In BF (Albania) v SSHD [2019] EWCA Civ 1781 the Court of Appeal has denied permission to appeal a recent Albanian country guidance case on the risk of persecution faced by gay men there.

The Upper Tribunal, while cautious about the rest of Albania, had concluded that gay men could in general reasonably and safely relocate to the capital, Tirana. The new determination arguably suffers from the classic problems of a country guidance case: taking absence of evidence as evidence of absence. It shows the difficulty advocates will have in trying to go behind findings made by the Upper Tribunal in country guidance cases, whether they rest on a logical fallacy or not. 

Lord Justice Hickinbottom started by setting out the correct approach to these sorts of appeals. The appeal court should be very reluctant to revisit findings made by the Upper Tribunal and should not mistake a disagreement with the tribunal’s assessment of facts with errors of law:

In my view MA (Somalia) remains good law; and there is force in Mr Thomann’s submission that, in a fact-heavy country guidance case in which the evidence submitted is very substantial, the deference to be given to the tribunal’s findings is the greater.

This left BF in a difficult position, as his primary grounds, though framed as errors of law, were that:

• The Upper Tribunal was wrong to say it would be safe for him to relocate to Tirana
• The state could not give sufficient protection against that risk
• He would struggle to find employment there
•  His family would trace him to Tirana and harm him

In dismissing these arguments, the court frequently referred back to what it considered the tribunal’s extensive and nuanced treatment of the evidence:

the tribunal set out at considerable length the available country specific evidence… [including] the work of NGOs supporting LGBT community rights in Albania… concluding that there is no real risk that an openly gay man would face persecution if living in Tirana (at [186]). This was a comprehensive review of all the relevant evidence. The tribunal properly viewed this evidence in the round, giving the various parts of it the weight it considered appropriate, weight of course being quintessentially a matter for the tribunal.

The country guidance ruling — BF (Tirana – gay men) Albania [2019] UKUT 93 (IAC) — comprises 265 paragraphs’ analysis of almost 1,000 pages of evidence. After this, it’s clear that new and compelling evidence will be needed to have any hope of modifying the country guidance in the near future. 

Meanwhile, asylum seekers in this position face an uphill battle. They will need substantial evidence relating to their individual situation that shows either why they will not be able to relocate to Tirana or why Tirana itself is unsafe for them. They will need to show why they cannot avail themselves of the protection of NGOs or the state in Tirana. If they fear being traced by and persecuted by family or friends, they will need evidence that those people are inclined or able to do so. 

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