LC (Albania) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom |
| Judgment Date | 20 October 2016 |
| Neutral Citation | [2016] EWCA Civ 1312 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 October 2016 |
| Docket Number | C5/2014/2641 |
[2016] EWCA Civ 1312
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Lindblom
C5/2014/2641
Mr S Chelvan (instructed by Duncan Lewis Solicitors) appeared on behalf of the Applicant
Mr R Dunlop (instructed by Government Legal Department) appeared on behalf of the Respondent
This is a renewed application for permission to appeal against the decision of the Upper Tribunal (Immigration and Asylum Chamber), dated 30 April 2014, dismissing the appeal of the applicant, LC, against the decision of the First-tier Tribunal, dated 5 January 2014, by which it dismissed his appeal against the decision of the respondent, the Secretary of State for the Home Department, on 12 November 2013, to refuse him asylum in the United Kingdom and to remove him to Albania. Permission to appeal was refused by the Upper Tribunal on 30 April 2014 and subsequently on paper by Elias L.J. on 31 October 2014.
The application for permission was renewed and came before me at a hearing on 26 November 2015. I adjourned the application to a hearing on the first available date after 11 December 2015, on notice to the Secretary of State. It came before King L.J. on 16 February 2016. She ordered that it be adjourned to await the judgment of this court in MSM (Somalia) v Secretary of State for the Home Department (C5/2015/3380) (now reported at [2016] EWCA Civ 715). She invited the parties to make submissions in the light of that decision. This was duly done, on behalf of LC by Mr Chelvan on 28 July 2016, and on behalf of the Secretary of State by Mr Dunlop on 8 August 2016.
LC is a national of Albania. He was born on 6 November 1995. He entered the United Kingdom as a child aged 16 on 4 October 2012. He claimed asylum on 9 October 2012, contending that he had a well-founded fear of persecution in Albania. In the light of an age assessment report prepared by Newport Social Services in October 2012, the Secretary of State accepted that he was 16 years old. He was granted discretionary leave to remain until he was 17 years and six months old. In his asylum claim he said he was a homosexual man who had been in a relationship with another man in Albania, that when his father had discovered that relationship he had hit him and thrown him out of the house, and that after this he had lived on the streets. His application for asylum was refused by the Secretary of State in a letter dated 7 April 2013. The Secretary of State rejected his contention that he was gay and his account of the homosexual relationship. In a subsequent decision, dated 12 November 2013, the Secretary of State refused his application for further leave to remain in the United Kingdom.
The main issues in LC's appeal to the First-tier Tribunal were, first, whether he had established a well-founded fear of persecution, namely his membership of a particular social group (homosexuals) in Albania; secondly, whether homosexual people who live openly as homosexuals in Albania are liable to persecution; and thirdly, whether he would live openly as a homosexual in Albania, or discreetly, and, critically, what his reasons for living discreetly would have been (see the Supreme Court's decision in HJ (Iran) [2010] UKSC 31).
In its decision the First-tier Tribunal concluded that "[looking] at all the evidence in the round", LC was "gay" (paragraph 30). It found that there was "compelling evidence" that the police in Albania still "routinely harass homosexuals", but that "homosexuality has … been legal since 1994 in Albania and gays cannot be imprisoned for their sexual orientation" (paragraph 31). It referred to the country guidance in IM (Risk — Objective Evidence — Homosexuals) Albania CG [2003] UKIAT 00067 and in MK (Lesbians) Albania CG [2009] UKAIT 00036, and it concluded that, while some homosexuals in Albania may be at risk, others would "not be at risk of persecution", even though there may be some "societal disapproval" (paragraph 34). It did not accept that LC fell within any the classes of homosexual identified in MK (Albania) as being at risk in Albania (paragraph 40). It next considered how he would live in Albania, in the light of the decision of the Supreme Court in HJ (Iran), and having regard to "all of the evidence both in respect of his life in Albania as well as in the United Kingdom" (paragraph 41). It found that "in whatever country he is … he will live discreetly" (paragraph 42).
The First-tier Tribunal next considered "[the] reason for the [LC's] choice of discretion". Having reminded itself of the relevant jurisprudence in HJ (Iran), it said this (at paragraph 44):
"I have found above that the appellant would live discreetly on his return to Albania. I find that the reason he would do so is that is how he himself would choose to live, rather than to live discreetly because of a fear of persecution. I make this finding from a consideration of the totality of his behaviour both in Albania and in the United Kingdom. In Albania he did not choose to reveal his homosexuality because of a fear of offending his community and his parents. In the United Kingdom, where more societal freedom would allow him to live openly as a gay man, he has chosen again to live discretely as a gay man. He has not sought any further relationship even though he is free to do so. If the appellant has conducted himself in this way in the United Kingdom, where he is free to express himself openly as a gay man, I find that he will conduct himself in the same way on...
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LC (Albania) v The Secretary of State for the Home Department The United Nations and Another (Intervener)
...formulated or lodged. 14 However, at a hearing on 20 October 2016, permission to appeal was granted by Lindblom LJ (now reported as [2016] EWCA Civ 1312); and the two grounds upon which the Appellant obtained permission (which did not replicate the alleged errors identified earlier) are ef......