Koci v Secretary of State for the Home Department

LORD JUSTICE KEENE: This is an appeal against a decision of the Immigration Appeal Tribunal ("the IAT") which allowed the Secretary of State's appeal against an adjudicator's decision. Permission to appeal to this court was granted by Kay LJ because of his concern that the IAT had focused on the position in the appellant's country in general terms, rather than on the appellant's own particular circumstances.

The appellant is an Albanian national who arrived in the United Kingdom on 28th November 2001, he at that time being aged 24. He subsequently claimed asylum, which was refused by the Secretary of State. He appealed to an adjudicator, who had to deal both with an asylum appeal and with an appeal on human rights grounds.

The adjudicator regarded the appellant as a credible witness and accepted his account of events. The appellant's evidence was that he had lived with his parents and sister in a village in the north of Albania where Christians were in a majority. He and his family were Muslim. He described a certain amount of discrimination against himself and his family, and how his father had in the past been beaten up.

In the spring of 2001 there was a confrontation between Muslims and Christians in the village over plans to build a mosque. Later that year in August there was a further confrontation, during which the appellant's father shot dead two male members of the Shtefni family, a Christian family with a history of antagonism towards the appellant's family. The appellant and his father ran off and hid in the mountains until 10th September 2001. On that day his father attempted to come down to get food from the family home. However, he was spotted and was shot dead. It was the appellant's belief that this was a revenge killing by someone from the Shtefni family.

The adjudicator summarised what then happened in paragraphs 10 to 12 of his decision:

Before the adjudicator the appellant relied on an expert report dated 19th June 2002 by Mr Timothy Robertson, a solicitor who was Vice-Chairman of the British Albanian Legal Association, who stated that he had visited Albania regularly since 1991 and had travelled throughout the country. The report did not give support to the appellant's claim of hostility on religious grounds, but it did support as well-founded his fear of being killed by a member of the Shtefni family as a result of the blood feud. It said this:

Reliance was also placed by the appellant at that stage on a United States State Department report of 4th March 2002 which dealt with the situation in 2001. It recorded that:

The adjudicator took the view that the appellant could be seen as someone who was persecuted as a result of his membership of a social group, which the adjudicator seems to have believed was constituted by the appellant's family. He concluded that the appellant had a well-founded fear of persecution for a Convention reason, and so he allowed the asylum appeal. That is no longer a live matter. There was no dispute before the IAT, and there is no dispute now, that the adjudicator's decision was wrong in law on the asylum claim. In the light of the decision in Skenderaj [2002] EWCA Civ 567, the appellant's family could not be regarded as a distinct social group in Albanian society.

However, the adjudicator also allowed the appellant's claim based on the European Convention on Human Rights. It was concluded by him that there would be a violation of Articles 2 and 3, were the appellant to be sent back to Albania, because of the threat to his life and because to live in hiding, or at least to live in constant fear of a reprisal shooting, would amount to inhuman and degrading treatment. It was this conclusion on the human rights issue which became the central issue in the appeal brought by the Secretary of State to the IAT.

The IAT noted that the adjudicator had not had the October 2002 report by the Home Office's CIPU before him, and that that report contained a very full treatment of the blood feud problem. The Tribunal observed that it had to take account of such more recent information in the light of the decision in Ravichandran [1996] Imm AR 97, and that this would enable it to decide whether the adjudicator:

It then quoted from paragraphs 6.130 to 6.132 of the CIPU report, which referred to varying estimates of the numbers of people in Albania affected by blood feuds or self-imprisoned at home because of them, and to the Ministry's estimate of more than 14 deaths in 2001 from blood feuds. The passages quoted referred to reconciliation services provided to families involved in blood feuds, and to claims by certain agencies to have resolved several hundred blood feuds. The final paragraph quoted dealt with the dispatch in August 1999 by the Albanian government of 200 men from a special terrorist unit to northern Albanian to curb violence, on which occasion some 22 arrests were made.

The IAT then noted that the criminal code in Albania provided for lengthy custodial sentences for murder, but it commented, rightly, that the question was whether official willingness to enforce that law was now capable of providing effective protection for potential victims of blood feuds.

In answering that question the IAT placed particular emphasis on the 1999 dispatch of troops to north Albania, saying that this showed the government was "well capable of taking a firm hand". The concluding paragraphs of its decision then read as follows, beginning part way through paragraph 14:

The Tribunal then concluded that the appellant would not need to go into hiding, even if initially some discretion on his part were required. Over the long term, effective protection would be available if he chose to seek it. Consequently the Secretary of State's appeal was allowed.

On behalf of Mr Koci, a number of criticisms are today advanced of the IAT's approach. First and foremost, it is submitted by Mr Gill QC for the appellant that the IAT adopted the wrong approach to the adjudicator's findings of fact because those findings were not "plainly wrong" and should therefore not have been overturned. In reliance on this court's decision in Oleed v the Secretary of State for the Home Department [2002] EWCA Civ 1906 and [2003] INLR 179, he submits that the IAT should not interfere with an adjudicator's findings if they were ones properly open to him on the evidence, even though the Tribunal might have come to a different conclusion. Mr Gill accepts that the Tribunal may interfere more readily where the findings are not dependent on oral evidence, but even where that is the case he contends that the Tribunal should only overturn a finding where it is clearly erroneous. In support of that approach he cites also the decision of Collins J (sitting as President of the IAT) in Secretary of State for the Home Department v Sharif [2002] UKIAT 00953.

In the present case, it is argued that not only was the adjudicator entitled to reach the conclusion which he did about the real risk to the appellant, but also the CIPU report of October 2002 was not inconsistent with and did not cast doubt upon Mr Robertson's report. The IAT placed excessive emphasis on the 1999 Tropoja anti-terrorist action, which was not obviously aimed at blood feuds and which did not reflect on the blood feud problem since that date. The post-1999 sources all demonstrate, says Mr Gill, how bad the position is in respect of blood feuds. Moreover, the IAT misread the CIPU report in believing that it quoted an exact figure of 14 blood feud deaths in 2001, when the relevant passage refers to "more than 14" and was available to the adjudicator in the US State Department report. Mr Gill submits that the IAT was wrong to criticise the reliability of Mr Robertson's report. Though he did not expressly mention when he had last visited Albania, the report refers to him visiting it regularly and he was clearly regarded as an expert since he is referred to in the CIPU report itself. Mr Robertson could not have been provided with the October 2002 CIPU report because the hearing before the adjudicator took place in early July 2002.

It is also submitted that the IAT did not take proper account of the individual circumstances of the appellant, a submission which, as I have indicated, echoes the concern expressed by Kay LJ when permission to appeal was granted. In particular, Mr Gill emphasises the fact that this blood feud began with the killing of the two members of the Shtefni family in public in front of other people. That, he submits, would very much raise a question of honour in this particular case because of the public nature of that family killing.

Moreover, he draws attention to the fact that the appellant is a man whose father has already been killed, probably in a blood feud, who has himself been shot at when he came out of hiding in another part of the country, and where the adjudicator appears to have accepted that the Shtefni family would seek to track him down and kill him. Whatever may be the general position about blood feuds in Albania, this man, it is said, clearly faces a real risk to his life, and the legal safeguards theoretically available would not be effective in practice. In that connection, reliance is placed by Mr Gill on the decisions in Dhima v Immigration Appeal Tribunal [2002] INLR 243 and McPherson v Secretary of State for the Home Department [2002] INLR 139. Other points are raised in Mr Gill's skeleton argument, but it is convenient to deal with those I have just summarised.

On those issues Mr Eicke for the Secretary of State emphasises that Mr Robertson's report went somewhat beyond the proper scope of that which it is recognised a report by an expert witness should adhere to. In particular, Mr Robertson in the course of his report comments upon the individual case of the appellant and makes some comments on how justified or not it is. Reliance is then placed upon the decision of this court in the case of Skenderaj [2002] EWCA Civ 567, and in particular at a passage which appears at paragraph 44 of that decision.

In reliance upon that passage, Mr Eicke submits that in order to rely upon an alleged lack of sufficiency of protection by the State authorities, a person on a human rights claim (just as on an asylum claim) must show that he was willing to avail himself of that protection. It is contended that in the present case this appellant never sought the protection of the police. There is no allegation that the police here were in any way in collusion with those who were involved on the other side of this blood feud, and Mr Eicke contends that this was not a matter which the adjudicator addressed.

Furthermore, it is contended that the IAT was entitled to intervene here. Dealing with the approach that the IAT should adopt in cases like this, Mr Eicke cites to us the decision of this court in Sarker v Secretary of State for the Home Department, unreported but dated 9th November 2000 of which we have been provided with a transcript. In the course of that decision, Tuckey LJ (with whom the other two members of the court agreed) said:

Building upon that passage, Mr Eicke submits, if I understand him correctly, that where the IAT is dealing with objective documentary evidence, they are entitled to form their own view, whether or not they take the view that the adjudicator adopted a view which was impermissible or otherwise wrong.

Finally, it is said that arguments about the IAT failing to have regard to the individual circumstances of this appellant are unsound because the adjudicator himself did not apply his mind to whether or not this individual had sought the protection of the police and whether there was truly effective protection available for him from the authorities.

The issue of how the IAT should approach findings of fact by an adjudicator and conclusions drawn therefrom has been considered in a number of cases, and revisited very recently by this court on 17th October 2003 in the case of Sabanathan v Secretary of State for the Home Department (as yet unreported).

In appeals to the IAT falling under the Immigration and Asylum Act 1999 there is no doubt that there is a right of appeal because of errors of fact by an adjudicator, as well as because of errors of law. I emphasise the fact that under the regulations, an error of fact has to be asserted if permission to appeal to the IAT is to be granted or else an error of law has to be alleged. Certainly the IAT should be particularly reluctant to intervene when the finding of fact turns wholly or principally on oral evidence heard by the adjudicator. But even when it is dealing with findings of fact based on documentary material, which is regularly the case in respect of evidence about in-country conditions, the IAT does not act and should not act as if it were a tribunal of first instance. The test which it should apply is still the one spelt out in Oleed and other decisions, namely is the finding of fact below plainly wrong or unsustainable: see in particular Schiemann LJ in paragraph 29 of Oleed and Arden LJ at paragraph 35 thereof. That approach accords with many other decisions: see the decisions of this order in Assah v Immigration Appeal Tribunal [1994] Imm AR 519 and the case of Sarker already referred to. It is not enough that the IAT would have drawn some different conclusion or inference from the primary facts, if those which were drawn by the adjudicator were ones properly open to him and were not plainly wrong.

It is perhaps to be noted that in the same paragraph relied upon by the Secretary of State in this case from the judgment of Tuckey LJ in the case of Sarker, the judge went on to say:

One therefore turns to ascertain whether the IAT in the present case could properly treat the adjudicator's decision on the risk to the appellant as plainly wrong. The basis of the Tribunal's decision was the CIPU report of October 2002, which led the Tribunal to conclude that while blood feuds "clearly still represent a serious problem in Albania, there is clear evidence that the authorities, and others, are taking effective steps to deal with it." (My emphasis) It is implicit, to my mind, in that conclusion that the evidence as understood by the Tribunal pointed towards an improvement in the situation, one with which the authorities were coming to grips. However, when one reads the whole of the section of the report dealing with blood feuds, it is impossible to arrive in any rational way at such a conclusion. In the opening paragraphs of that section, the report refers to the 15th-century code of customs, the Kanun of Lek Dukajini, under which blood feud killings were argued to be justified. It then goes on to say, in paragraphs 6.124 and 6.125:

Then in one of the passages which were quoted in the Tribunal's decision the report states, in respect of blood feuds:

These references in the October 2002 report tend to suggest that the 1999 military action by the government in Albania, upon which such emphasis was placed by the IAT, had not been effective in providing protection against blood feuds and the consequences thereof. The mistake by the IAT in believing that the Ministry of Public Order had given an exact figure when the accurate version was "more than 14" is a small point, but it is perhaps unfortunate that the IAT used its mistaken belief as a basis for preferring the CIPU report to the reports by the State Department and Amnesty International.

For my part, I cannot see that the CIPU report conflicted with Mr Robertson's report or provided any reason for criticising his report or the adjudicator's acceptance of it. It could not properly justify any conclusion that the adjudicator had gone plainly wrong in his findings and inferences of fact.

In addition, it is striking that the IAT makes no attempt to apply its views about the general situation in Albania concerning blood feuds to the particular facts of Mr Koci's case. The unchallenged evidence was that his father had killed two members of the Shtefni family as recently as August 2001. This, therefore, was not ancient history. Moreover, it had happened, as Mr Gill emphasises, in public, so that the killing of the members of the Shtefni family was obvious to a number of others. When the appellant's father emerged from hiding in September that year he was shot and killed. When the appellant emerged from hiding in the capital Tirana he was immediately shot at. These facts give this case a particular force, and yet there is no reference to them in the IAT's decision and no attempt to consider whether, even if the Tribunal were right about the general situation as to effective protection from blood feuds, this appellant fell within that general situation.

As for the Skenderaj judgment, upon which reliance is placed by the Secretary of State, the proposition which is relied upon about needing to seek the protection of the authorities has to be applied with some realism. The court there was not saying that failure to seek protection automatically disentitled an applicant from relying on a potential breach of his human rights. It depends on the facts. In that report at paragraph 44, the paragraph relied on, this court referred to the precondition of the State providing a sufficiency of protection. It is when that precondition is met that an applicant "can only rely on the alternative of his unwillingness to [seek protection] if it flows from a well-founded fear of persecution." That is borne out by other passages in that decision. At the end of paragraph 42 one finds the following statement:

Consequently, those statements relied on by the Secretary of State today presuppose that effective protection is available. That raises the crucial question of whether such protection is available for this individual on the evidence. The adjudicator did apply his mind to that, and for the reason which I have indicated he came to a proper conclusion as a matter of fact.

Given the circumstances to which I have referred in this individual case, it is difficult to see how this appellant in any event could readily have sought the protection of the authorities. All the evidence of his individual case pointed towards any protection being quite inadequate, not merely as a generality in such cases but actually in his own specific case.

I do emphasise that every case has to be considered on its merits. I do not for one moment suggest that every Albanian who reaches these shores and has been involved at some stage in a blood feud, however remotely or indirectly, is automatically to be regarded as someone who cannot be removed without breaching his Article 2 or Article 3 rights. The outcome, as always, will depend on the details of his case and on the evidence about conditions in Albania at that time. I am dealing in this judgment only with the instant case. However, in this instant case I conclude that the IAT was wrong to interfere with the findings made by the adjudicator. He was not plainly wrong in the conclusions which he reached. Having arrived, as I do, at that conclusion, it is unnecessary to deal with the various other arguments canvassed on behalf of the appellant in writing. I, for my part, would allow this appeal.

LORD JUSTICE LONGMORE: I agree.

Mr Eicke for the Secretary of State submitted that if this appeal were to be allowed, asylum would have to be granted to all applicants who plausibly claimed that they were the subject of a blood feud. I cannot accept that submission. The facts of cases in which a blood feud is asserted will all be different. It is for the adjudicator in each case to decide whether the State can afford sufficiency of protection in all the individual circumstances of the case before him. Important circumstances might include, for example, the notoriety or the publicity of the original killing; the time which has elapsed since the last killing; what the applicant did during that time; and the number of those who have been killed on either of the sides which constitute the blood feud.

However that may be, for the reasons given by my Lord, I am satisfied that in this case the Immigration Appeal Tribunal were not justified in reversing the adjudicator's decision and that their decision must be set aside.

SIR MARTIN NOURSE: I also agree that for the reasons given by my Lords this appeal should be allowed.