EI v The Secretary of State for the Home Department

In an asylum or humanitarian protection appeal, preserved primary facts do not necessarily include the tribunal’s evaluative conclusion on future risk. The Upper Tribunal may reassess that conclusion by applying the legal risk standard to the preserved facts. Past persecution is a serious indication of future risk, but the passage of time and absence of continuing contact or threats may justify finding that repetition is unlikely. State protection remains fact-sensitive even where country guidance treats protection as generally sufficient. Internal relocation turns on whether moving within the country would be unduly harsh, judged against local living standards. Under Article 8 of the ECHR, the relevant private-life threshold is very significant obstacles to integration, not insurmountable obstacles. An immaterial misdirection does not invalidate a decision reached after a correct direction and consideration of relevant factors. The appeal was dismissed.

The appellant, an Albanian national, claimed asylum after experiencing threats, assaults and sexual violence connected with her husband’s business and family circumstances. The First-tier Tribunal accepted her account and allowed her asylum appeal. The Upper Tribunal set that decision aside for errors concerning particular social group, state protection and internal relocation, then remade the decision against her. It found no continuing real risk on return, sufficient state protection, and a viable internal relocation alternative in Tirana. It also rejected her humanitarian protection and Article 3 and 8 claims. The Court of Appeal considered six grounds concerning risk, state protection, internal relocation, particular social group, humanitarian protection and private life. The central issue was whether she faced a sufficient risk of serious harm on return and, if so, whether that risk could be mitigated.

Appeal dismissed unanimously. Lady Justice Whipple delivered the lead judgment. Lord Justice Peter Jackson and Lord Justice Underhill agreed.

1. The First-tier Tribunal’s primary findings of fact were preserved, but its conclusion that the appellant was at risk on return was an evaluative judgment applying legal concepts to those facts. It was therefore open to the Upper Tribunal to reassess the risk.
2. Past persecution or serious harm is relevant to future risk. However, the lapse of time, the absence of contact with the appellant’s husband or his family, the absence of further threats from former clients, and the absence of a history of domestic or family violence entitled the Upper Tribunal to conclude that the earlier problems were unlikely to recur. There was consequently no well-founded fear of persecution and no substantial basis for a real risk of serious harm.
3. The general position identified in TD and AD (Trafficked Women) (CG) [2016] UKUT 92 was that Albania provided sufficient protection against criminal activity. That position remained subject to individual assessment. The appellant’s earlier experiences with the police, described as less than professional, did not require a finding of inadequate future protection. The Upper Tribunal was entitled to rely on the passage of time and the availability of shelters.
4. Internal relocation requires consideration of whether, on the hypothesis of persecution in one part of the country, it would be unduly harsh to expect the claimant to move to a less hostile area. The assessment is made by reference to living standards in the country of return, not by comparison with the United Kingdom. On the facts, Tirana was sufficiently large and populous, the appellant was educated and capable of earning a living, and shelters were available. Relocation was rational and not unduly harsh.
5. The Court left the particular social group issue undecided. It was complicated and could not affect the result because the appellant failed on risk, state protection and relocation. The issue was better resolved in a case where it made a difference.
6. The First-tier Tribunal had allowed the appeal on asylum, not humanitarian protection, grounds. Any humanitarian protection issue was at large before the Upper Tribunal. Once the conclusions on risk, protection and relocation were upheld, the humanitarian protection claim necessarily failed.
7. The correct private-life test under the Immigration Rules was whether there were very significant obstacles to integration. The Upper Tribunal’s reference to insurmountable obstacles was immaterial because it had earlier directed itself correctly and considered the relevant factors. Removal was a necessary and proportionate interference with private life. The Article 3 healthcare threshold was also not met.

• Court of Appeal (Civil Division) — dismissed the appeal against the Upper Tribunal’s decision: [2025] EWCA Civ 556.
• Upper Tribunal (Immigration and Asylum Chamber) — set aside the First-tier Tribunal’s decision for material errors of law and remade the decision against the appellant on 4 December 2023.
• First-tier Tribunal — allowed the appellant’s appeal against refusal of asylum on 26 August 2022.