The Queen (on the application of the Claimant) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Ms Sara Cockerill |
| Judgment Date | 04 April 2017 |
| Neutral Citation | [2017] EWHC 639 (Admin) |
| Docket Number | Case No: CO/5123/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 April 2017 |
[2017] EWHC 639 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Sara Cockerill QC
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Case No: CO/5123/2015
Mr Raza Halim (instructed by Duncan Lewis) for the Claimant
Ms Carine Patry (instructed by Government Legal Service) for the Defendant
Hearing dates: 14/03/17
Ms Sara Cockerill QC:
Summary
In this case the Claimant, an Albanian national, seeks judicial review of the decisions of the Defendant to:
i) Refuse the Claimant's asylum claim on 7 October 2015 and certify it without a right of appeal under section 94(1), Nationality Immigration and Asylum Act 2002 ( 'NIAA 2002');
ii) Detain him for the purposes of determining his asylum claim and otherwise.
The essence of the Claimant's complaint is that the Defendant processed the determination of the Claimant's claim for asylum in the Detained Asylum Casework ("DAC") and refused and certified it despite the fact that it concerns a blood feud in Albania and in particular despite the fact that he had sought extra time to produce further evidence.
The Claimant says that claims concerning blood feuds in Albania require external and corroborative evidence in order to be adequately ventilated in the view of the country guidance in EH (blood feuds) Albania CG [2012] UKUT 00348. He claims that the speedy determination of his asylum claim under the DAC precluded him from adducing relevant evidence.
It is also said that this Claimant's case is uniquely compelling given that he is a " significant witness" in a perjury investigation concerning the family with whom he is engaged in a blood feud.
The facts
The Claimant was born in 1993. He left Albania towards the end of October 2013 and entered the UK clandestinely by lorry, arriving on 10 November 2013. He did so in order to pursue his relationship with his then partner, Ms X. This relationship had been established in Albania in the same year. Ms X and her family had obtained refugee status in the United Kingdom.
The Claimant says that he had wanted to enter the United Kingdom by obtaining the appropriate entry clearance, but Ms X and her family persuaded him not to do so, lest their own claim was scrutinised.
After his arrival the Claimant lived with the X family. It appears that the arrangement was not entirely harmonious. However his relationship with Ms X subsisted until February 2015 when the Claimant sought to terminate the relationship. On 28 February 2015 there was an altercation which culminated in Ms X's mother stabbing the Claimant in his back and soon thereafter telephoning the police to falsely accuse the Claimant of seeking to stab her. In the fracas Ms X and her father also sustained some minor injuries. In the course of the argument, Ms X's parents said that they did and would declare a blood feud against the Claimant because he intended to separate from Ms X.
The Claimant was arrested and charged with Actual Bodily Harm on 1 March 2015 and kept in remand for 6 months before being found not guilty at trial on 12 August 2015.
As a result of the outcome of that trial, the accounts given by the respective parties during that trial and the events that precipitated the charge, the Claimant is now assisting police with a ' live' investigation into perjury on the part of the X family.
On 26 August 2015 the Claimant made a claim for asylum. His screening interview took place on 10 September 2015. During that interview he claimed that he was the subject of a blood feud with his (now ex) partner's family, that his ex-partner's mother had attacked and threatened him with a blood feud and threatened his life, and that he could not return to Albania because her family "were big" there. He said that if he needed evidence from Albania he would get it. On 21 September 2015 his solicitors indicated that they needed to obtain evidence from the Claimant's former solicitors and from the police regarding threats made against the Claimant. They also sought to reschedule his substantive asylum interview, which was duly done.
On 28 September 2015, the Claimant had a substantive asylum interview. In terms of the detail of that interview he said that the X family had jobs in government, but that he did not know the details. An uncle in the police in Tirana was mentioned. He referred to an earlier threat to his mother, but not to any subsequent threats to him or her. He indicated that in terms of further documentation he might have further documentation to submit from his court case.
In a Pre-Action Protocol letter dated 2 October 2015, the Claimant's solicitors challenged his detention and explained that they were still waiting for documents from the Claimant's former criminal solicitors and from the perjury investigation. No formal extension of time was sought but it was made clear that it was the Claimant's case that no reasonable asylum decision could be taken while these pieces of information were missing. It was also noted that the investigating officer in the perjury case was prepared to "affirm the key aspects of his investigations" confidentially with the Home Office, though he could not currently disclose them to the Claimant.
The Claimant's asylum claim was refused on 7 October 2015. No further documents from the Claimant's criminal solicitors had been received at that time; nor had the Home Office had the confidential briefing on the perjury investigation. The claim was also certified pursuant to section 94 of the 2002 Act.
The key passages of the decision letter are set out below:
"In the light of all the evidence available, I have decided that you have not established a well-founded fear of persecution so you do not qualify for asylum. Your asylum claim is therefore refused under paragraph 336 of HC395 (as amended) .
I have also decided that you have not shown that there are substantial grounds for believing that you face a real risk of suffering serious harm on return from the UK so you do not qualify for Humanitarian protection .
Therefore, your claim has also been refused under paragraph 339F of the Immigration Rules. …
6. You state that you cannot go back to Albania as a result of the threats that were made to you by the family on the date of the incident (AIR 34). You claim that they have a big family in Albania and that they have jobs in the government (AIR 34). You do not know exactly who works in the government but her uncle works for the police in Tirana, you do not which police station (AIR 47–51). Her mother made the threat to you and told you that if you were ever to go back to Albania you will be killed. They are now treating this as a blood feud because they made it clear that if you ever left their daughter then you "owe them blood" (AIR 36–38) .
7. You claim your mother was threatened in Albania before you were detained due to the same reason that you wanted to leave [Ms X] (AIR 53, 54). You claim that you cannot move to another part of Albania as her family work on behalf of the state and that they will be able to trace you wherever you go (AIR 66). Furthermore, you know [Ms X]'s family to be criminals as they deceived the courts by giving false statements and making the judge believe that you had instigated the attack in February 2015 (AIR 70). You claim that you pressed charges for the stab wounds you received and the case is on-going, you do not know the date of the trial (AIR 71–75) .
8. You fear [Ms X]'s father and his six brothers (AIR 101–105). You claim her father threatened you by telling you that his brother, [X] had killed someone in Albania and the same would happen to you if you returned to Albania .
Future Fear
9. You fear that were you to return to Albania that you will be killed by your ex-girlfriend's family (AIR 36)… .
18. Although your claim has been considered at face value this is not a concession that your claim has been accepted .
19. You have claimed that on return to Albania you will be killed as a result of being a target of a blood feud. However, it is noted that there have been no killings and neither has there been a declaration of a blood feud. Whilst you claim that threats to you have arisen out of the incident on 01 March 2015 in London, it is noted that since this date , neither you or your family have had any contact with your ex-girlfriend's family. Whilst you claim that during this incident your ex-girlfriend's family threatened to declare a blood feud, it is noted that since that date nothing further has occurred i.e. a declaration of a blood feud either in person or via a third party. It is your claim that her family live 2 minutes from your home in Albania. Yet despite this proximity, your family in Albania have not had any contact from your ex-girlfriend's family. It is therefore considered that your fear of your ex-girlfriend's family and your fear that a blood feud has been declared is based wholly on your own speculation.
20. What constitutes act of persecution has been defined by Article 9 of European Council Directive 2004/83/EC (Qualification Directive). An act of persecution must be either sufficiently serious by its nature or repetition as to constitute a severe violation of a basic human right .
An act of persecution must be either:
(a) sufficiently serious by its nature or repetition as to constitute a severe violation of a basic human right, in particular a right from which derogation cannot be made under Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms; or
(b) an accumulation of various measures, including violations of human rights which is sufficiently severe as...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2017-10-18, AA/06409/2015 & Others
...acted. Ms Willocks-Briscoe relied on the case of The Claimant R (on the application of) v Secretary of State for the Home Department [2017] EWHC 639 (Admin) and in particular paragraph 57 where the judge said: “This does not, in my judgment, fulfil the requirements indicated by the guidance......