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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI- 2023-003191 |
|
First-tier Tribunal No: PA /00490/2023 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 2 May 2025
Before
UPPER TRIBUNAL JUDGE RINTOUL
Between
MASKSIM CELA
(ANONYMITY ORDER not MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation :
For the Appellant: In person
For the Respondent: Mr P Skinner, instructed by the Government Legal Department
Heard at Field House on 31 March 2025
DECISION AND REASONS
1. The appellant appeals against the decision of the Secretary of State made on 6 April 2023 to refuse his protection claim. His appeal against that decision to the First-tier Tribunal was set out in a decision promulgated 19 June 2023, upholding the Secretary of State's decision to reject the appellant's claim to be a refugee, but allowing the appeal on human rights grounds. For the reasons set out in a decision of the Upper Tribunal promulgated on 21 May 2024, that decision was set aside. A copy of that decision is annexed to this decision.
2. The appellant is an Albanian national born in 1965. In September 2002 he was convicted and imprisoned for an act of terrorist intention. In addition, in September 2006, he was sentenced to 25 years' imprisonment for participation in criminal organisations, the murder of a policeman and the manufacture and illegal possession of weapons and ammunition. He was released on 14 December 2022. Five days later he travelled first to Italy then Spain, from where he flew to the United Kingdom using a false passport. He arrived in Heathrow on 16 January 2023, where he claimed asylum.
3. The appellant's case is that he was innocent of the offences, for which he was convicted, and that the prosecution had been politically motivated. It is also his case that he is at risk in Albania because he is perceived to be a member of the Lushnje-Aldo Bare Gang, which had led to serious physical attacks upon him in prison in 2003, 2007, 2010 and 2011, after which he had been placed in segregation.
4. In rejecting MC's claims, the SSHD accepted the following facts:
(i) MC would be perceived as a member of the Lushnje Gang/Aldo Bare Gang.
(ii) He had been historically mistreated by police officials.
(iii) He had been convicted of serious criminal offences.
(iv) That he had been harmed whilst in prison.
5. The SSHD did not accept that:
(i) MC would be at risk on return to Albania because he could seek protection from the authorities.
(ii) MC's convictions were politically motivated.
(iii) MC had given a reasonable explanation for failing to claim asylum in Spain or Italy.
6. In addition, the SSHD certified that the appellant was excluded from the protection of Article 33(1) Refugee Convention because Article 1(F) applies owing to his conviction in a court in Albania of serious non-political crimes outside the United Kingdom prior to his admission to this country.
Procedural History
The substantive appeal
7. The Secretary of State refused the appellant's protection claim on 6 April 2023. The appellant appealed within time against the decision to refuse his protection claim. The substantive protection appeal was heard on 2 June 2023 and was allowed on Article 3 grounds for the reasons set out in the decision of 19 June 2023.
8. Permission to appeal to the Upper Tribunal was refused initially on 27 July 2023 but, on a renewed application, permission to appeal was granted on 22 August 2023.
The anonymity issue
9. Prior to refusal of his asylum claim, the appellant had applied for bail and at a hearing held at Hatton Cross on 3 April 2023 that application was refused. At that hearing, acting on an application by the appellant's then solicitors, the First-tier Tribunal Judge granted an anonymity order, having noted that a reporter from "The Sun" newspaper was in attendance at the hearing. Later that day, Counsel instructed by News Group Newspapers (the owners of "The Sun"), Mr J Bunting KC, sought to challenge the anonymity order but the judge declined to reopen the issue.
10. On 6 April 2023, News Group's solicitors made an application for that anonymity order to be revoked. Subsequent to that, and subsequent to an interim anonymity made in response to the appellant's appeal against the decision to refuse his asylum claim, News Group made an application to revoke that order. That application was heard by the First-tier Tribunal (a panel of Resident Judge Campbell and Resident Judge Froom) on 17 May 2023 and for the reasons set out in a decision promulgated on 24 May 2023, the anonymity order was maintained.
Developments after the grant of permission
11. News Group made an application to the Upper Tribunal to revoke the anonymity order and on 1st December 2023 directions were given for a case management hearing on 7 December 2023. At that hearing, it was ordered that the Secretary of State's appeal and News Group's application to revoke the anonymity order would be heard on 29 February 2024 on the basis that the Upper Tribunal would hear submissions first, as to whether the decision of the First-tier Tribunal involved the making of an error of law and second, as to whether the anonymity order made should be revoked.
Outcome of the hearing on 29 February 2024
12. Having heard submissions over two days, the Upper Tribunal reserved its decision on 22 May 2024 handed down a decision setting aside the decision of the First-tier Tribunal in which it had allowed the appeal on article 3 grounds. It also directed that the anonymity order made should be lifted but, in order to permit the appellant to challenge that decision by means of an application for Judicial Review if so advised, the effect of that order was suspended for 21 days pursuant to rule 5 of the Tribunal Procedure (Upper Tribunal) Rules 2008. The appellant did make such a challenge and on 24 June 2024 Mrs Justice Lang DBE granted an anonymity order in the judicial review proceedings so as to maintain the status quo pending the determination of the application for permission to apply for judicial review.
13. On 22 November 2024 Mrs Justice Lang DBE refused the appellant's application for permission to apply for judicial review of the Upper Tribunal's decision of 22 May 2024; but maintaining the anonymity order pending any application by the appellant to renew his application for permission to apply for judicial review but he did not do so.
14. On 22 January 2025 Mrs Justice Lang DBE lifted the anonymity order and on 24 January 2025 I lifted the anonymity order and gave directions for how the matter was to proceed.
The appellant's further applications
15. On 24 March 2025, the appellant sought permission to attach and adduce new material relevant to the appeal and the reimposition of an anonymity order and an order that details of the hearing listed for 31 March and 1 April should not be disclosed.
16. Having read the material provided, I concluded that it is not sufficiently specific to indicate that there is any real threat to the appellant within the United Kingdom such that the reasons given previously for removing the anonymity order are displaced. The appellant is no longer anonymous; details about him and his case have been published and it was not at all clear what reimposition of an order could realistically achieve.
17. Further, it would have been a serious infringement to the principle of open justice not to publish details of when and where the appeal is to be heard. In any event, as the appellant accepted, the dates and venue were already known.
18. The appellant also submitted that an order preventing disclosure of the details of the hearing was necessary to secure fairness and the proper administration of justice but did not adequately explain why there would be an interference or why the appellant would not feel comfortable and safe to provide evidence in court, given the security precautions which are routinely in place at Field House and most other court buildings , nor why they were not sufficient to meet any concerns he may have.
19. In the absence of proper or sufficient evidence of a serious threat to the appellant or to the conduct of the appeal hearing, I was not satisfied that an anonymity order is justified, or that details of the hearing should be withheld. In the event, the hearing took place without incident.
The Hearing on 31 March 2025
Preliminary Issue
20. The appellant sought to renew his application for anonymity, as he was concerned that details about his family might be published and that he felt that he might be inhibited about what he said in his evidence were the hearing not held in private. I was not satisfied this was a sufficient reason to impose any reporting restrictions save for an order that the appellant's address not be disclosed as I was not satisfied that there was a sufficient evidential basis a specific threat to the appellant or his family such that the public interest in the hearing be transparent was outweighed. As I explained at the hearing, there was no evidence of any specific threats made to them. Although journalists were present in court, I was not satisfied that that was a sufficient reason for them being inhibited in assisting the appellant. Given that his concern was about what he would be asked in questions via Mr Skinner, I explained that if the appellant did at any stage feel inhibited in the evidence he had to give, that is a matter that could be dealt with if and when it arose. In the event, at no stage of the proceedings did the appellant state that he felt unable to disclose anything
21. The appellant also raised concerns that the adverse publicity which he had received may cause difficulties for him now in Albania. I explained that there was nothing that could be done if the matter was reported in the United Kingdom which could prevent it from being published elsewhere.
22. Having ensured that all the relevant papers had been served, the appellant said that he had not brought his papers with him, although they had been served on him, as he does not read English properly or to a sufficient standard so that he would be able to understand them. He did not, however, ask for an adjournment to retrieve them or to get any additional assistance in presenting his case. It was agreed with Mr Skinner that where necessary during cross-examination, the relevant documents would be shown to the appellant.
23. Having explained how the appeal would proceed, I asked the appellant if he wished to give evidence. He said that he did. I therefore explained that it would be for him to adopt the witness statements he had already submitted and that I would assist him to do so. He has confirmed that he received the bundle which had been prepared for the earlier hearing last year and that in addition the skeleton argument from the Home Office, skeleton argument from him and the bundle of additional evidence from him and the bundle of additional evidence from the Secretary of State.
The appellant's oral evidence
24. I asked the appellant if he wished to adopt his witness statements dated 1 June 2023, 29 January 2024,10 February 2024 and 24 March 2025.
25. I explained to him that if he adopted them, then it would be the same as if he had read out the statements in court. He said that he was content to do so. He was then cross-examined.
26. The appellant said he had not been part of the Lushnje gang, but that the government at the time had ensured that he would be seen as part of the gang and that his case had always been that the government had had him convicted for political reasons, not based on evidence. He said that no-one could claim that he was behind the crimes he was said to have committed, that he was a businessman who had had nothing to do with crime.
27. Asked about what he had said in interview [page 88 Q2.3] and [page 87 Q63], he said that at that point he had been talking about what he had been convicted for and that he could not lie about what was recorded in the Albanian court documents.
28. The appellant confirmed that there had been attempts to kill him and that it is because he was deemed to be part of the gang although he was not. Also, that he had not told that to the Home Office, because he was being asked why he was seeking asylum and he was referring to the documents he had; and, that he could not say something that did not happen. He denied that he had changed his statement because he thought it would assist his case.
29. Asked about the list of objections to the interview [Bundle page 52] he admitted he had been assisted to draft that by his daughter and son-in-law. He said again that what he had said in that was based on the official Albanian documents. He said that after your sentence you are considered to be part of the gang and rivals will go after you and your family for that reason. He said that such people had been murdered without even being involved with the crime at all, simply because they were family members of gang members.
30. The appellant said he recalled getting the decision from the Home Office which said that he had been excluded from protection because of the serious crimes for which he had been convicted. Asked whether he had changed his case on receipt of that to being seen to be a member of the gang, rather than being a member of the gang, he said that he had been talking about the documents, which had been recorded and it was not for the Tribunal to decide whether he was guilty. His life was in danger from the moment of his conviction. He denied that he had been happy to let the Secretary of State believe that the Albanian court documents are correct or that he has sought to mislead the Secretary of State, pointing out that there had been four attempts on his life and his family had been threatened and had escaped to the United Kingdom.
31. The appellant confirmed that he had been represented by lawyers at his criminal trial and that the case had been considered by a panel of five judges. He confirmed that his conviction had been upheld on appeal and that his appeal to the Supreme Court of Albania had not been accepted. He said that he had not sought to take his case to the European Court of Human Rights as he was struggling financially at the time and wanted to save the money to spend on his family and child's education.
32. Asked why he had not appealed against the finding by the First-tier Tribunal that he was in fact guilty of the offences of which he had been convicted, he said he did not see the need as his appeal had been allowed. He denied saying that he was innocent of the cases of which he had been convicted to improve his situation before the Upper Tribunal and that he had paid for his crimes since his life was now in danger.
33. The appellant accepted that there was no documentary evidence about the attacks on him in prison in Albania and that he could not get the evidence from the prison authorities. He said we did refer to the medical report prepared by them in the United Kingdom, which confirmed the scars.
34. Asked why he had said the only protection the police had given was to take him by car to home [page 321]. This was because they could not guarantee his life or protect it and that his son-in-law had come from the United Kingdom to sign these forms for him as the police could not take responsibility for his life anymore and they wanted somebody to sign for that. He said two to three months before his release date he had been taken to a registry office to get a passport, and again he had been taken there in a police uniform to ensure his safety.
35. Asked if he had approached the prison for the evidence, he said that they would not give it to him and would not even provide him with a response when asked. He said the Home Office wanted access to it by making a formal request. He denied that he was speculating and said that his son-in-law had asked for the documents. Asked if this request had been put in writing, he said it was not true if they did it in writing or in person. Asked why there was no statement from members of the family about this he said that the person who is there when his family were there said that they could not provide the documents as they were confidential.
36. Asked why he had said [page 91 Q81] that the police had guarded him and his family in accommodation, he said this is a misunderstanding or mistake by the interpreter but that the police had only accompanied him to the main gate wearing a police uniform as that was all they would guarantee. It was his son-in-law who had taken from him from the prison as the authorities had said the only protection they could give him was the 30 to 50 metres to the main gate and no further. The police had said they could accompany him to his home but they could not guarantee his life to that extent. It was only when his son in law came to sign a release to take responsibility that he was released at about 10 in the evening rather than the morning.
37. The appellant confirmed that he had left the accommodation in which he was staying to go out to apply for a driver's licence. His son-in-law had driven him to the office, and he had disguised himself wearing a hoodie, sunhat and sunglasses. He had not left his accommodation in Tirana, was staying indoors the whole time.
38. The appellant agreed that he had said in the skeleton argument that being a member of the Lushnje gang was sufficient. Family members of the Lushnje gang were attacked just for being related to a member of the gang. He confirmed that his brother had been able to stay in Albania, he was not targeted and that his wife and daughter had been able to stay for some years, but they had moved around. He said they did so, there was nobody else to bring him food and things in prison. But they were not attacked. He said he had not been asked to obtain documents from the Lushnje Police about this and if he had been he might not have been able to get it. He denied exaggerating the threats to his brother, wife and daughter and in Albania. He said that, in blood feuds, doctors have a sort of immunity and his brother is also very old and on the whole women are not usually targeted.
39. The appellant denied that he was willing to lie to get what he wanted and that he was not prepared to say whatever it took to get to stay in the United Kingdom.
40. I asked the appellant why somebody would go to all the trouble of having him "framed" in a public trial will all the attendant publicity. He said this was the system at the time, they had some connection with the gang as he had sold them cars. He said at the time Albania was almost in a kind of civil war and that he was implicated by the authorities because they wanted to take all his wealth from him, which they had done.
41. The appellant said that he wanted to add something but, after permitting him to discuss the matter with his daughter by telephone, confirmed that there was nothing he wanted to add as it was in the skeleton argument prepared for the hearing.
Submissions.
42. Mr Skinner relied on his skeleton argument submitting that, save insofar as the findings of fact before the First-tier Tribunal were preserved, the appellant's evidence was not credible. He submitted that the appellant had exaggerated the threats to him and that there was no evidence of specific threats made to him other than random threats made by members of the public. The online threats made in Albanian in the more recent bundle were reported in somewhat flowery language. Mr Skinner drew attention also to the lack of evidence from the family as to the threats or, for example, from the prison.
43. Mr Skinner relied on the CPIN submitting that there was sufficiency of protection in this case and although it was not perfect, the issue was whether it was reasonable. He submitted further that the appellant had been inconsistent about what protection had been offered to him, initially that the police had offered to guard his house, which he now rejected and that the newspaper articles which he had relied upon and were produced to the First-tier Tribunal did indicate significant police activity in investigating intergang killings.
44. Mr Skinner submitted also that the appellant would be able to relocate within Albania. There was insufficient evidence to show what the reach of the gang was and whilst he might have a higher profile, it did not necessary follow that any gang would be able to reach him elsewhere in Albania.
45. Mr Cela relied on his skeleton argument submitting that the Albanian authorities had failed to protect him. He submitted that there was no safety for him in Albania and that there was no-one to protect him. He drew attention to the case of an Albanian who had claimed asylum in Sweden. That had been rejected on the basis that he would not be at risk and he had been executed two days after his return, the latter had been pursued for the murder. He said that there had been lots of threats to him and that it was evident from the material supplied that the members of the Lushnje gang had left Albania and had obtained asylum in other countries. On that basis he submitted it was not safe and that there was now in place a blood feud.
46. Mr Cela submitted that if there was a risk to him then it would not have been necessary for the police to disguise him in a police uniform to obtain a passport and that they had taken no responsibility, requiring his son-in-law to come to sign for him for his release. He drew attention to the fact that the Prime Minister, at the time of his conviction, had now been declared a persona non grata in the USA and the United Kingdom and that the articles relied on by the Secretary of State indicated that although things were improving that there was still a need to provide security. He said that once identified he would be at risk of being killed and that since the publicity in the United Kingdom he had received further threats. He drew my attention to the interview with the mother of the policeman who had been murdered, submitting that it was evident that what she wanted was revenge. He submitted that in a country where only 50 Euros would be sufficient to corrupt a member of the police, he would be at risk and they would not provide protection given the level of crime and corruption in the country.
47. Mr Cela submitted that he would not be able to relocate as he would be found given the centralised registration system, he would have to remain indoors in a bunker, which was not a real life.
48. I reserved my decision.
The Law
49. It is for the appellant to prove, on the lower standard, that he is at risk on return to Albania of serious harm such as would engage article 3 of the Human Rights Convention.
50. In assessing the appellant's credibility, I do so in the light of all the background evidence which had been supplied to me and in the light of the preserved findings made by the First-tier Tribunal. I accept that the fact that a person has not told the truth in part of his evidence does not mean that he has not told the truth in other parts of his evidence.
51. No other witness has attended to give evidence and insofar as the appellant relies on anything stated by his daughter or son-in-law, that has not been tested by cross-examination. Further, those individuals have every incentive to bolster the appellant's case. Accordingly, I do not attach weight to anything they may have stated in support of the appellant as being confirmatory or corroborative.
52. There is a difference between what the appellant said in his interviews and in his correction to the interviews and what he says now. Prior to the refusal of his claim, and his exclusion from the Refugee Convention, he did not say expressly that he was innocent or wrongly convicted. He now says that he was not involved with any gang in effect that he had been "framed".
53. There are, I accept, some passages in the interview indicative of non- involvement: at Q27 he said "his was only because I was the friend of Aldo Bare; at Q36 he said "they made me a member of a group". He also said Q65, when asked if he was a member or the gang he had mentioned, said that he had not been, but had been made to be part of a gang. He denied also being part of a gang in response to Q 66.
54. Further, (Q.69) the appellant indicated that things in Albania, such as fingerprint evidence, can be manipulated, and when asked (Q.80) "These gangs are after you, because they believe you are part of Aldo Bara gang?" he replied yes, 100% sure.
55. Mr Skinner sought to attach significant weight to what he submitted was a change in the appellant's case. I do not accept that it is as major a change as is submitted but it is still a change. There is, in the light of the above passages to which Mr Skinner did not refer, an indication that the appellant was not accepting guilt, but he did not expressly state he had been framed.
56. That said, the First-tier Tribunal found that the appellant was guilty of the crimes for which he was convicted. At [15] they rejected the appellant's oral evidence that he was innocent.
57. I find that the appellant's persistence in maintaining his innocence, casts significant doubt on his overall credibility. I find also that, despite what is stated in the skeleton argument, he has been inconsistent in his description of what support was offered to him by the police. He had stated that they had guarded him and then changing it and that he has sought to explain this because the police had said that they could not. As Mr Skinner submitted, it was open to the appellant to have produced evidence from his son in-law to that effect. I find also that the appellant has been inconsistent about why he was unable to obtain documents from the prison confirming that he had been assaulted as claimed. He said first that he could not obtain the documents, then that his son could not obtain the documents, and he was unclear whether they had approached it in person or in writing. Again, it would have been possible to have obtained a copy of a letter or any response to that. It is of course possible that if it had been the son-in-law who had approached the prison, that it was correct to say that it was confidential information that could not be supplied to him rather than to the appellant.
58. The appellant has been unable to provide any evidence of direct threats made to him or to members of his family. Again, I do not accept his explanation as to why the relevant evidence could not have been obtained from the police in Lushnje and even allowing for the fact that he is a litigant who is acting in person, it is sufficiently clear from the material provided by him, with the assistance of his daughter and son-in-law, who are said to be lawyers, they said that they had been able to amass a significant amount of material, produce detailed witness statements and skeleton arguments and also to provide corrections to interview records.
59. In assessing the lack of evidence, I bear in mind and apply the principles set out by the Court of Appeal in MAH (Egypt) v SSHD [2023] EWCA Civ 216. No sufficient reason has been given for the lack of any confirmation of what the police or authorities said, or the nature of any release signed by the son in law, nor why he could not give evidence. He lives in the United Kingdom.
60. I find also that the appellant has exaggerated the extent to which his family were at threat simply for being related to a member of a gang, given the ability of his brother to remain in Albania, being a doctor notwithstanding.
61. The appellant relies on a series of articles about the Lushnje massacre and its aftermath. They do not refer to the appellant or his family but set out in some detail accounts of shootings and killings carried out not indiscriminately. Targets were singled out because of their involvement in gang killings. Whilst they are evidence of continuing gang violence, they are not evidence of the circumstances in which the appellant finds himself. There appears to be little or no doubt from the articles that people were targeted because of what they had actually done. They had killed or attempted to kill other rival gang members. That is not the case with the appellant who was convicted of the killing of a policeman, a very different matter.
62. In his skeleton argument at [31.4], it is submitted that it is a matter of fact and evidence that all families or relatives to the members of the Lushnje gang have left Albania and no one lives in Albania any longer. I do not accept that the evidence relied upon supports that assertion, or that the targeting relates to members of the gang who did not have associations with it (albeit tenuous) prior to the massacre. Further, and in any event, the evidence indicates that the crimes were investigated.
63. Having considered the newspapers carefully, I agree with Mr Skinner's submission that the newspaper articles do not corroborate the appellant's account or are indicative of the risk to him. While unchallenged before the FtT the articles relate to gang-on-gang violence which arose from a specific event with which the appellant was not connected, nor are they evidence of interest in him or even in persons simply perceived to be gang members.
64. As was noted in the earlier determination of the Upper Tribunal, the intergang warfare in Lushnje appears to flow from what is referred to as the "Lushnje massacre". many years after the appellant had been imprisoned, and there appears to be nothing to link him to this incident. In this regard it is particularly telling that the appellant's brother was able to remain in Albania.
65. I do not, however, accept Mr Skinner's submission that the appellant has been unable to say who it is or which gang it is, who would now wish to take revenge on him. Significant detail of the names of the attackers, the details of the attack and the names of the gangs was given in the interview. Mr Skinner did not refer to that. And, the fact of the attacks is accepted. But those attacks were many years before he left Albania, and there is little or no evidence drawn to my attention about the individual attackers or whether the groups still exist.
66. I do not accept the appellant's evidence about the level of protection offered by the police. I have only his word for them refusing to protect him beyond the confines of the prison, and only released him upon his son in law signing to take responsibility for him. It may well be that they could not guarantee his safety, but that is not the test for there being a sufficiency of protection. Nor was it reasonable to expect a guarantee of safety, and it is telling that the appellant now says that he did not say the police offered a guard on his family home.
67. I do not accept the account of him being discharged to his son-in-law. As he said in his SEF, "The police dressed me up in police uniform and they guarded me at the accommodation of my family." (Q81). He did not correct this in his detailed corrections to his asylum interview but has now sought to resile from having had protection at his family's accommodation (Witness Statement of 10 February 2024, page 6). I find that this is not a credible change of position of position and the obvious inference is that the appellant is seeking to exaggerate the threat to him and to bolster his case that there is a lack of police protection. It is surprising that this is the only instance of claimed material mistranslation.
68. Taking all these factors into account, I do not accept that the appellant has told the truth about the nature of the threats to him and, even taking them at its highest, there had been little indication that he would now, having spent eleven years after the last attack on him in prison, and a further nearly three years since he left Albania that he would now be at risk because of his perceived membership of a gang of which he claims not to be a member and in respect of crimes with which he says he was not connected. I find that he has exaggerated his claims and that his claim is not objectively well-founded.
69. Accordingly, for these reasons, I am not satisfied that the appellant is objectively at risk on return to Albania.
70. If, however, I am wrong on that, I have considered whether there would be a sufficiency of protection for him in this case.
71. The starting point in considering whether there is a sufficiency of protection is Horvath v Secretary of State for the Home Department [2001] 1 AC 489 where it was held that whether protection was sufficient was a "practical standard which takes proper account of the duty which the state owes its nationals..." and that "the sufficiency of state protection is not measured by the existence of a real risk of an abusive right but by the availability of a system for the protection of a citizen and a reasonable willingness of the state to operate it".
72. I bear in mind also in Bagdanavicius [2005] UKHL 38 the House of Lords left undisturbed the proposition set out by Auld LJ on real risk and sufficiency of protections in the Court of Appeal (see [2005] EWCA Civ 1605). Of particular note are the following propositions:
13) Sufficiency of state protection is not a guarantee of protection from Article 3 ill-treatment any more than it is a guarantee of protection from an otherwise well-founded fear of persecution in asylum cases - nor, if and to the extent that there is any difference, is it eradication or removal of risk of exposure to Article 3 ill-treatment'; Dhima , McPherson ; Krepel.
14) Where the risk falls to be judged by the sufficiency of state protection, that sufficiency is judged, not according to whether it would eradicate the real risk of the relevant harm, but according to whether it is a reasonable provision in the circumstances; Osman.
15) Notwithstanding such systemic sufficiency of state protection in the receiving state, a claimant may still be able to establish an Article 3 claim if he can show that the authorities there know or ought to know of particular circumstances likely to expose him to risk of Article 3 ill-treatment; Osman.
73. In assessing the situation, I have had close regard to the material provided to me, in particular the CPIN "Country Policy and Information Note Albania: Actors of Protection Version 3.0 February 2025". I bear in mind also the relevant country guidance in EH (blood feuds) Albania CG [2012] UKUT 348 (IAC), albeit that it is now nearly 13 years old.
74. The appellant in his skeleton argument and submissions does not address the CPIN save by saying that although the Albanian government is seeking to improve law enforcement capabilities, this is still a work in progress. He submits [37] that there is still police corruption, and that as a result he is still at risk. He points also to a statement by the Albanian Prime Minister (exhibited to his witness statement of 10 February 2024) to the effect of let the gangs kill each other, and to the killing of Marjo Majollari as evidence of lack of protection. I am not satisfied that either of these is indicative of how the authorities in fact deal with gang violence, given the other material before me.
75. As to the general situation, I take into account the most recent CPIN on Actors of Protection in Albania, which summarises the position on the protection available in Albania as at February 2025.
76. As is set out at [2.1.4] of the CPIN, the most recent the European Court of Human Rights decision on Albania - AD v Sweden [2024] ECHR 402 - held that there is in general a sufficiency of protection from criminal gangs. While noting the problems which exist, the Court recognised that Albania, as a member of the Council of Europe and a Contracting State to the ECHR,
"has made concerted efforts to address these issues...[S]everal reforms have been introduced and measures taken to improve the capability and integrity of the law enforcement authorities...[A]lthough some problems remain, progress has been made. For example, specialised bodies working against corruption and organised crime have been set up and are operational, vetting processes for judges and prosecutors are ongoing, regular police operations against criminal organisations are carried out and there are examples of investigations, arrests and convictions in cases relating to corruption and to organised crime... [T]he Court considers that the Albanian authorities' capacity to protect their people cannot be regarded as insufficient for the general public in Albania. Nor can it be regarded as generally insufficient for all persons who are targeted by criminal organisations..."
77. In addition, the Global Initiative Against Transnational Organized Crime report entitled 'Integrity and Independence of Criminal Justice Institutions in the Western Balkans' of November 2024 (cited in the CPIN at [5.2.6] observes:
The Albanian police is a well-structured law enforcement organization that is regulated by a relatively comprehensive legal framework and system of internal regulation. There are specialized departments that deal with specific areas of law enforcement, including an anti-corruption sector..."
78. There are, I accept, recent examples of problems such as a former MP's family attacking a group of citizens who had complained to the local police about his family's business activities and the police at first failing to act, arrests were made and the incident resulted in the dismissals of the interior minister and deputy chief of the Kruje commissariat and significant police reassignments( see CPIN at [5.4.2-5.4.3]);
79. In addition, the Special Anti-Corruption Structure (SPAK) is " establishing a track record in charging influential people for abusing their public office and participating in corruption" (CPIN, [7.2.1]) and that it in collaboration with other law enforcement agencies, SPAK
"was able to bring down a powerful organized crime network operating in the cities of Tirana, Shkrodra, and Kukës in July 2023, arresting police officers, prosecutors, and businesspeople for involvement with the criminal group. A similar powerful organized crime network operating in the cities of Elbasan and Lushnje, which allegedly had free reign due to its close ties with law enforcement and the judiciary, was brought down by SPAK in September 2023." (CPIN, [7.2.2]) .
80. There have also been greater efforts to address police impunity: CPIN 7.4.1-7.4.5.
81. Taking all of this into account and viewing it in the round with the evidence produced by the appellant, I conclude that that the situation in Albania is and has improved. The steps taken by the authorities are genuine, and constructive. Stating that, in effect, nothing has really changed, is not a sufficient basis to cause me to put aside the conclusion reached by the CPIN, and the extant country guidance and the decision in AD v Sweden that there is in general a sufficiency of protection.
82. That does not, however, mean that there are not particular features which take it outside the norm.
83. The appellant's submission is, primarily, that the steps taken by the Albanian authorities to protect him - disguising him as a guard to assist him to apply for a passport, requiring the son-in-law to collect him and sign a declaration and a refusal to guard his house, are evidence of an inability to protect him, or an unwillingness to do so.
84. I do not accept that the fact that he was tortured by the police in the past and that he murdered a police officer mean that the police will be unwilling to assist him on return. However, this event took place many ago and the submission is contrary to the efforts which the police and other authorities have since take to ensure his safety in Albania.
85. As I have found, the appellant was released from prison wearing a police uniform and the police then guarded him at his family accommodation. Further, protective measures were successfully put in place in prison, so that he was not attacked for the last 11 years of his sentence. While the appellant has said that his segregation was at his request, it was clearly successful. I find that this is demonstrative of a criminal justice system that is both willing and able to take appropriate steps to protect him if necessary.
86. As Mr Skinner also submitted, the newspaper articles on which the Appellant himself relies are full of references to the police undertaking painstaking investigations and arresting and prosecuting people of rival gangs, including in relation to the Lushnje massacre and the ensuing further killings.
87. Having considered all the evidence in the round and bearing in mind what was said in the appellant's skeleton argument, I find that there is a sufficiency of protection for the appellant in Albania.
88. Further and in the alternative, I have considered whether, if there was a sufficiency of protection, the appellant would still be at risk. I consider that the appellant would now have a significantly enhanced profile as the result of the adverse publicity flowing from the newspapers in the British media in early March 2025. Whilst the appellant has not provided certified translations of the articles, I consider that some weight can be attached to them and that they are indicative of threats from, in effect, random individuals, as to what would happen to the appellant on return. These are, in my view, not sufficiently specific to amount to a threat to him or any indication that people would seek to track him down or actually do him harm as opposed to making idle threats on social media. I do not consider that there is sufficient evidence in the article from "The Sun" in which the mother of the murdered policeman was interviewed, is again sufficient reason for her to suggest that she is a risk to the appellant. There is no indication that she would have any resources available to her to carry out any threats against the appellant.
89. Accordingly, I am not satisfied that the appellant's removal would be in breach of article 3 of the Human Rights Convention.
90. I now turn to Article 8 of the Human Rights Convention. In his skeleton argument at [49], the appellant submits his removal would be in breach of Article 8. He does not state why that is so over and above the article 3 arguments. He does not set out the consequences of removal to his family life with his wife, nor has he asserted that he has, unusually, a family life with his adult daughter and her family. He has not stated what obstacles there would be to him and his wife re-establishing their life in Albania or why they could not be overcome.
91. The appellant does not, because of his convictions, meet the eligibility criteria of the Immigration Rules. Having considered the five-step test set out in Razgar, I am satisfied that the appellant meets the first four, and I must then consider the issue of proportionality,
92. In terms of section 117B, the appellant does not meet the requirements of the immigration Rules and thus there is significant public interest in his removal. He does not speak English to any great degree and this is also against him. While he may be supported by family and his family life with his wife was commenced before he entered the United Kingdom, those are neutral factors.
93. I find that the gravity of the appellant's offending and his refusal to acknowledge guilt weigh heavily against him.
94. The appellant has put forward little in the way of factors which weigh significantly in his favour.
95. Taking all of these factors into account, I find that the public interest in removing the appellant is overwhelming and would not be in breach of Article 8 of the Human Rights Convention.
96. Accordingly for these reasons I dismiss the appeal on all grounds.
Notice of Decision
(1) The decision of the First-tier Tribunal involved the making of an error of law and I set it aside
(2) I remake the appeal by dismissing it on all grounds.
Signed Date: 2 May 2025
Jeremy K H Rintoul
Judge of the Upper Tribunal
ANNEX 1 - ERROR OF LAW DECISION
IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2023-003191 |
|
First-tier Tribunal No: PA/00490/2023 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
22.05.24
.......................................
Before
THE HON. MR JUSTICE DOVE, PRESIDENT OF THE UPPER TRIBUNAL
(ASYLUM AND IMMIGRATION CHAMBER)
JUDGE O'CONNOR, PRESIDENT, GENERAL REGULATORY CHAMBER
UPPER TRIBUNAL JUDGE RINTOUL
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
M C
(ANONYMITY ORDER MADE)
Respondent
AND
NEWS GROUP NEWSPAPERS
Applicant
and
MC
(ANONYMITY ORDER MADE)
Respondent
Representation :
For the Appellant: Mr P Skinner, instructed by Government Legal Department
For the Respondent: In person
For the Intervenor: Mr J Bunting, KC, instructed by Simons Muirhead Burton
Heard at Field House on 29 February 2024
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity until 21 days after the issue of this decision.
So long as this order is in force, no-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.
DECISION AND REASONS
1. This is a decision to which all three members of the panel have contributed.
2. The Secretary of State for the Home Department ("SSHD") appeals with permission against a decision of the First-tier Tribunal ("FtT") sitting as a panel (Resident Judge N Froom and First-tier Tribunal Judge L K Gibbs), promulgated on 19 June 2023. In that decision, the FtT upheld the Secretary of State's decision to reject MC's claim to be a refugee but allowed the appeal on human rights grounds.
3. News Group has applied to have the anonymity order put in place by the FtT lifted.
Background
4. MC is an Albanian national born in 1965. In September 2002 he was convicted and imprisoned for an act of terrorist intention. In addition, in September 2006, MC was sentenced to 25 years' imprisonment for participation in criminal organisations, the murder of a policeman and the manufacture and illegal possession of weapons and ammunition. He was released on 14 December 2022. Five days later he travelled first to Italy then Spain, from where he flew to the United Kingdom using a false passport. He arrived in Heathrow on 16 January 2023, where he claimed asylum.
5. MC's case is that he was innocent of the offences, for which he was convicted and that the prosecution had been politically motivated. It is also his case that he is at risk in Albania because he is perceived to be a member of the Lushnje-Aldo Bare Gang, which had led to serious physical attacks upon him in prison in 2003, 2007, 2010 and 2011, after which he had been placed in segregation.
6. In rejecting MC's claims, the SSHD accepted the following facts:
(i) MC would be perceived as a member of the Lushnje Gang/Aldo Bare Gang.
(ii) He had been historically mistreated by police officials.
(iii) He had been convicted of serious criminal offences.
(iv) That he had been harmed whilst in prison.
7. The SSHD did not accept that:
(i) MC would be at risk on return to Albania because he could seek protection from the authorities.
(ii) MC's convictions were politically motivated.
(iii) MC had given a reasonable explanation for failing to claim asylum in Spain or
Italy.
8. In addition, the SSHD certified that the appellant was excluded from the protection of Article 33(1) Refugee Convention because Article 1(F) applies owing to his conviction in a court in Albania of serious non-political crimes outside the United Kingdom prior to his admission to this country.
Procedural History
9. The SSHD refused MC's protection claim on 6 April 2023. Prior to that, MC had applied for bail and at a hearing held at Hatton Cross on 3 April 2023 that application was refused. At that hearing, acting on an application by MC's then solicitors, the First-tier Tribunal Judge granted an anonymity order, having noted that a reporter from "The Sun" newspaper was in attendance at the hearing. Later that day, Counsel instructed by News Group Newspapers (the owners of "The Sun"), Mr J Bunting KC, who also appeared before us, sought to challenge the anonymity order but the judge declined to reopen the issue.
10. On 6 April 2023, News Group's solicitors made an application for that anonymity order to be revoked.
11. MC appealed within time against the decision to refuse his protection claim. In response to that appeal, and in accordance with paragraph 22 of the Presidential Guidance Note No. 2 of 2022 Anonymity Orders and Directions regarding the use of documents and information in the First-tier Tribunal (Immigration and Asylum Chamber), the First-tier Tribunal made an interim anonymity order in respect of MC. The terms of that order were set out in a separate decision by a resident judge dated 28 April 2023.
12. Subsequent to that, News Group made an application to revoke that order. That application was heard by the First-tier Tribunal (a panel of Resident Judge Campbell and Resident Judge Froom) on 17 May 2023 and for the reasons set out in a decision promulgated on 24 May 2023, the anonymity order was maintained.
13. The substantive protection appeal was heard on 2 June 2023 and was allowed on Article 3 grounds for the reasons set out in the decision of 19 June 2023.
14. Permission to appeal to the Upper Tribunal was refused initially on 27 July 2023 but, on a renewed application, permission to appeal was granted on 22 August 2023.
15. News Group then made an application to revoke the anonymity order and on 1 st December 2023 directions were given for a case management hearing on 7 December 2023.
16. At that hearing a date for the hearing of the substantive consideration of SSHD's appeal was fixed, as was the date on which the News Group application to revoke the anonymity order was to be heard. Further directions as to how the matter was to proceed were given following that case management hearing set out in directions issued on 11 December 2023. Those directions were later varied, and the matter came before the Upper Tribunal on the basis that it would proceed to hear submissions first, as to whether the decision of the First-tier Tribunal involved the making of an error of law and second, as to whether the anonymity order made should be revoked.
The First-tier Tribunal's Findings
17. MC appeared before the First-tier Tribunal on his own; he was not represented. The SSHD was represented by a Presenting Officer. MC applied for an adjournment as he had been unable to secure legal representation. The FtT rejected that application. The FtT noted [10] that they had received two detailed witness statements drafted with the assistance of MC's family, which would form the basis of his evidence and concluded they could fairly determine the matter. The FtT found:-
(i) MC's was not innocent of the crimes of which he had been convicted; and, thus
(ii) he was excluded from protection under the Refugee Convention and from humanitarian protection under the Immigration Rules [15 to 16].
18. The FtT also found that:-
(i) numerous newspaper reports provided by MC corroborate his account of ongoing gang warfare and that these support his claim that he remains of interest to rival gang members despite the passage of time [21];
(ii) interest in him had continued whilst he had been in prison, the newspaper reports confirming that other members of gang had been targeted outside, entering segregation in prison in Albania and in detention in the United Kingdom being further evidence of his genuine fear [22];
(iii) failure to claim asylum in Spain and Italy did not significantly damage his credibility;
(iv) MC genuinely fears for his life in Albania due to his perceived gang membership;
(v) MC's safety outside the prison was dependent on the willingness and ability of the police to offer effective protection to the standard set out in Horvath v SSHD [2001] 1 AC 489 [30];
(vi) MC's evidence that the police told him they would not help him is credible and weighs against a finding that he will be able to access sufficient protection in Albania [31];
(vii) on the available evidence, none of which was materially challenged by the Home Office, the Albanian authorities would be unable or unwilling to provide MC with sufficient protection [37] and members of the Lushnje Gang/ Aldo Bare Gang are being picked off in Albania, while others have claimed asylum abroad.
19. The SSHD sought permission to appeal on the basis that the FtT had erred:-
(i) Ground 1: in failing to give reasons why, in light of the relevant Country Guidance case law and the Country Policy and Information Note ("CPIN") "actors of protection, Albania", there was not a sufficiency of protection in Albania given MC's own evidence as to the steps taken to protect him;
(ii) Ground 2: in failing to give adequate reasons why a rival gang would have interest in MC, in particular in t taking into account: why MC's family had not been targeted; or, that he would not be of interest to the rival gang on return, there being no evidence of interest since 2011;
(iii) Ground 3: in not giving adequate reasons for finding that the appellant's failure to claim asylum in Spain or Italy did not damage his credibility.
20. On 9 January 2024, the SSHD sought (and was granted) permission to amend the grounds to rely on a further seven grounds that the FtT had erred:
(i) Ground 4: in failing to consider and apply the test set out in Bagdanavicius [2005] UKHL 38 as to whether MC would face a real risk of being treated contrary to Article 3.
(ii) Ground 5: by failing to consider relevant country guidance, EH (blood feuds) Albania CG [2012] UKUT 348 when attaching weight to Albanian press reports.
(iii) Ground 6: in irrationally concluding that the newspaper articles, which refer principally to events taking place in 2017, demonstrated that members of the Lushnje Gang/Aldo Bare Gang continued to be targeted in Albania.
(iv) Ground 7: in failing to take into account when assessing whether the police would take steps to protect MC, that the newspaper articles record that the police have taken active steps in relation to the activities of the gang.
(v) Ground 8: in finding speculatively and in the absence of evidence [31] that it was a matter of common sense that as MC murdered a police officer that would not endear him to members of the police.
(vi) Ground 9: in failing to take into account the significant changes in policing in Albania that have taken place since MC's ill-treatment in 2000.
(vii) Ground 10: in failing to have regard to the availability of witness protection in Albania.
The Hearing
21. On 29 February 2024 we heard submissions from Mr Skinner and from MC. MC was, as he was in the First-tier Tribunal, unrepresented and he was assisted by an Albanian interpreter who interpreted Mr Skinner's submissions for him.
22. Although MC raised an initial concern that there might be some difficulty in understanding the interpreter as she is from Kosovo, not Albania, no problems arose. We did take the opportunity to explain to MC and his son-in-law who was assisting him that if any problems arose, these should be raised. In the event, no such problems arose.
23. On 1 March 2024, we heard submissions from Mr Bunting for News Group, Mr Skinner and MC with respect to the application to revoke the anonymity order. We then reserved our decision.
The Law
24. We note that in this case there is no cross-appeal against the First-tier Tribunal's conclusion that MC is excluded from the protection of the Refugee Convention. The issue is therefore the application of Article 3.
25. As set out in Bagdanavicius it is for an appellant individual to show that there are substantial grounds for believing that if expelled to another country he will face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. Further, at [24], Lord Brown held:
24. ....In cases where the risk "emanates from intentionally inflicted acts of the public authorities in the receiving country" (the language of para 49 of D v United Kingdom 24 EHRR 423, 447) one can use those terms interchangeably: the intentionally inflicted acts would without more constitute the proscribed treatment. Where, however, the risk emanates from non-state bodies, that is not so: any harm inflicted by non-state agents will not constitute article 3 ill-treatment unless in addition the state has failed to provide reasonable protection. If someone is beaten up and seriously injured by a criminal gang, the member state will not be in breach of article 3 unless it has failed in its positive duty to provide reasonable protection against such criminal acts. This provides the answer to Mr Nicol's reliance on the UK's obligation under article 3 being a negative obligation and thus absolute. The argument begs the vital question as to what particular risk engages the obligation. Is it the risk merely of harm or is it the risk of proscribed treatment? In my judgment it is the latter. The very identification of the issue for determination by the House in the agreed statement of facts and issues illustrates the confusion:
"If, on removal to another country, there is a real risk that a person would suffer torture or inhuman or degrading treatment or punishment from non-state agents, will removal violate article 3 ECHR, or must the person concerned also show that there is in that country an insufficiency of state protection against such ill-treatment?"
Non-state agents do not subject people to torture or the other proscribed forms of ill treatment, however violently they treat them: what, however, would transform such violent treatment into article 3 ill-treatment would be the state's failure to provide reasonable protection against it.
26. We remind ourselves that it is for the Secretary of State to satisfy us that the decision involved the making of an error of law which is material. It is also important to bear in mind that these were experienced judges sitting in a specialist Tribunal and that we should give their decision generous deference when considering their findings of primary fact, and also their evaluation of those facts and the inferences to be drawn from them.
27. As Mr Skinner submitted, the grounds fall into three categories: a challenge to the finding that there is a risk (ground 4); a challenge to the finding that there would not be a sufficiency of protection against that risk (ground 1); and, a challenge to the rationality of the findings made by the FtT from which they inferred that there was a risk and an insufficiency of protection (grounds 5 to 10).
28. Although it was not the order in which the grounds are pleaded, we address first whether the FtT's conclusion that MC was at risk as it is necessary to determine the nature of such a risk and from whom it flows before assessing whether there is, on the particular facts, a sufficiency of protection.
29. For that reason, we turn first to ground 4. Whilst Mr Skinner did not withdraw grounds 2 and 3, he made no submissions additional to what is set out in the grounds of appeal, In any event, grounds 2 and 3 are, for the reasons set out below, lacking in merit.
30. In reaching our conclusions, we have paid careful attention to what MC told us in court and in his detailed witness statements, bearing in mind that although they are detailed, he is not legally qualified. Much of what MC wrote and said is that he has told the truth and that the conclusions reached by the FtT are correct. Insofar as he addressed ground 4, he simply restates at [20] of his witness statement that he would still be of interest to rival gang members due to the ongoing feud and the passage of time is irrelevant. He has also asserted that members and family members of the Lushnje Gang have fled Albania and have been granted status in other countries and that the Albanian authorities have failed to protect the lives in particular circumstances like his. He restates the steps taken to assist him when he was taken out of prison at [20(xi)]. It is further asserted that ground 4 is nothing more than a disagreement.
31. In respect of grounds 2 and 3, MC asserted that the FtT's reasoning was sustainable and based on a proper evaluation of the evidence.
32. In respect of grounds 6 and 7, what MC wrote and said is a restatement of the evidence and an assertion that the grounds are just disagreement. Similarly, what is said in respect of grounds 8 and 9 is a restatement of the case rather than engaging with the reasons given by the Secretary of State as to why the reasoning of the FtT is flawed.
33. We are persuaded by Mr Skinner's submissions that at paragraphs [18] to [26] the analysis undertaken by the FtT is primarily whether MC's account was credible and whether he is genuinely in fear of his life rather than addressing whether that fear was objectively justified.
34. We accept that it was necessary to undertake an analysis of the factual background when assessing real risk. Whilst the heading "Genuine Fear?" which precedes paragraphs [18] to [26] of the FtT's decision is of some assistance in analysing what the First-tier Tribunal did, it is simply a heading. The language used in paragraphs [19] to [20] of the decision is consistent with an assessment of the truth of MC's case. Whilst the consideration at [20] why MC would still be of interest to rival gang members, could be an assessment of risk, it is limited. The FtT accepted his evidence of continuing threat, but this is based on
MC's subjective interpretation of the facts as is shown by the phrase "which he believes was an implicit threat".
35. We observe also that the FtT does not identify sufficiently from whom or why there is a risk to MC. These are elements which needed to be identified as indeed who it is who perceives MC is a gang member: is it the police and the public, or also members of the presumed rival gang?
36. At [21], when assessing risk, the FtT considered the newspaper reports (which is the subject of ground 5). As Mr Skinner submitted, when examining the articles referred to in detail, a number of matters become clearer. First, there was a major incident in Lushnje in 2017 in which several gang members were shot. This led to a series of reprisal killings carried out by rival gang members, first in response to the initial incident, referred to as the "Lushnje massacre" and then in response to those killings. Whilst there is some reference [32] to the newspaper articles, that cited in respect of Elton Mermal was taken from what is effectively an opinion piece and there is no proper attempt to identify why those circumstances apply to the appellant
37. It is sensible at this point now to consider both grounds 5 and 6 together Whilst we accept (ground 5) that the FtT did not consider the dangers of relying on newspaper articles as set out in EH, the circumstances were entirely different. In EH, the articles in question were planted in an attempt to corroborate a story. In this case, we have a series of articles which do not refer to MC or his family but set out in some detail accounts of shootings and killings carried out not indiscriminately. Targets were singled out because of their involvement in gang killings. Whilst they are evidence of continuing gang violence, they are not evidence of the circumstances in which MC finds himself. There appears to be little or no doubt from the articles that people were targeted because of what they had actually done. They had killed or attempted to kill other rival gang members. That is not the case with the MC who was convicted of the killing of a policeman, a very different matter. Having considered the newspapers carefully, we agree with Mr Skinner's submission that the finding that the newspaper articles corroborate MC's account or are indicative of the risk to him is unsustainable. While unchallenged before the FtT the articles relate to gang-on-gang violence which arose from a specific event with which MC was not connected, nor are they evidence of interest in him or even in persons simply perceived to be gang members.
38. We turn briefly to grounds 2 and 3. We find that they are without merit. What is set out in paragraphs 6 and 7 of Ground 2 is nothing more than an attempt to reargue the appeal. The FtT gave adequate and sustainable reasons for why they accepted that MC's family would not have been targeted and to an extent, the newspaper articles referred to above indicate that attacks are targeted on specific gang members rather than on their family. Ground 3 is misleading. The FtT did not find that MC's credibility was not damaged; on the contrary they found that it was damaged but not significantly by his failure to claim asylum in Spain and Italy. The FtT gave adequate and sustainable reasons for finding it was minimal. Drawing these strands together, we conclude that the FtT erred in moving from a sustainable finding that MC's fear was genuinely believed to an unsustainable finding that this fear was objectively a real one. It is not possible to discern how the FtT reached that conclusion Given the flaws in their analysis of the newspaper articles on which they relied, it cannot be understood how they moved from a finding that MC has a subjective fear to a finding that MC's fear was objectively made out. That renders the finding that there is a real risk unsustainable, and without a sustainable finding that there is a real risk, then the decision must be set aside.
Sufficiency of Protection
39. We now turn to the FtT's findings with regard to sufficiency of protection. The FtT addressed this issue from paragraphs 27 to 37. We accept, as Mr Skinner accepted, that the FtT directed themselves properly as to the law in paragraphs 28 to 29.
40. The FtT held [30] as follows:
"Although we acknowledge that, whilst in prison the appellant was able to gain some form of protection by moving into segregation and that the prison authorities assisted him in leaving the prison safely, we find that his safety outside of the prison is dependent on the willingness and ability of the police to offer effective protection to the Horvath standard."
41. The FtT appear to have accepted the appellant's evidence that the police had told him that there was nothing they could do to protect him, which is why he arranged for a passport to be available immediately on release from custody. They also accepted his account of being taken out of prison and to apply for a passport disguised as a prison guard, from which they inferred that the authorities believed that this was necessary to ensure his safety.
42. The main focus of the Secretary of State's challenge to the FtT's assessment of the sufficiency of protection is directed at paragraph [31] of the decision:
31. Whilst, on the face of it, Albania clearly does have a functioning police force and legal system, we remind ourselves that we must look at the particular circumstances of this appellant. We find that he has been convicted of the murder of a police officer, a crime which, as a matter of common sense, will not endear him to members of the police force. Further, it is accepted that the appellant has been the victim of torture at the hands of the police, a fact that not only in our view justifies his lack of faith in their protection but also strengthens our view that his safety will not be a priority for them. We therefore find that the appellant's evidence that the police told him that they could not help him is credible and weighs against a finding that he will be able to access sufficient protection in Albania.
43. In addition, the Secretary of State submitted that the FtT failed to have proper regard to the CPIN and did not take a balanced approach to the evidence.
44. In response to ground 1, MC restated his case but did not properly engage with the failure of the FtT to address the issue of risk rather than assessing credibility. It is again asserted that his particular circumstances are such that he would be killed by the rivals of the gang, as had other gangs. He also refers at exhibit MC10 to an article which shows that the Albanian police and prosecutors were involved with a crime and worked for criminal organisations, selling information, indicating that the police and judiciary are corrupt. There is, however, insufficient evidence to show that this was put before the FtT, nor in any event does the article from 26 August 2023 indicate anything other than that corrupt officials were actually charged, convicted and imprisoned.
45. In essence, the SSHD's submissions are that the FtT failed to take into account material considerations. It was submitted the omissions, particularly those set out in the CPIN, are obvious and ought to have been taken into account.
46. We have some difficulty with these submissions. It is manifest from the decision that the FtT did look at the CPIN and indeed they quote several passages from it. Where the Secretary of State is on stronger ground, is the submission that the FtT had not explained why they had preferred those parts of the evidence suggesting that there is not a sufficiency of protection over those parts that went the other way. In particular, the FtT did not address the changes which had occurred in Albania in the 22 years since the appellant had been ill-treated by the police.
47. In response, MC submitted that there was no flaw in the approach and that the conclusions were sustainable on the evidence before the FtT.
48. We have significant difficulties with paragraph 31 for the following reasons. We accept the submission that it does not follow as a matter of common sense that MC's conviction for the murder of a police officer "would not endear him" to the police force from which it was inferred that they were unlikely to be willing to assist him. That we consider is speculative in that it is not properly based on evidence. Such evidence as there is, would tend to point the other way. On MC's own account, although the police told him they could not protect him, it is not clear that they were unwilling to do so. On his account, they took steps to protect him by offering police protection on release (although he says in his most recent witness statemen that he did not take the offer) and more importantly he was assisted by being dressed in a police or prison uniform to go out and apply for a passport. Equally, it could be that a police force, knowing that they would be under observation as to how they treated a person convicted of such a crime, would behave scrupulously fairly to avoid any implication that they had taken or failed to take action because of the nature of a crime.
49. Further, as with the flawed finding that MC's genuine fear was objectively justified when assessing risk (see[36] above), the FtT appears to have confused the subjective fear with an objectively justified fear. It is perfectly reasonable to conclude that somebody who had been the victim of torture at the hands of police would not have faith in them in future, but that does not explain why, objectively, that fear is likely to be real.
50. As noted above, the FtT did not identify from whom there is a risk to MC. That is a necessary component in assessing the sufficiency of protection.
51. We accept that in assessing sufficiency of protection that some weight can rationally be attached to the existence of corruption within Albania but we accept Mr Skinner's the submission that the fact that there is corruption does not in itself, without understanding how that operates, demonstrate that the authorities would not be willing to provide a protection from serious violent crime. That is in the context where it is evident from the CPIN and indeed the newspaper articles cited by the FtT that the police do take steps to prevent and to prosecute crime.
52. Despite MC's submissions, we accept that the FtT failed to consider what the police did in relation to the Lushnje Gang. As was submitted, in the passages from the newspaper article cited at [21] of the FtT's decision, it is evident that attempts had been made to prosecute and to investigate the Lushnje massacre and the ensuing further killings. As Mr Skinner submitted, those parts of the articles which are not cited in full have a significant number of references to the police undertaking painstaking investigations and arresting and prosecuting people of rival gangs.
53. Taking these factors together, we conclude that the FtT failed rationally to explain why it rejected the evidence of sufficiency of protection and reached the conclusions that it did.
54. We do not, however, consider there is any merit in ground 10. There is no basis on which it is put forward that witness protection would be available to the appellant, given there is no indication that he is a witness to anything; rather, he is a convicted murderer who has been released from prison.
55. Taking all these factors into account, we find that the decision of the First-tier Tribunal did involve the making of an error of law in that it failed properly to assess the risk to MC and that this error was further compounded by a failure properly to explain why they had reached the conclusion that there was a sufficiency of protection without having adequately identified what the risk was, from whom and why they preferred the evidence extracted from the CPIN that there would not be a sufficiency of protection whilst rejecting the evidence which pointed the other way.
56. Accordingly for these reasons we set aside the decision to be remade in the Upper Tribunal on the basis that the following findings of fact are preserved .
57. Anonymity
58. We turn next to the issue of anonymity.
59. As set out above, on 24th May 2023 the First-tier Tribunal determined that the anonymity order in relation to MC which had been initially made on 3rd April 2023 was maintained. Following the appeal to the Upper Tribunal a further application was made on behalf of News Group for the anonymity order to be revoked. At the hearing we heard submissions made on behalf of News Group by Mr Jude Bunting KC (promoting the application), from Mr Skinner on behalf of the SSHD (who was neutral in respect of the application) and from MC (who resisted the application).
60. The application is supported by a witness statement from Mr Nick Parker, who is the Chief Foreign Correspondent for "The Sun", and who, as set out above, attended the hearing before the First-tier Tribunal at which the anonymity order was made. Whilst a number of matters pertaining to the procedure adopted by the First-tier Tribunal are aired in Mr Parker's witness statement these contentions were not pressed by Mr Bunting at the hearing. Other features of Mr Parker's witness statement are of more central significance to Mr Bunting's submissions.
61. Firstly, Mr Parker draws attention to MC's criminal past and his involvement in a criminal gang in Lushnje in Albania along with his conviction, as set out above, for the murder of a police officer and the placing of explosives at a stadium in Lushnje. Mr Parker sets out in his evidence his contentions as to the public interest in the present case, involving as it does a foreign criminal who has received a lengthy sentence for serious crimes in his country of origin, in the setting of what Mr Parker describes as "widespread controversy" in relation to the asylum system. Secondly, Mr Parker provides evidence that MC was publicly identified both in the context of his arrest and prosecution at the time of the offences, and also more recently in January 2020 when a television channel in Albania aired a documentary dedicated to the activities of the Lushnje gang naming MC as a gang member. Mr Parker appends to his witness statement a number of articles translated from Albanian in which MC is named, along with the nature of the offences he committed, the length of his prison sentence, and his association with an organised criminal gang in Lushnje. These articles bear upon MC's criminal activities in Lushnje but also, for instance, address the appointment of his nephew as a prosecutor of serious crimes, the coverage focusing upon the relationship between this appointment and MC's notorious criminal past. It would appear a reasonable inference from Mr Parker's evidence that this range of articles identifying and naming MC in the context of his gang membership are freely available on the internet.
62. Against the background of this evidence Mr Bunting submits that the high threshold necessary to justify an anonymity direction has not been reached, and that open justice principles require the identification of MC. In particular Mr Bunting submits that in respect of article 2 of the ECHR it has not been established that there is any "real and immediate risk" to MC which would be increased were he to be identified as playing a role in the present proceedings. Thus, the test in the case of Re Officer L which is dealt with in greater detail below, has not been passed and there is no other clear and cogent reason for an anonymity order to be in place.
63. In response to the application the SSHD provided a skeleton argument and oral submissions setting out that he is neutral in respect of the merits of the application, but providing some context for the consideration of the application. In these submissions emphasis is given to the importance which it is submitted should attach to the fact that information and documents in support of a claim are supplied by a person seeking international protection on a confidential basis. The confidentiality of this material is reflected in the SSHD's Immigration Rules in paragraph 339iA, a provision which is itself reflective of international instruments such as the UNHCR's Advisory Opinion on the rules of confidentiality regarding asylum information (31st March 2005) at paragraphs 4, 5 and 7. It is contended that these systemic issues may override the desirability of naming a litigant in the interests of open justice. Further to this it is submitted by the SSHD that the emphasis in News Group's submissions on the public interest in the asylum system are misplaced, in the sense that there is a difference between the public interest in the name of this particular appellant, and the public interest in understanding how particular categories case are being decided. Finally, it is noted that insufficient emphasis in the submissions of News Group is placed upon the fact that at present MC's appeal is, at the very least, pending final determination.
64. MC objects to the lifting of the anonymity order, and has submitted a witness statement dated 27th January 2024 setting out his concerns in relation to the application. Firstly, MC notes what he regards as being material inaccuracies in the reporting of his case by Mr Parker. This is disputed by Mr Parker in a second witness statement, but for reasons which we shall identify shortly it is unnecessary to dwell upon this dispute. Within his witness statement MC denies any involvement in the crimes of which he was convicted and for which he was sentenced. He submits that there is no evidence to link him to any of the offences with which he was charged. He contends that he was the victim of a miscarriage of justice. In his witness statement he relies upon evidence from the media in relation to the Lushnje gang demonstrating that all of the gang members and their families are being targeted by gang rivals. In essence, therefore, he relies upon the material in support of his human rights claim that were he to be returned to Albania he would be at risk of breaches of articles 2 and 3 as a consequence of reprisals on the basis that he would be known as a person who had been convicted of criminal activity associated with the Lushnje gang and therefore the subject of retribution as a consequence.
65. Both Rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 and Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 contain provisions empowering, respectively, the First-tier Tribunal and the Upper Tribunal to anonymise proceedings so as to prohibit members of the public being able to identify a person associated with the proceedings who for good reason should not be identified. The principles in respect of which these powers will be exercised are, generally speaking, held in common with all jurisdictions.
66. In order to assist in relation to the specific concerns relating to anonymity in the Upper Tribunal on 5th February 2022 the then President of UTIAC issued a Presidential Guidance Note in relation to both anonymity orders and hearings in private. It is important to note at the outset that there was no dispute between the parties but that the Presidential Guidance Note remains an accurate and reliable statement of the relevant principles to be applied in respect of the grant of anonymity orders in the Upper Tribunal. The principles which are set out in that Guidance Note therefore provide a useful starting point for the consideration of News Groups application.
67. The principles are summarised in the Presidential Guidance Note as follows:
" III Principles to be applied
13. The starting point for consideration of anonymity orders in UTIAC, as in all courts and tribunals, is the principle of open justice, described in the
Introduction to this Guidance Note. This principle promotes the rule of law and public confidence in the legal system. UTIAC sits in open court with the public and press able to attend and, as a general matter, nothing should be done to discourage the publication to the wider public of fair and accurate reports of proceedings that have taken place.
14. Given the importance of open justice, the general principle is that an anonymity order should only be made by UTIAC to the extent that the law requires it or it is found necessary to do so.
15. It should be borne in mind that an anonymity order can be lifted. It is, however, much harder effectively to anonymise at a later stage once the information has been made public and there may have been a breach of the duty of confidence. To that end, at least in the earlier stages, it may be sensible, particularly in protection cases, and cases involving children, to err on the side of caution.
16. In order to achieve the required degree of anonymisation, it may be necessary to do more than just using letters for a party's name in the decision or judgment"
68. Prior to turning to the detail of the present application it is, in our view, important to note two particular issues to which this application has given rise. Firstly, whilst noting and endorsing the wisdom of the observation in paragraph 15 of the Presidential Guidance Note that in protection cases it may very well be appropriate in the early stages to err on the side of caution, in the light of the importance of the open justice principle it is essential that any anonymity order remains the subject of review at appropriate opportunities during the course of any proceedings. That is in effect what has happened in the present case, and whilst the need for review is not identified in the Presidential Guidance Note, it is an important practical consideration which ensures that the justification for any anonymity order remains the subject of continuing consideration.
69. Secondly, and related to this first point, on the basis that any decision in relation to an anonymity order will be highly fact sensitive and made in the specific circumstances of the case under consideration it is important to appreciate that the facts bearing upon the merits of any anonymity order can vary over the course of time. This has occurred in the present case, in the sense that the extent of the evidence before us is greater than that which was available to the First-tier Tribunal when considering the earlier application to lift the anonymity order. The new material contained in the application before us warrants a reconsideration of the merits of the imposition of an anonymity order in the favour of MC based upon this new material.
70. The specific issues arising in the context of the present application relate to MC's concerns that if the anonymity order were to be lifted he would be at risk of breaches of article 2 and 3. It is necessary to set out the established principles in relation to anonymity and article 2, as well as the issues arising under the common law, in order to judge whether or not the anonymity order is justified.
71. The leading case in respect of this aspect of anonymity is the case of Re Officer L [2007] 1 WLR 2135; [2007] UKHL 36. The case concerned a public inquiry into the death of a member of the public who died during an affray in Portadown, County Armagh in which an application for anonymity was made on behalf of serving or former police officers who were concerned that, if they were called as witnesses without anonymity, they would be in fear of their lives due to exposure to terrorist attack if they were publicly identified. The applications for anonymity were rejected by the inquiry leading to an application to the Northern Ireland High Court (and thereafter the Court of Appeal) for judicial review. The issue in question was the appropriate test to apply for a breach of article 2 to justify the grant of anonymity. Lord Carswell, in the leading opinion in the House of Lords, provided as follows in relation to this issue:
"19. The right to life is simply and briefly expressed in the first sentence of article 2 of the Convention: "Everyone's right to life shall be protected by law." As the Strasbourg jurisprudence has laid down, this covers not only the negative obligation, not to take the life of another person, but imposes on contracting states, a positive obligation, to take certain steps towards the prevention of loss of life at the hands of others than the state. The locus classicus of this doctrine is Osman v United Kingdom (1998) 29 EHRR 245, paras 115-”116:
'115. The court notes that the first sentence of article 2(1) enjoins the state not only to refrain from the intentional and unlawful taking of life, but also, to take appropriate steps to safeguard the lives of those within its jurisdiction. It is common ground that the state's obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the court that article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties.
116. For the court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in articles 5 and 8 of the Convention. In the opinion of the court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The court does not accept the Government's view that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life. Such a rigid standard must be considered to be incompatible with the requirements of article 1 of the Convention and the obligations of contracting states under that article to secure the practical and effective protection of the rights and freedoms laid down therein, including article 2. For the court, and having regard to the nature of the right protected by article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case.
20 Two matters have become clear in the subsequent development of the case law. First, this positive obligation arises only when the risk is "real and immediate". The wording of this test has been the subject of some critical discussion, but its meaning has been aptly summarised in Northern Ireland by Weatherup J in In re W's Application [2004] NIQB 67, at [17], where he said that "a real risk is one that is objectively verified and an immediate risk is one that is present and continuing". It is in my opinion clear that the criterion is and should be one that is not readily satisfied: in other words, the threshold is high. There was a suggestion in para 28 of the judgment of the court in R (A) v Lord Saville of Newdigate [2002] 1 WLR 1249, 1261 (also known as the Widgery Soldiers case, to distinguish it from the earlier case with a very similar title) that a lower degree would engage article 2 when the risk is attendant upon some action that an authority is contemplating putting into effect itself. I shall return to this case later, but I do not think that this suggestion is well-founded. In my opinion the standard is constant and not variable with the type of act in contemplation, and is not easily reached. Moreover, the requirement that the fear has to bereal means that it must be objectively well-founded. In this respect the approach adopted by Morgan J was capable of causing confusion when he held that the tribunal should have commenced by assessing the subjective nature of the fears entertained by the applicants for anonymity before going on to assess the extent to which those fears were objectively justified. That is a valid approach when considering the common law test, but in assessing the existence of a real and immediate risk for the purposes of article 2 the issue does not depend on the subjective concerns of the applicant, but on the reality of the existence of the risk. As the Court of Appeal indicated in para 33 of its judgment, the existence of
subjective fears is not a prerequisite to the finding that there is a risk which satisfies the test of article 2, and, conversely, if a risk to life exists, article 2 will be engaged even if the person accepted robustly disclaims having any subjective fears. That is not to say that the existence of a subjective fear is evidentially irrelevant, for it may be a pointer towards the existence of a real and immediate risk, but in the context of article 2 it is no more than evidence.
21 Secondly, there is a reflection of the principle of proportionality, striking a fair balance between the general rights of the community and the personal rights of the individual, to be found in the degree of stringency imposed upon the state authorities in the level of precautions which they have to take to avoid being in breach of article 2.
...
24 Starting from that premise, the tribunal accordingly posed the question whether in respect of any applicant the risk would be materially increased if he or she were required to give evidence without anonymity. In my opinion that was a correct test to apply. The Court of Appeal considered that it was an incorrect test. At para 42 of its judgment, it commenced by posing the question "will the requirement to give evidence give rise to a real risk to life?" I would regard that as an appropriate question to ask. It then went on to express its conclusion, however, that the proper question to ask is a simple one "Is there a real risk?" rather than "Is there an increase in the risk?" I cannot regard that as correct. If there is not a real and immediate risk to the life of an applicant before he or she gives evidence, then ex hypothesise to reach that threshold there must be some increase in risk occasioned by giving evidence. Only if that is the case can the requirement to give evidence "give rise to" a real risk to life.
25 The tribunal accordingly approached the matter properly under article 2 in seeking to ascertain whether giving evidence would give rise to a materially increased risk to life. Having found that it did not, it did not require then to go on to consider whether such an increased risk, if found to exist, would come up to the threshold required of a real and immediate risk to life."
72. Lord Carswell went on to address the common law principles in relation to applications for anonymity and in particular the requirements of fairness, on the basis that any order of this kind must be made in accordance with standard public law principles. The question arising in relation to the requirements of fairness is whether it is fair in the particular circumstances of the case for a party to have to participate in the litigation, or a witness to have to give evidence, without the protection of an anonymity order. This will be a balancing exercise in which there will be a variety of relevant factors to take into account which will be specific to the case under consideration. They can include the question of whether the risk to life or the risk of harm will be increased by the identification of the person concerned, as well as their subjective fears of giving evidence and the harm which might arise as a result to their health and wellbeing. This is not an exhaustive list given the potentially wide scope of matters which could be relevant.
73. Lord Carswell sought to provide a synthesis of the article 2 issues in a case concerning anonymity with the common law principles in the following passage of his opinion.
"29. In pursuit of this end, I suggest that the exercise to be carried out by the tribunal faced with a request for anonymity should be the application of the common law test, with an excursion, if the facts require it, into the territory of article 2. Such an excursion would only be necessary if the tribunal found that, viewed objectively, a risk to the witness's life would be created or materially increased if they gave evidence without anonymity. If so, it should decide whether that increased risk would amount to a real and immediate risk to life. If it would, then the tribunal would ordinarily have little difficulty in determining that it would be reasonable in all the circumstances to give the witnesses a degree of anonymity. That would then conclude the exercise, for that anonymity would be required by article 2 and it would be unnecessary for the tribunal to give further consideration to the matter. If there would not be a real and immediate threat to the witness's life, then article 2 would drop out of consideration and the tribunal would continue to decide the matter as one governed by the common law principles. In coming to that decision the existence of subjective fears can be taken into account, on the basis which I earlier discussed (see para 22). For the same reasons as those which I have set out in para 20, however, I would not regard it as essential in every case to commence consideration of the issue by seeking to identify such subjective fears."
74. These principles were endorsed in the subsequent decision of the House of Lords in Van Colle & another V Chief Constable of the Hertfordshire Police [2009] 1 AC 225; [2008] UKHL 50.
75. In reaching our conclusion we have, of course, borne carefully in mind that in the light of our conclusion that there were errors of law in the decision of the First-tier Tribunal and this decision will have to be remade, the merits of MC's contentions in relation to article 3 have yet to be finally adjudicated. Nothing which we observe in the context of our decision in respect of the anonymity order has any bearing on how the merits of MC's case ought ultimately to be resolved. For reasons which will become clear, our decision on the anonymity order is entirely compatible with either of the available answers to the SSHD's appeal.
76. Secondly, we have borne in mind the careful and detailed decision of the First-tier Tribunal on 24 th May 2023, in which a panel of the First-tier Tribunal decided that the anonymity order should be maintained. However, as we have already observed, there is new material before us which the First-tier Tribunal did not have. The First-tier Tribunal afforded significant weight to the international instruments which have been referred to above confirming that any information provided in connection with a claim for asylum or international protection should be the subject of confidentiality (see paragraphs 52 and 53). The First-tier Tribunal were also concerned, bearing in mind the stage that the proceedings had by then reached, that identification of MC could aggravate interest in him and have an impact on how the parties might address issues in his appeal such as risk on return, sufficiency of state protection and internal flight and exclusion (see paragraphs 54 and 55). For reasons which we shall explain in our judgment matters have moved on since that decision was reached, and a fresh assessment of the need for an anonymity order in this case must be made.
77. Whilst we note Mr Bunting's submissions based on the evidence of Mr Parker that this case is subject to a heightened public interest in that it bears upon the operation of the asylum system in the UK, in our view the interests of open justice are of evident importance and equal weight in relation to any case within the jurisdiction of UTIAC. This observation is consistent with the provisions of the Presidential Guidance Note. The facts that the present case concerns a foreign national criminal convicted in Albania of serious crimes is material, in the sense that there is a public interest in understanding the details of any case with which UTIAC is concerned for the various good reasons which are provided in the authorities, for instance R (Rai) v Winchester Crown Court [2021] EWHC 329 at paragraph 38, quoting paragraph 29 of In Re BBC [2018] 1 WLR 6023.
78. Secondly, whilst Mr Bunting made submissions based on the credibility of MC's witness statement and in particular that he continues to deny his guilt of the offences of which he was convicted, notwithstanding the findings to the contrary of the First-tier in the decision under appeal, we regard this point as being of peripheral significance to the resolution of the issues in this application. The central question for our determination is, in the light of the importance of the open justice principle and the concerns raised by MC as to the consequences of lifting the anonymity order, whether we are satisfied that the fact of revealing MC's involvement in the proceedings would give rise to a materially increased risk to his life and therefore be in breach of article 2. By the same token MC's concerns expressed in his evidence that the reporting of his case by Mr Parker has been inaccurate and misleading is only of peripheral significance to our determination of the issues in the application. As Mr Parker points out, were there to be a removal of the anonymity order there would still be a clear and persisting responsibility upon any journalist reporting this case to ensure that the facts reported were accurate, reliable, fair and not misleading.
79. The starting point in relation to the consideration of the application is to note that if MC's case is successful, and he establishes his claim based upon articles 2 and 3, then there is no real and immediate risk to his life arising because that would entitle him to remain in the UK and therefore remove his concerns. An anonymity order could not therefore be justified in circumstances where MC's case succeeds, and the focus of attention must be on the questions arising were MC's claim to be unsuccessful, leading to him being returned to Albania. It is not necessary to resolve his appeal in order to address the questions arising on this application. This is because, as set out above, the question arising in relation to the anonymity application is whether or not the disclosure of his name as the appellant in these proceedings would lead to a materially increased risk to his life. The important evidence which is before us, but which was not before the Firsttier Tribunal, is the material exhibited in Mr Parkers first witness statement which demonstrates the wide spread media coverage identifying MC by name available on the internet. This material associates him with an organised criminal gang and identifies the role which he took in the activities of that gang, in particular by his participation in the crimes of which he was convicted in Albania. It is safe to conclude that not only is his name known, in association with the Lushnje gang, to the criminal justice system in Albania, but it is also known to associates and rivals in the criminal community in Albania. His identity has been the subject of publicity in the media on numerous occasions as a member of the Lushnje gang, most recently in association with the appointment of his nephew to a role in law enforcement.
80. In these circumstances we are unable to accept that his identification in these proceedings would give rise to a materially increased risk to life beyond that which is already identified in the available material, and which exists independently of his identification as a participant in these proceedings. The test set out in Re Officer L in relation to article 2 has not therefore been made out with respect to MC. Whilst MC's opposition to the lifting of the anonymity order is expressed as pertaining also to concerns about members of his family there is, again, insufficient evidence to suggest that the identification of MC would give rise to any materially increased risk in their case either, and therefore, again, the article 2 test is not established. On the evidence before us it is clear that MC has been named and identified as a member of the Lushnje gang who committed murder and terrorist crimes not simply as a matter of public record as a result of his conviction and imprisonment, but also in the context of media coverage of his activities as a member of the gang on several occasions in media which is publicly available and published in Albania. In all of these circumstances we are unable to accept that there is a justification for an anonymity order in this case based upon article 2.
81. In accordance with the approach established by Lord Carswell in paragraph 29 of his opinion set out above we have gone on to consider whether the common law requires that there should be an anonymity made order in relation to MC. We accept that MC is in subjective fear of reprisals from criminal elements in Albania and that this is a factor in support of granting anonymity, and that the identification of him as the appellant in this case will cause concerns both to him and his immediate family in the UK. We also accept that the points raised by the respondent in relation to the principle that an applicant for international protection is entitled to expect confidentiality in relation to their claim tells in favour of the grant of anonymity in this case. Against this has to be balanced the interests of open justice and the importance that is quite properly attached to proceedings being conducted openly and transparently. Furthermore, it was not suggested by MC that he would not be able to give his best evidence unless an anonymity order was in place. In our view, in the particular circumstances of this case, the balance is clearly to be struck in favour of open justice and the lifting of the anonymity order in this case. Thus, both in relation to article 2, and also in relation to the common law principles, we are not satisfied that this is a case in which the appellant should be anonymised.
82. We therefore direct that the anonymity order made should be lifted but, in order to permit MC to challenge that decision by means of an application for Judicial Review if so advised, we suspend the effect of that order for 21 days pursuant to rule 5 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
Notice of Decision
(1) The decision of the First-tier Tribunal involved the making of an error of law and we set it aside.
(2) We direct that the appeal be re-made in the Upper Tribunal on a date to be fixed.
(3) If either party wishes to adduce any further evidence, this must be served in electronic format on the other party and the Upper Tribunal at least 10 working days before the next hearing, accompanied by an application made pursuant to rule 15 (2A) of the Tribunals Procedure (Upper Tribunal) Rules 2008.
(4) If the appellant wishes to give further oral evidence, or to call other oral evidence, he must provide a witness statement or statements capable of standing as evidence in chief, to be served in accordance with direction [3] above.
(5) An Albanian interpreter will be booked.
Signed Date: 21 May 2024
Jeremy Rintoul
Judge of the Upper Tribunal