MK (Lesbians) Albania CG  UKAIT 00036
Date of hearing: 24th, 25th & 26th September 2008
Date Determination notified: 09 September 2009
|Secretary of State for the Home Department||RESPONDENT|
For the appellant: Ms B Asanovic, Counsel and Ms E Daykin, Counsel instructed by Wilson & Co
For the respondent: Ms E Laing, QC instructed by the Treasury Solicitor
(1) It cannot be said that without more there is a real risk that a woman without family support in Albania would suffer destitution amounting to inhuman or degrading treatment resulting in a breach of her rights under article 3 of the ECHR or persecution, but each case must be determined on its own facts.
(2) Although it is no longer illegal for consenting adults to have homosexual relations in private, homosexual men known to be members of gay associations and those who visit cruising areas in the centre of Tirana are likely be harassed and on occasions ill-treated by the police and in individual cases homosexual men may be at risk of harm from members of their families.
(3) In general terms, lesbian women do not frequent cruising areas and do not join LGBT organisations. Therefore there is lacking the opportunity for them to be harassed or persecuted by the police.
(4) In general terms in Albania women of lesbian orientation are able to carry on lesbian relationships discreetly without attracting the risk of serious harm. A lesbian woman, whose sexual orientation becomes known, may be at risk of harm from members of her family, particularly if she is from a traditional family from the north of Albania, but each case must be determined on its merits. In such a case, however, it is likely that there would be an adequacy of state protection.
(5) In any particular case where the safety of the return of a lesbian woman to Albania is in issue, it will have to be determined whether she is likely to behave discreetly upon return and if so whether "discretion" is something that she can reasonably be expected to tolerate, in the light of all of the circumstances of the case, including the social norms and religious beliefs commonly held in Albania. Such a person will only establish a right to refugee status if she can establish that the apprehended violation of her fundamental rights is likely to attain a substantial level of seriousness.
"The grounds disclose that the Immigration Judge may have made errors of law for the arguable reasons given in the application."
The hearing before us
The appellant's evidence
The appellant's evidence in chief
The appellant's evidence in cross-examination
"From the above I understand that MK left Albania because she was persecuted because of the fact of being homosexual, and that since coming to the United Kingdom she has 'come out' as a homosexual and identified herself with the homosexual community."
She drew her attention to passages in Dr Bell's report. She agreed that she had told him she did not behave in a particularly "gay way" in the way that was common in the gay community although she was quite certain that another gay woman would easily be able to tell that she was a homosexual. She agreed that only her close friends in the United Kingdom knew about her sexuality and she agreed that even in England she tried to keep her sexuality discreet.
The appellant's evidence in re-examination
The appellant's evidence when questioned by the Tribunal
The evidence of the appellant in chief when recalled
The appellant's evidence in cross-examination when recalled
The appellant's evidence in re-examination when recalled
The evidence of Dr D L Bell
The evidence in chief of Dr Bell
The evidence of Dr Bell in examination in chief
The evidence of Dr Bell in cross-examination
The evidence of Dr Bell when questioned by the Tribunal
The evidence of Dr Bell in re-examination
The evidence of Ms Stephanie Schwandner-Sievers
Her first report
"We were sitting in a park when two police vans pulled over. The officers got out of the van and dragged us away. One of the drivers came over to me and kicked me repeatedly, his boot hitting my stomach. When I begged him to stop, he just shouted 'shut up you faggot', and continued kicking me." S.L, recalling the incident.
Ms Schwandner-Sievers' second report
The evidence of Ms Schwandner-Sievers in examination in chief
The evidence of Ms Schwandner-Sievers in cross-examination
The evidence of Ms Schwandner-Sievers in re-examination
Ms Schwandner-Sievers' third report
The evidence of Dr Nikola Mai
His first report
"As in previous years, NGOs claim that police targeted the homosexual community for abuse. According to the Albanian Gay and Lesbian Association, the police arbitrarily arrested homosexuals and then physically and verbally abused them while they were in detention. The Albanian Human Rights Group reports that during the year police harassed members of the Albanian Gay and Lesbian Association and other known homosexuals, sometimes searching their homes without a warrant."
"With a transition to a market-based economy, many of the principles of equality enforced during communism have lost strength, employment is no longer guaranteed. In addition, more women than men lost their jobs during structural adjustment, and formerly state-owned assets were generally granted to men. As a consequence, women increasingly depend on their husbands and extended families for survival (….) Women have more limited access than men to assets that could help them earn a living, adding to their vulnerability. For example, women face discrimination in owing property and in starting a business. Even gaining access to credit could be difficult for women, not for legal reasons but because banks prefer lending to men."
"However, allegations of ill-treatment of suspects by police during arrest or questioning are still frequent. There has been little progress on application of basic safeguards against ill-treatment during pre-trial detention, such as access to a lawyer and doctor and notification of detention to relatives. Prosecutions for ill-treatment do not always make reference to an appropriately serious offence. Legislation setting criteria for compensation to victims is not yet in place. Amendments to the law on the rights and treatment of inmates are delayed. The Code of Ethics for the prison system is not always followed. Training for business staff on the European Convention on Human Rights is needed. The Supervisory Commission for the Execution of Imprisonment Sentences, which is intended to advise the Minister of Justice on enforcement issues and protection of the rights of prisoners and detainees, is still not operational. Cases of arbitrary arrest in the street of homosexuals by the police still occur."
His second report
The evidence of Dr Mai in examination in chief
The evidence of Dr Mai in cross-examination
The evidence of Dr Mai in re-examination
The evidence of Dr Mai in examination in chief when recalled
The evidence of Dr Mai in cross-examination when recalled
The evidence of Dr Mai in re-examination when recalled
The statement of Mr DK
"…LGBT persons have a very difficult relationship with their families: these relations are insincere or aggressive. They have the same kind of relations with their relatives or social circles. The LGBT persons are afraid that admittance of their sexual orientation to their families may ruin their relations with the other members of the family. They believe that this may be followed by extreme measures by their family members, such as psychological and physical violence, a severe control on their lives; meanwhile most of them live within the family. There have been cases of LGBT persons forced by their family to get married without their consent or even cases of persons kicked out of the house and disinherited. So the relations of the LGBT persons with their families are relations filled with fear. Fear prevents these persons from having an open and sincere relationship with their families. The fear also causes inferiority complexes and a low degree of awareness and self-esteem that conditions their whole life, as well as the life of persons related to them."
The report of Mr Adrian Bicaku
The legal framework
"As it seems to me there is now a broad international consensus that everyone has the right to respect for his private life. The person's private life includes his sexual life, which thus deserves respect. Of course no person has the right to engage in interpersonal sexual activity. His right in this field is primarily not to be interfered with by the state in relation to what he does in private at home, and to an effort by the state to protect him from interference by others. That is the core right. There are permissible grounds for state interference of some person's sexual life – e.g. those who most easily express their sexual desires in sexual activity with small children, or those who wish to engage in sexual activities in the unwilling presence of others. However, the position has not been reached that criminalisation of homosexual activity between consenting adults in private is not regarded by the international community at large as acceptable. If a person wishes to engage in sexual activity and lives in a state which enforces a criminal law prohibiting such activity, he may be able to bring himself within the definition of a refugee. That is one end of the continuum.
The other end of a continuum is the person who lives in a state in which such activity is not subjected to any degree of social disapprobation and is free to engage in it as he is to breathe.
In most states, however, the position is somewhere between these two extremes. Those who wish to engage in homosexual activity are subjected to various pressures to discourage them from so doing. Some pressures may come from the state, e.g. state subsidised advertising or teaching to discourage them from their lifestyle. Other pressures may come from other members of the community, without those members being subjected to effective sanctions by the state to disclose them. Some pressures are there all the time. Others are merely spasmodic. An occasional interference with the exercise of a human right is not necessarily a persecution. The problem which increasingly faces decision-makers is when to ascribe the words 'persecution' to those pressures on the continuum."
"… will have to address questions that were not considered on the last occasion, including the reason why the appellant opted for "discretion" before his departure from Iran and, by implication, would do so again on return. It will have to ask itself whether "discretion" is something that the appellant could reasonably be expected to tolerate, not only in the context of random sexual activity but in relation to "matters following from, and relevant to, sexual identity", in the wider sense recognised by the High Court of Australia (see the judgment of Gommow and Hayne JJ at para 83) [5395/002  HCA 71]. This requires consideration of the fact that homosexuals living in a stable relationship will wish, as this appellant says, to live openly with each other and the "discretion" which they may feel constrained to exercise as a price to pay for the avoidance of condign punishment will require suppression in respect of many aspects of life that are "related to or informed by their sexuality" (Ibid, paragraph 81). This is not simply generalisation; it is dealt with in the appellant's evidence."
"The question that will be before the AIT on remission will be whether the applicant can reasonably be expected to tolerate whatever circumstances are likely to arise were he to return to Iran. The applicant may have to abandon part of his sexual identity, as referred to in the judgment of Gommow and Hayne JJ in S, in circumstances where failure to do that exposes him to the extreme danger that is set out in the country guidance case of RM and BB [(Iran) CG  UKAIT 00117]. The Tribunal may wish to consider whether the combination of these two circumstances may have an affect on their decision as to whether the applicant can be expected to tolerate the situation he may find himself in when he returns to Iran."
"We take as out starting point that when assessing whether a person who is a homosexual would face risk of persecution or serious harm on return to his own country we must take a factual, not a normative, approach. That is to say we must focus on the factual issue of how it is likely he will behave given the evidence we have about how and why he has behaved up to now. It is wrong for a decision-maker to apply a normative approach which focuses on how it is thought an applicant should behave. However, we take from the way in which the Court of Appeal has formulated its questions that in examining how such a person will behave we have to examine whether that will entail for him having to live a life which he cannot reasonably be expected to tolerate because to do so would entail suppression of many aspects of his sexual identity. We are confident that when referring to what an appellant can "reasonably be expected to tolerate" the Court of Appeal had in mind an objective, not a subjective test."
"Whether the issue whether an appellant can reasonably be expected to tolerate his personal or family circumstances if he is returned to his country of nationality is more appropriately considered under the Asylum Convention or under Articles 3, and more particular 8, of the European Convention on Human Rights is something that it is unnecessary to decide. So far as the Asylum Convention is concerned, however, I would place emphasis on paragraph 11 of Maurice Kay's judgment and the requirement of persecution."
"…If there is one thing upon which all the authorities are agreed, it is that persecution is, in the words of Lord Bingham of Cornhill in Sepet and Bulbul  1 WLR 856 at paragraph 7, "a strong word" requiring a high threshold. It has been variously expressed but the language of McHugh and Kirby JJ to which I have referred – "it would constitute persecution only if by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it' – has been adopted in a number of recent authorities including Z [Z v SSHD 2005 Imm AR 75] (at paragraph 12) and Amare v SSHD  EWCA Civ 1600, paragraph 27, and RG (Colombia) v SSHD  EWCA Civ 57, paragraph 16".
"To compel an individual to disown his origins interfered with the fundamental rights. If the consequences of exercising the right to declare your race would lead others to subject you to severe ill-treatment, the consequences would be discrimination on the grounds of race, and persecution."
"However, whether feared ill-treatment is sufficiently grave to amount to persecution has to be seen in the context of each individual case. Gender is an important component of that context. The San Remo Round Table concluded that there was no need to add sex or gender to the Convention grounds, because "the text, object and purpose of the Convention require a gender-inclusive and gender-sensitive interpretation". (See Feller, Turk and Nicholson, op cit, Chapter 5.2, "Summary Conclusions: gender-related persecution", p351)."
"In my judgment the test stated in paragraph 16 of the judgment of Maurice Kay LJ in J, by reference to S395/2002,  HCA 71, complies with the standard required by the Refugee Convention. We are, in any event, bound by it. It is an appropriate and workable test. It was sufficiently stated by the Tribunal at paragraph 39, recited at paragraph 17 above. In reaching their conclusions, the Tribunal in HJ plainly understood the test. They considered the evidence with great care and in detail. They applied the test to the evidence and the facts as they found them to be. I cannot accept the submission that the findings at paragraph 42 were perverse. They were findings the Tribunal were entitled to make on the evidence. Their conclusion that HJ could reasonably be expected to tolerate conditions in Iran was firmly based on the evidence in the case, considered in the context of the in-country evidence. "
"I would dismiss the appeal of HJ on that ground but add comment on the relevance in cases such as this of the views about homosexuality and its practice held and emerging from the in-country evidence in a particular state. The need to protect fundamental human rights transcends national boundaries but, in assessing whether there has been a breach of such rights, a degree of respect for social norms and religious beliefs in other states is in my view appropriate. Both in Muslim Iran and Roman Catholic Cameroon, strong views are genuinely held about homosexual practices. In considering what is reasonably tolerable in a particular society, the fact-finding Tribunal is in my view entitled to have regard to the beliefs held there. A judgment as to what is reasonably tolerable is made in the context of the particular society. Analysis of in-country evidence is necessary in deciding what an applicant can expect on return and cannot, in my view, be ignored when considering that issue. "
"In Amare v Secretary of State  EWCA Civ 1600 Laws LJ, with whom Mummery LJ and Wall LJ agreed, stated, at paragraph 31:
"The Convention is not there to safeguard or protect potentially affected persons from having to live in regimes where purists' liberal values are less respected, even much less respected, than they are here. It is there to secure international protection to the extent agreed by the contracting states. While, as I certainly accept, the sense to be accorded to persecution might shift and stretch as the International consensus develops, the Convention's guarantees remain limited by the two conditions I have described."
Laws LJ's second condition, which he had set out at paragraph 27, was that "the violation, or rather prospective or apprehended violation, must attain a substantial level of seriousness if it is to amount to persecution". That echoes Lord Bingham's finding that persecution is a "strong word" requiring a high threshold (Sepet and Bulbul) and requiring a degree of "intensity" (S395/2002,  HCA 71). Citing other authorities, Buxton LJ, in RG (Colombia) v Secretary of State  EWCA Civ 57, referred, at paragraph 16, to the high level of distress that must be reached before a denial of freedom can be said to be persecutory.
Change in Albania
"Refugees come from the North in search of a better life, but they are (sic) never expected such unbridled freedom. They cannot adjust to this reality; they have other habits, they have lived differently".
The article went on to say these new freedoms, coming at the end of Albanian isolation and up to now most realised in the urban south, undermined the basis of the patriarchal condition. The article also quoted psychologist Elida Rrapti, author of a book on the change at the heart of the Albanian family, which illustrates the tension between the father of a family which had migrated to Tirana, who wanted to continue to control the family through violence, while his daughters realised that they could be independent. The article said that Tirana and other Albanian cities showed the image of independent women, wearing low-cut tops and mini-skirts. The article also quoted Agron Tufa, a young novelist, who said that in Albania taboos were breaking down. Ms Schwandner-Sievers agreed in cross-examination that although she described Agron Tufa as a member of the elite, he was not especially dealing with the urban elite.
The position of lesbians in Albania
Sufficiency of protection
"Whether singling out Communist prisoners for assault (and no doubt other types of prisoner too) is systemic or endemic or sporadic, it necessarily represents an initial failure of protection on the part of the state. If so, the critical question - adopting Lord Hope's approach - will be whether what the state does to stop it happening reaches a practical standard appropriate to the duty it owes all of its citizens. If discriminatory brutality is found to be too widespread to be written off as delinquent activity of the sort that could occur in any system, the paradigm will shift away from the Horvath end of the spectrum towards the less explored class of state agents who take advantage of their power but do not act on behalf of the state: in ordinary parlance, a police force whose members are out of control. Even in such a context a practical standard of protection does not require a guarantee against police misconduct, but it does, as Professor Hathaway says, call for timely and effective rectification of the situation which is allowing the misconduct to happen. For reasons given earlier in this judgment - essentially because it has a different starting point - this is a different model of protection from that which on authority is called for by the Convention when the source of the fear of persecution is people whom the state has to police but who themselves do not deploy or therefore abuse the state's own power. How different will depend on the state of affairs disclosed by the evidence."
Particular social group
The possibility of a single woman living without family support in Tirana
"We disagree, at least insofar as this argument is directed at the meaning of persecution, rather than the requirement under the 1951 Convention to show a convention ground or reason. The meaning of persecution is set out in Reg 5 of the 2006 Protection Regulations and (we repeat) in terms which in our view can be taken broadly to mirror that which has been accorded by the UK courts and this tribunal (and its predecessor) since Horvarth  Imm AR 552(HL). Given that persecution must be seen, therefore, as harm in the form of severe violations of basis human rights, it could only be right "as a matter of principle" to exclude claims based on forced subsistence in an IDP camp if human rights law precluded it. But, as we shall go on to explain, human rights law does not preclude it. Albeit holding that claims for protection against refoulement based on dire socio-economic circumstances are normally not decisive when considering Article 3 ill-treatment, the Strasbourg Court has not excluded that in certain extreme circumstances, such circumstances could give rise to a violation of a nonderogable right: see below paras 86-88. Further, as has been made clear by the Court on many occasions (e.g. in Kalashnikov v Russia  ECHR 596) and by UK courts and the Tribunal, for ill-treatment to arise under Article 3, it does not necessarily have to be intentional or deliberate: see R (On the application of Adam) v Secretary of State for the Home Department  UKHL 66;  1 AC at . Hence, whilst there will always be heavy factual obstacles in the way of a finding that socio-economic circumstances can constitute persecution, there is no reason of principle why a claim of this kind cannot succeed. " (emphasis added).
"As the Attorney-General pointed out, decisions of the European Court of Human Rights, typically O'Rourke v United Kingdom (39022/97, 23 June 2001), make it clear that the state's failure to provide shelter does not by itself amount to inhuman or degrading treatment. But, as he himself accepted, it does not follow that in a case of sufficiently acute individual need – perhaps, as suggested in argument, that of a person who is not only destitute but blind - no positive obligation can arise; and such cases as D v United Kingdom (1997) 24 EHRR 423 clearly establish that a breach of the constant negative obligation can occur where an affirmative act of the State is such as to result, indirectly, in inhuman or degrading consequences for the individual."
"Destitution is an emotive word, and it might be argued that denying support to the destitute is necessarily inhuman and degrading treatment. Such an argument has not been advanced before us, and for good reason. Mr Blake has accepted that there is a margin between the condition that renders an asylum seeker destitute for the purposes of the Asylum Support Regulations, and section 95 of the 1999 Act, and the condition to which an individual must sink before he can contend that he is a victim of a breach of Article 3. As to the former, an individual will, by virtue of section 95(3), be deemed to be destitute if his living accommodation is not adequate and the regulations provide for a minimum sum of money or money's worth which must be provided by way of subsistence. The degree of degradation that must be demonstrated to engage Article 3 falls significantly below this definition of destitution. This can be illustrated by reference to the decision of the Strasbourg Court in O'Rourke v United Kingdom. The applicant was evicted from temporary accommodation provided for him when he came out of prison. He lived on the streets, to the detriment of an asthmatic condition and a chest infection from which he suffered. The Strasbourg Court held that this experience did not attain the requisite level of severity to engage Article 3."
A summary of our general conclusions
The position of the appellant
"Running through these three recent cases is a recognition by the Strasbourg court that, while the Contracting States are obliged to protect those from other jurisdictions who can show that for whatever reason they will suffer persecution or are at real risk of death or serious ill-treatment or will face arbitrary detention or a flagrant denial of a fair trial in the receiving country, limits must be set on the extent to which they can be held responsible outside the areas that are prescribed by articles 2 and 3 and by the fundamental right under article 6 to a fair trial. Those limits must be seen against the background of the general principle of international law that states have the right to control the entry, residence and expulsion of aliens. In N v United Kingdom a distinction was drawn between civil and political rights on the one hand and rights of a social or economic nature on the other. Despite its fundamental importance in the Convention system, article 3 does not have the effect of requiring a Contracting State to guarantee free and unlimited health care to all aliens who are without a right to stay within its jurisdiction. In F v United Kingdom, an article 8 case, a distinction of a different kind was drawn. On the one hand there are those guarantees which, as they are of fundamental importance, must always be rendered effective in practice. On the other there are the qualified rights of a civil or political nature which, on a purely pragmatic basis, the Contracting States cannot be required to guarantee for the rest of the world outside the umbrella of the Convention."
"In adopting and endorsing the test formulated by the AIT in Devaseelan I did not in para 24 of my opinion in Ullah  2 AC 323 understand that tribunal to be distinguishing a "flagrant denial or gross violation" of a right from a complete denial or nullification of it but rather to be assimilating those expressions. This was how the point had been put to the House by the Attorney General for the Secretary of State, as is evidenced from the report of his argument (p 337D):
"If other articles can be engaged the threshold test will require a flagrant breach of the relevant right, such as will completely deny or nullify the right in the destination country: see Devaseelan v Secretary of State for the Home Department  Imm AR 1. A serious or discriminatory interference with the right protected would be insufficient."
It is difficult, with respect, to see how the point could be put more clearly, and any attempt at paraphrase runs the risk of causing confusion."
Senior Immigration Judge Spencer
REASONS FOR THE DECISION THAT THERE IS AN ERROR OF LAW IN THE DETERMINATION
"The basis of the Appellant's claim to asylum is that she is as lesbian and that she is likely to be persecuted for this reason if she is returned to Albania. Her evidence in her SEF form, Interview notes and her statements of 21.3.06 and 11.5.06 as supplemented by oral evidence can be summarised as follows:
8. The Appellant comes from Tirana, Albania. Her father is alcoholic and used to beat his family when drunk. Domestic violence is very common and the police do not get involved. After the Appellant left school, she stayed at home. She never worked. Her family tried to arrange a marriage for her, but she refused two suitors. She had realised at 16 that she was lesbian. She could not tell her family because it was a social taboo. When she was 20, she started a relationship with someone called Mira whom she had met when visiting her uncle. No-one suspected them. However, in January 2005 Mira's family arranged a marriage for her because she was already 25. She did not resist. Mira started to avoid the Appellant as she had to get on with her new life. After Mira's marriage, the Appellant was pressurised to get married also. She was depressed and started to put on weight. She made enquiries about leaving Albania and decided to come to the UK because she had a friend called Esmeralda here. She had a big row with her mother in September 2005 and told her the truth. Her mother was horrified and told her brother, who beat her up. She realised that she would have to leave to avoid being married off at the first opportunity. She says her family would have considered killing her to preserver their honour. Esmeralda sent her an invitation and some money and the Appellant obtained a visitor visa. She left the house on some excuse and flew to the UK on 9.2.06. She telephoned her family when she arrived but her mother said she was dead to them. She cannot return to Albania, because it is culturally unacceptable to be lesbian and she has been disowned by her family.
9. In interview, the Appellant said that she thought she was lesbian because her father had beaten her as a child and she hated men. She said it was illegal to be homosexual in Albania and the penalty was death or life imprisonment. However she also said that the authorities don't care if people are homosexual as they are just not interested. She had decided to associate herself with lesbians because her father was alcoholic and ill-treated her and her mother (Q15). She had been beaten up three or four times by her father because she was gay (Q21-27). She had been treated by a Doctor for depression in early 2005 and again in December. She told him she was being mistreated by her father and he advised her to seek help. Her lesbian relationship had lasted three years and she had lived with her partner for that time (Q66). People had known she was gay because she had a girlfriend who lived near her uncle (Q81). They would know by the way she communicated with them (Q85). She described three suicide attempts at Q92. Firstly, she had taken an overdose, then tried to cut her wrists and then tried to hang herself. Her mother had found her with her wrists cut and saved her. She gives a detailed description of her hanging attempt at Q100 but her mother had arrived in time. None of the suicide attempts appear in the original statement.
10. In her supplementary statement of 11.5.06, the Appellant admits that most of her interview account is untrue. There was only one suicide attempt, which she had not mentioned in her first statement because she was ashamed. She had been misunderstood and had been explaining things which went through her mind. Her father had not beaten her at all because of her lesbianism and she had not sought medical advice for that reason. She had been very confused and nervous at interview."
"11. In evidence, it was pointed out to the Appellant that she had continued to live with her family for some weeks after confessing to her mother and had come to no harm. She said that would have forced her to marry or killed her. It was difficult to leave and find somewhere else to go. Tirana was a small town. Life was much better and easier in the UK and safer for lone gay women. Under cross-examination she said there was only one suicide attempt but it was the hanging which she tried and not the wrists. She had been aware that there were gay associations in Albania, but she had not tried to contact them. As to shelters for domestic violence, they would be very difficult to find and her family would probably find her. She would be forced to return to her family for lack of resources. Eventually they would find her. She could 'maybe' find a job.
12. A medico-psychological report from Mr M Seear is submitted in evidence. He describes the Appellant as showing acute shame. His opinion is that the Appellant is suffering a Major Depressive Episode and that return would be likely to exacerbate this".
"Many men, especially those from the north-east still follow the traditional code – the Kanun – dating from medieval times. They regard women as chattels… However, the Family Code, in force since 2003 provides for the protection of female victims of domestic violence and it is possible for domestic violence to be prosecuted under general assault laws. There are said to be NGOs which offer counselling and aid to abused women. Women are not excluded by law or in practice from any occupation or higher education but are often discriminated against in their careers".
"He goes so far as to say that it would be extremely unlikely that an unmarried female would be able to live an independent life in Albania. A woman is expected to marry around the age of 20 and those perceived to have dishonoured their families face significant risk of violence and even murder. He says there is an almost total lack of social mobility for women in practice. A single woman cannot simply relocate to another area and set up home. Renting property would be almost impossible because she would be assumed to be not respectable. Owing to social pressures, he says that a respectable employer would not entertain the idea of employing her and the most likely outcome would be destitution on the streets for a woman who had been expelled from her family home".
"In light of the objective evidence as to attitudes in Albanian society, I accept that it is likely that (the Appellant) has been disowned by her family. In her interview the Appellant gave detailed accounts of incidents which she later admitted were fabrications, or what she had been imagining. I think she is clearly a disturbed young woman, but in view of her many inconsistencies, I must treat the details of her evidence with caution. In particular, I discount her alleged suicide attempts, which were not mentioned at all in her first statement."
"20. The core of the Appellant's case is that she had a secret three year relationship with a woman called Mira, that she confessed this to her mother who was horrified and that she left Albania to avoid being married off. I find that she did not live with Mira for this period (as she originally claimed but then retracted). I find indeed that no-one knew of or suspected this relationship at the time, which was conducted discreetly and secretly. I find that the only people who know of her sexuality are highly unlikely to have told anyone else. I find therefore that if the Appellant returns she would not be persecuted for her sexuality, as no-one would know about it. It is not an illegal activity. She has conducted herself discreetly in the past and there is no reason to think that she would behave differently in future". (The typed emphasis is mine – see post).
"21. As far as her fear of violence is concerned, I accept there is a reasonable likelihood that her brother beat her when he first found out about the relationship with Mira. However she did not suffer 'three or four' beatings from her father because of this. She retracted this claim and it appears after all that her father was not informed of her sexuality before she left. She remained living at home for several weeks after this without being assaulted or disowned. There is no suggestion that she has ever been threatened with death for dishonouring her family. Indeed, she had decided to leave for the UK before she told her mother what the problem was and before her brother beat her (Q46 ff). My conclusion therefore is that when she decided to leave Albania, the Appellant did so, not because she had been persecuted for her sexuality or because she had been the subject of domestic violence, but because she feared being married against her will."
"…that if the Appellant were to be forced into a marriage against her will, that would amount to inhuman and degrading treatment. However, I have to consider whether this would actually occur. Apart from the culture, in particular those who follow the Kanun tradition, I find no guidance in the Country Report as to whether fathers have an legal right to force a marriage on a girl. The social pressures would no doubt be enormous for someone living at home and wishing to maintain a relationship with her family, but in the case of the Appellant who has already broken with her family, the risk of actually being forced into a marriage must be quite small. In theory any occupation or higher education is open to women and therefore there is no legal bar to a woman making her own way in the world. The Appellant's family would be unaware that she had returned. There would be no-one to force her. There are women's groups to which she could turn for help".
"It does seem almost incredible that a single woman would be unable to rent a room or get a job because of prejudice, and that therefore the most likely outcome for a single woman would be destitution on the streets. However, this is what he says at paras 43, 82 and 83. If true, it means that no woman can exist in Albania outside her family group (even though she may not be actively persecuted) and therefore she cannot relocate to avoid any problems she may have had. This would certainly breach her right to physical and moral integrity under Article 8 and would make the means to a normal life impossible. On the face of it, it seems absurd that someone should be entitled to sanctuary in another country because they have fallen out with their family. However, Mr Standish appears to be well qualified to make his report and I feel I am obliged to accept his advice. The circumstances of this Appellant are truly exceptional in the light of what Mr Standish identifies as the consequences of (the Appellant's) return to Albania as a single woman abandoned by her family. The House of Lords reaffirmed in Januzi and others  UKHL 5 that an asylum seeker cannot be expected to relocate to a place within his own country where the quality of life does not meet the basic norms of civil, political and socio-economic human rights. The same principle must apply to someone who does not qualify as a refugee but nevertheless faces the absence of such basic norms. It would be wholly disproportionate to return her to a life of destitution. I therefore find that to return (the Appellant) in these circumstances would place the UK in breach of its international obligations under Article 8 ECHR".
20. The Appellant's challenge to the findings of the Immigration Judge was predicated on the claim that the Immigration Judge failed to give proper weight to the fact that the Appellant was a lesbian. The Appellant's grounds maintained that as a consequence, there flowed failures to:
- Properly identify the fact that the Appellant had demonstrated the Refugee Convention reason of particular social group resulting from and further exemplified by the persecutory treatment that she suffered from her family and the police;
- The risk of societal ostracism, exclusion and attack and;
- An insufficiency of protection available to her in Albania and/or an inability to safely relocate within the country.
- On the same basis, the Immigration Judge should also have allowed the Appellant's appeal under Article 3 of the ECHR and;
- The failure to give proper weight to the fact that the Appellant was a lesbian resulted in failures to properly identify the nature of risk to her and the nature of her likely treatment on return to Albania.
"1. Was the Appellant a member of a social group as a result of sexual orientation, alternatively;
2. Was the Appellant a member of a social group by virtue of being a woman;
3. Was the Appellant a member of a social group as a result of her having refused a forced marriage?
Fornah  UKHL 46; and
"(i) Its members shared an innate characteristic, or a common background that could not be changed or shared, a characteristic so fundamental to identity or conscience that a person should not be forced to renounce it and
(ii) That group had a distinct identity in the relevant country because it was perceived as being different by the surrounding society".
In determining this appeal we have had regard to:
• the oral evidence of the appellant,
• the oral evidence of Ms Stephanie Schwandner-Sievers MA, honorary research affiliate at the Centre for South Eastern-European Studies of the School of Slavonic and East European Studies at University College in London and a visiting professor at the University of Bologna,
• the oral evidence of Dr Nicola Mai PhD research fellow in migrations and immigrations at the Institute for the Study of European Transformations of the London Metropolitan University
• the oral evidence of Dr D L Bell, BSc MB MRCP FRC Psych, a consultant psychiatrist,
• the appellant's asylum statement dated 21st March 2006,
• a supplementary witness statement from the appellant dated 11th May 2006,
• a second supplementary statement from the appellant dated 19th May 2008,
• a third supplementary statement from the appellant dated 5th September 2008,
• a psychiatric report from Dr Bell which was unsigned and undated but which Dr Bell subsequently indicated was signed in August 2008,
• a supplementary report from Dr Bell dated 9 September 2007,
• a report from Dr Mai dated 28th April 2008,
• a report from Ms Schwandner-Sievers dated 6 May 2008,
• a report from Mr Alex Standish dated 14th May 2006,
• a skeleton argument dated 10th September 2008
• an appellant's notice under rule 32,
• an appellant's notice under rule 14,
• the appellant's schedule of essential paragraphs in the experts' reports,
• items of background material and copies of various authorities,
• a list of essential reading passages,
• further background material,
• a supplementary statement from Ms Schwandner-Sievers dated 21st September 2008,
• a further schedule of essential paragraphs,
• a report on the appellant by Mr NK dated 20th September 2008 and appendices,
• a report from Mr Adratik Bicaku dated 23rd November 2008,
• a statement from the appellant dated 26th November 2008,
• a further report from Ms Schwandner-Sievers dated 22nd November 2008 and attachment,
• a schedule of essential paragraphs in Ms Schwandner-Sievers's further report dated 22nd November 2008,
• a skeleton argument in response to the skeleton argument submitted on behalf of the respondent dated 24th September 2008,
• the Home Office bundle in which there is to be found the notice of appeal and the report of Dr Michael Seear, dated 7th March 2006,
• a bundle of objective material submitted on behalf of the respondent,
• a skeleton argument on behalf of the respondent dated 16th September 2008,
• translated copies of Albanian newspapers,
• the written closing submissions made on behalf of both parties and
• the authorities mentioned in this determination.
In his first report Dr Mai said that although his work addressed social change in post-communist Albania in general, such interest focused on the relation between the emergence of new youth and gender identities and roles, migration and the justification of violence and criminality. He had a good and updated knowledge of the condition of homosexual people in Albania in many different respects.
From July 1993 to January 2000 he worked in Albania as the director of a development project aimed at setting up a network of youth centres as a way to foster the process of democraticisation in Albania, which was based in Tirana, Berat, Gjirokastër and Durrës. The Italian association he used to work for while in Albania, ARCI, was part of a wider network of Italian cultural and political associations among which was also Italy's main gay and lesbian association, ARCIGAY.
Their Albanian partner association was the Albanian Youth Council, a network of different Albanian NGOs, amongst which was ALGA (Albanian Lesbian and Gay Association) which was still operating away from public visibility and in conditions of the utmost secrecy, in order to avoid suffering abuse by both police officers and homophobic groups or individuals. He had also cooperated with the members of ALGA in the development and carrying out of activities in the preparation of two projects, which were submitted to international donors present in Albania. He had known most of the members of ALGA as both colleagues and friends and their professional and personal relations enabled him to understand the condition of Albanian homosexual people in depth. Since his last visit to Albania in December 2006 he had been in touch with members of ALGA and AHRG (the Albanian Human Rights Group) on a regular basis.
From July 2001 to July 2003 he was involved in two parallel research projects on the conditions of social inclusion and exclusion experienced by Albanian migrants living in Italy, Greece and in the United Kingdom, which projects were based at the University of Sussex in Brighton. In 2003 and 2004 he undertook research exploring the relations between Albanian and Romanian cultural constructions of masculinity, sex work and the risk of HIV/AIDS diffusion both at home and among migrants. From January to December 2004 he was the main researcher for the European Network on Male Prostitution underlying the findings of a pilot survey undertaken by the network and aimed at understanding the migratory patterns and conditions and socio-economic vulnerability of male sex workers. In 2005 and 2006 he was the principal investigator within a research project funded by the French region BACA, exploring the relation between male prostitution and the mobility of young people and unaccompanied minors from the Balkans and North Africa, including Albania. Between 2006 and 2007 he was the principal investigator of a project funded by the Save the Children Italy on young migrants involved in criminal behaviour. Before undertaking that research he contacted and got to know many Albanian gay people and activists and he became even more aware of the discrimination, marginalisation and abuse they were subject to in Albania. In September 2006 he was invited to participate in a round table "Making Prevention of Trafficking in Human Beings Effective: Building Regional and Local Capacity of Roma Communities" organised by the Contact Point for Roma Issues and the Anti-Trafficking Programme of the OSCE Office for Democratic Institutions and Human Rights, in cooperation with the OSCE presence in Albania. Although this was his last visit to Albania he had befriended Albanian gay people living in London and was in regular contact with gay activists and friends living in Albania.
|Undated ||Report on State Violence in Albania|
|Undated ||GISH Albania: Research and opinions on the Albanian situation in relation to LBGT rights|
|Undated ||GISH: Report on the arrest of Mr Nasser Almalak|
|Undated ||AHRG report: The American Embassy|
|Undated||Regional Declaration on Cooperation between Gender Mainstreaming Instructional Mechanisms in the Western Balkan Countries, Ministry of Labour, Social Affairs & Equal Opportunities|
|Undated||Website: Wikipedia Tirana Report|
|Undated||Website: NGO and Government Profiles|
|Undated||Website: Women's Organisation Albania|
|Undated||Website: Useful to Albania Women|
|August 2003 ||AHRG report on the arrest of a group of homosexuals: "Police actions turn to be "homophobia"|
|2004||International Labour Organisation: Employment Policy Review, Albania|
|26 February 2004||Law "On An Equal Gender Society"|
|28 February 2005||US Department of State Country Reports: Human Rights Practices 2004|
|18 April 2005 ||OMCT report: State violence in Albania|
|2005-2006 ||Canadian Immigration Refugee Board: Country of Origin Research: Albania|
|2006||US Social Security Programs throughout the World: Europe, 2006|
|1 February 2006 ||Ms Elsa Ballauri, Secretary Director of AHRG: Advisory Opinion|
|March 2006 ||Amnesty International Report: Albania: Violence against women in the family: it's not her shame|
|26 June 2006 ||www.stophonourkillings.com: Honour crimes in Albania|
|8 September 2006||Canada Country of Origin: Responses to Information Requests|
|25 September 2006||Canada Country of Origin: Responses to Information Requests|
|2007||The Commission of the European Communities: Progress Report on Albania|
|2007||Violence Against Women: Does the Government Care in Albania?|
|3 April 2007||UK Operational Guidance Note: Albania|
|3 June 2007 ||Sunday Telegraph: Thousands fear as blood feuds sweep Albania|
|August 2007||Canada Country Fact Sheet|
|1 October 2007||Canada Country of Origin: Responses to Information Requests|
|3 October 2007 ||Summary transcript of telephone interview with representative of OSCE.|
|25 October 2007 ||Telephone conversation/interview with Ms Jennifer Hollinger|
|13-14 November 2007 ||Interview/email correspondence with Prof. Wolfgang Stoppal|
|21 November 2007 ||Amnesty International Report: Albania: No place to call home – adult orphans and the right to housing|
|5 December 2007 ||Balkan Albania's Gay Flight|
|11 March 2008 ||US Department of State: Country Reports on Human Rights Practices 2006: Albania|
|May 2008||Canada Issue Paper: Albania Blood Feuds|
|9 May 2008 ||Note of interview with Mr Nasser Almalak|
|12 May 2008||UKBA Country of Origin Information for Key Documents: Albania|
|2 June 2008 ||Note of telephone conversation with Ms Elsa Ballauri; AHRG|
|July 2008||National Strategy on Gender Equality and against Domestic Violence, OSCE|