Tribunal decisions

The decision

APPEAL No. HX/15098/02
ZG (Catholic-Woman-Kidnapping-Prostitution) Kosovo CG [2002] UKIAT 06307

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 15 November 2002
Date Determination notified:
29th January 2003
.........................................

Before:

Mr. P. R. Moulden (Chairman)
Mr A. K. Lloyd J.P.

Between

ZINA GJONI
Appellant
and

THE SECRETARY OF STATE FOR
THE HOME DEPARTMENT
Respondent

DETERMINATION AND REASONS

1. The Appellant is a citizen of the Federal Republic of Yugoslavia and an ethnic Albanian Catholic from Kosovo. She has been given leave to appeal the determination of an Adjudicator (Mrs A. K. Simpson) dismissing her appeal against the Respondent's decision to give directions for her removal from the United Kingdom and to refuse asylum.

2. Ms A. Weston, of Counsel instructed by Norton & Co, Solicitors, appeared for the Appellant. Mr M. Davidson, a Home Office Presenting Officer, represented the Respondent.

3. The Appellant arrived in the United Kingdom on 29 October 2001. She claimed asylum on 16 November 2001. The notice containing the decision against which she appeals is dated 8 February 2002. The Adjudicator heard the appeal on 6 June 2002 and leave to appeal was granted on 27 September 2002.

4. The Appellant is a single woman from the Prizren area. She is a Catholic. On 24 October 2001 two Kosovan Muslims abducted her at gunpoint from her village home in the presence of her mother and younger sister. They were threatened that they would be shot if they intervened. The Appellant's mother did not report the matter to the police because there was no telephone or police presence in the village. The Appellant was taken to a nightclub in Macedonia where she was punched in the face and raped twice by each man. She was kept there overnight before being taken with another girl in lorry to Belgium, where they arrived three days later. Up to this point the Adjudicator found she was a credible witness and believed her account of events. He did not believe that she had managed to escape from the men in a shopping district of a Belgian city, hide from them in a shop for an hour, hear a woman speaking Albanian, approach her and her husband and ask for help, obtain their help, which included sheltering her in their home in making arrangements for her to travel in a lorry to the United Kingdom where they gave her the telephone number of a man in London who helped her before travelling with her to Liverpool by coach.

5. After reviewing the country information the Adjudicator concluded that the Appellant belonged to a particular social group, consisting of women in Kosovo who were forced into prostitution against their will. Those who abducted and raped her were criminals unconnected with the authorities. They were non-state agents. In the circumstances, the Adjudicator considered whether, in the light of the Horvath test, the authorities in Kosovo would provide her with a sufficiency of protection. She concluded, in paragraph 31, "In light of the objective evidence, I find that effective protection is available to the Appellant, as a result of which there are no substantial grounds to believe that she would be at risk of further ill-treatment by the Kosovan criminals that abducted her". She also found that the same authorities, particularly the international peacekeeping force, had removed the general risk of persecution on purely ethnic grounds. Having dismissed the Refugee Convention claim, the Adjudicator also dismissed the Appellant's human rights claims under Articles 2 and 3, in line with the Refugee Convention conclusion.

6. The grounds of appeal are unnecessarily long, complicated and at times unclear. In the circumstances we invited Ms Weston to make full submissions and informed her that we intended to rely on these.

7. We have before us the Appellant's bundle, the judgment of the Court of Appeal in Kinuthia [2001] EWCA Civ 2100, the Tribunal determinations in Thaqi [2002] UKIAT 03520 and Asani [2002] UKIAT 01122, and the Respondent's bundle.

8. There has been a misunderstanding as to the date of hearing. The Appellant was present with a male friend before 10am, but Ms Weston arrived late. Clearly this was not her fault. We gave her time with her client, after which she told us she was ready to proceed.

9. Ms Weston submitted that, having accepted what happened to the Appellant in Kosovo and Macedonia, the Adjudicator should have accepted her account of events in Belgium and on arrival in the United Kingdom. Her conclusion was based on a subjective and erroneous view of the reasonableness of the Appellant's conduct. We were asked to reject the Adjudicator's conclusions relating to these events and the timing of her arrival in the United Kingdom, all of which were credible. The most important matter was to look at the risk facing her in Kosovo and particularly her home area. She belonged to the Catholic minority. Her attachment to her home area was significant and the Adjudicator did not give this sufficient weight. She was a girl from a rural area approximately two hours from Prizren where it was difficult to access protection. She would be at risk from her former abductors. They knew who she was and where she lived, which put her at risk of repeated rape and abduction. A local man had identified her to her abductors. She was more at risk because she belonged to the Catholic minority.

10. Ms Weston submitted that the Adjudicator had not considered all the relevant factors in relation to internal relocation. She listed these.

1. As a member of the Catholic minority it would be difficult for her to relocate.

2. She was suffering from post-traumatic stress disorder and was vulnerable. We were referred to the medical report, which recommended counselling. Ms Weston said that the Appellant was receiving counselling, but conceded there was no evidence before us about this. She was not able to tell us the results of the genito-urinary tests referred to in paragraph 10 of the determination. However, her instructions were that, "there were no ongoing physical health issues".

3. If relocated the Appellant would not have family support.

4. She would lack a sense of personal security.

5. She lacked educational qualifications. There were educational support systems in the United Kingdom. In reply to our question Ms Weston accepted that the Appellant spoke little English.

6. In the light of the medical evidence she would not have the strength of will to cope on return.

7. She would have no home or shelter outside her village.

8. She would suffer social stigma as a rape victim.

9. She required ongoing counselling.

11. Ms Weston adopted the Adjudicator’s conclusion that the Appellant came within a particular social group. Ms Weston relied on Articles 2, 3 and 8 and submitted that, even after taking into account proportionality, the Appellant should succeed under Article 8.

12. In reply to our questions Ms Weston submitted that the Appellant would be at risk on return to her home area because she had information about a crime. Those who abducted her would fear that she would complain or give evidence against them. In the circumstances they would again treat her in the same way. They were not more likely to leave her alone. Ms Weston was not able to point us to any country information in support of these submissions, although she argued that the country information might not have caught up with the situation on the ground.

13. Mr Davidson conceded that the Appellant’s claims as to what happened to her in Belgium and on arrival in the United Kingdom did, if nothing else, fit the chronology. In making her assessment in paragraph 27 the Adjudicator proceeded on the basis that the whole of the Appellant's account was credible. He questioned whether in the circumstances it would be necessary for us to remit for hearing by another Adjudicator. In relation to internal relocation he referred us to the Country Assessment, which did not suggest that in accessing protection Catholics had any greater difficulty than Muslims. The Prizren report showed that there were a number of Catholic churches in the area. A doctor who was neither a psychiatrist nor a psychologist prepared the medical report. There was no detailed assessment of the usual post-traumatic stress disorder criteria. He submitted that the diagnosis of post-traumatic stress disorder lacked weight. It was difficult to reconcile the evidence in the medical report that she attended college with the claim that she was not able to function normally. There was no indication that she suffered from a severe or chronic mental illness. He relied on the tribunal determinations in Thaqi. There were women's organisations in Kosovo who could help the Appellant and it was likely that the authorities would provide her with effective protection. As to her lack of educational qualifications she would be in no worse position in other parts of Kosovo when compared with her home area. It would be no more difficult for her to relocate to another part of Kosovo than the United Kingdom.

14. Mr Davidson submitted that there was no evidence before us to suggest that traffickers in women sought revenge against those who escaped them. To do so could draw further attention to them and imperil their activities. The Adjudicator had already looked at the level of prosecutions against such traffickers and concluded that there was a sufficient level of protection. The Horvath test did not require round-the-clock protection. As to Article 8, on all the facts, it would be proportional for the Appellant to return.

15. In reply Ms Weston submitted that Horvath protection had to be against the specific risk feared by the individual concerned. Women's groups in Kosovo provided structural rather than direct assistance. They promoted women's issues. The organisations referred to in the determination would not provide the Appellant with direct protection. She relied on Kinuthia.

16. We find that, on all the evidence, it was open to the Adjudicator to reject the Appellant's account of how she escaped from her captors in Belgium, how the arrangement were made for her journey to the United Kingdom and what happened to her on arrival. Incredible stories can be true, but we agree with the Adjudicator. The Adjudicator has not made a subjective assessment without taking into account the Appellant’s particular circumstances or the country information. Nevertheless, the Adjudicator reached her conclusions on the basis that the Appellant’s account of events was wholly credible (paragraph 27 of the determination) and we will do likewise.

17. We agree with the Adjudicator's conclusion that the Appellant is not at risk on return to her home area. In the light of the country information it is clear that she is not at risk because of her Catholic faith, although we have considered whether this is a material factor in relation to her fear of her abductors.

18. There are crucial differences between what happened to the Appellant when she was first abducted and now. Then she and her family were taken by surprise. She was abducted and her family were threatened in circumstances where it was not possible to contact the police quickly enough to obtain assistance. All of them must have been very shocked. On return the situation would be very different. It would be open to the Appellant to go to the authorities and make a complaint against her abductors and the local man who identified her with a view to possible prosecution and to seek future protection. On the country information it is not likely that the authorities would be able to provide round-the-clock protection in her home area. However, it is reasonably likely that if not her abductors then at least the local man who identified her, if he is still in the area, would get to know that she had complained and sought protection. If her abductors did not come from the area, and there is no evidence that they did, then they are not likely to get to know of her return except possibly through the man who identified her to in the first place. There is no country information to show that those who abducted the Appellant or traffickers generally are likely to seek revenge because she escaped from them, or to discourage others. The country information shows that those who traffic in women do so as a business, albeit the business of organised crime. An attempt to abduct the Appellant, forewarned and suspicious, where the authorities have been informed of what happened in the past and the Appellant's fear of what could happen in the future, is likely to be regarded as dangerous and unnecessarily risky. We accept that there must be a degree of speculation as to the likely actions of those who abducted the Appellant. Essentially, in addition to this, we rely on the lack of country information to support the Appellant's fears. In circumstances where there is country information about the activities of those who traffic in women it is likely that there would be reports of any action taken against those who escape them. The country information referred to in paragraph 13 of the determination shows that there is legislation in place to prosecute, convict and penalise those who traffic in women. Paragraph 14 shows that UNMIK actively investigates cases of trafficking although there are obstacles to conviction. The Adjudicator has made a balanced assessment of country conditions. We distinguish this case from Kinuthia. That related to remedies after ill-treatment on return. This Appellant has not established that what happened to her in the past is likely to happen again, whether or not the authorities can and will provide effective protection. Any risks there may be can be reduced yet further if she goes to the authorities, reports what happened in the past and seeks protection for the future. The protection cannot be and is not required to be absolute. If the Appellant were to need protection the particular circumstances of her case would ensure sufficient protection.

19. Where we agree with the Adjudicator that the Appellant is not at risk of Refugee Convention persecution or infringement of her human rights on return to her home area it is not necessary for us to consider the reasonableness of internal relocation. Had it been necessary to do so we would have concluded that, on all the evidence, it would not be unreasonable to expect her to relocate to another part of Kosovo, for example to Prizren, the nearest town to her home village.

20. Article 8 does not appear to have been argued before the Adjudicator. There is no reference to it in the skeleton argument before the Adjudicator. However, Ms Weston has raised the issue, which is covered, in the broadest of terms, in the grounds of appeal from the Respondent's decision. It is not suggested that the Appellant has a family life in the United Kingdom with anyone in particular. She may nevertheless have a private life. Her Counsel confirms that she does not suffer from any physical ill health. The doctor who provided the medical report does not have any specialist psychiatric qualifications. His conclusion that she is suffering from posttraumatic stress disorder is not specifically related to the usual criteria. The conclusion that she has difficulty in functioning normally is difficult to reconcile with her claim that she is receiving some sort of further education in the United Kingdom. Her statement provides little support for the contention that she has difficulty in functioning normally. Her Counsel informs us, doubtless on instructions, that she is receiving counselling. However, we have no evidence as to the regularity, effectiveness or any continuing requirement for this. In the circumstances we are unable to find that the Appellant is in need of medical or psychiatric treatment in Kosovo and even less that she requires treatment which is not obtainable in that country. Accepting that to return her would interfere with her right to private life under Article 8, on all the facts we have no difficulty in concluding that the interference would be proportionate.

21. We dismiss this appeal.

…………………………………….
P. R. Moulden - Vice President