Permission has been granted in a judicial review case where an Albanian man claiming asylum had his claim certified on the basis that he was from a ‘safe country’, meaning that he was not allowed to appeal. There was also an unlawful detention claim. The case is R (H) v Secretary of State for the Home Department [2023] EWHC 2758 (Admin).

Background

The claimant is an Albanian national who arrived in the UK in January 2023 in a lorry. He claimed asylum the same month on the basis of a fear of persecution in Albania as a result of a blood feud.

His asylum claim was ‘certified’ in April 2023 under section 94(3) of the Nationality, Immigration and Asylum Act 2002. Albania is on the list of safe countries at section 94(4) of the 2002 Act and so asylum claims by Albanian nationals must be certified unless the Home Secretary is satisfied that the claim is not ‘clearly unfounded’.

The effect of the certification decision is that no appeal can be brought against the decision. This was a change made by the Nationality and Borders Act 2022 which inserted section 94(3A) to the 2002 Act. A judicial review application was lodged on 4 May 2023 and permission on the papers was refused on 29 June 2023. The application was renewed and an oral permission hearing held.

The importance of country guidance cases

The Home Office said, in rejecting the claim, that there was sufficient protection available from the Albanian authorities and therefore any fear held by the claimant was not objectively well-founded.

There is a current country guidance case on Albanian blood feuds, EH (blood feuds) Albania CG [2012] UKUT 00348 (IAC). One of the grounds of challenge in the judicial review was that the Home Secretary had failed to treat this case as the starting point for her decision and/or had failed to justify departing from it in finding that there was sufficiency of protection from the Albanian authorities.

In making the certification decision, the Home Office had referred to the ‘Country Policy and Information Note Albania: Actors of protection Version 2.0 December 2022’ in support of the conclusion that there is effective protection available from Albanian authorities. However the headnote in EH says something slightly different:

The Albanian state has taken steps to improve state protection, but in areas where Kanun law predominates (particularly in northern Albania) those steps do not yet provide sufficiency of protection from Kanun-related blood-taking if an active feud exists and affects the individual claimant. Internal relocation to an area of Albania less dependent on the Kanun may provide sufficient protection, depending on the reach, influence, and commitment to prosecution of the feud by the aggressor clan. The decision letter did not engage with this point, which was relevant in the claimant’s case.

The High Court set out the correct approach to cases challenging certification, from ZT (Kosovo) [2009] UKHL 6, which is whether the court believes that there is a realistic prospect of success before an immigration judge. In addressing this point, the court reiterated the significance of there being a country guidance case on the issues under consideration. The judge referred to the Practice Direction of the First-tier Tribunal which states at 9.2:

A reported decision of the Upper Tribunal, the AIT, or IAT, bearing the letters “CG” shall be treated as an authoritative finding on the country guidance issue identified in the decision, based upon the evidence before the members of the Upper Tribunal, the AIT, and the IAT that decided the appeal. As a result, unless it has been expressly superseded or replaced by any later “CG” decision, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:
(a) relates to the country guidance issue in question; and
(b) depends upon the same or similar evidence.

The court referred to Roba [2022] UKUT 1 (IAC) as authority for the position that country guidance is treated as a presumption of fact. This means that the party seeking to depart from it must persuade the Tribunal to do so by providing supporting evidence. An assessment then needs to be made about whether to depart from the country guidance case. That decision will include consideration of whether the material circumstances have changed, followed by whether those changes are well established and durable.

Roba also confirmed that this process is not affected by the age of the country guidance case, this point is relevant given EH is over ten years old. The court commented that as cases do become older, it may be that “evidence will become available that makes it more likely that departure from the decision will be justified”. However unless departure from the country guidance in an individual case has been shown to be justified, the position in the country guidance case must be adopted by the First-tier Tribunal.

The High Court pointed out that if the claimant had not been deprived of his right to appeal to the First-tier Tribunal, the Tribunal would have been bound to follow EH because of its country guidance status, unless the Home Secretary had persuaded it that departure from that guidance was justified.

The court said that it is important that Home Office decision makers bear in mind the significance of country guidance cases when making certification decisions. The court held that it was arguable that the certification decision did not allow for the prospect of a First-tier Tribunal judge applying EH and coming to a different view than the Home Office on sufficiency of protection.

Internal relocation

Another ground of challenge was in relation to the assertion by the Home Office that internal relocation within Albania was a safe alternative. The claimant referred to the country policy information note of September 2022 which had dealt with “internal relocation and references several independent sources reporting that movement “can reduce tension but does not guarantee safety” and “no person is safe from blood feud in any city in Albania”.” The court noted at [38] that the more recent version of the country policy information note, published in January 2023, omitted these sources without explanation.

The court found it arguable that a hypothetical First-tier Tribunal could make a finding that internal relocation would not protect the claimant and that certification on this basis was also erroneous. As certification was relevant to the decision to detain, permission was also granted for the unlawful detention claim.

Conclusion

We know that the country evidence the Home Office is relying on is problematic. It is good to see the court pick up on the unexplained omission of information from the January 2023 version of the country policy information note. Although only a permission decision, this is a good reminder to practitioners that many challenges to the certification of Albanian cases are likely to be arguable and that there is evidence out there that undermines the Home Office’s position that Albania is a safe country.