Hysi v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Judge |
| Judgment Date | 15 June 2005 |
| Neutral Citation | [2005] EWCA Civ 711 |
| Date | 15 June 2005 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2004/2066 |
[2005] EWCA Civ 711
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL
(Mr M.W. RAPINET (ACTING VICE PRESIDENT))
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Auld
Lord Justice Judge and
Lord Justice Neuberger
Case No: C4/2004/2066
Andrew Nicol QC and Eric Fripp (instructed by Wesley Gryk Solicitors) for the Appellant
Daniel Beard (instructed by Treasury Solicitors) for the Respondent
Hearing dates: 3rd March 2005 and adjourned for further hearing and dealt with by written submissions in May 2005
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This is the judgment of the Court.
The appellant is Juli Hysi. He was born on 6th April 1987. He is therefore just 18 years old. He is a citizen of Kosovo, of mixed ethnicity, the only child born to an Albanian father and a Roma-gypsy mother. The family lived in Southern Mitrovice. During the ethnic conflicts in Kosovo between 1999 and 2001, as the result of a perception that persons of Roma or mixed race were Serbian spies and collaborators, his parents were both attacked. In early 2002 the appellant's father left the family home. That was the last the appellant saw of him. With the active support of his mother, who was unable to raise the funds for them both to flee from Kosovo, he left his home and eventually entered the United Kingdom on 2nd September 2002. He sought asylum two days later. He was then 15 1/2 years old. Since then he has not seen or heard of or from his mother.
On 14th October 2002 the application for asylum was refused. The Secretary of State was not satisfied that the appellant had established a well-founded fear of persecution. He was granted limited leave to remain until 5th April 2005, that is, until his eighteenth birthday.
The appeal against this decision was dismissed by a determination promulgated on 22nd July 2003 by the Adjudicator, Ms Linda Freestone. She found that the appellant was a credible witness. She summarised his evidence in paragraphs 10–21 of the determination. It was a sad story of unpleasant events. No doubt worse excesses are sometimes perpetrated. However, crucially for present purposes, the Adjudicator accepted that the appellant was a genuine refugee, who, because of his "mixed ethnicity" had suffered persecution. Those who shared his ethnicity faced similar problems. In summary, they were at risk in Kosovo, probably because of the belief among ethnic Albanians that Roma people had collaborated with the Serbs.
The appeal failed on the basis that although in the Adjudicator's view the appellant could not return to his own area of origin, he could "relocate" in a different part of Kosovo. This issue, sometimes described as "internal flight", sometimes as "relocation," or "internal relocation," is at the heart of the present appeal. Permission to appeal was granted on the narrow point, whether it would be right to order the return of the appellant to Kosovo on the basis of relocation or internal flight if his continuing safety from persecution would at least in part be dependent on him concealing and, if necessary, denying his mixed ethnicity.
In his response to the original decision to refuse his application for asylum, the appellant said:
"I cannot return to Kosovo and pretend that I am anything other of mixed ethnic origin. As I have already said, as soon as I register with the authorities, as I will be required to do, and in a country as small as Kosovo, it would be impossible for me to hide or lie about my origin and not be found out."
At the hearing before the Adjudicator, when cross-examined, the appellant was asked how anyone would know he was of mixed ethnicity if he were to return, and responded that he would be recognised. If he went to another part of the country, he would have to register, and his background would be discovered.
The material before the Adjudicator included a report from Mr Alex Standish, which itself referred to the UNHCR background report of March 2000. She also considered the UNHCR Position on the Continued Protection Needs of Individuals from Kosovo dated April 2002, in effect confirmed in January 2003 and the papers included the CIPU report from April 2003, to which the Adjudicator referred in some detail.
There was a major dispute, reventilated before us, about the accuracy of the assertion on behalf of the Secretary of State in the refusal letter that "ethnicity passes down the male line". We shall assume that this assertion was wrong, at any rate if it means that of itself the appellant's paternity would be bound to lead to the conclusion that he was not of mixed ethnicity. In fact however, the Adjudicator expressly found that the appellant was a person of "mixed ethnicity". As such he was a member of a minority group who should "continue to benefit from international protection in countries of asylum".
The Adjudicator further noted that security for thirty-six thousand Roma remaining in Kosovo had improved during 2002, and progress had been made with the return of some members of their community. There was a continuing reduction in ethnically motivated crime. The appellant's ability to speak fluent Albanian was a significant factor which would contribute to his security, because many children of mixed ethnicity either did not speak Albanian fluently, or spoke it with a Roma accent. Yet others came from mixed marriages in which the father rather than the mother was of Roma extraction, and therefore the surname would itself give away the individual's Roma origins. This did not apply to the appellant, who on relocation, would not be associated with a family of mixed ethnicity. There was no objective evidence to suggest that his origins would be revealed on registration or similar documents.
The Adjudicator was referred by the respondent to the decision of the IAT in B (Serbia-Montenegro v SSHD [2003] UKIAT 00013, and concluded that the issue for her determination was whether the appellant would be identified as somebody of mixed ethnicity if he returned to Kosovo. Complaint was made to the IAT that this narrow test failed to apply the decisions of this Court in Robinson v SSHD [1998] QB 929 and Karanakaran v SSHD [2000] 2 AER 499, in effect ignoring the test of reasonableness or undue hardship. This issue will require further examination not least because it is suggested that the IAT itself effectively made the same error.
The determination of the Adjudicator reads:
"I do find the appellant could relocate in Kosovo."
Accordingly the appellant had not established the claim under the 1951 Refugee Convention. His appeal on asylum grounds was dismissed. The arguments on human rights grounds were treated as abandoned.
The appellant appealed to the Immigration Appeal Tribunal (IAT). It is common ground that under s 101(1) of the Nationality, Immigration and Asylum Act 2002, his right of appeal was limited to a point of law. The appeal to the IAT was determined on 30th April 2004. The Secretary of State lodged a respondent's notice in the present appeal to this Court, arguing that no error of law on the part of the Adjudicator was identified by the appellant before the IAT. The only matters raised were matters of fact, and therefore the IAT had no jurisdiction to consider the appeal from the Adjudicator.
The appellant contended that errors of law by the Adjudicator were properly identified before the IAT. As already recorded, in particular the Adjudicator had failed to address the appropriate test to be applied to the "relocation" decision. Furthermore, she wrongly assumed that relocation was appropriate on the basis that the appellant should conceal his mixed ethnicity. Stripped to the essential issues, notwithstanding a number of other additional concerns ventilated in the skeleton argument, the appellant in effect resubmitted that just as the decision of the IAT itself was wrong as a matter of law, the decision of the Adjudicator was similarly flawed. Relocation did not represent either a proper, or realistic, or acceptable option, and would produce an "unduly harsh" result amounting to persecution. In particular, it was wrong in principle to disregard either the probability that the appellant would wish to identify himself as part-Roma, or that if challenged, he would be required to lie about his ethnicity, so that it would not be concealed at any rate until such time as it would become safer for it to be revealed. That time has not yet come to pass. Reliance was also placed on a report from Mr Alex Standish, said to be insufficiently addressed by the Adjudicator, which indicated that there was a real prospect that the appellant would be identified as a half-gypsy, and accordingly would end up in a refugee camp.
Nothing in the IAT's determination suggests that its jurisdiction to consider an appeal from the Adjudicator was challenged, and the IAT itself took no jurisdictional point. Indeed it seems reasonable to infer that it was not until this point was raised by the single Lord Justice who refused permission to appeal on the papers, that the jurisdiction point was taken up by the Secretary of State after permission had been granted at an oral hearing. It is common ground that the appeal to this Court cannot succeed unless an error of law is identified by the appellant. However as a matter of practical reality, any such error of law will encompass the same, or similar errors to those asserted against the Adjudicator. In the particular circumstances of this appeal, if an error of law on the part of the IAT can be identified, it...
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