context of Albania for the reasons indicated at [28]-[35] of the error of law decision. In light of our findings relating to risk on return, detailed consideration of this issue is not material to a proper determination of the appeal.

 

31.          For the reasons given above, we conclude that the appellant has failed to show that the decision would breach the United Kingdom's obligations under the Refugee Convention or that he would be at risk of serious harm amounting to a breach of Article 3 of the European Convention on Human Rights.

 

32.          No meaningful arguments have been put forward in relation to the appellant's right to private and family life under Article 8 of the European Convention. The appellant has only lived in the UK for a relatively short period of time. There is no information about his life in the UK to evaluate the strength of any ties that he might have developed. The appellant does not meet the requirements of the immigration rules for 10 years' lawful residence and falls far short of the private life requirement of 20 years continuous residence. There is no evidence to suggest that he has any family members, a partner, or children in the UK.

 

33.          We have already found that there is insufficient evidence to show that the appellant would be at risk on return now that he is an adult or that relocation to another area of Albania would be unduly harsh. For similar reasons, we conclude that there is insufficient evidence before us to show that the appellant might face 'very significant obstacles' to integration in Albania for the purpose of the private life requirements of the immigration rules. The appellant is a 22 year old Albanian national who speaks Albanian, is capable of work, and who continues to have familial and cultural connections to the country. The evidence shows that services are available in Albania to assist victims of trafficking to reintegrate. Even if a broader assessment of Article 8 is undertaken outside the scope of the immigration rules, there is no additional evidence of any compelling or compassionate circumstances that might render any decision to remove the appellant disproportionate.

 

34.          For these reasons, we conclude that the decision would not be unlawful under section 6 of the Human Rights Act 1998.

 

Notice of Decision

 

The decision is remade and the appeal is DISMISSED on protection and human rights grounds

 

 

M. Canavan

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

12 February 2025

 

[ANNEX]

A black and white emblem with lions and unicorns Description automatically generated

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-001983
	First-tier Tribunal No: PA/50436/2023 (PA/00858/2023)

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

.......................................

 

Before

 

UPPER TRIBUNAL JUDGE CANAVAN

 

Between

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

D R

(ANONYMITY ORDER MADE)

Respondent

 

Representation :

For the Appellant: Ms S. Cunha, Senior Home Office Presenting Officer

For the Respondent: No appearance

 

Heard at Field House on 04 September 2024

 

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

 

1. For the sake of continuity, I will refer to the parties as they were before the First-tier Tribunal although technically the Secretary of State is the appellant in the appeal before the Upper Tribunal.

 

2. The appellant (Mr 'D R') appealed the respondent's (SSHD) decision dated 08 December 2022 to refuse a protection and human rights claim.

 

First-tier Tribunal appeal

 

3. First-tier Tribunal Juge L. Mensah ('the judge') allowed the appeal in a decision sent on 25 March 2024. The judge accepted the credibility of the appellant's account of having been trafficked from Albania to the UK when he was only 17 years old. The appellant's case was that his father borrowed 15,000 Euros from a gang to pay for an operation for his mother. The family agreed that the appellant would go to work for the gang in Belgium to pay off the debt. He first worked in a car wash but was then moved to a cannabis farm. The appellant claimed that he was able to escape and travelled through several countries before coming to the UK. The judge noted that the respondent accepted that the appellant had been a victim of modern slavery [27].

 

4. The judge noted that the main dispute between the parties was whether the appellant would be at risk if returned to Albania. She considered what support the appellant's family might be able to provide. The appellant claimed that he had no contact with his family. The respondent had challenged this aspect of his account. However, the judge found that the account, when taken at its highest, indicated that his parents had been complicit in trafficking the appellant. For this reason, she found that he could not reasonably turn to his family for support. The judge concluded that the appellant's fear that he would end up back in the hands of the traffickers if he contacted his family was reasonable [28].

 

5. The judge then went on to consider 'the reach' of the men who were involved in trafficking the appellant. She considered the appellant's claim that one of the men from the gang stayed in the family home until the day came for the appellant to leave for Belgium. She found that during that time the family were held 'under some threat' so they did not involve the police. There was no evidence to suggest that his family involved the police thereafter, which reinforced her view that they were complicit in his trafficking. The judge took this as 'an indicator of future risk'. She considered that there was enough evidence to indicate that the men were likely to have sufficient influence in the appellant's home area to prevent the family from seeking help from the authorities. This was compounded by the background evidence, which continued to show that corruption is still a problem in Albania. The judge found that the appellant was also from an area of the north, which 'is more invested in these types of debt and blood feuds.' [29]

 

6. The judge then turned to consider the country guidance decision in TD and AD (Trafficked women) CG [2016] UKUT 92 (IAC) [31]. She also noted aspects of the respondent's Country Policy Information Note (CPIN) (with no reference to the date), which recognised that women who had been trafficked were likely to belong to a Particular Social Group ('PSG') for the purpose of the Refugee Convention. However, the CPIN did not consider that men who had been trafficked were likely to form a PSG. This was because, unlike women, it was said that they did not have a distinct identity within Albanian society [32].

 

7. At [33] the judge went on to consider further unspecified evidence, which given the numbering convention, might also have been from the CPIN. It stated that 'an official from Key Adviser told the Home Office FFM 2022 team that 'stigma affects both men and women, boys and girls...' However, it was the official's opinion that men and boys feel more stigmatised than women as trafficking was generally associated with sexual exploitation. Consequently, men would never admit they were VOT.'

 

8. The judge then considered information from the ARC/Asylos report 2019, which cited a comment from James Simmond-Read, a Service Manager at The Children's Society (in the UK), who also said that it was difficult for men and boys to recognised themselves as victims given the patriarchal nature of Albanian society. When they experience abuse it is not thought of as a crime. The judge considered that this was consistent with the appellant's evidence. He had struggled to explain why he did not want to have contact with his family. She was satisfied that this was in part due to his vulnerability and social norms [34]-[35].

 

9. The First-tier Tribunal decision went on to consider the definition of a PSG at [36].

 

' The protected characteristic of the individual,

[An Innate (sic) characteristic or common background that cannot be changed or characteristic of (sic) belief that is so fundamental to identity or conscience that a person should not be forced to renounce it.]

 

The social perception of the ground or 'social visibility' in the context of Namibian society

[the ground must have a distinct identity in the relevant country because it is perceived as being different by surrounding society](see X and Others) [underlining is my emphasis]

 

10. This appears to either be standard wording taken from another decision or note form drafting that was then not fleshed. Either way, that paragraph makes no findings in relation to the definition of a particular social group on the facts of this case, nor is it sufficient to demonstrate that the judge was applying the relevant legal principles. The judge went on to refer to the Upper Tribunal's decision in EMAP (Gang violence - Convention Reason) El Salvador CG [2022] UKUT 335 (IAC). Again, setting out what appears to be standard wording relating to the that decision without any findings on the facts of this case [37]-[38].

 

11. The only findings made in relation to a potential Convention reason that might relate to the facts in this particular case are found at [39]:

 

'39. I am satisfied on the facts of this case the Appellant as a former child victim of trafficking and whose family were complicit in the same, is a vulnerable individual and being such an individual isolated from his family support and having to relocate away from his home area, he would be perceived as different by his family and the persecutors. I am satisfied he meets the definition of Particular Social Group. He was selected because he was a vulnerable minor and his family were able to be manipulated into the same. He faces the stigma of sexual exploitation attached to being a former male child victim of trafficking.'

 

12. The judge then turned to consider whether sufficient protection was likely to be available from the authorities in Albania. She noted that both parties relied on the country guidance in TD (Albania). She noted that the decision in that case was based on evidence up to 2015. She quoted two paragraphs from the country guidance contained at [119] of the decision (sub-paragraphs (e)-(f)). Both paragraphs relate to the availability of services for women victims of trafficking in Albania:

 

'e)  There is now in place a reception and reintegration programme for victims of trafficking. Returning victims of trafficking are able to stay in a shelter on arrival, and in 'heavy cases' may be able to stay there for up to 2 years. During this initial period after return victims of trafficking are supported and protected. Unless the individual has particular vulnerabilities such as physical or mental health issues, this option cannot generally be said to be unreasonable; whether it is must be determined on a case by case basis.

 

f)  Once asked to leave the shelter a victim of trafficking can live on her own. In doing so she will face significant challenges including, but not limited to, stigma, isolation, financial hardship and uncertainty, a sense of physical insecurity and the subjective fear of being found either by their families or former traffickers. Some women will have the capacity to negotiate these challenges without undue hardship. There will however be victims of trafficking with characteristics, such as mental illness or psychological scarring, for whom living alone in these circumstances would not be reasonable. Whether a particular appellant falls into that category will call for a careful assessment of all the circumstances.'

 

13. The judge went on to make the following findings in relation to the sufficiency of protection:

 

' 41. The Appellant will be returning as a young men (sic) facing social stigma as identified herein, isolation, financial hardship and uncertainty. He will maintain a sense of physical insecurity and subjective fear of both his family and the traffickers. I am not satisfied the Appellant has shown himself capable of negotiating such matters. He remains effectively of little qualification and education. His awareness of what happened to him is still being expressed in naive terms. His has almost no work experience outside the work he was forced to do when trafficked as child. I consider the Appellant vulnerable to being exploited as he lacks the skills and guidance to navigate Albanian society alone. The country evidence does not suggest young men are likely to be able to access shelter support in the same way as woman and children and I accept the Appellant is not likely to engage due to the stigma and his subjective fears and distrust. On that basis I do not consider he can avail himself of a sufficiency of protection or internal relocation.'

 

14. At this point it might be relevant to note that there was fairly limited evidence before the First-tier Tribunal in order to assess the case. The appellant's bundle ran to 144 pages. It only contained the notice of hearing, the decision letter, a copy of the CPIN Albania: Human trafficking (Version 14.0)(February 2023), and a 3 page witness statement from the appellant dated 05 April 2024. The respondent's bundle contained the decision letter, the Statement of Evidence (SEF) Form, a witness statement from the appellant dated 24 June 2020, and a copy of the Asylum Interview Record (AIR).

 

Upper Tribunal appeal

 

15. The Secretary of State applied for permission to appeal to the Upper Tribunal. The grounds tend towards general submissions and are not clearly particularised. However, the following main points can be discerned.

 

(i)              The First-tier Tribunal erred in purporting to allow the appeal on asylum and on humanitarian protection grounds.

 

(ii)            The First-tier Tribunal erred in the assessment of whether the appellant would be at risk for reasons of his membership of a 'particular social group' ('PSG'). The judge failed to give adequate reasons for her findings.

 

(iii)          The First-tier Tribunal failed to give adequate reasons for the finding that the appellant would face 'very significant obstacles' to integration for the purpose of the Article 8 assessment. There was no evidence to show that the appellant suffered from any mental health issues or other vulnerabilities that would prevent him from being able to reintegrate in Albanian society or to show that he would be at risk on return. There was no evidence to indicate that his traffickers might have any ongoing interest in him. The grounds submitted that he was a healthy young man who could obtain work and re-adapt to life in Albania. The judge failed to give adequate reasons for her findings.

 

16. First-tier Tribunal Judge Boyes granted permission in an order dated 30 April 2024.

 

17. There was no appearance by or on behalf of the original appellant. The First-tier Tribunal records indicated that the appellant was likely to have been represented by Wimbledon Solicitors at an earlier stage when the appeal was lodged in the First-tier Tribunal. The First-tier Tribunal decision recorded that the appellant was represented by counsel at the hearing in March 2024. It was unclear from the copy of the Secretary of State's application for permission to appeal held on the Upper Tribunal records whether the respondent served a copy of the application for permission to appeal on the appellant's previous solicitors or the appellant himself.

 

18. I noted that there was no legal representative on record with the Upper Tribunal. The appellant was recorded as a litigant in person. The Upper Tribunal's records indicated that the appellant was sent a copy of the acknowledgment of receipt of the grant of permission and the hearing notice by post to his last known address given when the appeal was lodged in the First-tier Tribunal. The address was consistent with the address that had been held by the respondent since 21 March 2021. Even if the appellant does have a legal representative, he should have contacted them to notify them of the hearing date. No rule 24 response was received from the appellant to indicate whether he intended to respond to the Secretary of State's appeal to the Upper Tribunal.

 

19. The only other possible record was an unclear note on the Upper Tribunal's CE-file system dated 25 July 2024 stating: ' Telephone Call - tc rep, not on system. will get app to call.' First, the exact meaning of this note is unclear. Second, even if this note could be read to suggest that a legal representative might have called, they were likely to have been aware of the fact that there was an outstanding appeal before the Upper Tribunal, but no representative has put themselves on record with the Upper Tribunal since. There was no response to the telephone number that the respondent had on record for the appellant.

 

20. Having reviewed the available evidence, I was satisfied that it was likely that the appellant was notified that the application for permission to appeal had been granted and of the hearing date by post to his last known address. No explanation was given for the appellant's non-attendance at the hearing. No application for an adjournment had been received. For these reasons, I was satisfied that I could proceed to determine the appeal before the Upper Tribunal in his absence.

 

21. I have considered the First-tier Tribunal decision, the evidence before the First-tier Tribunal, the grounds of appeal, and the discussion that took place at the hearing, before coming to a decision in this appeal. It is not necessary to summarise the proceedings because they are a matter of record, but I will refer to any relevant discussion in my decision.

 

22. The Supreme Court in HA (Iraq) v SSHD [2022] UKSC 22 reiterated that judicial caution and restraint is required when considering whether to set aside a decision of a specialist tribunal. In particular, judges of the specialist tribunal are best placed to make factual findings. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v SSHD [2007] UKHL 49 and KM v SSHD [2021] EWCA Civ 693. Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v SSHD [2020] UKSC 49. When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v FTT (SEC) [2013] UKSC 19. I have kept these principles in mind.

Decision and reasons

 

23. I have considered the arguments put forward in the respondent's grounds of appeal and any potential arguments that could have been made by the appellant in response. I have also given careful consideration to the First-tier Tribunal decision. I find that the first ground has no merit but the last two grounds do disclose errors of law that were material to a proper determination of the appeal.

 

24. In relation to the first point, it is clear from what is said at [42] of the decision that the judge made alternative findings in relation to the Refugee Convention and Humanitarian Protection in the event that the appellant did not fall within a Particular Social Group (PSG) for the purpose of the Convention. This is common practice and was open to the judge to do.

 

25. The judge heard evidence from the appellant and was in the best position to assess the credibility of his account. She made findings relating to the history of past events that were open to her to make. The judge's credibility findings have not been challenged by the Secretary of State in the grounds of appeal. Indeed, the respondent accepted that the appellant was a past victim of trafficking.

 

26. However, the Secretary of State does seek to challenge the judge's findings relating to (i) the assessment of whether the appellant is likely to be at risk as a member of a PSG; and (ii) the likelihood of risk on return both in relation to the Refugee Convention assessment and Article 8 of the European Convention.

 

27. In relation to the first of those points, I have included direct quotes from the decision in the summary above because they illustrate how and why the judge's findings relating to membership of a PSG were either incomplete or unreliable. In particular, the apparent summary of the law at [36]-[38] was vague, incomplete, and referred to the wrong country. Those paragraphs fail to demonstrate any structured reasoning in relation to the relevant legal framework.

 

28. Even if I set those problematic paragraphs aside, the judge noted that the starting point was the TD (Albania), which only found that female victims of trafficking might be members of a PSG in Albania [31]. She also considered the respondent's view contained in the CPIN on Albania, which was that men were not likely to be viewed in the same way as women who had been trafficked and therefore did not form a PSG [32].

29. The name and date of the report was also not identified clearly in the decision but it is reasonable to infer that the judge was likely to be referring to the CPIN 'Albania: Human Trafficking' (Version 14.0)(February 2023), which was the only background evidence contained in either the appellant's or the respondent's bundles. Due to the way in which a CPIN report is prepared and presented the reports or other sources quoted in the CPIN are necessarily only partial evidence without the full context of the underlying report or document.

 

30. In addition to the respondent's statement about the formulation of 'male victims of trafficking' as a PSG contained in the CPIN, the judge considered two additional paragraphs in different sections of the CPIN. Section 8 related to treatment of victims of trafficking, and in particular, 'Discrimination and stigma'. Section 10 related to Protection and the paragraph considered came under the heading 'Identification of victims and the National Referral Mechanism'.

 

31. At paragraph 8.1.9 the considered information given by an 'official from Key Adviser' in a Home Office Fact-Finding Mission in 2022. There is no evaluation of what weight should be placed on this evidence. It is unclear who the source was or what their expertise was to comment on the issue. Nor was there any evaluation of their statement that 'men and boys feel more stigmatised than women as trafficking was generally associated with sexual exploitation' [my emphasis]. This contrasted with rest of section 8 of the CPIN, the majority of which made clear that it was the shame to the family 'honour' experienced mainly by women and girls who had been sexually exploited, which led to victims of trafficking facing stigma, discrimination and rejection from family members and society.

 

32. The other section that the judge appeared to place weight on was a selected quote from an ARC/Asylos report from 2019 from a Service Manager at the Children's Society in the UK, which was quoted at paragraph 10.4.6 of the CPIN. Again, there was no evaluation of what weight could be placed on this limited quote. On the face of it the person worked in the UK and did not have any apparent expertise or knowledge of Albania beyond his role in providing services to asylum seekers. The judge also failed to evaluate the context in which this quote was being used i.e. in a section relating to the identification of trafficking victims for the purpose of the NRM in the UK.

 

33. When analysed, neither of these quotes identified any meaningful evidence to show that male victims of trafficking were reasonably likely to face discrimination or stigma for reasons of their membership of a social group of 'male victims of trafficking' in Albania. The reason why women victims of trafficking, who are more likely to be subjected to sexual abuse, are likely to form a PSG is because of the patriarchal nature of Albanian society. The evidence provided examples of women being shunned and discriminated against because of the shame arising from the position of women in Albanian society and the perceived 'dishonour' that being a victim of sexual abuse might bring to their family.

 

34. The same patriarchal attitudes may help explain why male victims of trafficking might be reluctant to disclose that they have been exploited, most often in relation to forced labour, as in this case. However, the limited evidence referred to by the judge appeared to focus on the victims' perceptions of their position with reference to their own patriarchal attitudes i.e. that trafficking is perceived as a shameful thing because it is most often associated with sexual abuse. The evidence shows that those who are most often subjected to sexual abuse are women. The shame derives from societal attitudes towards women. What the evidence did not appear to do was to identify any instances of familial or societal discrimination towards male victims of trafficking in the same way as is faced by women victims of trafficking.

 

35. It was open to the judge to find that this evidence might explain why the appellant had found it difficult to articulate his concerns about returning to Albania [35]. However, there was a lack of reasoning at [39] as to why the appellant would be 'perceived as different by his family and the persecutors'. I have concluded that the combination of the lack of structured reasoning relating to the relevant legal framework at [36], combined with the inadequately explained finding at [39], is sufficient to amount to an error of law.

 

36. For similar reasons, the judge's finding relating to the risks that the appellant might face if returned to Albania are undermined by the failure to evaluate the evidence adequately and for insufficient reasoning.

 

37. It was open to the judge to find that the appellant might have been vulnerable at the point when he was trafficked. At that time he was still a minor. Nevertheless, at the date of the hearing, the appellant was nearly 22 years old. He was well into his adulthood and might have developed more resilience. Beyond a bare statement at the end of the asylum interview that sometimes 'I don't feel OK' when he thinks about his past, there appeared to be no evidence to suggest that the appellant might suffer from any significant mental or physical health problems that would render him unable to work or to live independently.

 

38. The judge appeared to conclude that the appellant was vulnerable based largely on his past experience of trafficking and his own statement that he thought that he might find it difficult to find work without the support of his family. There was an absence of specific evidence to show that the appellant was so vulnerable that he was unable to work or to support himself or that that male victims of trafficking suffer sufficiently severe discrimination. It might well be that, having heard evidence from the appellant, the judge still considered him vulnerable. She mentioned at [41] that he had 'almost no work experience' beyond his experience of trafficking, and that his awareness of what happened to him was limited. Although she concluded that the appellant 'still lacks the skills and guidance to navigate Albanian society alone', few reasons are given for coming to that conclusion on the limited evidence before her.

 

39. Nor was there adequate structured reasoning in relation to the issue of sufficiency of protection. The country guidance case the judge quoted related to female victims of trafficking but nevertheless found that there was in general sufficiency of protection for trafficking victims in Albania. Given that the case did not involve an assessment of the potential risk to male victims of trafficking, more detailed reasoning was required to rely on the country guidance given in TD.

 

40. Although many of the findings might have been open to the judge to make, I find that, overall, the findings relating to PSG and risk on return are lacking in sufficient detail for the losing party to understand how those findings were reached given the dearth of evidence produced by the appellant in support of the appeal.

 

41. For the reasons given above, I conclude that the First-tier Tribunal decision involved the making of an error on a point of law.

 

42. The usual course is for the Upper Tribunal to remake the decision, even if it involves making findings of fact. I have considered whether it is appropriate to remit the case to the First-tier Tribunal for a fresh hearing. However, the judge's positive credibility findings relating to the history of past events have not been challenged. It is appropriate to preserve those findings. Any remaking will concentrate on risk on return, and if there is a risk, whether it is for reasons of membership of a PSG.

 

43. I have also considered whether, given the absence failure to attend the hearing on 04 September 2024, the Upper Tribunal could go on to remake the decision on the evidence that is currently before the court. I take into account the fact that the appellant was successful before the First-tier Tribunal. At this stage it is unclear why he did not attend the hearing. I consider that it is in the interests of justice to adjourn the remaking to allow time for the appellant to explain why he did not attend the hearing on 04 September 2024 and to provide him with an opportunity to produce any further up to date information, or to instruct a legal representative, before the decision is remade by the Upper Tribunal.

 

Directions

 

44. The appellant (Mr DR) must send written correspondence to the Upper Tribunal no later than 14 days from the date that this decision is sent to him. In that letter he should:

 

(i)              Explain why he did not attend the hearing on 04 September 2024; and

 

(ii)            Say whether he will attend the next hearing when a date is given; and

 

(iii)          If he does intend to attend the next hearing, he must confirm whether he needs the help of an Albanian speaking interpreter; and

(iv)          If he has a legal representative, he should also give the details of his legal representative.

 

45. If the appellant (Mr DR) does not reply to this direction, and does not attend the next hearing without good reason, he is on notice that the appeal might be decided in his absence.

 

46. The parties (Mr DR and the SSHD) shall file on the Upper Tribunal and serve on the other side any up to date evidence that they wish to rely on no later than 14 days before the next hearing.

 

47. The parties (Mr DR and the SSHD) are given permission to make an application to the Upper Tribunal to change these directions if it is considered necessary.

 

 

Notice of Decision

 

The First-tier Tribunal decision involved the making of a material error of law

 

M. Canavan

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

13 November 2024