UK: Court of Appeal rules that interpretation in HJ is consistent with CJEU case law, but Tribunals erred in relying upon MK (Albania)

Tuesday, May 9, 2017

On 9 May 2017, the Court of Appeal delivered its judgment in case LC (Albania) v SSHD. The case concerned an Albanian national who had his asylum application refused on the grounds of lack of credibility of his sexual orientation and the belief that he would be able to live openly in Albania as a gay man. The First-tier Tribunal, adopting the approach advocated in HJ (Iran), accepted the applicant’s account regarding his sexual orientation, but ruled that the appellant would avoid the risk of persecution as he would “live discreetly in Albania as a matter of voluntary choice motivated by social pressure”. An appeal was brought under two grounds: (1) error in law in applying the country guidance of MK (Albania), as the Court of Appeal had set aside that determination; (2) that, in light of subsequent European Court cases, the guidance in HJ (Iran) could not be considered consistent with the Qualification Directive.
Regarding the first ground, the SSHD conceded that the tribunals had erred in relying upon MK (Albania) as a country guidance case. Therefore, according to the interpretation of the appellant’s representatives, any individual who was refused asylum between 10 October 2011 and the 22 December 2016, based on the unlawful reliance of MK (Albania), has now a clear right to submit a fresh claim for asylum.
With regard to the second ground, the Court of Appeal differed from the appellants’ interpretation and ruled that the CJEU rulings in Y and Z and X, Y and Z were consistent with the guidance in HJ (Iran). It also found no inconsistency between the legal analysis by the Supreme Court in HJ (Iran) and the Qualification Directive. It also dismissed the appellant’s argument that the First-tier Tribunal had erred by using the appellant’s conduct in the UK as a conclusive indicator of his behaviour if returned to Albania.
The Court of Appeal refused the application for permission to appeal to the Supreme Court.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



Gender Based Persecution
Persecution (acts of)
Persecution Grounds/Reasons
Sexual orientation