AB (Ashkaelia)
| Jurisdiction | England & Wales |
| Judge | Vice-President |
| Judgment Date | 03 June 2004 |
| Neutral Citation | [2004] UKIAT 188 |
| Date | 03 June 2004 |
| Court | Immigration Appeals Tribunal |
[2004] UKIAT 188
IMMIGRATION APPEAL TRIBUNAL
Mr S L Batiste (Vice-President)
Mr R Chalkley (Vice-President)
Mr R Hamilton
AB (Ashkaelia) Serbia and Montenegro CG
The Appellant, a citizen of Serbia and Montenegro (Kosovo), appeals, with leave, against the determination of an Adjudicator, Mr C G Kelsey dismissing his appeal against the decision of the Respondent on 14 June 2003 to issue removal directions and refuse asylum.
Mr R Amarasinha represented the Appellant. Mr G Saunders, a Home Office Presenting Officer, represented the Respondent.
The Appellant's claim can be summarised as follows. He is an ethnic Ashkaelia and a Christian, whose problems began in 1999 after the Serbians left Kosovo. He was ill treated by Albanians in his home area, which is largely ethnic Albanian, because of his ethnicity. He was verbally abused and physically beaten whilst walking in the street. Further problems began when he married his wife in September 2001. She is an ethnic Albanian and a Moslem by religion. The marriage was not approved by Albanians in the village of Podujevo, where they lived. Soon after he was married he was collecting wood in the garden when he heard shots and a little later was shot in the leg. At all events the Appellant said he did not go to hospital because he feared being shot again. He was scared to leave the house. He received death threats if he did not leave the village. Stones would be thrown at him in the street. After the shooting he contacted KFOR who provided him with security at his house for two days. They then said there was little more they could do for him. At that time his wife was pregnant and she lost the baby due to stress. They sold belongings in order to raise finance to pay for their journey to the UK. They arrived here together on 22 October 2002 and, after being found concealed in a lorry, the Appellant claimed asylum.
The Adjudicator expressed considerable reservations concerning the Appellant's credibility. He observed that although the Appellant claimed to have experienced some degree of animosity and discrimination after the war, he did not take any significant steps to report these matters or seek protection from the authorities. Even in relation to the shooting, his approach to KFOR only arose some two weeks after the incident, when his wife observed KFOR troops walking past the house in the street and went up to report the matter to them. They acted properly and took full details and remained in the region for a couple of days, before leaving when nothing else untoward happened. The Adjudicator was unclear, having regard to the earlier shots that appeared to have nothing to do with the Appellant, whether his wounding was a deliberate attack on him or an accidental shooting. He concluded that the wound could not have been particularly serious because the Appellant did not go to hospital or take any immediate steps to contact the police or any other security organisation. However he accepted on the lower standard of proof that the Appellant had received some injury in a shooting incident. The Adjudicator was also concerned that there was no evidence of any particular event that caused the Appellant and his wife to leave Kosovo some 9 months after the shooting. Plainly if he was in any real fear for his life he would have left earlier.
On this analysis, the Adjudicator concluded that there was no real risk of ill-treatment on return to his home area sufficient to cross the high threshold required to constitute persecution or a breach of Article 3. In any event there was a sufficiency of protection available to the Appellant from the authorities in his home area within the terms of Horvath. Finally, if he did not wish to return home, there was an internal relocation option that would not be unduly harsh. The Appellant spoke fluent Albanian and had done nothing that could lead anyone to believe that he had collaborated with the Serbs. Effectively he would be able to merge with the majority population. He had lived in Fush before and had not given any credible evidence that he could not return there, where there was a pocket of Ashkaelia, or elsewhere. The Adjudicator therefore dismissed the asylum and associated human rights appeals. He also dismissed a freestanding Article 3 claim on health grounds and an Article 8 claim in respect of private family life.
Permission to appeal was granted only to enable argument concerning risk arising from the Appellant's ethnicity in the light of UNHCR advice. In terms of the grounds of appeal this embraced paragraphs 3 and 4 only, as the representatives agreed at the outset of the proceedings before us.
Mr Amarasinha argued that the main issue was the consideration of the risk impact of the mixed marriage, which was one of the categories identified by UNHCR as requiring continuing international protection. The issue of the marriage was not properly considered by the Adjudicator. He dealt simply with ethnicity rather than the problems posed by the mixed marriage between people of different ethnicity. He did not consider what problems would arise as a result and whether internal relocation was a viable option as a consequence. He invited the Tribunal to reach its own conclusions on the basis of the facts as established and he submitted the appeal should be allowed outright.
Mr Saunders submitted that the Adjudicator's conclusions were properly sustainable. The Appellant, though Ashkaelia, spoke Albanian as his first language and is married to an Albanian Moslem woman. There was no reason why he could not merge into the majority community in his home area. He had remained there for some nine months after the shooting (for which it was still no corroborative medical evidence). There was no evidence of material difficulties in this time and, as the Adjudicator noted, there was no clear triggering event for his decision to leave Kosovo for the United Kingdom. Alternatively, in paragraph 14 of the determination the Adjudicator noted that the Appellant went to live for some time in Fush. Though he claimed he had had problems there he was unable to state what they were. Thus he had been able to live elsewhere in Kosovo previously and could...
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