SK (prostitution) Albania [2003] UKIAT 00023 (07 July 2003) [2003] UKIAT 00023

UKIAT
SK (prostitution) Albania [2003] UKIAT 00023 (07 July 2003)
[2003] UKIAT 00023 · 1971-10-13
[1]SK (prostitution) Albania [2003] UKIAT 00023 IMMIGRATION APPEAL TRIBUNAL Date of hearing: 12 June 2003 Date Determination notified: 07/07/2003 Before His Honour Judge Huskinson (Chairman) Mrs A J F Cross De Chavannes Between SK APPELLANT and Secretary of State for the Home Department RESPONDENT For the Appellant: Ms J Nightingale (Counsel) For the Respondent: Mr G Phillips (Home Office Presenting Officer) DETERMINATION AND REASONS The Appellant is a citizen of Albania born on 13 October 1971. She appeals to the Tribunal, with leave, from the Determination of Mr M Weisman OBE, Adjudicator, promulgated on 21 November 2002 whereby he dismissed the Appellant's appeal on asylum grounds and human rights grounds from the Respondent's decision to refuse her asylum and to issue directions for her removal to Albania.[2]It is immediately appropriate to notice that there was no challenge to the credibility of the Appellant's account of events and that the task for the Adjudicator was to decide whether the account as presented to him justified the Appellant's claim for asylum or her claim under the ECHR (see paragraph 8 of the Determination).[3]It is also not necessary to set out at any length the details of the Appellant's account because the Adjudicator has done this in an admirably full and helpful way in the Determination. The position very much by way of summary is as follows. The Appellant comes from a very poor family in the north eastern part of Albania. Her family made an arrangement whereby, in effect, they sold her for money to a man called Arton, ostensibly for marriage but in reality so that he could sell her on for prostitution, probably in Italy. Arton and the Appellant took the first steps towards marriage but they never were legally married. She soon discovered he was extremely violent to her. Soon thereafter she discovered that, against her will, Arton wished to take her to Italy. She was informed, and believed, that Arton had removed a previous "wife" into Italy and used her as a prostitute there and may have sold her there. The Appellant was convinced that Arton had married her in order to sell her. In due course the Appellant's maternal uncle visited her and saw her situation and arranged for her to leave Arton. There was no question of the Appellant looking to her immediate family for help because it was they who had sold her to Arton in the first place. She claims (and this is a central point in the case to which we return below) that there was no point in complaining to the police because they are very corrupt and would not have been of any assistance.[4]She arrived in the United Kingdom clandestinely on 17 December 2001 and claimed asylum on 19 December. Soon thereafter she met a Mr Mehdi Xhavigi who comes from Yugoslavia and has refugee status in the United Kingdom. He and the Appellant speak the same language and they soon married. They have a daughter born on 27 August 2002. Mr Xhavigi says he has been in the United Kingdom since April 1998 and that his home is now here. The Appellant is expecting another child in about October of this year.[5]The Adjudicator reached his conclusions in paragraph 14 of the Determination which is in the following terms:
"I have every sympathy as a result with the Appellant. What, however, seems to be the stumbling block, is that the Appellant has decided off her own bat not to go and consult the police or to attempt to find an agency that could help her with her problem. I note what she says about her parents attitude, but it seems to me that she has merely feared that she was not going to get any help. In the light of what does appear to be a genuine improvement in the policing and social welfare situation, I would have thought it appropriate for the Appellant to try these sources first. If they had not been of any help, then it may well be that then would reinforce her claim to asylum. I have every sympathy with her in relation to her new marriage and to her being the mother of a young child. I am very concerned about breaches of Articles 3 and 8. However, in all the circumstances, in the light of the evidence, I am not satisfied applying the appropriate standard of proof, that there would be a breach of 3. As far as 8 is concerned I do think that she can return to Albania and then make an application, which, in all probability will be sympathetically considered by the authorities in the United Kingdom. I do not feel that she can jump the queue by virtue of making the application from here. For these reasons I feel that she has only just failed to make out her case."
[6]On behalf of the Appellant Ms Nightingale submits: i) The Adjudicator appears to have thought that it was almost (if not absolutely) a prerequisite that the Appellant should first seek police protection in Albania before being able to argue that she was entitled to succeed in an asylum application or Article 3 claim in the United Kingdom. She argues that the Adjudicator appears to have taken this view without examining the reasonableness or otherwise of seeking police protection and without examining the question of whether an appeal for police protection would in fact help and bring about any worthwhile protection. ii) Ms Nightingale further submits that the Adjudicator did not sufficiently take into account the background evidence on Albania and that, if he had done so, he would have come to the conclusion that there was indeed inadequate state protection for the Appellant and that it would have been unreasonable to expect her to have sought such state protection from the Albanian Police Force. iii) She submits therefore that the Appellant has a well-founded fear of persecution by a non-state actor in circumstances where there is an insufficiency of state protection. iv) She submits that this persecution is for a Convention reason, namely because the Appellant is a young woman from the north eastern part of Albania. v) She submits that in any event the Appellant can succeed under Article 3 of the ECHR. vi) She further submits that the Adjudicator gave inadequate attention to the Article 8 case and that the Appellant's case is truly exceptional within the principles of Mahmood [2002] Imm AR 229 and that it would be disproportionate for her to be sent back to Albania and to make an application from there for entry clearance to allow her to join her husband in the United Kingdom.[7]The Tribunal is of the view that the learned Adjudicator did indeed place too much weight on the question of whether or not the Appellant had as a matter of fact sought state protection in Albania and gave insufficient attention to the question of whether it was reasonable to expect the Appellant to do so and the related question of whether, had she done so, sufficient protection would have been available.[8]Having regard to the Appellant's evidence in paragraph 8 of her statement and questions 30, 38 and 42 of her interview (see respectively pages 23-24 and pages 34-39 of the bundle) the Tribunal has no hesitation in accepting that, viewed from the Appellant's personal point of view, she acted entirely reasonably in concluding that the police would not help her. However, it is necessary also to measure this approach against the background material and form an objective view as to whether or not, supposing that the Appellant were to be returned to Albania, there exists a sufficiency of state protection for her.[9]Before examining this question the Tribunal is satisfied that Arton is , as was described in argument, a criminal thug who will be much displeased at having been deprived of his investment (namely the Appellant) for which he paid a substantial sum to the Appellant's family. There is plainly a real risk (indeed more than a real risk) that if the Appellant is returned to Albania Arton will pursue her and will subject her to treatment sufficiently severe to constitute persecution or Article 3 infringing treatment if he catches her (namely violence and/or sale into prostitution). The question therefore is whether the Albanian police or other state protection services can provide sufficient protection against Arton.[10]Ms Nightingale took us to various passages in the CIPU Report of April 2003 on Albania which make clear that people trafficking is a major problem and that there are grave problems with the sufficiency of the state's actions against such trafficking. In particular we refer to the following passages:
"There are many cases in which criminal groups, comprised of Albanians and foreign criminals, send Albanian girls to Italy or Greece". (paragraph 6.37). "
The 2002 US State Department Report on Human Trafficking around the world promoted Albania from a 'tier 3' country to a 'tier 2' country. According to the US State Department, the Government of Albania does not yet fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so." (paragraph 6.38). "The absence of a witness protection programme also impeded the government's ability to build strong cases against traffickers, although co-operation from the international community led to the relocation and protection of one witness outside of Albania during the year. Victims often did not identify themselves as trafficked persons and were unwilling to testify due to fear of retribution from traffickers and distrust of the police. Co-operation between the police and prosecutors remained weak." (paragraph 6.38). "However, police corruption hinders anti-trafficking efforts…. Ten per cent of foreign victims trafficked throughout Albania reported that police were directly involved. Few police or government officials are prosecuted." (paragraph 6.40) "Violence against women and spousal abuse remained serious problems. In the country's traditionally male dominated society, cultural acceptance and lax police response resulted in most abuse going unreported". (paragraph 6.49) "Many men, especially those from the north eastern part of the country, still follow the traditional code known as the 'kanun', in which women are considered and treated as chattel. Under the kanun, a woman's duty is to serve her husband, and to be subordinate to him in all matters. The kanun has contributed significantly to attitudes in the region espousing the subordination of women. The kanun "law" which is not recognised by the Albanian Government, also states that it is acceptable to kidnap young women for brides. This practice continues in some areas of the north east." (paragraph 6.50) "Albania is a source and transit country primarily for women and girls trafficked for the purposes of sexual exploitation to Italy and Greece and on to other EU countries. Although the number of Albanians subjected to trafficking to other countries decreased, the country remained a significant point of origin. Most trafficked women and young girls were transported to Italy, Greece…" (paragraph 6.94) "By the end of 2002, the Ministry of Public Order had fully staffed the Anti-trafficking Unit. In August a major anti-trafficking operation effectively closed down clandestine speedboat traffic to Italy. Nevertheless, the Ministry of Public Order failed to follow up on high-profile trafficking and corruption investigations. Local police often tipped off traffickers when raids were scheduled. On one occasion, a police supervisor checking on his men found them helping traffickers with their boats". (paragraph 6.101) "The police often were involved directly or indirectly in trafficking… lawyers and judges may also be manipulated and bribed, permitting traffickers to buy their way out of punishment if arrested". (paragraph 6.102) "In some cases, women are being returned to Albania to family members who trafficked them in the first place, or to the very same situation from which they were trafficked. This often simply leads to the re-trafficking of these women." (paragraph 6.106)[11]Ms Nightingale having referred the Tribunal to the foregoing passages, Mr Phillips sought to argue that sufficient comfort was to be found in paragraphs 6.114 and 6.116 of the CIPU Report under the heading of "Human Rights – Other Issues" and under the sub-heading of "Organised Crime and Corruption". He referred to the following:
"The Albanian Government had fulfilled all the recommendations of the international community included in the anti-corruption plan by September 2000. Albania had taken all measures to increase the security in all parts of the country, has recognised the judicial system and the police, and is fighting against organised crime and corruption." (paragraph 6.114) "
A new internal control service has the stated purposes of preventing, detecting and documenting the criminal activity of members of the state police and other divisions within the ministry. Employees of the Internal Control Service, which is considered a separate police division, enjoy the same status as members of the judicial police." (paragraph 6.116) Mr Phillips also referred to paragraph 6.38 already cited above.[12]The Tribunal has no hesitation in accepting Ms Nightingale's argument to the effect that the foregoing background objective material, of recent date, indicates that there would not be a sufficiency of protection for the Appellant in Albania. The passages cited by Ms Nightingale are specifically dealing with people trafficking. The Tribunal finds these of more relevance and weight on the question of the Appellant's position (which involves a fear of people trafficking) rather than the more general text relied upon by Mr Phillips. The Tribunal finds of particular significance the passages in paragraph 6.50 regarding the "kanun". It may also be noted that paragraph 6.38, which is one of the paragraphs relied upon by Mr Phillips, indicates that while there may be some improvement the government of Albania "does not yet fully comply with the minimum standards for the elimination of trafficking." It thus can be said that the present situation is sub-minimum.[14]So far as concerns the question of a Convention reason, Mr Phillips did not seek to argue against Ms Nightingale's formulation, namely that the persecution which the Appellant fears is by reason of her membership of a social group, namely women from the north east of Albania. The Tribunal accepts Ms Nightingale's arguments on this and notes once again the objective background material in paragraph 6.50 of the CIPU Report regarding the north eastern part of the country.[15]So far as concerns internal flight Mr Phillips refers to paragraph 6.43 of the CIPU Report indicating there is freedom of movement and 6.51 which refers to a limited shelter for women in Tirana. However, the Tribunal accepts Ms Nightingale's argument upon this point namely that internal flight is not in any event available because Albania is a small country and on the particular facts of the present case there is no reason to believe there is any safe place in it for the Appellant, especially bearing in mind the inadequacy of state protection as described above. Also, it would in any event (and even if some safe place could be found) be unduly harsh to expect this Appellant with her young children to go back to a country in which she had suffered in such a serious way and where she would always have to seek to avoid not only Arton but also her family. It follows from the foregoing that the Tribunal concludes there is (at lowest) a real risk that on return the Appellant would be subjected to persecution for a Convention reason and would face treatment which would infringe her Article 3 rights. In the circumstances it is therefore not necessary to dwell upon the Article 8 claim. However, the Tribunal also allows her appeal under Article 8. The Tribunal considers that this present case is truly an exceptional case. It was recognised in Mahmood [2001] Imm AR229 that it would only be in exceptional cases that the requirement to seek entry clearance from abroad would be waived. The Tribunal considers that this is such a case. The Appellant has a child born in August 2002 and is expecting another child in about four months time. Bearing in mind these facts and the appalling treatment she has had in Albania and the fact that if she did return to Albania she could not go near her family (because it was her family that sold her in the first place) the Tribunal considers it would be disproportionate to require the Appellant to leave the country and seek entry clearance from abroad.[16]In the result therefore the Tribunal allows the Appellant's appeal under the Refugee Convention and under the ECHR Articles 3 and 8. His Honour Judge Huskinson Vice President

Cited in 3 later judgments