FR (Albania) and Another v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson |
| Judgment Date | 23 June 2016 |
| Neutral Citation | [2016] EWCA Civ 605 |
| Docket Number | Case No: C2/2015/2903; C2/2015/3021 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 June 2016 |
The Queen on the application of
[2016] EWCA Civ 605
Lord Justice Davis
Lord Justice Beatson
and
Lord Justice Lindblom
Case No: C2/2015/2903; C2/2015/3021
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
JR/15748/2014; JR/13092/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Monica Carss-Frisk QC and David Jones (instructed by Duncan Lewis Solicitors) for FR
Monica Carss-Frisk QC and Joseph Markus (instructed by Turpin & Miller LLP) for KL
Julie Anderson and Ryan Kohli (instructed by Government Legal Department) for the Secretary of State
Hearing dates: 10 and 11 May 2016
Approved Judgment
I. Overview
The appellants in the two appeals before us are citizens of Albania. The Secretary of State rejected their applications for refugee status and their human rights claims, and certified both applications as "clearly unfounded" under section 94(3) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). The consequence of certification is that the appellants are only permitted to appeal against the Secretary of State's decisions once they have left the United Kingdom. The Home Office refer to such an appeal as a "non-suspensive appeal" because it does not suspend any requirement that the individual leave the United Kingdom or the power of the Secretary of State to remove him or her. The issue before the court is whether the certification of the asylum claims of these appellants is flawed on public law grounds.
One of the appeals is by KL, a man now aged 26. He arrived in the United Kingdom on 1 August 2013 hidden in a lorry and claimed asylum on 19 September 2014. The other appeal is by FR and her three dependent children. FR arrived in the United Kingdom on 18 March 2013 and claimed asylum on arrival. She is now aged 38 and her children are now aged 17, 15 and 10. In both appeals, the claims for asylum are based on what the appellants maintain is a well-founded fear of persecution if returned to Albania as a result of a blood feud. The Upper Tribunal's current country guidance on blood feuds is in EH (blood feuds) Albania CG [2012] UKUT 00348 (IAC). FR's claim is also based on her fear of domestic violence by her husband and her family, her mental health, and the impact of returning her on her health and on her ability to care for her children.
In the case of KL, the Secretary of State's decision was made on 16 October 2014. In the case of FR and her children, the original decision was made on 1 August 2014, but was reconsidered and maintained on 21 September and 24 December 2014. On 21 September, their cases were reconsidered after representations that the Secretary of State had not considered the position of the children in the light of section 55 of the Borders, Citizenship and Immigration Act 2009 ("the Borders Act 2009"). The decision on 24 December followed a request dated 15 December for FR's claim to be reconsidered in the light of a report dated 15 November 2014 from Dr Rachel Thomas, a consultant clinical psychologist and deputy director of the Clinic of Dissociative Studies, London, which I summarise at [24] below.
Judicial review proceedings challenging the decisions to certify their claims were launched by KL on 27 October 2014, and by FR on 22 December 2014. KL's application for permission was refused on the papers on 10 June 2015 by Upper Tribunal Judge Gleeson. Following a renewal hearing on 13 August 2015, it was refused by Upper Tribunal Judge Gill who also refused permission to appeal to this court. Permission to appeal against the refusal of permission to apply for judicial review was granted by Sales LJ in an order dated 27 November 2015. Sales LJ also stayed removal directions which had been set for KL.
In the case of FR, on 17 July 2015 Sir Stephen Silber, sitting as a judge of the Upper Tribunal, refused permission to apply for judicial review and certified the application to be totally without merit. Permission was given to FR to appeal to this court by McCloskey J, President of the Immigration and Asylum Chamber of the Upper Tribunal, on 5 August 2015.
I consider the Upper Tribunal's country guidance on Albanian blood feuds in section II of this judgment and the decisions made refusing KL and FR's claims for asylum and certifying them as "clearly unfounded" in section III. In sections IV and V I consider section 94(3) of the 2002 Act and the decisions on certification. The focus of the court has to be on the meaning of the phrase "clearly unfounded" in section 94(3) but it is also important to consider the Secretary of State's guidance on certification to caseworkers, the material parts of which are set out in section VI. I summarise the decisions below in section VII.
Section VIII contains my analysis of the submissions and my conclusions. At [96] – [100] I make observations on the need when considering certifying a decision as clearly unfounded for the careful application of the proper test to the circumstances of each case and the difference between the decision on the application for refugee status and the decision, once the application has been rejected, to certify it as "clearly unfounded". For the reasons I give at [90] to [95] I have concluded that KL's appeal should be allowed and for the reasons I give at [109] – [117] I have concluded that FR's appeal should be allowed. I would grant permission to both to apply for judicial review. As the parties invited the court to deal with the substantive application rather than to remit it to the Upper Tribunal, I have also considered whether the decisions certifying the claims of KL and FR and her children should be set aside. I concluded that, in the circumstances of their cases, they should be.
II. Country Guidance on Albanian blood feuds
In EH (Blood Feuds) (Albania), the Upper Tribunal set a number of key concepts in Albanian blood feuds out at [5]. Those relevant to these appeals are:
"(v) Gjakmarrja ('Blood-taking'). A vendetta, or blood feud, which may have lasted for decades, or may be recent in origin. It is closely linked to collectivist notions of family, or clan solidarity and reliability. A blood debt carries a related loss of honour which can only be restored by the taking of blood from the other family. It is generally borne by the males of the nuclear family, parents, grandparents, children and grandchildren.
Typically, a feud begins with a killing or offence by an individual from Clan A, which must be revenged by a senior male figure from Clan B. When revenge has been carried out by Clan B, Clan A is required to retaliate … and so on. … Children under 15 and women are not usually required either to kill or be killed, except perhaps where a woman is the cause of the feud, or the last surviving member of the target Clan.
(ix) Self-confinement. Also known as self-isolation, the practice of males in a target family staying indoors, sometimes for years, as a mark of respect and recognition of the feelings of the aggressor family. A self-confined person will not usually be at risk in their home, although that is not completely certain."
The tribunal's guidance is given at [74]. It is:
"(a) While there remain a number of active blood feuds in Albania, they are few and declining. There are a small number of deaths annually arising from those feuds and a small number of adults and children living in self-confinement for protection. Government programmes to educate self-confined children exist but very few children are involved in them."
…
(c) The Albanian state has taken steps to improve state protection, but in areas where Kanun law predominates (particularly in northern Albania) those steps do not yet provide sufficiency of protection from Kanun-related blood-taking if an active feud exists and affects the individual claimant. Internal relocation to an area of Albania less dependent on the Kanun may provide sufficient protection, depending on the reach, influence, and commitment to prosecution of the feud by the aggressor clan.
…
(f) In determining whether an active blood feud exists, the fact-finding Tribunal should consider:
(i) the history of the alleged feud, including the notoriety of the original killings, the numbers killed, and the degree of commitment by the aggressor clan toward the prosecution of the feud;
(ii) the length of time since the last death and the relationship of the last person killed to the appellant;
(v) the ability of members of the aggressor clan to locate the appellant if returned to another part of Albania; and
(vi) the past and likely future attitude of the police and other authorities towards the feud and the protection of the family of the person claiming to be at risk, including any past attempts to seek prosecution of members of the aggressor clan, or to seek protection from the Albanian authorities.
(g) In order to establish that there is an active blood feud affecting him personally, an appellant must produce satisfactory individual evidence of its existence in relation to him. In particular, the appellant must establish:
(i) his profile as a potential target of the feud identified and which family carried out the most recent killing; and
(ii) whether the appellant has been, or other members of his family have been, or are currently, in self-confinement within Albania.
(h) Attestation letters from Albanian non-governmental organisations should not in general be regarded as reliable evidence of the existence of a feud.
(i) Documents originating from the Albanian courts, police or prosecution service, if genuine, may assist in establishing the existence of a blood feud at the date of the document relied upon, subject to the test of reliability set out in A v...
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