QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF S||(CLAIMANT)|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS L GIOVANNETTI (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the DEFENDANT
Crown Copyright ©
"I would like to add that I am also afraid to return to Kosovo as I fear persecution from other Albanians on grounds of my sexuality, and because of the present situation in Kosovo, there is no effective police or justice system to protect me from homophobic attacks. I have not mentioned this factor previously as I have not felt comfortable discussing my sexuality with strangers as a result of the homophobia that exists in Kosovo and that I grew up with. I am still very nervous and shy about this subject as it immensely personal."
"Even if I accept that homosexuals can be regarded as a social group for the purposes of the Convention, there is nothing in the objective evidence to suggest that the appellant would be subjected even to discrimination in Kosovo by reason of homosexuality, let alone discrimination passing over the threshold into persecution."
"I am satisfied that as a fit and healthy young man he could reside in Kosovo. Even if he is homosexual, discrimination and stigmatisation still exists in the United Kingdom and it is clear that given the fact that homosexual activity between consenting adults in private is not unlawful in Kosovo, that the appellant can engage in relationships with other men should he wish to do so there."
"I am of course aware that the appellant has a psychiatric report whereby he has diagnosis that he is a homosexual and I am aware he is receiving counselling from an organisation called PACE."
"The tribunal also had before it a document provided by Melissa Stone, that is similar terms to that of Rachel Wareham, which alleges that crimes against homosexuals are unrecorded in essence and therefore no data exists upon which meaningful conclusions can be drawn."
"I have considered Rachel Wareham's report very carefully and I am not satisfied that it can be classified as objective background material on which much weight can be placed given its provenance and the author's curriculum vitae and acts thereto. It is clear that Miss Wareham is working with women in Kosovo and I am not satisfied she has the necessary experience or expertise to provide an authoritative report on the problems that may or may not be faced by male homosexuals in Kosovo."
"In summary, male homosexuals could not expect protection from violence in Kosovo either from the Albanian community or from the international community. If they were a victim of a crime, they do not have a community to support them to come out and report that it might be because they are gay. This means that gay men live under continual fear, stress and alienation."
"Compared with persecution on ethnic and political grounds in Kosovo, there is relatively little published documented evidence concerning the position of homosexuals and lesbians in Kosovan society since 1999."
"UNMIK regulations prohibit discrimination on the basis of sexual orientation and that the CIPU report also notes that there has been no recorded incidence of violence against homosexuals during the time since UNMIK has been in authority in the province."
"The fear gay Kosovars feel is intense and only one fellow I know spoke out on national television (only to be met with continual verbal harassment on the streets, social alienation from friends and even an insurgence of internalised homophobia -- gay Kosovars afraid to be associated with him). The reactions to this one fellow has again renewed fears that gay Kosovars can not come out and live peaceful lives. Consequently, there is a distrust in UNMIK, K-FOR, and Kosovar Police Services, that they will not help gay Kosovars in need."
"We would like to stress that UNHCR does not purport to provide an exhaustive or closed list of all categories of Kosovo Albanians who could be in the need of international protection as refugees."
It concluded by drawing attention to its position in published papers:
"In a number of countries, homosexuals are subject to severe criminal penalties and/or extreme public hostility and discrimination because of their sexual orientation. When such punishment is excessive it may amount to persecution."
So far as the first part of that letter is concerned, it seems to me to be saying no more than has been said throughout in this case, namely that there is no data which indicates the existence of a threat to homosexuals as a particular category in need of international protection. And insofar as the last paragraph is concerned, it really expresses, in terms which this court has already observed, that what the Convention is concerned with is punishment which is excessive, which may amount to persecution.