AL and others -v- Secretary of State for the Home Department (anonymity order)
Case number: JR-2023-BHM-000094
In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review
In the matter of an application for permission to apply for Judicial Review
11 October 2024
Before:
HHJ Richard Williams
sitting as an Upper Tribunal Judge
Between:
The King
on the application of
AL and others
-v-
Secretary of State for the Home Department
Anonymity order
NOTIFICATION of the Judge’s decision (UT rule 30(1))
Having considered all documents lodged and having heard counsel for the applicants and counsel for the respondent at a hearing on 11 October 2024
Order by HHJ Richard Williams sitting as an Upper Tribunal Judge:
- Permission is granted.
- For the purposes of these proceedings, the Applicants shall be referred to as “AL and others”. No person shall disclose or publish any document relating to these proceedings in such a manner as to identity either directly or indirectly the Applicants.
- The Court has made paragraph 2 of this order by its own motion and because two of the Applicants are AL’s minor children. Any party may within 7 days of service of this order upon them apply to have paragraph 2 of this order set aside/varied.
Reasons
(1) AL seeks to challenge, by way of Judicial Review, R’s decision dated 20 June 2023 (“the Decision”) to certify AL’s asylum/protection claims as clearly unfounded.
(2) AL’s account in very brief summary is that:
(a) she is an Albanian national;
(b) she was forced by her family to marry a man, who was a known criminal and who through the use of violence and the threats of violence forced AL to have sexual intercourse with other men; and
(c) thereafter she fled Albania to Belgium, where she was then held against her will for a period of time by Albanian traffickers before arriving in the UK.
(3) The Decision letter states that “Your claim has been considered at its highest, that is as if the events that you describe occurred as claimed.”
(4) However, the Decision letter also states that:
“[6.] On 28/03/2023 a referral was made on your behalf to the National Referral Mechanism in order for the Competent Authority (CA) to make a decision as to whether you are a victim of modern slavery. Your status as a victim of modern slavery is assessed in a separate decision-making process by the CA, whereas the consideration below deals with protection issues.
[7.] On 04/04/2023 your referral to the National Referral Mechanism was outcomed as Negative – Reasonable Grounds. Therefore, your claims relating to exploitation in Albania are not considered as part of your asylum claim.”
(5) AL’s grounds of challenge are a) a failure to consider a key aspect of AL’s claim, and/or b) irrational reasoning. I am persuaded that those grounds are properly arguable:
(a) The negative RG decision records under the sub-heading “Trafficking Profile” –
“As reported over the past five years, human traffickers exploit domestic and foreign victims in Albania, and traffickers exploit victims from Albania abroad. Traffickers exploit Albanian women and children in sex trafficking and forced labour within the country, especially during tourist season. Traffickers use false promises such as marriage or employment offers to exploit victims in sex trafficking.
(b) Paras [80] to [88] of the Decision letter specifically address the viability of internal relocation within Albania before concluding that “After considering all of the available information in the round, it is not considered to be unreasonable to expect you to return to Korce or Vlore in Albania.”
(c) The Decision letter fails to mention as a relevant consideration ‘country guidance’ that –
“Much of Albanian society is governed by a strict code of honour which not only means that trafficked women would have very considerable difficulty in reintegrating into their home areas on return but also will affect their ability to relocate internally.”
(d) In MS (Pakistan) (Appellant) v SSHD [2020] UKSC the Supreme Court observed that –
“[11.] The Secretary of State now concedes that “when determining an appeal that removal would breach rights protected by the ECHR, the tribunal is required to determine the relevant factual issues for itself on the basis of the evidence before it, albeit giving proper consideration and weight to any previous decision of the defendant authority” (para 65 of the printed case). Hence it is now common ground that the tribunal is in no way bound by the decision reached under the NRM, nor does it have to look for public law reasons why that decision was flawed. This is an important matter. As the AIRE Centre and ECPAT UK point out, had the tribunal been bound by such decisions, it could have had a profoundly chilling effect upon the willingness of victims to engage with the NRM mechanism for fear that it would prejudice their prospects of a successful immigration appeal.”
(e) Therefore, it is arguable that, if a hypothetical FTT concluded that A was the victim of trafficking, it would be open to the FTT to make a finding that internal relocation would not sufficiently protect A and her children such that the basis of certification is erroneous.
Costs
(6) Reserved. For the avoidance of any doubt, the costs order dated 13 February 2024 is set aside.
Note for the Applicant
To continue the proceedings a further fee of £770.00, or an Application for Fee Remission if appropriate, must be lodged within 9 days of the date this order was sent (see below). Failure to pay the further fee or lodge such an Application within that period will result in the proceedings being automatically struck out. If, however, the required fee has already been paid in respect of a request by you for a decision of the Tribunal on permission to be reconsidered at a hearing, then the further fee payable is £385.00.
Case Management Directions
- The respondent and any other person to whom this notice is sent who wishes to contest the claim or support it on additional grounds must provide the applicant and the Tribunal with detailed grounds for contesting the claim or supporting it on additional grounds, as well as any written evidence, within 35 days of the date on which this decision was sent (as given below).
- Any reply, to include any further evidence on which the applicant wishes to rely, accompanied by any appropriate application to the Tribunal, must be filed and served within 14 days of the service of the detailed grounds for contesting the claim.
- The applicant must file with the Tribunal and serve on the respondent not later than 21 days before the scheduled date of hearing the following materials:
(a) A skeleton argument which must be concise and must not exceed 20 pages, cross-referenced to the trial bundle and bundle of authorities;
(b) An indexed and paginated trial bundle, containing all evidence relied upon;
(c) An agreed authorities bundle, with index, containing all relevant:
(i) provisions of primary or secondary legislation (including Immigration Rules)
(ii) policies, guidance or other like instruments
(iii) judicial decisions, whether favourable to the applicant or not.
- The respondent and any other person wishing to make representations at the hearing must file with the Tribunal and serve on the applicant a skeleton argument not later than 7 days before the scheduled date of hearing.
- Where a party (or other person) is relying on a skeleton argument composed at an earlier stage of the present proceedings, this must be re-served, in accordance with the relevant time limit specified above.
- Where a bundle has been created at an earlier stage in the present proceedings, it will suffice for the party responsible for such bundle to update and revise the same, not later than 21 days before the scheduled date of hearing, with appropriate new index and pagination, and to lodge and serve same.
- The parties are reminded of their obligations to reconsider the merits of their respective cases upon receipt of further evidence from the opposing party.
Listing Directions
- The earliest available hearing date will be allocated to the substantive hearing of this claim.
- The application is to be listed for 5 hour(s); the applicant’s solicitors shall within 7 days file dates of availability for the 6 month period commencing 8 weeks hereafter.
Signed: Richard Williams
Sitting as an Upper Tribunal Judge
Dated: 11 October 2024