SK (Return – Ethnic serb) Croatia CG
| Jurisdiction | England & Wales |
| Judge | President |
| Judgment Date | 03 December 2002 |
| Neutral Citation | [2002] UKIAT 5613 |
| Court | Immigration Appeals Tribunal |
| Date | 03 December 2002 |
| Docket Number | Appeal No: HX 65298/2000 CC 12867/2001 HX 43916/2001 HX 49818/2001 |
[2002] UKIAT 5613
IMMIGRATION APPEAL TRIBUNAL
The President, The Hon. Mr Justice Collins
Mrs. J. Gleeson
Mr. S. Batiste
Appeal No: HX 65298/2000
HX 16389/2001
CC 12867/2001
HX 43916/2001
HX 49818/2001
For the Appellant: Mr. Sean WilkenMr. Andrew Robb
For the Respondent: Mr. Nicholas Blake Q.C. Mr. Mark Mullins
SK (Return — Ethnic Serb) Croatia CG*
In S and Others (01 TH 00632) the Tribunal had, following consideration of 8 appeals which were heard together, produced a determination which was intended to be:–
“an authoritative decision as to what the current situation is to enable consistent results to be achieved because the tribunal has been able to consider all relevant evidence”.
That determination was dated 1 May 2001. The ‘current situation’ in question was that in Croatia as it affected ethnic Serbs who claimed that to return them to Croatia would be contrary to the United Kingdom's obligations under the Refugee Convention. The tribunal had had before it all relevant material and had in addition had the advantage of listening to oral evidence from two acknowledged experts, Dr. Gow and Judge Karphammer. It concluded that, despite the genuiness of the expressed fears and the fact that there would be considerable hardship on return, the situation did not support the contention that there was a real risk of persecution. Accordingly, the tribunal decided that unless the situation worsened or there were special circumstances affecting an individual claimant, ethnic Serbs would not be able to establish that they were entitled to asylum.
Unfortunately, the tribunal had not specifically referred to two reports which had been submitted after the hearing as part of submissions which the tribunal had permitted to be made in writing. This led to leave to appeal being given and to the appeal being allowed. The Court of Appeal's decision was given on 24 April 2002. It discussed what it labelled to be the ‘exotic’ concept of a factual precedent at some length but concluded that in the context of the I.A.T.'s responsibilities it was in principle benign and practical. In reality, the tribunal did not consider that it was breaking any new ground. In all asylum claims it has to consider the situation in the relevant country of nationality as at the date of the hearing. That involves an assessment of all available evidence about that situation. In an adversarial process, it is inevitable that in some cases the tribunal (or an adjudicator who has to deal with the appeal before him in a similar way) will not have seen all relevant material and so may not be able to form a properly balanced view. This leads to inconsistent decisions in relation to the same country and that is clearly not only undesirable but in some instances positively unfair. Furthermore, it leads to unnecessary appeals and expense.
The Court has in Paragraphs 29 to 32 of its judgment explained what should be the approach of the tribunal in undertaking such an exercise to its determination and in particular to the giving of reasons. It explains how the tribunal erred in that case. We should set out those paragraphs in full.
“29. But if the conception of a factual precedent has utility in the context of the I.A.T.'s duty, there must be safeguards. A principal safeguard will lie in the application of the duty to give reasons with particular rigour. We do not mean to say that the I.A.T. will have to deal literally with every point canvassed in evidence or argument; that would be artificial and disproportionate. But when it determines to produce an authoritative ruling upon the state of affairs in any given territory it must in our view take special care to see that its decision is effectively comprehensive. It should address all the issues in the case capable of having a real as opposed to fanciful bearing on the result, and explain what it makes of the substantial evidence going on the result, and explain what it makes of the substantial evidence going to each such issue. In this field opinion evidence will often or usually be very important, since assessment of the risk of persecutory treatment in the milieu of a perhaps unstable political situation may be a complex and difficult task in which the fact-finding tribunal is bound to place heavy reliance on the views of experts and specialists. We recognise of course that the I.A.T. will often be faced with testimony which is trivial or repetitive. Plainly it is not only unnecessary but positively undesirable that it should plough through material of that kind on the face of its determination.
30. It may be thought that this approach is not far distant from the way in which the I.A.T. generally discharges its duty to give reasons, and not only in cases where it resolves to produce an authoritative determination as to the position in a particular country. Indeed we do not mean to suggest that in this latter class of case the I.A.T.'s duty is of an altogether different quality. The experienced members of the I.A.T., not least if we may say so its President and Deputy President, will we are sure have no difficulty in gauging the quality of the reasons given so as to ensure that these authoritative determinations will be, and will be seen to be, effectively comprehensive.
31. In the present case the SR reports constituted substantial recent opinion evidence from an important source. While, as Mr. Blake acknowledged, they may not have uncovered new or otherwise unknown primary facts, they presented a relative gloomy picture on a series of important issues – so-called secret lists, arrests, detentions, prosecutions, the conduct of the police and judiciary, and to some extent discrimination in economic treatment and the distribution of property rights – which is in our judgment significantly at variance with the much more upbeat impression given by the OSCE. Having regard to all the points made by Mr. Wilken the difference is not perhaps as stark as Mr. Blake would have us accept, particularly in relation to such matters as the numbers still facing outstanding prosecutions. The SR reports, however, convey the suggestion that whatever the good intentions at the level of the State political leadership, there remain problems, even growing problems, at the local level: see for example paragraphs 41, 46 and 53 of the first report. In the circumstances we entertain no doubt but that, if the I.A.T.'s duty to give reasons in a determination of this kind is of the nature and quality we have sought to describe, its failure to explain what it made of the SR reports means that the duty has not been fulfilled. The position is the more stark given the I.A.T.'s own observations at paragraph 25 of the S determination, “[s]ince the situation is somewhat fluid and improvements are undoubtedly occurring, it is necessary to look particularly at the most recent reports”.
32. Accordingly we allow these appeals, and remit all these cases to the I.A.T. to be re-determined. There will be a question what form the re-determination should take. That will be a matter for the I.A.T. It may be that a full re-hearing will not be necessary. We have heard no argument as to the scope of the I.A.T.'s procedural powers, and we make no ruling or finding on the question”.
We confess to some concern that what is said in Paragraph 29 should be used to justify reasons challenges when every piece of evidence which could bear on the result is not specifically mentioned. Apart from the failure to refer to the two reports, we do not understand the balance of the determination to have been criticised. What we did then and shall do in this case is to summarise the relevant material, to refer to the important reports which give the various different slants and to reach our conclusions. We shall not specify each document which has been put before us. That we do not regard as necessary; the parties know what we have had, have put in detailed written submissions and in oral argument referred to those reports and the passages in them upon which they wish to rely and will be able to decide whether our summary is a proper distillation of the various matters which have been relied on. We are sure that the court did not require us to do more than that. However, we do recognise the need for a comprehensive decision and one which shows we have had regard to all relevant evidence.
We note but respectfully are unable to accept the view of the court of the importance of opinion evidence. The tribunal is accustomed to being served with reports of experts. We have to say that many have their own points of view which their reports seek to justify. The whole point of the country reports is to bring together all relevant material. From them, the tribunal will reach its own conclusions about the situation in the country and then will see whether the facts found in relation to the individual before it establish to the required standard a real risk of persecution or of treatment which breaches his or her human rights. Further, the tribunal builds up its own expertise in relation to the limited number of countries from which asylum seekers come. Naturally, an expert's report can assist, but we do not accept that heavy reliance is or should be placed upon such reports. All will depend on the nature of the report and the particular expert. Furthermore, it is rare for such experts to be called to give evidence or for their views to be tested. We were fortunate in S to have had called before us two experts who were truly knowledgeable and who had no particular axes to grind. We have reports from experts in the present case which we shall of course take into account and we will decide what weight should be accorded to their views.
We are not sure how we would have...
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