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

On a renewed application for permission to appeal, the court need only decide whether a proposed ground is properly arguable. It does not resolve the underlying asylum merits at that stage. A ground may proceed even where the argument may ultimately fail. Evidence that could have been presented below will generally not be admitted on a second appeal. An age-assessment report concerned with age, rather than general credibility, did not make the First-tier Tribunal’s decision arguably defective where it had assessed the applicant’s direct evidence and taken account of his age and vulnerability. Challenges concerning factual material from set-aside country guidance and the assessment of discreet conduct on return were properly arguable.

LC, an Albanian national who entered the United Kingdom aged 16, claimed asylum on the basis that he was gay and feared persecution in Albania. The Secretary of State refused the claim. The First-tier Tribunal accepted that LC was gay but found that he would live discreetly in Albania by personal choice rather than because of fear of persecution. It dismissed his appeal.

The Upper Tribunal dismissed LC’s further appeal and refused permission to appeal. LC renewed his application to the Court of Appeal, challenging the treatment of an age-assessment report, the use of factual material from MK (Albania) after that decision had been set aside, and the approach to his conduct on return in the light of MSM (Somalia) and Minister voor Immigratie en Asiel v X, Y, Z. The issue was whether the proposed grounds were properly arguable on a second appeal.

1. Further evidence. Permission to adduce LC’s later witness statement was refused. The evidence could have been presented to the First-tier Tribunal or raised before the Upper Tribunal. Introducing it through a second appeal was inappropriate.
2. Age assessment. The First-tier Tribunal had made detailed findings from LC’s direct evidence about his sexuality and experiences in Albania, while taking account of his age and vulnerability. The age-assessment report concerned LC’s age, not his general credibility. Its alleged omission therefore did not arguably vitiate the decision.
3. Country guidance. The challenge concerning the use of factual findings in MK (Albania) after that decision had been set aside for an admitted error of law was properly arguable. The court recognised that the factual findings might not have been impugned, but left the issue for full argument. Permission was granted on ground 2.
4. Conduct on return. The challenge based on vulnerability, the reasons for discreet conduct, and the relationship between HJ (Iran), MSM (Somalia) and Minister voor Immigratie en Asiel v X, Y, Z was also properly arguable. The circumstances in MSM (Somalia) might be materially different, and it was not appropriate to shut out the ground merely because the argument might ultimately lack force. Permission was granted on ground 3.
5. The renewed application succeeded to that extent. The substantive appeal was not determined.

• Court of Appeal (Civil Division): granted permission to appeal on grounds 2 and 3, refused permission to adduce further evidence, and did not determine the substantive appeal.
• Upper Tribunal (Immigration & Asylum Chamber): on 30 April 2014, dismissed LC’s appeal from the First-tier Tribunal and refused permission to appeal.
• First-tier Tribunal: on 5 January 2014, dismissed LC’s appeal against the Secretary of State’s refusal of asylum and removal to Albania.
• Secretary of State for the Home Department: refused LC’s asylum claim and directed removal to Albania.