Secretary of State for the Home Department v Kacaj
| Jurisdiction | England & Wales |
| Judge | Lord Justice Schiemann,Lord Justice May,Lord Justice Jonathan Parker |
| Judgment Date | 14 March 2002 |
| Neutral Citation | [2002] EWCA Civ 314 |
| Date | 14 March 2002 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C/2001/2002 |
[2002] EWCA Civ 314
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Schiemann
Lord Justice May and
Lord Justice Jonathan Parker
Case No: C/2001/2002
Mungo BOVEY and David JONES (instructed by Irving & Co.) for the Appellant
Robin TAM (instructed by Treasury Solicitors) for the Respondent
Before us is an immigrant's appeal from a decision of the Immigration Appeal Tribunal. In that starred decision the Tribunal considered a number of legal issues of some complexity. They concern the Human Rights Act 1998 and the Refugee Convention. As we announced at the hearing we have decided to allow the appeal and remit the case to the Tribunal. This is not by reason of anything said by the Tribunal in relation to any of the legal issues with which the first three quarters of the determination are concerned : both the immigrant and the Secretary of State challenge some of the reasoning and conclusions there adopted by the Tribunal but we have not heard submissions in depth upon them. We received careful and helpful written submissions on those issues not merely from the parties but also from Liberty and we are grateful to them all. For reasons which will appear we have not thought it appropriate to express a view on any of them. We note that the Administrative Court (Auld L.J., and Ouseley J.) in Dhima v Immigration Appeal Tribunal [2002] EWHC 80 (Admin) expressed its approval of what the Immigration Appeal Tribunal in the present case had said about threats by non-state actors in cases involving the Human Rights Convention.
The background to the case is as follows. The Tribunal proceeded on the basis that the immigrant was generally truthful. She did not give evidence either before the Tribunal or before the adjudicator. The Tribunal criticised the determination of the adjudicator for a number of reasons. It dismissed the appeal by the immigrant and allowed the appeal by the Secretary of State.
Our reasons for allowing the appeal are entirely peculiar to this particular case and of no general significance. In those circumstances we give them briefly. The decision below has been reported at [2001] INLR 354.
The immigrant's case was that her father was a member of the opposition Democratic Party (DP) in Kucove in Albania. In June 1997 three masked and armed men broke into his shop and assaulted her. Her father was told that if he did not hand over money he and the immigrant would be killed. Thereafter she and the father had received many threatening letters. He reported them to the police but they took no action. Her cousin was shot but no-one was arrested for the murder. Her father was frightened and paid some men money. The area round Kucove became controlled by criminal groups. It was no longer under police control. In the run up to the September 2000 elections her father had been active on behalf of the DP. On the 24 th September 2000 she was abducted and then raped by the three abductors. They said to her "Your father did not want to please us so you are paying the bill for him, we are using you to hurt him." She reported the attack to the police. They said they could not do anything about it. She was terrified that something similar would happen to her again. Thereafter her father was told that they had not finished with his daughter yet. Her father was frightened that she might be taken out of Albania by the men to Italy to work as a prostitute. She was afraid that if she were returned to Albania worse things would happen to her than had already happened. She feared she would be treated the same way as before. She did not want them to take her to Italy.
The part of the decision which has led us to allow the appeal is paragraphs 33- 38.
33. Here too the adjudicator's conclusions cannot stand. Although we are bound to record that have we a degree of scepticism about some of the account given by Ms Kacaj, we have decided that it would be fair to assume that her account is generally true and to decide the appeal on the basis that she is to be believed.
Conclusions
34. There can be no doubt those Albania still faces serious problems of lawlessness and corruption. In 1997, when many criminals were released from prison, violent crime was rampant and it is by no means surprising that anyone who was perceived to have money should have been targeted by criminals. There was political violence and upheaval following the collapse of the pyramid schemes in early 1997. Those schemes had been, it was believed, promoted by the Government, then run by the DP, and had led to a disastrous loss of money which improvised many. The DP was ousted in 1997 and in November 1998 a new constitution was established. In 2000 the restructuring of the police began and there was a relatively successful crackdown on armed gangs. In October 2000 there were municipal elections (no doubt those referred to by Ms Kacaj). Only a few violent incidents were reported, leading the Human Rights Watch Report of 10 December 2000 to say that this was:
'a tribute to the Governments' efforts, as well as to the restraint of the political parties themselves.'
Nonetheless, criminal groups still exist and Albania is a major route for drug and people smuggling. Organised crime is a powerful force, assisted by corrupt police and weak and corrupt judiciary. None the less it is clear that real efforts are being made by the authorities to try to improve things and some success is being achieved.
35. Women are still regarded in some parts of Albania as no more than chattels. Domestic violence is widespread and violations of women's human rights is a serious problem. Trafficking in women for prostitution continues, as the Human Rights Watch Report confirms. But a fair reading shows that the major problems arise from women being lured with deceptive offers of lucrative work abroad. Other reports show that families sell daughters to those traffickers and that abduction and kidnapping of children occurs. In addition, there is widespread trafficking in women from the various countries which made up the old Soviet Union. We do not overlook the reports of abduction and kidnapping of women, but these do not suggest that such occurrences are as frequent as the other means by which women may find themselves forced into prostitution. Furthermore, as we have said, there are no reports that suggest abductions are or have been used for political purposes. They are the actions of criminals out for gain. In addition, the abuse of women and the low regard in which they are held mean that rape is not treated as seriously as it should be.
36. We have, of course, read the material which has been put before us. We note that Ms Kacaj's family, including her sister and brother, remain in Albania, albeit her sister is married and no longer lives in Kucove. No evidence has been produced to suggest that any of them have recently been threatened or troubled, and we gather that her father has given up his political activities. The rapists told Ms Kacaj, according to her interview, that they were dealing with her because:
'Your father didn't want to please us so you are paying the bill for him. We will use you to hurt him.'
That is consistent with their failure to extort money and does not necessarily show any political motivation. The only evidence which could suggest a political motive is the observation on releasing Ms Kacaj that all democrats would suffer in the same manner. Even if that remark was made, in our view it was intended to make Ms Kacaj's father believe that he was being targeted for political reasons, perhaps because then he might be more reluctant to involve the police. The objective evidence persuades us that Ms Kacaj has suffered at the hands of criminals motivated by a desire to extort money and not because of a desire to dissuade Ms Kacaj's father from continuing his political activities on behalf of the DP.
37. The general lawlessness and position of women in Albania does not in our view mean that every Albanian woman can have a claim to remain under either Convention. Actions are being taken to stem such lawlessness and the police are undoubtedly willing to provide protection. It is said that such protection is not effective and that there is therefore a real risk that the feared abduction will take place. It is important to remember that the fear relied on is that of abduction and forced prostitution in Italy. As we have said, the threats were made by criminals to extort money. There is no reason to believe that they intended to put them into effect; indeed, it is in our view probable that they did not. The rape underlined their ruthlessness; the threats were to reinforce the blackmail.
38. There is in our view no real risk that what Ms Kacaj fears will occur. That finding, which we regard as inevitable upon the material before us, means that no claim can succeed under either Convention, since, in the...
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