Sweden - Migration Court of Appeal, 21 November 2008, UM 1042-08

Facts:

The applicant is a woman from Albania with two young children. She applied for asylum on the grounds of having been subject to violence and threats of violence from her former husband. She had not received help from local authorities, but had instead been treated badly when trying to report the abuse to the police. The abuse had been going on for several years. The children had also suffered physical and mental abuse. The applicant stated that she and her family were not safe anywhere in Albania.

The Migration Board denied the application on October 26 2007 with reference to internal protection. The decision was appealed to the Gothenburg Migration Court which on February 12 2008 granted the appeal.

The Migration Board appealed to the Migration Court of Appeal. The Board claimed that the current situation in Albania allows for abused women to seek and be granted protection from the authorities and that Albanian authorities are both willing and able to provide protection for this group. 
The Migration Board also argued that it had not been shown in the case that it would not be reasonable, relevant or plausible for the woman to live in another part of the country.

Decision & reasoning:

The Migration Court of Appeal first stated that the applicant’s need for protection should be considered against Albania as a whole.

The applicant’s statement about violence and abuse by her former husband and the lack of protection were considered credible by the Court. In this context, the Court discussed the criteria for gender-related persecution. The applicant was regarded as having a well-founded fear of persecution based on gender (as a particular social group) and that she therefore was eligible for protection as a refugee (Aliens Act Chapter 4 Section 1 and Article 7.2 Qualification Directive).

The Migration Court of Appeal however established that a need for international protection does not exist if internal protection is available in any part of the country of origin and it would be reasonable to expect the alien to take up residence there (Item 91, UNHCR Handbook, Article 8, Qualification Directive). The Court then stated that the Albanian authorities (according to available COI) should be seen as being able to, in general at least, provide adequate protection against persecution. As there are no limitations of free movement in the country or the right to be registered and to seek employment (MIG 2007:33) and the applicant had completed her upper secondary education, the Court did not find it unreasonable that she could return to another part of Albania than her region of origin. In conclusion, the Court found that internal protection was an available and reasonable option for the applicant and her children. Neither did the Court find that, while taking into account the fact that children were involved, that there were sufficient reasons for granting residence permits on the grounds of exceptionally distressing circumstances (Aliens Act Chapter 5 Section 6).;

Outcome:

The Migration Court of Appeal granted the appeal, thereby reversing the judgment of the Migration Court. The applicants were denied asylum.

Observations/comments:

It can be noted that the Court has put emphasis on the legislation passed in Albania on domestic violence and less on the impact of patriarchal structures that are still (according to COI) strong in Albanian society. It can also be noted that the child rights perspective is conspicuous in its absence.