BF (Albania) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Lord Justice Leggatt |
| Judgment Date | 25 October 2019 |
| Neutral Citation | [2019] EWCA Civ 1781 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2019/1376 |
| Date | 25 October 2019 |
[2019] EWCA Civ 1781
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGES DAWSON AND SMITH
[2019] UKUT 93 (IAC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hickinbottom
and
Lord Justice Leggatt
Case No: C5/2019/1376
S Chelvan (instructed by Jai Stern LLP Solicitors) for the Appellant
Colin Thomann (instructed by Government Legal Department) for the Respondent
Hearing date: 10 October 2019
Approved Judgment
Introduction
The Applicant is an Albanian national, having been born in Northern Albania in 1994. He is gay.
In this application, he seeks permission to appeal the decision of the Upper Tribunal (Immigration and Asylum Chamber) (“the UT”) (Upper Tribunal Judges Dawson and Smith) dated 26 March 2019, in which the tribunal gave country guidance in respect of the risk of persecution for gay men removed to Albania; and dismissed his appeal against the Secretary of State's refusal of his asylum claim on grounds of sexual identity. The UT determination is now reported as BF (Tirana – gay men) Albania CG [2019] UKUT 93 (IAC).
At a hearing on 10 October 2019, we refused the application for permission to appeal for reasons which we said we would give later. These are my reasons for refusing the application.
Background
The Applicant entered the United Kingdom clandestinely in March 2015. In November 2015, he was arrested for and pleaded guilty to sexually assaulting a female, for which he was sentenced to 28 days' imprisonment. It is his account that he was out with Albanian friends who had begun to suspect that he was gay, and he consequently accosted and kissed a young woman to counter that suspicion. He did not then disclose his true sexuality because of the strong prejudice against gay men in Albania and amongst Albanians outside their own country. On 17 December 2015, having served his sentence, the Applicant was removed to Albania, where he continued to live in his home area.
However, his family and friends in Albania soon discovered he was gay, when a photo of him kissing another man in the UK was posted on Facebook. Having become aware of the photograph, his friends assaulted him. His father also found out about it, and he beat him, and threatened to kill him, over a prolonged period until the Appellant agreed to marry the daughter of a business acquaintance of his father. However, her family became aware that the Applicant was gay, and they took him to a park where they too attacked him. When he returned home he suffered further violence at the hands of his father and uncle; and in November 2016, apparently following a suicide attempt, he collapsed and woke three days later in hospital having been taken there by his uncle's wife.
On release from hospital later that month, the Applicant moved to Tirana where he lived discreetly, living rough and staying with a friend who found him a job and to whom he did not reveal his sexual identity, until April 2017 when the Applicant fled once more to the UK.
He again entered the UK unlawfully. He was encountered by the UK immigration authorities, and arrested, on 29 April 2017. Removal directions were set, but the Applicant sought asylum on the basis of his sexual identity. That claim was refused on 22 June 2017, the Secretary of State not accepting his claim as credible and disputing his sexual identity.
The Tribunal Proceedings
The Applicant appealed to the First-tier Tribunal (Immigration and Asylum Chamber) (“the FtT”); and he was released from immigration detention on bail, with his uncle standing as his surety.
The appeal came before First-tier Tribunal Judge O'Garro who, in a determination promulgated on 8 September 2017, accepted much of the factual basis of the Applicant's claim including his sexual orientation; but she did not accept that he would be at risk on return to Albania because she found (i) he would in fact conduct himself discreetly so his sexual orientation would not be known, and (ii) he could in any event relocate to Tirana where he would be sufficiently protected by the police and NGOs.
The Applicant appealed to the UT. Permission to appeal was granted by Judge Smith; and, on 1 May 2018, before Upper Tribunal Judge Kopiecek, the Secretary of State conceded that the determination of Judge O'Garro was unlawful because she had failed properly to make findings in relation to whether the Applicant had suffered past persecution when assessing his future risk. Having found that error of law, the UT retained the matter for the redetermination of the Applicant's appeal against the Secretary of State's refusal of the asylum claim, on the basis that Judge O'Garro's findings of fact would be retained except insofar as they had been infected by the identified errors of law.
For the purposes of the redetermination hearing, the Secretary of State accepted not only that the Applicant was gay, but that, wherever he lived, he would wish to lead an openly gay life, in the sense that he would not conceal his sexual identity except insofar as he wished to do so for reasons other than a fear of persecution.
The Applicant accepted that the Albanian state had sought to tackle discrimination against gay men by, e.g., introducing progressive changes including legislation decriminalising homosexuality and providing sanctions against discrimination on grounds of sexual orientation. However, he did not accept that the changes had been adequately implemented, and it was his case that societal attitudes in Albania continued to give rise to a real risk of discrimination including violence in public and within the family towards men who were gay or perceived to be gay. Whilst he accepted that conditions may be easier for gay men in Tirana than elsewhere in Albania, he submitted that, even there, the level of discrimination against gay men was at a level that amounted to persecution; and the authorities, no matter how willing, were in practice unable to prevent an openly gay man in Tirana being at risk of persecution because of his sexual identity.
The UT took the opportunity provided by the appeal to reconsider the country guidance relating to the risk posed to gay men in Albania. The then-current country guidance was provided in IM (Risk, objective evidence, homosexuals) Albania CG [2003] UKIAT 67, to the effect that there was no country background evidence which supported a reasonable likelihood that gay men in Albania were as such subject to any action on the part of either the populace or the authorities which would amount to persecution for the purposes of the Refugee Convention.
The UT in this case considered the following question (set out in [3] of its determination):
“Whether there is a sufficiency of protection from harm by the state for the [Applicant] in his home area in Albania and if not whether there is protection available to him in Tirana or elsewhere. If it is, whether it is reasonably open to the [Applicant] to relocate to Tirana (or elsewhere) in the light of his sexual orientation as a gay man.”
However, before the UT, without conceding that gay men would be at risk in all parts of Albania, the Secretary of State did concede that the Applicant would be at risk in his own home area. The focus of the hearing was therefore on the risk to gay men in Tirana, and whether it would be reasonably open to the Applicant to relocate there.
After a comprehensive review of the relevant material, authorities and submissions, a panel of the UT (Judges Dawson and Smith) gave the following new country guidance (see [251]):
“1. Particular care must be exercised when assessing the risk of violence and the lack of sufficiency of protection for openly gay men whose home area is outside Tirana, given the evidence of openly gay men from outside Tirana encountering violence as a result of their sexuality. Such cases will turn on the particular evidence presented.
2. Turning to the position in Tirana, in general, an openly gay man, by virtue of that fact alone, would not have an objectively well-founded fear of serious harm or persecution on return to Tirana.
3. There is only very limited evidence that an individual would be traced to Tirana by operation of either the registration system or criminal checks at the airport. However, it is plausible that a person might be traced via family or other connections being made on enquiry in Tirana. Whether an openly gay man might be traced to Tirana by family members or others who would wish him harm is a question for determination on the evidence in each case depending on the motivation of the family and the extent of the hostility.
4. There exists in Tirana a generally effective system of protection should an openly gay man face a risk of harm in that city or from elsewhere in Albania.
5. An openly gay man may face discrimination in Tirana, particular in the areas of employment and healthcare. However, whether considered individually or cumulatively, in general the level of such discrimination is not sufficiently serious to amount to persecution. Discrimination on grounds of sexual orientation is unlawful in Albania and there are avenues to seek redress. Same-sex relationships are not legally recognised in Albania. However, there is no evidence that this causes serious legal difficulties for relationships between openly gay men.
6. In general, it will not be unduly harsh for an openly gay man to relocate to Tirana, but each case must be assessed on its own facts, taking into account an individual's particular circumstances, including education, health and the reason why relocation is being addressed.”
Applying that guidance to this case, the tribunal dismissed the...
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