How to effectively represent Albanian people seeking asylum in an increasingly difficult environment

As the government’s Rwanda plan continues to court controversy, there is one area of their policy which by their measures could be seen to be succeeding: their efforts to stop Albanians from seeking refuge in the UK.

Since 2019, the Migrant and Refugee Children’s Legal Unit at Islington Law Centre (MiCLU) has delivered a dedicated project focused on improving outcomes for Albanian children and young people seeking asylum. When we launched the project we were already concerned about the treatment of young Albanian asylum seekers, but we could not have imagined the extent to which they would become a scapegoat for so many of the government’s failings in properly managing the asylum system.

The policy context

The avalanche of hostile political rhetoric which was ramped up following the temporary spike in the numbers of Albanians who arrived via the Channel and sought asylum during the summer of 2022 is now apparent across policy and decision-making:

• In December of 2022, the UK signed a communique with the Albanian Government to enable faster returns to Albania for those whose claims had failed or who were foreign national offenders.
• In January 2023, the Modern Slavery Statutory Guidance was amended, with outcomes for Albanians being disproportionately negatively impacted following the change;
• Given the prevalence of trafficking within the context of asylum claims by Albanian nationals, the existence of the secret policy preventing trafficked persons from benefiting from a grant of discretionary leave has disproportionately disadvantaged Albanian asylum claimants.
• A series of newly amended Country Policy and Information Notes all have head notes which support the certification of Albanian asylum claims as ‘unfounded’ (without an in-country right of appeal) despite country evidence to the contrary, including evidence within the body of the new country policy notes themselves.

Indeed, the recently published inspection report by the former Independent Chief Inspector of Borders and Immigration reveals that during the work to reduce the asylum backlog in 2023, Albanian claims were subject to their own Home Office “Operation” named BRIDORA.

Operation BRIDORA is another explicit demonstration of how the Home Office subjects Albanian cases to differential treatment that goes against the principle that every asylum claim should be judged on its merits.

The inspection report highlights how Operation BRIDORA saw Albanian claims subjected to reduced scrutiny, instructions not to implement any grants (apparently to avoid them showing up in freedom of information requests) and an arbitrary Ministerial decision that no more than 2% of Albanian grants should be successful.

Impact on Albanian people

This blatant and ongoing discrimination at the policy level has real-world consequences, further marginalising the Albanian community and destroying the well-being of Albanian asylum seekers. The reality for many Albanian young people over the age of 18 is now a looming threat of detention. Albanians now represent the highest proportion of any nationality in detention:

Research indicates that immigration detention is harmful to all vulnerable detainees, but the stigma and discrimination in everyday life experienced by Albanian asylum seekers, alongside a legal situation that often feels unsurmountable can leave them in despair.

We have been devastated to learn of the deaths of a 27-year-old Albanian man on the Bibby Stockholm on 12 December 2023 and of a 37-year-old Albanian man on 17 November 2023 in the intensive care unit of a Surrey hospital, following a suicide attempt whilst detained in Brook House.

Representing Albanian clients effectively

Despite government assertion and rhetoric that Albania is a safe country and that Albanians seeking asylum should be immediately returned, we continue to work in reality. By using the substantive country information in the body of the country policy notes effectively, frontloading cases with expert evidence and building strong relationships with clients we have secured good outcomes for young Albanian asylum seekers despite the challenging environment. We have also found that working with this client group can be highly rewarding and promote good practice for working with a range of client groups.

Challenging Country Policy and Information Notes

Shortly after the Home Office signed its communique with Albania we saw changes to the head notes to the Albanian country policy notes. These changes encourage decision-makers to determine that cases are ‘unfounded’ without an in-country appeal right. This is because Albania is listed as a ‘designated state’ in Section 94(4) of the Nationality, Immigration and Asylum Act 2002 and any protection and/or human rights claims by Albanians must be certified unless the Home Secretary is satisfied that the claim is not unfounded.

However, the substantive content in the body of the country policy notes does not support the conclusions set out in the head notes, and lawyers are therefore urged to read the full report rather than rely on the impression provided in the head note. For example, the head note of one country policy note claims that male victims of trafficking may be safely returned to Albania where there is, according to the Home Office, sufficiency of protection. Another suggests official Albanian data on blood feuds demonstrates the police’s ability to protect those subject to feuds.

In both instances, the research contained in the main body of the country policy note contradicts these claims or at least demonstrates that so high a threshold as ‘unfounded’ is unlikely to be met.

David Neale, Legal Researcher at Garden Court Chambers has written a series of reviews analysing the Albanian country policy notes and providing commentary and arguments that lawyers can draw upon when making written submissions. He argues for example that the country policy note on blood feuds in Albania (which is not binding on tribunal judges) does not show strong enough grounds to justify a departure from the country guidance case of EH.

He also gives a detailed outline setting out how and why the current country policy note on trafficking in Albania suggests that boys’ and men’s claims are certifiable is wrong. These reviews are an invaluable resource for any lawyer seeking to challenge the Home Office position.

Frontloading our cases

In recent months, lawyers representing Albanian clients have reported a sharp increase in the certification of Albanian cases. It is therefore particularly important for Albanian clients that their cases are ‘frontloaded’ with expert medical, country and other corroborating evidence. This is so that evidence that might otherwise be gathered and presented at the appeal stage is obtained upfront at the pre-decision stage either to prevent the claim from being certified or to maximise the prospect that any certification will be challengeable by way of judicial review. This is also necessary to minimise the risk of detention and removal from the country before a lawful consideration of the case has been undertaken.

Medical evidence is particularly important given the nature of Albanian claims. Many of our clients require a medico-legal report to ensure their medical evidence is set out in appropriate detail. Our experience of working with an Albanian caseload shows a high prevalence of mental health issues. Nearly every client will have post-traumatic stress disorder and depression, and others may have other vulnerabilities that may not have been picked up. These may not be immediately apparent because of taboos in Albanian culture around speaking about mental health.

We also see a high prevalence of boys and young men who bear physical scars from abuse, particularly where they have been trafficked for labour or criminal exploitation. Documentation of scarring, broken bones or other evidence of physical violence can be critical in such cases. Again, reluctance to share their experience of violent abuse may mean that this is not disclosed at an early stage in the asylum claim.

Cases where the basis of claim appears to be domestic violence may involve trafficking. Many boys who are abused by fathers or stepfathers are forced into child labour or child criminal exploitation. It is therefore essential that where a young person discloses domestic abuse, this aspect of the claim is explored in detail to establish whether this includes exploitation. Evidence from experts in trafficking and medical experts is likely to improve the prospects of such a claim being made out.

In blood feud cases credibility can be complicated because the Home Office often disbelieves an account based on its misconceptions about how blood feuds work. Expert evidence will also therefore be critical in these cases.

Firms may find the financial implications of claims like this difficult to manage but in our experience, where the risk of certification is set out clearly, the Legal Aid Agency will agree to fund such expert evidence at the pre-decision stage.  Proper preparation of the underlying claim will then increase the prospects of success should judicial review proceedings prove necessary and thereby the potential for costs at inter partes rates being claimed.

Building trusting relationships with our clients

We are better able to represent clients if we have built a strong relationship of trust with them. When representing Albanians, this can be particularly challenging because of how strong the concept of ‘honour’ is within Albanian society and in particular the concept of ‘family honour’.

Young people will not easily disclose difficult private or family matters as they may perceive this to be shameful, or a betrayal of their family unit. Mental health difficulties and sex, especially sexual orientation, are taboo subjects. We have to work closely with our young clients to earn their trust and we believe it’s crucial to our success.

As part of participatory training, young people have told us what for them is crucial to be ready to disclose:

Communication is always key, and it may take a series of appointments before a young person feels able to disclose some of their most difficult experiences.

Things are getting worse

Looking ahead we are incredibly concerned about the situation facing Albanians making asylum claims in the UK. If section 59 of the Illegal Migration Act is brought into force, Albania will be designated a ‘safe state’ and Albanian asylum claims will be inadmissible except in “exceptional circumstances”, on the same basis as asylum claims from EU and EEA states. Albanians will likely face a swift return to the country from which they have fled without their asylum claims being considered. This has the potential to include unaccompanied children.

The Illegal Migration Act, changes to the country’s policy notes, and other changes like the increased thresholds individuals are required to meet to obtain recognition as victims of trafficking are all making the legal environment intolerable. We must remember however that this also has real-world implications for real people.

The level of stigma and discrimination Albanian children and young people face is distressing. From support staff in hostel accommodation suggesting to others living in the accommodation that Albanian young people can supply them drugs, to judges suggesting that Albania is a lovely travel destination, young people often tell us that they do not feel they are given a fair hearing and equal treatment.

For Albanian young people over the age of 18 the threat of detention is very real, and as the hostile environment tightens its grip, access to competent legal representation is the only lifeline for vulnerable individuals from whom protections against human rights abuses are being incrementally removed.

Fighting for our clients

Despite the odds stacked against them, the Albanian children and young people we represent continue to secure protection. Working with them we have navigated the challenges posed by the country policy and information notes, prevented or challenged certification, challenged negative trafficking decisions, and secured protection for very vulnerable young people.

During 2020 to 2022, Home Office data shows 58% of appeals of initial decisions were successful and our own anecdotal experience from our current caseload indicates that appeals continue to be allowed at a similar rate, with successful outcomes in cases that had previously been certified. We keep a close eye on our cases and the official statistics as we find the situation can quickly change.

Conclusion

We wrote this blog for two reasons. We have a range of resources on our website which may help practitioners representing Albanians. Please use them and contact us if there are gaps in what we have provided.

We also want to encourage the sector to continue to represent Albanian clients. We know these cases can be incredibly rewarding and the learning from Albanian cases can be applied to almost all other caseloads – helping to improve all practice. Most importantly, if section 59 of the Illegal Migration Act 2023 is brought into force, it is likely that legal challenges will be required to the designation of Albania as a safe state.

Work done now to prepare and evidence Albanian claims which pre-date the Illegal Migration Act will be essential in building an evidence base to show that Albania is not, in fact, a safe country and that the government’s assertion that it belongs on a list with EEA states is misconceived. MiCLU is currently undertaking research into tribunal determinations in Albanian asylum appeals from 2019 to date. If you have determinations that you can share please get in touch with us for more information.

With the legal aid sector in crisis, the resources we have must be used to protect those at greatest risk. As a profession, we should strive to ensure that the discrimination we see in immigration policy is not discrimination that is reflected in our practice and that as refugee lawyers we use our skills to prevent refoulement of those at risk of persecution.

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