1 April 2010
against the United Kingdom
lodged on 9 September 2009
STATEMENT OF FACTS
The applicant, Ms L.R., is an Albanian national who was born in 1980 and lives in confidential sheltered accommodation in London. She is represented before the Court by Mr A. Weiss of the AIRE Centre, assisted by Ms C. Connelly of the North Kensington Law Centre and Ms R. Kotak, Counsel.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant grew up in Tropojë, in northern Albania. In 1995, she moved to Tirana with her older sister to complete her secondary education. In 1997, two of the applicant's brothers were killed in Tropojë by a gang in the context of a blood feud. A third brother suffered serious physical injuries and psychological trauma and moved to Italy for medical treatment. In July 2000, her older sister was murdered in Tirana by gunmen in their apartment. The applicant returned to live with her family in Tropojë, but the family seldom left the house as they were afraid that they would also be killed.
In 2002, the applicant's younger sister obtained an entry visa and moved to Italy to look after her brother. In 2004 the applicant also obtained a visa and went to live in Italy. She returned to Albania twice in 2005 for short visits, including one for her father's funeral, but claims that she did not stay longer than necessary as she felt threatened in Albania. In 2005, the applicant's mother moved to Italy to join the rest of the family.
In February 2007, in Italy, the applicant met a northern Albanian man “D”. A few weeks after their first meeting he abducted her, seized her identity papers and held her in a room for a week subjecting her to both physical and sexual assault. In March 2007, D and another man brought the applicant to the United Kingdom, providing her with identity papers. She was taken to a nightclub in Leeds where she was expected to earn GBP 2,000 every night by having sex with men and to hand all the money that she had earned over to D. The applicant worked there for approximately one week, against her will, having sex with men. D complained that she was not earning enough money for him and threatened her with a knife. The applicant ran away from the nightclub and travelled to London.
On 16 April 2007, the applicant reported incidents of kidnapping and sexual assault to the police, and was referred to the Poppy Project (an organisation which provides assistance for women who have been trafficked to the United Kingdom). The applicant was later interviewed by the police who investigated her allegations. Initially, the applicant claims that she was too frightened of D to tell the police the full story and identify him as her trafficker, but she later did so after advice from the Poppy Project. D was subsequently arrested and placed in pre-trial detention. The applicant correctly identified him during a video identity parade.
On 8 June 2007, the applicant had a termination of a pregnancy which she had discovered after her escape from the nightclub. She gave consent for the police to test the DNA of the aborted foetus which showed that it was not genetically related to D. The applicant claimed that her pregnancy resulted from her forced prostitution at the nightclub.
On 28 August 2007, the applicant claimed asylum, on the basis of her fear of the blood feud in Albania which had killed three of her siblings, her fear of persecution and retribution in Albania from D and his family, and due to the risk of re-trafficking as a single, vulnerable, trafficked woman.
In a letter dated 11 December 2007, the Senior Crown Prosecutor informed the applicant of the Crown Prosecution Service's decision not to prosecute D as the case against him was not:
“strong enough to be able to prove to the court to the very high standard needed in criminal cases that the person named had committed the offences”.
In December 2007, the applicant received a letter from her sister in Italy, in which she explained that her family had disowned her. The letter stated that her brother wished to harm her for having dishonoured the family and that D's family in Italy had threatened her for reporting him to the police.
On 11 January 2008, the police informed the applicant verbally that D had been expelled to Albania.
On 24 October 2008, the applicant's asylum claim was refused by the Secretary of State as incredible. It was not accepted that any of her siblings had been killed or injured because of a blood feud or that she had left Albania as a result of the same. In addition, it was not accepted that the applicant had been kidnapped and trafficked into the United Kingdom because she had provided conflicting and inconsistent accounts to the police and the immigration authorities of both the manner in which she had been kidnapped and her time in the United Kingdom. The Secretary of State found it significant that the case of sexual assault and kidnapping against D had been discontinued by the Crown Prosecution Service due to inconsistencies between the evidence of her and her sister. It was subsequently not accepted that her family had disowned her or that her sister had been threatened by D's family in Italy. Even taking the applicant's claim at its highest, the Secretary of State considered that it was significant that she had been trafficked out of Italy and not out of Albania. It was therefore considered that she could relocate within Albania to remain safe. It was not accepted that there would be a reasonable likelihood of her being re-trafficked or abducted if returned to Albania. In any event, the applicant could avail herself of the protection of the Albanian authorities if necessary.
The applicant appealed against the decision to refuse to grant her international protection and relied on, inter alia, a report from her Senior Support Worker at the Poppy Project, setting out the nature of their work, the history of their work with the applicant and their experience of victims of trafficking from Albania, dated 16 February 2009. The report stated that:
“In the experience of the Poppy Project re-trafficking from Albania is a significant problem. The Project's data has shown that the risk to returning victims is particularly high. Of a sample study of Albanian trafficking victims accessing the Poppy Project, 40% were re-trafficked prior to being referred.
In addition to these reports, in June 2007, the Poppy Project met with IOM [sic] Albania, Caritas and Chaste. They reported that 70% of women that are returned to shelters in Albania had been re-trafficked.”
The applicant also relied on a report from a clinical psychologist specialising in violence against women, dated 27 January 2009, which concluded that the applicant:
“is suffering from complex, severe and chronic Post-Traumatic Stress Disorder in the context of a Major Depressive Episode.
I believe that her psychological conditions are primarily a function of her experiences of being abducted, assaulted and forced into prostitution....aggravated by recent events, including her rejection by surviving relatives, the refusal of her application and the suspension of court proceedings against her trafficker.”
The applicant also relied on an extensive report on the position of returned victims of human trafficking in Albania prepared by Stephanie Schwandner-Sievers, an academic specialising in Albania, dated 15 February 2009. The report set out, inter alia, the difficulties in identifying the number of Albanian victims of trafficking, the limited numbers of shelters and protection available for victims, the difficulty victims face re-integrating into society, the risks of being recycled back into prostitution, and suspected police corruption and complicity in trafficking.
On 11 March 2009, the Asylum and Immigration Tribunal dismissed her appeal, as it was not accepted that the applicant would be at real risk of persecution or harm contrary to Article 3 upon return. Whilst finding the applicant to be an unreliable witness, the Tribunal found that there was sufficient reliable evidence for findings of fact to be made on the central issues. In reaching that conclusion, it emphasised that no adverse reflection was intended on the applicant's personal honesty. Thus, the Tribunal accepted that the applicant had been trafficked into the United Kingdom, that she had spent a week as a sex worker before escaping and that she had no close family members or support left in Albania. However, it found that the applicant would not be at risk in Albania because there was no evidence to establish that she could not live alone in the future, or that she would be at real risk of harm if she had to live alone in the future.
In respect of the applicant's claim to fear the blood feud that had killed her brothers and sister previously, the Tribunal found that there was insufficient evidence to show that any blood feud remained current in the sense of posing a real danger to her, particularly as, inter alia, her parents had remained in the family home more or less continuously despite the blood feud, and the family had failed to claim asylum in Italy. In respect of the applicant's claim to be at risk from her brother and her family, the Tribunal noted that her family were in Italy and not Albania to where removal directions would be set. In any event, it considered that if the threat against the applicant from her family was real, she would be at risk of harm throughout the European Union, including the United Kingdom, as it was hardly a difficult journey from Italy. Similarly, in respect of her claim to be at risk from D's family, the Tribunal considered that the applicant had to be at risk from the same source in the United Kingdom as elsewhere, and found that:
“it is difficult to see how being in the United Kingdom can protect her, as no special safety arrangements have been made and the applicant moves around freely. Nothing has happened [to her in the United Kingdom]. The Tribunal regards the threat as less than real.”
Additionally, the Tribunal did not accept that there was a real risk of the applicant being re-trafficked from Albania, noting that she was 28 years of age, educated, highly presentable, outside the age group for trafficked women, had found the experience of sex work repulsive, and had assisted the police with their enquiries. It therefore considered that it was highly unlikely that she would fall victim to another trafficking scheme, even though she would have no family support, economic or otherwise in Albania. She had:
“learned from the experience and benefited from the experiences of the other clients of the Poppy Project, as well as from the counselling that she had received.”
The Tribunal also considered that allowance had to be made for the possibility that the applicant would “encounter sympathetic, generous and kind persons in Albania” and considered that adequate support facilities would be available to her there.
The Tribunal did not accept that any of the general health issues raised by the applicant had reached the Article 3 threshold, particularly as there were adequate health facilities in Albania, including mental health provision. Finally, the Tribunal found that although her removal would be an interference with her private life under Article 8, such interference would be proportionate to the legitimate aim of immigration control as the applicant had no continuing need of the United Kingdom's protection and could be returned to Albania in safety.
On 5 May 2009, a Senior Immigration Judge at the Tribunal refused her application for reconsideration as there was no arguable error of law, and the Tribunal's decision in relation to the lack of real risk in Albania and internal relocation was fully reasoned and sound. The applicant had failed to show any arguable error of law which was potentially decisive of her appeal.
On 16 July 2009, the High Court dismissed a further application for reconsideration, satisfied that the Tribunal had properly come to the view, on the evidence before it, that the applicant's appeal was not well founded in any respect.
On 9 September 2009, the applicant submitted her application requesting interim measures under Rule 39 of the Rules of Court. On 23 September 2009, the applicant submitted a letter of the same date from her Senior Support Worker at the Poppy Project, setting out concerns that the applicant was at a high risk of suicide, and was being closely monitored by the Poppy Project, the applicant's GP, her counsellor at the Helen Bamber Foundation and the National Health Service Community Mental Health Crisis Team. It also set out that the applicant had just discovered that she was pregnant (from a consensual relationship) which had heightened her vulnerable mental and emotional state.
On 25 September 2009, the Acting President of the Chamber to which the application was allocated decided to apply Rule 39 of the Rules of Court and indicate to the Government of the United Kingdom that the applicant should not be expelled until further notice.
B. Relevant domestic law and practice
Section 82(1) of the Nationality, Immigration and Asylum Act 2002, provides a right of appeal against an immigration decision made by the Secretary of State for the Home Department. Appeals in asylum, immigration and nationality matters are heard by the Asylum and Immigration Tribunal, which replaces the former system of adjudicators and the Immigration Appeal Tribunal.
Section 103A of the Nationality, Immigration and Asylum Act 2002 provides that a party to an appeal may apply to the High Court, on the grounds that the Tribunal made an error of law, for an order requiring the Tribunal to reconsider its decision on the appeal. The High Court may make such an order if it thinks that the Tribunal may have made an error of law. At present, all applications for reconsideration go through a “filter procedure”, so that an application for reconsideration is first made to an authorised immigration judge of the Tribunal. If the immigration judge refuses to make an order for reconsideration, the applicant may renew the application to the High Court, which will consider the application afresh.
Country guidance determinations of the Tribunal are to be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal that determined the appeal. Unless expressly superseded or replaced by a later country guidance determination, country guidance determinations are authoritative in any subsequent appeals so far as that appeal relates to the country guidance issue in question and depends upon the same or similar evidence.
In the country guidance determination of AM and BM (Trafficked women) Albania CG  UKUT 80 (IAC), the Tribunal held that:
“a) It is not possible to set out a typical profile of trafficked women from Albania: trafficked women come from all areas of the country and from varied social backgrounds.
b) At its worst the psychological damage inflicted on a victim of trafficking can lead to difficulties in reintegrating into Albanian society and has implications on whether or not it is possible for the victim of trafficking, should she fear persecution in her own area, to relocate.
c) Much of Albanian society is governed by a strict code of honour which not only means that trafficked women would have very considerable difficulty in reintegrating into their home areas on return but also will affect their ability to relocate internally. Those who have children outside marriage are particularly vulnerable. In extreme cases the close relatives of the trafficked woman may refuse to have the trafficked woman's child return with her and could force her to abandon the child.
d) Those that see themselves outside society, for example, divorced or abandoned women, or others who wish to live abroad, may seek out traffickers in order to facilitate their departure from Albania and their establishment in prostitution abroad. Although such women are not "trafficked women" in the sense that they have not been abducted against their will, there is likely to be considerable violence within the relationships and the psychological affect of that violence may lead to a situation where the pressures which they are under and the lack of freedom they are under means that such women should be treated as trafficked women.
e) The Albanian Government and authorities are taking steps to protect trafficked women who return but such steps are not always effective. When considering whether or not there is a sufficiency of protection for a trafficked woman who is to be returned her particular circumstances must be considered. Not all trafficked women returning to Albania will be unable to access the arrangements and facilities available to enable successful re-integration.
f) Trafficked women from Albania may well be members of a particular social group on that account alone. Whether they are at risk of persecution on account of such membership and whether they will be able to access sufficiency of protection from the authorities will depend upon their individual circumstances including but not limited to the following: 1)The social status and economic standing of the trafficked woman's family. 2) The level of education of the trafficked woman or her family. 3) The trafficked woman's state of health, particularly her mental health. 4) The presence of an illegitimate child. 5) The area of origin of the trafficked woman's family. 6) The trafficked woman's age.”
Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.
Relevant international treaties
The Council of Europe Convention on Action against Trafficking in Human Beings, CETS No. 197, 16 May 2005, was signed by the United Kingdom on 23 March 2007 and ratified on 17 December 2008. It entered into force in respect of the United Kingdom on 1 April 2009. It was signed by Albania on 22 December 2005 and ratified on 6 February 2007. It entered into force in respect of Albania on 1 February 2008.
Article 12 of that Convention provides that each Party shall adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery, taking due account of the victim's safety and protection needs.
Article 14 provides that each Party shall issue a renewable residence permit to victims if the competent authority considers that their stay is necessary owing to their personal situation or for the purpose of their co-operation with the competent authorities in investigation or criminal proceedings.
Article 16 provides that when a Party returns a victim to another State, such return shall be with due regard for the rights, safety and dignity of that person and for the status of any legal proceedings related to the fact that the person is a victim, and shall preferably be voluntary.
Article 28 provides that each Party shall adopt such legislative or other measures as may be necessary to provide effective and appropriate protection for victims and other groups from potential retaliation or intimidation in particular during and after investigation and prosecution of perpetrators.
The Council of Europe Report by the Commissioner for Human Rights, on his visit to Albania, 27 October – 2 November 2007, published 18 June 2008
This report was the result of an official visit to Albania by the Commissioner for Human Rights upon invitation by the Foreign Affairs of Albania as part of a continuous process of regular country missions to all member states of the Council of Europe to assess their effective respect for human rights. In respect of trafficking, the report stated that:
“Once a major source and transit country for trafficking in human beings, the country has undertaken significant efforts in recent years to fight this crime more efficiently and effectively created a legislative and organisational-operational framework covering the areas of investigation and prosecution, protection and prevention.
Although the numbers of trafficked Albanian women and children appears to be decreasing, credible reports indicate that many still are faced with the danger of simply being recycled into trafficking. Owing to the illicit nature of the act, the extent to which re-trafficking exists is undocumented and unclear.
Tackling the widespread problem of victim identification, the government has stepped up its efforts in the course of the last year to secure effective identification of victims through initiating interviewing procedures in the presence of not only border, migration and/or anti-trafficking police officers, but reinforced with representatives from the social services and specialised NGOs. However, representatives of specialised anti-trafficking NGOs told the Commissioner that the inclusion of NGOs does not happen on an institutionalised and regular basis and needs to be improved.
According to international and national sources working on combating trafficking in human beings, the efforts made are not sustainable yet, despite a series of recent legal and organisational measures taken, and are hampered by four factors: lack of determined implementation of the National Action Plan and the national referral mechanism, shortcomings in the identification of potential trafficking victims, lack of resources and police attitudes not conducive to children's and other victims' protection.”
United States Department of State, Trafficking in Persons Report 2009, covering the period from April 2008 to March 2009, published 4 June 2009
This report stated that Albania is a source country for men, women, and children trafficked for the purposes of sexual exploitation and forced labour. It listed Albania as a Tier 2 country which is defined as one whose government is making significant efforts to meet minimum standards. It reported that:
“The Government of Albania does not fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so. The government demonstrated increased political will to combat human trafficking over the last year, particularly through progress made in its efforts to identify victims of trafficking. Concerns remained regarding whether the government vigorously prosecuted labor trafficking offenders and public officials who participated in or facilitated human trafficking.”
In the context of the prosecution of traffickers, it reported that:
“The Government of Albania made some progress in its anti-trafficking law enforcement efforts during 2008.
Pervasive corruption at all levels and sectors of Albanian society remained an obstacle to reducing human trafficking in Albania. The government reported that the cases of official complicity referenced in the 2008 report were determined to have involved smuggling, not human trafficking.”
In the context of the protection of victims of trafficking, it reported that:
“The Government of Albania boosted efforts to provide victims of trafficking with protection and assistance in 2008.
The government encouraged victims to participate in investigations and prosecutions of trafficking offenders; however, victims often refused to testify, or they changed their testimony as a result of intimidation from traffickers or fear of intimidation.”
3. United States Department of State, Report on Human Rights Practices 2008: Albania, published 25 February 2009
This report indicated that although Albania was a source country for trafficking of women and children for the purposes of commercial sexual exploitation and forced labour, there had been a slow but steady decline in the number of persons trafficked each year. It stated that:
“The government provided limited services to trafficking victims, operating a shelter near Tirana; however, it has not provided any assistance to the four non-government shelters. On July 23, the government approved a new National Action Plan through 2008-10 to specify government actions to provide services to victims of trafficking; however, implementation was slow.”
4. Reports of non-governmental organisations
In their 2009 annual report, covering events in 2008, Amnesty International reported that:
“Women and girls continued to be trafficked for forced prostitution, and children for exploitation as beggars, generally to Greece and Italy. Victim protection remained weak, and police largely relied on the victims themselves to report trafficking. During the year, the Serious Crimes Court tried 30 defendants on charges of trafficking women for sexual exploitation and six defendants charged with trafficking children.”
The applicant complains that it would expose her to a real risk of being subjected to treatment in breach of Articles 3 and 4 of the Convention and/or a violation of Article 2 if she was removed from the United Kingdom to Albania. The applicant also complains under Article 8 of the Convention that her removal from the United Kingdom to Albania will constitute a disproportionate interference with her right to respect for her private life, and specifically her moral and physical integrity.
QUESTIONS TO THE PARTIES
The parties are requested to comment on the objective information set out in the statement of facts and, if necessary, to provide any further such information.