UK - Immigration Appeal Tribunal, 19 July 2001, Kacaj v Secretary of State for the Home Department [2001] UKIAT 0018

Country of Decision:
Country of Applicant:
Date of Decision:
19-07-2001
Citation:
[2001] UKIAT 0018
Additional Citation:
[2001] INLR 354, [2002] Imm AR 213, [2001] UKIAT 01TH0634
Court Name:
Immigration Appeal Tribunal
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Headnote: 
This case confirmed that the UK will apply a single standard of proof for protection claims, whether based on Refugee Convention grounds or Art 3 of the European Convention on Human Rights (ECHR).
Facts: 
The applicant was a young Albanian woman. Her father owned a bakery and had been an active member of the Democratic Party (DP). Her father received a demand for $10,000, which he initially refused to pay. He believed the Socialist Party was behind the demand. Both applicant and her Father were threatened and assaulted by armed men. Following more threats, a family member was shot dead. The Father paid the money demanded and then closed the shop, however, he continued to assist the DP in 1997.

In September 2000, the Father again assisted the DP during an election.  Again, he received a demand for $20,000 with the threat that his daughter, the applicant, would be trafficked to Italy. The family did not seek police protection because the father believed that the police were corrupt.
 
The applicant was abducted and raped by three men who said that all democrats would suffer in the same way. She reported the events to the police who said they would not help. More demands and threats followed, even though the Father had ceased his political activities and the applicant left fearing that she would be trafficked into Italy.
 
At the initial appeal against the administrative decision to refuse her application, the adjudicator dismissed the appeal under the Regugee Convention but allowed it under Art 3 of the ECHR. Both parties appealed to the Iimmigration Appeal Tribunal (IAT) (the Tribunal).
 
The Tribunal identified three points of principle to be determined before the law could be appied to the facts of the case:
 
1) What was the correct standard of proof in an Art 3 case?
The Secretary of State for the Home Department had submitted that past facts had to be established beyond reasonable doubt. This is the UK standard of proof for criminal cases.
 
2) Can there be a breach of ECHR , where the treatment which may result if the removal takes place is by non-state actors. Does the approach adopted by the House of Lords in Horvath[2000] 3 WLR 379 (summary contained in database) to the Refugee Convention apply equally to the Human Rights Convention or are there differences?
 
3) Does any Article of the ECHR other than Art 3 have what has been callled extraterritorial effect?
Decision & Reasoning: 
On the second question, the Tribunal’s immediate finding that there could be a breach if the treatement was  the result of non state actors was supported by reference to decsions in the European Court of Human Rights and is now established in Art 6(c).The case of Horvath was also applicable.

The third question was decided in the affirmative, the Tribunal relied heavily on the case of Soering v United Kingdom (1989) EHRR 439 to support its finding that there was no reason to exclude the possibie application of any other relevant Article, with the possible exception of Art 2.

The first question was similar to the questions posed in Kaja in relation to the Refugee Convention. In 1994 the Secretary of State for the Home Department had submitted that there was a two stage process of refugee status determination, in which the facts had to be established on the UK civil standard of the balance of probabilities before the question of future risk and qualification under Art 1A could be assessed. In 2001, the Secretary of State submitted that the correct standard for establishing the facts was the UK criminal standard of beyond reasonable doubt.

The Secretary of State relied on Ireland v UK (1978) 2 E H R R 29. The allegation there was that the UK had been directly responsible for breaches of Art 3, a situation which the Tribunal distinguished from deportation cases. The Tribunal again drew heavily on the judgment of Soering  v United Kingdom (1989) EHRR 439 which established the test of “substantial grounds’ “91…for believing that the person concerned, if extradicted, faces a real risk of being subjected to torture or to inhuman or degrading treatment of punishment …” 

Having quoted from Cruz Varas  v Sweden ( 1991) 14 E.H.R.R. 1, the Tribunal commented “ this is not the language which supports the need for past facts to be proved beyond reasonable doubt…”

The conclusion of the Tribunal was that there is not a two stage process and moreover that the test formulated by the European court was no different from the test applicable in asylum cases.

Applying the law to the applicant’s account, which was accepted with some reservations, the Tribunal dismissed the appeal, finding that her past experiences had been the result of criminal activity without any political motivation and that even taking into account the evidence that women in parts of Albania were regarded as “no more than chattels”  and the evidence of trafficking of women, in this case the threats of trafficking were associated with extortion and the Tribunal did not believe that there was any intention to put them into effect. On that basis, there was little consideration of the sufficiency of protection as the risk had not been made out.
Outcome: 
Appeal dismissed.
Subsequent Proceedings : 
Kacaj v Secretary of State for the Home Department [2002] EWCA Civ 314

The applicant appealed to the Court of Appeal and the matter was sent back to the Tribunal for a fresh hearing because there were doubts about the Tribunal’s assessment of the risk to the applicant. The decision was limited to the facts of her case. The court explicitly declined to re-open or comment on the legal issues which had been considered and approved by the High Court in Dhima v Immigration Appeal Tribunal [2002] EWHC 80 (Admin).
Observations/Comments: 
The decision in Kacaj harmonised the approach to the fact-finding in cases involving the Refugee and European Convention on Human Rights in the UK .

The Qualification Directive has superceded but not overturned most of the decision as set out in:
 
Art 2 (e) settles the standard of proof as substantial grounds for believing that the person would face a real risk of suffering serious harm. UK courts have continued to hold that this is the same as the standard set in the case Sivakumaran.
 
Art 6(c) deals with non state actors or persecution
 
Art 7.2 is comparable to the test as established in the case of Horvath (please see case summary in this database). 
Case Law Cited: 

UK - Fernandez v Government of Singapore [1971] 1 WLR 987



UK - Holub v Secretary of State for the Home Department [2001] WLR 1359

UK - R v Secretary of State for the Home Department Ex p Sivakumaran (and conjoined appeals) [1988] AC 958

UK - Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ 11

ECtHR - Ireland v United Kingdom (Application no. 5310/71)

ECtHR - Cruz Varas & Others v Sweden (Application no. 15576/89)


ECtHR - Hilal v United Kingdom, Application no. 45276/99

ECtHR - Abdulaziz, Cabales and Balkandali v United Kingdom (Application no. 9214/80; 9473/81; 9474/81)