SK (prostitution) Albania  UKIAT 00023
Date of hearing: 12 June 2003
Date Determination notified: 07/07/2003
|Secretary of State for the Home Department||RESPONDENT|
For the Appellant: Ms J Nightingale (Counsel)
For the Respondent: Mr G Phillips (Home Office Presenting Officer)
"I have every sympathy as a result with the Appellant. What, however, seems to be the stumbling block, is that the Appellant has decided off her own bat not to go and consult the police or to attempt to find an agency that could help her with her problem. I note what she says about her parents attitude, but it seems to me that she has merely feared that she was not going to get any help. In the light of what does appear to be a genuine improvement in the policing and social welfare situation, I would have thought it appropriate for the Appellant to try these sources first. If they had not been of any help, then it may well be that then would reinforce her claim to asylum. I have every sympathy with her in relation to her new marriage and to her being the mother of a young child. I am very concerned about breaches of Articles 3 and 8. However, in all the circumstances, in the light of the evidence, I am not satisfied applying the appropriate standard of proof, that there would be a breach of 3. As far as 8 is concerned I do think that she can return to Albania and then make an application, which, in all probability will be sympathetically considered by the authorities in the United Kingdom. I do not feel that she can jump the queue by virtue of making the application from here. For these reasons I feel that she has only just failed to make out her case."
i) The Adjudicator appears to have thought that it was almost (if not absolutely) a prerequisite that the Appellant should first seek police protection in Albania before being able to argue that she was entitled to succeed in an asylum application or Article 3 claim in the United Kingdom. She argues that the Adjudicator appears to have taken this view without examining the reasonableness or otherwise of seeking police protection and without examining the question of whether an appeal for police protection would in fact help and bring about any worthwhile protection.
ii) Ms Nightingale further submits that the Adjudicator did not sufficiently take into account the background evidence on Albania and that, if he had done so, he would have come to the conclusion that there was indeed inadequate state protection for the Appellant and that it would have been unreasonable to expect her to have sought such state protection from the Albanian Police Force.
iii) She submits therefore that the Appellant has a well-founded fear of persecution by a non-state actor in circumstances where there is an insufficiency of state protection.
iv) She submits that this persecution is for a Convention reason, namely because the Appellant is a young woman from the north eastern part of Albania.
v) She submits that in any event the Appellant can succeed under Article 3 of the ECHR.
vi) She further submits that the Adjudicator gave inadequate attention to the Article 8 case and that the Appellant's case is truly exceptional within the principles of Mahmood  Imm AR 229 and that it would be disproportionate for her to be sent back to Albania and to make an application from there for entry clearance to allow her to join her husband in the United Kingdom.
"There are many cases in which criminal groups, comprised of Albanians and foreign criminals, send Albanian girls to Italy or Greece". (paragraph 6.37).
"The 2002 US State Department Report on Human Trafficking around the world promoted Albania from a 'tier 3' country to a 'tier 2' country. According to the US State Department, the Government of Albania does not yet fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so." (paragraph 6.38).
"The absence of a witness protection programme also impeded the government's ability to build strong cases against traffickers, although co-operation from the international community led to the relocation and protection of one witness outside of Albania during the year. Victims often did not identify themselves as trafficked persons and were unwilling to testify due to fear of retribution from traffickers and distrust of the police. Co-operation between the police and prosecutors remained weak." (paragraph 6.38).
"However, police corruption hinders anti-trafficking efforts…. Ten per cent of foreign victims trafficked throughout Albania reported that police were directly involved. Few police or government officials are prosecuted." (paragraph 6.40)
"Violence against women and spousal abuse remained serious problems. In the country's traditionally male dominated society, cultural acceptance and lax police response resulted in most abuse going unreported". (paragraph 6.49)
"Many men, especially those from the north eastern part of the country, still follow the traditional code known as the 'kanun', in which women are considered and treated as chattel. Under the kanun, a woman's duty is to serve her husband, and to be subordinate to him in all matters. The kanun has contributed significantly to attitudes in the region espousing the subordination of women. The kanun "law" which is not recognised by the Albanian Government, also states that it is acceptable to kidnap young women for brides. This practice continues in some areas of the north east." (paragraph 6.50)
"Albania is a source and transit country primarily for women and girls trafficked for the purposes of sexual exploitation to Italy and Greece and on to other EU countries. Although the number of Albanians subjected to trafficking to other countries decreased, the country remained a significant point of origin. Most trafficked women and young girls were transported to Italy, Greece…" (paragraph 6.94)
"By the end of 2002, the Ministry of Public Order had fully staffed the Anti-trafficking Unit. In August a major anti-trafficking operation effectively closed down clandestine speedboat traffic to Italy. Nevertheless, the Ministry of Public Order failed to follow up on high-profile trafficking and corruption investigations. Local police often tipped off traffickers when raids were scheduled. On one occasion, a police supervisor checking on his men found them helping traffickers with their boats". (paragraph 6.101)
"The police often were involved directly or indirectly in trafficking… lawyers and judges may also be manipulated and bribed, permitting traffickers to buy their way out of punishment if arrested". (paragraph 6.102)
"In some cases, women are being returned to Albania to family members who trafficked them in the first place, or to the very same situation from which they were trafficked. This often simply leads to the re-trafficking of these women." (paragraph 6.106)
"The Albanian Government had fulfilled all the recommendations of the international community included in the anti-corruption plan by September 2000. Albania had taken all measures to increase the security in all parts of the country, has recognised the judicial system and the police, and is fighting against organised crime and corruption." (paragraph 6.114)
"A new internal control service has the stated purposes of preventing, detecting and documenting the criminal activity of members of the state police and other divisions within the ministry. Employees of the Internal Control Service, which is considered a separate police division, enjoy the same status as members of the judicial police." (paragraph 6.116)
Mr Phillips also referred to paragraph 6.38 already cited above.
His Honour Judge Huskinson