S and Others v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws |
| Judgment Date | 24 April 2002 |
| Neutral Citation | [2002] EWCA Civ 539 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: C/2001/2000, C/2001/1475, C/2001/1476, C/2001/1477, C/2001/1479, C/2001/1480, |
| Date | 24 April 2002 |
[2002] EWCA Civ 539
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION
APPEAL TRIBUNAL
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Ward
Lord Justice Laws and
Lord Justice Keene
Case Nos: C/2001/2000, C/2001/1475, C/2001/1476, C/2001/1477, C/2001/1479, C/2001/1480,
C/2001 1856, C/2001 1857
Nicholas Blake QC and Rick Scannell (instructed by Sutovic and Hartigan) for the appellants
Sean Wilken and Kristina Stern (instructed by Treasury Solicitors) for the respondent
This is the judgment of the court.
INTRODUCTORY
There are before the court eight appeals, and a renewed application for permission to appeal.
All the appellants are Croatian Serbs, save one, M. He is an ethnic Hungarian who fought against the Croats, and is married to a Serb. Ward LJ has directed that they be not referred to by name, and so far as it is necessary to mention the appellants individually we shall do so by the initials listed at the start of the Secretary of State's skeleton argument.
All the appeals, and the application, are directed against determinations of the Immigration Appeal Tribunal ("IAT") given following a hearing on 21 st & 22 nd March 2001 at which the IAT considered all eight cases together. Given the nature of the issue in the appeals it is important to notice its reasons for doing so, and the purpose of the exercise:
"2. There have been a very large number of appeals relating to ethnic Serbs and many have been adjourned by the tribunal pending the outcome of these appeals, which have been described as test cases… Furthermore, it is to be noted that a large number of appeals have been allowed by adjudicators during the course of last year (some as a result of concessions by the Secretary of State) and we have been provided with a list of some 264 such appeals. Equally, the tribunal has had a number of such appeals before it. While the results have varied, the approach has been consistent, but the tribunal has had to rely on whatever material has been put before it. This
has meant that there has been a degree of apparent inconsistency and so it was thought desirable that there should be an authoritative decision as to what the current situation is to enable consistent results to be achieved because this tribunal has been able to consider all relevant evidence.
3. … [T]hese cases are to be regarded as definitive unless there is a material change in the situation in Croatia. Since, as will become apparent, we are persuaded that none of the eight individuals concerned here have established a well-founded fear of persecution, such a change will only be for the worse if most applications involving ethnic Serbs are not to fail."
The eight appellants had applied for asylum to the Secretary of State and been refused. They all mounted appeals to Special Adjudicators. Two were successful at that level: S and M. All eight cases went with leave before the IAT. The IAT held that none of the appellants harboured a well-founded fear of persecution, and so upheld the Secretary of State. In each case the IAT refused permission to appeal to this court. But on 1 st August 2001 Pill LJ granted permission in all the cases except that of SN, which as we understand it was not before him. SN obtained permission to appeal on 8 th February 2002, on the same ground upon which Pill LJ had granted the other applications. SN is also the appellant who advances a renewed application for permission on a separate basis. (As regards that we should say at once that at the hearing in this court we granted permission upon this discrete basis, and with the Secretary of State's consent quashed the determination in SN's case. we shall explain why that was done in due course.) The ground upon which all the appellants have permission lies within a relatively narrow compass. It is to the effect that the IAT failed to consider and weigh two reports which are said to have been of particular significance for the assessment of conditions in Croatia as at the time when the IAT had to consider the matter. These reports were made respectively on 29 th January 2001 and 22 nd March 2001 by the Special Rapporteur of the United Nations Commission on Human Rights. We will refer to them as the SR reports.
There is no express reference to either of the SR reports on the face of the IAT determination in the case of S, given on 1 st May 2001, which was chosen as the lead determination in which to set out the IAT's general conclusions as to the situation in Croatia and the risk of persecution of ethnic Serb returnees. We shall explain in due course the alleged significance or otherwise of the SR reports, and the circumstances in which they surfaced in the case. But we should first sketch the background.
THE FACTUAL BACKGROUND AND THE DETERMINATION OF THE IAT
Here, we can do no better than introduce the factual background to the appeals, and the IAT's approach to it, by citing paragraphs 10–12 of the IAT's determination in S, as follows.
"10. The persecution alleged in these cases is by Croats and involves severe discrimination and hostile acts on the ground of ethnicity. Racial hatred has a long history in that part of Europe and in the course of the fighting which followed the break up of Yugoslavia terrible atrocities were committed by Serbs against Croats and by Croats against Serbs. In Eastern Slavonia, where most of the Serbs who have remained in or returned to Croatia now live, the Serbs were in the ascendancy between 1991 and 1995. In 1991 Vukovar was captured and there were a large number of murders of civilians perpetrated by forces under the command of Colonel Msric. IL and VL, who are son and mother, rely heavily in support of their claims on the fact that their father and husband was killed at Vukovar while serving under Colonel Msric's command. He together with other officers has been indicted for the murder of some 360 men taken from Vukovar hospital. Since 1995, when the Serb forces were driven out, initially UNTAES and since 1998 the Croats have been in control. Initially, when President Tudjman was in power, widespread discrimination against the harassment of Serbs was encouraged. Tudjman's party, the HDZ, was fervently nationalistic. The acts of harassment of which all the appellants complain occurred before 1998 and 1999 at a time when the government was not only unwilling to provide protection against hostile acts towards Serbs but was positively encouraging them. In December 1999, Tudjman died and in February 2000 there was a change of government. The new President has adopted a conciliatory approach and is determined to uphold minority rights and to facilitate the return of Serbs who had fled. It is accepted by all who have reported on the situation in Croatia and both by Dr Gow and Judge Karphammer that the government is trying to achieve rapprochement. It is not mere rhetoric. There have been significant acts which show that the government is determined to overcome the hatred and divisions. Ethnic cleansing, which the hard-line Croats want to achieve, must not be allowed to succeed.
11… The government's intentions are undoubtedly being to an extent frustrated by those responsible at lower levels for implementing the relevant policies. Discrimination remains and acts of harassment on ethnic grounds are commonplace and are frequently not dealt with properly by the police or judiciary. That there have been improvements since last February cannot be doubted, but we have to ask ourselves whether those improvements are such as to prevent the appellants establishing that there is a real risk of persecution. If there is such a risk, the persecution will be for a convention reason, namely race or nationality.
12. We are therefore largely concerned with persecution by non-state actors. The only qualification relates to prosecutions for war crimes which are said to amount to persecution. Thus the Convention can only apply if the government is unwilling or unable to provide the necessary protection to its citizens. The issues are whether there is a real risk of persecution and, if so, whether the government is unable or unwilling to provide protection. We have posed two questions. In reality, there is only one, since it is apparent from the decision of the House of Lords in Horvath v Secretary of State for the Home Department [2000] 3 WLR 379 that the test as to whether any ill-treatment amounts to persecution depends not only on the severity of that ill-treatment but also upon there being a failure by the state to afford protection against it: see per Lord Hope of Craighead at p. 385."
WE should set out in respect of each appellant the date when he or she fled Croatia, the date of the Secretary of State's refusal of the asylum application, the date of the Special Adjudicator's determination, and the date of the IAT determination.
| Name | Date Departure | Date of SSHD | Date of SA | Date of IAT |
| S | 16.9.98 | 28.3.00 | 27.11.00 | 1.5.01 |
| BN | 9.2.99 | 26.07.00 | 22.10.00 | 16.5.01 |
| VS | 28.12.98 | 18.2.00 | 28.9.00 | 16.5.01 |
| M | 10.9.99 | 28.3.00 | 21.9.00 | 21.5.01 |
| K | 7.99 | 5.5.00 | 13.9.00 | 21.5.01 |
| IL & VL | 16.12.98 | 11.11.99 | 24.8.00 | 30.5.01 |
| SN | 26.3.99 | 18.2.00 | 08.11.00 | 25.5.01 |
Mr Blake QC, for all the appellants, points out that each of his clients fled Croatia during the period of the Tudjman government, and it is said that at that stage their fear of persecution at the hands of the Croats was plainly well-founded. In the case of IL and VL the Secretary...
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