BF (Albania) v The Secretary of State for the Home Department

On an appeal from a specialist immigration tribunal, the appellate court’s task is to correct legal error, not reweigh facts. A future “real risk” is not a numerical probability threshold: it depends on both chance and seriousness, assessed across adverse outcomes cumulatively. State protection need not be perfect; the question is whether it is sufficient in practice. Internal relocation is fact-sensitive and must be assessed for undue harshness, including evidence of discrimination, employment, support and personal circumstances. A risk of article 8 violation in the country of return can constitute persecution only if sufficiently serious. The Court of Appeal found no arguable error in the country guidance or its application and refused permission to appeal.

An Albanian national claimed asylum in the United Kingdom on the basis of his sexual identity. The First-tier Tribunal accepted his sexual orientation and much of his account, but found that he could relocate to Tirana, where he would not face a real risk of persecution and would have sufficient protection.

On redetermination, the Upper Tribunal reconsidered the country guidance concerning gay men in Albania, issued new guidance concerning Tirana, and dismissed the appeal. The applicant sought permission to appeal on five grounds concerning risk of persecution, the burden of proof, sufficiency of state protection, internal relocation, the absence of legal recognition for same-sex relationships, and risk from his family. The central issue was whether the Upper Tribunal had made an error of law rather than merely reached findings open to it on the evidence.

The Court of Appeal refused permission to appeal. Lord Justice Hickinbottom delivered the reasons, with Lord Justice Leggatt agreeing.

1. Appellate review. On an appeal from a specialist tribunal, the court corrects errors of law and does not substitute its own assessment of the facts. It must approach the tribunal’s findings with caution and should be slow to infer that a relevant matter was ignored merely because it was not expressly mentioned. The principle in MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 remained applicable.
2. Real risk. The applicant’s proposed numerical threshold was misconceived. The distinction between risk and probability explained in Batayav v Secretary of State for the Home Department [2003] EWCA Civ 1489 did not establish that a 10 per cent chance of any adverse event automatically constituted a real risk. Risk required assessment of both the chance of occurrence and the nature and severity of the possible harm. The tribunal was entitled to assess the whole spectrum of adverse outcomes cumulatively, including violence, harassment and discrimination, and to conclude that there was no real risk of persecution in Tirana.
3. Protection and relocation. Sufficiency of state protection was an outcome-focused question. The law required sufficient protection, not perfection. The tribunal was entitled to weigh legislative and institutional measures, their effectiveness, complaints mechanisms, police protection and contrary evidence in the round. Its conclusion that relocation to Tirana would not generally be unduly harsh properly took account of employment discrimination, support organisations, redress mechanisms and the applicant’s individual circumstances.
4. Article 8 and persecution. A sufficiently serious risk of an article 8 violation in the country of return could amount to persecution, but such a violation did not inevitably do so. The absence of legal recognition for same-sex relationships was considered cumulatively with other discrimination. The tribunal was entitled to find that the overall position did not reach the persecution threshold. The court declined to determine whether the responsibilities of a returning state might be reduced where the receiving state was a Convention state, because no article 8 claim had been made.
5. Family risk and final disposition. The tribunal was entitled to find that the applicant’s family would not seek him out in Tirana and that, in any event, police protection would be sufficient. None of the five grounds disclosed an arguable error of law.

1. Court of Appeal (Civil Division) On 10 October 2019, permission to appeal was refused. Reasons were given in this judgment, reported at [2019] EWCA Civ 1781.
2. Upper Tribunal (Immigration and Asylum Chamber) On 26 March 2019, the tribunal issued country guidance concerning gay men in Albania and dismissed the applicant’s appeal on redetermination. The decision is reported at [2019] UKUT 93 (IAC).
3. First-tier Tribunal (Immigration and Asylum Chamber) In a determination promulgated on 8 September 2017, the tribunal accepted the applicant’s sexual orientation but found that he could live discreetly or relocate to Tirana with sufficient protection. On 1 May 2018, the Upper Tribunal found an error of law in that determination and retained the matter for redetermination.