MF v Secretary of State for the Home Department [2014] EWCA Civ 902

[2014] EWCA Civ 902Case No C5/2013/1297
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Deputy Upper Tribunal Judge Pickup
AA/05637/2012
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 2 nd July 2014
Before
LORD JUSTICE MOORE-BICKLADY JUSTICE BLACKLORD JUSTICE BRIGGS
Between
MF (ALBANIA)AppellantSECRETARY of STATE for the HOME DEPARTMENTRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Miss Victoria Laughton (instructed by Simman Solicitors) for appellantMiss Joanne Clement (instructed by the Treasury Solicitor) for respondentHearing Hearing date : 21 st May 2014
JudgmentLord Justice Moore-Bick :
[1]This is an appeal against the decision of the Upper Tribunal dismissing the appellant’s appeal against the respondent’s refusal to grant him asylum or humanitarian protection.[2]The appellant is a national of Albania. He was born on 9th June 1996, so is now aged 18. He entered the United Kingdom in February 2012 and claimed asylum on 20th February 2012. He was then aged 15½.[3]In due course the appellant’s account of the circumstances in which he had fled Albania was largely accepted as true by the First-tier Tribunal, though not by the respondent herself. He said that he had lived with his extended family in a village in the mountains about 1½ hours’ drive north of the capital, Tirana. In December 2010 a dispute over land had broken out between his family and another local family, M, in the course of which his cousin had struck a member of that family, S, with an iron bar and killed him, giving rise to a blood feud. The appellant was then aged 14½. He said that shortly afterwards he had been bullied by one of S’s younger brothers, who had warned him that he was a target for revenge. He said that the police were unwilling to provide protection in cases of this kind and as a result he had stopped going to school and had remained at home indoors, where, according to local custom, he was safe from attack. When it became clear that all attempts at reconciliation had failed, his family had sent him abroad. He had eventually reached this country, having travelled across Europe by lorry. Soon after he arrived he had been able to contact his mother, who told him that his father had also gone abroad and that his whereabouts were unknown. The appellant said that he had reason to fear that if he were to return to Albania he would be killed by the M family in revenge for the death of S.[4]The Secretary of State rejected the appellant’s claim for asylum or humanitarian protection because she was not satisfied that his family was involved in a blood feud, as he alleged, or that he could not obtain adequate protection in his own country. In any event, she considered that he could, if necessary, move to Tirana where he could live in safety. However, the appellant was an unaccompanied minor in respect of whom there were no adequate reception arrangements in his own country and so, in accordance with established policy, he was given leave to remain in this country until December 2013 when he would reach the age of 17½.[5]The appellant’s appeal against that decision was heard by the First-tier Tribunal in July 2012. The judge accepted as credible the entirety of the appellant’s account of the events that had taken place in Albania as summarised above. However, he dismissed the appeal on the grounds that the appellant could relocate to Tirana, where his mother could, if necessary, live with him to provide support. The judge was not satisfied that the M family would be able to trace him in Tirana, so that he could live there safely.[6]The appellant obtained permission to appeal to the Upper Tribunal and on 31st October 2012 Upper Tribunal Judge Kekić held that the First-tier Tribunal had made an error of law affecting its assessment of the possibility of internal relocation and the ability of the appellant’s mother to join him in Tirana. He adjourned the matter to enable the appellant to obtain and file expert evidence and directed that the other findings made by the First-tier Tribunal should be preserved.[7]The matter came back before the Upper Tribunal on 8th March 2013. The tribunal directed itself that it had to consider three matters:(i) whether the appellant could safely relocate to Tirana;(ii) whether his mother would be able to join him there; and(iii) whether he would be likely to be traced by the M family there. It had before it the materials that had been before the First-tier Tribunal, including three written statements from the appellant, who also gave oral evidence. In addition the tribunal had before it a report from Dr. Antonia Young, an anthropologist with particular experience of northern Albania.[8]Most of Dr. Young’s report was devoted to a general description of the current situation in Albania, with which she is obviously familiar and about which she is therefore entitled to express an expert opinion. Towards the end of her report, however, she expressed certain views about the prospects facing the appellant on return to Albania which the tribunal considered were unjustified. In particular, she said that the appellant would be unable to remain anonymous living in Tirana, that the M family would eventually find him and that it would be extremely hard for his mother to move to Tirana to look after him. The tribunal pointed out, however, that Tirana is a large city of about three quarters of a million people and that, although the appellant had a pronounced regional accent, many people from all over Albania had moved there in recent years. As a result, his accent alone would not make it easy for the M family to trace him. Dr. Young did not pretend to have any specific knowledge of the M family and therefore was not in a position to comment on its size or influence or upon its will or ability to trace the appellant if he were living in Tirana some distance away from his village. The tribunal considered that that part of Dr. Young’s report disclosed a lack of objectivity which undermined her credibility more generally. As a result, it placed little weight on those parts of the report which referred to the circumstances of the appellant or his mother.[9]The tribunal was acutely aware that it had no objective evidence before it of the extent of the influence wielded by the M family or of its spread outside the appellant’s home area. The appellant said in evidence that it was a powerful family, some of whose members worked for the government, and had widespread contacts, but he had obtained his information from his mother, who had not been asked to provide evidence for the hearing. Her information may have been no more than anecdotal and the appellant’s account may not have accurately reflected her view. Without an opportunity to assess her evidence and the basis on which she had formed her view, it is perhaps not surprising that the tribunal was not persuaded that the M family posed a significant threat to the appellant if he were to return to live in Tirana.[10]At the time of the hearing the appellant was still a minor, although nearly 17, so the tribunal had to consider whether he could live on his own in Tirana and, if not, whether it would be reasonable to expect his mother, who was still living on the family farm with an adult daughter, to move to Tirana to give him support. In her report Dr. Young had said that it would be extremely hard, if not impossible, for her to do so, but her opinion does not appear to have been based on any knowledge of the mother’s specific circumstances. The tribunal considered this part of Dr. Young’s evidence to be “unjustifiably subjective, biased in favour of the appellant and without any evidential support”. As a result, it attached little weight to it and found that it would not be unduly harsh to expect the appellant’s mother to relocate to Tirana.[11]In the light of all its findings it is not surprising that when the Upper Tribunal came to remake the decision it dismissed the appeal.[12]The appellant says that in reaching its decision the tribunal made three important errors of law. First, he says that it adopted a wrong approach to the evidence of Dr. Young in rejecting her evidence that the M family might trace the appellant to Tirana, find him and kill him. Second, he says that the tribunal asked itself whether it would be reasonable for his mother to move to Tirana to be with him instead of asking whether she would in fact be willing to do so. Third, he says that the tribunal failed properly to apply the provisions of paragraph 339L of the Immigration Rules relating to unsupported accounts made by applicants who are generally found to be credible. The tribunal’s approach to the expert evidence[13]In EH (Blood Feuds) Albania CG [2012] UKUT 00348 (IAC) the Upper Tribunal made findings about the nature and prevalence of blood feuds in Albania and in paragraph 74 of its decision gave new guidance to decision-makers dealing with cases of that kind. That guidance included the following: “ . . . (c) . . . Internal relocation . . . may provide sufficient protection, depending on the reach, influence, and commitment to prosecution of the feud by the aggressor clan. . . . (f) In determining whether an active blood feud exists, the fact-finding Tribunal should consider: . . . (v) the ability of members of the aggressor clan to locate the appellant if returned to another part of Albania; . . . (k) whether the feud continues and what the attitude of the aggressor clan to its pursuit may be will remain questions of fact to be determined by the fact-finding tribunal.” . . . (v) the ability of members of the aggressor clan to locate the appellant if returned to another part of Albania;[14]The possibility of internal relocation is of particular relevance to the present case. As to that, the tribunal made the following general findings:
“70. Internal relocation will be effective to protect an appellant only where the risk does not extend beyond the appellant's local area and he is unlikely to be traced in the rest of Albania by the aggressor clan. A crucial factor in establishing whether internal relocation is a real possibility is the geographical and political reach of the aggressor clan: where that clan has government connections, locally or more widely, the requirement to transfer civil registration to a new area, as set out at 2.4.4 above, would appear to obviate the possibility of ‘disappearing’ in another part of the country, . . . Whether internal relocation is reasonable in any particular appeal will always be a question of fact for the fact-finding Tribunal.”
[15]It is clear from those passages that much will depend on the particular facts of the case. Notwithstanding the detailed findings made in EH, expert evidence may in some cases provide the tribunal with insights that would otherwise not be available, but it is for the tribunal, not the expert, to decide whether the applicant would be at risk on return. It is therefore not appropriate or helpful for an expert witness to express a view on specific factual questions that bear on the situation of the particular applicant, such as whether he could safely relocate or whether he could obtain support from other members of the family, if that view is based on nothing more than a general understanding of local conditions.[16]The list of sources attached to Dr. Young’s report and the summary of her qualifications and experience make it clear that she is indeed a person with considerable experience of Albania and the incidence of blood feuds in that country. Her evidence therefore deserved to be given considerable weight insofar as it was based on her experience. It is perhaps unfortunate, however, that in this case she allowed herself to be drawn into expressing views on the very issues which the tribunal had to determine and to do so on the basis of her general knowledge and understanding of conditions in Albania generally rather than on specific information about the circumstances of the appellant’s case. It appears from section 5 of her report, in which she deals with matters specific to this case, that she may have been invited to comment on individual paragraphs of the respondent’s letter refusing the appellant’s claim, including at least one paragraph in which the decision-maker raised doubts about the account given by the appellant. In so doing Dr. Young allowed herself to be put in the position of an advocate, which inevitably undermined her objectivity.[17]The evidence to which the tribunal took exception is contained in the part of section 5 in which Dr. Young responded to the section of the respondent’s letter dealing with internal relocation. In those paragraphs the Secretary of State had noted that the appellant had produced no independent evidence to support his contention that the M family had wide influence nor any independent evidence to suggest that members of his family could not relocate with him. Dr. Young’s response was to explain why in her view those objections were of little weight, but she had no particular knowledge of the M family and very little of the appellant. In effect, she ceased to act as an expert witness and took on the role of an advocate.[18]In those circumstances I do not find it surprising that the tribunal should have declined to place much weight on that part of Dr. Young’s report. Its criticisms may have been couched in rather harsh terms, but in substance they were well-founded. In the absence of any specific information about the reach of the M family or the appellant’s mother’s circumstances (which she would have had to give as a witness of fact rather than an expert) those parts of the report were of little or no value. Accordingly, I am unable to accept that the tribunal approached them in the wrong way or that it erred in declining to place any weight on them. Insofar as it was necessary for it to explain why it took that course, it did so. Relocation – the appellant’s mother[19]The tribunal found that it would not be unduly harsh to expect the appellant’s mother to relocate to Tirana in order to provide him with support, but Miss Laughton submitted that in doing so the tribunal had asked itself the wrong question. She submitted that, although it is appropriate when considering the position of the applicant for asylum to ask whether it would be unduly harsh to expect him to relocate, when considering the conditions under which any relocation would take place it is necessary to ask what those conditions would in fact be. Hence, she submitted, the proper question was whether the appellant’s mother would or would not (however unreasonably) be likely to move to Tirana to be with him.[20]In my view there is force in Miss Laughton’s point, so far as it goes. If there were evidence that the appellant’s mother was not prepared to move to Tirana, even though it would not be unreasonable for her to do so, the appellant could properly argue that conditions for him as a minor living alone in a big city would be unduly harsh. However, that is not this case. The tribunal’s finding, although couched in terms that might be more appropriate when considering the position of the appellant himself, amounts to no more than saying that it would not be unreasonable for his mother to join him in Tirana, if he needed her support. The tribunal clearly proceeded on the footing that she would act in a reasonable manner and in my view it was entitled to do so in the absence of any evidence to the contrary. It follows that I do not think that there is any substance in this complaint. Failure to apply Rule 339L[21]Rule 339L of the Immigration Rules provides as follows:
“It is the duty of the person to substantiate the asylum claim or establish that he is a person eligible [for] humanitarian protection or substantiate his human rights claim. Where aspects of the person’s statements are not supported by documentary or other evidence, those aspects will not need confirmation when all of the following conditions are met: (i) the person has made a genuine effort to substantiate his asylum claim or establish that he is a person eligible humanitarian protection or substantiate his human rights claim; (ii) all material factors at the person’s disposal have been submitted, and a satisfactory explanation regarding any lack of other relevant material has been given; (iii) the person’s statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to the person’s case; (iv) the person has made an asylum claim or sought to establish that he is a person eligible for humanitarian protection or made a human rights claim at the earliest possible time, unless the person can demonstrate good reason for not having done so; and (v) the general credibility of the person has been established.”
[22]Miss Laughton submitted that since the appellant in this case satisfied all the criteria in paragraphs (i) to (v), the tribunal should have accepted his evidence about the M family and the risk they posed to him on return to Albania without the need for corroboration, or at least that it should have directed itself that it should not reject his evidence simply because it was not independently corroborated. In failing to direct itself properly the tribunal erred in law.[23]The appellant certainly satisfied the requirements of sub-paragraphs (i), (iii), (iv) and (v), but in my view he did not satisfy the requirements of sub-paragraph (ii). The only source of his information about the reach of the M family and its determination to pursue the feud was his mother. She could have provided a statement setting out her understanding of the position and the basis for it, but she did not do so and there was no suggestion that she had been asked to. In effect, therefore, the appellant was asking the tribunal to accept as a fact, without any independent corroboration, his mother’s understanding of the M family’s numbers, attitude and influence, which was based on uncertain evidence and which he had received from her in uncertain terms. Whether the appellant’s mother could have provided any reliable information is not clear, but evidence in the form of a statement from her would have brought the matter one step closer to the underlying facts. In the absence of any explanation for the failure to adduce such evidence, I do not think that the appellant can claim to have submitted all material factors at his disposal.[24]Quite apart from that, however, I am not sure that paragraph 339L is intended to apply to evidence of this kind. Although Miss Laughton did not submit that the tribunal was bound to accept the applicant’s uncorroborated evidence about the reach of the M family, the rule is worded in such a way as to require that a person whose bona fides and general credibility have been established is given the benefit of the doubt in relation to aspects of his account that cannot be corroborated. That causes no difficulty in relation to matters within the applicant’s own knowledge, but it does give rise to difficulty in relation to information of a second-hand nature, especially if that information also involves an element of judgment. However credible the applicant may be (in the sense that he is a reliable historian), that is not necessarily a good reason for accepting at face value his (and a fortiori another person’s) judgment about an important matter in issue. Accordingly, since it is unnecessary to decide it in order to dispose of this appeal, I should prefer to leave open for decision on another occasion the question whether, if the requirements of rule 339L are satisfied, it requires the tribunal to accept as reliable evidence of that kind. Conclusion[25]For the reasons I have given I would dismiss the appeal.

Lady Justice Black :

[26]I agree.

Lord Justice Briggs :

[27]I also agree.

Cited in 1 later judgment