UK - Upper Tribunal, AM and BM (Trafficked women) Albania CG [2010] UKUT 80 (IAC)
| Country of Decision: | United Kingdom |
| Country of applicant: | Albania |
| Court name: | Upper Tribunal (Immigration and Asylum Chamber) |
| Date of decision: | 18-02-2010 |
| Citation: | AM and BM (Trafficked women) Albania CG [2010] UKUT 80 (IAC) |
Keywords:
| Keywords |
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Actors of protection
Description
"Actors such as: (a) the State; or (b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State; who take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection." |
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Actor of persecution or serious harm
Description
Per Art. 6 QD actors who subject an individual to acts of serious harm (as defined in Art. 15). Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7. |
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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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Non-state actors/agents of persecution
Description
People or entities responsible for acts or threats of persecution, which are not under the control of the government, and which may give rise to refugee status if they are facilitated, encouraged, or tolerated by the government, or if the government is unable or unwilling to provide effective protection against them. |
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Protection
Description
A concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be provided against persecution or mistreatment by: “(a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the ECHR and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. |
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Trafficking in human beings
Description
"The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. A position of vulnerability means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved. Exploitation includes, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs." |
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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
Headnote:
The appellants argued that they were at risk of re-trafficking and would not find protection anywhere in Albania. The tribunal agreed, and laid down country guidance on the risks facing trafficked women and the absence of effective protection from these risks.
Facts:
AM was trafficked by her husband, passed to a pimp and raped. She tried to commit suicide. She was kept in prostitution, and when she became pregnant was brought to the UK to continue working and to sell the baby. She escaped in the UK. BM was abducted by traffickers who killed her father and raped her repeatedly. She was taken to Italy and put to work as a prostitute. She escaped in a lorry to the UK.
Decision & reasoning:
The Tribunal made findings on the basis of the evidence of the appellants and experts which led to their giving the following country guidance relevant to sufficiency of protection of Albanian women who have been trafficked and the viability of internal relocation:
1. At its worst the psychological damage inflicted on a victim of trafficking can lead to difficulties in reintegrating into Albanian society and has implications for whether or not it is possible for the victim of trafficking, should she fear persecution in her own area, to relocate.
2. Much of Albanian society is governed by a strict code of honour which not only means that trafficked women would have very considerable difficulty in reintegrating into their home areas on return but also will affect their ability to relocate internally. Those who have children outside marriage are particularly vulnerable. In extreme cases the close relatives of the trafficked woman may refuse to have the trafficked woman’s child return with her and could force her to abandon the child.
3. Those that see themselves outside society, for example, divorced or abandoned women, or others who wish to live abroad, may seek out traffickers in order to facilitate their departure from Albania and their establishment in prostitution abroad. Although such women are not “trafficked women” in the sense that they have not been abducted against their will, there is likely to be considerable violence within the relationships and the psychological effect of that violence may lead to a situation where the pressures which they are under and the lack of freedom they are under means that such women should be treated as trafficked women.
4. The Albanian Government and authorities are taking steps to protect trafficked women who return but such steps are not always effective. When considering whether or not there is a sufficiency of protection for a trafficked woman who is to be returned her particular circumstances must be considered. Not all trafficked women returning to Albania will be unable to access the arrangements and facilities available to enable successful re-integration.
5. Trafficked women from Albania may well be members of a particular social group on that account alone. Whether they are at risk of persecution on account of such membership and whether they will be able to access sufficiency of protection from the authorities will depend upon their individual circumstances including but not limited to the following: i)The social status and economic standing of the trafficked woman’s family. ii) The level of education of the trafficked woman or her family. iii) The trafficked woman’s state of health, particularly her mental health. iv) The presence of an illegitimate child. v) The area of origin of the trafficked woman’s family. vi) The trafficked woman’s age.
TheTribunal held that in Albania internal relocation was at minimum problematical for the victim of trafficking. Individual factors must be carefully considered, in particular the woman’s educational and social background and the geographical location of her home area.
The reasoning on which the conclusions about sufficiency of protection were based included ‘the brutality of those who have abducted women and trafficked them to Europe. The Upper Tribunal consider that the levels of corruption in Albania and societal attitudes towards women, particularly those that are thought of as “kurva”, are such that it is not possible to reach a clear conclusion that there is in all cases for a victim of trafficking a sufficiency of protection from her former traffickers.’
Critical factors in the decision on internal relocation were the fact that Albania is a small country; expert evidence thatit is not possible to live somewhere without being known because of the strength of family bonds, the ease of identifying people as soon as their name is known, the police practice of ‘scanning’ the population; the difficulties for a single woman to reintegrate into a society where the family is the principal unit for welfare and support as well as the channel through which employment is most often obtained; the impact of returning to that environment while suffering the effects of trauma. The tribunal said that if a victim of trafficking had suffered severe trauma through multiple rape, imprisonment, or other brutal treatment, this must be taken into account when assessing her ability to relocate internally.
Outcome:
Appeals granted.
Observations/comments:
Case law summarised as part of APAIPA Project.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| UK - Immigration Rules - Para 339K |
| UK - Refugee or Person in Need of International Protection (Qualification) Regulations SI2006/2525 |
| UK - Immigration Rules - Para 339O |
Cited Cases:
Other sources:
Article 3 of the United Nations Protocol, to prevent, suppress and punish trafficking in persons, especially women and children dated 15th November 2000, supplementing the United Nations Convention against Transnational Organised Crime;
Council of Europe Convention of 16th May 2005, on action against trafficking in Human Beings;
UNHCR Trafficking Guidelines;
European Commission Staff working document, Albania, 2008 Progress Report;
Amnesty International report: Albania 2008;
International Organisation for Migration United Nations in Albania, 2008;
Anti-slavery – Vera Lesko and the hearth 2008;
Anti-slavery trafficking Albania 2008;
Open Society Institution: Violence Against Women: Does the Government Care in Albania 2008;
Different and Equal Annual Report 2007;
Vatra Annual Report 2007;
Amnesty International: “No Place to Call Home” 2007;
Violence against Women: Does the Government care in Albania? 2007;
Human Rights Watch: Albania 2006; “Different and Equal” a study of the reintegration process of former Albanian victims of human trafficking 2006;
Amnesty International Albania: Violence against Women in the family 2006;
Amnesty International Obligations: under the UN Convention against Torture 2005;
Human Smuggling and Trafficking Centre Fact Sheet Distinction between human smuggling and human trafficking 2005;
Asylum Aid Report: “Safe for Whom?”, extracts on Albania 2004;