DD – Asylum claim based on Domestic Violence – Upper Tribunal Allows Appeal - at real risk of persecution throughout Albania – Dr Chelvan and Jake Rylatt instructed.

Fri, 22 Nov 2019

In a determination of the Upper Tribunal promulgated on 13 November 2019, Upper Tribunal Judge Perkins has allowed an appeal on asylum grounds concerning a victim of domestic violence from Albania.  Dr S. Chelvan was instructed by Rodney Oliver of AT Legal Solicitors from the initial hearing before the First-tier Tribunal in 2015.  Jake Rylatt assisted whilst in pupillage for the disposal hearing in December 2017 and was then instructed as Junior to Dr Chelvan for the July 2019 written submissions.

In the proceedings, taking over 3 years before the Upper Tribunal, the determination sets out the following important two points of principle and additional conclusions:

  • pursuant to Regulation 6(1)(d) of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006, individual claims based on domestic violence do form a particular social group in Albania as they are ‘perceived as different by surrounding society’ and ‘branded for life’. DM (Sufficiency of Protection – PSG-Women-Domestic Violence) Albania CG [2004] UKIAT 00059, decided prior to the October 2006 entry into force of the 2006 Regulations (transposing the 2004 EU Minimum Standards Qualification Directive) is therefore no longer to be followed [paragraph 33 of determination];
  • the 2019 Country Guidance of BF (Tirana – gay men) Albania CG [2019] UKUT 00093 (IAC) on internal relocation to the capital city of Tirana does not apply as victims of domestic violence, attract social outrage and have no support group. On this basis, there is no internal relocation alternative to Tirana [paragraph 118];
  • subjective fear, even where this is ‘enhanced by an unjustified belief that her husband will seek vengeance on her and that the state will not protect her’, added to the Appellant’s concerns. The background evidence reflects that ‘isolation and ostracization tends to happen’ [paragraphs 120-121];
  • ‘It is plain that the government of Albania is aware of its poor international reputation and that much of it is deserved. It is plain the government of Albania is trying very hard to change society’ [paragraph 122];
  • conditions in Tirana make it unreasonable or unduly harsh to expect this appellant to live there as a single woman with a teenage boy to look after where she will be perceived as someone who had violated the values of society and her son would be viewed as illegitimate where there was no evidence that anyone in Albania would give her financial or social support [paragraphs 126 to 130];
  • she would indeed be on her own, which is why she left. She has no particular skills to offer.  She is not somebody with a professional qualification or otherwise access to good employment.  She will be on her own, she will be isolated, she will be ostracised, she is exactly the kind of person who is vulnerable to trafficking’ [paragraph 130]; and
  • I remind myself that I am not concerned with certainty or even probability but whether there is a real risk. I am satisfied that, if the appellant were to be returned to any part of Albania, she would (in the particular circumstances of her case) be at real risk of suffering treatment which would, cumulatively, be so serious as to amount to persecution for a refugee Convention reason’ [paragraph 130].

Whilst the determination is unreported, permission to rely upon it could be applied for pursuant to Practice Direction 11.2 of the December 2018 Consolidated Practice Directions. Such an application could be made on the basis that the determination in DM (Sufficiency of Protection – PSG-Women-Domestic Violence) Albania CG [2004] UKIAT 00059 as to whether victims of domestic violence in Albania constitute a particular social group is no longer to be followed, noting this legal proposition is ‘not to be found in any reported determination of the Tribunal, the IAT or the AIT and had not been superseded by the decision of a higher authority’.

 

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