IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
B e f o r e :
LORD JUSTICE LONGMORE
SIR MARTIN NOURSE
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Respondent/Respondent|
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MR T EICKE (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent
Crown Copyright ©
"The appellant decided to hitchhike to the capital city Tirana and on 11th September 2001 found refuge with his uncle where he tried to remain in hiding. The appellant believed that the Shtefni family would want to kill him as honour between the two families would only be settled until another life was taken from his family - this was the custom in such blood feuds.
11. The appellant was still in hiding when he went out to get a breath of fresh air under cover of night. The appellant was immediately shot at and realised that the gun had been aimed at him. The appellant managed to scramble to safety and returned to the relative sanctuary of his uncle's house. The police apparently did turn up near the scene of the shooting but they did not question either the appellant or his uncle.
12. The appellant now felt it was not safe anywhere in Albania. The appellant feared that he would eventually be tracked down and killed by the Shtefni family."
Eventually he managed to leave the country and came, as I have indicated, to the United Kingdom.
"Revenge killing has been a feature of the Albanian culture since time immemorial and its deep roots are evidenced by its immediate revival after its successful suppression by the communists during the 47 years they were in power. It happens throughout Albania but is particularly evident in the north where Mr Koci is from and where the taking of blood was one feature of the wider code of unwritten customary law which prevailed in the region until King Zog's time and which is still sometimes applied. The Shtefni family will remain dishonoured so long as they have only taken one life for the two they lost to the gun of Mr Koci's father. Women are entirely excluded from the code of blood vengeance and as Mr Dashamir Koci [the appellant] appears to be the only male member of his family surviving, I do not believe the Shtefni family will rest until they have killed him.
Whatever the 'clear up rate' for crimes which have occurred, the police, despite continuing improvement, remain undertrained and undermanned, and their ability to prevent crime, particularly crime of the nature contemplated, is severely limited. The Secretary of State's view that Mr Koci should seek protection from the Albanian authorities is quite impractical."
"Vigilante action, mostly related to traditional blood feuds, resulted in many killings."
That report also noted that, according to the Ministry of Public Order in Albania, more than 14 individuals were killed in 2001 in blood feuds and that only adult males are acceptable targets for such feuds.
"... was entitled to accept what Mr Robertson said, quite so uncritically as he appears to have done."
"The ministry responsible, unlike the State Department or Amnesty International, give an exact figure for blood-feud deaths in 2001. While even 14 is of course too many, the figure is a more solid basis for assessment of the problem than a vague 'many'; and it does give some hope that it is not only officially-recognized, but kept track of.
15. If Mr Robertson had been provided with, or had taken the initiative to provide himself with the Home Office's up-to-date views in the CIPU report (as they have taken account of what he has said on a previous occasion) and given reasons for maintaining his views, then the claimant would have been in a much stronger position. As it is, Mr Robertson was giving his own views against the background of what was certainly a very general treatment of the law and order situation in the refusal letter. He said nothing about the National Mission for Blood Feud reconciliation, or the various other initiatives; nor about the 1999 Tropoja campaign (even though he specifically deals with Tropoja at § 6-9, set out above at p 4.
16. We have to regard the CIPU report as a very much more balanced assessment of the present situation than Mr Robertson's letter. While blood-feuds clearly still represent a serious problem in Albania, there is clear evidence that the authorities, and others, are taking effective steps to deal with it, by reconciliation where possible, and by armed suppression where necessary. In the light of the CIPU report, we do not consider the adjudicator justified in his uncritical acceptance of Mr Robertson's letter."
"The tribunal's jurisdiction to reverse a special adjudicator's findings of fact is unlimited by statute or rules. Obviously it will be most reluctant to interfere with findings of primary fact dependent upon an assessment of the credibility of witnesses if it has not seen or heard them and the special adjudicator has. But the same inhibition does not apply to the assessment of background material about country conditions. Usually evidence of this kind is not the subject of oral evidence and the weight to be given to it depends upon the assessment of the adjudicator or the tribunal. The tribunal is a specialist tribunal and is as well equipped to make that assessment as the special adjudicator."
"... what I think they were really saying is that they recognised that they should give due weight to the special adjudicator's findings and only interfere with them if they had been shown to be wrong. That, I think, is the correct approach."
That was endorsed by this court in the case of Sabanathan to which I have just referred.
"Many killings continued to occur throughout Albania in 2001 as the result of individual or clan vigilante actions connected to traditional 'blood feuds' or criminal gang conflicts.
... Today, revenge killings in the name of the Kanun have taken on threatening proportions." (my emphasis)
Those passages were not quoted in the IAT's decision.
"... according to the International Crisis Group there has been no concerted and coordinated strategy devised to combat this growing and deeply damaging phenomena (sic)."
Again one notes the reference to this being a growing phenomenon.
"Thus, if the state cannot or will not provide a sufficiency of protection, if sought, the failure to seek it is irrelevant. And that is so whether the failure results from a fear of persecution or simply an acceptance that to do so would be futile."
The same point is made in paragraph 47 of that judgment.
ORDER: Appeal allowed and the decision of the Immigration Appeal Tribunal set aside in respect of the Human Rights claim; adjudicator's determination restored; the Secretary of State to pay the appellant's costs; detailed assessment of the appellant's Community Legal Services Funding certificate.