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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 >> PA088792016 [2019] UKAITUR PA088792016 (15 November 2019)
URL: http://www.bailii.org/uk/cases/UKAITUR/2019/PA088792016.html
Cite as: [2019] UKAITUR PA088792016, [2019] UKAITUR PA88792016

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Upper Tribunal

(Immigration and Asylum Chamber)

 

Appeal Number: PA/08879/2016

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House

Decision & Reasons Promulgated

On 23 September 2019

On 15 November 2019

 

 

 

 

Before

 

UPPER TRIBUNAL JUDGE BLUNDELL

 

Between

 

L K (Albania)

(ANONYMITY DIRECTION MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellant: Ms Gherman, instructed by Virgo Solicitors

For the Respondent: Ms Everett, Senior Presenting Officer

 

 

DECISION AND REASONS

 

1.         On 17 July 2019, I issued a decision in which I concluded that the First-tier Tribunal had erred materially in law in dismissing the appellant's appeal. I set aside the decision of the First tier, although I preserved certain findings of fact which were not tainted by the legal error into which that Tribunal had fallen. Given the history and relative complexity of the case, which has been ongoing since 22 August 2016, I directed that the decision on the appeal would be remade in the Upper Tribunal. To that end, I reserved the case to myself. The hearing reconvened before me on 23 September 2019, when Ms Gherman of counsel continued to represent the appellant and Ms Everett continued to represent the respondent.

 

2.         I have appended my decision of 17 July to this one and I do not propose to rehearse its contents. The unusual factual background appears at [3] of my first decision. The appellant was a police officer in Albania who refused to become involved in illegal activity at Tirana Airport, where she was stationed. She fears recriminations from the gang which was behind that activity, including physical harm at their hands and a false prosecution which she believes to have been instigated by them in an attempt to keep her out of the country. At [21] of my first decision, I stated that there were five key factual elements to the appellant's claim:

 

Firstly, that the appellant was a police officer stationed at Tirana Airport. Secondly, that illegal migration was facilitated at that airport and the appellant refused inducements to take part. Thirdly, that the appellant had been threatened by BM and his associates for that refusal. Fourthly, that she was the subject of a prosecution in Albania. Fifthly, that the prosecution was instigated at the request of the criminal elements which controlled the operation at the airport.

 

3.         The judge in the FtT accepted that the appellant was a police officer at the airport and that she had refused inducements to become involved in illegal activity there. It was also accepted that there was a pending prosecution against the appellant. The judge did not accept, however, that the appellant was actively targeted by BM, a senior officer involved in the illegal activities, whether by threats of violence or by the instigation of false charges. As I explained in my first decision, the premise which underpinned those conclusions was that the appellant knew too little about the operation for the gang to go to these lengths. The judge felt that the appellant had not been 'making waves' and that she would have been left alone by the gang. I accepted that Ms Gherman had established a critical flaw in that premise, which was that the judge had overlooked aspects of the evidence in which the appellant claimed to know enough information about the gang to cause difficulties for them. Ms Everett sensibly accepted that the remainder of the decision could not stand insofar as it was based on that erroneous premise. So it was that the appeal returned before me for further findings of fact to be made on the remaining issues, and for the appeal to be determined in light of those findings.

 

4.         Despite my directions that there should be a consolidated bundle filed and served in advance of the resumed hearing, this had not occurred. Ms Gherman indicated that she intended to rely upon the bundle of 496 pages which had been filed in advance of the first hearing. I had that bundle, as did Ms Everett, and the failure to comply with my directions caused no difficulty. Ms Gherman indicated that she intended to call the appellant to give brief evidence in chief. I noted that the appellant's latest statement was well over a year old. Ms Gherman assured me that the updating evidence she intended to elicit from the appellant would not place Ms Everett in any difficulty. It was in those circumstances that I allowed Ms Gherman to ask the appellant questions beyond the formal adoption of her witness statement. Before she did so, she drew to my attention the fact that the court-appointed interpreter had interpreted for the appellant at a previous hearing in the FtT. This caused the appellant no concern. Ms Everett confirmed that it caused the respondent no concern. I saw no reason why it should cause the Tribunal concern, there having been no concern of any description raised about the conduct of this interpreter on the previous occasion.

 

5.         Before the appellant gave evidence, I indicated that I intended to treat her as a vulnerable witness in accordance with the Joint Presidential Guidance Note No 2 2010. I did so without objection from Ms Everett and on account of the evidence that the appellant is suffering from depression and anxiety, as documented in her NHS records and in the report of Dr Cutting, a Consultant Psychiatrist. I explained the procedure which would be followed to the appellant in light of that decision. She confirmed that she understood the interpreter.

 

Oral Evidence

6.         The appellant adopted her previous statements. She stated that she had had no contact with her family in Albania since October 2018. She had spoken to her mother in France 'a little' and she was aware that they had been refused asylum and were in the process of appealing. There was no timescale that she knew of. She had had no contact with her lawyer in Albania. She had chosen not to do so because she felt that he had abandoned her case. She had not been provided with any other update on the case from another party. She had received no further threats since October 2018. Her son was healthy and was three and a half years old. As for her mental health, she was taking Mirtazapine for stress and to aid her sleep. She took it every day, a 45 mg dose. She planned to start counselling sessions in October.

 

7.         Cross-examined by Ms Everett, the appellant stated that she had not thought about instructing another lawyer in Albania; no one took her case without being paid and she did not have enough money to take that step. It was correct that her niece in Albania had power of attorney but that was in 2015, merely to start the case. Her niece remained in Albania but she had not been in contact. Her niece is a young girl and was too frightened to contact the appellant. Her niece in 27 years old. Ms Everett suggested to the appellant that she had previously been represented by a legal aid lawyer in Albania and that this had been in 2017. The appellant stated that her niece had not had power of attorney at that time. Ms Everett suggested to the appellant that her witness statement tended to suggest the contrary, and the appellant maintained that her niece had only had power of attorney at the very beginning.

 

8.         Ms Everett asked the appellant about the reference in her statement to a 'good friend' who had assisted her to find a lawyer. The appellant stated that this was a woman who had studied law and had been able to put her in touch with a legal aid lawyer. This woman did not want to be involved, however, and the appellant had not sought to make touch with her again. She did not want to have contact with anyone from university or from her workplace because she feared for her life. Other people had been arrested from her workplace but that had happened after she came to the UK. Ms Everett asked whether they had been released from prison. The appellant said they had not. She had only known these people as colleagues. She did not know whether they were part of the criminal mafia in Albania and she did not know whether they were not guilty of the charges they faced. They did the same job as the appellant.

 

9.         Asked about her family in Albania, the appellant said that she had two sisters there, as well as other relatives and an uncle. She was not in contact with them and they did not want to speak to her. She did not think that her parents were in contact with these relatives either, although she did not talk to her parents about that. She felt very stressed and unable to talk. Her parents would typically just ask how she was and the conversation would progress no further. Ms Everett asked whether the appellant sent photos of her child to her parents. The appellant said that she did not; she spoke to her parents on Skype and they had consequently seen her son in that way. Her sisters had not seen her son either.

 

10.     There was no re-examination.

 

Submissions

11.     Ms Everett relied on those aspects of the refusal letter which survived the decision of the First-tier Tribunal. The preserved findings resolved the large part of the appeal and the area of dispute was really what would happen to the appellant on arrival. It was not clear that the appellant posed any kind of risk to the gang. She perceived her manager to be involved but was not aware of whether other people had been. She was clearly afraid of the rampant corruption in Albania. The background evidence was not entirely supportive of her contention that she would not receive a fair trial. It was clearly the case that there is corruption in Albania but it was equally clear that concerted efforts were being made to deal with that problem. It was not clear which way that cut in the present case; it could be indicative of a sufficiency of protection, in that the real criminals had been convicted and imprisoned. Or it could be indicative of an ability on the part of the criminals to secure an unjust result. The appellant was not a whistle-blower and the reality remained that she had no concrete basis upon which to incriminate the gang. It was wholly unclear why the gang would target her with a false prosecution if they intended to kill her upon arrival. If it was correct that they had their tentacles into the judiciary then she was likely to be in difficulty but the government was clearly trying to get a grip on such matters. It was slightly surprising that the appellant had not been in contact with more people in Albania. She had arranged for her niece to have power of attorney in the past and it was odd that she had taken no further such steps.

 

12.     In relation to Article 8 ECHR, Ms Everett submitted that the appellant clearly had a support network in Albania and it was not the case that her child would go to an orphanage. In the event that the appeal fell to be allowed on protection grounds, the Article 8 ECHR claim would fall away. The protection claim was clearly the stronger of the claims, given the appellant's support network and the fact that the appellant has a degree and a professional background. There were not very significant obstacles to the appellant's re-integration to Albania. Her appeal fell to be dismissed.

 

13.     Ms Gherman relied on the skeleton argument she had prepared for the hearing before the FtT; the further submissions she had made after that hearing and the grounds of appeal she had settled to the Upper Tribunal. She posed a series of factual questions which she invited me to resolve in the appellant's favour. Firstly, was it accepted that there was a criminal mafia which had its 'tentacles' in every arm of the Albanian state? The material cited in the skeleton and the expert report from Antonia Young clearly established that to be the case. As that material showed, there are strong ties between the police and the judiciary in Albania. The material cited in the skeleton was not partial; it came from the respondent's CPIN itself. The next question, Ms Gherman submitted, was whether or not there was interest in this appellant. She had dealt with this point most thoroughly in her grounds of appeal to the Upper Tribunal, [12] of which drew together the evidence that the appellant knew a little too much about the activities of BM and would be an obvious person to silence if they were attempting to secure their position. The obvious inference from the fact that BM's father was a senior police officer was that pressure had been brought to bear on those in positions of authority. The appellant knew about serious criminal conduct on the part of senior figures and there was a clear reason to keep her quiet. She had seen enough and she would be at risk from the mafia and the authorities. She would not receive a fair trial. The judge in the FtT had set a great deal of store in the decision of the Scottish High Court in Kapri v Lord Advocate 2014 SLT 557 but this was clearly distinguishable on the basis that the appellant in that case had no profile which might influence the trial process in Albania. The same could not be said of this appellant. As for the question of whether the appellant's claim engaged the protection of the Refugee Convention, it clearly did. The appellant was perceived as being different because she would not play her part in the endemic corruption in Albania. Failing that, she was at risk on account of her actual political opinion, which favoured the rule of law.

 

14.     The appellant's Article 8 ECHR was advanced inside and outside the Immigration Rules. Under the Rules, Ms Gherman submitted that there would be very significant obstacles to the appellant's re-integration to Albania. She had given truthful evidence about cutting ties with her family in Albania. They had no desire to have contact with her when to do so might jeopardise their own safety; the account was entirely plausible in that regard. The appellant had attempted to protect herself and her son by distancing herself from her family. The consequence was that the appellant had no one to go back to in Albania. The consequences of returning to Albania as a lone woman with an illegitimate child were made clear in the country guidance decisions, and were worsened for a person, such as the appellant, with mental health problems. As a package of difficulties, these problems amounted to very significant obstacles. Ms Young had considered the issue in her report and it was clear that Albania had very different views about women with illegitimate children. It remained Ms Gherman's submission that there was a possibility of the appellant's son being taken into an orphanage in the event that she was detained pre-trial. The best interests of her son were served by remaining in the United Kingdom.

 

Analysis

15.     It is for the appellant to prove her protection claim to the lower standard. Much of it has already been accepted, as I have explained above and in my earlier decision. It is abundantly clear, as the judge in the FtT found, that the appellant was a police officer in Albania and that she was serving at the airport. There is copious evidence in support of that claim, including her original identity cards and her bank statements showing salary payments from the Border and Migration Department. It is also reasonably likely, when the appellant's consistent and detailed claim is set against the background material cited in Ms Gherman's skeleton, that there were illegal activities at Tirana International Airport and that the appellant refused blandishments to become involved in those activities. The primary factual question for me - as Ms Everett recognised in her measured submissions on behalf of the respondent - is what would happen to the appellant on return to Albania in light of that refusal.

 

16.     I do not accept the submission made by Ms Everett that the gang has no reason to target the appellant. It is correct that she did not seek to progress a complaint against BM or his associates. She did not become a whistle-blower and she did not 'make waves', as the judge found in the First-tier Tribunal. The fact remains, however, that she is privy to information which could cause problems for BM and therefore for his father, the Chief of Criminal Investigations of the Border Directorate at Tirana Airport. The appellant gave details of this information in her statement of 5 March 2017. She was asked by BM to 'let some unauthorised Turkish immigrants into the country and let some banned Albanians leave the country'. She was offered financial inducements by him to become involved. She refused a direct order to become involved. She was aware that BM and others had failed to enter relevant information onto the immigration system at the airport and she was also aware that they had deleted relevant entries in order to cover their tracks. She had prevented a passenger from leaving the country, only for BM to take that individual to a corrupt officer who allowed him to pass. There was a further incident involving three banned individuals who the appellant refused to allow to travel. BM instructed her to reverse her decision because 'they were known to the Director' but the appellant maintained her stance, only for the people to be taken to one of the corrupt officers and allowed to travel. The appellant can document a catalogue of misconduct on the part of BM.

 

17.     The appellant left the country in October 2015. Two days after she left, proceedings were issued against her. It is reasonably likely, in my judgment, that there was a direct link between these two events. The appellant had left the country and could then have chosen to blow the whistle about the gang's activities. In an effort to prevent that happening, or in order to discredit the appellant in advance of it happening, criminal proceedings were initiated against her and threats were made against her and her family. It is reasonably likely that the gang sought to silence the appellant in this way and, as she suggests at [9] of her March 2017 statement, to cause her to fear returning to the country. Ms Everett submitted that the gang would not initiate a false prosecution whilst at the same time threatening the appellant. I do not agree. The method employed is to attempt to control the appellant by threatening her and her parents whilst at the same time seeking to discredit her through prosecution and the resulting loss of long-standing employment as a police officer with a long and reasonably distinguished service record.

 

18.     Ms Everett queried why the appellant had not pursued avenues of legal redress and why she had not been in contact with those - including her niece - who had been prepared to assist her in the past. I considered her response to these lines of cross-examination to be entirely in keeping with the report from Dr Cutting and the associated medical papers from the NHS. Before me, the appellant gave the impression of having been 'beaten' by the pressures she faces in Albania, and to have given up. In the absence of evidence confirming long-standing mental health problems, Ms Everett's submission that the appellant could have done more to contest the untrue allegations might have held water. In the context of a woman with a young child who has faced these allegations for four years, however, I considered it to have the ring of truth that she had simply stopped contacting people in Albania because, rightly or wrongly, she felt that there was no more which could be done.

 

19.     I find that the appellant's account is reasonably likely to be true from start to finish. I accept that she is a police officer who decided to take a principled stand against the corruption at the airport and that this decision resulted in threats and a false prosecution against her. Those threats were sufficiently serious that they caused her parents to flee the country and to claim asylum in France and they caused the appellant to take the decision that she could not return to Albania.

 

20.     In the event that the appellant were to return, I consider the predominant risk to be that she and her son would be targeted for physical harm by those behind the illicit activities at Tirana Airport. As an individual who is targeted by people with connections at the highest level of the police force, and against whom there are extant proceedings, I consider it unlikely that she could depend upon any realistic avenues of domestic redress against this threat. I accept the submissions made by both advocates in this respect. Ms Everett is doubtless correct to submit that the Albanian authorities are making great progress in addressing corruption and in fighting trafficking and other such criminality. Ms Gherman is also correct to submit, however, that corruption is still common. Sadly, as the third report from Antonia Young shows, the extent of that corruption extends into the judiciary and a new judicial vetting system which was introduced in 2018 has made little progress. It remains the case that the police force and the judiciary have strong ties to organised crime.

21.     The second threat faced by the appellant is one of wrongful prosecution. In the First-tier Tribunal, the judge thought that the appellant would receive a fair trial. As I noted in my original decision, that was not a finding which was reached in the alternative. It took as its starting point the judge's conclusion that the appellant was of no real or ongoing interest to BM and his associates. For the reasons I have given above, I have reached the opposite conclusion. Having so decided, and having considered the material parts of Antonia Young's report alongside the background evidence cited in the refusal letter, I come to the clear conclusion that this appellant's case is immediately distinguishable from a case such as the Scottish extradition case of Kapri. As Ms Gherman noted in her written submissions before the FtT, the appellant in that case had no reason to believe that the judicial system in Albania would be skewed against him. In this case, there is every reason to believe that the appellant's pursuers would have the motive and the means to skew the trial process against her. That such corrupt practices occur in the judicial system in Albania is clear from the background material cited, including the respondent's CPIN, relevant sections of which are helpfully reproduced at [46] of Ms Gherman's original skeleton argument. BM in particular has connections at the very highest levels through which pressure could be brought to bear.

 

22.     I therefore come to the clear conclusion that the appellant faces two types of risk on return to Albania and that there would be no adequate domestic redress against either threat. Ms Everett did not submit that the appellant could relocate internally so as to avoid any such threat. She was quite right not to do so, for two reasons. Firstly, there is a likelihood that the threats would be realised as soon as the appellant arrived in Tirana, given that the risk is from state actors or rogue state actors. Secondly, as is clear from the country guidance decisions in AM & BM [2010] UKUT 80 (IAC) and TD & AD [2016] UKUT 92 (IAC), Albania is a small country in which an individual's background is likely to be the subject of enquiry, thereby enabling a would-be persecutor to learn of an individual's new location.

 

23.     It remains for me to consider whether the risk faced by the appellant is one which engages the Refugee Convention. Ms Gherman submitted that it did so in two ways. She submitted firstly that it the appellant was at risk because of her actual political opinion, which she described at [25] of her skeleton argument as being "respecting the Rule of Law and being anti-corruption". This submission was not further developed, whether by reference to the Qualification Directive or the extensive domestic and international jurisprudence in which such questions have been considered. I have therefore considered the point for myself.

 

24.     Article 10(1)(e) of the Qualification Directive does not appear to assist the appellant. She does not hold an opinion, thought or belief about the policies or methods of the Albanian state. On the contrary, the stated policy of the Albanian state is anti-corruption. The treatment at paragraph 5.8.2 of Professor Hathaway's Law of Refugee Status (2 nd Edition) is of interest, however, as he notes at p415 that there are three contemporary contexts in which the ability to recognise refugee status based on imputed political opinion has particular salience, one of which is identified as "opposition to corruption". As he recognises thereafter:

 

The difficulty with these claims is that a risk of being persecuted is not for reasons of political opinion simply because it arises in a politicised context. Unless the reason for the applicant's predicament is his or her political opinion, - whether it is an opinion genuinely held, or an opinion imputed or implies - the causal nexus is not met.

 

25.     Professor Hathaway emphasises that the assessment of the claim in the context of the particular society is key. Considering the appellant's claim in the context of Albanian society and Albanian politics, I do not think that it can properly be said that decrying (or refusing to become involved in) corruption there can be said to strike at the core of government. On the contrary, the appellant's beliefs are aligned with the politics of the Albanian state. The reason that the appellant fears persecution is as a result of her opposition to corruption on the part of individual officers, in respect of which the approach of the Australian Federal Court in Zheng v MIMA [2000] FCA 670, as cited by Professor Hathaway at p417, applies:

 

[it] needs to be emphasised that where individual, rather than systemic, corruption is exposed it is less likely that the act of exposure will be one in which a political opinion will be seen to have been manifested. This is because the exposure in that instance is more likely to be seen as the reporting of criminal conduct rather than any form of opposition to, or defiance of, state authority or governance.

 

26.     That decision is obviously not binding on me but I find the reasoning to be highly persuasive. The appellant's opposition to the actions of BM and his associates cannot properly be categorised as political and the reasons that she would be targeted by them are not rooted in her actual or imputed political opinion. They seek to target her because she has the potential to undermine their criminal activities and those practices are not so closely intertwined with the state that a challenge to them is a challenge to the state itself. In the Albanian context, the appellant's refusal to become involved and the threat that she faces as a result does not engage the Convention by this route.

 

27.     Ms Gherman also submitted that the appellant was at risk of persecution on account of her membership of a Particular Social Group. It seems to me that the appellant must, in this context, have a common background that cannot be changed, as required by Article 10(1)(d) of the QD. She is a police officer who has taken a stand against corruption and she cannot now change the fact that she shares that background with other such officers.

 

28.     The second requirement in Article 10(1)(d) is that the group should have a distinct identity in the relevant country because it is perceived as being different by the surrounding society. In this respect, I am also with Ms Gherman. Corruption is still sufficiently pervasive in the Albanian police force that an officer who refuses to become involved in such activity would, it seems to me, be perceived as different by Albanian society. Whilst I reject Ms Gherman's attempt to submit that the appellant would be at risk on account of an actual or imputed political opinion, therefore, I accept her submission that the appellant would be at risk on account of her status as a police officer who has refused to engage in corrupt practises.

 

29.     In the circumstances, I conclude that the appellant would be at risk on return to Albania and that the risk she faces is on account of her membership of a PSG. Her appeal is consequently allowed on Refugee Convention grounds. In the event that I had concluded that the appellant could not satisfy the Refugee Convention, I would have allowed her appeal on Humanitarian Protection grounds, under Article 15(1)(b) of the Directive, or on the basis that Articles 3 and 6 ECHR would be breached by her removal.

 

Notice of Decision

 

The decision of the First-tier Tribunal was erroneous in law and is set aside. I remake the decision on the appeal, allowing it on Refugee Convention grounds.

 

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

 

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

 

MARK BLUNDELL

Judge of the Upper Tribunal (IAC)

 

11 November 2019


 

Upper Tribunal

(Immigration and Asylum Chamber)

Appeal Number: PA/08879/2016

 

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House

Decision & Reasons Promulgated

On 17 July 2019

 

 

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

 

 

Before

 

UPPER TRIBUNAL JUDGE BLUNDELL

 

Between

 

LK (Albania)

(ANONYMITY DIRECTION MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellant: Ms Gherman, instructed by Virgo Solicitors

For the Respondent: Ms Everett, Senior Presenting Officer

 

 

DECISION AND REASONS

 

1.         The appellant is an Albanian national who was born on 24 July 1983. She appeals against a decision which was issued by First-tier Tribunal Judge Webb on 22 January 2019, dismissing her appeal against the respondent's refusal of international protection.

 

2.         In granting permission to appeal, Upper Tribunal Judge Bruce stated Judge Webb's decision was detailed and carefully structured but that it was arguable that the judge's findings that the appellant would not be at risk in Albania and that she would receive a fair trial on return were irrational, inadequately reasoned or otherwise unlawful. Although I have concluded for the reasons set out below that the judge did indeed err, I wish to record at the outset my agreement with UTJ's Bruce's opening remarks about the judge's decision, which was plainly the product of detailed and careful consideration.

 

Background

3.         I need not set out in full the basis upon which the appellant claimed asylum. It was rehearsed in a lengthy refusal letter and repeated at [4] of the judge's decision. The appellant was a police officer who worked at the international airport in Tirana. Other officers and civilian staff who worked at the airport were involved in criminality, in particular by facilitating illegal immigration and emigration. The appellant was offered inducements to participate but she refused to do so. Her refusal to cooperate angered her colleagues, and particularly a man called BM. The appellant received threats from BM and from an anonymous caller on the telephone. In the midst of these problems, the appellant travelled to the UK as a visitor. After her arrival, she heard that a number of her colleagues had been arrested for their involvement in the events at the airport. She instructed a lawyer to represent her own interests, as a result of which she learned that there was an arrest warrant pending against her. The appellant subsequently learned from her parents that they had been receiving threatening calls, warning the appellant not to return to Albania to give evidence in the pending proceedings. The appellant's parents were so scared that they left Albania for France, where they claimed asylum. The appellant overstayed the expiry of her visa and claimed asylum.

 

Appellate History

4.         The appellant's application was refused by the respondent and her appeal was initially dismissed. That decision was set aside on appeal to the Upper Tribunal, however, and it came before Judge Webb as a de novo hearing. Partly as a result of that history, there was a vast amount of documentary evidence before the judge.

 

5.         In the face of that evidence, the Presenting Officer who represented the respondent accepted that the appellant was employed as a police officer at Tirana airport: [24]. In the same paragraph, the judge noted that the appellant had been a police officer since 2003 and that she had been deployed at the airport from May 2013. At [27], the judge accepted that the appellant's colleagues had been arrested and that there were pending proceedings against the appellant. He reached that finding with reference to the plethora of documentary evidence he listed at [26], which included court papers about the pending proceedings against the appellant and her former colleagues and other official documents showing that she had been excluded from the police force as a result of the allegations.

 

6.         Judge Webb dismissed the appeal for reasons which may be summarised as follows. At [28]-[29], he noted that the Refugee Convention did not normally provide protection for those who fled prosecution. At [33], having scrutinised the appellant's evidence and the background material, he did not accept the appellant's assertion that the Albanian state was controlled by the mafia. He noted at [34]-[35] that the appellant said that she had received threats and had not been physically targeted before she left Albania. At [35]-[38], the judge made a number of critically important findings. He considered that the appellant would not be at risk from the gang because she 'knew too much' because, in reality, she knew very little. She had not been 'making waves' and creating problems for BM. He found it difficult to understand why she would be of any great interest to the gangsters and he noted that there was no suggestion that her four co-accused had been targeted. In summary, therefore, he did not find it credible that the appellant was the victim of a criminal conspiracy. He accepted that she faced prosecution but he did not accept that this was because she had been 'framed' at the request of the gang: [37]. He did not accept that pressure would be brought to bear on the Albanian judiciary by the gang or their associates.

 

7.         At [39]-[46], the judge considered whether or not the appellant would receive a fair trial in Albania. He drew particularly on Kapri v Lord Advocate 2014 SLT 557, a decision of the Scottish High Court on remittal from the Supreme Court [2013] UKSC 48; [2013] 1 WLR 2324. In Kapri, it had been held that corruption in Albania might occasionally affect decisions involving high ranking politicians or organised criminals but there was no adequate material on which it could be held that there were substantial grounds for believing that it existed at such a level as would necessarily involve a flagrant denial of justice in all, or even most, cases. The judge reviewed the background material subsequent to Kapri and concluded that the Albanian judicial system had continued to improve and that the appellant would receive a 'Convention compliant fair trial' there: [46].

 

8.         At [47]-[54], the judge considered the non-protection aspects of the appellant's appeal, focussing on the position of her child, who was born in the UK in 2017. He considered that the best interests of the child were to remain with the appellant; that the child could be accommodated by family if the appellant was held on remand or imprisoned following a trial; and that there would not be very significant obstacles to the appellant re-integrating into life in Albania.

 

Appeal to the Upper Tribunal

9.         Ms Gherman appeared before Judge Webb and it was Ms Gherman who settled grounds of appeal against his decision, firstly to the FtT and then, on renewal, to the Upper Tribunal. At both stages, the grounds of appeal were described as prolix. The grounds are certainly not a tight formulation of the propositions to be advanced ( Harverye [2018] EWCA Civ 2848 , at [38]) but, a s I stated at the hearing, I considered the grounds to be helpful and not to be unduly lengthy. This is an unusual case with an appellate history and with a vast amount of documentary material and I, for one, found the extensive cross-referencing in the grounds of appeal to help, not hinder.

 

10.     On analysis, the grounds of appeal may be summarised as follows:

 

(i)        In concluding that the appellant would not be of interest to BM and his associates, the judge left material aspects of the claim out of account;

(ii)      In concluding that the appellant was not being pursued by criminal gangs affiliated with state officials, the judge failed to assess her claim in light of the background material provided;

(iii)    In concluding that the appellant would receive a fair trial in Albania, the judge failed to consider the written submissions made on the appellant's behalf; and

(iv)    In concluding that the appellant would not encounter very significant obstacles to re-integration into Albania, and in deciding that the best interests of her child would be served by returning, the judge failed to consider the stigma attached to the birth of an illegitimate child in Albania.

 

11.     Expanding these grounds before me, Ms Gherman submitted that the judge's conclusion that the appellant would not have been targeted by the gang because she knew very little about them was illogical. She knew that BM had a lavish lifestyle; that he was responsible for accepting deportees and that he was able, as a result of his rank, to usher passengers past legitimate border controls; that he had offered her financial inducements to participate; and that he assisted people who were known to the Director. Nor was it logical or rational to conclude, in light of these accepted facts, that the appellant had not been 'making waves' with her actions. These tainted findings at [35] were pivotal to the conclusions at [36] and [37] and had vitiated the entire assessment of the risk faced by the appellant.

 

12.     The judge had failed to apply paragraph 339L of the Immigration Rules and to consider the plausibility of the appellant's claim against the backdrop provided by the country material provided, including the respondent's material and the expert report by Antonia Young. In any event, the judge's finding that the appellant would receive a fair trial was demonstrably vitiated by the errors he had made at [35]-[38], since that assessment had taken place on the basis that the appellant was not a police officer whom a criminal gang has targeted for refusal to adhere to their requests and who have an interest in ensuring that she is imprisoned: [38].

 

13.     As to ground three, Ms Gherman submitted that the judge had failed to engage with the written submissions she had made about Kapri after the hearing. That decision was immediately distinguishable, she submitted, because the appellant in that case had no profile of any description. In any event, the judge had failed to have regard to material aspects of the respondent's Country Policy and Information Note in concluding that the Albanian justice system would afford the appellant a fair hearing.

 

14.     As to ground four, there had been no consideration by the judge of the fact that the appellant's child was illegitimate. The best interests assessment had focused on the question of whether the child would be placed in an orphanage during the appellant's trial and any subsequent period of imprisonment and had not taken account of the appellant's other circumstances.

 

15.     In reply, Ms Everett submitted that the vast quantity of evidence before Judge Webb had amplified the possibility of legal error. It had nevertheless been open to the judge to conclude that the appellant had not been 'making waves' and that she was not of interest to the gang. She accepted, however, that this finding was pivotal and that the remainder of the judge's assessment could not stand if it fell. I asked Ms Everett whether it could properly be submitted that the judge had taken Antonia Young's report into account when he concluded that the appellant was not of interest to the gang. She submitted that the report had 'got a look in' within the judge's decision, although she accepted that there was no consideration of it within the pivotal section of the decision, at [35]-[38].

 

16.     As to the third ground, Ms Everett accepted that there was no consideration of Ms Gherman's written submissions on Kapri but she submitted that the judge's evaluation was nevertheless sustainable. The sustainability of the findings at [35]-[38] was also relevant to this ground. If those findings could not stand, nor could the assessment of whether or not the appellant would receive a fair trial in Albania. If, on the other hand, the judge had reached a sustainable finding that the appellant was not of interest to the gang, his assessment of trial proceedings in Albania was sustainable.

 

17.     As to the fourth ground, it was accepted that the judge had not given separate consideration to the possibility that the appellant - who had given birth to an illegitimate child - would be treated as a 'kurva' but he had legitimately relied on the presence of a family network in Albania. Ms Everett accepted that the judge had overlooked the evidence the appellant had given that she was no longer in contact with her family, however, and had given no consideration to the question of whether the family would be supportive in light of the conservative social mores considered in AM & BM (Albania) CG [2010] UKUT 80 (IAC) and TD & AD (Albania) CG [2016] UKUT 92 (IAC) .

 

18.     In reply, Ms Gherman submitted that the findings at [35]-[38] were critical. The gang had demonstrated by their actions that the appellant was perceived to be a threat and that they wished to silence her. There was clearly a battle against corruption in Albania and the gang would seek to safeguard their interests. The reality on the ground did not reflect the conclusions in Kapri. Ms Young's evidence was that the appellant probably knew enough to be seen as a threat and would be at risk as a result. The judge had failed to consider her evidence and had reached irrational or illogical conclusions in deciding that the appellant would not be at risk. The judge had not considered the way in which Kapri was distinguishable. The judge had failed to consider evidence which militated against his conclusion that the appellant would receive support from her family.

 

19.     I reserved my decision on whether or not the decision of the FtT contained material legal error and asked for submissions on the relief which should follow in the event that that question was resolved in the appellant's favour. Ms Gherman invited me to remake the decision on the appeal without a further hearing. Ms Everett was content to leave that decision in my hands. I indicated that I would reserve any resumed hearing to myself, owing to my familiarity with the papers.

 

Analysis

20.     Although Judge Webb's decision was clearly the product of considerable thought, and although it is detailed and methodically structured, I consider it to be vitiated by legal error.

 

21.     I set out at the start of this decision a brief summary of the appellant's account. It contains five key elements. Firstly, that the appellant was a police officer stationed at Tirana Airport. Secondly, that illegal migration was facilitated at that airport and the appellant refused inducements to take part. Thirdly, that the appellant had been threatened by BM and his associates for that refusal. Fourthly, that she was the subject of a prosecution in Albania. Fifthly, that the prosecution was instigated at the request of the criminal elements which controlled the operation at the airport. In the refusal letter, each of these elements was disbelieved by the respondent.

 

22.     At the hearing before Judge Webb, confronted by a wealth of evidence which supported the appellant's role, the Presenting Officer conceded the first of these issues. At [27], the judge accepted "that the claimed events of October 2015 and thereafter) in respect of the appellant facing arrest and criminal charges in Albania) are as asserted by her". That represented a clear finding on the fourth issue I have identified above.

 

23.     At [35]-[36], the judge accepted that BM and his associates were involved in criminal practices at the airport and that the appellant had refused to take part. In the same paragraphs, however, he rejected the appellant's claim that she had been targeted by the gang as a result of her refusal, reasoning that she had not been 'making waves' about BM's activities; that she did not know much about their operation and that it was consequently difficult to understand why BM and his associates would have any great interest in her. In reaching that conclusion on the third of the elements I have set out above, I am satisfied that the judge fell into error for the following reasons.

 

24.     I consider the judge to have left material matters out of account in concluding that the appellant would not have been of interest to BM and his associates. Whilst it was correct that the appellant knew little about the wider network to which BM belonged, he overlooked what she did know and the reasons why BM and his associates may have wished to silence her, whether by threats of violence or the instigation of false charges. In particular, the appellant knows that BM's father was the Chief of Criminal Investigations; that BM himself had a lavish lifestyle which was out of kilter with that of other staff; that he had illegitimately used his position of power to usher deportees and others around lawful border controls; that he and others had offered the appellant inducements to become involved; and that her managers had advised her not to take complaints against BM any further because he had connections with the authorities. Against that backdrop, it is not difficult to understand why BM and his associates would take steps to silence the appellant, including issuing treats to her and her parents. I am satisfied that the judge erred in leaving that backdrop out of account when he concluded that the appellant was not of any great interest to BM and his gang.

 

25.     I have described the findings at [35]-[38] as pivotal. Ms Everett was constrained to accept at the hearing that the decision could not be upheld if those findings were tainted by legal error. That concession was plainly correct. The judge's assessment of whether the appellant would receive a fair trial was expressly not a finding in the alternative; it was a finding which took as its starting point his earlier conclusion that the appellant was not of interest to BM and his associates, and that they had not and would not affect the ongoing criminal proceedings.

 

26.     In the circumstances, I am satisfied that the decision of the FtT cannot stand and must be set aside. Ms Gherman invited me to remake the decision on the appeal without a further hearing but I do not consider that to be a proper course. The judge reached lawful and sustainable findings in relation to only the first two elements of the appellant's claim. Those findings (that the appellant was a police officer at the airport and that she refused to take part in the wrongdoing described above) are unaffected by the error I have identified above and will stand. Lawful findings in relation to the remainder of the appellant's claim must be made, and I decline simply to draw inferences from the facts accepted thus far. As I indicated at the hearing, I consider the Upper Tribunal to be the correct venue to undertake that further consideration. The appeal has been remitted once before. It is factually complex and finality is required. Since I am familiar with the voluminous papers, I will direct that the resumed hearing is before me

 

27.     In addition to making findings on the aspects of the appellant's case which I have detailed above, I will need to consider at the resumed hearing whether any persecutory ill treatment feared by the appellant engages the Refugee Convention. I understand it to have been argued below that the appellant belonged to a Particular Social Group and that she feared harm on that account. Whilst I would potentially be minded to accept that the appellant's background might satisfy regulation 6(1)(d)(ii) of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006, the advocates will wish to consider carefully whether, under regulation 6(1)(d)(ii), any group to which the appellant might belong has a distinct identity in Albania.

 

Notice of Decision

 

The decision of the First-tier Tribunal was erroneous in law and is set aside. The decision on the appeal will be remade in the Upper Tribunal, although the findings that the appellant was a police officer at Tirana Airport who refused to become involved in unlawful activity are preserved.

 

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

 

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

MARK BLUNDELL

Judge of the Upper Tribunal (IAC)

 

17 July 2019


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