AN and NN (s.83, asylum grounds only) Albania

Factual and Procedural Background

The appellants, twins born in 1991 and nationals of Albania, had their asylum claims refused by the Secretary of State in January 2007 but were granted limited leave to remain until they turned 18 in May 2009. Immigration Judge Entwhistle allowed their appeals on asylum, human rights, and humanitarian protection grounds in determinations notified in March 2007. The respondent successfully obtained an order for reconsideration, leading to the current review of the immigration judge's determinations.

Legal Issues Presented

1. Whether the immigration judge had jurisdiction to allow the appellants' appeals on human rights and humanitarian protection grounds, given the statutory framework of sections 82, 83, 84, 85, and 86 of the Nationality, Immigration and Asylum Act 2002.
2. The correct construction and scope of a section 83 appeal concerning asylum claim rejections and the grounds on which such appeals may be brought and determined.
3. Whether the immigration judge made material errors of law in his assessment of risk to the appellants on return to Albania, including consideration of blood feud risks, sufficiency of protection, and internal relocation.

Arguments of the Parties

Appellants' Arguments

• The appellants' appeals fell properly within the scope of section 83, allowing appeals solely on asylum grounds related to the Refugee Convention obligations.
• The immigration judge was correct to find a real risk of persecution on return based on the blood feud involving their family and lack of effective protection.
• Internal relocation was not a viable option due to ongoing threats and the appellants' status as minors who had witnessed violence against their family.

Respondent's Arguments

• The immigration judge erred by considering human rights and humanitarian protection grounds in a section 83 appeal, exceeding his jurisdiction.
• The immigration judge failed to take into account all relevant factors identified in precedent cases concerning blood feud risks.
• The judge did not properly assess whether the appellants were actual targets rather than subject to speculation.
• Insufficient consideration was given to the police investigation and efforts by the appellants' family to seek reconciliation.
• The immigration judge failed to address the issue of internal relocation adequately.

Table of Precedents Cited

Court's Reasoning and Analysis

The court identified two fundamental errors in the immigration judge's determinations. First, the immigration judge incorrectly assumed jurisdiction to decide non-asylum grounds, such as human rights and humanitarian protection, in appeals that fell under section 83 of the 2002 Act. The court clarified that section 83 appeals are limited to asylum grounds and that the Tribunal's jurisdiction is strictly statutory. The precedent in JM was distinguished as not extending section 83 appeal scope beyond asylum grounds.

Second, the immigration judge erred by granting humanitarian protection, which statute restricts to persons who do not qualify as refugees, whereas the appellants were found to qualify as refugees.

Despite these errors, the court found no material error of law affecting the outcome of the section 83 asylum appeals. The respondent's grounds for reconsideration were examined in detail. The court concluded that the immigration judge properly accepted the appellants' account of a longstanding blood feud and considered relevant risk factors as outlined in authoritative case law. The judge's inferences about the appellants being targeted were supported by evidence and not speculative.

Regarding sufficiency of protection, the court found the immigration judge's assessment of police response and the appellants' family's efforts to seek protection or reconciliation was thorough and reasonable, considering the appellants' young age and the hostile environment.

The issue of internal relocation was not expressly addressed in the conclusions, but the court inferred from the judge's findings that internal relocation was not a viable or safe option. The appellants' family remaining in hiding and failed attempts to place the appellants in boarding school supported this conclusion.

Accordingly, the court upheld the immigration judge's finding of a real risk of persecution on return, recognizing the appellants as members of a particular social group under the Refugee Convention.

Holding and Implications

The court UPHELD the immigration judge's decision to allow the appeals on asylum grounds under section 83 of the Nationality, Immigration and Asylum Act 2002.

The direct effect is that the appellants' asylum appeals are allowed, confirming their entitlement to remain on asylum grounds. No new precedent was established, and the court emphasized the strict statutory limits on the Tribunal's jurisdiction in section 83 appeals, clarifying that non-asylum grounds such as human rights and humanitarian protection cannot be considered in this context.