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AG (Democratic Party – Abduction - Prostitution) Albania CG [2002] UKIAT 07205
HR11942-2002

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 9 January 2003
Date Determination notified:

13/03/2003.
Before:

Mr. P. R. Moulden (Chairman)
Mr A. A. Lloyd JP
Mr M. E. A. Innes

Between

THE SECRETARY OF STATE FOR
THE HOME DEPARTMENT
Appellant
and

Ms ALKETA GJERGJI
Respondent

DETERMINATION AND REASONS

1. The Appellant is the Secretary of State. The Respondent is a citizen of Albania. The Appellant has been given leave to appeal the determination of an Adjudicator (Mr J. P. McClure) allowing the Respondent's appeal against the Appellant's decision that her removal to Albania would not place the United Kingdom in breach of its obligations under the Human Rights Convention.

2. Ms M. Banwait, a Home Office Presenting Officer, represented the Appellant. Mr G. Robson, a Solicitor from Davis Blank Furniss, appeared for the Respondent. The hearing was conducted by video link.

3. The Respondent arrived in the United Kingdom on 24 February 1999 and claimed asylum. The application was refused on 22 July 2000 and the Appellant gave directions for her removal from the United Kingdom. Following a hearing on 18 December 2000 her appeal against this decision was dismissed by an Adjudicator (Mr R. Kay). The Respondent did not appeal against this determination. She then made a human rights application, which was considered and refused on 9 May 2001. The Adjudicator heard the appeal on 21 May 2002 and leave to appeal was granted on 18 October 2002.

4. The Respondent claimed that her human rights would be infringed if she were returned to Albania. The summary of the facts of the Respondent’s case which follow are taken from the Respondent's witness statement dated 14 May 2002 and the determinations of both Adjudicators. The summaries in the determinations do not set out the Respondent's case in sufficient detail. Both Adjudicators found the Respondent to be a credible witness. She was a member of the Democratic Party in Albania and the Secretary of the Democratic Youth Union. After completing her university studies in 1996 she was employed by the local Town Hall as an English-language translator. In June 1997 the Democratic Party lost power to the Socialist Party in the elections. This had a considerable effect on the Respondent. On 10 July 1997, during a meeting of the Democratic Party she was arrested and detained by the police on the false pretext that permission had not been obtained for the meeting. She was detained with about ten other girlfriends and held for two days, during which time she was sexually assaulted. Senior officers did not provide her with protection and were not prepared to investigate the actions of other officers.

5. In September 1997 the Respondent lost her job, for no good reason. Her father, who was also involved in Democratic Party politics, lost his job in the army. On 8 September 1998 her brother was shot and killed, although the Respondent accepted that his death was to some extent an accident. He was a chauffeur for a leading Democratic Party politician and the assassin intended to kill the politician. The family made inquiries to try and identify the murderers. The police told them not to pursue the matter and indicated that if they did not do so they could be charged. After this the family received threatening telephone calls demanding money and also warning them not to pursue the matter.

6. In December 1998, in an incident which it is not suggested was connected with the earlier problems encountered by the Respondent and her family, she was walking in the street with a friend when she was kidnapped. Both of them were taken to a house where there were a number of other girls. It was apparent to the Respondent that she had been kidnapped for the intended purpose of prostitution. After about five hours and before she could suffer any serious harm the Respondent was rescued by her father and a friend. The friend was in some way involved with the kidnappers but had agreed to help her father. The matter was not reported to the police because the family thought that the police were likely to be involved and would not help.

7. The family sold their house to finance the Respondent's journey to the United Kingdom.

8. The first Adjudicator found that the Respondent was a credible witness. Applying Devaseelan principles, the Adjudicator in this appeal followed that finding. He concluded that the Respondent had been mistreated and abused whilst in police custody. This was sufficient to infringe her Article 3 human rights. The authorities would not provide her with a sufficiency of protection and would not properly investigate the misconduct of police officers. The kidnap and attempt to force her into prostitution also infringed her Article 3 human rights. The problem was exacerbated by the involvement and corruption of the police.

9. The Adjudicator found that if the Respondent were to return to Albania she would be at substantial risk of further mistreatment. Individuals inside or outside the police would wish to prevent a proper investigation of her brother's death and the apprehension of his murderers. The Respondent might be subjected to kidnap attempts and would not be protected by the police. He found a reasonable likelihood that in this regard the Respondent would be subjected to treatment that would breach her Article 3 human rights. The police would not provide her with a sufficiency of protection. He allowed the appeal under Article 3, concluded that it was not necessary to come to a conclusion under Article 2 and, on the same facts, found that there would be an interference with the Respondent's moral and physical integrity. There would be an interference with her family life. This would be in accordance with the law but would not be proportionately justified in the interests of immigration control.

10. The grounds of appeal allege that it is not clear what aspects of the Respondent's evidence the Adjudicator did and did not accept: that he erred in his assessment of the risk on return to Albania, particularly in the absence of any findings as to the Respondent's political activities or her intention of investigating her brother's death: he erred in assessing sufficiency of protection by not considering whether this was a breakdown in command, corruption of individuals and whether there was a system in place which would provide state protection: he failed to pay proper heed to the country material: failed to apply the proper step-by-step tests in relation to Article 8: failed to consider adequately whether interference with family life would be proportionate in the particular circumstances of the case and generally failed to apply the facts to the law.

11. Leave to appeal was granted in general terms encompassing all the grounds of appeal. We have been supplied with the Albania CIPU assessment of October 2002 and the determination of the Adjudicator (Mr Kay) in the Respondent's Refugee Convention appeal. The Respondent did not submit any documents.

12. Ms Banwait relied on the grounds of appeal and referred us to a number of passages in the CIPU assessment. She submitted that the Adjudicator's findings were unsustainable, particularly in relation to police protection. The authorities would provide her with a sufficiency of protection. In relation to Article 8 the Adjudicator did not follow the appropriate Nhundu and Chiwera step-by-step principles. He did not set out the facts on which he relied in concluding that she had the family life in the United Kingdom. She would not be at risk on return to Albania. We were asked to allow the appeal.

13. Mr Robson's submitted that we should pay attention to the determination of the first Adjudicator, who concluded that the Respondent was credible, honest and truthful. At this point, and for the avoidance of doubt Ms Banwait conceded that the Appellant accepted the Respondent's credibility. Mr Robson referred us to paragraph 59 of the first Adjudicator determination in which he said, "Although it has not been argued before me I consider that Articles 2, 3, 4 and 8 could well be submitted as applying in this case". Even when this is combined with the recommendation made by the Adjudicator in the following paragraph it does not, as Mr Robson suggest, mean that the present human rights appeal should succeed.

14. Mr Robson submitted that, on instructions, given with great reluctance by his client, the allegation of sexual abuse in the police station in July 1997 was that her "breast and private parts had been fondled". In his submission there were no significant differences between the April 2002 CIPU report, which was before the Adjudicator, and the October report before us. Corruption was still endemic in Albania. The Respondent was arrested without just cause and subjected to abuse. Changes in the law relating to trafficking in women had not resulted in a material change in the situation. The Respondent was a young single woman at risk of abduction for forced prostitution. She was an activist for the Democratic Party and as a result the lost her job. The country information showed that some members of the party had been arrested and beaten. We asked Mr Robson whether he could assist us with submissions which might indicate how the Respondent should succeed in an appeal under Article 3 if she had failed in her Refugee Convention appeal. Unfortunately, the submission in reply, that she would be subject to inhuman and degrading treatment, sheds little light on this question.

15. Mr Robson accepts that the Adjudicator erred in his assessment of the Article 8 criteria. He conceded that the Respondent had not established a family life in the United Kingdom. However, he argued that she did have a private life. The circumstances of her private life in the United Kingdom were, he submitted, set out in the final paragraphs of her witness statement dated 14 May 2002. He submitted that she could succeed under Article 8 even if she failed under Article 3.

16. In reply, Ms Banwait submitted that the country information showed political activities and demonstrations were now permitted and that the Democratic Party were part of the legitimate opposition. The Respondent would not be at risk.

17. The country reports (for example the Country Assessment at paragraphs 4.7 – 4.11) confirms the chaotic conditions in Albania in 1997 and also show that threats and violence were often part of the political scene, particularly in the run-up to the 1997 Parliamentary elections. However, since 1998, the situation is much improved, even at election times. The period preceding the October 2000 local government elections was tense but more peaceful (paragraph 4.23 of the Country Assessment).

18. We find that on the facts and the country information it was not open to the Adjudicator to find that the Respondent would be at risk on return. She has not said that she wishes to resume politically related activities, with the Democratic Party or any other party. However, on the country information, even if she were to resume her former level of political activity with the Democratic Party, she would not now be at risk. She has not claimed that she or any member of her family still wish to pursue inquiries into the death of her brother. There is no indication that her family have encountered any difficulties since she left the country, for this or any other reason. In any event, in the light of the improvement in the political climate, it is not likely that if she returns, even to her former home area, she will be at risk because of the inquiries and search for justice pursued by her and her family in 1998. It is more than four years since she left Albania.

19. We find that there is no real risk that the Respondent would be abducted and forced into prostitution in Albania or abroad. There is no suggestion that her earlier abduction was in any way connected with the other problems encountered by her and her family. The country information and in particular paragraphs 6.93 to 6.106 of the CIPU show that the majority of women and young girls are not abducted into prostitution but lured or tricked on promises of marriage or attractive jobs. Only in the minority of cases are they kidnapped (paragraph 6.95). In the light of her age, intelligence and past experience it is not likely that the Respondent would be lured or tricked into prostitution. The chances of random abduction are extremely low, notwithstanding her past experience, from which her father was in any event able to rescue her before any serious harm could befall her.

20. We find that the Adjudicator erred in his conclusion that the Respondent would be at risk on return. She is not at risk of infringement of her Article 2 or 3 human rights. It circumstances where she is not at risk on return it is not necessary or appropriate to consider the question of sufficiency of protection. She does not need it. To return her to Albania would not infringe her moral and physical integrity. The only information to which Mr Robson directed our attention in connection with the Respondent's circumstances in the United Kingdom is contained in the final paragraphs of her witness statement dated 14 May 2002 in which it is said,

"I have a degree in English language and a legal secretarial certificate. I am employed by the parent company of a restaurant and cafe in Manchester and my position within this company is as assistant administrator. I am also employed by Manchester Town Hall, as a translator, providing an ad hoc service. I believe that I have integrated well into British society and despite the fact that I am separated from my parents, which causes much heartache to all of us, it is my deepest desire to remain within an environment where I can utilise my intelligence and my need for learning. To lose this opportunity will result in not only the loss of my personal freedom, but also the suppression of my personality."

21. It is clear that the Adjudicator erred in his conclusion that the Respondent had established a family life in the United Kingdom. She does not claim to have a family life in the United Kingdom. However, she does have a private life. To return her to Albania would interfere with this. To do so would be in accordance with the law. We have no doubt that a proper assessment of proportionality leads to the conclusion that in all the circumstances it would be proportionate to return her to Albania

22. For these reasons we allow the Secretary of State's appeal.

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