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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kacaj v Secretary of State for the Home Department [2002] EWCA Civ 314 (14th March, 2002) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2002/314.html Cite as: [2002] EWCA Civ 314 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL
Strand, London, WC2A 2LL | ||
B e f o r e :
LORD JUSTICE MAY
and
LORD JUSTICE JONATHAN PARKER
____________________
KLODIANA KACAJ | Appellant | |
- and - | ||
SECRETARY OF STATE FOR THE HOME DEPARTMENT | Respondent |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Robin TAM (instructed by Treasury Solicitors) for the Respondent
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Schiemann :
33. Here too the adjudicator’s conclusions cannot stand. Although we are bound to record that have we a degree of scepticism about some of the account given by Ms Kacaj, we have decided that it would be fair to assume that her account is generally true and to decide the appeal on the basis that she is to be believed.
Conclusions
34. There can be no doubt those Albania still faces serious problems of lawlessness and corruption. In 1997, when many criminals were released from prison, violent crime was rampant and it is by no means surprising that anyone who was perceived to have money should have been targeted by criminals. There was political violence and upheaval following the collapse of the pyramid schemes in early 1997. Those schemes had been, it was believed, promoted by the Government, then run by the DP, and had led to a disastrous loss of money which improvised many. The DP was ousted in 1997 and in November 1998 a new constitution was established. In 2000 the restructuring of the police began and there was a relatively successful crackdown on armed gangs. In October 2000 there were municipal elections (no doubt those referred to by Ms Kacaj). Only a few violent incidents were reported, leading the Human Rights Watch Report of 10 December 2000 to say that this was:
‘a tribute to the Governments’ efforts, as well as to the restraint of the political parties themselves.’
Nonetheless, criminal groups still exist and Albania is a major route for drug and people smuggling. Organised crime is a powerful force, assisted by corrupt police and weak and corrupt judiciary. None the less it is clear that real efforts are being made by the authorities to try to improve things and some success is being achieved.
35. Women are still regarded in some parts of Albania as no more than chattels. Domestic violence is widespread and violations of women’s human rights is a serious problem. Trafficking in women for prostitution continues, as the Human Rights Watch Report confirms. But a fair reading shows that the major problems arise from women being lured with deceptive offers of lucrative work abroad. Other reports show that families sell daughters to those traffickers and that abduction and kidnapping of children occurs. In addition, there is widespread trafficking in women from the various countries which made up the old Soviet Union. We do not overlook the reports of abduction and kidnapping of women, but these do not suggest that such occurrences are as frequent as the other means by which women may find themselves forced into prostitution. Furthermore, as we have said, there are no reports that suggest abductions are or have been used for political purposes. They are the actions of criminals out for gain. In addition, the abuse of women and the low regard in which they are held mean that rape is not treated as seriously as it should be.
36. We have, of course, read the material which has been put before us. We note that Ms Kacaj’s family, including her sister and brother, remain in Albania, albeit her sister is married and no longer lives in Kucove. No evidence has been produced to suggest that any of them have recently been threatened or troubled, and we gather that her father has given up his political activities. The rapists told Ms Kacaj, according to her interview, that they were dealing with her because:
‘Your father didn’t want to please us so you are paying the bill for him. We will use you to hurt him.’
That is consistent with their failure to extort money and does not necessarily show any political motivation. The only evidence which could suggest a political motive is the observation on releasing Ms Kacaj that all democrats would suffer in the same manner. Even if that remark was made, in our view it was intended to make Ms Kacaj’s father believe that he was being targeted for political reasons, perhaps because then he might be more reluctant to involve the police. The objective evidence persuades us that Ms Kacaj has suffered at the hands of criminals motivated by a desire to extort money and not because of a desire to dissuade Ms Kacaj’s father from continuing his political activities on behalf of the DP.
37. The general lawlessness and position of women in Albania does not in our view mean that every Albanian woman can have a claim to remain under either Convention. Actions are being taken to stem such lawlessness and the police are undoubtedly willing to provide protection. It is said that such protection is not effective and that there is therefore a real risk that the feared abduction will take place. It is important to remember that the fear relied on is that of abduction and forced prostitution in Italy. As we have said, the threats were made by criminals to extort money. There is no reason to believe that they intended to put them into effect; indeed, it is in our view probable that they did not. The rape underlined their ruthlessness; the threats were to reinforce the blackmail.
38. There is in our view no real risk that what Ms Kacaj fears will occur. That finding, which we regard as inevitable upon the material before us, means that no claim can succeed under either Convention, since, in the absence of such a risk, there will be no persecution, no violation of Art. 3 and no violation of Art. 4. So far as Art. 8 is concerned, any breach of that (which of course falls well below Art. 3 in terms of seriousness) will be acceptable because of Art. 8 (2) and the need to maintain proper immigration control. We should say that we are far from saying that there is a real risk of a breach of Art. 8, but we do not need to reach a firm conclusion about it. Any such breach will be common to all women in Albania.
(i) The Tribunal made clear in paragraph 37 and 38 that they were concentrating on abduction followed by forced prostitution in Italy. There is a possibility that the Tribunal was not addressing the risk of rape which, on its own, can constitute torture.
(ii) The reference to probability in the penultimate sentence of paragraph 37 gave rise to fears that the Tribunal were not applying their mind to risk, as opposed to probability. A degree of risk of torture falling short of probability can suffice to make it unlawful to return an immigrant.
(iii) The Tribunal erred in saying that there was no reason to believe that the criminals intended to put their threats into effect : the fact that they had already put threats into effect in the past in relation to this very woman, as witness the kidnap and rape of 24 September, seems to have been overlooked by the Tribunal. At the lowest this point deserved explanation – see Demirkaya v Secretary of State [1999] Imm AR 498 at p.506.
(iv) The relative frequency of the causes of prostitution as examined by the Tribunal in paragraph 35 is nothing to the point. If there is a threat of abduction of this woman and her forced prostitution, it becomes no less a threat because other women resort to prostitution for other reasons.
(v) The finding at the beginning of paragraph 38 that it was “inevitable” on the material before the Tribunal that there was no real risk that what the immigrant feared would occur was untenable in the light of what that material contained.
Lord Justice May:
Lord Justice Jonathan Parker:
“If I were forced to return to Albania I fear that worse things could happen to me than have already happened. I think they could take me again, and that I would be treated the same way as before. I am afraid they are going to do this. I don’t want them to take me to Italy.”
“The only reason is the fear they could find me again. If they could get hold of me I’m sure I would end up in or around Italian streets.”
“No, I don’t think so – anything could happen to him. However, I was the main target, and as a result I had to leave.”
“Yes, they wanted to hurt my father. It was not enough for them just to beat him up and intimidate – they wanted to hurt him by abusing his child. To hurt his soul. The physical scars may heal, but the emotional ones will take time to heal.”
“.... whether there was a real risk that she would be abducted as she said she feared and sent to prostitution in order to extort money from or punish her father for his political activities.”
“It is important to remember that the fear relied on is that of abduction and forced prostitution in Italy.”