Koceku, R (on the application of) v Secretary of State for Home Department

For certification under section 94 of the Nationality and Asylum Act 2002, the Secretary of State must decide whether the claim could succeed on any legitimate view. That requires anxious scrutiny of the individual facts, the objective country material and any evidence capable of supporting a different legitimate conclusion. A general assessment that protection is available does not resolve the individual case. Failure to approach the police or reconciliation agencies may limit evidence about their practical deficiencies, but cannot by itself defeat a claim based on undisputed facts and objective material. Certification is unlawful where relevant evidence, including the depth and persistence of a feud, is given insufficient weight or considered in isolation.

The claimant, an Albanian national, sought judicial review of the Secretary of State’s certification under section 94(3) of the Nationality and Asylum Act 2002. Albania was listed under section 94(4), so certification was required unless the claim was not clearly unfounded. The claim concerned the risk of persecution and inadequate state protection arising from a longstanding blood or family feud. The claimant had been returned to Albania by administrative error before permission was granted and remained in hiding. The central issue was whether the Secretary of State had lawfully concluded that the claim could not succeed on any legitimate view.

Application granted. The certification was quashed.

1. Under the approach identified in ZL & VL v Secretary of State for the Home Department [2003] EWCA Civ 25, inclusion of Albania in the statutory list did not establish that removal would comply with Convention rights. The Secretary of State had to consider the factual substance and detail of the claim, the background evidence, whether the claim was capable of belief in whole or in part, and whether it could come within the Convention. The question was whether it could not succeed on any legitimate view.
2. The sufficiency-of-protection test in Horvath v Secretary of State for the Home Department [2001] 1 AC 489 required protection which was practical and sufficient, rather than complete protection against every isolated or random attack. The state had to have criminal laws of appropriate severity and a reasonable willingness by police and courts to detect, prosecute and punish offenders. Inefficiency or incompetence did not necessarily establish unwillingness.
3. The Secretary of State was entitled to note that the claimant had not returned to the police or approached reconciliation agencies. That failure deprived him of evidence about deficiencies which such approaches might have demonstrated. It did not, however, answer the claim based on the undisputed facts and objective evidence.
4. The objective evidence, including evidence of killings, self-confinement, institutional weakness and the limited success of reconciliation services, did not decisively establish sufficient protection. The failed family mediation was relevant evidence of the depth of the feud and should not have been discounted merely because it occurred many years earlier or because newer reconciliation services existed.
5. Alfred Brozi [2002] UK IAT 06978 and Koci [2002] UK IAT 08006 illustrated that reasonable decision-makers could reach different legitimate conclusions on sufficiency of protection in Albanian blood-feud cases. The cumulative failure to weigh the individual facts against the full objective material meant that the certification could not stand.

Permission to appeal was refused, but the time for applying to the Court of Appeal was extended to 28 days. Costs were awarded to the claimant.