Mishto, R (on the application of) v Immigration Appeal Tribunal,  EWHC 1449 (Admin) (19 May) (Administrative Court 2003)
Neutral Citation Number:  EWHC 1449 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
19th May 2003
B e f o r e :
MR JUSTICE HARRISON
THE QUEEN ON THE APPLICATION OF ELENICA MISHTO
THE IMMIGRATION APPEAL TRIBUNAL
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MISS S HARRISON (instructed by Luqmani Thompson & Partners) appeared on behalf of the CLAIMANT (MISS N AIDOO appeared for the judgment)
MISS J ANDERSON (instructed by The Treasury Solicitor) appeared on behalf of the DEFENDANT
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Monday, 19th May 2003
MR JUSTICE HARRISON: This is an application for judicial review by the claimant, who is an Albanian national, of a decision by the Immigration Appeal Tribunal ("the IAT") promulgated on 9th October 2002, refusing her leave to appeal against a decision of a Special Adjudicator promulgated on 2nd November 2001 when he dismissed her asylum and human rights appeals.
The claimant was born in 1966 in Tirana in Albania. In 1997, she met Mr Koleci, also an Albanian national, and they began a relationship. In December 1997, she and Mr Koleci left Albania and travelled, via Germany and Belgium, to the United Kingdom, where the claimant claimed asylum as a dependant of Mr Koleci as her common law husband.
On 26th May 2000, the claimant made a claim for asylum in her own right on the basis of the fear of violence and abuse from her common law husband and/or his family. According to her, she had been subjected to sustained physical and mental abuse by Mr Koleci in the United Kingdom from the beginning of 1998. In the year 2000, the police had become involved and they had attended her home on three occasions in May, June and July 2000.
On the last occasion, Mr Koleci was charged with assault occasioning actual bodily harm. Thereafter, the claimant was rehoused by Brent Social Services on account of the domestic violence. She also obtained a non-molestation order, with a power of arrest, from the County Court.
In her interview and in her appeal statement, she gave an account of threats that Mr Koleci and his family had made to kill her when she is returned to Albania. She also said that threats had been made to her own family in Albania by Mr Koleci's family because of the action which she had taken against him in the United Kingdom, which had resulted in his wife and children being unable to come to the United Kingdom.
Finally, the claimant had discovered that her father had been murdered in Albania in November 2000 and documents were produced to support that fact.
The claimant's case was that she feared for her life and physical safety if she were returned to Albania, both from her husband, if he was returned, and/or from his family, and she did not believe that she would obtain any or any sufficient protection from the Albanian police, either because they were unwilling and/or unable to intervene effectively to protect women from domestic violence.
On 29th March 2001, the Secretary of State refused her asylum application and certified it under paragraph 9(4)(a) of Schedule 4 of the Immigration and Asylum Act 1999 on the basis that the claim did not show a Convention reason. Her claim to protection under the Human Rights Convention was also rejected.
She appealed against that refusal and her appeal was heard before a Special Adjudicator on 1st October 2001. It is clear from paragraph 10 of the Adjudicator's determination that he decided that he would proceed by deciding as a preliminary issue whether or not there was a sufficiency of State protection in Albania to meet the Horvath criteria for battered women. That was, of course, a reference to the House of Lords case of Horvath v Secretary of State for the Home Department  INLR 239.
He proposed to hear submissions on the objective material relating to that aspect of the matter first. If he were to find that there was not a sufficiency of State protection for those in the claimant's category, he would then determine her claim by hearing evidence as to credibility, in which case the appeal could be allowed if he found her claim credible. He indicated his view that, if there was a sufficiency of State protection in Albania for those in the claimant's category, it would be otiose to hear evidence as to the credibility of her claim, which would no doubt cause her distress when she was cross-examined. Both parties agreed that that was a sensible way to proceed and so that was what the Adjudicator did.
Having considered the objective material and having heard submissions relating to it, the Adjudicator told the parties that it was plain to him that there was a system of protection in Albania for women in the claimant's position and that the system of protection met the Horvath criteria. He said he would give the full reasons in his determination. Those reasons are really contained in paragraphs 14 to 17 of the determination.
Prior to that, in paragraph 3 of his determination, he referred to the case of Horvath, saying that the standard to be applied was not one which would eliminate all risk to the claimant in her category and would amount to a guarantee of protection, but was a practical standard which would take account of the duty which the State owed to all its nationals. Certain levels of ill-treatment may still occur, even if steps were taken by the State from which the refugee had fled. There had to be a sufficiency of State protection and a willingness to apply it.
In paragraph 9 of the determination, the Adjudicator identified the issues by saying that the claimant's claim to asylum was that she was a victim of domestic violence, based on her relationship with her ex-partner, who had threatened to kill her through his agents in Albania, whenever he returns there. He recorded that the claimant had protection from his threats in the United Kingdom because she had obtained an injunction from the Brent County Court, and also the police had issued her with a personal distress alarm.
He stated that her claim was that her ex-partner's wife and children would harass her if she returned to Albania, and also her ex-partner had two sons in Albania, who were 18 and 20 years old.
In paragraphs 14 to 17, inclusive, the Adjudicator set out his reasons for the conclusions that he had reached relating to the claimant's asylum claim:
"14) It is plain to me from the material in the appellant's bundle at pages 42 and 43 that there are women's organisations in Albania. Paragraph 2-1 at page 43 of the appellant's bundle it is stated that women have equal access to opportunities in Albania. At page 50 of the appellant's bundle under the heading violence against women there is much objective material to support the respondent's claim that there is a sufficiency of state protection in Albania for women who may be the victims of violence. This states that domestic violence has become a serious problem in Albania. During the communist regime it was never considered a public problem. Today the mentality that justifies domestic violence in Albanian families is still alive and influential. Women are considered inferior in their families. Women remain the targets of domestic violence. Against this there is in place a legal framework which is addressing the issue of domestic violence. This activity is prosecuted under the general crime of assault. Under the Code of Criminal Procedure domestic violence is prosecuted upon the complaint of the victim and the case is only closed when there is a withdrawal of the complaint. However the victim must also prepare the case herself gathering evidence and witnesses and presenting her case in court.
15) The police response to this offence is that their view is that a crime is committed from the moment of the assault. If the perpetrator is not immediately arrested, the victim should go to the police at which point the prosecutor, the attorney and the court become involved. There is a complaint by women's victims in surveys on domestic violence in Albania that records that the police treat the offence as a private matter and do not always intervene. At page 30 of the report in the appellant's bundle: Human Rights Watch World Report 2001: Albania: Human Rights Development, it states:
'However a number of changes have emerged and, recently, some training programmes have been organised to teach social workers, judicial police, police, prosecutors, etc. how to deal with cases of domestic violence. The Albanian Centre for Human Rights has recently organised training on 'Police and the Defence of Women'.
16) The report goes on to say that in Albania there is a counselling centre for women and girls. There is a service centre to help female victims of various types of abuse. The centre offers direct or telephone counselling. Since this centre was set up about four years ago there have been 4,300 phone calls demonstrating the high level of domestic violence but also the increase in public interest in this issue.
17) The above is a sample of the objective material that I considered in deciding this issue as a preliminary issue in the hearing. It is plain to me that there is a sufficiency of state protection available to this appellant should she be returned to Albania. This system of protection meets Horvath protection criteria as set out above. As I have stated above there does not need to be an absolute guarantee of protection to meet this criteria. There has to be a system of protection available to the appellant and a willingness to apply that on her behalf. I therefore find that the appellant's claim as stated in her asylum interview and in her statement does not disclose a well founded fear of persecution should she be returned to Albania because there is a sufficiency of state protection in her country that she could avail herself of should she be returned".
In paragraph 18 of the determination, the Adjudicator remarked that the claimant was probably at greater risk in the United Kingdom than she would be if she returned to Albania because the man whom she feared was currently in the United Kingdom. The Adjudicator concluded that there was no merit in the appeal and he found that she did not have a well founded fear of persecution for any Convention reason. He therefore dismissed her asylum appeal.
In paragraph 19 of the determination, he said that he had considered the claimant's human rights appeal, but that he could find no substantial grounds for believing that her human rights would be breached if she were returned to Albania. He therefore dismissed her appeal under the Human Rights Act 1998.
Finally, in paragraph 20 of the determination, the Adjudicator upheld the certificate, saying that he had read the Secretary of State's refusal letter and found himself in agreement with the contents of it. The effect of the certificate was that the claimant had no right of appeal to the IAT in relation to her asylum and human rights claims.
The claimant brought proceedings for judicial review in respect of that decision and, on 25th June 2002, permission to apply for judicial review was granted by Crane J. Following that, the certificate was quashed by consent and the case was remitted to the IAT to be dealt with by way of repromulgation by the Adjudicator as an uncertified case, the claimant thus being given the opportunity to apply for permission to appeal to the IAT.
The claimant made an application for permission to appeal to the IAT submitting detailed grounds of appeal. In a determination promulgated on 9th October 2002, the IAT refused leave to appeal. In the determination letter, it was stated that the Tribunal only had jurisdiction to consider the human rights claim. It is agreed between the parties that that was incorrect, but it is also agreed that it does not make any difference because both the asylum appeal and the human rights appeal would effectively involve the same issue in the circumstances of this case.
In the IAT's determination, the claimant's immigration history was described as being unusual. Reference was made to the way in which the Adjudicator had proceeded by agreement to determine the question of sufficiency of State protection first, and part of paragraph 17 of the Adjudicator's determination was quoted.
The grounds of appeal were described as being extremely long, but effectively summarised by the last paragraph of the ground, which claimed that the Adjudicator erred in law in assessing the test for sufficiency of protection as laid down in Horvath.
Mr Casson, acting Vice President, stated that he did not agree with that submission. In his judgment, the Adjudicator's assessment of the evidence was balanced and his conclusion was clearly open to him. He saw no reason to regard it as flawed. He said that he was not satisfied that an appeal to the Tribunal would have a real prospect of success, or that there was any other compelling reason why an appeal should be heard. Leave to appeal was therefore refused. That is the decision that is challenged in these proceedings.
The main submission made by Miss Harrison on behalf of the claimant was that the Adjudicator had either applied the wrong legal test, both to the issue of sufficiency of State protection and to the issue of the State's willingness to apply it, or, if he had applied the correct legal test, his decision was perverse in the Wednesbury sense. Reliance was placed on extracts from three reports which were before the Adjudicator: firstly, in the US Department of State Report 2001, it was stated:
"Violence against women and spousal abuse are serious problems. In the country's traditionally male dominated society, cultural acceptance and lax police response result in most abuse going unreported. Rape is punishable by law, as is spousal rape; however, in practice spousal rape is not reported or prosecuted. The concepts of spousal rape and sexual harassment are not well established, and, consequently, such acts are not considered crimes. No government-sponsored programme protects the rights of women. An NGO maintains a shelter in Tirana for abused women, but the facility has the capacity to house only a few victims at a time".
Secondly, in the Human Rights Watch World Report 2001, it was stated:
"Violations of women's human rights continued unabated in Albania, as trafficking and domestic violence plagued women and girls throughout the country ... Domestic violence also devastated women's lives in Albania; nongovernmental organisations compensated for a lack of state response to the abuse by opening a shelter for battered women in Tirana with Italian funding".
Finally, in the International Helsinki Committee Report 2000, it was stated:
"There are no specific legal provisions addressing domestic violence, which is prosecuted under the general crime of assault. Under the Code of Criminal Procedure, domestic violence is prosecuted upon the complaint of the victim and the case is closed upon the withdrawal of the complaint. The victim must also prepare the entire case herself: gathering evidence and witnesses and presenting her case in court. Law enforcement authorities do not begin the process without the women's consent. ('Domestic Violence in Albania' -- Study of the Minnesota Advocate Group for Human Rights 1996).
According to statements by women's victims and some NGO surveys on domestic violence, in most cases, the police treat the offence as a private matter and do not intervene."
The relevant part of the report of the Minnesota Advocate Group for Human Rights 1996, entitled "Domestic Violence in Albania", given as the source for the first of those two extracts from the International Helsinki Committee Report, states as follows:
"There are no specific laws addressing domestic violence in Albania. Domestic assault is prosecuted under the general assault statutes. Albania implemented a new penal code on June 1995".
The report then sets out various articles of the Penal Code and continues:
"Under the Code of Penal Procedure, domestic violence is prosecuted by complaint of the victim and closed by withdrawal of the complaint by the victim . This means that the case is only brought if the victim files a complaint. The victim must also prepare the entire case herself. She must gather evidence and witnesses and present her case in court. The state does not assist with the prosecution ".
The numbered brackets are footnotes, from which it can be seen that the source of the first sentence of that last paragraph was two Articles of the Penal Code and the source of the rest of that extract was an interview in Tirana in June 1995.
Both sides referred me to the decision of the House of Lords in Horvath v Secretary of State for the Home Department, which was a case concerning a claim for asylum by a Roma national of Slovakia, who feared persecution by violence from skinheads, and from the State by discrimination on account of his Roma ethnicity.
At page 246C, Lord Hope stated:
"I would hold therefore that, in the context of an allegation of persecution by non-State agents, the word 'persecution' implies a failure by the State to make protection available against the ill-treatment or violence which the person suffers at the hands of his persecutors".
Then at page 249C, Lord Hope stated:
"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 own nationals".
Lord Clyde stated at page 259G:
"There must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of actings contrary to the purposes which the Convention requires to have protected. More importantly there must be an ability and a readiness to operate that machinery. But precisely where the line is drawn beyond that generality is necessarily a matter of the circumstances of each particular case. It seems to me that the formulation presented by Stuart-Smith LJ in the Court of Appeal may well serve as a useful description of what is intended, where he said at  INLR 15, 26, paragraph 22:
'In my judgment there must be in force in the country in question a criminal law which makes the violent attacks by the persecutors punishable by sentences commensurate with the gravity of the crimes. The victims as a class must not be exempt from the protection of the law. There must be a reasonable willingness by the law enforcement agencies, that is to say the police and courts, to detect, prosecute and punish offenders.'
And in relation to the matter of unwillingness he pointed out that inefficiency and incompetence is not the same as unwillingness, that there may be various sound reasons why criminals may not be brought to justice, and that the corruption, sympathy or weakness of some individuals in the system of justice does not mean that the State is unwilling to afford protection. 'It will require cogent evidence that the State which is able to afford protection is unwilling to do so, especially in the case of a democracy.' The formulation does not claim to be exhaustive or comprehensive but it seems to me to give helpful guidance".
Miss Harrison relied particularly on Lord Clyde's reference to the need for there to be a system of domestic protection and machinery for the detection, prosecution and punishment of acts contrary to the Convention, whilst Miss Anderson, who appeared for the Secretary of State, relied on the guidance of Stuart-Smith LJ, when he said that it will require cogent evidence to show that the State is unwilling to afford protection.
The main point relied on by Miss Harrison in relation to the insufficiency of State protection was the evidence in the report by the Minnesota Advocate Group for Human Rights that the victim has to prepare the case herself, gather the evidence and the witnesses and present her own case in court.
It was submitted that that offended against the minimum notion of effective State protection in the context of deeply ingrained discrimination against women and acceptance of domestic violence, and that either there was a failure to apply Lord Clyde's test, or, if it was applied, it was perverse to conclude that there was sufficient State protection.
The main point relied upon by Miss Harrison in relation to the alleged lack of willingness to apply State protection was the evidence of a lax response by the police to domestic violence, whereby most cases go unreported. It was submitted that either the willingness test was not applied, or, if it was, the conclusion was perverse. It was said that discrimination against women is a central element of persecution based on gender. I was referred to the case of Islam v Secretary of State for the Home Department  2 AC 629, where it was held that there was a lack of protection for the fundamental human rights of women in Pakistan arising out of discrimination against them.
For all those reasons, Miss Harrison submitted that the IAT should have granted leave to appeal because there was an arguable point of law upon which there was a real prospect of an appeal succeeding.
There was a basic disagreement between Miss Harrison for the claimant and Miss Anderson for the Secretary of State as to the way in which the Adjudicator's determination should be viewed. Miss Harrison submitted that the Adjudicator's determination was a broad one relating to domestic violence as a whole in Albania, whilst Miss Anderson submitted that the determination took account of the accepted parameters of the claimant's own case.
She contended that the claimant's case was at the far edges, or within the outer limits, of domestic violence, relying on the fact that the claimant had never been married to Mr Koleci, she had never cohabited with him in Albania, nor was she ever likely to, and that her relationship with him in the United Kingdom had broken down a number of years ago. Miss Anderson submitted that it was necessary to examine the objective material in the light of the special circumstances of this case, rather than to take a global view of domestic violence towards women in Albania generally.
In my view, the difference of opinion as to the way in which the Adjudicator's determination should be viewed arises out of the procedure that he adopted by deciding the issue of sufficiency of State protection as a preliminary issue. Whilst I do not doubt that he did so with the best of intention, in order that the claimant should be saved the distress of cross-examination if he were to decide that there was sufficient State protection, it is unfortunate that both parties agreed to that procedure because the issue of sufficiency of State protection cannot be considered in isolation without regard to the circumstances of the individual case.
The sufficiency of State protection must relate to the risk of harm that is feared. A statement of the global position, without applying it to the accepted parameters of the claimant's case, would not be a helpful exercise.
Having read the Adjudicator's determination as a whole, it seems to me that what he has done is to look at the issue of State protection in relation to domestic violence as a whole in Albania and then to apply it to a person in the claimant's position. That is why on the one hand there is general reference in the determination on a number of occasions to domestic violence and to battered women, and on the other hand, there are a number of references to the claimant's own position.
Paragraph 9 refers to the way in which the claimant puts her case. Paragraph 13 refers to whether there is a sufficiency of protection if the appellant were returned "with her particular difficulties" -- followed by the Adjudicator's conclusion that there was a system of protection in Albania for women "in this appellant's position".
In paragraph 17, the Adjudicator concluded that there was a sufficiency of State protection "to this appellant", and he went on in that paragraph to state that the appellant's claim, "as stated in her asylum interview and in her statement", did not disclose a well founded fear of persecution if she were returned to Albania because there is a sufficiency of State protection there which she could avail herself of.
What the Inspector did was to consider the issue of sufficiency of State protection, taking the claimant's interview and her written statement at face value. That was why he did not hear any evidence as to credibility.
In my judgment, it would have been quite unreal for the Adjudicator to have considered the claimant's case on State protection solely by reference to the global position relating to domestic violence in Albania without having regard to the particular circumstances of the claimant's case, because she was not in a domestic situation. She was not married to Mr Koleci, so no question of spousal rape arose. She was not living with him, nor was she likely to live with him. There was no domestic relationship. The only possible connection with domestic violence arose out of a violent relationship which had long since ceased. Her fear of violence arose from threats by Mr Koleci and from threats by proxy, as it was called, to her family. To a significant degree, those threats arose from the fact that Mr Koleci's wife and children had been unable to come to the United Kingdom as a result of the action taken by the claimant against him in England.
The threatened violence would in my view be likely to be much more in the nature of revenge than domestic violence. There must, therefore, be a real possibility that such violence would be dealt with simply as a criminal assault, rather than as an assault arising out of domestic violence.
All of those matters go to show that it would have been wrong for the Adjudicator to have considered the issue of State protection solely in the context of domestic violence generally in Albania, rather than in the circumstances of the claimant's case. In my view, the Adjudicator has had regard to the claimant's particular circumstances in the light of the global position when coming to his conclusion.
I can understand the criticisms made of his conclusion in the light of some of the matters mentioned in the reports, to which I have referred, but they are matters which the Adjudicator took into account. He expressly referred in the last sentence of paragraph 14 to the victimhaving to prepare and present her case. As Miss Anderson pointed out, it is just one sentence in a report which arises from an interview in 1995 and the situation described is not one that is required by the Penal Code.
The Adjudicator in paragraph 15 also expressly took into account that police treat domestic violence as a private matter and do not always intervene. On the other hand, he referred in paragraphs 14, 15 and 16 to a number of positive factors, including the fact that there is a legal framework for dealing with domestic violence, which can be prosecuted as an assault. He also referred to training programmes for, amongst others, the police, to deal with cases of domestic violence, as well as a counselling centre for female victims of abuse. He also made it clear in paragraph 17 that the matters that he had mentioned in paragraphs 14 to 16 were only a sample of the objective material that he had considered.
I do not consider that it was necessary for him to go further than he did in referring to the objective material. I do not accept the submission that the Adjudicator applied the wrong legal test. He expressly referred in the determination to the correct test in Horvath. It is clear from the determination that he had the relevant criteria in mind.
In my view, the challenge in this case is basically a Wednesbury challenge. That is a high test to meet, although it must be remembered that the matter has to be considered with anxious scrutiny. Whilst I can see that there may be others who would reach a different conclusion from that reached by the Adjudicator, I do not feel able to say that the decision was one arguably which no reasonable decision maker could reasonably reach.
The Adjudicator set out the various matters which went both ways. The weight to be attached to them was a matter for him. In my judgment, he reached a balanced conclusion, which he was entitled to reach in the particular circumstances of this case.
The IAT was, in my view, correct in saying that the Adjudicator's assessment of the evidence was balanced and that his conclusion was open to him. In my judgment, there was not a real prospect of an appeal succeeding in this case and the Tribunal was therefore correct in refusing leave.
In those circumstances, this claim must be dismissed.
MISS ANDERSON: My Lord, I would ask for my costs in this matter in the usual way and I believe the claimant is legally aided.
MISS AIDOO: My Lord, that is correct. The claimant is legally aided. I would request a detailed analysis of costs.
MISS ANDERSON: I certainly have no objection to that, but just finishing the costs application, I do believe there is a form of words which I am sure your learned --
MR JUSTICE HARRISON: I am sorry?
MISS ANDERSON: I believe there is a form of words, which I am sure your learned associate would have, which deals with costs where the cases are legally aided, and I would simply ask for that order.
MR JUSTICE HARRISON: You are quite right. It will be in the order.
You cannot resist the order for costs, can you, Miss Aidoo?
MISS AIDOO: No, my Lord.
MR JUSTICE HARRISON: There will be an order for costs in the usual terms where the party has public funding.
MISS AIDOO: My Lord, I am instructed to seek leave to appeal.
MR JUSTICE HARRISON: Sorry?
MISS AIDOO: I am instructed to seek leave to appeal in this matter.
MR JUSTICE HARRISON: Yes. What are your reasons for that? What are your reasons for asking for leave to appeal?
MISS AIDOO: My Lord, I am afraid that my instructions are limited to requesting leave to appeal. They go no further than that.
MR JUSTICE HARRISON: That is a disappointing response to my question, but if that is the way it is put, then all I can say is, there being no grounds advanced in support of the application, and in view of my conclusion that there is no real prospect of an appealsucceeding in any event, the application will be refused.