Immigration Blog: Albania: is it really a “safe country” for the purposes of certification?

An ongoing issue for practitioners advising Albanian nationals is the certification of protection and human rights claims, even in cases which can typically succeed before the Tribunal. The latest immigration statistics for the last quarter of 2023 show that just under 2000 Albanian claims resulted in certified refusals.[1]  

Whilst that may not be surprising, given the designation of Albania as a “safe country” for the purposes of section 94 of the Nationality, Immigration and Asylum Act 2002, what is concerning is the application across a wide range of asylum claimants. Certification impacts both men and women; children, young people and adults, and dependants as well as principal applicants.

In this short blog, we take a look at the recently updated Country Policy Information Notes (“the CPINs”) published over Summer 2024 and highlight some issues with the Home Office analysis.

Legal Framework

Albania is listed as a “designated state” for the purpose of section 94(4) of the Nationality and Immigration and Asylum Act 2002, the consequence of which is that the Home Secretary shall certify the claim, unless it satisfied that it is not clearly unfounded. Any decision which is certified will not attract a right of appeal. A claim being “clearly unfounded” means “so clearly without substance that it was bound to fail”, Thangarasa and Yogathas [2002] UKHL 36. If any reasonable doubt exists as to whether the claim may succeed, then it is not clearly unfounded, ZT (Kosovo) [2009] UKHL 6. On a judicial review challenge, the role of the Tribunal is to determine for itself whether an appeal would be bound to fail.

The guidance to caseworkers in the CPINs

In July 2024, the Home Office published two new CPINs, on Human Trafficking and Blood Feuds.

For trafficking claims, the Home Office’s published guidance to caseworkers is set out at paragraphs 6.1-6.14 of the Human Trafficking CPIN:

• Certification must be considered for all Albanian claims.
• Certification can still be considered appropriate in cases of trafficking victims with positive reasonable and conclusive grounds decisions and where recognised victims have been granted leave to remain as a trafficking persons (either by way of Discretionary Leave, or VTS).
• Certification for females is “unlikely,” whereas claims from males are “likely to be certifiable as clearly unfounded.”

Similar guidance is set out at paragraph 6.1 of the Blood Feud CPIN, with these claims being “likely to be certifiable.”

Problems with the Home Office’s analysis

There are immediate problems with the broad guidance encouraging caseworkers to certify these claims.

First of all, anecdotally, practitioners are seeing claims made by female victims of trafficking being certified, even though the policy contains a presumption that such claims are unlikely to be certified. That observation is prima facie borne out by the fact that certified refusal statistics include those made by female applicants. This is likely due to a misapplication of the CPIN, which recognises and applies the extant country guidance of TD and AD (Trafficked Women) (CG) [2016] UKUT 92, where it was held that:
“re-trafficking is a reality – whether a risk exists will turn on factors which led to initial trafficking, personal circumstances including her willingness and ability to seek help from the authorities.”

Thus, whether a female victim of trafficking will be able to access sufficiency of protection or internally relocate is a deeply fact-sensitive question. However, it is easy to understand that caseworkers could misread the guidance – coupled with hostile anti-Albanian rhetoric across immigration policy - such as to assume that all trafficking claims could be lawfully certified. This is a deeply concerning development, since the result of erroneous decision making could be to leave Albanian women and girls vulnerable to the risk of (re)trafficking and harm if forcibly returned to Albania.

Second, with respect to male victims of trafficking, the Human Trafficking CPIN is out of step with the wider learning on vulnerability and victimisation for trafficking victims. Indeed, in TDT v Secretary of State for the Home Department [2018] EWCA Civ 1395, the Court recognised at paragraph 82 that: “being a past victim of trafficking and being at real and immediate risk of being (re)- trafficked are very closely inter-related.”

The Home Office’s own Modern Slavery Statutory Guidance accepts at paragraph 13.5 that there are many reasons why adults may be particularly vulnerable to modern slavery and trafficking, including on account of age, being a former victim of trafficking, being homeless or at risk of being homeless, having underlying drug / alcohol issues, having underlying health issues (including mental health diagnoses), being in debt, experience of family breakdown and coming from deprived backgrounds. All of those factors may well come into play in an individual case for an Albanian male asylum claimant.

The impact of those individual characteristics lending to increased vulnerability is put into sharp focus when considered against the fact that Albania remains, despite years of monitoring and political comment about the possibility of EU enlargement, a recognised “source, transit and destination country” for trafficking and modern slavery. Despite showing a willingness to overcome barriers to protection, prevention, and prosecution, it remains the case that Albania is ranked as a Tier 2 state by the US State Department Trafficking in Persons Report 2023 because “the Government of Albania does not fully meet the minimum standards for the elimination of trafficking” as cited in the Human Trafficking CPIN at paragraph 10.1.

Indeed, the need for an individualised assessment for male victims is itself supported by the underpinning analysis in the Human Trafficking CPIN. Paragraphs 3.3-3.4 read:
“Men and boys who are from lower economic backgrounds, have a low level of education or lack of employment opportunities, have physical or mental disabilities, have experienced domestic abuse or family breakdown, and/or live in remote areas are more likely to be vulnerable to being trafficked or re-trafficked than men and boys generally. […] Whether they face a risk of such treatment will depend on their personal circumstances, such as their age, education, skills and employability, area of origin, health or disability, availability of a support network, and the intent and reach of their traffickers.”

Much of that can be read harmoniously with the Upper Tribunal decision in TD and AD and favours an individualised assessment, rather than a presumption of safety, which is at best, a blunt tool.

As noted above, certification can stifle both appeals on asylum and human rights grounds. This poses a risk that viable ECHR Art 8 claims are certified for country-oriented rather than person-specific reasons. Yet, the relevance to a private and family life claim of identification as a trafficking victim is self-evident. There are protective duties, owed by states signatory to the Trafficking Convention to modern slavery survivors, that could decisively change the balancing exercise when proportionality is assessed. The Home Office Guidance on “clearly unfounded” certification identifies amongst the categories of claim which “should not be certified under section 94” those where “an individual makes both a protection and human rights claim and only one of these claims is clearly unfounded”. One might think that the Guidance should be actively discouraging the certification of this class of applicant, rather than making the nationality of some asylum seekers as a conduit to certification.

Third, even the wider country evidence set out in the Human Trafficking CPIN contains evidence that undermines the Home Office’s broad contention that male victims will obtain protection on return:

• “Men and boys appear to have a low awareness of having been exploited/trafficked and may be reluctant to seek protection” [paragraph 4.6.3].
• “In the Albania 2023 Report, the EC stated, ‘… The identification of potential victims remains inadequate within Albanian territory and among vulnerable migrants entering the country and those accommodated in reception centres” [paragraph 10.3.7].
• “Some VOT were reluctant to declare their status due to stigma and discrimination” [paragraph 2.2.3].
• “The Home Office FFT 2022 were told by a number of sources that men and boys were generally exploited in forced labour, criminal activities relating to drugs or theft, and begging, whilst women and girls faced sexual exploitation” [paragraph 8.1.7]
• “Albania is a patriarchal society with male family members expected to provide for their families. There is a general lack of awareness that men and boys may be victims of trafficking, and those who are trafficked may not accept or recognise that they have been exploited and may therefore be reluctant to seek assistance” [paragraph 3.3.3]
• “An official from D&E told the Home Office FFM 2022 team that ‘There are no specific shelters for [adult] males. They are supported mostly outside the shelters, with housing and reintegration.’” [paragraph 11.1.7].

Fourth, the possibility of being traced in the face of enforced return can be a reality. Albania is a small country as recognised by the Upper Tribunal in BF (Tirana - gay men) Albania CG [2019] UKUT 93 (IAC) at paragraph 181:
“a person's whereabouts may become known in Tirana by word of mouth. Albania is a relatively small country and we accept as entirely plausible that a person might be traced via family or other connections being made on enquiry in Tirana.”

Separately, the Blood Feud CPIN fails to faithfully recognise the country guidance in EH (Blood feuds) Albania CG [2012] UKUT 00348 (IAC). The Tribunal found that although:
“The Albanian state has taken steps to improve state protection, but in areas where Kanun law predominates (particularly in northern Albania) those steps do not yet provide sufficiency of protection from Kanun-related blood-taking if an active feud exists and affects the individual claimant. Internal relocation to an area of Albania less dependent on the Kanun may provide sufficient protection, depending on the reach, influence, and commitment to prosecution of the feud by the aggressor clan.”

Moreover, “where there is an active feud affecting an individual and self-confinement is the only option, that person will normally qualify for Refugee status.”

Typically, decision letters certifying claims rely heavily on select citation from the Albania: Actors of Protection CPIN (December 2022). However, a close reading of the actual country evidence contained in the CPIN reveals that all is not what it seems: in fact, there are serious deficiencies with implementation and confidence in the authorities to rebut the presumption that they are both willing and able to provide protection. This includes:

• Organised crime – including drug trafficking, human trafficking, prostitution, extortion, bribery and money laundering – remains a serious problem [paragraph 2.3.7].
• High levels of corruption across law enforcement is weakening public confidence in seeking out protection [paragraph 5.3.1].
• The judiciary is also affected by corruption, political pressure and is not fully independent [paragraphs 6.6.1-6.6.3, 9.1.1].
• Police do not always enforce the law equitability, and much depends on the political or criminal connections and status of the individual [paragraphs 5.3.2, 9.1.4-9.1.5].
• The Ombudsman’s Office lacks the power to enforce decisions [paragraph 10.1.1]

The sources cited in the CPIN are varied, including from the US State Department, the European Commission and respected NGOs like Freedom House. They clearly cast doubt on the Home Office’s conclusion that Albanian authorities in general, can provide Horvath-standard protection for those at risk of persecution. All this material could be relied upon by an independent Tribunal Judge to find that an individual will not obtain protection from re-trafficking, reprisal or serious harm on return across Albania.

Conclusion

There is much, even within the CPINs themselves, that does not support the Home Office’s conclusion that such claims are suitable for certification. At times, the current approach risks amounting to an unspoken invitation to depart from the Country Guidelines decisions, but without making clear the appropriate test for doing so.

That test was identified in SG (Iraq) [2012] EWCA Civ 940 as being that "decision-makers and judges are required to take country guidance determinations into account, and to follow them unless very strong grounds, supported by cogent evidence, are adduced justifying their not doing so.” Indeed in H [2023] EWHC 2758 (Admin), we can see a case where judicial review was granted because the decision maker failed to appreciate the inevitability of an independent judge in the First-tier Tribunal, following the approach laid down by the Upper Tribunal, rather than that preferred by the executive.

That said, there is a real need to properly individualise a client’s case against the individual risk factors, including by way of bespoke representations and evidence, including expert, medical, and documentary evidence. Given the high risk of Albanian claims being certified, early input from expert legal representation from the outset will often be key to securing a just outcome.

Garden Court’s Immigration Law Team welcomes early instructions from solicitors and individuals (via public access where the case is suitable for that process), including at the vital pre-decision stage and throughout, to ensure the best possible outcome for clients.

Notes

[1] For 2023 Q4, a total of 1976 Albanian claims were certified refusals.