Koceku, R (on the application of) v Secretary of State for Home Department

MR JUSTICE NEWMAN: I granted permission in this case on 7 May 2003. The challenge is to the Secretary of State's certification under section 94(3) of the Nationality and Asylum Act 2002. The decision is contained in a letter dated 11 April 2003.

The claimant is a citizen of Albania. At the date of the decision letter, Albania had been added to the list of countries in section 94(4) of the 2002 Act. Accordingly, following section 94(3):

There is no dispute about the approach to be adopted by the Secretary of State. It is set out in ZL & VL v Secretary of State for the Home Department [2003] EWCA Civ 25 where, as material, the points are as follows:

(1): that inclusion in section 94(4) does not establish that there is no risk of a breach of Convention rights accruing. So much appears from section 94(5) which provides:

The meaning of manifestly unfounded has been considered and is well-known in the context of other provisions. It has been said that the Secretary of State is entitled to certify a claim as manifestly unfounded, if after reviewing the material, he is reasonably and conscientiously satisfied that the allegation must clearly fail. This will apply no matter what the volume or material submitted or sophistication of the argument deployed to support the allegation.

In subjecting the decision to anxious scrutiny, the essential question for this court on a review is nonetheless whether the Secretary of State has adequately considered and resolved the issue of whether the claimant's claim and his rights are being breached by his removal and that the claim is manifestly unfounded. Thus it has been held that there is no material difference between the meaning of clearly unfounded and manifestly unfounded.

It follows, in my judgment, that the question for the Secretary of State in this instance was whether the claimant's claim could not succeed on any legitimate view.

In the context of this case, which is a case concerning sufficiency of protection in Albania, for someone involved in a blood or family feud, the question was, whether in the circumstances of instant claim, the claimant's contention that there was insufficiency of protection available in Albanian to protect him from risk could, on any legitimate view, succeed.

By reason of an administrative error, the claimant was returned to Albania on 24 April 2003, namely some little more than a week before this court granted permission. The court has been informed that attempts have been made by him to return, but it seems likely that there has been some confusion on the part of the Albanian authorities which has prevented it. The court has been informed that he has remained in Albania in hiding, and that the instructions in connection with this case have been obtained through his father.

The facts concerning the claimant's case in connection with the blood or family feud are not in dispute. In 1985 the claimant's grandfather, Selman, was killed by one Osman Dodaj. In that year elderly people were sent as mediators to the Dodaj family to try to get them to repay the money. The dispute had been over a failure of the Dodaj family to repay money which had been lent to them.

The feud continued despite the efforts to settle the matter. In 1998 the claimant's father and paternal uncle, Hassan, killed Osman Dodaj, the murderer of Selman. As a result, the claimant's father fled to Tirana. The paternal uncle was convicted and imprisoned for 25 years, being released following an amnesty in 1994. He left Albania, but returned to live in Tirana in 1998 or 1999.

In 1989 the claimant and his family joined the father in Tirana where the father was working as a builder. On 29 August 1994 another paternal uncle of the claimant, Gani, was killed by the Dodaj family, as revenge for the 1988 killing, and generally no doubt.

The police were informed of this and the killer left Albania. The claimant's family believed that they were safe. In 1995 the claimant's father told him of the Dodaj's families refusal to settle a matter, namely going back some 10 years to 1985.

So far as the dispute was concerned, it next surfaced in October 2002 when Osman Dodaj's son, Ardian, threatened to kill the claimant. The claimant reported the matter to the police in Tirana two days later, but heard no more. The claimant then fled to Greece shortly afterwards, days after this report to the police and tried to claim asylum, but his claim was refused and he was returned.

On 28 February 2003, Osman Dodaj's son, Ardian, came to the neighbourhood, to which, as I have already recorded, the claimant had moved and repeated his threat that he was going to kill the claimant. So the claimant fled to Kruje. He decided not to go to the police because he says they did nothing on the previous occasion.

On 29 March 2003 he left Albania after remaining a little less than three weeks in Kruje and he arrived in the United Kingdom on 1 April 2003.

The claimant submits that the Secretary of State could not be satisfied that there is in place a sufficiency of protection in Albania, such as to render his claim clearly unfounded because (1) the background material is to the effect that killings do occur in significant number in connection with blood and family feuds; that there has been an increase which is described as extending these disputes to threatening proportions. Thus it is submitted that looking at the objective material, the objective material itself is capable of giving rise to a legitimate view that there would not be a sufficiency of protection for him. I need to set out a little detail on the matter and to introduce certain areas of particular argument.

(2) That the proposition advanced in his case, which I have set out in (1) is supported and confirmed by cases coming before the specialist bodies in the shape of the Special Adjudicators and the Immigration Appeal Tribunal, where in individual cases a conclusion has been reached in connection with blood feuds that an insufficiency of protection existed. It is said that it is highly material to the Secretary of State's approach to certifications and whether a claim is manifestly unfounded for some regard to be paid to the existence of legitimate views which have formed in those cases.

I should add that so far as sufficiency of protection is concerned, it is not in dispute that the test to be applied is as set out by the House of Lords in Horvath v Secretary of State for the Home Department [2001] 1 AC 489, namely, (a) the obligation to afford refugee status arises only if the person's own state is unable or unwilling to discharge its own duty to protect its own nationals. (b) the level of protection has to be sufficient, complete protection against isolated and random attacks is not to be expected.

The standard to be applied is therefore not that which would eliminate all the risk and thus to guarantee 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.

(c) 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 for the gravity of the crimes. The victims 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 the courts, to detect, prosecute and punish offenders. Inefficiency and incompetence is not the same as unwillingness. Corruption, sympathy or weakness of some individuals in the system of justice does not mean the state is unwilling to afford protection.

Mr McCullough submitted, on behalf of the Secretary of State, that he had followed the approach which I have just summarized as set out by House of Lords and concluded that the claimant's human rights claim is bound to fail because on the latest objective evidence before him there is clearly a sufficiency of protection for the claimant in Albania. In particular, he submitted that the claimant had failed, as the Secretary of State concluded, to demonstrate that the authorities in Albania are either unwilling or unable to offer him protection.

He further submitted that the reported threat which I have referred to in the summary of the facts in 2002, both in October 2002 and in 2003, had been, so far as they were reported, responded to in a proper manner and the claimant had failed to avail himself of the protection of the authorities. Further as the Secretary of State pointed out in his decision letter, had failed to avail himself of the services of the reconciliation bodies or agencies.

So far as the particular facts are concerned, Mr McCullough submitted that it was to be noted that the claimant's father and his paternal uncle, Hassan, subsequent to his release from prison were apparently able to live in Albania in all the circumstances.

So far as the effect of the cases or the position which has arisen from time to time before Special Adjudicators at the Tribunal is concerned, he submitted that the claimant was placing too much weight or inappropriate weight on those cases which he submitted did not really advance the matter.

In the course of his submissions he referred to the decision letter and relied upon the Secretary of State's view in connection with the claimant's failure to use the reconciliation services which are available and have been available, one can see on the material before the court, since 1996.

In paragraphs 13, 14 and, to a similar effect in relation to other avenues of redress other than reconciliation services, the Secretary of State stated as follows:

I interpose to clarify this reference which is to the figures which are available of the success of the reconciliation bodies, as I understand it, since their establishment in 1996.

This led the Secretary of State to observe:

Paragraph 14 is as follows:

At the end of paragraph 18 (which is long and I will not read) in respect of other redress the Secretary of State also recalls:

The nature of the real import of thrust or those paragraphs of the decision letter is not entirely clear. I should make it clear that I regard the failure of the claimant to have approached the agencies or to go back to the police as depriving him of a case which might have been advanced by reference to any deficiencies or failure on the part of such agencies which his approaches might have demonstrated.

If the Secretary of State was merely drawing attention to the lack of evidence in this regard, plainly he was entitled to do so and to take that into account. I feel bound to emphasise that the claimant's failure cannot affect the case as it is presented, based upon the facts as he has laid them out and which are not in dispute, and the objective evidence as it stands which, again, is not disputed.

In my judgment, the objective evidence as to the present state of affairs and the availability of redress in Albania falls short of decisively portraying a sufficiency of protection so as to preclude a legitimate view in an individual case that there could be an insufficiency of protection.

It has to be said in fairness I do not understand the Secretary of State to have come to any other conclusion, but I have already drawn attention to Mr McCullough's submission, as set out in the written material before the court, that he, having followed the approach of the House of Lords, was entitled to conclude that the human rights claim was bound to fail because on the latest objective evidence before him there is clearly a sufficiency of protection for the claimant in Albania.

I draw attention to that, as I must, to avoid any suggestion that in this judgment I am concluding on the material that it is the objective evidence alone to which one pays regard. It is always the facts of the particular case considered in the context of the objective material. Thus I clearly must pay regard to the fact that the Secretary of State has plainly considered the particular facts of the claimant's case, and to that consideration I shall come.

Before I do that it is to be noted that the decision letter of the Secretary of State when dealing with the objective material in paragraph 11 stated:

Reference to the CIPU report April 2003 discloses that that paragraph in the letter was taken, obviously quite properly, from 6.117 of the CIPU assessment.

The next paragraph of the decision letter, to which I have already referred, is the one which gives some statistics about the success of the various reconciliation services.

The same CIPU report to which the Secretary of State obviously paid attention contains paragraphs which are not set out in the decision letter which are to the following effect. 6.118:

6.119:

Paragraph 61.21 says:

In 6.122 the report gives some figures as to the number of people who have been directly or indirectly affected by blood feuds.

I am bound to say having regard to the statistics in paragraph 12 which relate to the reconciliation agency's successes, it is somewhat helpful and illuminative to look at the number of persons who are affected.

The 756 blood feuds, successes if I might call them such, is slightly larger than the figure of 750 which appears in paragraph 12.

6.123:

Then in 6.124 this report refers to the success of the reconciliation services. It is in 6.124 that one can see the figure for the 600 feuds settled by the All Nation Reconciliation is set out which is in paragraph 12 of the decision letter. In addition, the US State Department report for 2002 has a general statement about the seriousness of the problem affecting public order and internal security, and refers to the fact that police officers are largely untrained, ill-paid and often unreliable, but the international community was endeavouring to assist in that regard. It also refers to the country continuing to experience high level of violent crime as a result of blood feuds or gang conflicts. It refers to the same figure of 29 individuals being killed, and similar figures that I have already referred to from the CIPU report.

I would not regard the Secretary of State's conclusion in this case as legally flawed simply because of the existence of this material to which he made no specific reference in his decision letter, but as a stage in the process of according, as I must, anxious scrutiny to the decision, I am bound to take it into account.

Next it appears to me that the degree and nature of the regard which the Secretary of State paid to the existence of reconciliation agencies, which of course was a relevant factor, appears to have deflected him from giving proper consideration to the claimant's case in connection with the failed mediation which the families attempted.

The letter and the thrust of the submissions which Mr McCullough advanced to the court lead me to conclude that little weight was attached to the event of mediation because it was considered in the context of the reconciliation services, which are now available, having been considered was regarded as not being a substitute for what was available through the reconciliation services.

Further whilst it was proper to have regard to the period of time in which it took place, namely some 15 years, maybe too little weight was attached to what it did represent.

In my judgment, it was not to be disregarded or given little or no weight for either of the reasons which have been advanced. Its relevance is -- and its weight of course would be a matter for the decision maker -- that the evidence has a capacity to be weighed and valued as an indicator of the depth of the feud between these two families. It was material to be weighed in the context of the other facts which were not in dispute, namely the more recent reprisals had continued to take place for many years thereafter, so that the killings were still continuing some 9 or 10 years after the failure to mediate.

In my judgment, those facts taken together merited attention in order for a weighted consideration to be given to the depth of the feud. I have to conclude, since there is nothing in the decision letter which shows that it was considered in such a way, that little or no weight was paid to this aspect of the case.

Next it seems to me that the cases before Adjudicators and the Tribunal are illustrations of a different and legitimate view being formed in connection with blood feuds in Albania.

The two cases which demonstrate the capability of reasonable decision makers coming to legitimate but different views is best reflected from Alfred Brozi [2002] UK IAT 06978 which is a decision which was notified on 3 March 2003, having been heard in January, and Koci [2002] UK IAT 08006 which was heard on 5 February 2003 and sent out on 1 April 2003. They are therefore, for all relevant purposes, contemporaneous decisions.

In Alfred Brozi so far as the respondent was concerned, who was Brozi, there was an Article 3 claim. Paragraph 6 of the decision of the Tribunal refers to blood feuds in Albania being traditionally localised. The Tribunal go on to point out:

They go on to consider the objective material set out in the assessment recorded in 2002 and blood feuds referred to, much of the material to which I have been referred, some of which I have referred to in this judgment.

The Tribunal concluded:

Mr McCullough suggested that it is not entirely clear from the decision of the Tribunal that they had in mind the Horvath test. I would be slow to conclude that this experienced Tribunal was not aware of the relevant principles. It represents, as I foreshadowed already, what I regard as a legitimate view on the facts as they can arise in connection with blood feuds in Albania. Koci is the other way.

The centre of attention in this case was the material which had been before the Adjudicator in the shape of a report from a Mr Robertson. In this instance:the Tribunal paid regard to the reconciliation agencies. They did observe that these initiatives have had considerable success in resolving blood feuds peacefully. This is an extremely worthy aspiration, but it would not be enough on its own.

The last paragraph concluded:

It is neither necessary or appropriate to seek to analyse the reasoning processes to which those facts gave rise in those cases, but they do, in my judgment, bear out, that in circumstances such as those under consideration, in an individual case, there is scope for more than one legitimate view as to the sufficiency of the protection.

Some reference has been made to Secretary of State for the Home Department v Skenderaj [2002] EWCA Civ 567. It was a case concerned with events that took place in 1997 at the height of some civil upheaval in Albania. For that reason, although it is said to be case which falls down on the side of the claimant's argument, it is unnecessary for me to pay it any particular attention in coming to my conclusion.

Having anxiously scrutinised the decision of the Secretary of State, I have concluded that the submissions advanced on behalf of the claimant, that for the reasons which I have endeavoured to develop above, the Secretary of State erred. I should make it plain that it is the cumulative effect of the matters above which leads me to conclude that the certification must be quashed. In my judgment, he has not adequately considered and resolved the issue which was there for him to consider. He paid insufficient regard to the facts of the claimant's particular case and/or he failed to weigh or balance the facts in the context of the objective material.

As I have indicated, I have also a reservation as to how far the objective material was addressed in its entirety, as opposed to particular aspects of it being focused upon. For example, the success of the reconciliation services was considered in an abstract way, in the sense that it was taken out of the context of the actual statistics which show the number of feuds.

I, of course, recognise that it is difficult for a decision maker who has legitimately reached a firm view or conclusion of his own to discern and weigh factors which could support a different legitimate conclusion. In my judgment, it would have been most material for some consideration to have been given to the evidence available to support the capability of a different legitimate view which could be gathered from the decisions to which I have referred, namely Brozi and Koci, both of which were very recent at the time of the April decision letter.

I believe it would have assisted him and shown up to him how a fact finder could legitimately come to a different conclusion on the facts and, in my judgment, would have enabled him to see that this was a case in which it was inappropriate to certify.

For those reasons this application succeeds and the certification should be quashed.

Is there anything else I need to deal with?

MR SMITH: I am instructed to apply for costs, my Lord.

MR JUSTICE NEWMAN: So far as relief is concerned, I am bound to say I have not really reflected on it. Is there anything other than what you are seeking in relation to costs?

MR SMITH: I have no instructions to seek anything particular.

MR JUSTICE NEWMAN: There is no particular of form of words? It is simply that the certification should be quashed?

MR SMITH: Yes.

MR JUSTICE NEWMAN: And you ask for costs?

MISS GALLAFENT: My Lord, I do not oppose the application for costs, of course.

The relief we would suggest perhaps is not so much the wording of the order, but in terms of the date of the order. The suggestion that we would make would be that the order would not be set for one week to allow the claimant time to return to the country.

Of course, the timetable for him to make an in-country appeal will become effective once it is sealed. There will then be a 10 day time limit. I do not say that is an absolute time limit because in certain circumstances it can be extended.

Clearly it is in neither of the parties' interest to let this matter drag on any longer. My suggestion would be that this court should refrain from sealing the order for a week, thereby giving the claimant an opportunity to return. Of course, so far as the Secretary of State's position is concerned, we have taken steps to facilitate that and thereafter, of course, he could return to this country and make the in-country appeal to the Adjudicator pursuant to the procedural rules.

MR JUSTICE NEWMAN: Yes, that is very helpful. What is going to happen if he does not get back because of some administrative hitch?

MR SMITH: I wonder if the Secretary of State could be persuaded to offer what assistance they can in that regard.

MR JUSTICE NEWMAN: I do not know whether he can or he cannot.

We do not want time to run if he cannot get back, do we?

MISS GALLAFENT: My Lord, clearly not. But in so far as the Secretary of State is concerned, the Secretary of State cannot be responsible for the Albanian authorities requiring the claimant to have a passport which, of course, on his own evidence he has in Albanian. The Secretary of State has issued him with an EU letter which will allow him to travel. So far as we are concerned, there is really nothing further we can do for the claimant.

Our understanding is that if the Albanian authorities assisted him with travelling with a passport, he must obtain that, and he can do that within a matter of days.

I do not want time to start to the determent of the claimant if he is in difficulty of returning. The rules do allow for an extension of the time. Clearly what the Secretary of State would not wish to happen is for this matter to be unduly protracted and the claimant to be delayed in returning and thereafter being delayed in terms --

MR JUSTICE NEWMAN: Miss Gallafent, would it be best if we went this way: that I have some sort of report, say within 7 days, from the claimant's solicitors indicating what the position is and, of course, you being sent the Treasury solicitor also being sent the information. Then rather than applying my mind to a state of affairs which I have very little knowledge about, and little insight into, I could then look at it. If it became contentious then, as I think I indicated, certainly I am in the building, although engaged elsewhere, from two weeks tomorrow. I would still be in this division and I can look at it if it becomes contentious.

Obviously I have in mind that one cannot go on delaying indefinitely the drawing up of the order. I would rather do it all having some knowledge of the particular facts.

MISS GALLAFENT: Yes. In so far as we know we can take steps to ascertain the position. We are in a very limited position.

MR JUSTICE NEWMAN: Let that be done.

MR SMITH: My Lord, I wonder if you could clarify what things you would be looking for?

MR JUSTICE NEWMAN: I just want to know when he is coming back, and whether there is any difficulty, and whether he is geared up. That is all I want to know.

MISS GALLAFENT: I am also instructed to ask for permission to appeal. This is one of the first substantive cases in relation to Albania under the application of section 94. It is a matter of considerable importance, not only to the Secretary of State, but in relation to various other applicants.

MR JUSTICE NEWMAN: It does not raise any point of principle at all does it? I have simply applied the law to the facts and only limited it expressly so that it applies only to the facts.

I cannot see what advantage there could be to anybody, apart from you seeking a particular proper legal advantage in this case. It seems to me to have very limited general relevance to the law in this particular area, Miss Gallafent, unless you can persuade me to the contrary.

MISS GALLAFENT: Of course what your Lordship has done is apply the law to facts. That is generally what occurs at the first instance. In any event, applying the law to the facts does not mean that the Court of Appeal --

THE CLAIMANT: The facts are not in dispute. So I am either wrong in applying the law as I have to these facts or some way or other I have done something else wrong. That can lead to a different result in this case, but if you are putting the application to me on the basis that this is a case which can have much influence on other cases, then I am merely suggesting to that I do not see for that moment --

MISS GALLAFENT: One particular aspect is the question of the failure by the claimant on its part to avail himself of protection through the reconciliation services.

I would submit that there may be broader issues of principles arising from your Lordship's indications in that respect in relation to the application for the Horvath test and the two limbs of the section for the protection in this case.

I would submit that your Lordship's conclusions in relation to the Secretary of State's failure to give appropriate weight to that matter in relation to the failure to approach the services may be correct in relation to that.

That may give rise to a wider issue in relation to the failure to avail themselves --

MR JUSTICE NEWMAN: I have your point.

Unless there is anything more you want to say, I am not persuaded that this is an appropriate case for permission. You will have to try the Court of Appeal.

MISS GALLAFENT: In that respect, may I ask for an extension of the limit within which to apply to the Court of Appeal? Clearly the 14 day time limit is relatively short. We are almost at the beginning of August. May I ask for an extension of time to 28 days?

MR JUSTICE NEWMAN: Yes, certainly.

MISS GALLAFENT: I am very grateful.

MR JUSTICE NEWMAN: What do you want to say about costs?

MISS GALLAFENT: I do not resist the application for costs.

MR JUSTICE NEWMAN: Thank you both very much.