In the new country guidance case of BF (Tirana – gay men) Albania (CG) [2019] UKUT 93 (IAC) the Upper Tribunal has found that there may well be a risk of persecution for gay men from Albania outside the capital, Tirana, but that they can nevertheless in general reasonably and safely relocate to Tirana.

The new decision replaces a hopelessly outdated, in every conceivable sense, one from 2003. Even though that was one of the cases retrospectively designated as country guidance when the whole country guidance system was later created, it was still there on the list until last week for judges to either follow or distinguish. Which is just silly, frankly.

The new determination arguably suffers from the classic problems of a country guidance case: taking absence of evidence as evidence of absence, a logical fallacy. See for example paragraph 177. Judges do clearly need some evidential foundation to make positive findings, but it would be useful to see a positive role for uncertainty in these cases.

The official headnote:

(i) Particular care must be exercised when assessing the risk of violence and the lack of sufficiency of protection for openly gay men whose home area is outside Tirana, given the evidence of openly gay men from outside Tirana encountering violence as a result of their sexuality. Such cases will turn on the particular evidence presented.

(ii) Turning to the position in Tirana, in general, an openly gay man, by virtue of that fact alone, would not have an objectively well-founded fear of serious harm or persecution on return to Tirana.

(iii) There is only very limited evidence that an individual would be traced to Tirana by operation of either the registration system or criminal checks at the airport. However, it is plausible that a person might be traced via family or other connections being made on enquiry in Tirana.  Whether an openly gay man might be traced to Tirana by family members or others who would wish him harm is a question for determination on the evidence in each case depending on the motivation of the family and the extent of its hostility.

(iv) There exists in Tirana a generally effective system of protection should an openly gay man face a risk of harm in that city or from elsewhere in Albania.

(v) An openly gay man may face discrimination in Tirana, particularly in the areas of employment and healthcare. However, whether considered individually or cumulatively, in general the level of such discrimination is not sufficiently serious to amount to persecution. Discrimination on grounds of sexual orientation is unlawful in Albania and there are avenues to seek redress.  Same-sex relationships are not legally recognised in Albania. However, there is no evidence that this causes serious legal difficulties for relationships between openly gay men.

(vi) In general, it will not be unduly harsh for an openly gay man to relocate to Tirana, but each case must be assessed on its own facts, taking into account an individual’s particular circumstances, including education, health and the reason why relocation is being addressed.

BF (gay men – Tirana ) Albania [2019] UKUT 0093 (IAC) appeared for the appellant with @JSmeats @No5Chambers ( instructed by SMA Solicitors) and @ColinThomann @39EssexChambers for the respondent @ukhomeoffice 🌈 #LGBT+ #Albania #Tirana #CountryGuidance https://t.co/SsLchEDzVs

— Dr Chelvan (@S_Chelvan) March 29, 2019