![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
United Kingdom Asylum and Immigration Tribunal |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> YK and RL ( Kosovo, Risk to homosexuals) Serbia and Montenegro CG [2005] UKIAT 00005 (19 January 2005) URL: https://www.bailii.org/uk/cases/UKIAT/2005/00005.html Cite as: [2005] UKAIT 00005, [2005] UKIAT 5, [2005] UKIAT 00005 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
YK and RL ( Kosovo – Risk to homosexuals) Serbia
and Montenegro CG [2005] UKIAT 00005
IMMIGRATION APPEAL TRIBUNAL
Date of hearing: 30 November 2004
Date Determination notified: 19 January 2005
Before
Mr R Baines JP
Between
Secretary of State for the Home Department | APPELLANT |
and | |
YK and RL | RESPONDENT |
DETERMINATION AND REASONS
"In the light of the information gathered for this report it will emerge that these socio-cultural reasons explain why assaults and discriminations against homosexuals are neither reported nor known in Kosovo despite the fact that homophobia and attacks against homosexuals exist where such sexual orientation becomes know."
Mr Saunders said it was certainly one thing for attacks not to be reported, but to say they are not known is an entirely different matter; if attacks were not known, then they could hardly be reported. Homosexuality is not illegal in Kosovo. The only attacks referred to in any of the objective material before us is the reference in the expert's report at page 6, where she refers to:-
"In an article published last September [2002] the daily newspaper Epoka e Re spoke of the'dangerous ways and behaviour brought by the foreigners', before naming a restaurant near the university in Prishtina as a popular meeting place for homosexuals. According to the OSCE's media adviser in Kosovo, Willem Houeem, three members of Kosovo's Gay and Lesbian Association were beaten up immediately after the article was published."
"Kosovan society is characterised by its patriarchal and traditional nature: therefore homosexuality is widely considered to be a taboo subject. Individuals in Kosovo freely express their homosexuality, with those who do being concentrated in urban Prishtina. In rural areas, homosexuality is considered to be 'non-existent' and is apparently kept hidden by individuals and within family structures. It is likely that homosexual individuals may be exposed to psychological and physical abuse and harassment by individuals and/or groups, should their sexuality be discovered or openly practised in Kosovo."
This was said by UNHCR to derive from the information provided by UNHCR in Prishtina. Given what the UNHCR say, Mr Saunders suggested that one might expect to see some evidence of actual anti-homosexual behaviour.
"Taking cultural stigmatisation in general and culture equalisation of homosexuality and same sex relations with minors in particular into account (through naming any homosexual as a 'pederast'), there is little hope that Albanian judges would interpret a homosexual relationship as anything but illegal."
This is because, the given Albanian cultural understanding, homosexuality is said to be widely associated with same sex relationship with minors. The common majority name for homosexuals is, confusingly, Peder (from Pederast), independent of whether a relationship with a minor actually exists. However, Mr Saunders pointed out that homosexuality was not illegal in Kosovo. There was no question of anybody being brought before a judge charged with homosexual offences. The report appeared to ignore this fact. There was no evidence before the Tribunal of the law being applied in the way suggested by the expert in her report. The report emphasises the discriminatory and prejudicial nature of societal attitudes, but offered no evidence of it manifesting itself. Mr. Saunders referred us to the Country Information and Policy Unit Assessment (paragraph K6.100) and reminded us that UNMIK regulations prohibit discrimination the basis of sexual orientation. According to a request made by the Kosovo Information Project to UNMIK, until September 2002, there were no recorded incidents of violence directed against homosexuals during the time since UNMIK had been the authority in the province. The only incidents of violence was the report published in the newspaper Epoka e Re referred to by the expert. He submitted that since there was no evidence of any harm the Secretary of State's appeal should be allowed.
"The starting-point must be from Dyli that UMIK and KFOR offer a sufficiency of protection to young returning Kosovans in most general circumstances. UMIK seeks to outlaw discriminating, including discrimination against homosexuals. Against that background the findings and the report of the expert presented by the appellant has to be assessed. She [finds] finds that homophobic attitudes are so ingrained in society from stand-points of religion, virility and likely to go unreported. Even if reported, they would be met by a hostile police and judiciary. While accepting the absence of, and difficulty in finding, concrete examples, the report is well reasoned and persuasive. For there to be a sufficiency of protection, it is necessary not only that UMIK be willing to support them, but that there be a tolerance in the community and a willingness and sufficiency of protection amongst the police, the judiciary and the religious communities. Outside of UMIK there are substantial reasons for considering that there would be an insufficiency of protection in the community and the danger is of such a severity that Article 3 rights would be abused. In the case of this appellant and his partner, I find that return would involve a breach of Article 3 rights."
"The judicial tradition is such that Albanian judges will interpret a homosexual relationship as illegal. The conclusion of the report is that the appellants' fears of severe discrimination, injury or death if returned to Kosovo and if their sexuality became known and their lack of trust in Kosovan institutions and the police are consistent with the researchers understanding of the current situation and treatment of homosexuals in Kosovo. The appellant's would not be likely to be able to live openly and continue their relationship if returned to Kosovo."
Richard Chalkley
Vice President