The decision


Heard at Field House

On 28 July 2004

DM (Kosovo – Lesbians – Sufficiency of Protection.) Serbia and Montenegro [2004] UKIAT 00288

Date Determination notified:



Mr R Chalkley - Vice President
Mr N H Goldstein - Vice President
Ms V S Street







For the Appellant: Mr R Arkhurst, Counsel
For the Respondent: Mr D Saville, Home Office Presenting Officer


1. The Appellant, a citizen of Serbia and Montenegro (Kosovo) has been granted permission to appeal to the Tribunal against the decision of an Adjudicator (Mrs Manjit K Obhi) who, in a Determination promulgated on 2 January 2004 dismissed the Appellant's appeal on asylum and human rights grounds.

2. The parties' representatives agreed with us that the sole issue for the Tribunal’s consideration was whether or not, in the light of the Adjudicator’s positive findings there was a sufficiency of state protection available to the Appellant in Kosovo.

3. In that regard the Adjudicator having considered the objective evidence made the following findings:

(i) The Adjudicator was “in no doubt” that there was discrimination directed at women in Kosovo.

(ii) The Adjudicator accepted that as an homosexual the Appellant belonged to a particular social group.

(iii) The Adjudicator found there to be a reasonable degree of likelihood that the Appellant “may suffer an element of discrimination and harassment”.

(iv) That because the state laws provided a sufficiency of protection against the actions of individuals who might pose a threat to the Appellant, “the only obstacle is her taking the step of complaining to the authorities and I accept that to do so may be difficult, but the facility to do so exists”.

4. The Tribunal had before them the decision of the Court of Appeal in Skenderaj [2002] EWCA Civ 567.

5. We have decided to dismiss the appeal.

6. We begin by reference to the Court of Appeal decision in Skenderaj.

7. The Court observed that Lord Clyde had pointed out in Horvath, that there were two alternative parts of the lack of protection limb of the definition of a refugee and that each case had to be considered on its own facts. Satisfaction of either alternative would meet it.

8. The first alternative was an Appellant's inability to avail herself of state protection which might be because it was non existent or insufficient or it might be because she was in some way personally disabled from seeking it.

9. The second limb was her unwillingness to avail herself of it because of fear of persecution for a Convention reason. Such fear had to be a well-founded fear of persecution and not just an expectation however well founded that the police could not or would not do anything about it.

10. Lord Justice J Auld in Skenderaj continued as follows:

“Thus, if the state cannot or will not provide a sufficiency of protection if sought, the failure to seek it is irrelevant. That is so whether the failure results from fear of persecution or simply an acceptance that to do so would be futile.

... the sufficiency of protection has to be measured against the practical limitations of a state to protect its citizens from violence or threats of violence to which it is not alerted and its protection is deliberately not sought. To stigmatise a state so hampered as providing insufficient protection would wrongly impose on it a duty of guarantee. Effective policing depends heavily on policing by consent. If the state can provide a sufficiency of protection which the appellant is not disabled from seeking, he can only rely on his unwillingness to do so, if it flows from a well-founded fear of persecution, e.g. collusion of the authorities with his persecutors... in effect an insufficiency of protection rendering him unable to avail himself of it”.

11. Lord Hope in Horvath stated:

“The standard to be applied is therefore not that which eliminates all risk and would thus amount to a guarantee of protection in the home state. Rather it is a practical standard which takes proper account of the duty which the state owes to all its own nationals”.

12. It is with such guidance in mind, that we consider the circumstances of this Appellant as indeed found by the Adjudicator.

13. She came to the United Kingdom with her husband and children in 1998 claiming asylum as his dependant. She then separated from her husband and began living with [ ] from 21 May 2001.

14. The Appellant returned to Kosovo on 31 May 2003 as described by the Adjudicator:

“.. realising that her claim for asylum on the grounds previously claimed was unlikely to succeed on appeal. She says that she and her daughters attempted to settle in Kosovo but faced severe discrimination on the grounds of her sexuality. She quotes a number of examples of this, but in particular her market stall was vandalised, a stone was thrown at her window, causing her daughter to cut herself on the broken glass and she was generally subjected to name calling and ridicule. The aim had been for her partner to join her there but she advises [ ] against that. She returned to the United Kingdom fearing that she would be attacked, physically or sexually, or possibly killed as a result. She claims this amounts to persecution because she has no effective source of protection. She believes that to complain to the authorities would mark her out further and that the police are made up of Kosovans with traditional values that would pay lip service to the aims of UNMIK but will continue to abuse homosexual individuals”.

We have referred above to the Adjudicator’s findings in relation to that account and her conclusion that a sufficiency of protection was available to the Appellant.

15. In this regard the Adjudicator had conducted a careful examination of the objective material. She was mindful of reports of:

“Kosovo’s antipathy towards gays by looking to the Code of Leka Dukagjini, the law that has guided Albanian clans since the 15th century. Although the code makes no direct mention of homosexuals, it heavily emphasises masculine honour. To this day men who deviate from their customary role as husbands and fathers are accused of bringing shame and stigma upon the entire family if not the clan”.

16. The Adjudicator was “in no doubt there is discrimination directed at women as well but believe that it is probably not to the same level of severity as that directed at men. There is no reference to any similar attitude towards women” (Our emphasis).

17. The Adjudicator took account of the material within the Appellant's bundle and the October 2003 CIPU Report and noted the following extract:

“UNMIK Regulations prohibit discrimination on the basis of sexual orientation. Until September 2002 there were no recorded incidents of violence directed against homosexuals during the time since UNMIK has been in authority in the province. In September 2002, an article was published in the newspaper Epoka E Re, raising homosexuality as ‘dangerous ways and behaviour brought by the foreigners’ which purportedly stirred up traditional societal homophobic prejudice. The article was implicated in a subsequent attack on three members of the Kosovo gay and lesbian association, according to an IWPR article published in May 2000.”

18. The Adjudicator continued, that based on this objective information, she found there to be a reasonable degree of likelihood that the Appellant might suffer an element of discrimination and harassment. The Adjudicator continued:

“However, I am also satisfied that if she approaches the authorities that she will be offered protection. I also note that she has left her daughters in the country and believe that she would not have done so, had the situation been so severe as to place them in danger. I also believe that being aware of the attitude of her fellow Albanians towards homosexual relationships it is unlikely that she would have made her sexuality known to her community.

I conclude that the Appellant does not have a well-founded fear of persecution because the state laws provide sufficiency of protection against the actions of individuals who may pose a threat to her. The only obstacle is her taking the step of complaining to the authorities and I accept that to do so may be difficult “but the facility to do so exists” (our emphasis).

19. It was particularly significant that Mr Arkhurst in opening his submissions to us accepted that the objective evidence pointing to discrimination, in particular lack of state protection for homosexuals, notably lesbians in Kosovo was “not overwhelming”. Indeed Mr Arkhurst could only but rely on a passage in the CIPU Country Report of April 2004 at paragraph S6.96 that states as follows:

“Homosexuality is not mentioned in any law or in the Constitution of Serbia except where the age of consent is concerned (18 for homosexuals and 14 for heterosexuals). Despite this, there was widespread discrimination under the previous regime. There is no clear evidence of this continuing under the current administration, although a 1998 survey reported by the International Lesbian and Gay Association indicated that there is a high level of homophobia in Serbian society” (Our emphasis).

20. It was noteworthy that Mr Arkhurst accepted that the passage in itself did not particularly assist his cause and that to the extent that reference was made to “a high level of homophobia” it related to a past situation in terms of Serbian society. Mr Arkhurst realistically accepted that in present day Kosovo, Serbians were in a distinct minority.

21. Notably, Mr Arkhurst continued:

“I cannot point to anything concrete or any evidence that would demonstrate that if the Appellant wanted to go to the police for help, they would not discuss it because of her sexual orientation”.

Mr Arkhurst continued:

“I accept there is no evidence to support a lack of protection merely because of sexual orientation”.

22. Mr Arkhurst explained that he could only rely on the objective material that revealed, “given the conservative society, it can be inferred that the authorities are more likely not to assist someone”.

23. It was noteworthy that at this point in his submission Mr Arkhurst suggested that the Tribunal might consider remitting this appeal back to the Adjudicator to deal more fully with the issue of protection but was unable to raise any clear argument to persuade us this was not a matter that the Tribunal could not consider for themselves.

24. When we asked Mr Arkhurst for the avoidance of any doubt, if he could refer us to any other objective material which supported his contentions as to a lack of sufficiency of protection for homosexuals and notably lesbians in Kosovo, he accepted that there was nothing further to which he could point to other than the passage in the CIPU to which we have above referred.

25. In the circumstances we did not consider it necessary to trouble Mr Saville.

26. Upon our own consideration of the objective material there is no evidence to show that the laws relating to homosexuality as they stood prior to March 1989 have been applied in any way. There is no evidence of criminal prosecutions against homosexuals.

27. The UNMIK regulations explicitly recognise the European Convention on Human Rights as applicable to Kosovo.

28. Whilst the report from the International Lesbian and Gay Association above referred, shows some discrimination, it does not establish a reasonable likelihood of a level of risk which would entitle the Appellant to succeed on Refugee Convention or Human Rights grounds.

29. It follows on the evidence that the Adjudicator’s conclusions were properly open to her and we agree with those conclusions.

30. The appeal is therefore dismissed.

Approved for electronic distribution. VICE PRESIDENT