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

In an asylum or humanitarian protection claim based on threats from private individuals, refusal may be justified where the claimant can reasonably relocate internally and there is no evidence that the feared individuals have influence over the authorities. The availability of effective police protection is relevant to that assessment.

Forced prostitution is capable of amounting to persecution and of engaging Article 3. An erroneous statement that conduct does not amount to persecution will not necessarily invalidate the decision where the Secretary of State has otherwise considered the risk and the decision remains sustainable.

The claimant, an Albanian national, sought asylum and humanitarian protection based on feared violence from her father and former boyfriend. She also alleged forced prostitution, rape and inadequate police assistance in Albania.

The Secretary of State refused the claim, relying on the possibility of internal relocation and the availability of police protection. The claimant renewed an application for judicial review and challenged the treatment of Albania as a safe country under section 94(3) of the Act. The central issue was whether the refusal was such that an immigration judge could allow an appeal.

1. The renewed application for judicial review was refused, and permission to appeal was also refused. The court was satisfied that the reasons in the refusal letter could withstand scrutiny and that the claim could not succeed before an immigration judge.

2. The claimant’s account concerned feared attacks by her father and former boyfriend. The Secretary of State was entitled to consider whether she could avoid those threats by living elsewhere in Albania. The evidence did not indicate that either feared individual had particular influence with the authorities.

3. Although the claimant had previously experienced difficulty obtaining police assistance, the court considered that the police could deal with a real fear of violence. Internal relocation and state protection therefore provided a sustainable basis for refusing asylum and humanitarian protection.

4. The court accepted that forced prostitution was clearly capable of amounting to persecution and could breach Article 3. The refusal letter’s statement that the conduct did not amount to persecution was an error, but the Secretary of State had considered the relevant risk, including possible forced prostitution, and the error did not make the decision unlawful.

5. The challenge concerning Albania’s inclusion under section 94(3) of the Act was not determined because it was unnecessary. The tribunal had been wrong to regard the challenge as one to primary legislation, although it lacked jurisdiction because the grounds challenged secondary legislation. The same issue could arise in considering whether certification was appropriate.

6. No further costs order was made beyond the existing order for £320 relating to the acknowledgement of service.

The judgment concerned a renewed application for judicial review. An earlier tribunal had refused jurisdiction, incorrectly stating that the claimant was attacking primary legislation. The High Court held that the tribunal nevertheless lacked jurisdiction because the challenge was to secondary legislation, and refused the renewed application.