AKB & Anor v Secretary of State for Home Department [2005] EWCA Civ 1493

Case No C5/05/1739[2005] EWCA Civ 1493
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ASYLUM AND IMMIGRATION TRIBUNAL
Venue Royal Courts of JusticeDate Tuesday, 15 th November 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE WALLER
LORD JUSTICE DYSON
(1) AKB
(2) PB
Applicants/Claimants
-v-
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent/Defendant
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DR SATVINDER JUSS (instructed by Messrs Riaz Khan, Richamore House, 7 Princess Street, Barnsley S70 1PR) appeared on behalf of the Applicants
J U D G M E N T
Between
AKB & AnorAppellantSecretary of State for Home DepartmentRespondent

LORD JUSTICE DYSON:

These

[1]applicants seek permission to appeal against the decision of the Asylum and Immigration Tribunal who, on 3rd June 2005, on a reconsideration following remittal by the IAT, dismissed their appeals on both asylum and human rights grounds against the dismissal of their appeals against the decision of the adjudicator which had been promulgated on 10th January 2003.[2]The applicants are Albanian subjects. They are husband and wife. I will refer to the husband as 'PB' and the wife as 'AKB'. Their claims, which stood or fell together, were based on PB's former links with SHIK or SHIKU and the Democratic Party in Albania. AKB came to the United Kingdom in April 2002 and PB in September of that year. Their fear of return was based on his membership of the Democratic Party and his status as a board member and apparently also a member of the secret services.[3]The adjudicator's findings of fact were accepted and adopted by the AIT. They included the following. After the elections in 1997, when the Communist Party ousted the Democratic Party, PB and AKB were harassed, and on one occasion AKB was seriously ill-treated. Explosives were found outside their door and PB was shot while at work. An explosion damaged their house, but the police would not investigate. At the end of 1997 the family relocated internally. AKB went to her parents' home and PB to the home of his sister-in-law. The police called at AKB's parents' home and ill-treated her father. She joined her husband and they lived at PB's sister-in-law's home for four years without difficulty. In spring 2002 PB noticed strangers in the village. He sent AKB to the United Kingdom, and, as I have said, later that year he joined her in this country after a time spent hiding in the mountains.[4]The only fresh subjective evidence adduced on behalf of the applicants before the tribunal was a facsimile of a document allegedly obtained by PB's sister and sent via a neighbour's fax machine on 19th May 2005. The letter, headlined "Tirana" but with no date, included the following:
"Certificate To certify that Mr PB ... is a member of the Democratic Party of Albania and has taken part in all electoral campaigns organised by this party. After the return to power of members of the former Communist Party, activists of the Democratic Party have become the victims of harassment to the extent of losing their jobs and even politically motivated killings. ... Today he is in England and his return to Albania would be impossible. His life would be in danger as the former Communist Party members are in power."
The tribunal said of that certificate that it added very little to what was otherwise known and was merely a recital of facts presumably provided by PB's sister.[5]Both AKB and PB gave oral evidence before the tribunal. They described how they left their home in Bajram Curr after Mr Haklaj, the ex-chief of a branch of the Democratic Party, came to their flat at the end of December 1997 informing them that their names were on a blacklist for killing. They went into hiding immediately. PB's family helped to maintain them whilst they were in hiding in the mountains. PB did not work, but he did take the first year of a law degree at the University of Tirana 2000 while he was still in hiding.[6]There was a good deal of objective evidence as to the state of affairs in Albania before the tribunal. This included the CIPU Country Report for April 2005, which indicated that the Democratic Party had participated in the national elections in 1997 and 2001. In 2001 it formed part of the Union for Victory Coalition, which jointly won 46 seats. There was reference in that report to difficulties with untrained police misbehaving. But the Albanian Helsinki Committee reported State bodies being increasingly active in reacting to and condemning reports of police violence. There was no reference in the CIPU Country Report to persecution of Democratic members, sympathisers, board members or former SHIK employees. The tribunal noted that there was no criminal offence with which PB could be charged.[7]On behalf of the applicants Miss Spinks relied before the Tribunal on other objective evidence. She conceded that there was nothing specific in the CIPU Country Report to help her. In particular she relied on the 2005 Helsinki Federation Report which referred to "continuing difficulties with police misconduct, judicial corruption, failure to execute court decisions, unjustified delays in court proceedings and pre-trial detention and problems in prison". The tribunal pointed out, however, that PB was not likely to be charged with any offence and, in their judgment, the Helsinki evidence was therefore of little relevance. They also referred to an Amnesty International Report which recorded 35 instances per annum of police torture or ill-treatment of one or more detainees.[8]In their conclusions the tribunal said that there was nothing in the background evidence to support the appellants' account of their subjective fears, either at the time when they came to the United Kingdom or at the time of the appeals. They said that they had approached the appeals on the basis that the appellants' core accounts should be treated as credible up until 1997 but after that date the tribunal did not believe their accounts of their circumstances in hiding. They said:
"32. We do not consider that PB was of particular interest to the Communist Party authorities in 1997 before the 'blacklist' conversation; if they were, then he could have been arrested at work at the SHIKU at any time, or at the Bajram Curr flat, if it was specifically for those who had Democratic Party links and were being harassed or persecuted for them."
They said that there was no evidence that the police were persecuting those who had formerly worked for SHIK. At paragraph 34 they said:
"The appellants' account of their mountain hideout sits ill with their Democratic Party document or with the certificate of a distance learning law degree from the University of Tirana, with the first year completed in 2000. We specifically disbelieve the appellants' account that the course had been started in 1997 (PB's evidence) or completed before 1997 (AKB's evidence). If the authorities wished to trace him in 1999-2000, as he was registered at Tirana University for a law degree on a distance learning basis, it would not have been difficult for them to find his address and come to the mountains to get him."
Finally, at paragraph 35 they said:
"We consider it much more likely that this family are economic migrants joining all of the younger members of their family in moving abroad, especially as PB lost his job after the 1997 election and they had to sell their State flat to support themselves. We note that family members remain in Albania, and since it is upon the family history of Democratic Party support that these appellants principally rely, that reinforces our consideration that the appellants would not be at risk today if they returned to Albania to live, either in Tirana where PB's sister lives, or in the village where PB's brother-in-law now lives, which is 'nearer the town'."
[9]On behalf of the applicants Dr Satvinder Juss submits that there are arguable errors of law in the determination of the AIT. He submits that it is strange, to put it no higher, that the tribunal felt able to accept the core account given by the applicants of their experiences up to 1997 but to reject their account of the period from 1997 until they left Albania. He submits that there is nothing in the objective material to suggest that such a different treatment of their evidence could reasonably be justified. In my judgment there is no substance in this submission. It is not perverse for a tribunal to accept an account of witnesses as true in relation to one period but not true in relation to another. The tribunal gave cogent and rational reasons for rejecting their account that PB was of interest to the Communist authorities during the four-year period from 1998 until 2002. Those reasons were, first, the objective material as to the general state of affairs in Albania during that period and, secondly, the fact that, as the tribunal pointed out, if the Communist authorities had really been interested in PB they would have had no difficulty in finding him. It seems to me therefore that this, as I understood it, primary submission made by Dr Juss fails and would certainly have no reasonable prospect of success on an appeal.[10]He also challenges the way in which the tribunal treated the objective evidence itself. He does not, as I understand it, suggest that the tribunal in any way misunderstood or misrepresented the gist of the CIPU Country Report for April 2005, but he points to other material, in particular the Helsinki Federation Report, which he suggests points strongly in a different direction. The difficulty with that submission is that neither the Helsinki Federation Report nor indeed the Amnesty International Report indicates that these applicants would be peculiarly at risk of police misconduct or ill-treatment. It would seem, according to those reports, that there are problems of police ill-treatment of a general nature, but those could not be sufficient to sustain a claim either on asylum grounds or human rights grounds by these applicants unless it could be shown that there was something peculiar to them and in particular unless it could be shown that the police were targeting their ill-treatment and abusive behaviour towards sympathisers of the Democratic Party. There is no evidence that police misconduct of that kind and of a degree which would arguably attract the protection of either the Geneva Convention or the Human Rights Convention is targeted at people like PB and AKB.[11]In my judgment the grounds which are advanced by Dr Juss do not disclose any error of law on the part of the AIT. They are in substance merely attempts to show that the findings of fact made by the AIT should not have been made. That is not enough for the purposes of an appeal on a point of law, and I would refuse this application.

LORD JUSTICE WALLER: I agree.

ORDER

Application refused.

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