Hasan Skenderaj v Secretary of State for the Home Department
|England & Wales
|Lord Justice Auld,Lord Justice Waller,Lady Justice Arden
|26 April 2002
| EWCA Civ 567
|Court of Appeal (Civil Division)
|Case No: C/2001/1336
|26 April 2002
 EWCA Civ 567
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
London, WC2A 2LL
Lord Justice Auld
Lord Justice Waller and
Lady Justice Arden
Case No: C/2001/1336
Stephen Vokes (instructed by Nelsons) for the Appellant
Eleanor Grey (instructed by The Treasury Solicitors) for the Respondent
This appeal concerns the definition of refugee in Article 1(A) of the Geneva Convention of 28 th July 1951 in its application to non-state persecution. In particular, it is concerned, in the context of Albanian blood feuds, with the definition and consequence of membership of a "particular social group" and the availability and sufficiency of protection when it is not sought. The material words of Article 1A are that:
"… the term 'refugee' shall apply to any person who:… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …"
Hasan Skederaj, a citizen of Albania, appeals against the decision of the Immigration Appeal Tribunal declining to uphold the determination of an adjudicator that he should be granted asylum. The facts as found by the adjudicator, though of a somewhat general nature, are not in dispute. Mr Skederaj, with his wife and two children, entered this country illegally in July 1999 and immediately claimed asylum. He did so, having initially left Albania in 1997 to spend two years in Italy, then returning to Albania in May 1999 before leaving again in July 1999 and travelling to this country via France. In interview he said that he had left Albania because of a dispute between his and another family about ownership of land, that the dispute had led to violence and the death of one of the other family's members and that he feared being killed by the other family.
The Secretary of State, in his decision letter refusing Mr. Skenderaj's claim for asylum: 1) expressed doubts as to the veracity of his account, given his lengthy stay in Italy and return to Albania before finally making his way to this country; 2) said that, in any event, his claim was not for a Convention reason, in particular it did not amount to a claim of a well-founded fear of persecution for reason of his membership of a particular social group; 3) said that even if his account was true he had not exhausted domestic legal remedies before seeking international protection; and 4) added that he had failed to claim asylum at the first available opportunity on his route to this country.
I summarise the account that Mr. Skenderaj gave to the adjudicator on appeal from the Secretary of State's decision and which the adjudicator accepted. When the Communist State in Albania collapsed, land that had been in public ownership was returned to private owners. Mr Skenderaj's family received a particular plot, their entitlement to which was disputed by a neighbouring family. There was a confrontation between the two families with some minor violence followed by a further more serious one in which Mr Skenderaj's uncle shot and killed one of the other family. This killing, as the adjudicator found, "set up a blood feud between the two families which the … [other] family wished to resolve by a revenge killing".
Mr. Skenderaj remained at his house under fear of that threat until his uncle died of natural causes some two years later. Because he then felt that he or a cousin would become the primary object of the feud, he left for Italy and stayed there for two years. However, the other family discovered his whereabouts and he decided that he was no longer safe in Italy. So he returned to Albania, collected his family and finally sought asylum in the United Kingdom.
The adjudicator's determination
The adjudicator, in the light of that account, found that Mr. Skenderaj had a well-founded fear of persecution in a blood feud. The question was whether the risk of persecution was because of his membership of a particular social group so as to engage the Refugee Convention. The adjudicator found that he was a member of such a group and that the persecution was therefore for a Convention reason, relying on an obiter observation of Laws J, as he then was in . He said: , at 49; and , HL.
"13. I accept that the Appellant, as a male in a family which is part of a blood feud in Albania, is a member of a social group and the persecution is therefore for a Convention reason."
The adjudicator then turned to the sufficiency of state protection. He found that it was custom –not fear of persecution—that stopped those involved in blood feuds in Albania from seeking police protection and that prompted them to look after themselves. He added, however, that if they had sought such protection, the police would not have been able to provide it. This is how he put it, referring to the sufficiency of state protection test laid down by the House of Lords in :
"14… The question is whether in fact … [Mr. Skenderaj] could obtain protection from the State … Mrs Walker argues that it is not that the police are unable to offer protection in these cases. It is the choice of the parties not to seek police protection and to pursue their feuds according to the custom of the country … Taking the evidence overall, I have come to the conclusion that while it is reasonable for Mrs. Walker to argue that the parties to the feuds do not seek police protection nevertheless even if they did so the police would not be able to offer it. Using the test in the case of Horvath I accept that although in theory the machinery of prosecution may be in place the authorities do not in fact have the ability to stop blood feuds or to protect this particular appellant…
16. …using the appropriate standard of proof for asylum cases I consider that the Appellant has established that he has a well-founded fear of persecution for a convention reason and that the State is not able to offer him protection against that."
The Tribunal's decision
The Secretary of State appealed to the Immigration Appeal Tribunal on two grounds:
1) that the adjudicator should have found that the social group argued for does not exist independently of the persecution—put more shortly, a social group is not created by a common fear; and
2) that the adjudicator failed to consider whether the family was being persecuted for a convention reason.
As those grounds indicate, the Secretary of State did not challenge the adjudicator's acceptance of Mr Skenderaj's account nor his finding that Mr Skenderaj would not receive effective protection from the Albanian authorities even if he asked for it.
The Tribunal did not decide the matter on the issues raised by the grounds of appeal. It acknowledged that the grounds went straight to the root of the claim in arguing that fear of persecution arising from a blood feud was not capable of founding a case under the Refugee Convention. However, apart from referring to the adjudicator's brief ruling on that issue and making oblique references to it in considering some authorities, it left it unresolved and disposed of the appeal on the issue of failure to seek state protection. The Tribunal appears to have accepted, in paragraphs 3 and 8 of its decision, that the state would not have been able to protect Mr. Skenderaj even if he had sought protection, though this reasoning shades in paragraph 9 so as to focus more on the reluctance of those involved to seek protection:
"3 … For present purposes, we accept the adjudicator's rather general analysis of the background evidence as showing that the Albanian authorities would not have been able to protect the asylum-seeker, even if he had gone so far as asking them to. Since the internal flight alternative has not been raised in the grounds of appeal, we accept for present purposes only that this inability would extend to the country at large; so there was no point in the asylum-seeker seeking to engage the machinery of State protection at all. …
8. We can see well enough that there is a serious protection problem for men involved in blood-feuds in Shkoder: [the region in which Mr. Sjebnderaj and his family lived]: on the adjudicator's findings … this may extend to the country as a whole. However, what is also quite clear is that the police, typically in a traditional blood-feud culture, are faced with a wall of silence. …
9. Certainly in a situation of this kind the authorities are unable to protect those involved; but there is no question of their practising any discrimination against them in the protection they do not extend. The problem is not one caused by the State apparatus, … but by the traditional unwillingness of ordinary people to involve it in their quarrels. As will be remembered, the adjudicator accepted the presenting officer's argument that those involved in feuds do not by their custom seek police protection; but, taking the view that it would not be effective in any case, he regarded that as no obstacle to the claim."
The Tribunal developed that reasoning in paragraphs 10 and 11 of its decision:
"10 It is a commonplace of refugee law that international protection is a surrogate for national. Clearly where seeking national protection would itself be risky, or where, as in ... , the national
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