AL (Albania) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Nicola Davies,Lady Justice Asplin,Lord Justice Bean |
| Judgment Date | 10 June 2019 |
| Neutral Citation | [2019] EWCA Civ 950 |
| Docket Number | Case No: C5/2017/0845 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 June 2019 |
[2019] EWCA Civ 950
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Lord Matthews and Deputy Upper Tribunal Judge Monson
AA/00527/2016
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Bean
Lady Justice Asplin DBE
and
Lady Justice Nicola Davies DBE
Case No: C5/2017/0845
Hugh Southey QC and Ayesha Christie (instructed by Duncan Lewis Solicitors) for the Appellant
Sarabjit Singh QC (instructed by Government Legal Department) for the Respondent
Hearing date: 14 May 2019
APPROVED JUDGMENT
The appellant brings this appeal against a determination of the Upper Tribunal (“UT”) which dismissed an appeal brought by the appellant in respect of a determination of the First Tier Tribunal (“FTT”). The FTT had determined findings of fact which were inconsistent with findings made by another constitution of the FTT in 2013 determining the asylum claim of the appellant's brother. The issues which arise on this appeal are:
i) Whether the UT unlawfully failed to recognise that the FTT erred in its approach to the appellant's brother's earlier successful appeal;
ii) Whether the UT unlawfully failed to recognise that the evidence served on the morning of the FTT hearing by the respondent was insufficient to displace the previous determination; and
iii) Whether the UT unlawfully erred in its approach to the appellant's explanation for the evidence served late by the respondent.
Factual background
The appellant is a national of Albania. His elder brother, R, is also a national of Albania who arrived in the UK on 29 October 2012 and claimed asylum. Following a refusal of his claim by the respondent, R appealed to the FTT and in a determination in May 2013 Judge Devittie upheld his appeal. R's case was that he had a well-founded fear of persecution if returned to Albania by reason of his membership of a particular social group, namely being a member of a family that had been targeted in a blood feud.
At the FTT hearing R provided a witness statement and gave oral evidence. The essence of his evidence was that he, together with his parents, his brother AL and his sister lived in a village near Tirana. R's family are in a blood feud with the Lita family which has its genesis in a land dispute. The Lita family owned a piece of land adjacent to land owned by R's paternal uncle, Ferit. In May 2011 Ramazan Lita intended to construct a house on a piece of land and began erecting the foundations. The area marked out for the construction encroached onto the land of Uncle Ferit. At the time Uncle Ferit was working in Greece but was informed by the family of Ramazan's intentions. He returned to Albania and confronted Ramazan. Ramazan produced a map indicating land boundaries, showing that the area in which he was constructing his house was legally his land. Uncle Ferit was not satisfied with the authenticity of the map, accordingly a further map was obtained from the local authorities. In May 2012 the land registry produced the map. Uncle Ferit returned to the village. R's father and Uncle Ferit went to the land where they met with Ramazan's brother and father. An argument ensued as to the authenticity of the map, during which Uncle Ferit struck Ramazan's father with a piece of wood which killed him. In his witness statement R said that his “uncle, fearful of being killed by Ramazan's family in revenge, fled to Greece immediately”. A blood feud was declared by Ramazan's family as a result of which members of R's family were unable to leave the house. With assistance from his family R left Albania, he arrived in the UK having travelled through Italy.
Judge Devittie found R's evidence was generally consistent. The judge was satisfied that there was a reasonable degree of likelihood that R would suffer persecution if returned to Albania. He found that R's uncle killed the father of Ramazan over a land dispute and as a consequence of that killing “his uncle has had to flee Albania and that his father, in accordance with custom, has not been able to leave his house for fear of a revenge killing taking place”. The judge accepted R's evidence that his family are and remain the target of a blood feud resulting from the killing. He was satisfied that R had established his entitlement to international protection under the Refugee Convention and allowed the appeal.
The appellant is R's younger brother. He left Albania in December 2014. The appellant arrived in the UK and claimed asylum on 24 December 2014 relying upon the same claim, namely that his family had been in a blood feud with the Lita family. The appellant's case is that the killing took place when he was 14, he did not have to leave at that time because it is only those aged 16 and over who can be part of a blood feud. The appellant's evidence was that when he reached the age of 16 he remained indoors until he was able to leave Albania. His father remained in Albania however he could not leave his house because he would be in danger if he left.
On 15 March 2016 the respondent refused the appellant's asylum claim. In the detailed reasons for refusal the facts of the events which gave rise to the alleged land blood feud were set out. They were said to be a summary of the appellant's statements and evidence, which included the appellant's screening interview, the statement of evidence form, witness statement (“WS”) and asylum interview record (“AIR”). Reference to some of the documents was included in the determination as follows:
“… During the fight, your uncle killed Ramazan Lita's father Ismal by striking him repeatedly with a piece of wood. Your uncle immediately fled to Greece to avoid being killed by the Lita family (WS para. 11–12, AIR q. 73–78). Alternatively, your uncle returned to the family home to collect his belongings and left Albania the next day (AIR q. 78–83). (Emphasis added by respondent)
On 05 December 2014 you left Albania with your uncle who hid you in his car (WS para. 21).”
The respondent did not accept that there existed a blood feud between the appellant's family and the Lita family. A number of reasons were given which included inconsistent accounts as to who obtained a map of land ownership from the local registry, the fact that internal government checks with the authorities in Albania had confirmed that Ismail Lita was alive and residing with his spouse and two children in Paskuqan 2 Fushe, Tirana.
At [39] of the decision the following is stated:
“You assert that when your uncle realised he had killed Ismail Lita (Ramazan's father) in May 2012, he fled to Greece immediately in fear of his own life (WS para. 12). This is considered to contradict your claim that your uncle returned home after the incident in order to collect his belongings, leaving Albania the next day (AIR q. 78–83). Furthermore, it is not considered to be credible that your uncle returned to the family home before leaving Albania, given his immediate fear of the
Lita family, particularly when by your brother's evidence at his appeal hearing, your ‘uncle had a resident permit and was able to travel freely, meaning he could leave the country quickly’. … More significantly, although you state that your uncle fled to Greece immediately; the authorities of Albania have confirmed that your uncle Ferit did not leave Albania for Greece until 03 June 2012 and has since travelled between Greece and Albania on seven further occasions. This evidence indicates that your uncle has not been confined and has had no restrictions to travel in and out of the country freely since the alleged incident in May 2012.”
On 26 September 2016 the appellant's case was heard by the FTT. In advance of the hearing the appellant's solicitors sought disclosure of the evidence relied upon in the respondent's refusal letter to establish that the appellant's uncle had returned to Albania on a number of occasions. An order was made by the FTT requiring the respondent to serve “all documentary evidence” relied upon to establish the facts alleged in the refusal letter. On the morning of the FTT hearing the respondent submitted a letter dated 28 July 2015 from the British Embassy in Tirana. The letter was stated to contain “results of checks undertaken by the General Directorate of Civil Registry at the Ministry of Interior of Albania relating to the Albanian National: AL”. It further stated:
“Following your request for verification checks with the Albanian authorities relating to AL…
I am pleased to report that, with the assistance of trusted colleagues at the Albanian Ministry of the Interior, I have successfully conducted checks with the Directorate of Civil Registry at the Ministry of the Interior. In accordance with the Memorandum of Understanding between the British Secretary of State for the Home Department and the Minister of Interior of the Republic of Albania, this information has been exchanged securely and confidentially between designated officials having deemed there are necessary grounds for this exchange of information for immigration-related purposes.”
Correct information as to the date of birth of AL, the composition of his family, together with an undisputed date in 2014 when the appellant left Albania for Italy was also included. The letter continued:
“Checks, conducted with the Albanian Border and Migration Department, have indicated the following official travel movement abroad for the subject's paternal uncle, Ferit … Albanian national:
Travel out
Travel in
29.10.2011 to Greece
29.12.2011 from Greece
03.06.2012 to Greece
12.07.2011 from Greece
05.09.2012 to Greece
22.09.2012 from Greece
05.11.2012 to Greece
04.01.2013 from Greece
The subject's paternal uncle has travelled 5 more times...
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