PA/04436/2016

• Status of case: Unreported
• Hearing date: 13 Jan 2017
• Promulgation date: 8 Feb 2017
• Publication date: 25 Oct 2021
• Last updated on: 25 Oct 2021

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04436/2016


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 13 January 2017
On 08 February 2017




Before

Miss K ESHUN
A Judge of the Upper Tribunal

Between

F D
(ANONYMITY DIRECTION MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent


Representation:

For the Appellant: Mr S Kerr, Counsel instructed by Karis Solicitors Limited
For the Respondent: Mr S Staunton, Home Office Presenting Officer


DECISION AND REASONS

1. The appellant is a citizen of Albania born on 20 March 2000. He has been granted permission to appeal the determination of First-tier Tribunal Judge Monson who, in a determination promulgated on 26 September 2016, dismissed the appellant's appeal against the refusal of the Secretary of State to recognise him as a refugee on account of being the victim of a blood feud.

2. Permission was granted to the appellant on the basis that the judge erred in his approach to the request by the respondent for an adjournment for approximately two months in order to verify the genuineness of a court decision issued in Albania, purportedly confirming the murder conviction of the appellant's father. In his decision refusing the adjournment request, the judge held that whilst the request was a reasonable one, it only went to a peripheral issue in the case, which was whether there had been an event in the past which might have triggered a blood feud. Even if the court document was authenticated, the Tribunal was not going to be any wiser as to whether there was an active blood feud in consequence of the two murders, for which RD (the appellant's father) had been punished by the Albanian state. The grounds argued that rather than being peripheral, if the veracity of the court document could be verified, this went towards a central issue of the appellant's case, providing proof of the provenance of the blood feud.

3. Mr Kerr relied on these grounds to argue that the judge's decision to refuse the adjournment request was an error of law.

4. Mr Kerr identified a further error which he said was committed by the judge. This was in respect of paragraph 51 of the determination. In that paragraph the judge had relied on the court document as undermining the credibility of the appellant's core claim. The reason being that one of the claims made in the certificates was that the appellant's father was not apprehended by the police following the two murders, but managed to evade arrest with the consequence that he was tried and convicted in absentia. The judge found that this proposition was undermined by the defendant being represented by a defence lawyer. The court document referred to the defendant's current place of residence. The judge found that it was not credible that if the defendant was being tried and convicted in absentia, the court document would not have recorded this.

5. Mr Kerr argued that the appellant was not asked about whether his father was tried in absentia. This was not a matter that was raised with the appellant's Counsel in court. The judge erred in not giving the appellant an opportunity to respond to this point.

6. Mr Kerr raised a third issue which he argued was Robinson obvious and which had not been part of the appellant's grounds of appeal. This was in relation to a report from the British Embassy in Tirana dated 2 March 2016 which was referred to in the refusal letter. The HOPO below sought permission to adduce this report but the appellant's Counsel below said it should not be submitted into evidence. The judge ruled in favour of the appellant's Counsel and excluded the report. Mr Kerr argued that in the circumstances the judge was wrong at paragraph 56 to consider the report by the British Embassy as being entirely congruent with the appellant's own case, namely that his mother and sister are not confined, and never have been, because they are women; and his maternal uncle, ND, was not living in confinement, and never has been. Mr Kerr argued that the judge's consideration of the excluded document went to the heart of the judge's consideration of the appellant's credibility.

7. Mr Staunton relied on the Secretary of State's Rule 24 response and submitted that the judge did not materially err in law in his decision.

8. The appellant's core claim is that he was only 4 or 5 months old when his father was killed. His father was involved in an argument with members of the Peka and Muca families and ended up killing one member of each family. His father was charged with murder and he was convicted of this crime by the court. His father ran away but he was tracked down by the police who shot him and killed him, rather than arrest him. His mother had told him the story. Not satisfied with his father's death, the Peka and Muca families now wanted to kill him. He was threatened that he would be killed at the age of 16 years. This was Kanun law. As the only male member of his family, his life was in immediate danger. He said in oral evidence that he was threatened on two occasions by members of the two families; the first when was 12 years old and the second when was 14 years old. Since then he had feared them.

9. In support of his appeal the appellant submitted three documents. The first document was a decision in open court by the Kukes District Court on 17 June 1998, at the conclusion of a criminal prosecution of RD (his father). RD was found guilty of premeditated murder, intentional homicide and illegal possession of weapons and sentenced to 25 years' imprisonment.

10. The second document was a certificate dated 25 July 2015 purportedly issued in Krume, Has Municipality, by the Mayor of Has and by the village chairman whose name the judge noted was ND (the same surname as the appellant's surname). The document certified that the appellant was born on 20 March 2000 and was the son of RD. The document said the appellant had been forced to leave his family because his family was in a blood feud with the Peka family due to the dispute of the moment, from which the Peka family suffered casualties. As a result his father had been sentenced by a court decision in absentia to 25 years in prison. On 21 August 2000 he was killed in the courtyard of his home as the police special forces tried to arrest him. The judge noted that the document continued to say that "traumatised by the fear of revenge from the Peka family, his son ? was forced to remain locked into the house for a long time but later he left his home". The judge noted that the certificate concluded with the declaration that it was issued "at the request of the interested party".

11. The third document was a certificate dated 3 May 2016 which was purportedly issued by the Golaj Village Elder's Office, Has Municipality. The judge noted that the document was signed and sealed by ND, the same ND who signed the other certificate, and by the mayor of Has. The appellant in evidence said that ND was his paternal uncle. The document certified that following the incident in 1997 when RD killed the son of Rexhep Peka and his nephew, the whole of the family was, according to the Kanun, forced to confine themselves within their house. On 20 August 2000 RD was killed by police special forces. His family, including small children, "remain without support" and "confined within the house". RD was only 5 months old. From that date, until he turned 14, the child according to the Kanun had the right to get out of the house. So during that period he continued to go to school as part of his compulsory education. When he became 14 years old, FD, due to the circumstances and the Kanun, was forced to stay indoors because of the blood feud. As he could not go to school and had become incapable of helping his mother and sister, FD had fled home to travel to the west, arriving in the United Kingdom. From 1997 to this day, the family of FD was confined within their house.

12. The judge's findings are set out at paragraphs 50 to 61 of the determination.

13. I take the first ground of appeal which argued that the judge erred in determining that the issue of the blood feud was peripheral and consequently refused the adjournment by the HOPO below to have the court document verified. I can accept that the judge was wrong to refuse the adjournment request on the basis that verification only went to a peripheral issue, which was whether there had been an event in the past which might have triggered a blood feud. This is because a blood feud by its very nature is triggered by a past event, such as the killing of the members of the Peka and Muca families by the appellant's father if the court document was indeed genuine. As it happens, the judge did accept at paragraph 58 that the appellant was the son of a convicted murderer, RD. The question that arose, which was correctly identified by the judge, was whether RD's conviction for murder gave rise to a credible claim of a blood feud, by which the Peka and Muca families wished to exact their revenge on the appellant by seeking to kill him.

14. The judge found that in one important respect the court document undermined the credibility of the appellant's core claim. One of the claims made in the certificate was that the appellant's father was not apprehended by the police following the two murders, but managed to evade arrest with the consequence that he was tried and convicted in absentia. The judge found that this position was undermined by the defendant RD being represented by a defence lawyer. The court document referred to the defendant's current place of residence. The combination of these two features pointed very strongly to the defendant being in custody and being present at the trial. He found in the circumstances it was not credible that if the defendant was being tried and convicted in absentia, the court document would not have recorded this.

15. This brings into play the second ground raised by Mr Kerr, which was that the issue of the defendant being tried and convicted in absentia would not have been recorded on the court document. Mr Kerr submitted that this issue was not raised with the appellant or his Counsel. I find no error of law in the judge's interpretation of the court document. The judge was not wrong to take the document at its face value and make the findings that he did.

16. The judge said that this in turn cast serious doubt on the next key event in the alleged unfolding of the blood feud, namely the appellant's father being killed by the police when attempting to arrest him at the family home in August 2000. The judge accepted the HOPO's submission that there was no death certificate that showed that the appellant's father was dead, let alone when he died, or the circumstances of his death. He went on to say that if the core claim was true, the event would have been a matter of considerable notoriety and widespread public interest. The appellant's mother has not produced any article from a local or national Albanian newspaper reporting the alleged death of the appellant's father at the hands of the police in August 2000. I find no error of law in these findings as they are reasonable and sustainable.

17. The final argument made by Mr Kerr was that the judge was wrong to consider the report from the British Embassy in Tirana when he had earlier excluded it.

18. I accept that the judge was wrong to consider a document that he had excluded. Nevertheless, I find that the error does not undermine the judge's findings at paragraph 56. The judge found that it was not true that when he became 14 years old, he was forced to stay indoors because of the blood feud. It was not true that he stopped going to school because of the blood feud. His departure from Albania coincided with the end of the academic year, and the appellant did not suggest in his asylum interview that he stopped school prematurely because of the blood feud. The judge noted a further unclear truth in the certificate which was the claim that from 1997 to the present day the family of FD have been confined within their house. Nobody has been or is in confinement, on the appellant's case. It was thus illogical for the appellant to contest the accuracy of what is reported in the refusal letter, namely that no-one in his family is in confinement. I find that the judge's findings are sustainable on the evidence.

19. I found a further discrepancy which was fatal to the appellant's claim. It was recorded at paragraph 15 of the decision that the appellant had said in his Statement of Evidence that the Peka and Muca families had beaten up his paternal uncle's son. However, in his oral evidence, recorded at paragraph 25, it was his father's brother FD (same surname as the appellant, but different first name) who had been beaten up by Behar Peka. Counsel took instructions from the appellant on this matter. The appellant's response was that the term "cousin" is a catchall word which encompasses family or siblings of his father. I did not find the explanation credible. The inconsistent evidence totally undermined the credibility of the appellant's claim. Indeed, there was a further credibility issue. At paragraph 15 it is recorded that his father had approached the Peka and Muca families to find out why, an argument unfolded in which his father shot a member of each family. Whereas at paragraph 25, it is recorded that at a location known as the town of Krume's crossroad, his father had seen the victim in a private bar. He then stopped and fired at him several times with is automatic weapon. The other victim Edmir Muca happened to be at the scene and was shot dead. There was no evidence of an argument between the victim and the appellant's father prior to the shooting. The inconsistency with respect to the shooting of the two men further undermined the credibility of the appellant's claim.

20. I find no error of law in the judge's decision. The judge's decision dismissing the appellant's appeal shall stand.


Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.



Signed Date: 3 February 2017

Miss K Eshun
A Judge of the Upper Tribunal