SAFET PAJAZITI v The Secretary of State for the Home Department

Thomas LJ will give the first judgment.

This is an appeal brought by the appellant from a decision of the Immigration Appeal Tribunal, given on 28th July 2004, in which the Tribunal allowed an appeal by the Secretary of State. That appeal had been brought against an adjudicator's determination, which allowed the appellant's asylum and human right appeals by a determination, dated 22nd August 2003, against the rejection of the Secretary of State's application to enter.

The facts can be briefly stated. The appellant was born in the Presevo Valley in Serbia, which is close to the Kosovo border, in 1981. He is an ethnic Albanian and a Muslim; he lived in that valley until 1998. His evidence was that his father had been a very active member of the LDK, which resisted Serbian pressure. As a result of this the family became known to the police. On one occasion in his childhood, when his father was arrested, his family was beaten up; his father held for 18 months. His father was, according to his evidence, made president of the LDK wing in Medvedja a town in the Presevo Valley, in 1997. He arranged demonstrations and became responsible for organising the KLA in that area.

The appellant acted as a courier for his father but was never detected by the authorities for that. In December 1998 the appellant was called up for military service but did not answer that call in common with many others. Also in that month, and this is the incident of greatest importance, his family's house was surrounded by the police in the early hours of the morning. His father helped him escape. He went to a friend's house and was taken to Macedonia. He heard his father was arrested, that the house was burnt and destroyed by the police. He did not know what happened to his father or sisters.

He was helped to come to the United Kingdom by road and entered this country on 17th December 1998. He was then 17.

The evidence that he gave to the adjudicator, as to his fear of return, was this:

"'I fear the Serbs as there are no Albanians living there, as the area was ethnically cleansed as they wanted… People I was persecuted by are still there working for the authorities.' He explained to me that there was no family any more in Medvedja: there was no one and no home to which he could return. In 2003 he still feared being sent back. His name and family's reputation would be known by the Serbian authorities. He had kept up-to-date with the situation in the Presheva valley from news reports. A contact in his own area who worked for the Serbian authorities informed him that some refugees had gone back but not those who were forced to leave or who had had problems with the authorities. He also as an ethnic Albanian because of events in Presheva feared the Serbian population: there was a hatred between Serbs and Albanians. He maintained that the Serbs wanted to destroy all Albanians. The interest in him specifically was because of his father's activities and background."

Thereafter the appellant was granted, on 6 August 1999, leave by the Secretary of State to stay until 6 August 2000. That was subsequently extended until 3 July 2002, the Secretary of State refused to grant further leave to remain. The appellant also made an asylum application and that was refused by the Secretary of State on 26 June 2002. During his time in the United Kingdom, the appellant learned to speak fluent English, attended a technical college and obtained various qualifications enabling him to do some forms of specialist cleaning and to drive certain types of machinery. He then spent, in the period of two-and-a-half years preceding the hearing before the adjudicator, working for a restaurant chain. The adjudicator found that if his immigration position had been certain he would most likely have been able to achieve management level. In the United Kingdom, he had established a home and a circle of friends.

The adjudicator's determination can be briefly summarised. He accepted the evidence of the appellant as credible about his fears of return and consequent persecution. He accepted these were sincere and genuine. He set out, in his adjudication, the expert evidence that was before him. First, there was an in-country report, dated April 2003, and also a report from a Mr Korovilas, a senior lecturer in economics, and faculty research fellow at the University of the West of England at Bristol.

In the light of the evidence of the appellant, and those two reports, the adjudicator came to a determination which is set out in paragraph 16 of the adjudication. It is necessary to set this out because the argument before us has turned upon this paragraph. He said this:

"I found the appellant to be an impressive young man. I do not doubt his credibility. I believe the story he has told of the events that he has undergone and the experiences he has had. I find that his fears of return to Serbia and consequent persecution and/or ill-treatment are sincere and genuine. I have to consider the situation as it is at present in the light of the background information and material presented to me. I also have to take account of the appellant's sources of information. Whilst noting all that is said in the Country Assessment I regard this appellant as falling into an exceptional category not merely because he is an ethnic Albanian brought up in a still very 'sensitive area' because of Albanian aspiration but because 'de facto' the region continues to be dominated by a Serbian administration with Serbian police and security forces who I am satisfied would become aware of the appellant on his return and indeed of his father's reputation and standing in the LDK/KLA.

It may be the changes have indeed been put in place and that the efforts under the Covic plan will produce in future generations a more harmonious mix of Serbs and ethnic Albanians, such that the fears entertained by the likes of the appellant will not be justified. I do not find having weighed matters carefully in the balance that that is the situation at present. I fear on the appellant's behalf that he would be singled out and that having come to the attention of the authorities there are substantial grounds for believing that he is at a real risk of either persecution or ill-treatment that would breach the Article 3 threshold. The Appellant is not on his own admission a conscientious objector. Bearing in mind the background information to which I have referred I find that it is not reasonably likely that this appellant would be arrested on account of the fact that he has failed to answer the draft on two occasions at time of war."

The adjudicator also found in respect of the argument under Article 8 that the deportation of the appellant would be in contravention of those rights as it would not be a proportionate response. In the light of the argument before us, I do not think it necessary to set out his precise reasoning for that conclusion.

The Secretary of State appealed to the Immigration Tribunal who allowed the appeal both as to the asylum and Article 3 claim, and in respect of the Article 8 claim. It is, I think, not necessary to set out, at length, the reasoning of the Tribunal. They proceeded to examine the report of Mr Korovilas and considered that the adjudicator had acted wrongly in attaching weight to that report in reaching his conclusion. Secondly, they came to the view that he had failed to address, in coming to his conclusion, the terms of the in-country report and, in particular, that part of it in relation to the Presevo Valley. Although they considered he had referred to it, he had not assessed it. At paragraph 60 of their determination they concluded that:

"The Adjudicator was wrong to place reliance upon the report of Mr Korovilas before him and failed to take adequate account of the objective material available to him in wrongly concluding that the Appellant was in an exceptional category and at continued risk on return."

They concluded, therefore, on the asylum and Article 3 grounds, as follows, at paragraph 62:

"We therefore conclude that the Appellant has failed to establish a well-founded fear of persecution for a Refugee Convention reason and that his removal would not cause the United Kingdom to be in breach of its obligations under the Refugee Convention."

In turning to the Article 8 grounds, they concluded that the adjudicator had not proceeded to consider the issues properly in accordance with the authorities. It is not necessary to lengthen this judgment by referring to the detail of that.

Leave was granted to appeal to this court because it was contended, on behalf of the appellant, that the Immigration Appeal Tribunal had erred in approaching its own jurisdiction, because it had failed in the material part of its reasons to identify an error of law. In CA v the Secretary of State for the Home Department [2004] EWCA Civ 1165 in the judgment of Laws LJ at paragraph 14:

"Accordingly, and this...