Tribunal decisions

The decision

APPEAL No. HX56280-2001
FD (Suffiency of Protection – Police Officer) Albania CG [2002] UKIAT 05778

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 14 November 2002
Date Determination notified:

17/12/2002..

Before:

Mr. P. R. Moulden (Chairman)
Mrs S. I Hewitt
Mr D. R. Bremmer

Between

THE SECRETARY OF STATE FOR
THE HOME DEPARTMENT
Appellant
and

FERIT DANAJ
Respondent

DETERMINATION AND REASONS

1. The Appellant is the Secretary of State. The Respondent is a citizen of Albania. The Appellant has been granted leave to appeal the determination of an Adjudicator (Miss D. A. Thomas) allowing the Respondent's appeal against the Appellant's decision to give directions for his removal from the United Kingdom and to refuse asylum.

2. Miss G. Walker, a Home Office Presenting Officer, represented the Appellant. Mr H. Davis of Counsel, instructed by Sultan Lloyd, Solicitors appeared for the Respondent.

3. The Respondent arrived in the United Kingdom on 14 February 2001 and claimed asylum the same day. His wife and two daughters are his dependants for the purposes of this appeal. The Appellant's decision was taken on 24 April 2001. The Adjudicator heard the appeal on 19 April 2002 and leave to appeal was granted on 19 September 2002.

4. The Adjudicator found that the Respondent was a credible witness. She believed his account of events. He was a senior police officer in Albania in charge of the "Ready Group for Rapid Intervention". In September 1998 he, and other police officers, attempted to stop a car. Criminals shot at them and a policeman was killed. Later the car was stopped and the occupants arrested. They were smuggling drugs and guns. During the trial process they were released on bail. They harassed and threatened the Respondent. In August 2000 the Respondent's unit stopped a lorry containing cigarettes. The Respondent was able to name the criminals. The same criminals were involved in both events. Subsequently, masked men shot at the Respondent who was injured and taken to hospital. On his release the threats intensified. Fellow police colleagues left their jobs for fear of those who were making the threats. The group tried to get into the Respondent's home and also went to his daughter’s school. He received a letter threatening his life and those of members of his family. He fled Albania and later discovered that the criminals had killed his cousin, who had been living in his home, mistaking him for the Respondent. The Respondent said that between 1990 and 2000 criminal gangs had killed approximately 200 members of the police force in Albania. He did not believe that he would be safe in any part of Albania. The criminals had contacts all over the country.

5. The Adjudicator concluded that the Respondent did not have a well-founded fear of persecution for a Convention reasons. It is clear from paragraph 25 of the determination that the reason for this was that there was no Convention reason. Police officers were not members of a particular social group.

6. The Adjudicator went on to find that the Respondent had established that were he to be returned to Albania he would be subjected to criminal attacks and face ill-treatment which would infringe his Article 3 human rights.

7. Both representatives agreed that these conclusions would be unimpeachable were it not for what the Adjudicator said in paragraph 26 of the determination. This reads, "In light of the objective evidence and applying the test in Horvath, I am satisfied that there is sufficiency of protection in Albania available to the Appellant. I am therefore not satisfied that the Appellant's fear is well founded.

8. Miss Walker submitted the Court of Appeal judgment in Dhima [2002] EWHC 80 (Admin). Mr Davies concedes and we find that on this authority the Horvath sufficiency of protection principles apply equally to Refugee Convention and human rights claims. If there is a sufficiency of protection for the Respondent in Albania then his Refugee Convention and human rights claims must both fail. If there is no sufficiency of protection then the human rights claim can succeed. In paragraph 28 of the determination the Adjudicator found that internal flight was not an option available to the Respondent. He would not be safe in any part of the country. The grounds of appeal argue that this is inconsistent with the sufficiency of protection conclusion in paragraph 26.

9. Both representatives agreed that we were in as good a position as the Adjudicator to resolve the question of whether there was a sufficiency of protection for the Respondent in Albania. It was not necessary to remit to the same or another Adjudicator to determine this. It was not necessary to call further evidence from the Respondent. The issue could be determined on the Adjudicator's findings of fact and the country information. Miss Walker relied on exactly the same country information is that put before the Adjudicator by the Appellant, namely the Albania Country Assessment of April 2002.

10. Miss Walker pointed out that the Adjudicator correctly set out the burden and standard proof in paragraphs 9 and 10 of the determination. In paragraph 7 she set out the documents before her. It was clear that she had taken these into account in reaching her conclusion. Miss Walker submitted that the Adjudicator correctly applied the Horvath test and that paragraph 26 contained a sound conclusion that there was a sufficiency of protection for the Respondent. She referred us to a number of passages in the Country Assessment between paragraphs 4.23 and 4.31, 4.81 and 4.19 and 5.104 and 5.108, on the strength of which she submitted that the Adjudicator was entitled to reach the paragraph 26 conclusion.

11. In reaching our conclusion as to sufficiency of protection we must take into account both the country information and the Respondent's evidence, particularly as the Adjudicator found him to be a credible witness, appearing to accept not only his factual account but also his opinions. As a senior police officer the Respondent was in a good position to judge that the criminals he feared would have contacts and be in a position to track him down and cause him harm wherever he went in Albania. He had approached a superior officer in an effort to obtain protection when he received threats, but without success. He said that criminal gangs had killed approximately 200 members of the police between 1990 and 2000, which we find to be consistent with the country information. His evidence that the gang members killed his cousin, mistaking him for the Respondent, supports the view that the criminals consider that they can act with impunity.

12. The country information shows that despite strenuous efforts to improve the situation, which are beginning to succeed, the police are largely untrained, ill paid and often unreliable. There is a great deal of unprofessional behaviour and corruption, which is widespread throughout public institutions in Albania. Large numbers of police officers have been dismissed for involvement in illegal activities. The Council of Europe is concerned that complaints of police abuse have not always adequately investigated and perpetrators often go unpunished. There are similar problems with the judiciary. It is apparent that, although there has been a crackdown and some reduction in numbers, there are still armed gangs at large in Albania. Corrupt policemen and criminals are still working together. Taking all this country information with the Respondent's own evidence we can find no support for the Adjudicator’s conclusion that the Respondent would obtain a sufficiency of protection in Albania. Indeed, we reach the opposite conclusion. It is difficult to see how the Adjudicator could have concluded, in paragraph 26, that there was a sufficiency of protection, whilst going on to find, in paragraph 28, that he would not be safe in another part of Albania.

13. In circumstances where the Respondent would not be able to obtain a sufficiency of protection there is no impediment to the Adjudicator’s conclusion, with which we agree, that he is at risk of infringement of his Article 3 human rights if he returned to Albania.

14. For these reasons we dismiss the Secretary of State's appeal.

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