BA (Kosovo) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Lord Justice Stanley Burnton,Lord Justice Longmore |
| Judgment Date | 25 February 2009 |
| Neutral Citation | [2009] EWCA Civ 254 |
| Docket Number | Case No: C5/2008/0975 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 February 2009 |
[2009] EWCA Civ 254
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
Lord Justice Stanley Burnton and
Lord Justice Elias
Case No: C5/2008/0975
[AIT No: AA/06428/2007]
Mr M Henderson (instructed by the Refugee Legal Centre) appeared on behalf of the Appellant.
Mr A Payne (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
Lord Justice Elias:
This is an appeal against the decision of a Senior Immigration Judge who concluded that the appellant would not face a real risk of persecution if he were to be returned to Kosovo. Permission to appeal was granted by another Senior Immigration Judge.
The decision under challenge is not structured as satisfactorily as one would wish. There is repetition of the facts at various points in the decision, and the conclusions are somewhat discursive. However, the essential facts are, I think, tolerably clear and can be shortly stated.
The appellant, a 28-year-old male, is a Khorakhane Roma and a Muslim. He was born in Prizren, Kosovo, on 7 August 1980. He ran a large café in the town until he was forcibly conscripted into the Serbian army in May 1999. His brother had been forcibly conscripted into the army a year earlier, in March 1998. He was taken to a village in Serbia where he was compelled to dig large holes which he was told were mass graves. He said that the graves were filmed for Kosovan television and that he personally was filmed and made to say on camera that he was fighting willingly against the Albanians, which was not true. This is in fact the most favourable account for the appellant. The Immigration Judge noted that at one stage in his evidence the appellant was not in fact sure whether he had been filmed or not, but that he understood from a third party that he may have been.
One month after his conscription, NATO intervened in Kosovo and he was released from the army. He remained in Serbia as he was afraid to return to Kosovo because of the TV footage. He thought he would be treated as a Serb collaborator. Initially he lived in a camp in Zemun with other Roma. He set up a business selling clothes in the market after receiving some money from his mother. He said that he received threats and suffered continual verbal racist abuse because of his Roma origins. He relocated within Serbia to another part of Zemun where he was no longer living with other Roma. He avoided other Roma and also avoided speaking his native language. He represented himself as a Bosniak and did not then suffer abuse.
In 2004 there were ethnic tensions in Serbia directed against Roma and Muslims like the appellant. Mosques were burnt. He did not personally experience any physical violence but he feared for his life and decided to leave Serbia. He escaped with the help of an agent. He arrived in the United Kingdom concealed in a lorry in May 2004 and claimed asylum the following day.
His principal ground for seeking asylum, as advanced before the Immigration Judge, was that he would be persecuted by virtue of his perceived collaboration; ethnic Albanians in Kosovo would not forgive him for apparently being a Serb collaborator, which they would assume from seeing that film. In addition, he said that he would suffer persecution as a Roma in Kosovo in any event. He produced expert evidence to support his case from Professor Acton of the University of Greenwich. The gist of his report was that if the appellant were to return to Kosovo he would be identified as a Roma or gypsy and be in constant danger. This was particularly so since he would be treated as a Serb collaborator. Professor Acton also drew attention to the harsh conditions in the Roma enclaves or camps, which the appellant himself described as a “prison”.
The Immigration Judge rejected the principal premise underlying the claim for asylum, namely that as a consequence of the film being shown, the appellant would be identified in the eyes of the Albanians in Kosovo as a collaborator. He concluded that even on the lower standard of proof, it was unlikely that any footage of the film had been broadcast. The appellant was only conscripted for about a month before he left the Serbian army and it was merely hearsay as to whether the film had ever been shown at all. Nor was it likely that much attention would have been paid to it in any event. The judge relied upon the fact that, as the appellant himself observed, it was a time of war, there were regular power cuts and people were not watching television. Finally, he had not been in Kosovo for nine years.
Mr Henderson, counsel for the appellant, has—somewhat sotto voce—sought to challenge the findings of the Immigration Judge with regard to that issue. However, I am satisfied that it was a conclusion of fact he was entitled to reach. The key question was whether the circumstances surrounding the film would be likely, some nine years on, to cause Albanians in Kosovo to treat the appellant as a collaborator on that account. The judge concluded that that would not be the situation. I have no doubt that he had a proper evidential basis for that conclusion and it displays no error of law.
The judge also considered whether there was a risk to the appellant arising out of his Roma status. He considered the country guidance case of KX Serbia and Montenegro (Kosovo) v SSHD CG [2006] UKAIT 00072, and he summarised its effect as follows:
“The case of KX concludes that Roma in Kosovo in general face living conditions of considerable difficulty with discrimination and victimisation and some risk of violence, but which, unless exceptional circumstances are shown, will not amount to a risk of persecution engaging the refugee convention or of serious harm engaging Article 3 of the ECHR. I cannot see any exceptional circumstances in this case.”
The Immigration Judge preferred to rely upon the KX case rather than Professor Acton's report in assessing the nature and degree of the risk facing Roma returning to Kosovo. It is accepted that he was entitled to do so.
It might have been thought that this was enough to determine the case. On the Immigration Judge's own interpretation of KX, no more was strictly required. The principal ground had been rejected, and the Immigration Judge did not think that the mere fact of being a Roma created a real risk of persecution. However, the Judge went on to say this, at paragraph 39:
“The appellant speaks Albanian and has in the past been able to represent himself as a Bosniak in order to avoid problems. Given that he is multilingual and not easily identifiable as a Roma, I believe that on the basis of the evidence he would be able to integrate with the majority community if he was discreet about his Roma ethnicity in order to avoid any problems he may have in the future in his country. Furthermore if he preferred not to conceal his ethnicity he could do as many other Roma have done and move to a Roma Enclave where he would obtain some protection in numbers from members of the wider public who may wish to harass him”
Finally, the judge also had regard to what he said was a failure by the appellant to answer certain questions which were posed to him and which damaged his credibility under section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. It is conceded that the judge was in error in so doing but nothing turns on it because the essential credibility of the appellant is not in issue.
The grounds of appeal.
It became apparent during the course of argument that the grounds now relied upon, have shifted significantly from those advanced in the original grounds of appeal. Indeed at the heart of this appeal, as advanced orally, is the proper interpretation of the KX case.
KX is a country guidance case. It concerned a couple. The husband was an Albanian, the wife Roma. The question was whether they could be relocated to Kosovo. The IAT concluded that they could not because there was no sufficiency of protection for victims of ethnic violence in Kosovo from mixed marriages of this kind. In the course of giving its determination, the IAT also considered the position of Roma returning to Kosovo. It had regard to a number of earlier decisions as well as to operations guidance notes of 2006 and various position papers produced by the UNHCR, including one in June 2006. It reached certain general conclusions. The material part of its decision for the purposes of this appeal is at paragraph 70, subparagraphs (1), (2) and (6). They are as follows:
“(1) Roma in Kosovo in general live in conditions of considerable difficulty, with discrimination and victimisation and some risk of violence, but which, unless exceptional circumstances are shown, will not amount to a...
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