BD (application of SK and DK) Croatia

JurisdictionEngland & Wales
CourtImmigration Appeals Tribunal
Judgment Date26 February 2004
Neutral Citation[2004] UKIAT 32
Date26 February 2004

[2004] UKIAT 32



The Honourable Mr Justice Ouseley (President)

Mr H J E Latter

His Honour Judge G Risius CB

Secretary of State for the Home Department

For the Appellant: Mr M Malik of Sutovic and Hartigan

For the Respondent: Ms J Bracken, Home Office Presenting Officer

BD (Application of SK and DK) Croatia CG*


This is an appeal by the Secretary of State against the decision of an Adjudicator, Mr A A Wilson, prepared on 3 rd December 2002 and promulgated on 7 th January 2003, following a hearing on 26 th November 2002. The Appellants were four Croatian Serbs. The first and third Appellants were the father and mother of the second and fourth Appellants, their daughter and son. Both were adults. The father and son appealed on asylum grounds. There was no appeal by the wife and daughter on asylum grounds, although the Adjudicator said that their status fell to be determined in line with that of the first Appellant, the father. The son appealed on both asylum and human rights grounds. The father's appeal was allowed on both asylum and human rights grounds. The second and third Appellants' only appeals were dismissed on human rights grounds. The fourth Appellant's appeal was dismissed on asylum grounds, but allowed on human rights grounds. In effect, all the issues turned upon whether the return of the father, the first Appellant, to Croatia, would be a breach of the Refugee Convention and of his human rights.


Of some significance in this appeal is the fact that at the time when the Adjudicator heard the matter, the case of S & others [2002] UKIAT 05613 Starred, as the Adjudicator referred to it (strictly SK), was still pending in the Tribunal. This case was known to the Appellants' solicitors since they were Sutovic and Hartigan. The Adjudicator knew that the case had been heard by the Tribunal and that it was intended that judgment be delivered during December 2002. In fact it was notified on 3 rd December 2002 to the same solicitors who were appearing both in SK and in these Appellants' appeals.


The Appellants pressed for an adjournment in view of the pending decision in SK, but this was rejected by the Adjudicator. He referred to the unfortunate history of hearings and adjournments which these appeals had suffered. Two adjournments had been granted pending first the decision of the Court of Appeal in S and others and second the Tribunal's determination of the case. Although, he said, guidance of the sort envisaged to be provided by SK would be very welcome, he concluded that in its absence, matters fell to be determined in the light of the evidence available. Because the same solicitors were involved, he thought there was no reason why matters placed before the Tribunal could not be properly placed before him. He therefore refused the adjournment having regard to the overwhelming and primary purpose of determining a prompt, efficient and just disposal of the hearing.


We should add that the Adjudicator did not have the benefit of an appearance on behalf the Secretary of State and as he indicates in a number of places in his determination, he would have found the Secretary of State's appearance of some assistance to him.


We turn to the basis of the asylum claim of the father. The family left Croatia in March 1998 for Norway where their asylum claim was refused three times, whereupon they left for the United Kingdom and made a further asylum claim. The Adjudicator summarised the basis for the appeals as being that all the Appellants suffered to some extent discrimination and violence in Croatia at the end of the civil war, but left due to the particular risk it was stated the first Appellant was under of being prosecuted by the Croatian authorities as a putative war criminal. He had come from a Serb enclave in a predominantly Croatian area.


The Appellant had been mobilised and on active duties for some nine months at the end of 1991 through to 1992, working on the front line and then as a military policeman. He had been discharged following the creation of the Republic of Serb Krajina and placed on reserve duty, during which again he had worked as a military policeman. One of his duties had been to act as a guard for a group of Croats and Hungarians for about three months. The warden of that camp was, said the first Appellant, certainly wanted by the Croatian authorities for war crimes. The first Appellant maintained that he had never been involved in any war crimes. At the end of 1997, he had been sacked from his job, as the eastern sector of Croatia was handed over following the withdrawal of UN Forces. A pattern of discrimination and violence then emerged. He was verbally abused and received death threats. His wife was refused entitlement to social security and other benefits. His daughter was threatened at school and was once attacked by a Croatian policeman. He himself had been physically assaulted by two Croats who had recognised him as a Serb by his dialect and, in March 1998, three masked Croats smashed the windows of his house. As a result of this, they all decided to leave.


The Appellant said that he knew he was on a list of persons wanted for war crimes because when he had been in Norway he had been shown a list of people, although he had never seen it again. He said he was on the list of persons who had received an eight year jail sentence. A lot of policemen were on the list, as were his brother-in-law and nephew. He was unable to give much more information about it, and had not mentioned it at his interview. He also said there had been telephone threats as a result of his guarding the camp.


The fourth Appellant, the son, also gave evidence describing how matters had deteriorated in East Croatia following the departure of the UN Forces at the beginning of 1998. A friend had been attacked and stabbed, but the police had been of no assistance, denying the incident. He had been attacked at school by fifteen Croatians who noted that he had been a Serb and so attacked him. He had been unable to obtain medical attention because of the difficulties of obtaining Croatian medical documents. Although he had said that he had become depressed, there was no medical evidence to support that. His main fear was that he would be forced into military service when he was eighteen, fearing that there would be a repetition and worse of what had happened to him at school. He was also concerned that his father had been accused of war crimes.


The Adjudicator considered the objective material before him, together with a report of Dr Milivojevic. This material included the CIPU Report of 2002, the OSCE Report of May 2002 and an OECD Report of 2002. He drew conclusions from that general background evidence. He concluded that any real involvement in the civil war as a Serb can lead to prosecution as a war criminal and that this could lead to very probable excessive delays in the judicial system. He also said that it was clear that there is substantial local prejudice, particularly in Eastern Croatia relating to persons who supported the previous Serbian-controlled Government and whatever the declarations and indications of good intent made by Central Government, they were frequently not reflected in matters on the ground. It was clear that the son would now be liable for military service, but it is possible that he would not be prosecuted. However, the actual information relating to the service of Serbs within the military service effectively was non-existent. This might well have been because there were very few young male Serbs left in Croatia to be conscripted.


It is clear that the Adjudicator had real reservations about the credibility of the evidence of father and son, but they had not been questioned because the Home Office had not been represented. He accepted their evidence in the absence of a direct challenge to their credibility in the Home Office refusal letter. He was understandably critical of the failure of either party to contact Norway where apparently three times the Appellants' asylum claim had been rejected. He pointed out the limited information which had been supplied by the second and fourth Appellants in relation to medical matters. He pointed out that all he had in relation to the daughter, the third Appellant, was that she was now married to a Serb whose status had yet to be established in the United Kingdom. She had a child. The Adjudicator concluded in paragraph 48:

“The first Appellant has lodged however some documents in support of his claim. Clearly his war record indicates that he was involved in military service and I note also that he has a general record of employment. Having regard to the totality of the evidence, and noting that the Respondent had not specifically attacked the Appellant's credibility in their refusal letter, and noting that the provision of conviction of persons for war crimes in absentia was and is a real problem in eastern Croatia, I accept the first Appellant's history as recounted by him and it forms the factual basis of my determination. That is in relation to the first Appellant.”

Of the wife's medical condition, that is acute stress and anxiety, the Adjudicator said that it appeared that those mental health problems had been well and successfully managed and were not a matter that had to be particularly addressed. He said of the son that he found the history given by the son credible, noting the severe physical attack by Serbs on him when he was at school. This would affect his own subjective fear of return to Croatia.


In paragraph 52 the Adjudicator said:

“In relation to the Appellant's fear of serving in the military service that to a large extent is based upon firstly an assessment that the civilian option would not be available to him,...

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