HARI DHIMA v IMMIGRATION APPEAL TRIBUNAL [2002] EWHC 80 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

[2002] EWHC 80 (Admin)

Case No Case No: CO/2392/2001

Venue Royal Courts of Justice, Strand,, London, WC2A 2LL

Between

HARI DHIMAClaimant

IMMIGRATION APPEAL TRIBUNALDefendant

Before

Lord Justice Auld

Mr Justice Ouseley

Andrew Nicol QC & Mark Henderson (instructed by Immigration Advisory Service Solicitors for the Claimant)

Miss J Anderson (instructed by Treasury Solicitor for the Interested Party)

Date 6 February 2002

Lord Justice Auld:

This

[1]is an application by Hari Dhima, an Albanian national, for judicial review of the decision of the Immigration Appeal Tribunal of 14 th May 2001 refusing him leave to appeal against the determination of an adjudicator on 19 th March 2001 upholding the Secretary of State’s rejection on 4 th January 2001 of his claim that his removal would breach

Article 3 of the European Convention

of Human Rights.

[2]The circumstances giving rise to the application are as follows. In September 1999 Mr. Dhima was arrested in this country, having entered clandestinely. He claimed asylum for two associated reasons. The first was that he would be at risk of persecution from communist sympathisers if he returned to Albania, because of his previous active involvement with the Democratic Party in that country. The second was that he was involved in a blood feud in Albania with a family called the Lushaku family, who had made three attempts to murder him. He maintained that the Albanian police had shown no interest in investigating the matter or in protecting him. In March 2000 the Secretary of State rejected his claim. The adjudicator, in a determination of 7 th September 2000, accepted the truth of the first, but not the second part of his claim and dismissed his appeal.

[3]Mr. Dhima then, relying on essentially the same facts, applied to the Secretary of State for exceptional leave to remain on the basis that his removal would be contrary to his human rights under the European Convention of Human Rights. By a decision letter of 4 th January 2001 the Secretary of State refused the application. He appealed against that decision to an adjudicator, who dismissed his appeal. On 14 th May 2001 the Immigration Appeal Tribunal refused leave to appeal. He then sought and was granted permission to make this application for judicial review of the Tribunal’s decision. The facts and the issues

[4]There are two issues in the application. The first is whether the adjudicator wrongly applied to this human rights application the test of sufficiency of state protection as expounded by the House of Lords in the asylum case of Horvath v. SSHD

[2001] AC 489

. The second is whether the adjudicator wrongly concluded that the claimant had available to him in any event an alternative of internal flight.

[5]Mr. Dhima’s complaint to the Secretary of State was that his enforced return to Albania would breach his human rights under Articles 2, 3 and 5, concerned respectively with the right to life, prohibition of torture and the right to liberty and security.

[6]The Secretary of State, in his decision letter of 4 th January 2001, dealt with the application only under Article 3, prohibition of torture, noting that responsibility of the United Kingdom under Articles 2 and 5 only arose where the treatment was alleged to be likely to occur in this country. He took account of the adverse finding of the adjudicator in the asylum appeal in dismissing the second part of the claim, expressed the view that there was a lower standard of proof in such appeals than those based on human rights grounds and stated that this claim did not satisfy the more stringent test for the latter.

[7]Mr. Dhima’s appeal to an adjudicator was under the newly brought into force section 65(1) of the Immigration and Asylum Act 1999. The adjudicator considered the two factual bases of the claim afresh and, unlike the adjudicator in the asylum appeal, accepted his evidence about the blood feud and threats of murder leading him to leave Albania for this country. However, he found that Mr. Dhima had not met the Article 3 test of showing that there were substantial grounds for believing there would be a real risk that he would be subject to torture, inhuman or degrading treatment by members of the Lushaku family if returned to Albania.

[8]He said, at paragraph 27 of his determination and reasons:

“… it is clear that the danger which the Appellant says that he would fear on return has nothing to do with politics. It is in fact no more and no less than a traditional Balkan blood feud…. This is the traditional cycle of tit for tat violence which has stained the Balkans for generations without number.”

And, at paragraph 29, he said he was satisfied that, though the Lushaku family might no longer be actively searching for Mr. Dhima, there was a real risk that if they encountered him by chance they would seek to settle old scores by killing him. In the light of that finding, he moved on to consider whether Mr. Dhima could safeguard himself against that risk, either by seeking the protection of the Albanian authorities or by moving to some other part of Albania.

[9]As to protection by the Albanian authorities, he took account of the ruling of the European Court of Human Rights in HLR v. France 26 EHRR 29 , at paragraph 40:

“Owing to the absolute character of the right guaranteed, the Court does not rule out the possibility that Article 3 of the Convention may also apply where the danger emanates from persons or groups of person who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection.”

[10]He took as a guide to the assessment of the risk the only background material in evidence before him, the Home Office Country Information and Policy Unit Assessment of Albania issued in April 2000, which he treated as “a reliable and reasonably impartial guide” to the then general situation in Albania. That assessment gave a pretty unimpressive account of its police, certainly up to about 1998, but indicated a gradual and continuing improvement overall in the national coverage and quality of policing and a significant reduction in 1999/2000 in crimes against the person. Nevertheless, it recorded:

“Serious problems in the area of policing remain. The police are affected by, and are sometimes a part of, the country’s endemic corruption. ”

[11]The adjudicator referred to unsupported oral evidence of Mr. Dhima suggesting that the Lushaku family enjoyed a measure of immunity not given to the Albanian population generally, but rejected it in the following terms at paragraphs 34 and 35 of his determination and reasons:

“34. … It is well established that corroboration is not required in relation to any asylum claim, and I am prepared to assume that the same applies to human rights appeals. … 35. However, I cannot regard a bare and rather vague assertion of this nature as constituting adequate evidence, even applying the lower standard which is to be adopted in relation to an asylum appeal. I therefore reject the Appellant’s evidence that the Lushaku family enjoy some form of special immunity which would not apply if the Appellant were being threatened by another ordinary member of Albanian society. 36. In light of the limited background material which is before me, and applying the same test when assessing availability of protection from the Albanian Authorities as that which would be applied when assessing ‘sufficiency of protection’ in an asylum appeal involving claimed persecution by non-state agents on the basis of the test laid down by the House of Lords in Horvath v. Secretary of State for the Home Department [2000] Imm AR 552 , the Appellant has failed to show that he would not in reality be able to look to the Albanian Authorities, and in particular to the police, for proper protection against the Lushaku family if he were to return to Albania. For that reason alone, I am satisfied that his human rights appeal must be dismissed.”

[12]As to the second and alternative issue of the availability of an internal flight alternative, the adjudicator considered it as applicable to human rights claims as to asylum claims, the latter being the context in which the concept had been developed. He said, at paragraph 37 of his determination and reasons, that even if he had found in Mr. Dhima’s favour on the first point he would have found that there was no reason why he should not move to some other part of Albania where he could live safely. He was a young, able-bodied man with no family connections for whom it would not be unreasonable or unduly harsh to relocate to some other part of Albania if he was unwilling to return to his home area.

[13]Mr. Dhima, in an application to the Tribunal of his own composition, sought permission to challenge both of the adjudicator’s findings. As to the first, the sufficiency of state protection, he maintained that it was wrong, given the adjudicator’s acceptance of his evidence of the attempts to kill him and the absolute nature of the protection from such conduct provided by Article 3. As to the second, the availability of an internal flight alternative, he said that that too was wrong, citing an alleged attack on his parents in November 2000 when they had moved to another area to escape harassment.

[14]The Tribunal, in its determination of 14 th May 2000 refusing Mr. Dhima’s application, expressed the view that the adjudicator’s conclusions were clearly open to him on the evidence and that they showed no error of law or in approach to the evidence. It added that there was no further evidence before the Tribunal and no obvious reason to allow any that might be available.

[15]Notwithstanding the way in which Mr. Dhima formulated his application to the Tribunal, the two main issues in this application are as I have mentioned: first whether the adjudicator was wrong in applying the Horvath test of sufficiency of protection; and second, whether his alternative conclusion as to the availability of internal flight was justified in the light of the evidence. The applicability of the Horvath test to human rights claims

[16]Horvath was an asylum case in which the House of Lords concluded that the applicant’s well-founded fear of violence by non-state agents did not amount to persecution within the Geneva Convention because he had not shown that the state was unwilling or unable to protect him from persecution by those non-state agents. The ratio of their Lordships’ decision, which was unanimous, is not entirely clear, but, in my view, the differences are more a matter of semantics than substance. Lords Hope, Clyde and Lloyd gave the major speeches in favour of dismissing the asylum seeker's appeal; Lord Browne-Wilkinson agreed with the reasoning of Lords Hope and Clyde, and Lord Hobhouse agreed with that of Lord Hope. The reasoning of Lords Hope, Clyde, Browne-Wilkinson and Hobhouse, put at its broadest, was that when the conduct claimed to give rise to a well-founded fear of persecution emanates from non-state agents, the question whether it amounts to “persecution” for asylum purposes, depends, not only the risk and nature of the conduct, but also on the sufficiency of state protection against it. Lord Lloyd considered that the question whether there is a well-founded fear of persecution is separate from the question of insufficiency of state protection from it. However, he agreed that, though the asylum seeker had satisfied the "fear" test, he had not satisfied the "protection" test. Whatever the correct analysis, all their Lordships were of the view that sufficiency of protection meant a system of criminal law rendering violence punishable and a reasonable willingness and ability on the part of the authorities to enforce it.

[17]Sufficiency of protection, so defined, means something less than a guarantee of safety against the risk of violence, since the protection provided by a receiving state under the Geneva Convention is that of a surrogate or substitute for the claimant’s home state, applying the same standards of protection that it provides for its own nationals. Lord Hope, in articulating this principle of surrogacy, observed, at 500f-h, that the primary duty to provide protection rests with the home state, which has a “duty to establish and to operate a system of protection against the persecution of its own nationals”. However, he noted, at 500g-h, that, just as the state in which refuge is sought cannot achieve complete protection against isolated and random attacks, so also complete protection cannot be expected of the home state:

“The standard to be applied is therefore not that which would eliminate 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 nationals. ”

[18]As I have noted, Lord Browne-Wilkinson agreed with the reasoning of Lords Hope and Clyde, whereas Lord Hobhouse agreed only with that of Lord Hope. If and to the extent that Lords Hope and Clyde differ, it seems to me to be largely a matter of emphasis. For both of them, in non-state agents cases the surrogacy principle underlying state protection inextricably linked the two issues of conduct feared and sufficiency of state protection against it in determining whether there is persecution; see per Lord Hope at 497E-498A and 499G-H; and per Lord Clyde at 513G-514B, 514F-H and 516E. And for both, the practical standard indicated in the above passage of Lord Hope is part of the exercise of evaluating the risk of persecution.

[19]Mr. Andrew Nicol, QC, on behalf of Mr. Dhima, challenged the propriety of the adjudicator’s application of the Horvath test to human rights cases. He raised the issue for the first time on this appeal; it was not put to the adjudicator or to the Immigration Appeal Tribunal. In summary, he said that, whilst it may be appropriate under the asylum test to take into account sufficiency of state protection in non-state agent cases when evaluating the risk of persecution, sufficiency of state protection formed no part of the test of evaluating the risk of torture under Article 3. Before going any further with his argument, I should set out the respective criteria for asylum claims and those based on Article 3.

[20]The asylum test, derived from the definition of a refugee in Article 1(A) of the 1951 Geneva Convention as amended by the 1967 Protocol Relating to the Status of Refugees, is whether a claimant has:

“… a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion … and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …”

The meaning of “a well-founded fear” of such persecution is partly subjective and partly objective, and, in its objective sense means “a real and substantial risk”; see R v. SSHD, ex p. Sivakumaran

[1988] AC 958

, per Lords Templeman and Lord Goff of Chieveley, at 996 and 1000 respectively.

[21]The human rights test, as consistently stated by the European Court since Soering v. UK

(1989) 11 EHRR 439

,is:

“Are there substantial grounds for believing that the person’s expulsion will expose him to a real risk of suffering torture and/or inhuman or degrading treatment?”

The words “real risk” in that formulation mean much the same as the term “real and substantial risk” in the asylum test, but here the test is not expressly qualified, as in the latter, by any consideration of state protection.

[22]Mr Nicol acknowledged the relevance in non-state agency cases of state protection to Article 3 claims, but maintained that sufficiency of protection in the Horvath sense is not enough. He said that, because of the fundamental and absolute nature of the right under the European Convention, the only protection capable of meeting it is one that removes a real risk of its breach. He did not go so far as to argue that the protection must be such as to guarantee the safety of a claimant, conceding that the protection required to defeat a claim is against the reality of risk not against all possibility of it. Here, it seems to me, his description of the Article 3 test comes very close to the Horvath test.

[23]However, Mr. Nicol maintained, on his interpretation of the ratio in Horvath, that there are essential differences between the two tests. First, he said that, given the terminology and structure of the asylum test, the central issue for the House in Horvath was a choice between two separate matters - real risk and sufficiency of protection. He said that the House, in its reliance on the latter, drew heavily on the surrogacy principle which does not apply to the international protection of human rights, and went beyond the evaluation of risk. Second, he said that the protection given by Article 3 is absolute and that the only matter for determination is the reality of the risk. State protection only comes into play if and to the extent that it removes that reality.

[24]Mr Nicol sought support for his analysis from the European Court’s reasoning in Ahmed v. Austria 24 EHRR 278 , at paragraphs 39-41 of its judgment, on the issue of the effect and application of Article 3 in an expulsion case:

“39. … the expulsion of an alien by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 … in the receiving country … 40. The Court further reiterates that Article 3, which enshrines one of the fundamental values of democratic societies … prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4 …, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 … even in the event of a public emergency threatening the life of the nation …. 41. The above principle is equally valid when issues under Article 3 arise in expulsion cases. Accordingly, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. The protection afforded by Article 3 is thus wider than that provided by Article 33 of the 1951 Convention relating to the Status of Refugees …”

[25]In my view, those observations do not assist Mr. Nicol’s argument, which is essentially about the degree of risk, with or without state protection, to which a claimant is exposed. The Ahmed judgment does not suggest that Article 3 imports a near guarantee of safety in non-state agency cases. It is about something else; it is about the protection, whatever its level, given by Article 3 to persons who, by reason of their own conduct, might be excluded from protection under the Geneva Convention.

[26]Similarly, Mr. Nicol’s reliance on the following passage from Lord Hope’s speech in Horvath , at 499h, identifying the limited nature of the asylum test is misplaced in this context:

“ …the risk, however severe, and the fear, however well founded, do not entitle him to the status of a refugee. The Convention has a more limited objective, the limits of which are identified in the list of Convention reasons and by the principle of surrogacy.”

That passage was not concerned with the evaluation of risk, with or without state protection, but about the limited categories of motivation for persecution in respect of which the Refugee Convention provides protection.

[27]Miss Julie Anderson, on behalf of the Secretary of State, submitted that the adjudicator was correct, when assessing the reality of the risk of violence to Mr. Dhima if he returned to Albania, to take into account the Horvath sufficiency of protection test. She argued that there is no good reason for a different test in the context of human rights applications and that the Strasbourg jurisprudence, in particular, HLR v. France

(1977) 26 EHRR 29

, does not suggest so. On the contrary, she urged that now that adjudicators often have to deal with both asylum and human rights claims in the same proceedings and arising out of the same or similar facts, it would be confusing, as well as absurd, if they were to attempt to apply marginally different tests on the issue of real risk when, whatever the different semantic analyses, the common question is whether there is, as a matter of practicality, a real risk of harm to the claimant if he is returned to his home country.

[28]Miss Anderson submitted, in the alternative, that the Horvath test is sufficiently similar to the Strasbourg test as to come within the margin of appreciation afforded to member states, a margin that the European Court has held, in Banomova v. Secretary of State for the Home Department (Case No. C/2000/3674, 25 th May 2001, at para. 35), is afforded to member states in the discharge of their obligations under the European Convention of Human Rights. Conclusions on the applicability of the Horvath test to human rights claims

[29]I make two preliminary observations. They are important given the fine analysis that this topic has received in Horvath and other authorities and in the submissions in this appeal. First, as Lord Clyde cautioned in Horvath , at 508B-509E, tribunals concerned with the enforcement of obligations derived from international conventions should keep their eyes on the purpose of the Convention they are there to apply. Whilst they must respect the language of the individual provisions they are considering, often such provisions, by reason of their derivation, are not susceptible to fine analysis or over-sophisticated construction. Second, such provisions, particularly in the fraught field of asylum and associated human rights applications, should not be needlessly complicated for applicants, the Secretary of State, and those advising him, or adjudicators. Where it is consistent with the overall purpose of convention obligations and the substance of the provision under consideration, simplicity should be the keyword in the interests of both justice and the efficiency of the process. In my view, it would be an absurdity and an artificial burden for all concerned for the Secretary of State and adjudicators to have to apply, often in consecutive applications in the same proceedings and arising out of the same or similar facts, two barely distinct tests as to what constitutes a real risk of harm. For the reasons I now give, I cannot see that either Convention requires it.

[30]In my view, there is a fallacy in Mr. Nicol’s argument in separating, to the extent he does, the concept of a real risk of harm from Article 3 conduct from the consideration of the availability and sufficiency of state protection to remove it. Although Article 3 has a wider application than Article 1(A) of the Geneva Convention, and is absolute in its terms and effect, it clearly allows for the home state, by providing suitable protection, to remove the real risk at which it is directed. As Mr. Nicol acknowledged, availability of protection is, therefore, relevant to an Article 3 enquiry.

[31]Mr. Nicol’s premise that, in non-state agent asylum cases, the factor of state protection goes beyond the assessment of a real risk of harm, flows, I believe, from a misreading of the ratio in Horvath. As I have said, it is that the level of risk posed by non-state agents depends, not only on their motivation and conduct, but also on the level of protection against it that the state provides. One cannot be considered without the other. It seems to me that that would have been the interpretation of the courts even if Article 1(A) of the Geneva Convention had not expressly referred to state protection. And that this must also be so in human rights claims, where there is no such express reference, was recognised by the European Court of Human Rights in HLR v. France. One of the issues in that case was whether state authorities in a deportation case were capable of affording protection to the applicant. The Court observed, at paragraphs 40 and 43 of its judgment:

“40. Owing to the absolute character of the right guaranteed, the Court does not rule out the possibility that Article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving states are not able to obviate the risk by providing appropriate protection.” “43. The Court is aware, too, of the difficulties the Colombian authorities face in containing the violence [referring to the general situation of violence in Colombia]. The applicant has not shown that they are incapable of affording him appropriate protection.”

I can see no inconsistency between that reasoning and the approach of the House of Lords in Horvath .

[32]In this context I have also found helpful the reasoning of the Immigration Appeal Tribunal in its starred determination in Secretary of State for the Home Department v, Kacaj (Appeal No. CC/23044/2000, 19 th July 2001). The Tribunal, referring to the assessment of risk under Article 3, said at para. 10:

“The link with the Refugee Convention is obvious. Persecution will normally involve the violation of a person’s human rights and a finding that there is a real risk of persecution would be likely to involve a finding that there is a real risk of a breach of the European Convention on Human Rights. … Since the approach under each Convention is whether the risk of future ill-treatment will amount to a breach of an individual’s human rights, a difference of approach would be surprising.”

[33]The broad symmetry of the two tests is also to be found in the extent of state protection that may serve to remove the real risk of harm. The sufficiency test in Horvath falls short of a guarantee of safety from harm, as does the factor of protection in removal of a real risk of harm, as distinct from the possibility of harm, in Article 3 cases. This is illustrated in the reasoning of Lords Hope and Lord Clyde in Horvath , at 500F-H and 510F respectively, that no guarantee of safety can be expected, and in the comment of the Tribunal in Kacaj , at para. 16 (on the European Court’s approach in Osman v. UK

[1999] 1 FLR 193

, at para. 31) that in an Article 3 case “[no] guarantees of safety could conceivably be required”. Moreover, as the Tribunal in Kacaj noted at paras. 20 and 21 of its determination, the House of Lords in Horvath , at 510F-G, drew for its statement of the “sufficiency of protection” test on the reasoning of the Strasbourg Court’s approach to the evaluation of domestic protection in Osman, at para. 116, in relation to an alleged infringement of Article 2.

[34]The symmetry between the two tests may not always be exact, but this should not cause problems in practice. I can do no better than adopt and approve the following discussion of the Tribunal on this aspect in Kacaj, at paras 19 and 21:

“19. We have already identified the desirability of a similar approach under each Convention to the standard of proof. In our view, the same ought to apply to the question whether a real risk of harm has been established. The nature of the harm and the circumstances in which it will arise may produce different results depending on the Convention in issue. Thus, it must amount to persecution and be for a Convention reason if an asylum claim is to succeed. Persecution and breaches of Art. 3 are not necessarily the same, although we doubt whether treatment which did not amount to persecution could none the less cross the Art. 3 threshold. We recognise the possibility that Art. 3 could be violated by actions which did not have a sufficiently systemic character to amount to persecution, although we doubt that this refinement would be likely to be determinative in any but a very small minority of cases. But apart from this and a case where conduct amounting to persecution but not for a Convention reason was established, we find it difficult to envisage a sensible possibility that a breach of art. 3 could be established where an asylum claim failed.” “21. It may be said that it is no consolation to an applicant to know that if he is killed or tortured, the police will take steps to try to bring his murders or assailants to justice. He is concerned with the risk that he may be killed or tortured and, if the authorities cannot provide effective protection to avoid that risk, there will be a breach of the Convention if he is returned. Practical rather than theoretical protection is needed. We see the force of that contention, but in our view it fails to recognise that the existence of a system should carry with it a willingness to do as much as can reasonably be expected to provide that protection. In this way, the reality of the risk is removed. Since the result will be similar, namely persecution or a violation of a human right, it would be wrong to apply a different approach. We do not read Horvath … as deciding that there will be a sufficiency of protection whenever the authorities in the receiving State are doing their best. If this best can be shown to be ineffective, it may be that the applicant will have established that there is an inability to provide the necessary protection. …”

[35]As those observations make clear, what is critical is a combination of a willingness and ability to provide protection to the level that can reasonably be expected to meet and overcome the real risk of harm from non-state agents. What is reasonable protection in any case depends, therefore, on the level of the risk, without that protection, for which it has to provide. Such reasoning, in my view, reflects the ratio in Horvath and not the representation of it in the last, conditional sentence in the following passage from a decision of the New Zealand Refugee Status Appeals Authority (No. 71427/99 [2000] INLR 608) declining to follow it: “… this interpretation of the Refugee Convention is at odds with the fundamental obligation of non-refoulement. Article 33(1) is explicit in prohibiting return in any manner to a country where the life or freedom of the refugee would be threatened for a Convention reason. This obligation cannot be avoided by a process of interpretation which measures the sufficiency of state protection not against the absence of a real risk of persecution, but against the availability of a system for the protection of the citizen and a reasonable willingness by the state to operate that system. … If the net result of a state’s ‘reasonable willingness’ to operate a system for the protection of the citizen is that it is incapable of preventing a real chance of persecution of a particular individual, refugee status cannot be denied that individual.” [my italics]

[36]Accordingly, in my view, the Immigration Appeal Tribunal in Kacaj was correct in equating the Horvath test with that applicable to human rights claims. In my view also, the adjudicator correctly applied the test in this case. As it happens, he expressed his finding in words that fall squarely within Article 3, whether or not garnished by any fine distinction drawn from Horvath: For convenience, I repeat them: “… the Appellant has failed to show that he would not in reality be able to look to the Albanian Authorities, and in particular to the police, for proper protection against Lushaku family if he were to return to Albania. For that reason alone, I am satisfied that his human rights appeal must be dismissed.

[37]If it were necessary to consider the question of margin of appreciation, which I doubt given the imprecision of both formulations of the test and the differing circumstances capable of satisfying them both, I would hold that they are so close to each other as to satisfy it; cf. Kacaj, at para. 19. Internal flight alternative

[38]It was for Mr. Dhima to establish that the alternative flight option was not available because it would not have been reasonable or safe for him to live elsewhere within Albania. As I have indicated, the adjudicator found that he was a young, able-bodied man with no family connections whom it would not be unreasonable or unduly harsh to relocate to some other part of Albania. In so finding, he acknowledged that, were Mr. Dhima to return to his home area, he might be in danger from the Lushaku family should he encounter them there. But he was satisfied on the evidence before him that he could live safely in some other part of the country.

[39]Mr. Nicol submitted on behalf of Mr. Dhima that the adjudicator’s reasoning did not demonstrate why he considered that Mr. Dhima could be safely expelled to a small country like Albania where there had been three organised attempts on his life before he managed to escape. He referred to the Home Office Assessment on Albania to which the adjudicator referred in his determination, indicating that many families in that country were engaged in blood feuds, forcing some 1200 to 1300 males to remain indoors in fear of their lives. Given that state of the evidence, he asked rhetorically, “How could the adjudicator have been satisfied that that Mr. Dhima would come to no harm from the Lushaku family if he were to return to some other part of the country?

[40]Miss Anderson submitted that there was no evidence before the adjudicator, and nothing in his findings, to suggest that the Lushaku family posed more than a localised risk. And she maintained that the adjudicator’s conclusions that he was a young able-bodied man with no family commitments whom he was satisfied it would not be unreasonable or unduly harsh to relocate to a different part of Albanian indicate no misapprehension as to the correct standard of proof or as to its application in the circumstances.

[41]In my view, Miss Anderson’s submissions are well-founded. It is clear from the adjudicator’s reasons that he had well in mind that the burden and standard of proof on this issue and correctly applied it. He gave coherent and proper reasons for his decision and there is nothing in them to indicate any error or law on which the Tribunal should have given permission to appeal.

[42]Accordingly, I am satisfied that Immigration Appeal Tribunal rightly refused Mr Dhima leave to appeal from the adjudicator's determination, and I would, therefore, dismiss his appeal from that refusal. Mr

Justice Ouseley:

[43]I agree.

HARI DHIMA v IMMIGRATION APPEAL TRIBUNAL [2002] EWHC 80 (Admin)

Lord Justice Auld:

This

Justice Ouseley:

Cited in 8 later judgments