Fadil Dyli (Protection – UNMIK – Arif – IFA – Art1D)

The Appellant, Fadil Dyli, comes from Kosovo. He is a national of the Federal republic of Yugoslavia. He appeals, with leave, against the determination of a Special Adjudicator (Mr B. Watkins CMG) dismissing his appeal against the decision of the Respondent on 14 February 2000 giving directions for his removal as an illegal entrant, following refusal of his application for asylum. Before us he was represented by Mr C. Jacobs, instructed by Gersten and Nixon, and the Respondent was represented by Mr R. Tam and Mr S. Grodzinski, instructed by the Treasury Solicitor.

The basis of the Appellant's case is that he claims to have a well-founded fear of persecution as an ethnic Albanian. His appeal raises a number of issues common to many similar cases and not particularly dependent on the facts of this Appellant's case. They are as follows. First, are the United Nations Interim Administration Mission in Kosovo (‘UNMIK’) and the Kosovo Force (‘KFOR’) capable of constituting protection within the meaning of the Convention, so that an appellant who would be protected by UNMIK and KFOR on return could not claim to have a well founded fear of persecution? Secondly, given the change of circumstances in Kosovo in recent months, is there a burden on the Secretary of State, to point to evidence that the Appellant is not a refugee, as identified in Mohammed Arif v SSHD [1999] Imm AR 271? Thirdly, to what extent may the rules on internal flight be applicable to a person from Kosovo? Fourthly, does Article 1D of the Convention exclude a person such as the Appellant from the benefits of the Convention? We have heard full argument on each of these issues. We are very grateful to counsel on both sides for their preparation and for the clear way in which they presented their cases.

This is a ‘starred’ determination, by a Tribunal consisting of the Deputy President and two Vice-Presidents. It will be followed by other divisions of the Tribunal and by Adjudicators on the questions of law raised in it. It is not intended to be binding on any question of fact, and our references to protection from UNMIK and KFOR should not be taken as implying a view that protection is in fact available to the Appellant or to claimants in general.

Kosovo is a province of Serbia, situated in the southern part of Serbia, adjacent to Montenegro, Albania and the Former Yugoslav Republic of Macedonia. It is distingushed from the rest of Serbia principally by the fact that it has historically been home to a large population of ethnic Albanians. The area, which has little economic wealth, is nevertheless rich in historical associations for both Serbs and Albanians. The Albanian population is largely Muslim, yet Kosovo has, at Pec, near its southern border with Albania, the most important church for the Serbian Orthodox Christian faith. It was at the battle of Kosovo Polje in 1389 that the Turks gained control of the whole of medieval Serbia and retained power over all Serbs for five centuries. Despite the fact that it was a defeat, the event is seen as of great importance in the national identity of Serbia today. On the other hand, it was in Kosovo in 1878 that the Albanian national revival began, resulting in the creation of the modern Albanian state in 1912.

Within the Socialist Federal Republic of Yugoslavia, as a result of the 1974 Constitution, Kosovo enjoyed a considerable measure of autonomy, as did Vojvodina, another Serbian province. That autonomy largely ceased in 1989. Following the break-up of the Socialist Republic in 1991–2, the Federal Republic of Yugoslavia was formed. It consists of Serbia (including Kosovo and Vojvodina) and Montenegro. By then the Albanian population was a clear majority in Kosovo — probably over eighty per cent. In 1990 and 1992 there had been attempts to secede, but Kosovo remained part of the Federation, although increasingly underrepresented in government and in number of officials, partly as a deliberate result of government policy and partly as a result of boycotting by ethnic Albanians. In subsequent years, particularly after Slobodan Milosevic became Federal President in 1997 after two terms as President of Serbia, there were many well-attested human rights abuses against ethnic Albanians in Kosovo. The activities of the Kosovo Liberation Army (KLA) date from about this time. In January 1998 the KLA declared its intention to achieve separation from Serbia by armed resistance against the Serbian authorities. The Serbian security forces responded with a number of attacks against the KLA and against civilian targets in Kosovo. At this time many ethnic Albanians began to flee. The exodus continued for many months.

For much of 1998 and the first part of 1999 there was, in effect, civil war in Kosovo. There was a major peace initiative during the autumn of 1998. Peace talks took place at Rambouillet in February 1999, but the agreement of the Serbian delegation was not obtained. In the same month 30,000 Serbian forces were deployed in or near Kosovo.

On 24 March 1999 the NATO countries began aerial bombardment of Serbian military posts both in Kosovo and in Serbia as a whole. There was a meeting of the G-8 countries in May, at which there was agreement on principles for a peace process. By the middle of that month it was estimated that 1,200 civilians had been killed in the bombardment and 600,000 ethnic Albanians had fled from Kosovo. On 2 June there was a conference in Belgrade at which targets for resolution of the Kosovo crisis were presented. The government of the Federal Republic of Yugoslavia announced that it had accepted the G-8 principles and the targets, and began to withdraw Serbian troops from Kosovo. The aerial action then ceased on 10 June.

On the same day the United Nations Security Council passed resolution SCR 1244. It notes the Federal republic of Yugoslavia's acceptance of the principles and targets, which are annexed to the Resolution. In paragraphs 5 and 10 of the Resolution the Security Council

‘5. Decides on the deployment in Kosovo, under United Nations auspices, of international civil and security presences, with appropriate equipment and personnel as required, and welcomes the agreement of the Federal republic of Yugoslavia to such presences;

‘10. Authorizes the Secretary-General, with the assistance of relevant international organizations, to establish an international civil presence in Kosovo in order to provide an interim administration for Kosovo under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia, and which will provide transitional administration while establishing and overseeing the development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants of Kosovo.’

The result was the creation of UNMIK, which as its full name (see paragraph 2) indicates, is the interim civil presence, and KFOR, which is an international military presence under the control of NATO. KFOR is not itself a United Nations organ, but is part of the means by which the work of UNMIK is achieved. That work is the subject of regular reports of the Secretaly-General of the United Nations. It is not appropriate for us here to assess the success of the programmes for peace, reconstruction and resettlement of displaced persons. In order to give a flavour of the United Nations High Commissioner for Refugees' view, however, we cite the opening words of a background note of February 2000:

‘Since the withdrawal of Yugoslav forces and the entry of the international military presence, (KFOR) and the UN interim administration mission (UNMIK) into Kosovo in mid-June 1999, the situation for ethnic Albanians inside Kosovo has dramatically improved. The systematic persecution described in earlier UNHCR and OSCE documents no longer prevails. As a result many refugees have availed of the opportunity to return home. Close to 825,000 refugees have returned in total…’.

So far as the history of this appeal is concerned, it only remains to note that the Appellant came to the United Kingdom from Kosovo on 31 October 1999

A refugee needs to establish that he is unable or, owing to a well-founded fear of persecution, unwilling, to avail himself of the protection of his own country. The question is whether protection provided by UNMIK and KFOR is capable of constituting the protection of the Federal Republic of Yugoslavia for a person in Kosovo.

Unlike a castle, a country does not provide protection merely by one's presence in it. A country provides protection by the way in which its citizens are treated. The authorities of the Federal republic of Yugoslavia have a considerable history of persecution of ethnic Albanians in Kosovo; but one of the functions of UNMIK and KFOR is to prevent that persecution. As Mr Jacobs pointed out, UNMIK and KFOR are not in any real sense ‘the authorities of’ the Federal Republic of Yugoslavia, although they have Yugoslav consent to their presence and their work in Kosovo. That, however, in our view is a side-issue: Article 1A(2) of the Convention does not include the word ‘authorities’. The phrase is ‘protection of the country’, and that phrase appears, in various forms, three times in Article 1A(2). We do not consider that there is any basis for imposing any legal or constitutional colour on it by deeming it to refer to the authorities of the country. On the contrary: bearing in mind the phrase ‘outside the country’ which occurs twice in...