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Asylum
from trafficking. The
highlighted sections are extracts from the Determination: 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 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 . . . 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.
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 . . . 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. . . . 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. . . . 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. 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 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. . . . I accept the account the appellant has given about what she says has happened to her in Lithuania. The appellant's account must also be looked at in the light of the situation in Lithuania . . . . There is a problem . . . . 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 . . . I accept the credibility of the appellant and that she was deliberately targeted as a young woman who might be recruited into prostitution. . . . The appellant sought assistance from the police but they were unable or unwilling to offer her effective protection. . . . 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.
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. . 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 Click here for the Full Determination |