DASHAMIR KOCI v Secretary of State for the Home Department
|England & Wales
|LORD JUSTICE KEENE,LORD JUSTICE LONGMORE,SIR MARTIN NOURSE
|22 October 2003
| EWCA Civ 1507
|Court of Appeal (Civil Division)
|22 October 2003
 EWCA Civ 1507
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Lord Justice Keene
Lord Justice Longmore
Sir Martin Nourse
MR M GILL QC and MR E WAHEED (instructed by Messrs Southerns, Nelson BB9 7JS) appeared on behalf of the Appellant
MR T EICKE (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent
This is an appeal against a decision of the Immigration Appeal Tribunal ("the IAT") which allowed the Secretary of State's appeal against an adjudicator's decision. Permission to appeal to this court was granted by Kay LJ because of his concern that the IAT had focused on the position in the appellant's country in general terms, rather than on the appellant's own particular circumstances.
The appellant is an Albanian national who arrived in the United Kingdom on 28th November 2001, he at that time being aged 24. He subsequently claimed asylum, which was refused by the Secretary of State. He appealed to an adjudicator, who had to deal both with an asylum appeal and with an appeal on human rights grounds.
The adjudicator regarded the appellant as a credible witness and accepted his account of events. The appellant's evidence was that he had lived with his parents and sister in a village in the north of Albania where Christians were in a majority. He and his family were Muslim. He described a certain amount of discrimination against himself and his family, and how his father had in the past been beaten up.
In the spring of 2001 there was a confrontation between Muslims and Christians in the village over plans to build a mosque. Later that year in August there was a further confrontation, during which the appellant's father shot dead two male members of the Shtefni family, a Christian family with a history of antagonism towards the appellant's family. The appellant and his father ran off and hid in the mountains until 10th September 2001. On that day his father attempted to come down to get food from the family home. However, he was spotted and was shot dead. It was the appellant's belief that this was a revenge killing by someone from the Shtefni family.
The adjudicator summarised what then happened in paragraphs 10 to 12 of his decision:
"The appellant decided to hitchhike to the capital city Tirana and on 11th September 2001 found refuge with his uncle where he tried to remain in hiding. The appellant believed that the Shtefni family would want to kill him as honour between the two families would only be settled until another life was taken from his family —this was the custom in such blood feuds.
11. The appellant was still in hiding when he went out to get a breath of fresh air under cover of night. The appellant was immediately shot at and realised that the gun had been aimed at him. The appellant managed to scramble to safety and returned to the relative sanctuary of his uncle's house. The police apparently did turn up near the scene of the shooting but they did not question either the appellant or his uncle.
12. The appellant now felt it was not safe anywhere in Albania. The appellant feared that he would eventually be tracked down and killed by the Shtefni family."
Eventually he managed to leave the country and came, as I have indicated, to the United Kingdom.
Before the adjudicator the appellant relied on an expert report dated 19th June 2002 by Mr Timothy Robertson, a solicitor who was Vice-Chairman of the British Albanian Legal Association, who stated that he had visited Albania regularly since 1991 and had travelled throughout the country. The report did not give support to the appellant's claim of hostility on religious grounds, but it did support as well-founded his fear of being killed by a member of the Shtefni family as a result of the blood feud. It said this:
"Revenge killing has been a feature of the Albanian culture since time immemorial and its deep roots are evidenced by its immediate revival after its successful suppression by the communists during the 47 years they were in power. It happens throughout Albania but is particularly evident in the north where Mr Koci is from and where the taking of blood was one feature of the wider code of unwritten customary law which prevailed in the region until King Zog's time and which is still sometimes applied. The Shtefni family will remain dishonoured so long as they have only taken one life for the two they lost to the gun of Mr Koci's father. Women are entirely excluded from the code of blood vengeance and as Mr Dashamir Koci [the appellant] appears to be the only male member of his family surviving, I do not believe the Shtefni family will rest until they have killed him.
Whatever the 'clear up rate' for crimes which have occurred, the police, despite continuing improvement, remain undertrained and undermanned, and their ability to prevent crime, particularly crime of the nature contemplated, is severely limited. The Secretary of State's view that Mr Koci should seek protection from the Albanian authorities is quite impractical."
Reliance was also placed by the appellant at that stage on a United States State Department report of 4th March 2002 which dealt with the situation in 2001. It recorded that:
"Vigilante action, mostly related to traditional blood feuds, resulted in many killings."
That report also noted that, according to the Ministry of Public Order in Albania, more than 14 individuals were killed in 2001 in blood feuds and that only adult males are acceptable targets for such feuds.
The adjudicator took the view that the appellant could be seen as someone who was persecuted as a result of his membership of a social group, which the adjudicator seems to have believed was constituted by the appellant's family. He concluded that the appellant had a well-founded fear of persecution for a Convention reason, and so he allowed the asylum appeal. That is no longer a live matter. There was no dispute before the IAT, and there is no dispute now, that the adjudicator's decision was wrong in law on the asylum claim. In the light of the decision in , the appellant's family could not be regarded as a distinct social group in Albanian society.
However, the adjudicator also allowed the appellant's claim based on the European Convention on Human Rights. It was concluded by him that there would be a violation of Articles 2 and 3, were the appellant to be sent back to Albania, because of the threat to his life and because to live in hiding, or at least to live in constant fear of a reprisal shooting, would amount to inhuman and degrading treatment. It was this conclusion on the human rights issue which became the central issue in the appeal brought by the Secretary of State to the IAT.
The IAT noted that the adjudicator had not had the October 2002 report by the Home Office's CIPU before him, and that that report contained a very full treatment of the blood feud problem. The Tribunal observed that it had to take account of such more recent information in the light of the decision in , and that this would enable it to decide whether the adjudicator:
"… was entitled to accept what Mr Robertson said, quite so uncritically as he appears to have done."
It then quoted from paragraphs 6.130 to 6.132 of the CIPU report, which referred to varying estimates of the numbers of people in Albania affected by blood feuds or self-imprisoned at home because of them, and to the Ministry's estimate of more than 14 deaths in 2001 from blood feuds. The passages quoted referred to reconciliation services provided to families involved in blood feuds, and to claims by certain agencies to have resolved several hundred blood feuds. The final paragraph quoted dealt with the dispatch in August 1999 by the Albanian government of 200 men from a special terrorist unit to northern Albanian to curb violence, on which occasion some 22 arrests were made.
The IAT then noted that the criminal code in Albania provided for lengthy custodial sentences for murder, but it commented, rightly, that the question was whether official willingness to enforce that law was now capable of providing effective protection for potential victims of blood feuds.
In answering that question the IAT placed particular emphasis on the 1999 dispatch of troops to north Albania, saying that this showed the government was "well capable of taking a firm hand". The concluding paragraphs of its decision then read as follows, beginning part way through paragraph 14:
"The ministry responsible, unlike the State Department or Amnesty International, give an exact figure for blood-feud deaths in 2001. While even 14 is of course too many, the figure is a more solid basis for assessment of the problem than a vague 'many'; and it does give some hope that it is not only officially-recognized, but kept track of.
15. If Mr Robertson had been provided with, or had taken the initiative to provide himself with the Home Office's up-to-date views in the CIPU report (as they have taken account of what he has said on a previous occasion) and given reasons for maintaining his views, then the claimant would have been in a much stronger position. As it is, Mr Robertson was giving his own views against the background of what was certainly a very general treatment of the law and order situation in the refusal letter. He said nothing about the National Mission for...
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