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CY/14 Determination APPEAL NUMBER CC/******** Determination promulgated Heard at Taylor House 8 January 1999 on 26.10.98 IMMIGRATION ACT 1971 THE ASYLUM AND IMMIGRATION APPEALS ACT 1993 1 THE ASYLUM AND IMMIGRATION ACT 1996 Before Dr E A Prince Special Adjudicator Between Ms L Appellant and SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent DETERMINATION AND REASONS For the Appellant: Mr I MacDonald (QC) For the Respondent:
The appellant is a citizen of Lithuania born on **/**/1976. She appeals against the decision of the Respondent to refuse to grant leave to enter and to refuse asylum under paragraph 336 of I-IC 395. The Secretary of State has certified the asylum claim under the provisions of paragraph 5 (4) (a) of Schedule 2 of the Asylum and Immigration Appeals Act 1993 (as amended). Notice of appeal against this decision was lodged on 25 March 1998. The Refugee Legal Centre (RLC) was named as the appellant's representatives. Accordingly, on 3 July 1998 the Immigration Appellate Authority gave notice of the date of the adjourned hearing to the appellant and her named representatives. At the hearing of the appeal before me on 26 October 1998 the appellant was represented by Mr I MacDonald, QC. Instructed by RLC. The Respondent was unrepresented. Ms L was the Lithuanian Interpreter. Additional evidence submitted for the appeal included the appellant's Witness Statement and two Bundles of Documents containing Extracts from Home Office Country Assessment 'Lithuania' March 1998, US Department of State Report for 1997, 'Lietuvos Rytas' dated 26 March 1998, World Refugee Survey 1997, 'Position on Asylum Seeking and Refugee Women' by the European Council on Refugees and Exiles, December 1997; Court of Appeal Decision in SHAH and ISLAM (1997), SAGAR, IAT (15792) Decisions of the Federal Court of Canada in CUFFY (1996), RODIONOVA (1993) and the Determination in PAREDES (1998). The appellant's immigration history is that she arrived in the United
Kingdom on **/**1997 and applied for asylum on arrival. She was
interviewed on her application for asylum on **/**1997. The decision of
the Respondent on 19 March 1998 was accompanied by a letter of refusal
giving reasons for concluding that the appellant did not qualify for
asylum. The Secretary of State noted that the appellant claimed that she was afraid to return to Lithuania because she was fleeing a gang who allegedly kidnapped young girls and forced them into prostitution in various eastern countries. The appellant claimed that on **/**/1997 she met M who showed her a lot of attention, and subsequently asked her if she would like to make some money abroad. The appellant who was a student declined the offer and claimed that M visited her on **/**/1997 at her student hostel and proposed sex. She said she thought M wanted to rape her and when she called for help he left and threatened that he could make her into a prostitute. The appellant claimed that on **/**/1997 she and a friend were forced into a car by M and another man who took them to a forest where the appellant and her friend were raped. The appellant escaped, stopped a, car, and was taken, to a police, station where she reported the incident and made a statement. She said that the police did not show much sympathy and suggested that she withdraw the statement. The appellant went to stay with a friend and returned to the hostel to collect some belongings when she was told that the two men had been looking for her and had made enquiries about her whereabouts. The appellant said that she was frightened and remained at her friend's home until she could arrange to leave Lithuania. The Secretary of State noted that the appellant's brother was also in the United Kingdom and was able to meet the appellant on her arrival because she had written to him after the attack. The appellant had never been a member of any political party and had never been arrested, detained or charged with any offence in connection with her political or religious beliefs. The Secretary of State noted that Lithuania is a full member of the Council of Europe and as such is recognised by the other member states, including the United Kingdom, as conforming to liberal democratic standards of government. The Lithuanian Constitution guarantees freedom of thought, conscience and movement to all its citizens. The Secretary of State therefore concluded that since the appellant is in possession of a Lithuanian passport, it was reasonable to expect her to be able to seek and to receive protection from the Lithuanian authorities if she feared persecution from individuals acting in breach of the Constitution and the Rule of Law both within and outside the State apparatus. He takes the view that as regards the appellant's claimed attacks and harassment by a criminal gang, that such groups or individuals cannot be regarded as 'agents of persecution' for the purposes of the 1951 United Nations Convention relating to the Status of Refugees. He has had regard to the fact that the appellant has held a legally obtained passport issued in her identity which was used to facilitate her departure from Lithuania without apparent difficulty. This suggests to the Secretary of State that the Lithuanian authorities have no interest in the appellant. The Secretary of State concluded that the appellant has not established a well-founded fear of persecution and that her claim is one to which paragraph 5 (4) (a) of Schedule 2 of the 1993 Act (as amended) applies and that her claim is one to which paragraph 5 (5) does not apply. The appellant gave evidence at the hearing of her appeal assisted by the
Lithuanian Interpreter. She stated that she was
born in **** in Lithuania on **/**/1976 and where she attended school,
went to study nursing in **** in Autumn 1994. She said she remembered her
asylum interview and confirmed the accuracy of the contents of her
interview record which she adopted in support of her appeal. She stated that after she had been raped in the forest she
went to the police in ***** and made a statement at the police station.
The police started laughing and did not believe her and said that many
girls made accusations to demand money from 'accused' boys. The police
told her to go home after she had made her statement and that she would
receive a reply. She did not receive any reply. She went to her friend's
house because she was afraid to return to her room at the hostel which she
shared with her friend because her attackers knew where she lived. She
said that a few days later she went to her hostel to collect her
belongings and was told by her room-mate [Ms B] that two men were looking
for her, had asked about her whereabouts and had shown her room mate the
statement which she had made at the police station. The appellant said
that [Ms B] told her that the men said they knew where she lived,
Lithuania is a small country and that they will find her. The appellant said that she was frightened and became depressed, thought that if she remained then anything could have happened to her. She said that she could have been killed or taken to Russia to work as a prostitute. She therefore decided to leave the country and come to the United Kingdom to seek asylum. The appellant said that the men knew where her parents lived and where she lived as well as her friend and she could not return to work. Her parents told her that some people had come looking for her and had questioned her parents. The appellant said that when she came to the United Kingdom she was interviewed on arrival on **/**/1997. She gave the interviewing officer an article from the Lithuanian newspaper on the exploitation of girls being taken away as prostitutes. The interviewing officer said that they would read it after the interpreter had translated the article but she does not know whether it was read or what happened to it. She said that the article stated that young girls were kidnapped on the street and had been written by an ex-prostitute who had escaped after three years of forced prostitution. The appellant said that she was 21 years of age when she and her friend [L] were forced into a car by [M] and others and raped in the forest. She said that her intention is to continue with a nursing career and that she has enrolled as a student at Southwark College where she is studying English for Nurses. The witness Sian Evans of London gave evidence
in her role as a case
worker for Women Against Rape. She said that her organisation has been in
existence for over 20 years and that she has acquired extensive experience
during the last seven years of her employment with this organisation which involved interviewing women victims of
rape. Ms Evans referred to her Report dated 3 July 1998 in which she
states that the appellant is deeply distressed and traumatised by the rape
she suffered in Lithuania and the prospect of being returned there. The witness said that the
appellant attended for appointments with her and that during the
appointment it was clear that she was afraid and frightened and had
clearly suffered an horrendous ordeal. She said that the appellant needs
support and protection to recover. She did not feel safe in Lithuania
because of fear of reprisals which were borne out by her attackers having
a copy of the statement which she made to the police and now the appellant
felt more vulnerable as a result of the trauma. No other witnesses were called. Mr
MacDonald submitted that the appellant's appeal gave rise to four issues.
Firstly, the certificate whether there was a fear of persecution on a
subjective basis. Secondly, the fear of persecution for a Convention
reason as a member of a social group (young girls) which can be
distinguished from Shah and Islam (1997). Thirdly, whether there is a
reasonable likelihood that the appellant has been tortured, and if so, her
case should not have been set aside. Fourthly, the nature of the
appellant's persecution which amounts to torture, inhumane or degrading
treatment, the risk of the appellant required to perform forced or
compulsory labour which is prohibited without derogation in Article A 4 of
the European Convention on Human Rights. Mr MacDonald submitted that as regards the appellant's fear of persecution, the Secretary of State's letter of refusal does not challenge the appellant's credibility. The appellant has a fear of persecution as expressed in her asylum interview and oral evidence and confirmed in the Women Against Rape Report. The appellant has a fear of being subjected to further rape and violence and being forced to work as a prostitute. He submitted that the appellant's evidence is clear and uncontradicted. Further that the appellant's fear is for a Convention reason because of her membership of a particular group (young women) and there is a reasonable likelihood that the persecution which the appellant fears is of her membership of a particular social group. He submitted that the violence (gang rape) to which the appellant and her friend were subjected was part of an organised scheme by a gang of men to recruit the two women into prostitution and as established in the documentary evidence and the newspaper article what happened to the appellant and her friend was not an isolated 'one off event but part of a recurring happening in Lithuania. He submitted that the reason for persecution is the targeting of members of this particular social group (young women) in order to compel and force them into prostitution. In the Canadian case of Attorney General -v- Ward [1993] it was found that the person was likely in such circumstances to be persecuted and in the United Kingdom may be a refugee. Hence the Secretary of State's assertion in paragraph 4 of the letter of refusal is stating what has to be proved. Mr MacDonald submitted that there is a reasonable likelihood that the 'gang's' activities were knowingly tolerated by the authorities and they were unable to offer effective protection. The Mafia gangs were protected by the police and acting in cahoots with the police which from the evidence shows not to be an isolated incident but that there is a reasonable likelihood that the police are involved and hence no effective police protection to the appellant who should therefore be protected by the Refugee Convention. He submitted that paragraph 6 of the Secretary of State's letter of refusal regarding the appellant's possession of a legally obtained passport and her apparent unhindered departure from Lithuania is a test which applies to an appellant fleeing as a political opponent and not for other reasons as in the appellant's case. Mr MacDonald submitted that the appellant has a well founded fear of persecution. If it is accepted that the appellant's evidence is accurate and credible, then the appellant's evidence shows that she was deliberately targeted as a young woman who might be recruited into prostitution and when she refused the initial sexual advance of the gang member, she was then forcibly abducted and gang raped with a clear view of forcing her into prostitution. The appellant went to the police, they did not treat her complaint seriously and did not believe her and later the appellant discovered that the gang had obtained copies of the statement which she gave to the police. This shows that the police were working with the gang who were trying to force the appellant into prostitution and had provided them with details of the appellant's complaint. He submitted that the appellant could not continue to seek police protection and the rape is not isolated, but organised to recruit people into prostitution. The appellant's evidence is that what she had heard and had happened to her had happened to other women. Therefore this incident is not isolated and the appellant's fear is well founded. Mr
MacDonald submitted that the Home Office Country Assessment on Lithuania
indicates that police corruption is a problem and that the Ministry of
Interior refuses to release information on police brutality and
corruption. He submitted that there is a high rate of police using their
power and position and the appellant's evidence should be seen against the
background of police corruption and the government reticence in giving
details of the extent of physical abuse of detainees. The report also
deals with gender based issues and shows that the abuse of women at home
is reportedly common and that some women, mostly under age have been
forced or willingly sold into prostitution by Mafia gangs. The Country Report on Human
Rights Practices in Lithuania for 1997 shows that there is a problem of
women who have been forced or willingly sold into prostitution by
organised crime figures. The International Federation for Human Rights
Annual Report 1997 shows that the Lithuanian government, failed to take
sufficient steps to protect vulnerable groups such as young girls. Mr MacDonald submitted that the evidence from the reports show that the appellant found herself in a serious and an on-going problem in Lithuania but the authorities were unable to provide protection. The inference is that the police are involved in the business with criminal gangs and this has been corroborated in the Lietuvos Rytas which reveal that senior police officers were sharing prostitutes with bandits in Panevczys which is just 100 Km from the appellant's village and it is not unreasonable to think that this is also occurring in ******. He submitted that the appellant has a well founded fear of persecution and that the appellant as a member of a social group (young girls) identified and targeted by gangs for forceful prostitution can be distinguished from Shah and Islam. He referred to the Tribunal's decision in Sagar [15792] and the *New Zealand Appeals Authority decision in Re MN [996], the Determination in Paredes [1998] and the Canadian decision in Rodionova [993] and Cuffy [1996] which in dealing with a particular 'social group' distinguished the attributes from the persecutory acts. Mr MacDonald submitted that the appellant's submissions accord with Shah and Islam and if the appellant were to be sent back to Lithuania she will be subjected to torture or alternatively to inhuman and degrading treatment and risk being forced into performing forced or compulsory labour contrary to Article 4 of the European Human Rights Convention in being forced to become a prostitute and being required to work in the sex industry. He submitted that selling someone into prostitution comes within the definition where policing is conducted by gang members in order to ensure that the appellant remains on the 'game'. He asked that the appeal be allowed. At the conclusion of the hearing I discharged the Secretary of State's certificate and reserved my determination on the substantive appeal. I must first consider whether the claim has been properly certified. A claim may be certified under paragraph 5 (4) (a) if it does not show a fear of persecution by reason of the appellant's race, religion, nationality, membership of a particular social group, or political opinion. It is accepted that the appellant, then aged 21 was abducted and raped by a 'Mafia gang' in order to force her into prostitution. The appellant sought and failed to obtain effective protection from the police and a substantial body of documentary evidence shows police corruption and that young women in Lithuania have been forced or are Willingly sold into prostitution by Mafia gangs. For the reasons which I will set out in considering the substance of the appellant's claim to asylum, the evidence adduced in support of the claim establishes a reasonable likelihood that the appellant has been tortured and suffered cruel and degrading treatment. Accordingly, I am not satisfied that the appellant's claim has been properly certified. The appellant would be entitled to asylum in the United Kingdom if she is a refugee as defined by the Convention: someone with a well founded fear of persecution for a Convention reason who is unable or unwilling to avail herself of the protection of her country of nationality. The onus is on the appellant to satisfy me that she has a well founded fear of persecution for a Convention reason in Lithuania. The following phrases, 'a reasonable chance', 'substantial grounds for thinking, 'a serious possibility' have been approved as ways of appropriately expressing the degree of likelihood to be satisfied in order that a fear of persecution may be well founded. The assessment of such a claim must be based on the evidence as a whole going to the past, present and the future and be according to the criterion of the reasonable degree of likelihood: Sivakumaran [1988] Imm AR 147 and Kaia [1995] Imm AR 1 . The appellant is a citizen of Lithuania who was born and brought up in *****. She bases her claim for asylum on the fact that she fears persecution because she was raped by a Mafia gang in order to force her into prostitution. She reported this incident to the police who did not believe her story and subsequently gave her statement to the gang who came to her address and her parents home and enquired about her whereabouts. She claims that her experience is not an isolated one and that other young women have suffered the same fate. She fears returning to Lithuania since the police did not investigate her complaint and did not offer her any effective protection because of their involvement with the gangs. I must first consider findings of credibility and then apply the same within the overall context of this case. I accept the account the appellant has given about what she says has happened to her in Lithuania. She asserts that she was abducted along with her friend by a Mafia gang and gang raped in a forest. She escaped as the gang raped her friend and went to the police station where she reported the incident. However, the police did not believe her statement and failed to investigate her complaint. Subsequently, the gang visited the appellant's hostel with a copy of the statement which she had given to the police, questioned her room mate and made it known that they knew her whereabouts and will find her. The gang also visited the appellant's parents home and enquired about her whereabouts. I accept that the appellant was frightened by these events and did not return to live at her hostel but went instead to a friend's flat where she remained for a few days before leaving Lithuania. I accept that the appellant informed her brother who is in the United Kingdom of the rape incident which occurred on **/**/1997 and that he advised her to come to the United Kingdom. I accept that the appellant already had a passport in her own identity which she used to leave Lithuania without apparent difficulty since the appellant has never been a member of any political party or had engaged in activities which would have brought her to the adverse attention of the authorities. I accept that the appellant claimed asylum immediately on her arrival in the United Kingdom. The appellant's account must also be looked at in the light of the situation in Lithuania. The Home Office Country Assessment Report and US Department of State Reports along with other reports referred to in this determination indicate that there were no reports of politically motivated disappearances. There is a problem, however, of women who have been forced or willingly sold into prostitution by organised crime figures. Their families, unaware of the situation, claim that they have disappeared or have been kidnapped. The local press reported that incidents of police brutality are becoming more common. In many instances, the victims reportedly are reluctant to bring charges against police officers for fear of reprisals. Some reports indicate that the Lithuanian government failed to take sufficient steps to protect vulnerable groups such as young girls. The Lietivos Rytas dated 26 March 1998 shows the unlimited abuse of police power and that senior police officers were sharing prostitutes with bandits. The evidence before me shows that there is a reasonable likelihood of intentional infliction of severe pain or suffering, physical or mental arising from the brutal gang rape for the purpose of intimidating and coercing the victim into working as a prostitute. The evidence also indicates that the appellant's attackers were furnished with a copy of the appellant's statement which she had made to the police. It is therefore reasonable to infer that the police are in association with the Mafia gang who attempt to recruit prostitutes from among young women against their will. The evidence shows that there is a reasonable degree of likelihood that the 'gang rape' was acquiesced in by the Lithuanian police. I conclude therefore that the appellant's experiences in Lithuania do amount to torture. I accept the credibility of the appellant and that she was deliberately targeted as a young woman who might be recruited into prostitution. The evidence shows that there is a reasonable likelihood that the activities of the 'Mafia gang' were knowingly tolerated by the authorities. The appellant sought assistance from the police but they were unable or unwilling to offer her effective protection. The documentary evidence shows that the appellant's experience is not isolated. Such action, is carried out by organised criminal gangs to recruit people into prostitution. I have considered carefully all the decisions cited in this determination including Shah and Islam [19971 and_Saqar [15792]. I bear in mind Court of Appeal judgements in Shah and Islam, and Saychenkov and that in the given case, the attributes on which the appellant relies can be distinguished from the persecutory acts thereby giving rise to a social group (young girls) who are identified and targeted by gangs as a source for prostitution. I have assessed the account given by the appellant in the light of the
general background situation in Lithuania. For the reasons I have set out
above, I find that there is a reasonable degree of likelihood that the
account that the appellant has given is true. I accept the appellant fails
within the definition of a particular social group for reasons already
stated in this determination. On the totality of the evidence before, me
and bearing in mind my findings of the appellant's credibility I am
satisfied that the appellant has established the basic facts on which she
founds her claim to asylum under the Convention. I am satisfied that the
appellant has a well founded fear of persecution for a Convention reason.
Accordingly, her return to Lithuania would be a breach of the United
Kingdom's obligations under the Convention. Accordingly, I allow the appeal and discharge the Secretary of State's certificate. Dr E A Prince Special Adjudicator
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