Hari Dhima v Immigration Appeal Tribunal
| Jurisdiction | England & Wales |
| Judge | Lord Justice Auld,Mr Justice Ouseley |
| Judgment Date | 13 May 2011 |
| Neutral Citation | [2002] EWHC 80 (Admin) |
| Date | 13 May 2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2392/2001 |
[2002] EWHC 80 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Lord Justice Auld and
Mr Justice Ouseley
Case No: CO/2392/2001
Andrew Nicol QC & Mark Henderson (instructed by Immigration Advisory Service Solicitors for the Claimant)
Miss J Anderson (instructed by Treasury Solicitor for the Interested Party)
This is an application by Hari Dhima, an Albanian national, for judicial review of the decision of the Immigration Appeal Tribunal of 14 th May 2001 refusing him leave to appeal against the determination of an adjudicator on 19 th March 2001 upholding the Secretary of State's rejection on 4 th January 2001 of his claim that his removal would breach Article 3 of the European Convention of Human Rights.
The circumstances giving rise to the application are as follows. In September 1999 Mr. Dhima was arrested in this country, having entered clandestinely. He claimed asylum for two associated reasons. The first was that he would be at risk of persecution from communist sympathisers if he returned to Albania, because of his previous active involvement with the Democratic Party in that country. The second was that he was involved in a blood feud in Albania with a family called the Lushaku family, who had made three attempts to murder him. He maintained that the Albanian police had shown no interest in investigating the matter or in protecting him. In March 2000 the Secretary of State rejected his claim. The adjudicator, in a determination of 7 th September 2000, accepted the truth of the first, but not the second part of his claim and dismissed his appeal.
Mr. Dhima then, relying on essentially the same facts, applied to the Secretary of State for exceptional leave to remain on the basis that his removal would be contrary to his human rights under the European Convention of Human Rights. By a decision letter of 4 th January 2001 the Secretary of State refused the application. He appealed against that decision to an adjudicator, who dismissed his appeal. On 14 th May 2001 the Immigration Appeal Tribunal refused leave to appeal. He then sought and was granted permission to make this application for judicial review of the Tribunal's decision.
The facts and the issues
There are two issues in the application. The first is whether the adjudicator wrongly applied to this human rights application the test of sufficiency of state protection as expounded by the House of Lords in the asylum case of Horvath v. SSHD [2001] AC 489. The second is whether the adjudicator wrongly concluded that the claimant had available to him in any event an alternative of internal flight.
Mr. Dhima's complaint to the Secretary of State was that his enforced return to Albania would breach his human rights under Articles 2, 3 and 5, concerned respectively with the right to life, prohibition of torture and the right to liberty and security.
The Secretary of State, in his decision letter of 4 th January 2001, dealt with the application only under Article 3, prohibition of torture, noting that responsibility of the United Kingdom under Articles 2 and 5 only arose where the treatment was alleged to be likely to occur in this country. He took account of the adverse finding of the adjudicator in the asylum appeal in dismissing the second part of the claim, expressed the view that there was a lower standard of proof in such appeals than those based on human rights grounds and stated that this claim did not satisfy the more stringent test for the latter.
Mr. Dhima's appeal to an adjudicator was under the newly brought into force section 65(1) of the Immigration and Asylum Act 1999. The adjudicator considered the two factual bases of the claim afresh and, unlike the adjudicator in the asylum appeal, accepted his evidence about the blood feud and threats of murder leading him to leave Albania for this country. However, he found that Mr. Dhima had not met the Article 3 test of showing that there were substantial grounds for believing there would be a real risk that he would be subject to torture, inhuman or degrading treatment by members of the Lushaku family if returned to Albania.
He said, at paragraph 27 of his determination and reasons:
"… it is clear that the danger which the Appellant says that he would fear on return has nothing to do with politics. It is in fact no more and no less than a traditional Balkan blood feud…. This is the traditional cycle of tit for tat violence which has stained the Balkans for generations without number."
And, at paragraph 29, he said he was satisfied that, though the Lushaku family might no longer be actively searching for Mr. Dhima, there was a real risk that if they encountered him by chance they would seek to settle old scores by killing him. In the light of that finding, he moved on to consider whether Mr. Dhima could safeguard himself against that risk, either by seeking the protection of the Albanian authorities or by moving to some other part of Albania.
As to protection by the Albanian authorities, he took account of the ruling of the European Court of Human Rights in HLR v. France 26 EHRR 29, at paragraph 40:
"Owing to the absolute character of the right guaranteed, the Court does not rule out the possibility that Article 3 of the Convention may also apply where the danger emanates from persons or groups of person who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection."
He took as a guide to the assessment of the risk the only background material in evidence before him, the Home Office Country Information and Policy Unit Assessment of Albania issued in April 2000, which he treated as "a reliable and reasonably impartial guide" to the then general situation in Albania. That assessment gave a pretty unimpressive account of its police, certainly up to about 1998, but indicated a gradual and continuing improvement overall in the national coverage and quality of policing and a significant reduction in 1999/2000 in crimes against the person. Nevertheless, it recorded:
"Serious problems in the area of policing remain. The police are affected by, and are sometimes a part of, the country's endemic corruption. "
The adjudicator referred to unsupported oral evidence of Mr. Dhima suggesting that the Lushaku family enjoyed a measure of immunity not given to the Albanian population generally, but rejected it in the following terms at paragraphs 34 and 35 of his determination and reasons:
"34. … It is well established that corroboration is not required in relation to any asylum claim, and I am prepared to assume that the same applies to human rights appeals. …
35. However, I cannot regard a bare and rather vague assertion of this nature as constituting adequate evidence, even applying the lower standard which is to be adopted in relation to an asylum appeal. I therefore reject the Appellant's evidence that the Lushaku family enjoy some form of special immunity which would not apply if the Appellant were being threatened by another ordinary member of Albanian society.
36. In light of the limited background material which is before me, and applying the same test when assessing availability of protection from the Albanian Authorities as that which would be applied when assessing 'sufficiency of protection' in an asylum appeal involving claimed persecution by non-state agents on the basis of the test laid down by the House of Lords in Horvath v. Secretary of State for the Home Department [2000] Imm AR 552, the Appellant has failed to show that he would not in reality be able to look to the Albanian Authorities, and in particular to the police, for proper protection against the Lushaku family if he were to return to Albania. For that reason alone, I am satisfied that his human rights appeal must be dismissed."
As to the second and alternative issue of the availability of an internal flight alternative, the adjudicator considered it as applicable to human rights claims as to asylum claims, the latter being the context in which the concept had been developed. He said, at paragraph 37 of his determination and reasons, that even if he had found in Mr. Dhima's favour on the first point he would have found that there was no reason why he should not move to some other part of Albania where he could live safely. He was a young, able-bodied man with no family connections for whom it would not be unreasonable or unduly harsh to relocate to some other part of Albania if he was unwilling to return to his home area.
Mr. Dhima, in an application to the Tribunal of his own composition, sought permission to challenge both of the adjudicator's findings. As to the first, the sufficiency of state protection, he maintained that it was wrong, given the adjudicator's acceptance of his evidence of the attempts to kill him and the absolute nature of the protection from such conduct provided by Article 3. As to the second, the availability of an internal flight alternative, he said that that too was wrong, citing an alleged attack on his parents in November 2000 when they had moved to another area to escape harassment.
The Tribunal, in its determination of 14 th May 2000 refusing Mr. Dhima's application, expressed the view that the adjudicator's conclusions were clearly open to him on the evidence and that they showed no error of law or in approach to the evidence. It added that there was no further evidence before the...
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