Kilby Jones Solicitors in focus: ES Albania 2018
Kilby Jones Solicitors are a specialist law firm wholly dedicated to immigration, nationality freedom of movement and human rights law. In this article, The Parliamentary Review explores one of the firm’s most successful cases, winning the appeal of the anonymised Albanian national known only as ‘ES’, after her application for asylum in the UK was refused.
The appeal came about after ES’s request for asylum in the UK was refused on March 31 2016.
ES, a woman, had been abducted, detained and prostituted in Italy and her home country between October 2012 and May 25 2015, when she escaped her captors and was smuggled to the UK on a lorry. She arrived on British soil in June and applied for asylum immediately.
The Competent Authority in the Home Office found that there were reasonable grounds to suspect that she was a victim of human trafficking on June 12 2015, but on December 10 2015 it found that there were not conclusive grounds for finding that this was the case, and ES’s application was refused.
ES appealed against the decision to refuse her asylum, with the appeal initially allowed by First-Tier Tribunal Judge Heatherington, in a decision promulgated on October 13 2016.
After the Respondent, the secretary of state for the Home Office, then appealed, it was found that material errors of law had been made by First-Tier Tribunal Judge Heatherington and ES’s appeal was remitted to the First-Tier Tribunal to be heard again.
The appeal was brought before First-Tier Tribunal Judge Andrew, who dismissed the appeal in a decision, promulgated on August 7 2017. ES then appealed this decision.
Upper Tribunal Judge Dr Storey subsequently set aside First-Tier Tribunal Judge Andrew’s decision, but ordered ES’s appeal be retained in the Upper Tribunal for another hearing.
Upper Tribunal Judge Nadine Finch presided over the hearing at Field House on June 28 2018. ES was represented in the hearing by Philippe Bonavero, instructed by Kilby Jones Solicitors.
First and foremost in the case of ES, evidence compiled by specialist clinical psychologist Dr Ceaser was referred to. Dr Caeser’s letter, dated December 18 2017, stated that ES “presented with symptoms associated with Type Two post-traumatic stress disorder [complex trauma] and that she continued to experience flashbacks and nightmares alongside symptoms of anxiety, panic, low mood and low self-esteem”.
Other symptoms listed in the letter included dissociation, hyper-vigilance and hyper-arousal, constantly checking her surroundings to monitor her own safety, emotional regulation difficulties, with intense feelings of sadness, anger and irritability.
All of these factors were deemed to have lead to ES having found it difficult to present evidence orally, in a coherent manner, during previous hearings.
Furthermore, medical documents provided by the Queen’s Medical Centre Campus, Nottingham, indicated that ES was pregnant at the time, with an expected due date of July 17 2018, with the pending appeal having a negative effect on her morale.
On the basis of medical evidence, Upper Tribunal Judge Finch found that ES was a vulnerable witness. However, counsel Bonavero under instruction from Kilby Jones Solicitors would not accept any adjournment until after the birth, due to the ongoing mental health troubles ES was suffering at the time.
From the evidence provided, it was deemed that ES’s appeal was against the decision of the Home Office to refuse her protection claim, rather than the decision to remove her from the UK, which was crucial for various reasons.
Firstly, the only issue put before the First-Tier Tribunal was whether ES qualified for protection under the stipulations of the Refugee Convention. When reaching a decision, therefore, the First-Tier Tribunal Judge was obliged to look at the evidence provided and give it due weight before making a decision on the credibility of ES’s account.
Secondly, after October 20 2014, the First-Tier Tribunal Judge could no longer find that the decision reached by the Home Office was not in accordance with the law, as by this time the remedy had been removed from the 2002 Nationality, Immigration and Asylum Act.
The significance of this was that the National Referral Mechanism was established to give effect to provisions contained in the Council of Europe Convention against Trafficking in Human Beings when the Convention was ratified but not made law in England and Wales. As a result, any failure to properly apply the National Referral Mechanism could be deemed a failure to apply a policy, paving the way for a rightful claim for a judicial review.
A failure to properly apply the National Referral Mechanism could no longer give rise to the basis for dismissing an appeal under Section 86 of the 2002 Nationality, Immigration and Asylum Act. This was because the First-tier Tribunal Judge could only determine a matter raised in a ground of appeal and the only ground before him was whether ES’s removal from the United Kingdom would give rise to a breach of the Refugee Convention.
Further to this, Article 14.5 of the Council of Europe Convention against Trafficking in Human Beings, which the UK had ratified, states that: "Having regard to the obligations of Parties to which Article 40 of the Convention refers, each Party shall ensure that granting of a permit according to this provision shall be without prejudice to the right to seek and enjoy asylum”.
The UK government was, therefore, obliged to act in accordance with the convention and not restrict ES’s access to protection under it, even if she had previously been referred into the National Referral Mechanism.
Home Office presenting officer Duffy then made the suggestion that, if ES were to be returned to her home country, she could easily be protected by her own family.
However, ES had informed Dr Caeser and submitted in her evidence that when she escaped her aggressors and returned to her family home, she was rejected for having started a relationship. The man who handed her to traffickers, namely Florian Buzzi, was at the time of her abduction her boyfriend, but she did not initially tell her parents about the relationship due to her father’s strict attitude.
Upper Tribunal Judge Finch upheld ES’s account as credible, in a accordance with objective evidence concerning the position of women in Albania and strict moral codes which they are expected to adhere to.
Furthermore, giving birth to an illegitimate child in Albania around the due date of July 17 2018 was only deemed more of a cultural impediment to ES being able to successfully reintegrate into her family.
The Upper Tribunal concluded in relation to this, 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. Those who have children outside marriage are particularly vulnerable. In extreme cases the close relatives of the trafficked woman may refuse to have the trafficked woman's child return with her and could force her to abandon the child”.
Due to evidence of ES’s mental health difficulties and experiences of complex trauma, it was also deemed that the alternative option of being referred to a reception and reintegration programme for trafficking victims in Albania, where victims are able to stay in shelters upon arrival, would not be appropriate.
At the hearing, the Home Office presenting officer did not submit that ES would be able to turn to the authorities in Albania for support. This correlated with an unchallenged assertion made by ES in her initial asylum interview that Albanian police had collaborated with the traffickers and in some cases, sexually exploited her themselves.
Upper Tribunal Judge Finch concluded that ES would not be sufficiently protected should she be returned to her home country, while acknowledging that being re-trafficked was also a reality in Albania and a possibility in this case. There was also a perceived risk of ES being widely recognisable in numerous areas of her home country and that her return could be communicated back to the traffickers.
In the initial decision letter to not grant asylum, it was explicitly recommended that ES could be returned to Korce in southeast Albania, near to the Greek border. However, Upper Tribunal Judge Finch deemed this too high-risk considering its proximity to the cities of Tirana and Vlore, where ES was previously prostituted. There was also no evidence to suggest any shelters were present in Korce which hosted trafficked women, nor could accommodate a vulnerable individual accompanied by a newborn child.
It was, therefore, concluded that ES would be unable to relocate within her home country, and her appeal for asylum in the UK was granted. The decision was promulgated on September 6 2018.
Kilby Jones Solicitors' Parliamentary Review article may be read here.