Upper Tribunal (Immigration and asylum chamber), 2019-03-26, [2019] UKUT 93 (IAC) (BF (Tirana - gay men) (CG))
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Dawson, Upper Tribunal Judge Smith |
| Status | Reported |
| Date | 26 March 2019 |
| Published date | 29 March 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 23 October 2018 |
| Subject Matter | Tirana - gay men) (CG |
| Appeal Number | [2019] UKUT 93 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
BF (Tirana – gay men) Albania [2019] UKUT 0093 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On Tuesday 16 October to Thursday 18 October 2018 and Tuesday 23 October 2018 |
On 26 March 2019 |
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Before
UPPER TRIBUNAL JUDGE DAWSON
UPPER TRIBUNAL JUDGE SMITH
Between
BF (ALBANIA)
[ANONYMITY DIRECTION MADE]
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr S Chelvan and Ms J Smeaton, Counsel, instructed by SMA Solicitors for the Appellant
For the Respondent: Mr C Thomann, Counsel, instructed by Government Legal Department for the Respondent
Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the case involves protection issues. It is appropriate to continue the order. Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.
COUNTRY GUIDANCE
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Particular care must be exercised when assessing the risk of violence and the lack of sufficiency of protection for openly gay men whose home area is outside Tirana, given the evidence of openly gay men from outside Tirana encountering violence as a result of their sexuality. Such cases will turn on the particular evidence presented.
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Turning to the position in Tirana, in general, an openly gay man, by virtue of that fact alone, would not have an objectively well-founded fear of serious harm or persecution on return to Tirana.
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There is only very limited evidence that an individual would be traced to Tirana by operation of either the registration system or criminal checks at the airport. However, it is plausible that a person might be traced via family or other connections being made on enquiry in Tirana. Whether an openly gay man might be traced to Tirana by family members or others who would wish him harm is a question for determination on the evidence in each case depending on the motivation of the family and the extent of its hostility.
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There exists in Tirana a generally effective system of protection should an openly gay man face a risk of harm in that city or from elsewhere in Albania.
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An openly gay man may face discrimination in Tirana, particularly in the areas of employment and healthcare. However, whether considered individually or cumulatively, in general the level of such discrimination is not sufficiently serious to amount to persecution. Discrimination on grounds of sexual orientation is unlawful in Albania and there are avenues to seek redress. Same-sex relationships are not legally recognised in Albania. However, there is no evidence that this causes serious legal difficulties for relationships between openly gay men.
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In general, it will not be unduly harsh for an openly gay man to relocate to Tirana, but each case must be assessed on its own facts, taking into account an individual’s particular circumstances, including education, health and the reason why relocation is being addressed.
TABLE OF CONTENTS
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Description
Paragraphs
INTRODUCTION
1-17
Country Guidance
1-10
The Appellant’s Appeal
11-17
THE LAW
18-48
Introduction to the Protection Claim
18-21
Particular Social Group
22-24
Living Openly
25-34
“The Silence Fallacy”
35-37
Sufficiency of Protection
38-41
Internal Relocation
42-43
Discrimination in Status of Gay Relationships
44-47
Existing Country Guidance
48
THE EVIDENCE
49-250
Country Specific Evidence
49
The Expert
50-67
Summary of Ms Young’s Evidence
54
General Observations about Ms Young’s Evidence
55-67
A: Legislative Framework, Implementation, Corruption, Societal Attitudes and Role of LGBTI NGOs
68-124
Legislative Framework Affecting LGBTI Individuals in Albania and its Implementation
68-88
Corruption in Albania
89-95
Societal Attitudes
96-106
Role of LGBTI NGOs
107-117
Findings on the Legislative Framework, Implementation, Corruption, Societal Attitudes and Role of LGBTI NGOs
118-124
B: Situation Faced by an Openly Gay Man in Tirana
125-186
Risk of Harm to Openly Gay Men in Tirana
125-155
Risks from Family Members in Tirana
156-162
Discrimination in Tirana
163-169
Findings on the Situation Faced by an Openly Gay Man in Tirana
170-186
C: Sufficiency of Protection in Tirana
187-229
The Police
187-205
The Prosecutors and the Judiciary
206-208
The Commissioner for Protection from Discrimination
209-217
The People’s Advocate
218-220
Findings on Sufficiency of Protection
221-229
D: Internal Relocation
230-250
Relocation to Tirana
230-232
Employment and Accommodation
233-237
Socio-Economic Factors
238-241
Findings in Relation to Internal Relocation
242-250
COUNTRY GUIDANCE
251
THE APPELLANT’S APPEAL
252-264
Summary of Conclusions on the Appellant’s Appeal
265
ANNEX A: ERROR OF LAW DECISION
Page 78
ANNEX B: INDICES TO BUNDLES OF BACKGROUND EVIDENCE
Page 84
GLOSSARY
ACPD Albanian Center for Population and Development
API Asylum Policy Instruction
CPD Commissioner for Protection against Discrimination
CPIN Country Policy and Information Note
ECRI European Commission against Racism and Intolerance
ERA Equal Rights Association
FFM Fact-Finding Mission
FtTJ First-tier Tribunal Judge
HO Home Office
HRW Human Rights Watch
ICI Independent Chief Inspector
ILGA-Europe European Region of the Lesbian, Gay, Bisexual, Transgender and Intersex Association
LGBT Lesbian, Gay, Bisexual and Trans
LGBTI Lesbian, Gay, Bisexual, Trans and Intersex
MSWY Ministry of Social Welfare and Youth
NAP National Action Plan
NGO Non-Governmental Organisation
OMSA Open Mind Spectrum
OSCE Organization for Security and Co-operation in Europe
PA People’s Advocate
PRIDE Promoting Rights, Inclusiveness, Dignity and Equality
UNDP UN Development Programme
USSD United States State Department
WHO World Health Organisation
DECISION AND REASONS
INTRODUCTION
Country Guidance
1. This is a decision to which we have both contributed. The issues which we have to consider relate to gay men in Albania.
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The existing country guidance is IM (Risk, Objective Evidence, Homosexuals) Albania CG [2003] UKIAT 00067 (“IM”) which can be summarised as follows:
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Other than two incidents in 1994 and 2001, there was no evidence to suggest that there is generalised treatment of homosexuals in Albania...
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