FD (Kosovo - Roma)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY,PRESIDENT |
| Judgment Date | 14 July 2004 |
| Neutral Citation | [2004] UKIAT 214 |
| Court | Immigration Appeals Tribunal |
| Date | 14 July 2004 |
[2004] UKIAT 214
IMMIGRATION APPEAL TRIBUNAL
The Honourable Mr Justice Ouseley (President)
Mr N Kumar JP
Mr P Rogers JP
For the Appellant: Ms A Holmes, Home Office Presenting Officer
For the Respondent: Miss S Chuni of Markandan & Co
FD (Kosovo — Roma) Serbia and Montenegro CG
This is an appeal by the Secretary of State against the decision of an Adjudicator, Mr N M K Lawrence, promulgated on 26 th August 2003, by which he allowed the Claimant's appeal under both the Refugee and Human Rights Conventions.
The Claimant is a national of the Federal Republic of Yugoslavia and Montenegro (FRY) from Kosovo. He was born on 11 th June 1986 and arrived in the United Kingdom on 17 th February 2003, some four months short of his seventeenth birthday. He claimed asylum three days after arriving. The Secretary of State refused his claims in a letter dated 9 th April 2003.
The claim was based on racism, because the Claimant's father was a Roma and his mother a Serb. He had been called names by Albanians living in his village and the police offered no protection against Albanians who committed crimes against Roma or Serbs. The Claimant had said that his father was shot and killed on 10 th February 2003 and that he feared that he would be killed as well if he returned to Kosovo.
The Secretary of State's refusal letter considered the general position in Kosovo, referring to the improvement in political infra-structure, a general reduction in violent crime, the improving position of ethnic minorities and to the fact that UNMIK and UNHCR had been seeking to encourage the voluntary return of ethnic minority refugees in planned initiatives. The Secretary of State said that he was aware that members of the Roma community in Kosovo were still victims of occasional violent incidents, but he was satisfied that UNMIK, KFOR and KPS were generally able to provide a sufficiency of protection for these groups. He noted that there was no evidence to substantiate the claim that the father had been shot and killed by Albanians. However, acknowledging the incidents of discrimination, harassment and the limitations on freedom of movement which members of the Roma community might experience, he did not consider that the cumulative effect of those would usually engage the United Kingdom's international obligations: the overall situation for Roma had improved to the extent that being a Roma would not in itself qualify a person for the grant of asylum. He did not think that anyone would have any reason to regard the Claimant as being of mixed ethnicity, because the Claimant had had no contact with his mother since he was two years old. The Secretary of State also considered that the Claimant had taken an unreasonable time to provide evidence to establish his claim under the Rules. Accordingly, the Secretary of State refused the application.
The Secretary of State was not represented at the hearing of the appeal, which undoubtedly placed the Adjudicator at something of a disadvantage. The Adjudicator set out the law in relation to asylum and human rights in just under three pages of his determination and then turned to the evidence. He said that the documentary evidence was contained in two bundles; he then simply said that the Claimant had given oral evidence confirming the contents of the screening form, the SEF and a witness statement of July 2003. He said that the Claimant gave further oral evidence recorded in the Adjudicator's notes of evidence, which he did not propose to repeat.
All else apart, that was an unhelpful approach to the issues here. It has made it more difficult than it ought to have been to obtain a picture of the evidence, the issues to which it gives rise and whether conclusions were required on more issues than were dealt with. For this appeal we have had to consider therefore the Adjudicator's hand-written notes and a variety of hand-written statements.
The Adjudicator records the basis of claim as being that the Claimant's father was a Roma, his mother a Serb, and that he had been discriminated against because of his “ ethnicity”. He said that people in Kosovo considered “ us” as traitors. He said his father had been accused of treason, beaten and shot dead on 10 th February 2003, and that the police in Kosovo do not take action against Albanians on behalf of Roma victims. He said that on seeing his father's killing he feared for his (we assume that the Adjudicator meant to add in the word “ life”) and left FRY with his uncle's assistance.
The Adjudicator then quoted a number of paragraphs in full from the UNHCR Position Paper on Kosovo of January 2003. He said that that Paper continued to identify Kosovars of mixed ethnicity as needing protection, but it did not appear to have been considered by the Secretary of State in reaching his conclusions. In paragraph 5.5, the Adjudicator said:
“The UNCHR paper indicates that in Kosovo grenades attacks and stoning are taking place against the minorities such as Roma. I consider the appellant's evidence about his father's killing in the light of this kind of objective evidence and I it a credible account.”[sic].
After citing what Professor Hathaway has described as persecution, the Adjudicator said briefly that there was evidence that Roma suffered the serious risk of being denied various fundamental human rights and that he was satisfied that there was insufficiency of protection. He added “ the police are engaged in violating the fundamental human rights of the Roma”. He concluded that the Claimant faced persecution on two fronts: “ firstly, on the basis that his father is a Roma”; secondly “ because his mother is a Serb. The Respondent says the Appellant has not seen his mother since he was two years of age. I rather doubt that that makes much of a difference. The Appellant told me in evidence although his father's names are Albanian his mother's name, Maria Todic, is Serb and it is recorded in his birth certificate. No sooner this comes to the attention of the authorities in Kosovo the Appellant is likely to suffer persecution” [sic].
In his conclusion the Adjudicator said that he had considered all the evidence and submissions and then allowed the appeal under both Conventions.
The Secretary of State's grounds of appeal allege, in summary, that there was a failure by the Adjudicator to consider some of the relevant background material, in particular the relevant CIPU Paper on Serbia and Montenegro which was in the bundle before him on the Secretary of State's behalf. It was also said that he had not made credibility findings on a number of relevant issues.
We accept that first point and Miss Chuni could scarcely resist it. The Adjudicator's consideration of the background material was inadequate; he had ignored the relevant CIPU Paper. He gave no reason for doing so. We have accordingly examined all the background material.
It became apparent, however, during the course of our consideration of the background material that a number of facets of the Claimant's case needed to be fleshed out from the material before the Adjudicator, but to which he unfortunately made no reference, in order to see how significant various matters were. So the second ground of appeal is also made out. These included whether mixed ethnicity of itself was a problem, whether the Claimant would be regarded as a Roma or as a Serb, or as neither, whether he spoke Albanian and what evidence there was as to difficulties which he or his family had experienced living in Kosovo until 2003. These were important issues because of passages in the CIPU Report which drew on UNHCR/OSCE Assessments, in particular dealing with mixed ethnicity. In K.6.64 of the October 2003 CIPU Report, which in most paragraphs was essentially the same as in the previous CIPU Report, it said:
“Ethnic identification as Roma, Ashkaelia or Egyptian is not necessarily determined by easily discernible or distinct characteristics or cultural traits, but rather by a process of self-identification. It is not uncommon in Kosovo for individuals to change their ethnic self-identification depending on the pressures of local circumstances, especially when it is necessary in order to distance themselves from other groups to avoid negative associations. In general, however, ethnic Roma clearly identify themselves as Roma and tend to use Romany as their mother tongue, although a large percentage of the Roma population can speak Serbian (and to a lesser extent Albanian) languages.” (UNHCR/OSCE assessment)
K.6.85 said:
“People in mixed marriages with people from ethnic minorities or children from such families may face similar difficulties as those groups. Unlike other minority groups, mixed families may be excluded from all communities and may be unable to resort to the relative security of mono-ethnic enclaves.”
In paragraph K.6.68 in dealing with Roma, Ashkaelia and Egyptians generally, it said:
“The ability to speak fluent Albanian is likely to be a factor in the degree to which RAE are able to integrate with the majority community. But overall, RAE have experienced significantly improved possibilities to move about in communities where they reside, with increased use of public transport and access to public services.”
We filled in the factual gaps with the assistance of the hand-written material and of Miss Chuni, who had appeared before the Adjudicator. The Claimant had explained that his father had been accused of treason against the Albanians and that the Claimant had been scared of encountering the racist Albanians all the time after the war. He said they had always been treated differently. Everywhere in Kosovo, gypsies were treated the same. When he was asked to describe in the SEF to...
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