Case No. UKUT-00392-(IAC)

Case C-277/11 does not impose a burden on the respondent or result in a formal sharing of the burden of proof, but merely confirms a duty of cooperation at the stage of assessment, for example the production of the country information reports. DECISION AND REASONS THE IMMIGRATION ACTS Before UPPER TRIBUNAL JUDGE DAWSON UPPER TRIBUNAL JUDGE KEITH Between MB (ANONYMITY DIRECTION MADE) Appellant and THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent Representation: For the Appellant: Dr S Chelvan, instructed by S M A Solicitors For the Respondent: Mr D Clark, Senior Home Office Presenting Officer The burden of proof remains on the appellant, where the respondent has identified the location to which it is asserted they could relocate, to prove why that location would be unduly harsh, in line with AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 445 (IAC), but within that burden, the evaluation exercise should be holistic. An holistic approach to such an assessment is consistent with the balance-sheet approach endorsed later in SSHD v SC (Jamaica) [2017] EWCA Civ 2112, at paragraphs [40] and [41]. MM v Minister for Justice, Equality and Law Reform, Ireland (Common European Asylum System – Directive 2004/83/EC) Case C-277/11 does not impose a burden on the respondent or result in a formal sharing of the burden of proof, but merely confirms a duty of cooperation at the stage of assessment, for example the production of the country information reports. DECISION AND REASONS 1. This is the remaking of the decision in the appellant’s appeal against the respondent’s refusal of her human rights and protection claim. 2. The appellant, a citizen of Albania, made a claim on 15 March 2017, based on her accepted bisexuality and the consequent hostility from her father, whom she said had threatened to kill her. She had left Albania in February 2017 after a period of study at the University in Tirana and entered the United Kingdom (‘UK’) in March 2017. 3. The respondent refused the appellant’s protection claim and application for leave to remain based on human rights in a decision dated 10 April 2017 (the ‘Decision’). 4. The appellant ’s subsequent appeal was originally dismissed by a First-tier Tribunal Judge, (the ‘FTT’) in a decision promulgated on 27 July 2017. The FTT’s decision was challenged and at a hearing on 2 October 2018, the Upper Tribunal, comprising a panel of The Honourable Lady Rae, sitting as a judge of the Upper Tribunal, together with Upper Tribunal Judge Dawson, set the FTT’s decision aside, while preserving specific findings; and adjourned the case for a hearing to remake the Decision. A copy of their error of law decision is annexed to this remaking decision. 5. In setting aside the FTT’s decision, the Upper Tribunal panel concluded that the FTT had erred when considering the appellant’s ability to internally relocate within Albania, by failing to indicate the precise destination that she could internally relocate to, thereby considering that issue in a vacuum. The question that the FTT should have asked, once the destination was decided upon, was whether it would be reasonable for her to live in such a place that might require her to keep her sexuality secret from landlords, employers and friends. This would need to be considered in the context of the appellant’s mental health. 6. The Upper Tribunal preserved the FTT’s findings as to the risk faced by the appellant from her father and the reach of that risk, such that she could not internally relocate to Tirana, Tepele , Durres and Volore . The respondent had asserted in the Decision that the appellant would be able to internally relocate to Shkodër in northern Albania. The core issues in this appeal 7. The central issue for us is whether it would be unduly harsh to expect the appellant to relocate to Shkodër . The parties did not produce any additional evidence that was not before the FTT and instead each said that the burden of proving that internal relocation was, or was not, unduly harsh, was on the other party. The appellant asserted that the respondent had produced no evidence on which this Tribunal could rely to show that relocation to Shkodër was not unduly harsh; whilst the respondent asserted that having identified the city to which the appellant could relocate, it was for the appellant to provide an explanation, together with evidence, as to why it would be unduly harsh for her to relocate there; and that the appellant’s appeal should fail because there was an absence of evidence to suggest that relocation would be unduly harsh. Accordingly, tied in with the issue of internal relocation was the question of where the burden of proof lay. 8. Whilst the appellant had continued to pursue all grounds of challenge to the FTT’s decision , including those relating to an assertion that the level of discrimination within Albania was of such severity that it amounted to persecution and that there was not sufficiency of protection in Albania, there were no substantive submissions by Dr Chelvan on these ground s and we reminded ourselves that we were remaking the FTT decision and so were not limited to the grounds of challenge . However, no additional evidence, beyond recent Country Guidance, as to which we say more later in this decision, was provided, which was not available to the FTT. Burden of proof 9. It was of some surprise to us that in referring to a number of authorities, neither party referred us to the Court of Appeal case of SSHD v SC (Jamaica) [2017] EWCA Civ 2112 , in which the Senior President of Tribunals addressed the burden and standard of proof in respect of internal relocation. Nevertheless, we drew this case to the attention of the representatives, who were able to address us on the case. The appellant ’ s submissions 10. Dr Chelvan developed his submission that the appellant’s appeal must succeed as the respondent had failed to discharge its duty with reference to article 8 of the Qualification Directive (‘QD’) 2004/83/EC, which deals with internal protection, and which is set out below: “1. As part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. 2. In examining whether a part of the country of origin is in accordance with paragraph 1, Member States shall at the time of taking the decision on the application have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant.” 11. In essence, the respondent had failed to have regard at the time of taking the Decision the general circumstances prevailing in Shkodër , in the context of the appellant’s personal circumstances and that was a minimum requirement, the burden of which was on the respondent. The respondent could not now seek to remedy the absence of proper consideration, but in any event, had not produced any evidence to do so. 12.Dr Chelvan sought to distinguish the Upper Tribunal case of AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 445 (IAC), relied on by the respondent as authority for proposition that the legal burden was on the appellant to prove that she was entitled to legal protection. AMM had referred to the respondent ‘pointing to evidence regarding the general conditions’ in the proposed place of relocation, but in the appellant’s case, there had been no assessment of the circumstances of Shkodër. AMM also predated the CJEU case of MM v Minister for Justice, Equality and Law Reform, Ireland (Common European Asylum System – Directive 2004/83/EC) Case C-277/11, which this Tribunal cannot ignore. MM indicates that there is a duty of the parties to co-operate, as indicated at paragraphs [63] to [65]: “63 As is clear from its title, Article 4 of Directive 2004/83 relates to the 'assessment of facts and circumstances'. 64 In actual fact, that 'assessment' takes place in two separate stages. The first stage concerns the establishment of factual circumstances which may constitute evidence that supports the application, while the second stage relates to the legal appraisal of that evidence, which entails deciding whether, in the light of the specific facts of a given case, the substantive conditions laid down by Articles 9 and 10 or Article 15 of Directive 2004/83 for the grant of international protection are met. 65 Under Article 4(1) of Directive 2004/83, although it is generally for the applicant to submit all elements needed to substantiate the application, the fact remains that it is the duty of the Member State to cooperate with the applicant at the stage of determining the relevant elements of that application.” 13. In the case before us, the first time that the appellant knew that she was expected to relocate to Shkodër was when she received the Decision. 14. Mr Chelvan argued that the Court of Appeal in