MK (Lesbians)
| Jurisdiction | England & Wales |
| Judge | Senior Immigration Judge Spencer,Senior Immigration Judge Goldstein |
| Judgment Date | 26 November 2008 |
| Neutral Citation | [2009] UKAIT 36 |
| Date | 26 November 2008 |
| Court | Asylum and Immigration Tribunal |
[2009] UKAIT 36
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
SENIOR IMMIGRATION JUDGE Goldstein
SENIOR IMMIGRATION JUDGE Spencer
Mrs M Padfield JP
For the appellant: Ms B Asanovic, Counsel and Ms E Daykin, Counsel instructed by Wilson & Co
For the respondent: Ms E Laing, QC instructed by the Treasury Solicitor
MK (Lesbians) Albania CG
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(1) It cannot be said that without more there is a real risk that a woman without family support in Albania would suffer destitution amounting to inhuman or degrading treatment resulting in a breach of her rights under article 3 of the ECHR or persecution, but each case must be determined on its own facts.
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(2) Although it is no longer illegal for consenting adults to have homosexual relations in private, homosexual men known to be members of gay associations and those who visit cruising areas in the centre of Tirana are likely to be harassed and on occasions ill-treated by the police and in individual cases homosexual men may be at risk of harm from members of their families.
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(3) In general terms, lesbian women do not frequent cruising areas and do not join LGBT organisations. Therefore there is lacking the opportunity for them to be harassed or persecuted by the police.
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(4) In general terms in Albania women of lesbian orientation are able to carry on lesbian relationships discreetly without attracting the risk of serious harm. A lesbian woman, whose sexual orientation becomes known, may be at risk of harm from members of her family, particularly if she is from a traditional family from the north of Albania, but each case must be determined on its merits. In such a case, however, it is likely that there would be an adequacy of state protection.
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(5) In any particular case where the safety of the return of a lesbian woman to Albania is in issue, it will have to be determined whether she is likely to behave discreetly upon return and if so whether “discretion” is something that she can reasonably be expected to tolerate, in the light of all of the circumstances of the case, including the social norms and religious beliefs commonly held in Albania. Such a person will only establish a right to refugee status if she can establish that the apprehended violation of her fundamental rights is likely to attain a substantial level of seriousness.
The appellant is a citizen of Albania, born on 21 st November 1982. Her appeal against the decision of the respondent, made on 21 st April 2006, to remove her to Albania at a time and date to be notified, following the refusal of her asylum and human rights claims, was dismissed on asylum grounds but allowed on human rights grounds under article 8 of the ECHR after a hearing by Immigration Judge Grant-Duprez in a determination promulgated on 8 th June 2006.
On 21 st June 2006 Senior Immigration Judge Mather ordered reconsideration on the application of the respondent for the following reasons:
“The grounds disclose that the Immigration Judge may have made errors of law for the arguable reasons given in the application.”
The grounds for review asserted that the immigration judge had failed to give good reasons for finding that the appellant's rights under article 8 of the ECHR would be breached if she were returned to Albania. By a reply dated 24 th July 2006 the appellant asserted that the immigration judge should have allowed the appeal on asylum grounds and on human rights grounds under article 3 of the ECHR.
At a first stage reconsideration hearing before Senior Immigration Judge Goldstein on 15 th June 2007 the Tribunal found that the immigration judge had made errors of law in his determination of the appeal but said that there should be a second stage reconsideration of the appeal with all issues at large and by the agreement of the parties' representatives the positive and adverse credibility findings of the immigration judge, save for the single finding that “ these people (which was a reference to the appellant's mother, brother and possibly her father) are highly unlikely to have told anyone else” (which was a reference to her sexuality), should be preserved. The reasons for the decision that there was a material error of law in the determination are attached to this determination as Annex A.
Thus the matter came before us for a second stage reconsideration of the appellant's appeal. The hearing had previously been listed for 10 th, 11 th and 12 th June 2008 but had been adjourned on the application of the respondent. Shortly before the hearing before us the appellant made an application for an adjournment of the hearing so that further evidence could be obtained but this had been refused. No application for an adjournment of the hearing was renewed by either party before us. Ms Asanovic, however, did indicate that she was waiting for an expert report from Mr Adriatik Bicaku which was due to arrive by 26 th September 2008. Ultimately we indicated that we would receive the report if it arrived by 2pm on 26 th September but unfortunately Mr Bicaku sent the wrong report. In the event we were not able to complete the hearing on 26 th September 2008 and had to adjourn part-heard so that we were able to make directions in relation to receipt of the report from Mr Bicaku together with newspaper advertisements which Ms Laing had sought to invite the appellant's comments upon together with any comments that Dr Mai might have upon them.
Ms Asanovic applied to vary the appellant's grounds of appeal under rule 14 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 to include allegations of breaches of Articles 5, 10, 11 and 14 of the ECHR. We pointed out that rule 15 did not apply by virtue of rule 29 to a reconsideration of an appeal and we were unable to give such leave. Ms Asanovic suggested that she did not need to amend the appellant's grounds of appeal which stated that the appeal was brought on grounds under section 84(1)(c) and/or (g) in that the respondent's immigration decision was contrary to the United Kingdom's obligations under the Refugee Convention and/or Human Rights Convention by reason of the facts set out in the SEF interview and documents already submitted. We indicated that the appeal before the immigration judge had not been run on the basis that articles 5, 10, 11 and 14 had been infringed and that in any event all issues were likely to be covered by the allegations that the appellant's rights under article 3 and/or 8 of the ECHR would be infringed if she were returned to Albania.
At the adjourned hearing on 26 th November 2008 Ms Laing produced certified translations of job advertisements in the 26 th September 2008 editions of two Albanian newspapers called “Shekulli” and “Telegazeta” together with untranslated copy pages from the Panorama newspaper dated 26 th September 2008.
We also heard further evidence from Dr Mai in relation to the newspaper advertisements and received a report from Mr Adratik Bicaku dated 23 rd November 2008. Subsequently it was clarified that Mr Bicaku had not intended to say that in Albania suicide was the main cause of death.
We also granted leave to Ms Asanovic to recall the appellant to give evidence about a recent contact with her mother as a result of which the appellant produced a handwritten additional statement.
In the absence of objection from Ms Laing, we gave Ms Asanovic leave to put in a further report from Ms Schwandner-Sievers, who since the appeal had been adjourned had been on a fact finding mission to Albania from 28 th September 2008 to 2 nd October 2008, notwithstanding that Ms Schwandner-Sievers was not available to give oral evidence before us due to a prior commitment.
In order to accommodate the expert witnesses the appellant gave evidence last and the evidence of one of the expert witnesses was interposed before that of the other was completed. Nevertheless in order to avoid confusion we set out the evidence of the appellant first and that of the expert witnesses one after the other in its entirety.
We should also mention at this stage that at the hearing on 26 November 2008 it was agreed that Counsel should submit their closing submissions in writing.
Following their receipt, the appellant's representatives applied by a letter dated 9 th January 2009 to put in evidence, letters from Ms Schwandner-Sievers and Dr Mai respectively which sought to respond to what the appellant's representatives said were criticisms harmful to their honesty and reputations contained in the written submissions of Ms Laing, relating to their lack of knowledge of the newspaper advertisements of jobs in Albania. In our view there could be no justification for admitting further evidence at such a late stage in the proceedings. It should have been apparent to any reasonable representative that there might be some comment on the failure of the experts to mention the newspaper advertisements. Indeed Dr Mai was specifically recalled to deal with them and explained why he did not know about them. The appellant's representatives had the opportunity of recalling Ms Schwandner-Sievers but chose not to do so and instead and without having previous leave successfully sought to adduce further evidence from her in the form of a further statement which showed that she was invited to comment upon the newspaper advertisement that could have dealt with her reasons for not knowing about them. We gave a considerable amount of latitude to the appellant's representatives to present further evidence at short notice during the course of the hearing, notwithstanding non-compliance with directions given by the Tribunal as to the admission of evidence.
We set out in Annex B the sources of the...
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