JK (Serbia) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall,Lord Justice Richards,Lord Justice Lawrence Collins |
| Judgment Date | 30 October 2007 |
| Neutral Citation | [2007] EWCA Civ 1321 |
| Docket Number | Case No: C5/2007/0319 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 October 2007 |
[2007] EWCA Civ 1321
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: HX/61178/2003]
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Wall
Lord Justice Richards and
Lord Justice Lawrence Collins
Case No: C5/2007/0319
Mr G Lee (instructed by Sutovic & Hartigan Solicitors) appeared on behalf of the Appellant.
Mr Kovats (instructed by Treasury Solicitors) appeared on behalf of the Respondent.
In this appeal, the appellant challenges the decision of the Asylum and Immigration Tribunal (the AIT) promulgated on 19 September 2006, following what is described as a second stage reconsideration hearing on 18 August 2006. The AIT at that hearing allowed the Secretary of State's appeal against the decision of an immigration adjudicator promulgated in January 2004, and dismissed the appellant's claim against the Secretary of State's decision that he did not qualify for asylum or humanitarian protection. Permission to appeal to this court against the AIT's decision was refused by the AIT on 10 January 2007, but granted by Sir Henry Brooke on paper on 2 April. Sir Henry, in granting permission, made the following comment:
“It seems to me that in view of the contemporary emphasis on the importance of the original immigration judge's decision, it is appropriate for the Court of Appeal to review the finding that it contains an error of law such as to warrant reconsideration.”
The appellant is 37. He is a national of what is now Serbia and was Serbia-Montenegro. He is from Kosovo and of Roma ethnicity. He is an Albanian speaker. He entered the United Kingdom clandestinely on 31 August 2002 and claimed asylum at the port of entry. There is a question of his failure to report to the relevant authorities following his application, which may have delayed the consideration of his case, but plays no part in this appeal.
His asylum application was refused by the Secretary of State in a refusal letter dated 5 September 2003, and removal directions were given on the same day. It is right to observe that the refusal letter makes no reference to the question of the appellant's inability to relocate within what is now Serbia.
The appellant appealed to an adjudicator, and his appeal was allowed on both asylum and human rights grounds. In summary, the adjudicator found that he had a well-founded fear of persecution in his home area and that it would be unduly harsh for him to have to relocate.
The Secretary of State appealed against the adjudicator's decision and by virtue of the transitional regulations governing the position prior to coming into force in the new appeal system on 4 April 2005, most helpfully explained by Mr Kovats for the Secretary of State in his skeleton argument, the appeal became a two-stage reconsideration process.
At the first stage reconsideration, in October 2005, the AIT had to decide whether or not the adjudicator had made a material error of law. It appears that there was a hearing, albeit that we have no record of it. However, it is clear that the AIT did find a material error of law, with the consequence that there had to be a second stage reconsideration. In such a case, Mr Kovats explains that the parties affected by the decision have to wait until the conclusion of a second stage before mounting a challenge to the first, that challenge then taking the form of an appeal to this court (see Section 103 B of the 2002 Act and the attendant regulations).
There are accordingly two issues before this court. The first is whether the adjudicator erred in law in finding that it would be unduly harsh for the appellant to relocate within Kosovo. The second is whether or not the AIT itself made an error of law in concluding, as it did, that the appellant could relocate, the consequence of which was that it dismissed the appellant's appeal against the Secretary of State's decision that he did not qualify for asylum.
In the event, the argument in this court has focussed on the first stage. At that stage, which was heard on 14 October 2005 with the decision promulgated on 20 October 2005, the Tribunal concluded that:
“…The adjudicator had made a material error of law because she had not properly assessed the question of internal relocation as far as the appellant is concerned. In particular, she had not given adequate reasons for reaching the conclusion that such an option was unavailable to this appellant.”
The AIT went on to say, however, that the issues for reconsideration were limited to the question of internal relocation, and that the findings made by the adjudicator as to the appellant's credibility (which were favourable to him) were to stand.
The first question for this court, accordingly, is whether or not the AIT was correct in identifying an error of law in the adjudicator's determination of the internal relocation issue. The actual words used by the adjudicator in her reasons were as follows:
“I do not consider that internal relocation is an available option in view of the objective evidence which shows that he would have to go and live in collective centres or IDP camps with poor and adverse living conditions.”
For the appellant, Mr Gordon Lee submits that this sentence of the adjudicator's reasons has to be read in context with what had gone before. It is, therefore, necessary to look at the adjudicator's decision of 16 January 2004 in greater detail.
It was a reserved decision. The adjudicator heard the appeal on 7 January 2004 at the Barnet County Court. The appellant and a friend of his gave evidence through an Albanian interpreter. Having set out the essential facts, the adjudicator listed the material which she had seen, which included two bundles of objective evidence in the Secretary of State's case, and the appellant's bundle included a report from the Parliamentary Assembly of the Council of Europe on forced returns of Roma from the former Federal Republic of Yugoslavia including Kosovo, from EU member states, a paper from Amnesty International Limited dated April 2003, the UNHCR position on continued protection and needs of individuals from Kosovo dated January and April 2003, and an HRW World Report dated January 2003. None of this material is before us.
The adjudicator went on to say that she had “considered all the relevant material submitted by the parties…” (paragraph 7, page 40). She then gives herself directions as to the law which she had to apply in general terms, of which no complaint is made. She then went on to recount the appellant's story:
“11. The appellant's case is as appears in his screening form and witness statement supplemented by his oral unsworn evidence and his representative's submissions. The core parts of his story may be summarised as follows.
12. The appellant claimed he was a Kosovan Albanian Roma from Llaush, about 60 km from Pristina. He went to school in Llaush until age 17. In January 1998 he had to attend at the Serbian police station where he was asked questions for information about who were dispensing leaflets about the independence of Kosovo. He did not know who was behind this. He claimed to have been ill-treated. On the following day, he was taken to prison where he was detained for 3 months but was released when the war started. They told him his detention was due to his involvement in distributing propaganda leaflets stating that Kosovo should be an independent country. He returned to his home. He found a job in a metal factory in Istog, Peje. He married a Serbian girl on 1.8.98. Her brother was a policeman. The war had started in all regions of Kosovo by this time.
13. His father was killed in March 1999 by paramilitary troops in front of his house in Llaush because he was Albanian. His distant cousins were also killed. A few days after his brother told him by telephone about his father's death, he returned to his home village with his wife. Conditions were difficult and everyone was told to stay inside their homes. During the ceasefire for one month, his mother and brother left for Montenegro and he had not heard from them since. He stayed at home with his wife until the war ended. The Serbian army withdrew around 16.08.99.
14. Two months later, ethnic Albanians returned to Llaush. He received a threatening letter from the KLA accusing him of co-operating with the Serbs and warning that if he did not leave Llaush, he would be executed. Three days later, 20 people went to his farmhouse with balaclavas on. They shouted abuse at him saying 'You dirty Roma, you are still here'. His wife and dog were shot dead but he survived the shooting. When the gang left, he left the house by the backdoor to hide in the mountain from where he saw his farmhouse set on fire. He then left for Montenegro on foot. He spent about 2 years in Montenegro. He was told by the Serbian paramilitary police to leave on two occasions simply because he was Albanian. On the advice of his work colleagues, he found an agent to take him out of the country. They left by boat across the water, then he joined a lorry which took him to the United Kingdom where he claimed asylum on arrival and when stopped by the immigration authorities.
15. At the hearing he claimed he feared persecution from ethnic Albanians were he to be returned.”
Having discussed what she described as “The Background Material” in some detail (much of which, in relation to Kosovo, represented an improvement on its previous state), the adjudicator nonetheless concluded in paragraph 27 of her...
To continue reading
Request your trial
-
NP (Sri Lanka) v Secretary of State for the Home Department
...would dismiss the appeal. Lady Justice Black 27 I agree. Lord Justice Lewison 28 The two decisions of this court in DK (Serbia) v SSHD [2007] EWCA Civ 1321 (paragraph 25) and P and M v SSHD [2005] Imm. AR 84 (paragraph 34) are both contrary to Mr Chelvan's submission that internal relocatio......
-
Np (Sri Lanka) v Secretary of State for the Home Department
...is a matter of some general importance in the procedure of the Upper Tribunal. Mr Chelvan also referred me to the case of JK v SSHD [2007] EWCA Civ 1321, paragraph 4 and paragraph 17; 8 I am satisfied, by the submissions that Mr Chelvan has made and the materials which he has placed before ......