SK (Roma in Kosovo – update)
| Jurisdiction | England & Wales |
| Judge | Ms. D. K. GILL,Vice President |
| Judgment Date | 28 January 2005 |
| Neutral Citation | [2005] UKIAT 23 |
| Court | Immigration Appeals Tribunal |
| Date | 28 January 2005 |
[2005] UKIAT 23
IN THE IMMIGRATION APPEAL TRIBUNAL
Ms. D. K. Gill (Vice President)
Mrs. M. L. Roe
Mrs. G. Greenwood
For the Appellant: Mr. E. Fripp, of Counsel, instructed by Douglas Simon Solicitors.
For the Respondent: Mr. C. Avery, Senior Home Office Presenting Officer.
SK (Roma in Kosovo — update) Serbia and Montenegro
The Appellant (a national of Serbia and Montenegro, who is from Kosovo and who arrived in the United Kingdom on 11 October 2002) has appealed, with permission, against the determination of Mr. K. O. Adio, an Adjudicator, who (in a Determination promulgated on 19 April 2004 following a hearing on 13 April 2004 at Hatton Cross) dismissed his appeal on asylum and human rights grounds against the Respondent's decision of 14 January 2004 to give directions for his removal from the United Kingdom as an illegal entrant.
In this case, the Tribunal's jurisdiction is limited by Section 101 of the 2002 Act. This confers jurisdiction to entertain appeals on points of law only. The Tribunal cannot allow an appeal unless it holds that the Adjudicator had perpetrated a material error or mistake of law (see CA v. SSHD [2004] EWCA Civ 1165).
The basis of the Appellant's claim is that he would be persecuted in Kosovo on account of his Roma ethnic origin. The Adjudicator did not find him credible as to the problems he alleged to have experienced in Kosovo on account of his Roma ethnic origin. The Adjudicator stated that he did not accept the Appellant's account of “the core aspects of his claim”. He said that there were “significant discrepancies” in the Appellant's evidence. He did not find the Appellant credible with regard to his reasons for leaving Kosovo (paragraph 21 of the Determination). At paragraph 23 of the Determination, the Adjudicator stated that, in view of these findings, he did not accept that the Appellant had discharged the burden of proof to show that “she” (presumably meaning “he”) has a well-founded fear of persecution for a Convention reason. At paragraph 24, the Adjudicator referred to the UNHCR paper on Kosovo dated 30 March 2004 in the following terms:
I am aware of the latest UNHCR paper on Kosovo dated 30 March 2004 and the recommendations that minority groups should continue to benefit from international protection particularly in view of the recent inter ethnic clashes. None of the parties addressed me in court on this issue, however, in view of the contents of that paper which I have partly summarised the respondent might want to consider providing the appellant with some sort of temporary leave in the UK.
Permission to appeal was granted because the Vice President granting permission considered that it was arguable that the Adjudicator had not given proper consideration to the UNHCR paper of 30 March 2004.
At the hearing before us, Mr. Avery submitted that, as the Adjudicator had not found the Appellant credible with regard to his alleged problems, it was open to him to dismiss the appeal on that ground, notwithstanding the fact that he had not rejected the Appellant's claim to be a Roma. For this reason, the Adjudicator had not erred in law by suggesting to the Secretary of State that he might want to consider granting the Appellant some form of leave, as opposed to assessing the risk on return himself on account of the Appellant's Roma ethnic origin. We do not hesitate in rejecting Mr. Avery's submissions in this regard. The fact that the Adjudicator did not find the Appellant credible with regard to his alleged problems as a Roma in Kosovo does not absolve him from assessing the risk on return on the basis of such facts as, to the low standard of proof, he is satisfied about. Despite the fact that the Adjudicator did not find the Appellant credible with regard to his evidence about his alleged past problems, it is abundantly clear from the Determination that he did not doubt that the Appellant was of Roma ethnic origin. It was therefore incumbent upon him to assess whether the Appellant would be at real risk of persecution or Article 3 ill-treatment on account of his Roma ethnic origin, regardless of his credibility as to past events. It would, of course, have been open to the Adjudicator to reject the Appellant's claim as to his Roma ethnic origin on the basis of his concerns about the credibility of the Appellant's claims concerning his alleged problems in the past, but he did to do so. It was not open to the Adjudicator to leave it to the Secretary of State to decide whether to grant the Appellant leave on the basis of the UNHCR Paper of 30 March 2004.
Accordingly, we are satisfied that the Adjudicator did err in law, for the reasons we have given above.
The Tribunal delivered to the parties at the hearing copies of the Tribunal's Determination in the following cases:
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(a) FD (Kosovo – Roma) Serbia and Montenegro CG [2004] UKIAT 00214.
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(b) KK (risk – Return – Suicide – Roma) Serbia and Montenegro [2004] UKIAT 00228.
We invited the parties to address us on any fresh evidence relied upon by the Appellant which would persuade us to depart from the views of the Tribunal above.
Fresh evidence : We have been served with the following documents which were not before the Tribunal in the FD case:
Served on the Appellant's behalf:
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(a) The UNHCR Position Paper dated August 2004 entitled: “UNHCR Position on the Continued International Protection Needs of Individuals from Kosovo” (document H of the Appellant's Bundle B).
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(the UNHCR Kosovo August 2004 Paper)
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(b) Appendix 1 (entitled: “Non-exhaustive list of selected security incidents involving minorities January 2003 – April 2004”) to the UNHCR's paper dated August 2004 entitled: “The possibility of applying the internal flight or relocation alternative within Serbia and Montenegro to certain persons originating from Kosovo and belonging to ethnic minorities there” (document I in the Appellant's Bundle B) (the UNHCR Serbia and Montenegro August 2004 Paper). We were only referred to Appendix 1; we were not referred to the main body of the report, because (presumably) we confirmed to Mr. Fripp that he did not need to address us on any internal flight alternative outside of Kosovo.
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(c) A bulletin from CIPU (Country Information and Policy Unit of the Immigration and Nationality Directorate) entitled “Serbia and Montenegro (Kosovo) 5/2004” (document B in the Appellant's Bundle B). It is clear from the date immediately below the heading on the first page and from the last page of the document that this document is in fact dated July 2004.
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Served on the Respondent's behalf:
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(d) The CIPU report on Serbia and Montenegro (which includes a section on Kosovo) dated October 2004.
Mr. Fripp informed us that the Appellant's home area is in the north west of Kosovo; his home village is on a road between Pristina and Peje. In Mr. Fripp's submission, the Appellant would not be safe in a Roma enclave. Furthermore, he would not be able to travel safely to any Roma enclave. In Mr. Fripp's submission, much of the objective evidence which was before the Tribunal in the FD case was old, as paragraphs 33, 38 and 39 of the Determination indicate. Paragraph 58 indicates that the Tribunal did consider the incidents in mid-March 2004 and the UNHCR's position paper of 30 March 2004. In that paper, the UNHCR had stated that a report would be published in April 2004, although the Tribunal in the FD case noted that, as at mid to late May 2004, none had been published. We now have the detailed report of the UNHCR, in the form of the report dated August 2004.
Whilst the whole of the UNHCR Kosovo August 2004 Paper was important, paragraphs 25, 26 and 27 were particularly important. Paragraph 2 of this report states that many less serious inter-ethnic crimes go unreported. Appendix 1 of the UNHCR Serbia and Montenegro August 2004 Paper is a non-exhaustive list of selected security incidents involving minorities between January 2003 and April 2004. Mr. Fripp asked us to bear in mind the fact that there is under-reporting of inter-ethnic crimes.
Mr. Fripp also referred us to paragraphs 3.3, 3.9 and 3.10 of the CIPU Bulletin of July 2004. In Mr. Fripp's submission, all the evidence indicates that protection levels for Roma in Kosovo are insufficient. We noted that paragraph 2 of the UNHCR Kosovo August 2004 Paper refers to the environment in Kosovo being one in which inter-ethnic crime is not “systematically investigated and rarely solved”. We asked whether “systematic investigation” is what is entailed in deciding whether protection is sufficient. Mr. Fripp accepted that it was clear from the judgement of the House of Lords in Horvath that international protection is not available if sufficient protection is available and a guarantee of protection is not necessary. It is not necessary for a state to eliminate all risk or to exclude random attacks. However, the situation for Roma in Kosovo is that there is a systematic pattern of violence and repercussions. Minority groups are entirely isolated. Freedom of movement has essentially ceased. In these circumstances, in Mr. Fripp's submission, protection for Roma in Kosovo is insufficient.
Mr. Avery referred us to paragraph K.6.53 of the CIPU Report of October 2004 which shows that, up until the riots in mid-march 2004, the situation for Roma in Kosovo was improving. Paragraph K.6.87 of the report supports the view of the Tribunal in the FD case that the mid-March 2004 riots were a blip. The overall position of the UNHCR has not changed much since mid-March 2004. Paragraph K.6.59 of the report refers to the steps taken by UNMIK and OSCE since March 2004.
Mr. Fripp reminded us that we do not have before us the June 2004 UNHCR report...
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