SP (Albania) v Secretary of State for the Home Department

Factual and Procedural Background

The Appellant, a national of Albania, entered the United Kingdom in 1999 with her husband, claiming asylum falsely as a national of Kosovo. She gave birth to twins in the UK in 2004. After her asylum claim was refused, she and her children were returned to Albania in December 2004. Between 2007 and 2014, the Appellant borrowed money from a man known as AK, who owned a hotel in Skhodra. To repay the debt, she worked as a cleaner each summer. In 2014, AK forced the Appellant to have sex with tourists and sexually assaulted her over a three-week period. She escaped after pretending to cooperate. She did not report AK due to threats against her children.

In October 2014, with family assistance, the Appellant and her children left Albania and re-entered the United Kingdom, where she claimed asylum with her children as dependents. The Secretary of State refused the asylum claim and certified it as clearly unfounded in April 2015. The Appellant sought judicial review, which was granted permission in March 2016. The substantive judicial review was dismissed by Judge McGeachy in February 2017. The Appellant appealed this decision.

Subsequent to the judicial review decision, the Appellant's status as a victim of trafficking was considered by the Competent Authority under the National Referral Mechanism. Initially, reasonable grounds to believe she was a trafficking victim were found in February 2017, but a conclusive decision in September 2018 rejected her victim status. After reconsideration, in January 2019 the Competent Authority concluded she was a victim of trafficking but was not eligible for discretionary leave due to the absence of risk of re-trafficking or need for protection in Albania.

Legal Issues Presented

1. Whether the judge erred in finding that the Appellant was not a victim of trafficking.
2. Whether the judge failed to consider the Appellant's claim at its highest.
3. Whether the judge's findings on sufficiency of protection in Albania were flawed due to the non-recognition of the Appellant as a trafficking victim.
4. Whether the judge's conclusion regarding the viability of internal relocation within Albania was affected by the incorrect finding on trafficking status.

Arguments of the Parties

Appellant's Arguments

• The judge erred in concluding that the Appellant was not trafficked despite evidence of sexual exploitation and assault.
• The judge did not assess the claim at its highest, thereby failing to fully consider the Appellant's circumstances.
• The findings on protection and internal relocation were tainted by the incorrect trafficking finding and inadequate consideration of the claim.

Secretary of State's Arguments

• It was accepted that the Appellant might prima facie fall within the trafficking definition, but she would not be recognised as a member of a particular social group of trafficked women upon return to Albania.
• There was no well-founded fear of persecution as there was no evidence of gang involvement or ongoing risk from the perpetrator.
• The subsequent recognition of trafficking status by the Competent Authority did not alter the position due to the absence of realistic risk of re-trafficking or modern slavery upon return.
• The judge correctly took the claim at its highest and properly applied relevant legal principles regarding certification and internal relocation.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the definition of trafficking as set out in Article 4(a) of the Council of Europe Convention on Action against Trafficking in Human Beings, emphasizing its disjunctive nature where any one of the listed actions combined with the requisite means and purpose constitutes trafficking. The court noted that the judge in the Upper Tribunal erred in concluding that the Appellant was not trafficked because she was not moved, failing to appreciate that trafficking can include harbouring and exploitation without necessarily involving movement.

The court acknowledged that the Secretary of State and the judge accepted the possibility that the Appellant might fall within the trafficking definition but focused on whether she would be recognised as a member of a particular social group and face persecution on that basis upon return. The court found that the judge's assessment of protection and internal relocation was premised on the erroneous conclusion that the Appellant was not trafficked and thus did not consider the claim at its highest.

The court highlighted that the Appellant's answers in her screening interview raised relevant questions about her fear of authorities and threats to her children, which were not sufficiently explored or taken into account. This failure undermined the assessment of protection and relocation options. The court also noted that the judge properly applied relevant legal tests and case law concerning certification and relocation but that these were compromised by the fundamental misapprehension of the Appellant's status.

Consequently, the court concluded that certification was inappropriate and the Secretary of State's decision should be quashed and set aside.

Holding and Implications

The court ALLOWED THE APPEAL, set aside the decision of the Upper Tribunal, and substituted a decision quashing the Secretary of State's refusal of the Appellant's asylum claim and the certification of the claim as clearly unfounded.

The direct effect of this decision is that the Appellant's asylum claim is no longer certified as clearly unfounded, enabling her claim to be reconsidered on its merits. No new precedent was established beyond clarifying the correct application of the trafficking definition and the assessment of claims at their highest in the context of certification.