Diane Taylor, reporting in this morning’s Guardian on the ramifications of the concession made by the Home Office before the Court of Appeal in LC (Albania) v Secretary of State for the Home Department [2017] EWCA Civ. 351, handed down yesterday. 

The Court dismissed the appeal, but did importantly record a concession by the Secretary of State with respect to the first of the two grounds of appeal, relating to the unlawful use of the 2009 Country Guidance case of MK (Lesbians) Albania CG [2009] UKAIT 00036 following the setting aside of the 2009 determination in October 2011 by the Court of Appeal. 

Whilst the Order recorded at paragraph 2 “[t]he determination of the Asylum and Immigration Tribunal of 21st September 2009  is set aside”, the Home Office continued to rely on the case to deny asylum to applicants basing claims based on sexual identity  (no risk to gay men not frequenting a cruising park in Tirana, to those who are not political activists or at risk from their family), domestic violence and trafficking (reasonable to relocate single women to Tirana).  The Upper Tribunal additionally did not amend the list of Country Guidance cases on its web site, implying the case could continue to be binding guidance to Immigration Judges both in the First-tier and Upper Tribunal (Immigration and Asylum Chamber).

The Appellant LC  was unrepresented before the First-tier Tribunal.  The Immigration Judge relied on MK  in finding that as the Appellant did not belong to one of the three risk groups he would not be at risk on return, and could in any event relocate to another part of Tirana.  The Upper Tribunal dismissed the appeal relying on no error of law, as the Immigration Judge had relied on correct case law, including MK.  Permission to appeal was refused on the papers by Elias LJ on the same premise. 

At a hearing before Lindblom LJ in November 2015, his Lordship adjourned the hearing to enable the Respondent to reply to the amended grounds and make submissions at the hearing.  In December 2015 the 2011 Court of Appeal Order and Statement of Reasons was served by the Respondent in their submission in reply to the amended grounds and came to the attention of the Appellant’s legal representatives for the first time.  Nevertheless, the Respondent instructed her legal team to submit the factual findings of the Upper Tribunal in MK  could continue to be relied upon, even in light of the Order ruling the “2009 determination is set aside” at a hearing on 3 February 2016 and again at a permission hearing in October 2016.

MK  not only was applied by the Home Office and Tribunals to sexual identity asylum claims but also to domestic violence and trafficking claims.  In September 2016, Upper Tribunal Judge Perkins heard the error of law hearing in the case of DD  challenging  the use of MK  in a case relating to a female victim of domestic violence.  The Upper Tribunal were provided a copy of the 2011 Court Order and Statement of Reasons.  In a determination promulgated in December 2016 Upper Tribunal Judge Perkins accepted the case of MK  could no longer be relied upon due to the October 2011 Court of Appeal Order setting aside the determination [paragraphs 39-40].  On 8th December 2016 the Upper Tribunal’s Country Guidance list on their website was amended and stated next to the entry for MK (Albania) Removed from list 08.12.16 in view of the Court of Appeal decision  dated 10.10.11”.

The Home Office amended their guidance from 22 December 2016 only on the basis of the Upper Tribunal removing the case from the list of Country Guidance cases on 14 December 2016 (page 23).

This highlights an extremely unusual set of circumstances where satellite litigation in the Upper Tribunal on a point of fact and law is having to be deployed to assist strategic litigation before the Court of Appeal.

At the 5 April 217 hearing, the Court of Appeal summarised the first ground of appeal of the Appellant [paragraph 14]:

“Ground 1 (MK (Albania)): In MK (Albania), country guidance was given in respect of the return of homosexual men and women to Albania. However, that decision was appealed, and, by consent, in October 2011 this court set aside the order of the Upper Tribunal, without qualification. Consequently, the tribunals below erred in law in relying on MK (Albania) as an appropriate country guidance case.”

At paragraph 15, Hickinbottom LJ records the following concession of the Respondent’s Counsel:

“In respect of Ground 1, Mr Dunlop concedes that the tribunals erred in relying upon MK (Albania) as a country guidance case.”

On this basis, it is now accepted that both the 2014 First-tier Tribunal and Upper Tribunal in the proceedings unlawfully relied on MK (Albania) following the setting aside of the 2009 determination by the Court of Appeal in October 2011

Any individual who was refused asylum by the Home Office, or any Court or Tribunal, between 10th October 2011 and the 22nd of December 2016, based on the unlawful reliance of MK (Albania), has a clear right to submit a fresh claim for asylum.

The second ground of appeal, relating to incompatibility of the voluntary discretion test in HJ (Iran) with EU law, was dismissed by the Court of Appeal leading to the appeal being dismissed.  This will now be subject to an application for permission to appeal to the Supreme Court.

Jessica Smeaton was led by S Chelvan in the proceedings before the Court of Appeal.  They were instructed by Vanessa Delgado of Duncan Lewis and Co Solicitors (Cardiff Office).