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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005220 UI-2024-005224
	First-tier Tribunal: PA/63798/2023 PA/63787/2023 LP/03763/2024 LP/10475/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

26 ^th March 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

 

Between

 

XL & SG

(ANONYMITY ORDERS MADE)

Appellants

v

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

Representation :

For the Appellant: Mr S. Ahmed, counsel, No 12 Chambers

For the Respondent: Ms Nwachuku, Senior Home Office Presenting Officer

 

Heard at Field House on 25 February 2025

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, [the appellant] ( and/or any member of his 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 ( and/or other person). Failure to comply with this order could amount to a contempt of court .

 

DECISION AND REASONS

 

1.        The joint appeals came before the Upper Tribunal for consideration of whether there was an error of law in the decision and reasons of the First tier Tribunal on 27 January 2025, when the Presenting Officer conceded on the basis that the judge had wrongly raised credibility issues which had not been raised in the refusal decision. The decision and reasons dated 30 January 2025 setting aside that decision and adjourning the appeals for re-making is appended.

 

2.        Prior to the hearing the Appellants' representatives served a skeleton argument and a joint Appellants' bundle. At the commencement of the hearing Ms Nwachuku informed me that she had not received the bundle so time was given to provide a hard copy and for her to have time to read it. Once she had done so she indicated that she did not have any questions for the Appellants and the appeals then proceeded on the basis of submissions only.

 

3.        Mr Ahmed commenced by setting out the material findings of fact ie. that the Appellants are lesbian women in a relationship albeit that in Albania their sexuality is not outlawed as they acknowledge. He submitted that the real question is the position as it stands on the ground and on the positive findings of fact these were two women who were observed kissing by their traffickers which resulted in them being captured and detained and assaulted. It may well be that the relationship is not outlawed but it is the view of the populace that is important. What they are saying in their statements is they fear persecution and the question is whether they can live in a society which is male dominated because of repercussions to them.

 

4.        Mr Ahmed acknowledged that whilst the Home Office CPIN " Albania: sexual orientation and gender identity and expression" v7 December 2022 provides at 2.4.6. that same sex relationships do not constitute a criminal offence and in general there is sufficiency of protection, he was basing submissions on findings of fact on their individual circumstances and that it is not simply that they are a lesbian couple but they have been persecuted on account of their sexuality and risk of re-occurrence and that there is a causal link between their sexual orientation and relationship and the fact that they were trafficked.

 

5.        With respect to the risk on return based on the fact that they are victims of trafficking Mr Ahmed sought to rely on his skeleton argument and the updated CPIN on Albania: Human Trafficking v16 July 2024 extracted the relevant paras- He submitted that whilst there has been an intention and motivation to bring about improvement to victims of trafficking that is not actually happening on the ground and that funding in respect of victims of trafficking is not perceived as a priority. Mr Ahmed submitted that in light of the Appellants' medical profiles their needs cannot be met by the shelters and that applying the guidance in TD and AD ( Trafficked women) CG [2016] UKUT 92 (IAC) they will not be safe in the shelter; they will not be able to integrate and relevant support would not be available. He submitted that the CPIN supports their case in terms of employment and accommodation possibilities and this is because the real attitude has not changed and victims of trafficking are seen by society as makers of their own circumstances and they are blamed and stigmatised. The Appellants have no confidence in the system that exists, the police and the shelters and when coupled with their medical conditions and diagnoses of the Appellants it is difficult to see how they could be safely returned to Albania.

 

6.        Mr Ahmed clarified that he was not running an article 3 medical case but the Appellant's medical conditions are part of the very significant obstacles and article 8 arguments and make up part of the profile within TD & AD ( op cit) which requires consideration. He submitted that whilst the Respondent may say they are educated women and therefore stand more chance of integrating into Albanian society, they have no connection with family and the medical evidence supports the consequence they would either choose to end their life (A2) or be subjected to panic attacks (A1). He submitted that they can be highly qualified but the issue was whether they can engage with the authorities if they are constantly worried about their safety and the question of sufficiency of protection needs to be assessed on a human level, given that they suffer from trauma and cause onset. Mr Ahmed submitted that the Appellants will not have the protection they are entitled to and as a result of their mental health will be more likely to be prone to the risk of re-trafficking given that society has stigmatised them and the concept of having to find work is impacted by the stigma attached to them.

 

7.        In her submissions, Ms Nwachuku relied on both refusal letters, which she acknowledged pre-dated the most recent CPINs, in particular, Albania, Actors of Protection" v 3 published February 2025 and also the CPIN on Mental Healthcare v3 published in January 2025. As for the Appellants' sexual orientation, whilst she acknowledged this was not in issue she sought to make brief submissions based on the CPIN v 7 dated December 2022. With regard to section 8 the Respondent's position is that the conduct of the Appellants in delaying claiming asylum means they fall within section 8 behaviours: they returned back to the UK in November 2021 and SG claimed the day her leave expired on 20 January 2022 and XL 2 days before her leave expired on 4 February 2022. Given the reasons they came back to the UK it is expected they would have claimed asylum on their return or at the earliest opportunity.

 

8.        She sought to rely on the CPIN Actors of Protection February 2025 which does state in 2.1.2 that the onus is on the Appellants to show that the State is not willing or able to offer protection. Ms Nwachuku submitted that the Albanian authorities are able to offer protection and the Appellants have not said they have sought protection and reasons have been provided for that. In my submission that does not take away from the fact that help is available. She submitted, in response to a question from the Upper Tribunal that protection was available from both the judiciary and the police.

 

9.        Ms Nwachuku submitted that the CPIN refers to BF [2019] EWCA Civ 1781, which postdates HJ Iran [2010] UKSC 31 which, although it refers to men, if read alongside the CPIN v7 December 2022 on sexual orientation it is clear it can be applied to all members of the LGBTI+ community. What they say happened which caused the issues that happened is that they were expressing themselves openly. This is supported by the CPIN. If it was in Iran or Pakistan it is reasonable to think they would not embrace openly due to fear of repercussions. However, it should not be a reflection of what the whole of Albania looks like and she submitted that more weight should be attached to the CPINs especially in Tirana. In countries which are more tolerant you still get hate crime even in the UK and the focus should be on Albania as a whole and how individuals as a whole would deal with this. Ms Nwachuku reminded me that it was not against the law in Albania to be gay and there are measures to protect individuals who belong to these communities to reach out to the police.

10.    Ms Nwachuku stated with regard to paragraph 339k of the Rules that she appreciated the difference and the Appellants themselves mention these masked men particularly and everything stems from them. The points that are made about the wider community have not happened to them, just specifically these men and this is where the difference comes. She submitted that the Appellants have been able to work and that support would be available to them in Albania. Whilst they may be estranged from some family members they could obtain alternative support eg from NGOs and counselling. In terms of very significant obstacles to integration she made the same submission. With regard to mental health, Ms Nwachuku referred to the letter from Mr Brown (for XL) which states that she would be vulnerable to exploitation if not supported correctly, but she could obtain that support in Albania see [7.1.1] v3 January 2025 and the Mental Health CPIN which shows that patients do not pay for services because they are insured. The Respondent's position is that they could get insurance to pay for these services. The letter also states that XL is on medication, however, medication is available in Albania and whilst the exact medication name does not appear in the CPIN there is a link that gives a full list of medication and it may be that she is able to access different anti-depressant medication. Ms Nwachuku submitted that, with medication, XL is able to work a 40 hour week in a sewing factory.

 

11.    Ms Nwachuku submitted that the Appellants have not shown they meet all the 7 limbs of AD & TD ( op cit) in that they are able to work, have some form of education and can mitigate being trafficked as support and medication would be there for them and centres available, both outpatient and inpatient to deal with any mental health issues. With regard to any risk of suicide on return she relied upon the judgments of the Court of Appeal in J [2005] EWCA Civ 629 and Y & Z [2009] EWCA Civ 362 at [62].

 

12.    In reply, Mr Ahmed submitted that the updated CPINs are not very different from July 2024 CPIN: see February 2025 at [2.1.10] and [2.1.4] which stated that corruption was a widespread problem in Albania; guidance provided within the CPIN with reference to TD & AD ( op cit). He submitted that sufficiency of protection was not available in every case and one has to look at the circumstances. With regard to the CPIN January 2025 in respect of sexual orientation he sought to rely on 2.4. which refers to harassment, discrimination and violence, which was not sufficiently serious by its nature to amount to serious harm: 2.4.12 . he submitted with regard to BF (op cit) that the factual matrix of those circumstance there was very different from this factual matrix where there is direct evidence that has been assessed on a balance of probabilities and has concluded Appellants are victims of trafficking. At [2.5.3] there is a discussion within the CPIN in respect of CG decision in BF (op cit) that that particular case must be assessed regarding openly gay men and what the Tribunal were asked to do was not to consider the factual matrix but those who were likely to be persecuted or discriminated against. With regard to Ms Nwachuku's point the masked men who attacked and trafficked the Appellants are part of the community as they are Albanian men in Albania who are part of that community and took it upon themselves to punish the Appellants.

 

13.    The Appellants are currently working in the UK and supported in the UK and in terms of the balancing exercise it is quite evident they have the problems they have claimed, however their work helps them to forget about their traumas and give their life some substance. TD & AD (op cit) focuses on work in Albania but social stigma would be attached to them as lesbians who have been trafficked. CPIN 5.1.2 talks about the attitudes of friends and family and those who are open about their sexuality face a negative attitude. Mental Health CPIN has a fundamental problem in that it does not factor in victims of trafficking. Whilst the CPIN refers to the availability of a bespoke system which it has been submitted the Appellants should fall into, when one looks at that system it is not bespoke for those who are victims of trafficking and are Appellants. In the alternative there may be treatment available but the Appellants are unable to engage as they have no trust in organisations in Albania, whereas the relationships they have with their providers in the UK are bespoke to their needs and is the correct support they need to be in an environment where they feel safe.

 

Decision and reasons

 

14.    My starting point are the material facts accepted by the Respondent, which are that both Appellants are members of a particular social group ie lesbians from Albania, they are in a relationship and are also victims of trafficking following being abducted by masked men, sexually assaulted by multiple men and subjected to physical and verbal abuse on account of their sexual orientation. This took place in the Shkoder area of North Albania, where both the Appellants are from and where their families live. They did not report what happened to the police in Albania because the men knew their identities and where they live. It is accepted that the Appellants are estranged from their family members as a consequence of their sexual orientation and stigma arising from being a victim of trafficking.

 

15.    The issues that require determination in light of the accepted facts are:

 

(i)      Whether there is a risk of persecution/serious harm cf. HJ (Iran) [2010] UKSC 31;

(ii)    Whether there would be a sufficiency of protection for the Appellants from the Albanian authorities;

(iii) Whether it would be unduly harsh to expect the Appellants to internally relocate;

(iv) Whether there is a risk of re-trafficking on return to Albania;

(v)    Whether removal of the Appellants would be contrary to article 8 of ECHR.

 

Risk on return on account of sexual orientation

 

16.    Both parties sought to rely upon the most recent CPIN " Albania: sexual orientation and gender identity and expression" v7 December 2022. This provides that same sex relations are legal although same sex marriage and civil unions are not recognised [2.4.6] and that whilst some LGBTI persons face harassment, discrimination, violence and exclusion from non-state actors, in general this is not sufficiently serious by its nature and/or repetition or by an accumulation of various measures to amount to persecution or serious harm. However, decision makers must consider each case on its facts. At 2.4.15 the CPIN provides that: " Albania is a patriarchal, conservative society in which homophobic attitudes still exist, particularly in rural areas." The same paragraph provides that NGOs report that the LGBTI community face difficulties accessing education, employment, housing, healthcare and goods and services due to prevailing negative attitudes in Albanian society.

 

17.    The Upper Tribunal has not addressed the issue of lesbians from Albania since 2009, which pre-dated the judgment of the Supreme Court in HJ (Iran) and so cannot be relied upon. More recently the Court of Appeal in BF Albania [2019] EWCA Civ 1781 held that the Upper Tribunal's decision was a lawful approach to the problems of the LGBTI community (per Hickinbottom LJ) however the underlying decision in giving country guidance made clear that: "we determine only the position for openly gay men returning to Albania and for reasons we give above only to Tirana."

 

18.    Bearing in mind the provisions of paragraph 339k of the Immigration Rules and the fact that the Respondent expressly accepted the factual background underlying these protection claims I find that the Appellants would be at risk of persecution from the same men who subjected them to previous persecution on the basis of their sexual orientation if they returned to their home area of Shkoder.

 

Sufficiency of protection

 

19.    The Appellants did not report their previous persecution to the police on the basis that the men who persecuted them knew their identities and where they lived. I find that for this reason and the fact that it is not disputed that they are now estranged from their families that the Appellants cannot safely return to their home area.

 

20.    The CPIN in respect of sexual orientation provides at 2.5.1. that the authorities are in general willing and able to provide effective protection for LGBTI persons but decision makers need to consider each case on its own facts. Whilst it was acknowledged in BF (op cit) that gay men from outside Tirana may be at risk of violence on account of their sexuality, there exists in Tirana a generally effective system of protection.

 

Internal relocation

 

21.    Whilst the Appellants are gay women not gay men the evidence summarised at [20] would appear to indicate that in general there is sufficiency of protection in Tirana. It is not suggested that the Appellants internally relocate to anywhere else in Albania. It is a small country slightly larger than Wales with a population of only 2.8-3 million people, half a million of whom live in Tirana.

 

22.    In BF (op cit) the Upper Tribunal found that an openly gay man would not have an objectively well-founded fear of persecution or serious harm on return to Tirana but it is plausible that a person might be traced via family or other connections or others who would wish them harm and that is a question for determination on the evidence in each case, but in general it will not be unduly harsh for an openly gay man to relocate to Tirana, but each case must be assessed on its own facts, taking into account an individual's particular circumstances, including education, health and the reason why relocation is being addressed.

 

Risk of re-trafficking

 

23.    The Appellants' status as victims of trafficking is clearly material to an assessment of whether or not internal relocation to Tirana would be unduly harsh. Ms Nwachuku submitted and I accept that both Appellants have some education and have worked in the United Kingdom.

 

24.    I take into consideration the factors set out in TD & AD (Trafficked Women) CG [2016] UKUT 92 (IAC) ie:

 

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.

 

25.    As to the first criteria this is not known or in fact particularly relevant given that it is accepted that the Appellants are now estranged from their family members. This also means that they will not have a support network available on return. I find that given that both Appellants are in receipt of fairly substantial support in respect of their mental health. XL, the first Appellants, was referred by her GP to Crisis Resolution Home Treatment team to provide support. She has been diagnosed with depression and trauma and given medication. She also suffers from suicidal ideation. She also receives support from a Mental Health recovery worker. SG, the second appellant suffers from depression, anxiety, insomnia and suicidal ideation she is receiving ongoing support from a counsellor and has been diagnosed with PTSD.

This is clearly a relevant consideration.

 

26.    I accept both Appellants have had the benefit of an education which would assist them to some extent in finding employment. However I have to balance the fact that against that they could well be subjected to discrimination in seeking employment on the basis of their sexual orientation, according to the CPIN at 2.4.16 referred to at [16] above. Both Appellants are from the same area of Shkoder in Northern Albania, which is a part of the country with traditional, patriarchal views. They remain young women.

 

27.    A further material consideration which is specific to these appeals is the fact that the Appellants would be together, in a same sex relationship. Clearly whilst as the reports from the various support workers note, they do provide each other with emotional support which is a positive factor, I find the fact that they are in a same sex relationship would potentially exacerbate the risk of persecution for that reason. It may also make it easier for them to be located if their former persecutors did wish to trace them to Tirana: see BF at [22] above at headnote (iii).

 

28.    Whilst they may well be able to access short term support and accommodation in a shelter for former victims of trafficking, this is not a long term solution, albeit the updated CPIN on victims of trafficking, July 2024 notes at 4.3.1. that a person may stay in a shelter for 3-5 years if mental health issues necessitate this and at 4.2.3 that there has been investment of £3.5 million through the Home Office Modern Slavery Fund to help provide reintegration support to former victims of trafficking, however this programme was only delivered until March 2025. There are also some unspecified funds being made available to assist returnees to Albania generally.

 

29.    The same CPIN notes in respect of internal relocation at 5.1.1 that women and girls identifiable as victims of trafficking may face discrimination from societal actors, because of their gender and the fact that they have been trafficked.

 

30.    Considering all the factors holistically I find that there is a real risk that the Appellants would be subjected to discriminatory measures on account of being former victims of trafficking and lesbians in a same sex relationship. I find that they would be at risk of potential discrimination by both State and non-State actors, in circumstances where, in light of the uncontroverted evidence as to their ongoing mental health issues and need for support that their ability and resilience to deal with discrimination is undermined and the cumulative effect may amount to persecution and/or may force them into a situation of risk in terms of re-trafficking in an attempt to flee the country. For the same reasons I find it would be unduly harsh to expect them to relocate to Tirana.

 

31.    I find the Appellants have a well-founded fear of persecution in Albania on account of their membership of two particular social groups - former victims of trafficking and lesbians. In light of my finding, I do not go on to consider Article 8 of ECHR as a separate head of claim in detail, except to note that the same factors set out above would also amount to very significant obstacles to integration in Albania.

 

Notice of Decision

 

32.    I allow the appeals on protection grounds.

 

33.    I allow the appeals on human rights grounds (article 8).

 

 

Rebecca Chapman

 

Deputy Upper Tribunal Judge Chapman

 

23 March 2025