Tribunal decisions

The decision

IN THE IMMIGRATION APPEAL TRIBUNAL

DK (Protection-Blood feud) Albania CG [2002] UKIAT 08006
Appeal no. HX 23958-02
Heard: 05.02.03
Typed: 06.02.03
Sent out: 01/04/2003

IMMIGRATION AND ASYLUM ACT 1999

Before:
John Freeman (chairman)
and
Mr AF Sheward

Between:
Secretary of State for the Home Department,
appellant

and:
Dashamir KOCI,
(claimant)

DECISION ON APPEAL

Miss K Prendergast for the Secretary of State
Mr G Rodwell (solicitor, Southerns, Nelson) for the claimant

This is an appeal from a decision of an adjudicator (Mr D Borsada), sitting at Walsall on 9 July, allowing an asylum and human rights appeal by a citizen of Albania, who claimed to fear the effects of a blood-feud. Leave was given on the basis that the adjudicator had not given effect to the decision of the Court of Appeal in Skenderaj [2002] EWCA 567. The Home Office say they put it before him, though there is no trace of it on the file, and they failed to field a presenting officer to explain its importance. It was common ground before us that his asylum decision could not stand in the light of that; but the court (per Auld LJ) had things to say also relevant to the human rights aspect. (They did not consider the main question of fact, whether the Albanian authorities were able to provide effective protection for victims of blood-feuds, because that had been conceded in Skenderaj).

2. These were the relevant passages:
43. There may be difficulty, where the sufficiency of protection has to be measured against the practical limitations on 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, which, as Lords Hope and Clyde said in Horvath, respectively at 500F-H and 510F-H, would be beyond what is required or, as the European Court held in Osman, at paragraph 116 in relation to Article 2 of the ECHR, would be disproportionate. Effective policing depends heavily on policing by consent. The Court has recently determined that such an approach conforms with Strasbourg jurisprudence; see Dhima v. IAT (CO/2392/2001), 2002. However, given the adjudicator's finding and the Tribunal's acceptance of the Albanian authorities' inability to provide protection even if sought, this difficulty does not arise in this case.
44. On the other hand, if the state can provide a sufficiency of protection which an applicant is not disabled from seeking, he can only rely on the alternative of his unwillingness to do so, if it flows from a well-founded fear of persecution, for example of collusion of the authorities with his persecutors, in effect, an insufficiency of protection rendering him unable to avail himself of it. It would not qualify under this alternative that he does not seek protection because he has a well-founded belief that the state won't provide it or, as the adjudicator appears to have found, because of a societal norm not to seek it. We do not regard Lord Lloyd's use of the words "for whatever reason" in the passage from Lord Lloyd's speech in Aden, on which Mr. Vokes relied, as applicable to inability to afford protection produced by unwillingness of an applicant to seek protection for reasons other than fear of persecution, since that would make the second alternative of unwillingness "owing to such fear" otiose. If the reason is a well-founded belief that the State would not provide protection, such a construction is, in any event, unnecessary, since such a state of mind would amount to well-founded fear that would satisfy the first alternative of inability to avail himself of protection. Lord Lloyd touched on this point in Horvath, at 507D-E:
"As for the second part of the protection test, there will not be many cases in which an applicant who is able to avail himself of the protection of his country of origin, will succeed on the ground that he is unwilling to do so. Here the applicant's case ' . .. is that he regards the local police as ineffective and indifferent. But he is not the sole judge of that. The test is objective. The Immigration Appeal Tribunal has found as a fact that the available protection satisfies the Convention standard. There are no special circumstances which would enable the applicant to succeed on the second branch of the protection test, having failed on the first. .. ."
45. In our view, it was inappropriate for the Tribunal when considering the issue of state protection, on which it based its decision, to argue that there was no discrimination by the state because the absence of protection flowed from unwillingness of blood feud victims to seek it rather than the state's failure to extend it to them. Such reasoning begs the essential question under Article 1A (2) whether unwillingness, as distinct from inability, is "owing to" a fear of persecution. As Mr. Vokes submitted, such a blanket exclusion from state protection is plainly discriminatory, amounting as it would to an autonomous persecutory system lying "outside society". In any event, despite the close inter-relationship of the fear and protection tests, it is, in our view, unhelpful and unnecessary in non-state persecution cases to turn to discrimination or the lack of it when focusing on the latter.
46. The critical factor in cases where a victim of non-state persecution is unwilling to seek state protection is not necessarily whether the state is able and willing to provide a sufficiency of protection to the Horvath standard, though in many cases it may be highly relevant to the victim's well- founded fear of persecution. The test is whether the potential victim's unwillingness to seek it flows from that fear. As we have said, the Tribunal clearly accepted, in paragraph 9 of its decision, the adjudicator's finding that those involved Albanian blood feuds, including by implication Mr. Skenderaj, do not seek police protection because they consider it would not be effective.

3. To sum up the effect of what the Court of Appeal said in Skenderaj,

a) victims’ reluctance to seek state protection (though it will not disentitle them) will not of itself entitle them to surrogate international protection, unless for a Refugee Convention reason;
b) effective protection depends on consent, and lack of co-operation by those at risk may be relevant to the question of whether the state will carry out its responsibilities to them;
c) victims are not to be the judges of whether state protection would be effective if sought, which calls for an objective answer by the tribunal.

4. This is what the adjudicator had to say on the point: Mr TKH Robertson is a London solicitor and vice-chairman of the British Albanian Legal Association, who wrote to the claimant’s solicitors on 19 June 2002.
22. Mr Rodwell has summarised the objective evidence in his submissions. I would accept, in turn, that Mr Robertson is an expert on Albania having read the introduction to his report. I also accept the reasoning within Mr Robertson's report and all the conclusions he reached. By contrast the respondent has only dealt with the general position in Albania and has not attempted to address the evidence in relation to blood feuds. I note that Mr Robertson does not consider state protection as sufficient in the appellant's circumstances. In that sense the Authorities have failed the test set out in Horvath (2000 Imm AR 205). I note that the Mr Robertson does not consider that anywhere is safe in Albania and the appellant's experiences in Tirana would seem to bear this view out. …
5. We do not know which if any version of the CIPU report the adjudicator had before him; again that was the Home Office’s fault for not fielding a presenting officer; but we have the October 2002 one, which contains a very full treatment of the blood-feud problem at §§ 6.123 – 6.132, to which we shall return. (Ravichandran [1996] Imm AR 97 makes it clear we can and must accept that advantage over the adjudicator; even if the October report referred to events which had happened since his decision, as it does not.
6. This is the relevant part of Mr Robertson’s letter:
3. Mr Koci's fear of assassination by a member of the Shtefni family is certainly well grounded.

Revenge killing has been a feature of the Albanian culture since time immemorial and its deep roots are evidenced by its immediate revival after its successful suppression by the communists during the 47 years they were in power. It happens throughout Albania but is particularly evident in the north where Mr. Koci is from and where the taking of blood was one feature of the wider code of unwritten customary law which prevailed in the region until King Zog's time and which is still sometimes applied. The Shtefni family will remain dishonoured so long as they have only taken one life for the two they lost to the gun of Mr. Koci' s father. Women are entirely excluded from the code of blood vengeance and as Mr. Dashamir Koci appears to be the only male member of his family surviving, I do not believe the Shtefni family will rest until they have killed him.
I have the following comments to make on the Home Office's Reasons for Refusal, using its own paragraph numbering:
5. I do not believe that it is alleged that the Albanian police are complicit in or support incidents of murder but it is noteworthy that they failed to apprehend Mr. Koci' s father after his very public shooting of the two Shtefni men.
6-9 While it is true that great strides have been taken in law enforcement since the breakdown 9. of law and order in 1997 (for example, travel in the countryside is now reasonably safe with brigandage suppressed) and a large number of weapons looted during the 1997 anarchy have been recovered, it is not the case that government control has effectively been extended throughout Albania. The region of Tropoja in the north east is only partially and ineffectively controlled and there remains a very large number of guns and other weapons illicitly in private hands. Whatever the "clear up rate" for crimes which have occurred, the police, despite continuing improvement, remain undertrained and undermanned, and their ability to prevent crime, particularly crime of the nature contemplated, is severely limited. The Secretary of State's view that Mr. Koci should seek protection from the Albanian authorities is quite impractical.
…
2. If Mr. Koci were compelled to return to Albania he would be at the gravest risk of being killed by members of the Shtefni family. He would live in constant fear and my belief is that he would eventually be killed. Without wishing to sound melodramatic, I consider that if Mr. Koci were compelled to return to Albania this would be tantamount to a sentence of death" I should also add that time is not a healer in matters of this kind. There has been at least one case, probably several, of a killing taking place after 1991 in revenge for one which took place in 1946, the victim being I believe the grandson of the one who originally "owed blood".
3. Mr. Koci could expect no specific police protection because of a threat to his life and I do not believe that he could rely on any effective general protection from the police.
4. Albania is a small country - about the same size as Wales - and I do not believe there is any part in which he could rely on living in safety. Of course, if he were to settle as far as possible from the Lezha area, say in the south east, he would no doubt delay the day of reckoning but I believe the Shtefni family would eventually find him. Albania's small size and the nature of its society with extended family groups means that Mr. Koci' s return to Albania would most probably be made known to the Shtefni family within quite a short time.
7. We of course have the benefit of the October 2002 CIPU report, which the adjudicator did not; but we have to take full account of that (see Ravichandran [1996] Imm AR 97) in deciding whether he was entitled to accept what Mr Robertson said, quite so uncritically as he appears to have done. Adjudicators need to take particular care to reach an independent view on evidence put before them by one side, when the other is not represented, whichever side that is.
8. Turning to the other evidence to which we were referred by Mr Rodwell, Amnesty International say in their report for 2001 that, though ill-treatment by police of détenus was still common,and judicial proceedings against those responsible infrequent, policemen had been committed for trial, and at least three said to have been convicted by courts. The State Department say in theirs that there were still “many killings” as the result of blood-feuds, though there had been a decrease in violence since the previous year. Most of the police “… still remained largely untrained …” despite the continuing help given by foreign governments.
9. To set the problems in geographical context (see CIPU report § 2), the area of Albania is about 11,000 m² (so Mr Robertson is speaking rather loosely when he describes it as “about the same size as Wales”, which covers just over 8,000). The population is just over 3 million, of whom it is agreed about ¾ million live in Tirana, the capital. The claimant's regional centre of Lezhë is shown on his useful map: the scale in the ‘Times Atlas of the World’ makes clear it is no more than 40 miles north of Tirana as the crow flies, and perhaps 50 by road.
10. Mr Robertson is clearly conscious of some of the implications of what he says, as shown by his remark about not wanting to sound melodramatic. It would be cynical to suggest that was a vain hope in dealing with vendetta, which is the very stuff of melodrama; but both the problems it causes, and any efforts made to cope with them, have to be looked at in the light of reality (if that is not too trite an aspiration).What Mr Robertson does not say is when he last visited Albania. This is always a point of interest when one has to consider the evidence of anyone put forward as an expert on a particular country, and ought to be obviously so, if any thought were given to the rapidity of change, especially in eastern Europe over the last decade. While we should be quite prepared to accept that the kanun vendetta system, like any other, is very much rooted in the past, the same may not apply to the efforts of the authorities to deal with it.
11. The most relevant part of the CIPU report follows:
6.130 The numbers of persons affected directly or indirectly by blood feuds vary widely. A survey conducted by the Law Faculty of Tirana University in March 2000 showed that 210,000 Albanians (six per cent of the total population) were "affected" by blood feuds including about 1,250 people locked in their homes for fear of being killed. The Albanian Human Rights Group reported that during 2001, 2,750 families were self-imprisoned at home and that 900 children were prevented from attending school due to fear of revenge. According to the Ministry of Public Order, more than 14 individuals were killed in blood feuds in 2001. Figures published by the National Mission for Blood Feud Reconciliation [set up in 1996: see § 6.126], in August 2000, stated that 756 blood feuds had been reconciled, allowing the people involved to return to put an end to self-confinement at home. The missioners explained that the roots of this problem lie in the ill-intentioned interpretation of the Kanun and in the reluctance of citizens to obey the laws of the state. [5d][14b][24a]
6.131 Several agencies provide reconciliation services to families involved in blood feuds, although according to the International Crisis Group there has been no concerted and coordinated strategy devised to combat this growing and deeply damaging phenomena. The Association for Fraternisation and Reconciliation aims to settle disputes between families through dialogue. The National Reconciliation Committee estimated it had resolved around 400 blood feuds whilst the All-Nation Reconciliation Mission claimed it has succeeded in settling about 600 feuds. [24a]
6.132 Albanian officials appear to have recognised the problems posed by the Kanun and have pledged to address them. In August 1999, the Albanian government dispatched 200 men belonging to the Tirana-based special terrorist force RENEA to the northern district of Tropoja in an effort to curb lawlessness and gang violence after four people were killed in vendettas. The security forces arrested 22 people suspected of murder, armed robbery or theft, and seized large quantities of weaponry and stolen vehicles.
12. The CIPU quote Mr Robertson (see § 6.128) as saying in March 2000 that “… to incorporate any special provisions dealing with blood-feuds in the Criminal Code would be seen as a retrograde step in Albania by giving official recognition to an archaic custom.” We have no doubt he is right about that, and that this is a perfectly sensible view to take. There is provision (see § 6.129) for premeditated murder (as a blood-feud killing would almost always be) to be punished with 15 – 25 years’ imprisonment, rising to life with aggravating circumstances. The question is whether official willingness to enforce that law is now capable of providing effective protection for potential victims of blood-feuds, if they are prepared to enlist it.
13. Albania has of course had many problems since the fall of Communism in 1991-92, which may have played their part in what the CIPU report at § 6.124 describes as the re-emergence of blood-feuds, especially in northern Albania. Clearly this was seen as a serious problem by the authorities as early as 1996, when they set up the National Mission for Blood Feud Reconciliation. There have been a number of other private initiatives, named at § 6.131: between them, they claim considerable success in resolving blood-feuds peacefully. This is an extremely worthy aspiration; but clearly it would not be enough on its own.
14. However, in August 1999 the government (apparently the one still in office) showed itself well capable of taking a firm hand when one was needed: no doubt the CIPU meant to describe the apparently very effective force they sent in to Tropoja as “anti-terrorist”, rather than “terrorist”. The ministry responsible, unlike the State Department or Amnesty International, give an exact figure for blood-feud deaths in 2001. While even 14 is of course too many, the figure is a more solid basis for assessment of the problem than a vague “many”; and it does give some hope that it is not only officially-recognized, but kept track of.
15. If Mr Robertson had been provided with, or had taken the initiative to provide himself with the Home Office’s up-to-date views in the CIPU report (as they have taken account of what he has said on a previous occasion), and given reasons for maintaining his views, then the claimant would have been in a much stronger position. As it is, Mr Robertson was giving his own views against the background of what was certainly a very general treatment of the law and order situation in the refusal letter. He said nothing about the National Mission for Blood Feud Reconciliation, or the various other initiatives; nor about the 1999 Tropoja campaign (even though he specifically deals with Tropoja at § 6-9, set out above at p 4).
16. We have to regard the CIPU report as a very much more balanced assessment of the present situation than Mr Robertson’s letter. While blood-feuds clearly still represent a serious problem in Albania, there is clear evidence that the authorities, and others, are taking effective steps to deal with it, by reconciliation where possible, and by armed suppression where necessary. In the light of the CIPU report, we do not consider the adjudicator justified in his uncritical acceptance of Mr Robertson’s letter. We should consider him entitled to take the view (see his § 23, where as he says he is “briefly dealing with the appellant’s human rights”) that having to live indefinitely in hiding might [make the claimant’s return] amount to “inhuman or degrading treatment”. Our view is that this sort of existence would not be necessary: even if a measure of discretion were required when the claimant first went back (as to where he went, and how he drew attention to himself), over the long term effective protection, in terms of Horvath [2000] Imm AR 552 (HL), would be available for him if he chose to seek it.

Appeal

John Freeman (chairman)