KX (Mixed marriages-Roma-Albanian – Januzi applied)
| Jurisdiction | England & Wales |
| Judge | Senior Immigration Judge Gleeson |
| Judgment Date | 20 September 2006 |
| Neutral Citation | [2006] UKAIT 72 |
| Court | Asylum and Immigration Tribunal |
| Date | 20 September 2006 |
[2006] UKAIT 72
Asylum and Immigration Tribunal
Senior Immigration Judge Gleeson
Senior Immigration Judge Mcgeachy
Mrs J Harris
For the appellant: Mr G Denholm, Counsel instructed by Sunny Leong & Co Solicitors
For the respondent: Mr P Deller, Home Office Presenting Officer
KX (Mixed marriages-Roma-Albanian — Januzi applied) Serbia and Montenegro (Kosovo) CG
Where there is a visible difference in skin colour and the Roma partner speaks no, or accented, Albanian, Roma-Albanian mixed marriages and relationships akin to marriage in Serbia and Montenegro (Kosovo) put both parties at risk. The country background evidence now distinguishes between the risk to Roma and their partners, who remain at risk because they are perceived by the Albanian community as traitors and Serb collaborators, and Ashkaelia and Egyptians whose position is not as serious.
Roma-Albanian couples cannot access the protection either of the Roma enclaves or the Albanian community and unless either party will normally be perceived as a member of the other community, the parties to such a relationship are at general risk of persecution or serious harm from individuals in both communities because the risk is from non-state actors and there is, in general, insufficient protection from either Serbia and Montenegro (Kosovo) state bodies or from K-FOR and other NGOs.
This determination updates and replaces (in relation to Roma-Albanian relationships) the Tribunal's decisions in FM (IFA-mixed marriage-Albanian-Ashkaelian) Kosovo CG [2004] UKIAT 00013 , SK and others(Roma in Kosovo-update)Serbia and Montenegro CG [2005] UKIAT 00023, BS(IFA-mixed ethnicity)Kosovo CG [2002] UKIAT 04254, FD (Kosovo-Roma)Kosovo CG [2004] UKIAT 00214and AB (Ashkaelia)Kosovo CG [2004] UKIAT 00188.
This is the reconsideration with permission of the decision of Immigration Judge Glossop who dismissed the appeal of KX and his partner or wife, AB, against refusal to recognise them as refugees and the setting of removal directions to Serbia and Montenegro (Kosovo). The Immigration Judge rejected both the asylum and human rights grounds and made a separate finding that KX was not married to AB, the woman described as his wife. The core of this claim is that the appellant and AB are in a mixed Albanian-Roma marriage and claim to be at risk of persecution on that account. They are both citizens of Serbia and Montenegro (Kosovo).
At the first stage reconsideration hearing a Tribunal (Senior Immigration Judge Freeman, Senior Immigration Judge Jordan and Dr J O De Barros) found as follows:
“ [KX's] claim to face risk as the ‘partner’ of a Roma woman could not reasonably be dismissed on the basis that they are not married given the length of time they have been living together. However the appeal could not succeed on the basis of risk to the ‘partner’ herself given that she chose to withdraw her [asylum] application and let her case proceed as a dependant of [KX].”
The appeal therefore proceeds to full reconsideration. Following AH (Scope of s103A reconsideration)Sudan [2006] UKAIT 00038 the Tribunal must deal with all matters in the original grounds of appeal, whether by approving the Immigration Judge's handling of them or remaking the decision itself. The burden of proof remains upon the appellant.
This appeal is argued under the Refugee Convention, and Articles 3 and 8 ECHR. For Article 3 and the Refugee Convention, the standard of proof is essentially the same (real risk or reasonable degree of likelihood), including for the ECHR rights (Kacaj (Article 3, Standard of Proof, Non-State Actors)Albania [2001] UKIAT 00018*, at paragraphs 7–8). For all the issues before us, the date at which risk on return is to be established is the date of hearing.
The original grounds of appeal also include Article 2 ECHR but this was not pursued at the hearing before us. In the original grounds of appeal, the appellant contended that the Secretary of State had been selective in his choice of the facts considered. He argued that the Secretary of State's decision was against the weight of the evidence. He reasserted his persecution claim and argued that it was unreasonable to expect documentary evidence about his wife who was a traveller and without fixed address. He asserted that she is of Roma ethnicity (which is now accepted) and that they could not relocate internally to avoid local difficulties, because he would still be attacked by the Albanian community elsewhere for having married a traitor (the perception amongst the Albanian community being that all Roma were Serb supporters and collaborators). The levels of discrimination and ill-treatment to which Albanians in mixed Albanian-Roma marriages were subjected were serious enough to constitute persecution. He also challenged the legality and proportionality of the decision to remove.
The principal appellant, KX is of Albanian ethnicity and appearance and his wife, (AB) is a Roma gypsy both by ethnicity and appearance. The Secretary of State no longer disputes her ethnicity. Only KX's appeal remains live, AB having withdrawn her asylum claim. The Immigration Judge found that, KX and AB's marital arrangements being somewhat unclear, they were not to be regarded as in a mixed marriage. Leave to appeal was granted on the basis that it was arguably an error of law to find that the parties were not in a relationship akin to marriage.
The present hearing is the full reconsideration of KX's appeal: AB now falls to be considered only as his dependant. KX is an ethnic Albanian and suffered in Kosovo in 1998 during the civil war but this was not a live issue before the Immigration Judge. The sole issue at the reconsideration hearing was agreed by the parties as being:
“ Whether [KX] and [AB] would face a real risk of persecution on return to Kosovo on account of
(i) [AB's] ethnicity as a Roma gypsy, and
(ii) Their mixed marriage (that being an additional risk category recognised by UNHCR and indeed other parts of the objective evidence including the CIPU report).”
The Tribunal had the benefit of oral evidence from AB, and full argument on the authorities. We also had before us a country expert report from Dr Alex Standish (dated 18 March 2006), the October 2005 UN security Council report, the CIPU Country Report of April 2005, and Operational Guidance Notes (OGNs) of May and June 2006, the US State Department Report for Serbia and Montenegro, for 2005 (published in March 2006), an Amnesty International report of July 2005, and, from UNHCR, a March 2000 background note on ethnic Albanians from Kosovo, an August 2004 report on the same issue, and the position papers published in August 2004, January and March 2005, and June 2006, together with the fifth annual report of the Kosovo ombudsperson and five Articles from European Roma Rights Council (ERRC) dated between August 2004 and February 2006.
Some of this material (the June 2006 OGN, and UNHCR position paper for June 2005) came to hand after the hearing. It is all in the public domain. We considered whether to invite further submissions but as the newer material merely supports the picture which emerges from the earlier material, concluded that this was unnecessary. We have, however, included it on E and R principles.
At the beginning of the hearing, both appellants were present in court. Both are Muslim. The Tribunal observed, as had the Immigration Judge and the country experts, that there was plainly a significant difference in skin tone between them, with AB's skin tone significantly darker than that of KX. They appear to have gone through a form of marriage in Kosovo, but are not registered in Kosovo as spouses, because of the difficulties which arise from their being of different ethnicity.
Mr Deller confirmed that the facts could be treated as undisputed but suggested that there was limited country guidance at present on mixed ethnicity relationships. Mr Denholm had not come prepared to argue the risks to Roma in general. He had however prepared a skeleton argument which set out the undisputed facts as follows::
“ (a) [KX] is an ethnic Albanian; [AB] is a Roma gypsy.
(b) They married in August 1998 but the marriage is not formally registered.
(c) They did not cohabit in Kosovo because of a perceived threat to them based upon their relationship.
(d) [KX] fled Kosovo in late 1998 and the parties were reunited in Macedonia before travelling on to the UK.
(e) They arrived in the UK in September 1999.
(f) They have lived together as man and wife ever since.
(g) They intend to live together on return to Kosovo.”
Their relationship is therefore now of some eight years standing, for six and a half of which they have cohabited in the United Kingdom. No oral evidence was called initially; we proceeded immediately to submissions against those agreed facts. However, by agreement, we did take oral evidence from AB just before lunch. She is now a fluent English speaker. The evidence was taken at the Tribunal's instance, both KX and his wife being present in Court. When asked, neither Mr Denholm nor Mr Deller objected.
We now summarise the matters which emerged from AB's evidence-in-chief, cross-examination, and clarificatory questions asked by the Tribunal. AB confirmed her name and address. She is a Roma woman, with an obviously Roma appearance and accent. She said that she had been afraid all her life. She became very tearful when speaking of her fear. She described the position of Roma in Kosovo as ‘low people’. When they walked in the street they would be shoved, threatened and told, “You Roma, we will kill...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2006-09-20, [2006] UKAIT 72 (KX (Mixed marriages Roma-Albanian, Januzi applied))
...so-language: ar-SA } a:link { color: #0000ff } KX (Mixed marriages-Roma-Albanian – Januzi applied) Serbia and Montenegro (kosovo) CG [2006] UKAIT 00072 Asylum and Immigration Tribunal Heard at Field House Determination Promulgated On 9 May 2006 On 20 September 2006 Prepared 9 June 2006 …………......
-
JK (Serbia) v Secretary of State for the Home Department
...in point, and I think it is clear that the case of KX (Mixed Marriages Roma-Albanian: Januzi applied) Serbia and Montenegro (Kosovo) CG [2006] UKAIT 00072 on which Mr Lee relies relates to a quite different situation—namely, the risks to the parties in a mixed marriage—facts which do not ar......
-
SS (Kosovo) v Secretary of State for The Home Department
...[2009] UKAIT 00011 and the earlier decision of KX (Mixed marriages Roma-Albanian: Januzi applied) Serbia and Montenegro (Kosovo) [2006] UKAIT 00072. 6 If I may with respect say so, Mr Adler has both in his written submissions and in the oral argument today put forward a very eloquent case o......
-
BA (Kosovo) v Secretary of State for the Home Department
...to the appellant arising out of his Roma status. He considered the country guidance case of KX Serbia and Montenegro (Kosovo) v SSHD CG [2006] UKAIT 00072, and he summarised its effect as follows: “The case of KX concludes that Roma in Kosovo in general face living conditions of considerabl......