Albanian blood feuds and certification: a critical view

Thursday 4 April 2019

This paper is provided for information and training purposes only and is not legal advice. Anyone affected by the issues raised in this paper should obtain professional legal advice from a solicitor, barrister or regulated immigration advisor.

This is an expanded and updated version of a paper first published in March 2018.

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In June 2018 I presented a paper at the event “Breaking the Chains”, hosted by Shpresa and Islington Law Centre’s Migrant and Refugee Children’s Legal Unit (MiCLU), in which I criticised aspects of the Home Office’s then current Country Information and Guidance (CIG) on blood feuds in Albania. Since then, the old CIG has been withdrawn and replaced with a new Country Policy and Information Note (CPIN) which was published in October 2018.

The new CPIN is different in some respects from the old CIG, and it draws very heavily on one source, namely a fact-finding mission report published by the Belgian Commissioner-General for Refugees and Stateless Persons (CEDOCA) in 2017. However, like the old CIG, the new CPIN asserts at 2.7.1 that a claim based on blood feud is likely to be certifiable as clearly unfounded under section 94 of the Nationality, Immigration and Asylum Act 2002. In my view, this is fundamentally misconceived.

Certification under section 94 is a draconian measure which deprives the claimant of an in-country right of appeal, leaving judicial review as their only remedy. 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. In view of this, where a protection claim is certified as clearly unfounded, the certification normally is not based upon issues of credibility, unless the claim is so incredible that no one could believe it: see ZL and VL [2003] EWCA Civ 25. Rather, the decision to certify the claim is normally taken on the basis that, taking the claimant’s account at its highest, the claimant does not have a well-founded fear of persecution and is not at risk of serious harm, would be able to receive sufficient protection from the authorities of their home country, and/or could safely and reasonably relocate internally within their home country to avoid the risk.

The CPIN does not provide any adequate justification for the suggestion that Albanian claims based on blood feud can properly be certified. I say this for the following reasons.

Sufficiency of protection

The first question is whether the Home Office is entitled to hold that an Albanian seeking asylum on the basis of a blood feud would unarguably be protected sufficiently by the state, such that it would not be open to a hypothetical tribunal judge to conclude otherwise. In my view, it is not.

The starting point of any hypothetical tribunal would be the country guidance in EH (blood feuds) Albania CG [2012] UKUT 00348 (IAC): “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… Where there is an active feud affecting an individual and self-confinement is the only option, that person will normally qualify for Refugee status.” In other words, depending on the facts of their case, an individual may not receive adequate state protection against an active blood feud. Any hypothetical tribunal would take this as a starting point. As the Court of Appeal held in SG (Iraq) [2012] EWCA Civ 940 at [47], “tribunal 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.” Even if the Home Office considers that an individual affected by an active blood feud would receive adequate protection, it cannot conclude that a hypothetical tribunal could not realistically take a different view."

Home Office decision-makers often fail to understand that the existence of a functioning police force and/or judicial system does not always imply that a sufficiency of protection is available. A case frequently overlooked in this regard is AW (sufficiency of protection) Pakistan [2011] UKUT 31 (IAC), of which the judicial headnote reads:

" 1. At paragraph 55 of Auld LJ’s summary in Bagdanavicius [2005] EWCA Civ.1605 it is made clear that the test set out in Horvath [2001] 1 AC 489 was intended to deal with the ability of a state to afford protection to the generality of its citizens.

2. Notwithstanding systemic sufficiency of state protection, a claimant may still have a well founded fear of persecution if authorities know or ought to know of circumstances particular to his/her case giving rise to the fear, but are unlikely to provide the additional protection the particular circumstances reasonably require (per Auld LJ at paragraph 55(vi)).

3. In considering whether an appellant’s particular circumstances give rise to a need for additional protection, particular account must be taken of past persecution (if any) so as to ensure the question posed is whether there are good reasons to consider that such persecution (and past lack of sufficient protection) will not be repeated."

It is established law that the effectiveness of the system provided is to be judged normally by its systemic ability to deter and/or to prevent the form of persecution of which there is a risk, not just punishment of it after the event: see AW (Pakistan) above at [23], citing one of the propositions put forward by Auld LJ in Bagdanavicius [2005] EWCA Civ 1605 and left undisturbed by the House of Lords in Bagdanavicius [2005] UKHL 38. With this in mind, it is important to consider the practicalities of protection. Even if the police are in general willing to prosecute those who commit revenge killings as part of a blood feud, it does not follow that the police will be either willing or able, for example, to provide prospective protection to a young man who lives in a remote mountain village and fears his neighbours.

It is also important to remember that the decision-maker must always ask themselves, first, whether the person seeking asylum is at risk of persecution in their home area and would be insufficiently protected against that risk in their home area, which may be a rural, conservative and/or remote part of northern Albania. If this is so, it is then, and only then, that the analysis shifts to internal relocation – in which the decision-maker must ask themselves not just whether the person seeking asylum could successfully avoid persecution in a different part of the country, but also whether it would be unreasonable or unduly harsh to expect them to do so. It is not acceptable to elide these two separate issues by stating simply that the person seeking asylum would be adequately protected by the state if they relocated to Tirana. This issue is discussed further below.

The CPIN’s policy summary at paragraphs 2.5.2 to 2.5.6, in arguing that a sufficiency of protection is generally available, draws heavily on the CEDOCA report. However, the CEDOCA report itself paints a mixed picture. Its authors make clear that their interviewees did not have a unanimous view about the effectiveness of the police in tackling blood feuds. From page 33 of the CEDOCA report:

“During its fact-finding mission, Cedoca met two experts who expressed strong doubt that the police is capable of controlling, monitoring, preventing and prosecuting the contemporary blood feud phenomenon: Operazione Colomba and Elsa Ballauri. Although they agreed that the police is accessible nowadays and that the police is “at least” hearing the citizens and that they are taking complaints now, they stressed that there are still very important issues of negligence and ineffectiveness at the heart of the police forces. They claimed that the police could do their investigation work much better. “Sometimes the suspects in a contemporary blood feud case are arrested immediately after an incident but what follows is a deficient investigation and the suspects are released again.”

However, multiple other non-governmental sources confirmed that the police forces have renewed and strengthened their attention to the phenomenon of contemporary blood feuds and have also acknowledged its effectiveness and impact on the decrease of the phenomenon.”

Another example of disagreement between sources is found on page 35:

“Only two of Cedoca’s interlocutors, Operazione Colomba and an expat living in a village with blood feud affected families, claimed that the police forces have to be bribed with so-called “coffee money” in order to intervene (or can be bribed in order not to intervene). However, most sources agree that this is not imaginable in cases where the lives of citizens are under threat.”

The “non-governmental” sources cited by CEDOCA who are said to have painted a more positive picture include an appeal court judge, the mayor of Fushë-Arrëz, a journalist and civil society activist named Mentor Kikia, and an NGO representative named Rasim Gjoka. The authors do not provide the full transcripts of their interviews, nor do they provide detailed information about the backgrounds of the various people and groups interviewed, including any potential biases. Most of what is said by the interviewees (both positive and negative) is in relatively general and anecdotal terms, with few specific examples.

The CPIN also asserts at 2.5.2 that “the idea of blood feud is generally no longer accepted in Albania, including in the north,” attributing this claim to the CEDOCA report. But this too was far from a unanimous view among CEDOCA’s interviewees. From the CEDOCA report at pages 7-8:

“However– in spite of the general claims about a new, modern mentality that is no longer sustaining blood feuds – murders have still been committed in the 21st century whereby the Kanun was invoked. It seems that this phenomenon is the result of the perpetuation of a traditional mentality among some sections of Albanian society:

Professor Gjuraj stated that:

“During the communist regime, it was thought that the phenomenon had died out. But in some cases, this was not true. Sometimes old sores or old family issues have remained and revived. It’s about cases where it was believed that an ethical issue was to be solved through a traditional blood feud murder. Some people became afraid of their own kids. It was the continuation of the mentality, the influence of the past. It was still there but it was hidden.”

An appeal court judge confirmed that in the post-communist era, all of a sudden murders have been committed in the name of blood feud after decades of silence.

Also according to a source at the Shkodër Regional Police Directorate, the traditional mentality was perpetuated in the mind or consciousness of some people. “Sometimes, there are persons who have never shown any criminal tendency but something was sleeping in their mind and all of a sudden he feels an urge and he will seek for self-judgement.”

A priest from a religious congregation in Fushë-Arrëz who has many years’ experience in community building (including mediation and reconciliation processes between conflicting families) wrote in an e-mail to Cedoca:

“When something in the direction (of an ethical issue) happens, many Albanians think that the rules of the Kanun are applicable. All the rest – 10 commandments, the Gospel, the universal declaration of human rights, the concept of human values,… – is simply clicked away. So comes that revenge, violence and fear have sometimes evolved into a lethal cycle of murders, even after the communist times.”

According to a representative from Operazione Colomba, a catholic charity organisation in Shkodër, the old mentality can at times still exist. “They do believe in collective responsibility and they stay inside. Even if the killer was an uncle or somebody external (a very far cousin for example) they sadly say: ‘It’s not my fault but I have some responsibility because it’s my family’.”

Luigj Mila explained that although blood feud was condemned for 50 years and customary law texts were put into the archives and sealed off, some people kept a kind of nostalgia for it. They remained emotionally attached to it in a negative way. He explained that the very repressive methods of the communist regime may have stopped the practice of blood feud for a certain period but, generally speaking, the same methods may also have fuelled the current mentality of distrust towards the authorities and the preferences for self-justice among some segments of society: “People were taught that the enemy was everywhere. They were taught to be on guard all the time. They created monsters that could kill you every moment for every reason. There was a culture of distrust. Self-protection was primordial.”

Another source confirmed the importance of the past: “The psychological impact of the dictatorship on the mentality of the people is still underestimated. “Distrust among the people is a very big problem and that has to do with the past.”

It is clear from this passage that a diversity of views were expressed about the alleged change in social attitudes towards the blood feud. Again, it is difficult for a reader of the CEDOCA report to evaluate the competing claims. A hypothetical tribunal judge would be unlikely to conclude that this constituted the “very strong grounds supported by cogent evidence”  necessary to depart from the guidance in EH.

Pages 11-12 of the CEDOCA report are also of interest:

A report by Operazione Colomba states that “The phenomenon has changed and keeps changing. Nowadays the custom has been altered compared to the rules prescribed in the Kanun.”

Mentor Kikia explained that with regard to contemporary blood feud in Albania, the Kanun “no longer makes the lines of conduct: If they would have respected the Kanun to the letter, there would have been less killings in the 1990s.” On the other hand, he acknowledged that Kanun-elements like “self-isolation” (cfr. infra 3.1 Self-Confinement) or the element of “negotiation” (cfr. infra 3.5 Communication: negotiation, mediation and reconciliation) can sometimes still be observed in contemporary blood feuds.

Alfred Koçobashi stated that blood feud still occurs “when someone innocent, a third party has to pay the price for the damage a family member has done, but he added that since the 1990s it is not about honour anymore. 80 % is criminal and not related to customary law or medieval common law. It’s about mafia-style killings. It’s murder cases for other reasons than blood feud, just like they happen elsewhere. It’s normal killings or vendetta killings.”

Elsa Ballauri from the Albanian Human Rights Group (AHRG) also referred to the transformation of blood feud: “blood feud has changed in the perspective of the so-called ancient codes.” She pointed out that nowadays, people are killing even women and children for blood feud, which is not in accordance to the stipulations of the Kanun. “It’s not real blood feud like it is written in the Kanun. It has transformed.” She also declared: “It’s more a justification nowadays because they are committing crimes and they say: ‘I did it for blood feud’. But for me, none of the cases after the 1990s is a real blood feud case.”

Also Rasim Gjoka from the Foundation for Conflict Resolution and Reconciliation of Disputes (AFCR) explained that “in most of the cases that are referred to with the term blood feud, people use the term blood feud in order to justify their heavy crimes. It is not true blood feud. It’s pure criminality.” He also said:

“Nowadays, one cannot know anymore what the other part has in the head. Sometimes they don’t care who will be the target. Even women can be a target.” With regard to the reconciliation process, Gjoka also stated that the instrument of the Kanun is not there anymore. He concluded that “very few of all these cases are blood feud.”

Well known and often cited examples of murders that are referred to as blood feud cases although the rules of the Kanun were not followed are the killing of a child in 2012 and the killing of a pastor in 2010, both in Shkodër. In both cases the Kanun was invoked but at the same time killings were blatant violations of the Kanun rules.


Philip Alston points out in his report that the terms blood feud (gjakmarrja) and revenge (hakmarrja) are nowadays often used interchangeably, meaning any kind of revenge is likely to be labelled as blood feud or gjakmarrja.

Rasim Gjoka stated that there is confusion in classifying murders in the north of Albania. Influenced by the customary law, there are cases of murders for ordinary reasons, committed to revenge, which are classified as blood feud.

Similarly, Elsa Ballauri stated this:

“In the south many crimes happen but they don’t use the term blood feud. There are many cases in which they killed a close friend or a brother but nobody calls it blood feud. The intentions are not because of blood feud. They just want to take revenge. But when the same crimes happen in the north, it is called blood feud.”

This observation is also confirmed by Mentor Kikia who stated that a murder that happens in the north of Albania will rather be considered gjakmarrja because of the perpetuation of the traditional mentality over there, while the same type of murder in the south of Albania becomes hakmarrja.

According to the AIPA report, a reason for the blurring between revenge killings and blood feud killings nowadays could be that sometimes ordinary revenge killings start to resemble blood feud killings after some time because of the way some people respond to them mentally:

“despite the lack of canonical grounds, in most cases families hide or isolate themselves, send mediators to negotiate reconciliation, thus entering into a blood feud. Under these circumstances despite the revengeful character of the intent to commit the second murder, parties position themselves in a blood feud situation, which makes the present day phenomenon a hybrid much more complex than the initial one.”

This passage may suggest that a decline in respect for the norms of the Kanun has not necessarily made people safer from blood feuds – indeed it may mean that aggressor clans target women and children, and commit other acts violating the Kanun which may put potential victims at more, not less, risk.

In short, while the CEDOCA report provides some useful information, it cannot be said that it would compel any tribunal judge to reach the conclusion that, contrary to EH, the Albanian state now provides effective protection generally to people at risk of an active blood feud. A tribunal judge could clearly properly conclude that, given the disagreement between CEDOCA’s interviewees and the difficulty in assessing the credibility and reliability of the various views expressed, the Home Office has not shown that there are “strong grounds supported by cogent evidence” for departing from EH.

Indeed the CPIN does not even go so far as to claim that everyone will have access to effective protection. It acknowledges, at 2.5.8, that “where an active blood feud means that self-confinement is the only option because the reach and influence of the opposing clan is extensive, a person is likely to qualify for refugee status.” This does not sit easily with the assertion that blood feud cases are likely to be certifiable as clearly unfounded.

Internal relocation

If the person seeking asylum is at risk in their home area, the decision-maker should turn to the issue of internal relocation. It is important to recall that there are two limbs to the internal relocation analysis: relevance and reasonableness. The first involves asking whether the person could avoid persecution by relocating; the second involves asking whether it would be unreasonable or unduly harsh for them to do so.  

The CPIN does not demur from, and indeed cites at 2.6.2, the guidance given at paragraph 70 of EH:

“Internal relocation will be effective to protect an appellant only where the risk does not extend beyond the appellant’s local area and he is unlikely to be traced in the rest of Albania by the aggressor clan. A crucial factor in establishing whether internal relocation is a real possibility is the geographical and political reach of the aggressor clan: where that clan has government connections, locally or more widely, the requirement to transfer civil registration to a new area, […] would appear to obviate the possibility of “disappearing” in another part of the country, and would be likely to drive the male members of a victim clan to self-confinement in the home area as an alternative.”

It is thus clear that internal relocation will not always be an effective means of securing protection, depending on the facts of the individual case. Indeed the CEDOCA report strengthens, rather than weakens, this conclusion. From pages 27-28 of the CEDOCA report:

Some of the affected families have moved inside Albania. With regard to the aspect of internal migration, the AIPA report notes that “The conflict situation has reduced these families to poverty and has forced them to migrate from their villages, communities, and cities. They display numerous social and health problems and have very little or no contact with the outside world”.

The mayor of Fushë-Arrëz explained that only the poor have remained in the country: “They have moved to urban areas like Durrës.” Operazione Colomba is monitoring a number of blood feud affected families that have moved from the mountains into the so-called “New Migration Areas” in and around the city of Shkodër.

According to multiple sources, some of the affected families are not particularly safer after having moved away from where they were living. The Director of the Prosecutor’s Office stated that for the affected families “the fear can be everywhere”. Also a representative of the Albanian Helsinki Committee warned that in the case of a contemporary blood feud situation, a potential victim will not necessarily be safe after having moved inside Albania. He explained that “each country is a village” nowadays. Mentor Kikia claimed that some of the isolated families cannot even dream of moving to Tirana either because they are either too poor to move outside or because nowhere is safe for them. Elsa Ballauri confirmed that there are situations where moving is not an option because the potential targets will surely be followed, even abroad if necessary. Luigj Mila, Alfred Koçobashi and a representative of the OSCE likewise claimed that the blood feud mentality, insofar as it still prevails, does not know any limits of time and place.”

This, again, makes it unsustainable to suggest that a typical blood feud case will be certifiable under section 94 on the basis that internal relocation is available. Whether the tribunal assesses that the claimant can avail themselves of internal relocation will necessarily turn on a case-by-case assessment, including the influence and reach of the aggressor clan and any ties it may have with government, police, criminal gangs or other powerful actors.

An important and recent development, post-dating the first version of this paper, is the country guidance determination in BF (Tirana – gay men) Albania CG  In this case at [179] the Upper Tribunal expressed some dissatisfaction with the limited evidence available as to the ability of persecutors to trace their victims through the registration system. However, significantly, it accepted at [181]:

“We accept Ms Young’s evidence that 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.  Whether that would occur would depend on the family being motivated to make such enquiries (which motivation would probably depend on an awareness that the person may be living there) and the extent of its hostility.  That is a question for determination on the evidence in each case."

Thus, it is clearly plausible that a sufficiently determined aggressor clan could make enquiries through family or community connections and could track down their victim in Tirana or elsewhere. This needs to be taken into account in challenges to certification. 

The question of reasonableness – the second stage of the internal relocation test – also needs to be considered in every case. The reasonableness analysis involves asking whether the individual could lead a relatively normal life in the place of relocation without facing undue hardship. The ability to survive economically in the place of relocation is an aspect of the reasonableness analysis. The UNHCR states in its Guidelines on International Protection No. 4 that:

“[i]t would be unreasonable, including from a human rights perspective, to expect a person to relocate to face economic destitution or existence below at least an adequate level of subsistence. At the other end of the spectrum, a simple lowering of living standards or worsening of economic status may not be sufficient to reject a proposed area as unreasonable. Conditions in the area must be such that a relatively normal life can be led in the context of the country concerned.”

It is not the case that conditions in the place of relocation cannot be unreasonable or unduly harsh unless they infringe Article 3: AH (Sudan) [2007] UKHL 49. In AA (Uganda) [2008] EWCA Civ 579 the Court of Appeal found that there must be some conditions in the place of relocation that are unacceptable to the extent that it would be unduly harsh to return the applicant to them even if the conditions are widespread in the place of relocation: on the facts of that case, the Court considered that being forced into prostitution as a condition of survival would meet this threshold. 

In assessing whether internal relocation is unduly harsh, the decision-maker needs to have regard to the individual’s age, health, family ties, vulnerabilities and other relevant factors. Medico-legal evidence, where available, will play a particularly important role. It must be borne in mind that in many cases, evidence shedding light on the appellant’s vulnerability will not be available at the stage of the initial decision. The Legal Aid Agency often declines to fund medico-legal reports at the pre-appeal stage, consistently with its published policy. Those representing young people at the pre-appeal stage should be prepared to argue robustly that, considering that many Albanian asylum claims are now certified, such reports ought to be funded at the pre-appeal stage in Albanian cases in order to ensure that the case of the person seeking asylum is adequately put forward. 

In conclusion, it is wholly unjustified for the CPIN to suggest that blood feud claims are likely to be certifiable as clearly unfounded under section 94. The EH country guidance is clear that some people affected by an active blood feud will not be able to avail themselves of state protection or internal relocation. The contents of the CPIN, and the CEDOCA report upon which it places primary reliance, do not afford a justification for departing from that conclusion. At the very least, it is open to a tribunal judge to find that there is no sufficiency of protection and no internal flight alternative on the facts of an individual case. It follows that certification is not appropriate in these cases. 

David Neale is a legal researcher and former barrister at Garden Court Chambers.

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